Decisions

TATC File No. C-3598-33
MoT File No. Z 5504-066294 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Matthew David Ryan, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433; ss 605.94(1)


Review Determination
Franco Pietracupa


Decision: July 9, 2012

Citation: Ryan v. Canada (Minister of Transport), 2012 TATCE 20 (Review)

Heard at Regina, Saskatchewan, on December 12, 2011

Held: The Minister has proven, on a balance of probabilities, that the Applicant, Matthew David Ryan, contravened subsection 605.94(1) of the Canadian Aviation Regulations. Accordingly, the monetary penalty of $1 500, as set out in the Notice of Assessment of Monetary Penalty, is upheld.

The total amount of $1 500 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Determination.

I. BACKGROUND

[1] A Notice of Assessment of Monetary Penalty ("Notice") was issued to the Applicant, Matthew David Ryan, on May 5, 2009, by the Minister of Transport ("Minister").

[2] Schedule A to the Notice sets out the charge as follows:

COUNT #1: $1,500.00

Canadian Aviation Regulation 605.94(1) in that, between July 4, 2008 and July 13, 2008, at or near Outlook, Saskatchewan, you, being the person responsible for making an entry in the journey log of an aircraft, to wit, a Cessna Aircraft Company A188B, bearing Canadian registration C‑FYEY, did fail to record the particulars set out in Column 1 of an item in Schedule 1, subsection 605.94(1) of the Canadian Aviation Regulations in the aircraft journey log book, specifically, you did fail to enter the air time of each flight or series of flights and cumulative total air time daily, on completing each flight or series of flights.

Count #1 $1,500.00

Total Penalty $1,500.00

[3] A Request for Review was filed with the Transportation Appeal Tribunal of Canada ("Tribunal") on July 1, 2009.

II. STATUTES & REGULATIONS

[4] Subsection 605.94(1) of the Canadian Aviation Regulations, SOR/96-433 ("CARs"), reads as follows:

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

[5] Paragraph 11(b) and subsection 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, read as follows:

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[6] Schedule I to Part VI of the CARs, as it relates to the alleged contravention under subsection 605.94(1), reads as follows:

SCHEDULE I

(Subsection 605.94(1) and Item 3 of Schedule II)

JOURNEY LOG

Item

Particulars to be entered

Time of entry

Person responsible for entry

[…]

[…]

[…]

4.

Air time of each flight or series of flights and cumulative total air time and, where applicable, number of operating cycles or landings since date of manufacture

Daily, on completing each flight or series of flights

The pilot-in-command of the aircraft or a person designated by an air operator, a private operator or a flight training unit

III. PRELIMINARY MOTIONS

A. Applicant's First Motion

[7] At the beginning of the Review Hearing, the Applicant's representative made a motion for disclosure in relation to five specific items raised by the Applicant's representative regarding the Minister's failure to disclose:

  1. the complete and original flight logbook for aircraft C-FYEY;
  2. the Applicant's complete record and file at Transport Canada;
  3. the complete record on file for aircraft C‑FYEY;
  4. all the files and records of a particular accident that was being investigated by Transport Canada; and
  5. the records or files relating to any audits conducted by Transport Canada in relation to Cloud 9 Airspray Ltd. ("Cloud 9").

[8] The disclosure requirements and principles of administrative law are based on the right of an applicant to know the case he has to meet in advance of a review hearing. Disclosure should include the material relevant to the evidence that will be presented at the review hearing. In reviewing disclosure obligations, the Tribunal has accepted the principles of disclosure articulated in R. v. Stinchcombe, [1991] 3 S.C.R. 326, that is, that all information relevant to the charge before the Tribunal ought to be disclosed, and that no information should be withheld, if doing so would impair an applicant's right of making full answer and defence.

[9] It is critical for an administrative tribunal—such as this Tribunal—that cooperation between parties in voluntarily disclosing documents must be observed in order for natural justice to function effectively.

[10] While the extent of the disclosure required may vary from case to case, disclosure must allow an applicant the opportunity to make full answer and defence.

[11] Based on these principles, I find that the Minister has met his disclosure obligations in this case. The Notice sent to the Applicant was precise and clear as to the contravention assessed. The disclosure package included adequate and relevant information concerning a specific contravention that occurred during a specific time and date, and the Minister has disclosed his case in the matter.

[12] The additional disclosure requested by the Applicant is, in my opinion, irrelevant to the case as heard and furthermore, was not made in a timely manner prior to the Review Hearing date. Thus, I have made the following rulings, denying all five parts of the motion:

  1. The request from the Applicant for the complete and original journey logbook for C‑FYEY far exceeds the requirement for an applicant to defend himself against specific charges. The period in question is inclusive and specific to the charge laid and, as such, the pages supplied are adequate. The Applicant had the opportunity to submit any relevant information with regard to entries in the journey logbook and chose not to.
  2. The Applicant was issued the Notice based on his alleged failure to comply with subsection 605.94(1) of the CARs between July 4 and July 13, 2008. No other charges, allegations, or contraventions are at issue, nor have they been raised by the Minister. The Applicant's complete record is not relevant to this Review Hearing, as no charges were brought against the Applicant in addition to the Notice under review.
  3. The particulars set out in Column 1 of Schedule 1 to subsection 605.94(1) of the CARs specifically pertain to the responsibility of the pilot‑in‑command ("PIC") to enter airtime information on a daily basis, on completing each flight or series of flights. The disclosure of any and all records on file pertaining to aircraft C-FYEY is irrelevant to the Notice issued.
  4. The Applicant's motion for disclosure of the accident investigation in relation to the contravention in the Notice is denied. The non-disclosure of these files and reports has not affected the Applicant's ability to defend himself.
  5. The final matter raised in the disclosure motion was for the Minister to provide all his auditing reports and investigations conducted on Cloud 9. The issue in this Review Hearing is directly related to the Applicant's requirements to enter journey logbook airtime. Any audits or investigations that are being or have been conducted by the Minister regarding Cloud 9 are not relevant to this Review Hearing.

B. Applicant's Second Motion

[13] At the start of the Review Hearing, the Applicant's representative presented a motion for a Stay of Proceedings in this matter involving paragraph 11(b) of the Charter. The motion was dealt with through written submissions subsequent to the Review Hearing consisting of the Applicant's motion and the response by the Minister.

[14] The following paragraphs summarize the facts and timelines indicated in the Applicant's motion.

[15] The Applicant received a registered letter from the Minister on August 27, 2008, regarding an investigation into matters relating to alleged violations pertaining to subsections 602.14(2) and 605.94(1) of the CARs. Following the investigation by the Minister, the Notice was sent to the Applicant, dated May 5, 2009. A request for review from the Applicant was received by the Tribunal on July 1, 2009. The Notice of Hearing was sent to the Applicant on November 1, 2011, setting the date of the Review Hearing as December 12, 2011.

[16] It is important to note, first and foremost, that pursuant to subsection 24(1) of the Charter, the Federal Court has ruled that the Tribunal is a court of competent jurisdiction.

[17] In Askov v. R., [1990] 2 S.C.R. 1199, the Court set out four factors to consider when deciding whether the delay in bringing the accused to trial has been unreasonable. The Applicant's motion for a Stay of Proceedings is dismissed for the following reasons:

Length of Delay: Any delay between the time that the Minister first issued the Notice and the time that the Review Hearing was held was undoubtedly long but not unreasonable. I heard of no delays owing directly to the actions of the Minister, and no issues were raised by the Applicant regarding delay until the day of the Review Hearing.

Explanation of the Delay: In reviewing the timeline in this Review, the Tribunal was presented no reasons or actions from either the Minister or the Applicant that could be attributed to the delay cited. There was no evidence that any party acted in bad faith or negligence in contributing to delaying this Review.

Waiver of the Right of the Accused: In this case, this factor does not apply as no waiver was received or requested by the Applicant.

Prejudice to the Accused: The issue of paragraph 11(b) of the Charter is important to examine in determining if the Applicant was unfairly prejudiced in his defence during this delay. The Applicant had to persuade me that his ability to make a full defence had been impaired. Based on the specific contravention assessed by the Minister, the Applicant has not shown any link between the procedural delay and any prejudices suffered. The issue reviewed dealt with specific entries to a logbook made by the Applicant. No witnesses, other than the Applicant, were called and all required evidence was available for the Review Hearing.

[18] I further believe that no prejudice to the Applicant occurred. The Review Hearing concerned specific entries in a journey logbook that resulted in the issuance of the Notice. The Applicant's aviation licence remained valid and no arguments or submissions were presented to me indicating that his ability to continue to be employed as a pilot was curtailed. Furthermore, no fine is payable by the Applicant until the determination has been rendered.

IV. EVIDENCE

A. Minister

(1) Myles Cleaver

[19] Myles Cleaver is a Civil Aviation Safety Inspector for Transport Canada in the Aviation Enforcement branch. Mr. Cleaver testified that he was assigned to investigate a civil aviation daily occurrence report ("CADOR") received by Transport Canada. The CADOR reported that a Cessna 188 spray aircraft operated by Cloud 9 had impacted a wire or pole on July 13, 2008. The aircraft had landed with damage to its underside fuselage, including spraying equipment that contained 25 litres of Lorsban insecticide. The aircraft in question was registered as C‑FYEY.

[20] Mr. Cleaver stated that on July 25, 2008, he contacted Roland Jenson, the owner of Cloud 9 Air Spray Ltd. ("Cloud 9"), and requested the journey log page related to this aircraft at the time of the accident (Exhibit M‑1) in order to determine who the PIC was at the time. Based on his initial review of the journey logbook, Mr. Cleaver assumed the PIC to be the Applicant, as this was the last entry into the journey logbook. Upon closer inspection, Mr. Cleaver determined that the last entry in the journey logbook was out of sequence and dated July 3, 2008.

[21] Mr. Cleaver explained that, based on his investigation related to this accident, including the journey logbook, a letter of investigation was drafted on August 21, 2008, noting anomalies where flights or a series of flights had been entered into the journey logbook. Based on his observation of these entries, he thought they might not have conformed to the CARs. In fact, the PIC of the aircraft on July 13, 2008, was Kostas Georgacacos (Exhibit M‑1), referred to by the witness as "Mr. G".

[22] Mr. Cleaver also testified to the entries made in the journey logbook. On September 4, 2008, the Applicant contacted Mr. Cleaver to inform him that he was not the pilot involved in the aircraft accident, rather Mr. Georgacacos was the pilot involved. At this point, Mr. Cleaver informed the Applicant that an investigation into the journey logbook entries would be launched. The Applicant informed the inspector that, as per accepted company practices, entries into the journey logbook are carried out at the end of each week based on invoices received, and that the entries are normally done by the owner, Mr. Jenson.

[23] Mr. Cleaver testified that he proceeded to review the company's Operations Manual, specifically regarding company requirements and/or policies concerning journey logbook completion. He found no references to any Transport Canada approved deviations as to the entry of flight times, other than that stipulated in Schedule I to subsection 605.94(1) of the CARs. Mr. Cleaver further testified that there was no mention in the Operations Manual of a designated person at Cloud 9 who is approved to enter the daily data into the journey logbook, other than the PIC.

[24] Mr. Cleaver stated that he could not find any evidence in the company's Operations Manual that authorizes entries into the journey logbook in any way other than the one specified in subsection 605.94(1) of the CARs. The Applicant was informed on September 4, 2008, that a letter of investigation regarding a possible deviation from subsection 605.94(1) of the CARs would be submitted. Mr. Cleaver informed the Applicant at that time that he would have the opportunity to respond by statement to this alleged infraction. Mr. Cleaver testified that, on that same day, the Applicant admitted that entries in the journey logbook are made by the owner of the company, Mr. Jenson, on a weekly basis.

[25] Under cross‑examination, Mr. Cleaver was asked if a journey logbook is required onboard an aircraft. Mr. Cleaver stated that some companies are exempt if a flight or series of flights take off from and land at the same aerodrome. Thus the company, if these conditions were met, was not obligated to have the journey logbook onboard the aircraft. When asked if a person other than the PIC can be designated to make entries into the journey logbook, Mr. Cleaver responded that he can if he has been duly approved by Transport Canada in a company's Operations Manual. Mr. Cleaver admitted to not having the full copy of the Cloud 9 Operations Manual.

[26] Mr. Cleaver was asked if Mr. Jenson would be allowed to make entries in the journey logbook. Mr. Cleaver responded that he would need to be approved by the Minister and that this would need to be specified in the company's Operations Manual.

[27] Mr. Cleaver was also asked about specific entries in the journey logbook (Exhibit M‑1) and if a possibility existed that the entries under the name "M. Ryan" could have been made by a different individual. Mr. Cleaver was asked to compare an entry made on July 2, 2008, with one made further down the same page under the same name. Specifically, he was asked to compare the letters "M" and the numerical entries for both and determine if these could have been made by two separate individuals. Mr. Cleaver stated that he was not a handwriting expert and although it was possible, he could not know.

[28] Mr. Cleaver was asked if C‑FYEY's complete journey logbook was requested from Mr. Jenson. He stated that he only requested the pages related to the flight on July 13, 2008, and that only those related pages were forwarded to him. Further questions were raised with regard to the different numerical entries made by the same individual. Mr. Cleaver was asked again if some entries could have been made by Mr. Jenson on behalf of the PIC. Mr. Cleaver agreed that some numbers entered at different times for the same individual have font differences, but again reiterated that he is not a handwriting expert.

[29] During re‑examination, Mr. Cleaver was asked to look at an entry in the journey logbook dated July 3, 2008. Mr. Cleaver confirmed that the entry indicated that the Applicant conducted a flight between KR9 and YQV on that date. Mr. Cleaver was asked to look at another entry that had been entered on July 3, 2008, for a flight between YQV and KR9. Mr. Cleaver testified that these two entries were made out of sequence because the return flight to KR9 that took place on the same day was only entered into the journey logbook after a series of flights had taken place between July 4, 2008, and July 13, 2008.

B. Applicant

(1) Matthew Ryan

[30] Matthew Ryan, the Applicant, is a pilot employed by Cloud 9. He testified that entries in the journey logbook from May 2, 2008 to July 12, 2008 (Exhibit M‑1) were made by Mr. Jenson and were accurate as to the flight time recorded. He testified that he then signed these entries in the journey logbook. The Applicant stated that this is common practice at Cloud 9. He explained that flight times are recorded on a flight log clipboard during flights, then transferred over to the journey logbook. Concerning the specific trip to YQV, the Applicant testified that the aircraft's journey logbook was onboard, but that the common practice is for this book to be held in the office, with the owner, Mr. Jenson, making the entries and the pilot signing them.

[31] The Applicant testified that Mr. Georgacacos was the pilot involved in the accident that took place on July 13, 2008, and not him as initially suspected by Transport Canada. The Applicant's representative pointed out an entry (with "K. Georgacocos" signed to it) that had been crossed out, which indicated a flight time of 16.5 hours. The Applicant admitted that it is unusual to have a single entry in the journey logbook for 16.5 hours, but further stated that he has no reason to believe the hours in the journey logbook are inaccurate. He stated that he has no idea if the entries by or for "K. Georgacacos" were entered by Mr. Jenson.

[32] The Applicant explained that his entries were out of sequence due to the crash on July 13, 2008. The journey logbook was filled out on a date other than when the flight took place, and the records of flight time kept on the aircraft had been destroyed in the crash. As such, the company had to rely on the individual flight logbooks of the pilots in order to enter the flight times of the flights that occurred prior to the accident. Since Mr. Georgacacos had access to the logbook (Exhibit M‑1) prior to the Applicant, his times were entered first. This was important, as the Applicant testified that Mr. Jenson had to show that Mr. Georgacacos had the minimum 10 hours of flight on the aircraft prior to the accident to qualify for insurance.

[33] During cross-examination, the Applicant was asked why the entries in the journey logbook were out of sequence. He reiterated that Mr. Georgacacos simply had access to the logbook before he had an opportunity to enter his flight times.

[34] The Applicant admitted that he is familiar with the CARs and with the requirement that the pilot must make entries into the journey logbook daily, upon completing a flight(s). The Applicant explained that the company policy is for the pilot to keep track of the flight times while onboard with an individual flight log; afterwards, the company makes the entries in the actual journey logbook. When asked if this policy is expressed in a written or verbal form, the Applicant responded that he did not know. He reiterated that Mr. Jenson told him that this is the practice.

[35] The Applicant was asked about the July 3, 2008 entry from KR9 to YQV. He stated that he flew that day from his base of KR9 to YQV with the aircraft's journey logbook (Exhibit M‑1) but made no entries in it. He explained that he thought Mr. Jenson would make the entry. He explained that as Mr. Jenson is the owner and president of the company, he does not argue with this practice. The Applicant confirmed that had made the last entry in the logbook, dated July 3, 2008, from YQV to KR9, and this entry had been signed by him. As to the other entries, the Applicant explained that the owner makes the entries and the Applicant signs them at a later date.

[36] Under cross‑examination, the Applicant was asked if the entries in the journey logbook from July 4, 2008, to July 13, 2008, had been entered by him and he responded that they had been entered by him. He was also asked if the entry from July 3, 2008 from YQV to KR9, entered out of sequence after the July 13, 2008 entry was his as well and he responded affirmatively. He also reiterated that some other entries in the logbook had been entered by Mr. Jenson and signed by the respective pilots at a later date. He again explained that this is company practice and policy.

[37] Under re-examination, the Applicant was asked to comment on a section of the Cloud 9 Operations Manual (Exhibit A‑1), section 1.4.3 (f), whereby a PIC has specific post-flight duties to record flight times and any defects. The Applicant responded that this is interpreted as keeping track of flight times in the flight log kept on the aircraft.

V. ARGUMENTS

A. Minister

[38] The Minister's representative argues through documentary evidence and viva voce testimony that the Applicant contravened subsection 605.94(1) of the CARs for failing to make the required entries in the journey logbook of aircraft C‑FYEY.

[39] The photocopies of the logbook (Exhibit M‑1) that were given to the investigative Transport Canada inspector by Cloud 9 were entered into evidence by the Minister to display entries made out of sequence and not in a daily fashion as required by subsection 605.94(1) of the CARs.

[40] The Minister's representative also argues that testimony given by the Applicant shows that the entries were entered at the end of each week using a separate flight time log kept onboard the aircraft, or by using flight invoices generated by the company, and are thus out of sequence. Testimony by the Applicant indicates that he simply followed company policy, as directed by Mr. Jenson, as to how and when entries are made. The Minister argues that no such exemption existed for Cloud 9 to enter flight times other than what is stipulated in the CARs.

[41] The Minister's representative pointed out that the Applicant admitted under direct examination and under re‑examination that he made the noted entries. His defence of having done so due to direction from Mr. Jenson does not excuse his committing this offence. He also pointed out that the Applicant's ignorance of the CARs is no excuse, as the offence is a strict liability offence.

B. Applicant

[42] The Applicant's representative argues that the charge against the Applicant should be dismissed as the Minister has failed to prove that entries in the journey logbook of aircraft C‑FYEY were the responsibility of the Applicant.

[43] He further argues that Schedule I to subsection 605.94(1) of the CARs states that the entries are to be made by the PIC of the aircraft or a person designated by an air operator, a private operator or a flight training unit. He states that the company's Operations Manual only requires the PIC to complete the necessary paperwork and does not specifically mention the aircraft logbook.

[44] The Applicant's representative repeated that the Applicant's testimony clearly indicated that the Chief Pilot acts as the person designated by the air operator and that this person had the responsibility to enter data in the aircraft's logbook. The Applicant was only required to record and track flight times on a separate sheet kept onboard the aircraft. He further submits that this is standard practice among many flight training units and is permitted in the CARs.

[45] The Applicant's representative argued that the journey logbook (Exhibit M‑1) clearly shows that the flights made by the Applicant and Mr. Georgacacos were all entered by the same person, who was not either of these two pilots.

[46] He further requests costs against the Minister due to the careless and unprincipled manner in which he investigated this issue. He also charges that the Minister failed in not providing the aircraft's complete logbook; in not providing proper witnesses; and by not proceeding with this matter in a timely fashion, contrary to the Charter.

C. Minister's Reply

[47] The Minister's representative pointed out that the Applicant is charged under subsection 605.94(1) of the CARs for failing to make entries in the aircraft journey logbook in a daily or sequential manner prior to the next flight.

[48] He referred to the aircraft's logbook (Exhibit M‑1), which shows that a series of flights were entered out of sequence. In particular, he points out that a series of entries were made by Mr. Georgacacos for July 4, 2008, to July 13, 2008, followed by entries made by the Applicant for July 4, 2008, to July 13, 2008. He argues that the Applicant admitted to making these non‑sequential entries.

[49] The Minister's representative further argues that in the company's Operations Manual, no delegation of the responsibility for someone to make entries besides the PIC can be found. He further states that the entries were at times entered by Mr. Jenson, and at others by the Applicant. No evidence was entered showing that Cloud 9 had the authority to delegate this task to anyone other than the PIC. As such, subsection 605.94(1) of the CARs prevails and the PIC is the sole person responsible for this task.

[50] The Minister's representative requested that the Applicant's representative be sanctioned in regards to defamatory remarks made in his written closing arguments. He further argues that no costs be provided to the Applicant, as no reasons were submitted nor were there any convincing arguments provided by the Applicant's representative.

VI. ANALYSIS

[51] The matter before me is specific to the charge against the Applicant, in that he allegedly failed to enter the airtime of each flight or series of flights on a daily basis in the aircraft journey logbook for aircraft C‑FYEY.

[52] These specific flights or series of flights were not recorded in accordance with the requirements of Schedule I to subsection 605.94(1) of the CARs. The Minister has proven, on a balance of probabilities, through Exhibit M‑1, that 13 entries in the journey logbook were entered after the fact and not daily or sequentially, upon completing each flight or series of flights, as required by the CARs.

[53] Neither the Minister's representative nor the Applicant's representative dispute the fact that the entries were entered out of sequence. The Applicant argued that the responsibility for these entries fell to the Chief Pilot and/or owner of the company, Mr. Jenson, and that he was simply following orders. However, I find no direct testimony or evidence that this was the case. The Applicant admitted under oath that entries were made after the fact. The non-sequential entries in question, from July 3, 2008, to July 13, 2008, were entered by the Applicant himself. Although I have no doubt that the Applicant's testimony is credible, no evidence was provided showing that the responsibility for entering flight airtime was delegated to Mr. Jenson.

[54] Furthermore, in Cloud 9's Operations Manual (Exhibit A‑1), no documentary references are found that permit such a deviation from Schedule I to subsection 605.94(1) of the CARs. All that can be referenced is found on page 1-2, section 1.4.3, which states the following:

Company pilots are responsible to the Chief Pilot for the safe conduct of assigned flights. Specific duties include:

[…]

f) Completing all post‑flight duties, including notification of down times/confirmation of the whereabouts of the aeroplane when away from base, recording flight times and any defects, etc.

No mention is made of any person other than the PIC having these responsibilities.

[55] The only remaining deviation allowed in Schedule I as to someone else having the responsibility to enter flight times, is under a Flight Training Unit, and Cloud 9 has not been identified as one. As no such deviation exists in these circumstances, it is clear to me that the PIC is responsible for making the entries; therefore, the Applicant is responsible for the entries alluded to in the Notice.

[56] Whether or not the Applicant was simply following company practice as to the entering of the 13 flights after the fact, as a strict liability offence, the failure to make the entry daily, on completing each flight or series of flights, is a breach of the CARs. The failure to record flight times daily directly impacts the aircraft's maintenance schedule and ultimately its airworthiness certification. The overall responsibility for properly recording daily flight times and aircraft defects falls to the PIC of the aircraft. A designated person other than the PIC can be approved by Transport Canada, but no evidence, testimony or witnesses collaborated that this was the case. No approved method for entering flight airtime other than by the PIC was heard and, as such, the Applicant had the responsibility to adhere to subsection 605.94(1) of the CARs.

[57] I see no mitigating circumstances that would lead me to reduce the penalty of $1 500. The monetary penalty assessed in this case is appropriate and should be maintained as set out in the Notice.

VII. MOTION ON COSTS

[58] In the Applicant's written closing submission, a request was made that the Tribunal consider that this case warrants the awarding of costs.

[59] Subsection 19(1) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, states as follows:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

[60] From my perspective, this is not a case where costs are justified. There is simply no evidence to suggest that the matter heard at the Review Hearing was frivolous or vexatious or that officials of the Minister acted in bad faith or exhibited any form of maliciousness in the performance of their duties, and paragraphs 19(1)(b) and (c) are of no importance in this particular matter.

VIII. MOTION ON SANCTION

[61] In the Minister's written rebuttal to the Applicant's submission, a request was made that the Tribunal sanction the Applicant's representative based on allegedly defamatory remarks made against the Minister and his officers, specifically in the Applicant's written submissions, to which the Minister has taken offence. Consequently, the Minister has requested that the Applicant's representative be sanctioned for these remarks. However, making a finding of defamation and ordering a corresponding sanction goes far beyond the jurisdiction of the Tribunal. Indeed, such a request would require filing a lawsuit for defamation in the appropriate court, and attempting to prove that the Applicant's representative's statements meet the legal test for defamation. This is an analysis that clearly is outside the powers that have been given to the Tribunal, and one that is better left to a court of law. As such, I decline the Minister's request for sanction against the Applicant's representative for his allegedly defamatory statements.

IX. DETERMINATION

[62] The Minister has proven, on a balance of probabilities, that the Applicant, Matthew David Ryan, contravened subsection 605.94(1) of the Canadian Aviation Regulations.

Accordingly, the monetary penalty of $1 500, as set out in the Notice, is upheld.

July 9, 2012

Franco Pietracupa

Member