Decisions

TATC File No. W-3638-33
MoT File No. 5504-67886 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

David Michael Mathieson, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96 433; para. 605.03(1)(b)


Review Determination
Stephen Rogers


Decision: July 9, 2012

Citation: Mathieson v. Canada (Minister of Transport), 2012 TATCE 21 (Review)

Heard at Edmonton, Alberta, on March 6, 2012

Held: The Minister of Transport has proven, on a balance of probabilities, that the Applicant, David Michael Mathieson, contravened paragraph 605.03(1)(b) of the Canadian Aviation Regulations. Consequently, the monetary penalty of $1 500 is maintained.

The amount 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] On September 3, 2009, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("Notice") to the Applicant, David Michael Mathieson, which states as follows:

Schedule A – Annexe A

#1 - CARs 605.03(1)(b)

On or about the 30th day of October 2008, at or near Rocky Mountain House, Alberta, being the pilot-in-command, you did operate an aircraft, to wit a Dornier 228, Canadian registration C-FYEV, in flight when the aircraft was not operated in accordance with the conditions set out in the flight authority, more specifically above 15,000 feet MSL without a maximum allowable airspeed indicator, a contravention of section 605.03(1)(b) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,500.00

TOTAL MONETARY PENALTY - $1,500.00

[2] The Applicant's Request for Review of the Notice was received by the Transportation Appeal Tribunal of Canada ("Tribunal") on November 18, 2009. The Review Hearing was initially scheduled to be heard on November 23, 2011, but the Applicant failed to appear so the Tribunal issued an adjournment, due to extenuating circumstances. The Review Hearing was rescheduled for March 6, 2012, and did proceed on this date even though the Applicant was again absent.

II. REGULATION

[3] Paragraph 605.03(1)(b) of the Canadian Aviation Regulations ("CARs") provides as follows:

605.03 (1) No person shall operate an aircraft in flight unless

(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and

III. EVIDENCE

A. Minister

(1) William Curtain

[4] William Curtain is a Civil Aviation Safety Inspector at Transport Canada's Aviation Enforcement branch in Edmonton, Alberta. Mr. Curtain introduced the Detection Notice for the event (Exhibit M-1), which he received from Inspector Brandon Smith of Transport Canada. The Detection Notice alleges that the Applicant flew a Dornier 228, registered as C-FYEV, from Edmonton International Airport, Alberta, to Chilliwack, British Columbia, on or about October 30, 2008. He testified that pursuant to FlightAware flight tracking data, a portion of this flight occurred at 16 000 feet above sea level ("ASL") (Exhibit M-2), whereas the maximum operating altitude limit for the aircraft is 15 000 feet ASL according to the Pilot's Operating Handbook ("POH") for the Dornier 228 (Exhibit M-3). While he noted that the maximum operating altitude limit is 25 000 feet ASL if the aircraft is fitted with a maximum allowable airspeed indicator ("MAAS indicator") (Exhibit M-3), he testified that the aircraft in question was not fitted with a MAAS indicator.

(2) Brandon Smith

[5] Brandon Smith is a Civil Aviation Safety Inspector at Transport Canada. In his testimony, Mr. Smith confirmed that, based on the FlightAware flight tracker data (Exhibit M-2), the aircraft in question exceeded its altitude limit of 15 000 feet ASL while flying from Edmonton to Chilliwack. He further testified that the Applicant was the Captain of the aircraft, based on an email sent to him from the Vice President and Flight Operations Manager of Summit Air (Exhibit M-4) as well as the Journey Log (Exhibit M-5). Mr. Smith affirmed that the Captain of an aircraft is responsible for the aircraft at all times, regardless of who is flying the aircraft.

[6] In response to questioning from the Minister's representative, Mr. Smith suggested that the aircraft may have experienced a build-up of ice and had the option of returning to Edmonton where the weather was not an issue, in accordance with the meteorological aerodrome reports ("METARs") and terminal aerodrome forecasts ("TAFs") for October 30, 2008 (Exhibit M-6).

(3) Paolo Dal Bello

[7] Paolo Dal Bello, a former Safety Officer for Summit Air, confirmed that he was on the flight in question from Edmonton to Chilliwack, but stated he had no recollection of the flight itself or any related weather or icing concerns; also, he could not recall if there was extra crew on the flight. However, he agreed that the aircraft was not fitted with a MAAS indicator.

B. Applicant

[8] There were no witnesses or evidence available on behalf of the Applicant.

IV. ANALYSIS

A. Proving the Contravention

[9] In order to prove that the alleged contravention occurred, the burden is on the Minister to prove the following, on a balance of probabilities:

  1. that the Applicant was responsible for the aircraft;
  1. that the aircraft flew above the permitted altitude; and
  1. that the aircraft did not have a MAAS indicator installed.

[10] The Minister has provided adequate evidence to prove each of the above facts on a balance of probabilities. The Journey Log (Exhibit M-5) demonstrates that the Applicant was the Captain of the aircraft at the time of the alleged contravention. The FlightAware flight tracking data (Exhibit M-2) demonstrates that the aircraft exceeded its allowable altitude of 15 000 feet ASL during the flight.

[11] Although a contravention of the CARs would not have occurred in this instance if the aircraft had been equipped with a MAAS indicator, it is clear from the evidence before me that this was not the case. As such, on a balance of probabilities, the Minister has proven the occurrence of the strict liability offence.

[12] The Applicant was not present for the Review Hearing; as such, no argument was brought forward to rebut the occurrence of the offence. While necessity might have been a defence in this case, the Minister's witness, Mr. Smith, brought reliable evidence to show that the breach of the CARs could have been avoided by simply turning the aircraft around and returning to Edmonton. As such, it cannot reasonably be stated that the violation was unavoidable or necessary.

B. Penalty

[13] The penalty assessed in this instance was above the minimum penalty allowable for a first offence under paragraph 605.03(1)(b) of the CARs. The Minister submits that this is due to aggravating factors including the risk in which the Captain placed the aircraft, and the requirement for a chief pilot to set a good example for other pilots with regard to compliance with the requirements of an aircraft's operations manual.

[14] I do not believe the assessed penalty to be unduly harsh or unfair. Furthermore, the Applicant was absent from the Review Hearing, and as such did not bring any mitigating circumstances to light. While icy conditions were one factor to consider in this instance, the Minister has shown that these conditions did not require violating the CARs.

C. Costs

[15] The Minister seeks costs pursuant to subsection 19(1) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, which provides that the Tribunal may award costs if a party fails to appear at the Review Hearing and does not provide sufficient reasons for this failure. In this instance, the Applicant failed to appear at both of the scheduled Review Hearings.

[16] Nevertheless, the onus is on the Minister to prove alleged offences. As such, there is no strict requirement for an applicant to attend a review hearing. While attendance is always in the best interest of an applicant, I do not believe it is appropriate in this instance to award costs to the Minister. Consequently, I decline the Minister's request for costs in this matter.

V. DETERMINATION

[17] The Minister of Transport has proven, on a balance of probabilities, that the Applicant, David Michael Mathieson, contravened paragraph 605.03(1)(b) of the Canadian Aviation Regulations. Consequently, the monetary penalty of $1 500 is maintained.

[18] The amount 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.

July 9, 2012

Stephen Rogers

Member