Decisions

TATC File No. C-3697-41
MoT File No. Z5504-068917 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Lumsden Aero Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433; ss 605.03(1)


Review Determination
Patrick T. Dowd


Decision: October 26, 2012

Citation: Lumsden Aero Ltd. v. Canada (Minister of Transport), 2012 TATCE 33 (Review)

Heard in Regina, Saskatchewan, on October 24-28, and November 1-2, 2011

Held: The Minister of Transport has proven on a balance of probabilities that the Applicant, Lumsden Aero Ltd., contravened seven counts of subsection 605.03(1) of the Canadian Aviation Regulations. The assessment monetary penalty of $5 000 in respect of each count is upheld for a total monetary penalty of $35 000.

The total amount of $35 000 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 May 13, 2010, the Minister of Transport ("Minister") served each of the three Applicants, Skynorth Aviation Ltd. (Dover, Deleware), Lumsden Aero Ltd., and Farm Air Ltd., with a Notice of Assessment of Monetary Penalty ("Notice").

A. Applicants

(1) Skynorth Aviation Ltd. (Dover, Deleware) ─ TATC File No. C-3695-41

[2] Skynorth Aviation Ltd. (Dover) was assessed a penalty of $35 000 for being vicariously liable under subsection 8.4(2) of the Aeronautics Act for seven alleged infractions of subsection 605.03(1) of the Canadian Aviation Regulations ("CARs") by Lumsden Aero Ltd. Skynorth Aviation Ltd. (Dover) is a Canadian-owned U.S. company located in the State of Delaware. Norman Colhoun and Munroe Chase are directors and shareholders of this corporation.

(2) Lumsden Aero Ltd. ─ TATC File No. C-3697-41

[3] Lumsden Aero Ltd. was assessed a penalty of $35 000 for seven alleged violations of subsection 605.03(1) of the CARs on seven different occasions. Lumsden Aero Ltd. is a Canadian company registered in the Province of Saskatchewan. Mr. Colhoun and Laura Colhoun are directors, officers and shareholders of the corporation. Lumsden Aero Ltd. owns the business name of Skynorth Aviation.

(3) Farm Air Ltd. ─ TATC File No. C-3696-41

[4] Farm Air Ltd. was assessed a penalty of $20 000 for four alleged violations to subsection 700.02(2) of the CARs on four separate occasions. Farm Air Ltd. is a Canadian company registered in the Province of Saskatchewan. Mr. and Mrs. Colhoun are shown as directors and shareholders of the corporation.

B. Aircraft

[5] The aircraft at the centre of this matter is a PT6A-28 model, with U.S. registration N4190X and bearing serial no. 1955R. At the time of production, the aircraft was issued a Special Airworthiness Certificate (SAC) (Exhibit M-19) in the restricted classification for the purpose of agricultural and pest control. The builder was listed as Rockwell International and its model designation was S2R.

[6] On the reverse of the certificate (Exhibit M-19), there are five blocks, A to E inclusive. These blocks clarify the parameters and limitations of this certificate which will be referred to from time to time during the evidence presentations and in the Determination. The Federal Aviation Administration (FAA) website has a sample of the present-day SAC, which is an exact duplicate of the one issued in 1974, which constituted N4190X's flight authority.

[7] The history of the company (Rockwell International) is useful because the aircraft is referred to under different corporate names. Rockwell International originally built its facility in 1965 and operated it until it was purchased by Ayres Corporation in 1977. In 2003, Thrush Aircraft Inc. purchased the assets of Ayres Corporation. Consequently, the aircraft is referred to as a Rockwell PT6A, Thrush N4190X, and Ayres PT6A throughout the exhibits and evidence, but it actually is the same aircraft.

C. Situational Background

[8] Skynorth Aviation Ltd. (Dover) purchased the aircraft and exported it to Canada under its U.S. SAC, which imposed the condition that the aircraft could not operate over any foreign country without that country's special permission. Accordingly, an application was made and granted for a Canadian validation to the SAC to operate in Canadian airspace. The validation authorized Skynorth Aviation Ltd. (Dover) to take the aircraft to Lumsden, Saskatchewan, by May 23, 2004.

[9] On May 6, 2004, the aircraft piloted by Mr. Colhoun cleared Canadian Customs in Regina, Saskatchewan. The documentation (Exhibit M-26) shows that Mr. Colhoun imported the aircraft and in his declaration, he named Skynorth Aviation (Canada), a subsidiary of Lumsden Aero Ltd., as the purchaser for the sum of $87 000 USD. Nevertheless, the parties both agreed at the Review Hearing that the aircraft is still owned by Skynorth Aviation Ltd. (Dover).

[10] Sometime after the aircraft entered Canada, Mr. Colhoun applied to Transport Canada for an extension of the validation to the U.S. SAC. The application was denied by the Transport Canada Saskatoon office. In an effort to obtain the validation, Mr. Colhoun appealed to Transport Canada – Ottawa, and was granted an extension valid between June 17 and July 21, 2004 (Exhibit M-24). This validation was granted for the use of the aircraft for private purposes, demonstrations, and technical evaluations of various parameters of the aircraft. It also stated that the aircraft could not be used for carrying persons or property for compensation or hire, or used as a commercial aircraft. This was the last contact between the Applicants and Transport Canada regarding the aircraft.

[11] The Minister calculated the 90-day period in which the aircraft was allowed to remain in Canada and determined the expiry date to be September 15, 2004. Since the expiry of this validation, the Minister alleges that the aircraft has been operated in Canadian airspace a number of times.

D. Charges

[12] Lumsden Aero Ltd. is alleged to be in violation of subsection 605.03(1) of the CARs for flights occurring on July 3, 7, 12, 17, August 24, and November 28, 2009, and on March 29, 2010. Skynorth Aviation Ltd. (Dover) is being held vicariously liable for these same flights.

[13] Farm Air Ltd. is alleged to have used the aircraft to conduct aerial applications during the 2009 spray season without an appropriate Air Operator Certificate ("AOC"), as it had surrendered its AOC in the spring of 2008.

[14] Farm Air Ltd. is alleged to be in violation of subsection 700.02(2) of the CARs for flights that occurred on July 3, 7, 12, and 17, 2009.

[15] The issues in this Hearing are clear; the presentation of evidence and argument are complex. In this case, the Minister must demonstrate that the Applicants operated an aircraft without a valid flight authority (Lumsden Aero Ltd. & Skynorth Aviation Ltd. (Dover) or without an AOC (Farm Air Ltd.), contrary to the relevant CARs provisions.

II. STATUTES AND REGULATIONS

[16] The charges against the Applicants were made under subsections 605.03(1) and 700.02(2) of the CARs. These subsections state:

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

(a) a flight authority is in effect in respect of the aircraft;

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

(c) subject to subsections (2) and (3) the flight authority is carried on board the aircraft.

700.02 (2) Subject to subsections (3) and (4), no person shall, unless the person holds and complies with the provisions of an air operator certificate that authorizes the person to do so, operate an aeroplane or helicopter to conduct aerial work involving

(a) the carriage on board of persons other than flight crew members;

(b) the carriage of helicopter Class B, C or D external loads;

(c) the towing of objects; or

(d) the dispersal of products

700.02 (3) A person who does not hold an air operator certificate may conduct aerial work involving the dispersal of products if

(a) the person is a farmer;

(b) the person owns the aircraft that is used to disperse the products;

(c) the products are dispersed for agricultural purposes; and

(d) the dispersal of the products take place within 25 miles of the centre of the person's farm.

[17] Table 1 of section 2.8 of the Implementation Procedures – 2008 (BASA – 2000) (Implementation Procedures) states:

Table 1: Summary of U.S. Products, Including Appliances and Parts, and Their Associated FAA Approvals
Recognized by TCCA

Product

FAA Type Certificate, and Amendments (14 CFR Part 21) (See Note 3)

FAA Supplemental Type Certificate (See Note 3)

FAA Technical Standard Authorization

FAA Parts Manufacturer Approvals

Airplanes in the following categories:

       

Normal

   

N/A

N/A

Utility

   

N/A

N/A

Acrobatic

   

N/A

N/A

Commuter

   

N/A

N/A

Transport

   

N/A

N/A

Rotorcraft in the following categories:

       

Normal

   

N/A

N/A

Transport

   

N/A

N/A

Manned Free Balloons

   

N/A

N/A

Engines

   

N/A

N/A

Rebuilt Aircraft Engines

   

N/A

N/A

Propellers

   

N/A

N/A

Aircraft in Special Classes (See Note 2):

       

Airships

   

N/A

N/A

VLA

   

N/A

N/A

Gliders

   

N/A

N/A

Powered Lift

   

N/A

N/A

Aircraft Type Certificated in the restricted category

(See Note 1)

(See Note 1)

N/A

N/A

TSO Appliances

N/A

N/A

 

N/A

PARTS:

       

Replacement and Modification Parts for the above airplanes, rotorcraft, balloons, engines, propellers, special class aircraft, and appliances

(Also need a production approval)

(Also need a production approval)

   

Note 1: Aircraft certified in the restricted category for the purposes of agricultural, forest and wildlife conservation, aerial surveying, patrolling, weather control and aerial advertising.
Note 2: TCCA does not recognize primary category aircraft.
Note 3: A Canadian TC, STC, or equivalent document is required.

III EVIDENCE

A. Minister

(1) Michael Yaholnitsky

[18] Michael Yaholnitsky operated a commercial air service out of Yorkton Airport in Ebenezer, Saskatchewan. He was acquainted with the Applicants' Representative, Mr. Colhoun. On March 29, 2010, Mr. Yaholnitsky observed a Turbine Thrush aircraft land and taxi off the runway. This caught his interest because this type of aircraft is rare. After the aircraft was parked, he observed Mr. Colhoun leaving the cockpit. Mr. Yaholnitsky did not recall the full registration of the aircraft, but he did remember that it was a U.S.‑registered aircraft, an "N" aircraft. He described the aircraft as a yellow-coloured Thrush. He and Mr. Colhoun had a visit with each other.

[19] Sometime later, Mr. Colhoun contacted Mr. Yaholnitsky by telephone to discuss the events of March 29, 2010. He noted that Mr. Colhoun stated he intended to put Transport Canada Inspector Joe Gaudry in jail for obtaining evidence illegally.

[20] The Applicants' Representative conducted a very short cross-examination. He asked Mr. Yaholnitsky if he saw which runway the aircraft had landed on. He replied that he could not remember, but confirmed he saw the aircraft leaving Runway 03/21. The numbers represent the magnetic direction of the runways. He was also asked about the registration. He replied he did not write the registration down but he recalled it was an "N" number registration.

(2) Nicholas Allan Denesowych

[21] Nicholas Allan Denesowych stated he operated an aircraft maintenance facility at the Yorkton Airport. He testified he and Mr. Colhoun had a conversation about the aircraft. He said the aircraft discussed was a turbine-powered Thrush with registration number N4190X. He had not seen the aircraft land but he had observed it parked outside his hangar door.

[22] On cross-examination, the Applicants' Representative questioned Mr. Denesowych about whether or not an aircraft can switch from a restricted to a normal category. He had never converted this type of aircraft from one category to another, but he gave the opinion that this conversion did exist and that a Thrush aircraft could be moved from one category to another. The Applicants' Representative introduced a service letter from Ayres Corporation (Exhibit A-1).

(3) Superintendent James Welwood

[23] Superintendent James Welwood is the Acting Manager of Aviation Enforcement. He has over 27 years of service with Transport Canada in various positions, and holds a valid Airline Transport Pilot Licence.

[24] Superintendent Welwood became involved in this file when he received a complaint involving Lumsden Aero Ltd. and Skynorth Aviation (Canada) and assigned the matter to Inspector Gaudry for investigation. The file was later assigned back to Superintendent Welwood for investigation.

[25] The complaint in question was made by a farmer about an aircraft flying low and scaring his horses. Another complaint was received by Transport Canada from Kronau, Saskatchewan, regarding a spray aircraft. This investigation resulted in a farmer advising Transport Canada that he had hired Farm Air Ltd. to do the spraying. Another complaint was received from Craven, Saskatchewan, regarding an aircraft spraying the fairgrounds. The aircraft was positively identified as N4190X.

[26] Superintendent Welwood stated that the evidence in the Minister's possession indicated Lumsden Aero Ltd. operated the aircraft without a flight authority. The Minister reached this conclusion based on the restrictions within the U.S. SAC requiring a Canadian validation of the certificate. There were issues regarding who owned the aircraft and who operated the aircraft, and there was conflicting evidence on these issues.

[27] A decision was reached to charge both Lumsden Aero Ltd. and Skynorth Aviation Ltd. (Dover) based on the Customs documents prepared when the aircraft was imported (Exhibit M‑26). This approach was further supported by the fact that Skynorth Aviation (Canada), named on the Customs documents (Exhibit M-26), was a business name owned by Lumsden Aero Ltd. This was also an indication that Lumsden Aero Ltd. had care and control of the aircraft.

[28] Superintendent Welwood went on to explain that when an aircraft is imported from the U.S. into Canada, it is usually deregistered in the U.S. and registered in Canada. That did not occur with this aircraft. Skynorth Aviation Ltd. (Dover) was the last registered owner. This is why the vicarious liability section of the Aeronautics Act was applied.

[29] Superintendent Welwood was asked why Colhoun Farm was not cited. He answered Colhoun Farm was not a legal entity and could not register an aircraft in Canada.

[30] When asked why Mr. Colhoun was not charged, Superintendent Welwood responded that procedurally, the owner was usually named under the CARs sections. Also, it would have been difficult to place Mr. Colhoun in the pilot's seat. Additionally, he felt it may have been perceived as being abusive to be charging everyone involved.

[31] Superintendent Welwood then explained the counts against Farm Air Ltd. In Canada, there are two authorities under which you may disperse products from an aircraft in flight. Either you have an AOC or you qualify as a flying farmer. To qualify as a flying farmer, you must be a farmer, which means the majority of your income must be from farming. If you qualify, you are allowed to spray within 25 miles from the center of your farm for agricultural purposes. The sanctions in this case were only applied to flights that were beyond 25 miles of the Colhoun Farm or were not for agricultural purposes.

[32] Superintendent Welwood testified that Farm Air Ltd. performed four flights: three in the area of Govan, Saskatchewan, which was significantly more than 25 miles from Colhoun Farm, and one flight in the area of Craven, Saskatchewan, which was used to spray a campground for insect control.

[33] Superintendent Welwood then proceeded to address the subject of sanctions. The sanction for these flights was $5 000 per count. This sanction was applied, not to each flight, but to each count which included multiple flights. He felt this approach would ensure future compliance.

[34] Superintendent Welwood reviewed the corporate searches that were completed by the Saskatchewan Corporate Registry (Exhibits M-4, M-5 and M-8). The documents received from the Saskatchewan Corporate Registry and the State of Delaware (Exhibits M-6 and M-7) were entered as exhibits and they support the earlier observations on the status of these companies.

[35] A letter (Exhibit M-9) was sent from Commercial & Business Aviation, Transport Canada, to Mr. Colhoun, Operations Manager, dated May 20, 2008, regarding the suspension of AOC No. 8646 of Farm Air Ltd. The suspension was to last until May 19, 2009, after which time it would be cancelled.

[36] Superintendent Welwood stated he believed the Applicants' Representative and the Applicants conducted their operations from Mr. Colhoun's farm in Lumsden, Saskatchewan, where he has an airstrip and hangars, which is his main base of operations.

[37] Superintendent Welwood explained his knowledge of a 702 operator, that is, a person who holds an AOC under section 702 of the CARs to conduct aerial work. He confirmed that Farm Air Ltd. did not hold an AOC.

[38] Superintendent Welwood produced Secretary Certificates ("Certificates") from the Secretary of the Department of Transport Canada and entered them as Exhibits M‑11, M‑12, M‑13, M‑14, M‑15, M‑16 and M‑17). These Certificates showed there were no certificates of registration issued to Farm Air Ltd. from January 1 to December 31, 2009. Farm Air Ltd. owned no aircraft during that year. There was a Notice of Cancellation of AOC No. 5260-8646 for Farm Air Ltd. (Exhibit M-10).

[39] Another Certificate (Exhibit M-12) confirmed the suspension of Farm Air Ltd.'s AOC. There were no certificates of registration issued to Mr. Colhoun, Skynorth Aviation Ltd. (Dover), Skynorth Aviation (Canada), or to Lumsden Aero Ltd. during the relevant period.

[40] There was also a Certificate (Exhibit M-17) that stated the Minister did not validate the foreign flight authority of aircraft N4l90X, authorizing the operation of the aircraft in Canadian airspace in respect of the period extending from January l, 2009, to December 31, 2009, inclusive, pursuant to section 507.05 of the CARs.

[41] Superintendent Welwood continued to discuss the status of the other two corporations, Lumsden Aero Ltd. and its subsidiary, Skynorth Aviation (Canada). Superintendent Welwood stated Lumsden Aero Ltd. was once a certified 702 air operator and held an Approved Maintenance Organization (AMO) certificate. Lumsden Aero Ltd. ceased operations on November 20, 1992, after which they continued operating as Skynorth Aviation Ltd.

[42] Superintendent Welwood proceeded to discuss aircraft N4190X and its U.S. documentation. He began with the SAC (Exhibit M-19), indicating the aircraft's restricted classification for agriculture and pest control purposes. The reverse side showed the restrictions, including that the aircraft could not fly over any foreign country without the special permission of that country.

[43] Documents regarding the sale of aircraft N4190X were introduced as Exhibit M‑18. The aircraft was registered to two people who were residents of Oklahoma. This certificate was succeeded by a second application for a certificate by Skynorth Aviation Ltd. (Dover). A bill of sale was also introduced showing the two individuals from Oklahoma selling the aircraft to Skynorth Aviation Ltd. (Dover). These U.S. documents were FAA records issued by the U.S. Department of Transportation (Exhibit M-20).

[44] The letter regarding the request for validation of the U.S. SAC was explained and introduced as Exhibit M-22. The last extension to the SAC was in the form of an email from Transport Canada Headquarters in Ottawa (Exhibit M-25). The email contained many conditions and the caveat that the aircraft must leave Canada on the expiration of the validation period, which was determined to be September 15, 2004. No further extensions to the validations were issued.

[45] Superintendent Welwood stated that the aircraft had a valid flight authority in the U.S. but this authority did not apply in Canada because it was not validated.

[46] A discussion of a lease for the aircraft (Exhibit M-27) between Skynorth Aviation (Canada) and Colhoun Farm ensued. The lease covered the period between April 17, 2004, and April 17, 2005. Superintendent Welwood testified that the lease was invalid because Colhoun Farm was not a legal entity and irrelevant because it was not in effect in 2009. He also observed that the lease predated the importation of the aircraft into Canada by two to three weeks and that the Customs document (Exhibit M-26) indicates the aircraft was sold to Skynorth Aviation (Canada). Consequently, these documents are inconsistent.

[47] Superintendent Welwood introduced the NAV CANADA Aircraft Movement System (NCAMS) log into evidence (Exhibit M‑28). The log, which records aircraft movements by their radio transmission, indicated multiple flights by N4190X in 2007-2008.

[48] The next topic covered by Superintendent Welwood was the production orders (Exhibits M‑29 and M‑31) obtained by Transport Canada to gather evidence regarding Mr. Colhoun's farming operations and to obtain documentation on certain flights conducted by the Applicants. The order was used to confirm the existence of any crop insurance from Saskatchewan Crop Insurance Corporation.

[49] The Minister felt this would be a good indication of whether or not Mr. Colhoun was farming in the event the flying farmers issue was raised. The documents obtained by the production order (Exhibit M-29) showed that no crop insurance was obtained by Mr. Colhoun, although crop insurance is optional.

[50] The second production order (Exhibit M-31) was to Hanmer Holdings Ltd., Hanmer Seeds Ltd., located in Govan, Saskatchewan, to obtain evidence that Farm Air Ltd. had provided agricultural services. This production order (Exhibit M-31) enabled the Minister to obtain invoices from Farm Air Ltd. to Hanmer Joint Ventures (Exhibit M-35) showing the billings for the spray application to farmlands.

[51] Accounts payable information (Exhibit M-34) was also obtained for services provided by Farm Air Ltd.

[52] The date of an invoice, July 18, 2009 (Exhibit M-35), coincided with a specific complaint received from an individual who was sprayed by the aircraft. On July 3, 2009, another flight occurred by the aircraft in which spray was applied to the Craven Country Jamboree site. A complaint was later received (Exhibit M-37), along with photographs (Exhibit M-36), which identified the aircraft as being N4190X. Also, an invoice (Exhibit M-39) from Farm Air Ltd. was produced along with an accounts payable remittance of $1 575 to Farm Air Ltd. by Craven Country Jamboree Ltd.

[53] Superintendent Welwood stated that to complete this spray operation, the Applicant required either an AOC or an exemption as a flying farmer. He stated that the flying farmer exemption was inapplicable because the campground was not sprayed for agricultural purposes, and that Farm Air Ltd. did not hold an AOC.

[54] Another flight was documented on August 25, 2009, from public interest pictures taken of N4190X in flight, for a Regina newspaper (Exhibits M-40 and M-41). Superintendent Welwood went on to discuss and document more flights performed by the aircraft.

[55] Superintendent Welwood referred to Mr. Colhoun's experience with AOCs and his knowledge of the requirements of the SAC as aggravating circumstances in this instance.

[56] On cross-examination by the Applicants' Representative, Superintendent Welwood was asked if it was possible for the Thrush to hold both a restricted category and a normal category certification. He was not sure, but notes that even if it was in the normal category, it would still require a Canadian validation if it were to be used in Canada for aerial applications.

[57] The Applicants' Representative then suggested that the Bilateral Aviation Safety Agreement (BASA) between the U.S. and Canada negated the requirement for a Canadian validation. Superintendent Welwood was unable to answer any questions regarding this Agreement because he was not familiar with the document.

[58] The Applicants' Representative continued to question Superintendent Welwood regarding the existence of a secret informant alleging that an illegal welding incident occurred in Moose Jaw, Saskatchewan. He responded that there was no secret informant and that he had received no reports of any illegal aircraft welding occurring.

[59] The Applicants' Representative introduced a Transport Canada Inspection Snag Sheet dated September 25, 2008, for aircraft N4190X (Exhibit A‑4), outlining a variety of snags. He stated that because these snags had not been reported directly to him, they endangered the aircraft and the life of the pilot.

[60] Superintendent Welwood was unfamiliar with the documents because they originated in a different Transport Canada office, but believed it was sent to the owner of record, Skynorth Aviation Ltd. (Dover). He commented that he, as a pilot, would not have flown the aircraft with these obvious defects, but that if he had had personal knowledge of these snags, he would have informed the Applicants' Representative directly.

[61] Superintendent Welwood was then asked if he was aware of any 702 operators coming to Lumsden, Saskatchewan, to help Farm Air Ltd. He answered that during the investigation of the complaint in Kronau, Saskatchewan, it was discovered that Art Paetkau of Arty's Flying Service had contracted with the Applicants' Representative to do the aerial application. The Applicants' Representative suggested the possibility that the work billed by Farm Air Ltd. had been completed by contractors. Superintendent Welwood responded that if this were the case, the Applicants' Representative would have submitted documentation to show a contractor had completed the work.

[62] Superintendent Welwood explained that he took over the Farm Air Ltd. file from Civil Aviation Inspector Gaudry because about nine years earlier, the Applicants' Representative had accused Inspector Gaudry of falsifying evidence. The Royal Canadian Mounted Police ("RCMP") investigated the matter and found no wrongdoing on the part of Inspector Gaudry. While Mr. Colhoun raised this issue on other occasions over the years, each time the RCMP found no wrongdoing on the part of Inspector Gaudry. Superintendent Welwood felt that because of this history, it would be best if he assumed the files.

[63] The Applicants' Representative referred to an email from Inspector Gaudry to Canada Border Services Agency (Exhibit A-6), wherein Customs documents were requested concerning N4190X. Mr. Colhoun and Colhoun Farm were named as parties to Transport Canada's investigation.

[64] The reason the Applicants' Representative presented this document was to ask Superintendent Welwood why he and Colhoun Farm had not been proceeded against. He explained that Colhoun Farm did not own the aircraft and that there was no evidence to link Colhoun Farm to any of the invoices.

[65] A letter from Mr. Colhoun to Richard Gagnon, Enforcement Branch, Transport Canada, was introduced by the Applicants' Representative regarding a lease (Exhibit A-7), although the only lease (Exhibit M-27) produced between Skynorth Aviation (Canada) and Colhoun Farm was that which expired on April 17, 2005. A letter from Mr. Gagnon to Mr. Colhoun regarding leasing was also introduced (Exhibit A-9). These documents were allowed into evidence over the objections of the Minister's Representatives because I felt it was more expedient to allow these documents into evidence, and later determine the appropriate weight to give them.

[66] The Applicants' Representative raised the possibility of an estoppel argument and the lack of a time period on a SAC.

[67] A lengthy discussion relating to the definition of the centre of a farm ensued without resolution.

[68] Superintendent Welwood was later recalled to be questioned on documents that were produced by Transport Canada approximately one year after the events that precipitated the issuance of the Notices. These internal Transport Canada emails (Exhibits A‑14 and A‑15) discussed the removal of a detention order on N4190X, and reviewed the possibility of permitting Mr. Colhoun to remove his aircraft from Yorkton. These internal communications between Transport Canada officials explored the various options available to assist Mr. Colhoun in returning the aircraft to his farm.

[69] Superintendent Welwood also stated he was made aware of a phone call to the Applicants' Representative from Transport Canada advising him of the lifting of the detention order and the requirement of a flight authority.

[70] On redirect, Superintendent Welwood addressed the topic of BASA by reading from the email (Exhibit A-14). Mr. Colhoun's argument was that BASA exempted him from obtaining a validation. Transport Canada answered that BASA refers to design standards and not to flight authorities.

[71] Superintendent Welwood also expressed his opinion that the aircraft could be operated in a private capacity.

(4) Roy Antal

[72] Roy Antal identified himself as a retired photographer from a Regina newspaper, the Leader‑Post. He is currently a freelance photographer. He was with the newspaper when he took the picture of N4190X on August 25, 2009, during a spray operation (Exhibits M-40 and M-41).

[73] The Applicants' Representative conducted a brief cross-examination of Mr. Antal in which Mr. Antal confirmed that he did not obtain the registration of the aircraft at the time the photograph was taken.

(5) Ken Taylor

[74] Ken Taylor is the General Manager of Craven Country Jamboree.

[75] Mr. Taylor identified an invoice from Farm Air Ltd. for spraying the campgrounds with insecticide (Exhibit M-39). This service was provided in advance of the Jamboree.

[76] A short cross-examination was conducted by the Applicants' Representative. Mr. Taylor stated there had been some haying operations conducted on certain areas of the property in past years.

[77] On redirect examination, Mr. Taylor addressed the recommendations of the Saskatchewan's Ministry of Environment to use ground spraying in the future. He also confirmed aerial spraying was used in 2009.

(6) Sergeant Michael Cleary

[78] Sergeant Cleary was the RCMP detachment commander for Lumsden. He was the lead investigator in a complaint regarding a yellow aircraft spraying the area in and around the Jamboree site.

[79] With reference to a General Occurrence Report (Exhibit M-38), Sergeant Cleary reviewed the events of July 3, 2009. He spoke with the complainant, Peter Leavitt, who lived in close proximity to the Jamboree site. On July 3, 2009, Mr. Leavitt observed a yellow aircraft spraying over waterways and over and around local residences. Mr. Leavitt requested that Sergeant Cleary determine who was flying the aircraft and what was being sprayed. There was another complaint regarding the same incident reported by Bonnie Huculak (Exhibit M-37).

[80] Sergeant Cleary discussed his telephone conversation with Mr. Colhoun after obtaining information from the Jamboree organizers. Mr. Colhoun advised Sergeant Cleary that he had been spraying that morning and that the spray was environmentally safe for application over urban areas. He denied spraying over any waterways.

[81] A photograph taken by Mr. Leavitt (Exhibit M-42) was compared to another photograph (Exhibit M-36), and Sergeant Cleary stated they were identical. The complainant, Mr. Leavitt, was given information provided by Mr. Colhoun as to the type of pesticide used.

[82] Mr. Leavitt sought the opinion of a biologist at the University of Regina and was informed that the pesticide was not suitable for spraying urban areas.

[83] In cross-examination, the Applicants' Representative referred to the photographic evidence (Exhibit M-36) in an attempt to show the area he sprayed was in fact a rural area.

(7) Bonnie Huculak

[84] Bonnie Huculak stated her residence was located on a hillside above the Jamboree grounds. She described the grounds as containing areas for campers, grandstands, and concession areas, and noted that the grounds are bordered by water courses.

[85] Mrs. Huculak testified that on July 3, 2009, at approximately 5:30 a.m., she observed an aircraft spraying the Jamboree campgrounds before the campers were permitted through the gates. She was located on the second floor of her residence and the photographs were taken by her husband from that position (Exhibit M‑36).

[86] Mrs. Huculak identified the house in the top left hand photograph (Exhibit M-36) with the aircraft spraying in close proximity as belonging to her neighbour. She pointed out various features of the Jamboree campground. The Minister's Representative presented an enlargement of one of the photographs (Exhibit M-42) showing the registration of the aircraft and asked Mrs. Huculak to read it. She read out N4190X. She stated she informed the RCMP of this event.

[87] Under cross-examination, Mrs. Huculak confirmed her previous testimony and stated that the only haying operation she had observed on this land occurred ten years ago. She confirmed having a telephone conversation with Inspector Gaudry wherein the identity of the aircraft was discussed.

(8) Andrew Huculak

[88] Andrew Huculak provided similar testimony to that of his wife, Mrs. Huculak. He stated that each of the photographs he took of the incident contained a time and a date. He also read the registration numbers off one of the photographs as being N4190X.

[89] On cross examination, Mr. Huculak corrected his testimony to explain the time and date of the pictures (Exhibit M-36) were from his camera. He testified that he had observed haying operations on the campground but they always occurred very early in the year. He also stated that he had no knowledge of who owned or was flying the aircraft. Mr. Huculak indicated that he was not aware of any testing completed on the pesticide used.

(9) Michele Cruise-Pratchler

[90] Michele Cruise-Pratchler was employed as an accountant and resided on a farm approximately half‑way between the towns of Govan and Nokomis, Saskatchewan. She related two incidents where a spray aircraft passed within close proximity of her house and over a pasture in the latter part of June 2009.

[91] In the first incident, she was unable to obtain the registration, but on the second occasion she identified the registration number as being N4190X. On cross-examination, she testified that although she did not see the actual spraying, she could smell the odour given off by the spray. These incidents were reported to Transport Canada.

(10) Dennis Pratchler

[92] Dennis Pratchler is the husband of Mrs. Cruise-Pratchler. Mr. Pratchler recollected the date of the second event where he and his wife witnessed N4190X performing a spray operation as being on July 17, 2009. He identified the field being sprayed as belonging to Hanmer Joint Venture. On cross-examination, Mr. Pratchler confirmed that he could see the aircraft spraying from the pasture he was in at that time.

(11) Jonathan Plomp

[93] Jonathan Plomp was an aircraft maintenance engineer (AME) employed by Provincial Airways in Moose Jaw, Saskatchewan. He was acquainted with Mr. Colhoun, and had worked on several of his aircraft, including N4190X. The last time he had worked on the aircraft N4190X was March 2010. When the maintenance work was completed on March 29, 2010, Mr. Colhoun arrived in his truck, refueled the aircraft, and flew it out.

[94] On cross-examination, Mr. Plomp stated a bill for work completed by Provincial Airways, Exhibit M-43, was made out to Mr. Colhoun and not to any of the Applicants.

(12) Joseph David Gaudry

[95] Inspector Gaudry is attached to the Civil Aviation Enforcement branch in Winnipeg. He was the lead inspector on the Farm Air Ltd. file until the spring of 2010. He did the majority of the research and completed the steps necessary in an investigation. Inspector Gaudry confirmed that he completed notes during this time and they were stored in Transport Canada's enforcement management system. These notes were contained in the Farm Air Ltd. case report and were disclosed to the Applicants.

[96] Inspector Gaudry was also the subject of a criminal investigation by the RCMP instigated by the Applicants' Representative, but was later exonerated of all charges.

[97] Inspector Gaudry traced the history of complaints starting in 2008, which started the investigative chain.

[98] Inspector Gaudry spoke of contacts with other regulatory bodies, the FAA, the Pest Management Regulatory Agency (PMRA) and the Saskatchewan Ministry of Environment.

[99] Inspector Gaudry identified Exhibit M-19 as the SAC for N4190X. He noted the following details regarding the SAC: the serial number on the document was 1955R, Model No. S2R, and it stated N4190X was in the restricted category. On the flipside of the certificate, it clearly states:

No person may operate the aircraft described on the reverse side: (1) except in accordance with the applicable FAR and in accordance with conditions and limitations which may be prescribed by the Administrator as part of this certificate; (2) over any foreign country without the special permission of that country.

[100] Inspector Gaudry contacted the FAA to obtain the records for N4190X. He received a Blue Ribbon Package from the FAA, which was a disc containing certified documents regarding the aircraft. The inventory of documents consisted of the SAC, a bill of sale, registration of the previous owners, and other pertinent documents.

[101] Inspector Gaudry was asked about the effect, if any, of the North American Free Trade Agreement ("NAFTA") on the issue at hand. In leading up to discussing the effect of this Treaty, he explained the system of certification of crop spraying aircraft. He explained the two types of certification for spray aircraft: a commercial air agency certificate and a private agency certificate. The commercial certificate allows the operator of the aircraft to charge for spray services, while private certification permits the owner to spray his own land.

[102] The FAA contact advised Inspector Gaudry that Skynorth Aviation Ltd. (Dover) did not hold either of these certificates. Based on this information, and the requirement under section 700.03 of the CARs, without a commercial certification, Skynorth Aviation Ltd. (Dover) could not operate under the provisions of NAFTA.

[103] Inspector Gaudry detailed the FAA's methods of designating and recording type certifications. This information was obtained during a telephone conversation between himself and an FAA official.

[104] A note of clarification: Part 23 of the Federal Aviation Regulations ("FARs") deals with airworthiness standards for aircraft in the normal, utility, aerobatic, and commuter categories. Prior to these Regulations coming into effect on February l, 1965, airworthiness standards were promulgated in parts 3 and 8 of the US Civil Air Regulations. Many aircraft that were produced prior to the implementation date of the FARs are still being produced today and are type certified to the US Civil Air Regulations.

[105] Inspector Gaudry testified the certification basis for aircraft N4190X is outlined in Part 8 of the US Civil Air Regulations. The type certification number is A4SW for restricted aircraft. Moreover, a restricted aircraft model bears the designation S2R. In contrast, a normal category aircraft has a certification basis in Part 3 of the US Civil Air Regulations, a type certificate of A3SW, and has the model number of S-2R, indicating an unrestricted or normal category.

[106] Inspector Gaudry went on to explain that under Article 31 of the Convention on International Civil Aviation ("Chicago Convention"), a normal category aircraft would be granted a full certificate of airworthiness, allowing the normal category aircraft to operate in any of the co-signing countries without special permission. The S2R falls under the restricted category and must obtain a special flight authority from the country of origin and permission from the host country to operate.

[107] Inspector Gaudry conceded that it was possible, but highly impractical and expensive to switch from a restricted category to a normal category certification.

[108] Inspector Gaudry related a conversation he engaged in with Robert Meyer regarding a visit to Colhoun Farm on May 29, 2008. Mr. Meyer indicated that Mr. Colhoun no longer farmed. In another conversation with Rick Herd, Inspector Gaudry was advised by Mr. Herd that Mr. Colhoun had advised him he had carried on spray operations. In addition, Inspector Gaudry received an anonymous phone call advising him that the aircraft was in Regina, Saskatchewan, and that Mr. Colhoun was conducting spray operations for the Arm River Hutterites, who are located just north of Lumsden, Saskatchewan.

[109] In pursuing the latter report, Inspector Gaudry received copies of Farm Air Ltd. bills from a Paul Hofer of the Arm River Hutterites, and information that the aircraft was seen flying and that Mr. Colhoun was seen at the controls of the aircraft when the aircraft was being loaded with chemicals at Colhoun Farm. He related another encounter with a Mr. Paetkau, in which he was informed that Mr. Colhoun no longer farmed. These conversations indicated that Mr. Colhoun would not qualify under paragraph 700.02(3)(a) of the CARs for the flying farmers exemption.

[110] Inspector Gaudry then related the procedure he followed to secure a production order for crop insurance information on Colhoun Farm from the Saskatchewan Crop Insurance Corporation. His interpretation was that because there was no crop insurance, no farming was taking place.

[111] He recounted another production order he prepared for Hanmer Holdings Ltd., Hanmer Seeds Ltd. (Exhibit M‑31) to obtain billing documents regarding the spraying of Hanmer properties. He noted that the Hanmer properties were outside the 25 mile radius of Colhoun Farm, and identified Exhibits M-34 and M-35 as the documents received from Hanmer Seeds. These exhibits contained a complaint letter against the production order, invoices from Farm Air Ltd., copies of accounts payable, the cheques that were issued, and a copy of a detailed supplier purchase report showing the payments made to Farm Air Ltd. in 2009. There were several flights recorded in the billings, cheques and records, some of which coincided with the complaints made to Transport Canada.

[112] Inspector Gaudry identified two errors he made. The first error was in the first production order (Exhibit M-31), where the information they correctly swore was under section 487.012 of the Criminal Code; and not under section 487.013 of the Criminal Code, as indicated in the production order.

[113] The second mistake was wrongly identifying the witness he had quoted to obtain the production order from. The actual witness he spoke with was Rem Walker, not Robert Meyer. Further, he also admitted a misspelling of the name Latrace as LaGrace. Mr. Latrace was mentioned in the production order as having leased part of the Colhoun farm.

[114] The Applicants' Representative reacted strongly to this testimony claiming that his defence was prejudiced and requested a mistrial, which was refused, as this testimony was not pertinent to the charges against the Applicants. Mr. Colhoun was aware of the error in the spelling of Mr. Latrace's name and the production orders were disclosed to him. Mr. Colhoun suffered no prejudice inasmuch as I did not consider this information in formulating my decision in view of the fact that it was not relevant and these errors actually reflected unfavorably on Inspector Gaudry's testimony. Inspector Gaudry gave evidence concerning the corporate chain constructed by Mr. Colhoun, and identified corporate registration documents in Canada and in the U.S. that were discussed as part of Superintendent Welwood's evidence.

[115] Inspector Gaudry outlined the history of the flight validations of the U.S. SAC. Mr. Colhoun had applied for a validation in April of 2004. The validation was granted and he was allowed to bring the aircraft into Canada to his Lumsden, Saskatchewan, location until May 23, 2004, at which point the validation ended. Mr. Colhoun requested an extension of the aircraft's validation until November 30, 2004, for private use, demonstrations, and evaluation. This request was denied by the Transport Canada Saskatoon regional office. Mr. Colhoun appealed and received an extension until July 21, 2004. There were no further validations or extensions recorded.

[116] Inspector Gaudry addressed the issue of a lease (Exhibit M‑27) for the aircraft between Skynorth Aviation (Canada) and Colhoun Farm. The term of the lease was from April 17, 2004, to April 17, 2005. It was judged invalid by Transport Canada because Colhoun Farm was not a legal entity.

[117] Inspector Gaudry moved on to the Customs documents (Exhibit M‑26) that were completed when the aircraft entered Canada. The documentation showed Skynorth Aviation Ltd. as the vendor, Skynorth Aviation (Canada) as the consignee, and the purpose of bringing the aircraft was a sale valued at $87 000 USD. It indicated that care and control was being transferred to Skynorth Aviation (Canada), which was, in essence, Lumsden Aero Ltd.

[118] He further stated that the aircraft was never registered in Canada or deregistered in the U.S., nor that the sale was ever reported to the FAA. He also testified that Farm Air Ltd. did not possess an AOC for the relevant periods.

[119] Inspector Gaudry then provided evidence as to why the Jamboree charge would not fall under the flying farmer exemption. He explained that the spraying completed on the Jamboree campgrounds was for insect control because of the upcoming Jamboree, and not for agricultural purposes as required for the exemption.

[120] Inspector Gaudry reviewed the pictorial evidence from the Regina Newspaper (Exhibits M‑40 and M‑41) showing N4190X in flight and a report (Exhibit M‑43) of the aircraft being in Moose Jaw, Saskatchewan for maintenance.

[121] The final area to be explored with Inspector Gaudry was BASA. It was his opinion that BASA concerned the recognition of another country's documentation, such as those relating to maintenance procedures. Under this Agreement, Canada still reserves the right to increase the standards of another country to match Canadian standards.

[122] Inspector Gaudry noted that BASA is an agreement between countries and is not open to an individual to claim. This means that a US-registered aircraft that enters Canada and operates commercially will fall under the airworthiness standards of both countries. Inspector Gaudry also stated that aircraft N4190X was never registered in Canada.

[123] On cross-examination, Inspector Gaudry responded to the question of the necessity of carrying crop insurance. He responded that he did not think it was necessary.

[124] There were numerous questions regarding conversations with various individuals, including Messrs. Wayne Silzer, Herd, Paetkau, Hofer, and others. The purpose of this line of questioning was never made clear by the Applicants' Representative and no documentation was submitted by the Applicants' Representative to discredit his testimony.

[125] On cross-examination, Inspector Gaudry confirmed again that he made an error in citing section 487.013 of the Criminal Code instead of section 487.012 in his request for a production order.

[126] Inspector Gaudry was asked if the federal or Alberta corporation records were searched for Colhoun Farm, and he responded in the negative. Again, no documents were entered to show that Colhoun Farm was registered in another jurisdiction.

[127] The subject of a secret informant and unauthorized welding being conducted in Moose Jaw, Saskatchewan, was raised on cross-examination. Inspector Gaudry responded that there was no secret informant. As to the welding, he responded that he was aware of the requirement for some welding on the aircraft, but was not aware of any illegal welding occurring.

[128] He stated that the aircraft had been under surveillance for many years, but there was not sufficient evidence to proceed with charges, or that the charges were precluded by statutory limitations.

[129] BASA was raised by the Applicants' Representative; the Implementation Procedures were entered into evidence.

[130] Inspector Gaudry was asked the following questions regarding section 2.1.6 of BASA, to which he gave an affirmative answer: (1) Did Transport Canada and the FAA agree to accept certain aircraft type certified under the restricted category? (2) Does section 2.1.6 mention federal regulations and others? (3) Does Table 1, section 2.8 of the Implementation Procedures deal with special airworthiness certification? Answer: "Restricted category aircraft for agricultural purposes, yes."

[131] The Applicants' Representative observed that it seemed as though BASA exempts aircraft certified in the restricted category and that they are accepted by both Canada and the U.S. Inspector Gaudry disagreed with this statement saying, "The FAA and TCC [Transport Canada Civil Aviation] have agreed that certain type certified in the restricted category are not eligible for standard airworthiness certificates."

[132] Inspector Gaudry also referred to section 2.1.6 of the Implementation Procedures: "other aircraft for which a special airworthiness certificate is to be issued will be dealt with on a case‑by‑case basis through special arrangements provision in section IX of this document." (Exhibit A‑17).

[133] In Table 1, section 2.8 of the Implementation Procedures, it was the Applicants' Representative's position that all aircraft with a type certificate in the restricted category were admitted into Canada without any further documentation by the Canadian government. Inspector Gaudry pointed out that this summary table was only applicable to new products. In the forward to this table, it says: "The following tables summarize the new products designed and manufactured in the U.S. or Canada that are eligible for import under these Implementation Procedures."

[134] Next, the Applicants' Representative presented an email (Exhibit A‑18) from Anna Maria Colom, the Foreign Affairs Specialist, Aircraft Certification Service, International Policy Office of the FAA. The email stated that a validation of the FAA SAC is not required if certain sections of U.S. Regulations were followed to place the aircraft in compliance with the standard category. Under the standard category, the aircraft could enter Canada under BASA and no special permission would be required.

[135] Inspector Gaudry agreed with this information, but no follow-up evidence was presented by the Applicants' Representative to show that he had complied with these U.S. Regulations to exempt N4190X under BASA.

[136] The Applicants' Representative questioned Inspector Gaudry on the confusing area of the FAA model designations of S2R versus S-2R and the listing of these models on the Type Certificate Data Sheet ("TCDS") Nos. A4SW and A3SW.

[137] Inspector Gaudry stated that an aircraft with the model designation S-2R would have a standard certificate of airworthiness because it falls under the normal category that does not require validation. The S-2R would be listed under the A3SW TCDS.

[138] Because of the confusion caused by the different model designations on different documents connected with N4190X, Inspector Gaudry contacted the FAA for clarification. The FAA informed him that the S-2R designation on other documents was a mistake, and that it showed S2R on the type certificate and that S2R is the correct designation.

[139] Then the Applicants' Representative produced a letter (Exhibit A‑21) from Lewis Blomeley, Engineering Manager at Thrush Aircraft Inc., confirming that any S2R produced within a range of serial numbers that included N4190X was produced as a normal category aircraft and would be included on the FAA TCDS A3SW. The letter was introduced for information purposes only with the expectation that the Applicants' Representative would testify later and give it evidentiary status. A series of emails between Mr. Colhoun and Mr. Blomeley (Exhibit A-23) discussing the type certification was introduced. Mr. Blomeley, in the email chain dated October 31, 2011, at 5:45 a.m. advised, "S-2R is a typo. There has never been an S-2R. It is a S2R."

[140] A lengthy discussion ensued on the various FAA and Transport Canada documents where N4190X was identified as a model S-2R, which would place it in the TCDS A3SW (normal category only). Inspector Gaudry again explained that it was an error and that the aircraft was an S2R, putting it into the restricted category.

[141] On redirect examination, Inspector Gaudry confirmed that crop insurance was not mandatory and the documents he received in reference to Mr. Colhoun and his wife covered the years 2007, 2008, and 2009.

[142] The Minister's Representative directed Inspector Gaudry to the sales documents for N4190X (Exhibit M‑18). Inspector Gaudry confirmed that these documents, depending on who was selling the aircraft, sometimes described the aircraft as an S2R and other times as an S-2R. He reconfirmed the SAC indicated N4190X was a model S2R.

[143] The attention of Inspector Gaudry was then directed towards the FAA TCDS No. A3SW. He was asked if any of the model numbers located on the top right-hand side of the first page referenced N4190X. Inspector Gaudry replied "no."

B. Applicant

(1) Paul Hofer and Remington Walker

[144] Paul Hofer and Remington Walker were brought forward to testify that Inspector Gaudry did not accurately quote them in the Information to Obtain a Production Order (Exhibit M‑32). This was an attempt by the Applicants' Representative to discredit Inspector Gaudry's testimony.

[145] The issue of the production orders was examined on a pre-hearing motion by the Applicants and was dismissed for a lack of relevance, as these production orders and the information contained therein were not considered in reaching my Determination.

IV. ARGUMENTS

A. Minister

(1) Identifying the Applicants

[146] The Minister's Representative submits that the Applicants' corporations and their officers and directors are subject to penalties under the Aeronautics Act, where it is proven that a violation of the CARs occurred. Evidence submitted by Superintendent Welwood and Inspector Gaudry shows that these corporations were duly incorporated.

[147] The Minister's Representative presents for consideration the fact that N4190X is owned by Skynorth Aviation Ltd. (Dover), who should therefore be charged vicariously for the acts of Lumsden Aero Ltd. The Minister's Representative maintains that Lumsden Aero Ltd. was the operator of the aircraft. Supporting this conclusion is a customs document (Exhibit M-18) completed by Mr. Colhoun that indicated a sale to Skynorth Aviation (Canada), a business name used by Lumsden Aero Ltd. The aircraft was never registered in Canada and remained under the care and control of Lumsden Aero Ltd.

[148] The Minister's Representative then addressed the issue of a one-year lease that expired in 2005 between Skynorth Aviation (Canada) and Colhoun Farm (Exhibit M-27). The Minister's Representative noted that the lease was signed on the date of expiration and that it had never been registered with Transport Canada. The Minister's Representative argued that Colhoun Farm is not a legal entity and therefore cannot enter a lease, and that the lease is inconsistent with the Customs documents filed by Mr. Colhoun.

(2) Flights taken by the Applicants

[149] The Minister's Representative then discussed the flights taken by N4190X. The first was on July 3, 2009, where two witnesses observed an aircraft flying over and spraying the Jamboree campgrounds. One of the witnesses took photographs of N4190X in which the registration is clearly visible. A complaint was made to the RCMP, and during their investigation, Mr. Colhoun admitted to flying the aircraft. The RCMP officer who investigated this incident was a witness at this Review Hearing.

[150] Two other witnesses gave evidence that they observed N4190X spraying property belonging to Hanmer Seeds in the vicinity of Govan, Saskatchewan. Hanmer Seeds' accounting records show invoices from Farm Air Ltd. and dates that the aerial spraying was completed. Two other dates were also indicated on Farm Air Ltd. invoices and payments.

[151] On August 24, 2009, N4190X was observed and photographed by a newspaper photographer.

[152] Superintendent Welwood indicated in his testimony that it was possible for other individuals or corporations to subcontract the work, but that no such evidence was put forward showing that this had occurred. Farm Air Ltd. had only one aircraft that functioned as a spray aircraft and as such, one can conclude that aircraft N4190X conducted the flights set out in the invoices.

[153] Evidence adduced by the Minister's Representative demonstrating that the N4190X was routinely being flown prior to and during the relevant period, included NCAMS reports (Exhibit M‑28) showing the aircraft communicated with NAV CANADA facilities on several occasions. The fact that a witness had seen the same aircraft spraying a nearby field in June of 2009 was also adduced. Other evidence from a maintenance facility confirmed that the aircraft had flown into Moose Jaw, Saskatchewan, to receive work. There were other witnesses who also placed the aircraft, N4190X, in Yorkton, Saskatchewan.

(3) No Flight Authority

[154] The Minister's Representative reviewed the evidence related to the flight authority. The evidence was that the flight authority for N4190X was a SAC that by its nature was a restricted airworthiness certificate, which indicated that special permission was required from a foreign country prior to flying in its airspace. This permission was in the form of a validation from Transport Canada, which was granted to allow the aircraft to be taken to Lumsden, Saskatchewan. There was a short extension of this validation until July 21, 2004.

(4) International Agreements

[155] The next topic raised was the effect of BASA. It was the Minister's Representative's position that the host nation can place its own standards on certain type certifications. The SAC states the aircraft is an S2R model, which falls within the type certificate A4SW. This information was verified in a conversation between the FAA and Inspector Gaudry.

[156] Inspector Gaudry agreed that an aircraft can convert to an A3SW, the normal type certification, by performing certain expensive modifications. However, there was no evidence adduced by the Applicants to show the aircraft had undergone this process. Therefore, BASA does not supply the Applicants with authority to operate the aircraft in Canada.

[157] If the aircraft had been an S-2R model and had held an A3SW TCDS, it would be considered a normal category aircraft and would hold a general airworthiness certificate and the above articles of BASA would apply.

[158] However, since the aircraft is an S2R type model, which holds an A4SW TCDS, it is a restricted category aircraft.

[159] Furthermore, since N4190X holds a SAC, it falls outside the Chicago Convention.

[160] The Minister's Representative also addressed NAFTA. Under NAFTA, a spray aircraft can hold one of two certificates—a commercial or a private certificate—in order to allow the aircraft to be imported into Canada. A commercial certificate allows the owner to charge for aerial spray services; a private certificate allows the owner to spray his own land.

[161] FAA records show an absence of both these certificates. Therefore, N4190X would be ineligible under NAFTA.

(5) Aerial Spraying

[162] The Minister's Representative states that Farm Air Ltd. is a corporation and that it conducted work disbursing products on four occasions without a valid AOC. Mr. Colhoun is a shareholder, director, and officer of the corporation. The corporation held an AOC at one time but it was suspended from May 20, 2008 until August 31, 2009. These dates include the relevant periods for the flights in question.

[163] The Minister's Representative turned to the evidence against the Applicant, Farm Air Ltd. There were two eyewitnesses, complete with pictures of N4190X airborne and spraying the Jamboree campgrounds. Furthermore, Mr. Colhoun admitted to the RCMP that he was flying the aircraft at the time.

[164] Mr. Taylor, the General Manager of Craven Country Jamboree, presented an invoice (Exhibit M‑39) from Farm Air Ltd. The purpose of the spray was for insect and mosquito control and not for agricultural purposes. Craven Country Jamboree was within 25 miles of the Colhoun farm, but the nature of the spray and its purpose did not allow for this to come within the flying farmer exemption.

[165] Other witnesses testified that they had observed the aircraft spraying a neighbour's field. Invoices from Hanmer Seeds (Exhibit M-35) supported the evidence that the aircraft was flying and spraying on July 18, 2009. The dates of July 7 and 12, 2009, were also determined from other invoices and payments between Farm Air Ltd. and Hanmer Seeds.

[166] The Minister's Representative recounted the extensive list of events and witnesses attesting to the flights of N4190X.

[167] The sanctions against the Applicants were reviewed and explained by the Minister's Representative.

B. Applicant

[168] Mr. Colhoun repeated accusations of nondisclosure and attacked the integrity of Transport Canada's inspectors.

(1) Disclosure and Production Orders

[169] The Applicants' Representative raised the Canadian Charter of Rights and Freedoms ("Charter") in an attempt to demand disclosure of RCMP documents. He again raised the production order (Exhibit M-31) obtained by Inspector Gaudry.

[170] The Applicants' Representative referred to the production orders (Exhibits M‑29 and M‑31) and linked them to the Charter, alleging that Inspector Gaudry lied in his testimony. The Applicants' Representative raised the Customs border crossing document (Exhibit M‑26) that he completed and argued that Transport Canada could not use this document as evidence because they would not accept it as proof of sale.

(2) Wrong Parties were Charged

[171] The Applicants' Representative asserted the wrong parties were charged, and argued that a valid lease existed.

[172] The Applicants' Representative suggested the possibility that other companies had contracted with his corporations, or directly with him or Colhoun Farm, to do the spraying that he was charged with.

(3) Flight Authority

[173] He stated there was a valid flight authority at all times for the aircraft.

[174] The Applicants' Representative cites section 507.05 of the CARs, holding that the Minister must validate a foreign flight authority if he determines the aircraft is safe for flight.

[175] The Applicants' Representative interpreted Inspector Gaudry's evidence on BASA as being untruthful because he stated that BASA made no reference to restricted aircraft.

[176] The Applicants' Representative disputed the Minister's dating of the work order of Provincial Airways of Moose Jaw (Exhibit M-43). The date stated was November 28, 2009. This was a Saturday and the Applicants' Representative alleges the facility is not open Saturdays.

[177] The Applicants' Representative states that two highly qualified persons from the FAA have said that a validation is not required under BASA and that the Chicago Convention occurred before BASA.

(4) Air Operator Certificate (AOC)

[178] The Applicants' Representative argued that Farm Air Ltd. did not require an AOC because Farm Air Ltd. had a history of subcontracting work and Superintendent Welwood's testimony indicated that this was a possibility and would have been legitimate.

(5) Agricultural Purposes

[179] The Applicants' Representative further stated that the spraying of the Jamboree campgrounds was for agricultural purposes because haying had occurred on the campgrounds at one time.

(6) Affidavit

[180] The Applicants' Representative alleges that the admission of evidence in affidavit form was prevented. Rather, the Affidavits are already part of the record because they formed evidence in the Motions of the Applicants' Representative, and I said on the record they would be admitted into evidence.

C. Minister's Reply

(1) Disclosure and Access to Information

[181] The Minister's Representative states that all relevant documents were disclosed and their records indicated that an email declared by the Applicants' Representative as missing was actually disclosed.

[182] The Minister's Representative suggested that a Tribunal Member has no jurisdiction in matters relating to the access to information process.

[183] It was further submitted that there was no cruel or unusual punishment by Inspector Gaudry. The Minister's Representative submits that full disclosure was made and the conduct of its employees was proper.

[184] The evidence obtained by the production order (Exhibit M-29) was not relevant, and Mr. Walker testified to this at the Hearing. Therefore, any prejudice that may have existed to the Applicants was remedied.

[185] The Minister's Representative refutes the remainder of the Applicants' Representative's arguments by pointing out there is no evidence to support his submissions.

V. POST‑HEARING APPLICATION BY THE APPLICANTS

[186] The Applicants' Representative has submitted a separate post‑hearing application to admit new evidence he alleges was previously withheld by the Minister, and this document proves the wrong parties were charged. The Applicants' Representative made similar representations prior to and during the Hearing without success.

[187] The Applicants' Representative used the Access to Information Act to harvest as many Transport Canada documents as possible in the hopes of defending against these charges. The Minister has provided over seven kilograms of documents to the Applicants, almost all of which were irrelevant and not entered as evidence by the Applicants' Representative. The Applicants' Representative never requested any specific documents; rather, his requests were very broad in scope.

[188] Evidence is only admissible if it is relevant; evidence is relevant where it tends to indicate that one of the facts in issue is more or less likely.

[189] In a Transport Canada email dated June 8, 2004, cited by the Applicants' Representative, there is only reference to and discussion of an email from the Applicants' Representative wherein only he (the Applicants' Representative) refers to himself and Colhoun Farm. It would take a huge conceptual leap to assume the Minister was even considering proceeding against any party at that time.

[190] Further, a comprehensive email was dispatched to and received by Mr. Colhoun on June 6, 2004, and the issues raised by Mr. Colhoun were reviewed with him. The follow-up email of June 8, 2004, was an inter-office communication with the intent of assisting Mr. Colhoun. This email of June 8, 2004, made reference to NAFTA and BASA. I fail to see any prejudice towards Mr. Colhoun and the Applicants, or any relevance to the issue of parties in this email.

[191] The arguments put forward in this post‑hearing application may have had validity if Mr. Colhoun and Colhoun Farm were named by the Minister in the Notices. However, as it stands, the Application for the Admittance of New Evidence Previously Withheld by the Crown and the Minister is denied.

VI. ANALYSIS

[192] It was challenging labouring through the Applicants' Representative's tailored, circular reasoning, searching for evidence to back up his allegations and arguments.

[193] Mr. Colhoun is a very intelligent and shrewd businessman with vast aviation experience in dealing with aviation bureaucracy. His corporations have held AOCs and in the transcripts he declared, "I have registered a couple hundred aircraft in my life." This raises the question of how it is that he was not aware that he was operating N4190X illegally. The evidence before me leaves little doubt that N4190X performed many flights over the years under the custody and control of the Applicants.

A. Estoppel

[194] The Applicants' Representative requested that I use estoppel to disallow the Minister's evidence. I believe he was referring to estoppel by laches in an attempt to preclude the Minister from enforcing the charges against him after having waited so long to do so.

[195] Estoppel is an equitable remedy used by common law courts. Its administrative law counterpart is the concept of legitimate expectations. However, the Applicants' Representative has failed to demonstrate that he legitimately expected that the Applicants' behavior was being condoned by the Minister because they had not yet charged the Applicants for a breach of the CARs.

[196] Furthermore, a person attempting to seek a remedy in equity ought to do so with clean hands. I am not convinced that Mr. Colhoun and the Applicants fulfill this requirement.

B. U.S. Registration

[197] If one examines the US Certificate of Registration contained on the disc in the blue ribbon package (Exhibit M-20), the certificate is endorsed:

ISSUED TEMP CERTIFICATE OF REGISTRATION TO

EXPIRE 9-11-2004

and

FLYING TIME EXTENDED 120 DAYS FROM

JUNE 14, 2004

[198] The Certificate of Registration (Exhibit M-20) is signed by Mr. Colhoun and appears to be filled out by him. He has designated the model as S-2R, an obvious mistake because the SAC issued in 1974 has the aircraft designated as a model S2R.

[199] If one searches the reverse side of the SAC (Exhibit M-19) and notes Block E, it states: "Unless sooner surrendered, suspended, or revoked, this airworthiness certificate is effective for the duration and under the conditions prescribed in FAR Part 21, Section 21.181 or 21.217." Section 21.217 refers to a Provisional Type Certificate but Section 21.181(a) reads:

FAR 21.181 – Duration

(a) Unless sooner surrendered, suspended, revoked or a termination is otherwise determined by the [FAA], airworthiness certificates are effective as follows:

(1) Standard airworthiness certificates, special airworthiness certificates-primary category and airworthiness certificates issued for restricted or limited category aircraft are effective as long as the maintenance, preventive maintenance, and alterations are performed in accordance with Parts 43 and 91 of this chapter and the aircraft are registered in the United States. (Emphasis added)

[200] The Applicants' Representative presented no evidence that they had complied with the maintenance requirements of the SAC. More importantly, the Certificate of Registration (Exhibit M‑20) had expired on September 11, 2004, or thereabouts, automatically cancelling the SAC and thereby the flight authority for N4190X. It seems that the aircraft was no longer registered in the U.S. after the expiration date of its Certificate of Registration (Exhibit M‑20).

[201] The Triennial Aircraft Registration Report (Exhibit A-22) contains this important notice on the reverse side: "The Triennial Aircraft Registration Report is used by the Federal Aviation Administration to update the Aircraft Registry files when no registration activity has occurred in the past 36 months." The Report was issued in August of 2007. Accordingly, the evidence before the Tribunal seems to show that the aircraft has been operating illegally in Canada for a number of years.

C. CARs Contraventions

[202] In the event that my statutory interpretation is wrong, I will consider the merits of the case before me to determine whether the Minister's Representative has proven his case on a balance of probabilities.

(1) Lumsden Aero Ltd.

(a) Operator of the Aircraft

[203] The Minister's Representative has demonstrated that Lumsden Aero Ltd. was the operator of the aircraft while in Canada, based in part on the Canada Customs and Revenue Agency document dated May 6, 2004 (Exhibit M-26). The Minister's Representative has also shown that Lumsden Aero Ltd. had custody and control of the aircraft, based on the above documents and Superintendent Welwood's and Inspector Gaudry's testimonies.

(b) Flights

[204] The Applicant has been charged with breaching subsection 605.03(1) of the CARs on seven separate occasions. The following summarizes the evidence tendered and considered in determining that these breaches occurred.

(i) July 3, 2009

[205] The evidence produced by the Minister's Representative to prove this contravention is quite convincing, with the Minister's Representative producing witnesses who took photos of the Applicant's aircraft and an admission by Mr. Colhoun that the spraying occurred on this date.

(ii) On or about July 7, 12, 17, 2009

[206] The Minister's Representative provided a variety of evidence to show that the Applicant breached the CARs on or around these dates. Indeed, the Minister's Representative brought witness testimony to this effect and produced invoices from Farm Air Ltd. to Hanmer Seeds (Exhibit M-35) regarding work done on or about July 8, July 13 and July 18, 2009, and corresponding accounts payable statements from Hanmer Seeds.

(iii) August 24, 2009

[207] To demonstrate the CARs breach on this date, the Minister's Representative adduced a photograph that was in the Regina Leader‑Post newspaper on August 25, 2009 (Exhibit M-41) taken by Mr. Antal. The registration number for the aircraft is visible using a magnifying glass.

(iv) November 28, 2009

[208] This breach of the CARs was demonstrated by a witness who stated that the aircraft in question arrived in Moose Jaw, Saskatchewan, on November 28, 2009, and who identified the aircraft as the one he worked on in Moose Jaw, Saskatchewan, around this same time.

(v) March 29, 2010

[209] This breach of the CARs was demonstrated by a variety of witnesses, one of whom saw the aircraft arrive and land at the Yorkton Airport. He was able to identify Mr. Colhoun as the pilot of the aircraft, as he had spoken with him upon landing. From there, other witness testimony demonstrates that Mr. Colhoun entered his shop and asked for work to be done on his aircraft. Another witness provided testimony that he drove Mr. Colhoun's vehicle from Moose Jaw, Saskatchewan, back to Regina, Saskatchewan, after Mr. Colhoun indicated that he was leaving with the aircraft.

(c) Flight Authority

[210] I have already found that the aircraft did not hold a valid foreign flight authority. However, even if this foreign flight authority were valid, it would need to be appropriately validated prior to flying in another country. Even if I were to find that the aircraft held a SAC, flying over a foreign country is not allowable without special permission of the country, which did not exist in this case. Because the aircraft did not have the appropriate validation at the relevant time, it was clearly not operated in accordance with its flight authority.

[211] The Minister's Representative has shown that one of the Applicant companies, Skynorth Aviation Ltd. (Dover), applied for a validation of the foreign flight authority on April 23, 2004, which expired in May 2004. This was extended to July 21, 2004, but no further extension of the flight authority was sought or granted.

(2) Skynorth Aviation Ltd. (Dover)

[212] The Minister also charged Skynorth Aviation Ltd. (Dover) with the above-noted charges through the principle of vicarious liability. However, I do not believe that the Minister's Representative has shown this Applicant should be held vicariously liable for the actions of Lumsden Aero Ltd. who is being held accountable.

[213] I have some difficulty with the application of vicarious liability to Skynorth Aviation Ltd. (Dover) under subsection 8.4(2) of the Aeronautics Act. This liability is a strict, secondary liability that falls on the employer for the acts of an employee. There is no question that a corporation can be held vicariously liable for the acts of its employees, but a trilogy of cases from the Supreme Court cast doubt on whether a corporation under certain circumstances can be held vicariously liable for the acts of another corporation. They refer to this liability between corporations as a "crossover liability".

[214] It would appear that courts will attribute cross-over liability between two separate corporate entities if one of them can be seen as an employer of the second entity, but conversely the courts will not attribute liability where one entity has no involvement whatsoever in the operation or control of the separately incorporated entity.

[215] In the case at hand, the Minister's Representative did not establish a close relationship between Skynorth Aviation Ltd. (Dover) and Lumden Aero Ltd. to indicate any control over the other Applicant. Accordingly, I do not believe that Skynorth Aviation Ltd. (Dover) should be held vicariously liable for the CARs breaches pursuant to subsection 8.4(2) of the Aeronautics Act.

(3) Farm Air Ltd.

[216] Farm Air Ltd. was charged with four violations of subsection 700.02(2) of the CARs for conducting aerial work that involved the dispersal of products while failing to hold a valid AOC.

[217] The Minister's Representative demonstrated that Farm Air Ltd. did not possess a valid AOC by adducing into evidence a letter from Transport Canada to Farm Air Ltd. dated May 20, 2008, suspending the AOC (Exhibit M-9). Furthermore, the Minister's Representative adduced documentation showing that the certificate was suspended from May 20, 2008 to August 31, 2009 inclusive (Exhibit M‑12).

(a) Flights

(i) July 3, 2009

[218] Farm Air Ltd. was charged under subsection 700.02(2) of the CARs for having sprayed the Jamboree campgrounds on this date. Mr. Colhoun admitted to spraying on this date. Furthermore, a witness, Mr. Taylor, provided testimony that Mr. Colhoun was hired to disperse product in order to control mosquitos and insects for the Jamboree. The Minister's Representative submits that this spraying was clearly not done for agricultural purposes, and as such, the flying farmer defence does not apply. I find that the Minister's Representative has proven this contravention of the CARs and that the flying farmer exception does not apply on the facts before me.

(ii) On or about July 7, 12, 17, 2009

[219] A variety of evidence was adduced by the Minister's Representative to prove the CARs breaches on these dates. Evidence included eyewitness testimony from those who observed the aircraft spraying and who also smelled the spray. Other evidence included invoices from Farm Air Ltd. to Hanmer Seeds for aerial spraying and related account payable statements.

[220] I am satisfied that the Minister's Representative has shown, on a balance of probabilities, that the Applicant, Farm Air Ltd., operated the aircraft for the purpose of dispersing product without a valid AOC in contravention of subsection 700.02(2) of the CARs.

(4) Addressing the Applicants' arguments

[221] The Applicant's Representative argues that the Minister has proceeded against the wrong party in this case. However, Colhoun Farm is not a legal entity and cannot be proceeded against. Mr. Colhoun was acting through his corporations behind the corporate veil. The Minister made no error in proceeding against the Applicants in this case.

[222] The Applicants' Representative did not testify or offer any defence to the charges against the Applicants, other than accusing the Minister of withholding exculpatory evidence and accusing the Minister's witnesses of unprofessional conduct.The Applicants' Representative presented no evidence that the aircraft did not fly at the time of the above-noted incidents, such as Mr. Colhoun's personal logbook, or the aircraft's journey logbook. Additionally, Mr. Colhoun did not submit any records or certificates that reinforced his claims of the protection offered by BASA, NAFTA, and the Chicago Convention under these circumstances. He did not take the stand, as was his right to introduce his exhibits, but rather used the Minister's witnesses to do this for him. The Member permitted this in the interest of leveling the playing field and to ensure the Applicants' Representative was able to bring forward all his submissions.

[223] The Applicants' Representative sought the shelter provided by the Charter, the Chicago Convention, BASA, and NAFTA. I will deal with these issues in sequence. However, before I address these legal instruments, I would like to deal with the over-used and repeated use of the legal term "frivolous and vexatious" used by the Applicants' Representative.

[224] The Tribunal always attempts to remain open to any Applicant or Respondent who, in good faith, seeks the protection of the law. However, in this situation, the use of the term "frivolous and vexatious" is without merit. Applying the term frivolous in this Review Hearing would mean the Minister has no reasonable chance of success. I believe there is also a hint of malice in the term vexatious. I see no appearance of malice in the Minister's actions, nor do they contain any elements that are unfair to the Applicants. I believe that Mr. Colhoun's verbal and written attacks on the Minister and the Minister's Representatives are unwarranted.

[225] In dealing with the Charter, there was no evidence adduced to show that the Applicants were deprived of any of their freedoms by the actions of the Minister or by any Transport Canada inspectors.

[226] The burden was on the Minister's Representative to convince me, on a balance of probabilities, that the alleged CARs breaches occurred. The Minister's Representative met this burden. The Tribunal was more than impartial towards the Applicants. A perusal of the transcripts will show that Mr. Colhoun, in his defence of the Applicants, was allowed a great deal of latitude and patience over the reasonable objections of the Minister's Representatives.

[227] Mr. Colhoun was repeatedly advised that the issue of one production order and its accompanying affidavits was irrelevant and moot because the Minister's Representative would not use them as evidence to support his case and the Member would not consider them in reaching his Determination. In the other production order, there were explainable and regrettable errors made by Transport Canada in citing the wrong Criminal Code sections.

[228] In his closing argument, the Applicants' Representative states that the aircraft had a valid flight authority at all times, either by being in the normal category and restricted category concurrently, or by the intent of BASA.

[229] However, the Applicants' Representative produced no evidence that he or the Applicants had complied with the requirements of FAR Part 21, section 21.187 that deals with the issue of obtaining a multiple airworthiness certificate. The Applicants' Representative continually made statements that he felt the Minister had to disprove rather than providing evidence to support his own claims.

[230] The Implementation Procedures are very clear with respect to the importation and the use of U.S. aircraft in Canada. While the purpose of BASA is to facilitate the approval process for aircraft and parts being imported and exported between the two countries, it is not an open door.

[231] It is paradoxical that the Applicants' Representative claims that his aircraft can carry multiple airworthiness certificates and at the same time rely on section 2.1.6 of BASA, which deals with aircraft that are ineligible for a SAC. Furthermore, no evidence was presented that showed that any application for a SAC under Part V, subpart 7 of the CARs was ever made by the Applicants' Representative.

[232] Looking at section 2.8, the preamble to the Summary Tables for U.S. and Canadian products, whose approvals are recognized by TCCA, it is very clear that these approvals are applied to new aircraft and products only: "[the tables] summarize the new products designed and manufactured in the U.S. or Canada that are eligible for import under these Implementation Procedures." We are not dealing with a new aircraft or one that is ineligible for a normal airworthiness certificate if FAR Part 21, section 21.187 is followed. There was no evidence introduced by the Applicants' Representative that showed the aircraft was not eligible. Accordingly, I fail to see where BASA is germane to the issues before the Tribunal.

[233] We will now deal with the Chicago Convention. N4190X was issued its type certificate: restricted category aircraft under 14 CFR 21.25 (Code of Federal Regulations). It was issued a SAC in the restricted category with a model S2R designation (Exhibit M-19). This was the first and only certificate of airworthiness issued to the aircraft. A cross‑check on the present day sample FAA Form 8130-7, SAC for Restricted Category Aircraft Certificated under 14 CFR 21.25 is exactly the same as the one issued to N4190X. On the reverse side in block D it states:

This airworthiness certificate certifies that as of the date of issuance, the aircraft to which issued has been inspected and found to meet the requirements of the applicable CFR. The aircraft does not meet the requirements of the applicable comprehensive and detailed airworthiness code as provided by Annex 8 to the Convention On International Civil Aviation. No person may operate the aircraft described on the reverse side: (1) except in accordance with the applicable CFR and in accordance with conditions and limitations which may be prescribed by the Administrator as part of this certificate; (2) over any foreign country without the special permission of that country.

[234] The Applicants argue that section 507.05 of the CARs offers relief. This section reads:

507.05 Where an aircraft is operating under a foreign flight authority that is issued in respect of the aircraft or the fleet of which it is a part and that does not conform to Article 31 of the Convention, and the Minister determines that the aircraft is safe for flight, the Minister shall validate the foreign flight authority, thereby authorizing the operation of the aircraft in Canadian airspace.

[235] The Minister did issue a flight authority on two occasions with reasonable conditions. However, the latter of these temporary validations expired on July 21, 2004, and regardless, no validation would have survived the expiration of the foreign flight authority in September of 2004.

[236] The issue of NAFTA was raised. There are many sections in the CARs that deal with the use of NAFTA to operate a foreign aircraft for commercial purposes in Canada. However, the Applicants' Representative did not enter any evidence that he or the Applicants made any effort under these sections to allow the use of N4190X in Canadian airspace.

[237] I find that the evidence presented by the Applicants' Representative to be largely sophistry.

(5) Sanction

[238] The Minister charged the Applicants with the minimum charge for each breach of the CARs. Nonetheless, the Minister's Representative submits that aggravating factors exist in this instance, including the fact that Mr. Colhoun previously held an AOC for the aircraft, which implies that he knew it was necessary for legal flight in Canada. Furthermore, the Minister's Representative notes that some of the above charges would have required multiple flights, but that the Applicants were only charged with one flight for each breach. Finally, the Minister's Representative notes that the Applicants have demonstrated a consistent pattern of breaching regulations.

[239] I agree the evidence in this instance demonstrates that the path Mr. Colhoun followed was a deliberate one. Nevertheless, the Minister did not impose an increased penalty for aggravating circumstances. As such, while I concur with the Minister's Representative with regard to the existence of aggravating factors, I believe the penalties imposed to be appropriate.

VII. DETERMINATION

A. TATC File No. C-3695-41 ─ Skynorth Aviation Ltd.

[240] The Minister of Transport has not proven on a balance of probabilities that the Applicant, Skynorth Aviation Ltd., contravened seven counts of subsection 605.03(1) of the Canadian Aviation Regulations by way of vicarious liability. Consequently, the monetary penalty of $35 000 is dismissed.

B. TATC File No. C-3697-41 ─ Lumsden Aero Ltd.

[241] The Minister of Transport has proven on a balance of probabilities that the Applicant, Lumsden Aero Ltd., contravened seven counts of subsection 605.03(1) of the Canadian Aviation Regulations. The assessed monetary penalty of $5 000 in respect of each count is upheld, for a total penalty of $35 000.

C. TATC File No. C-3696-41 ─ Farm Air Ltd.

[242] The Minister of Transport has proven on a balance of probabilities that the Applicant, Farm Air Ltd., contravened four counts of subsection 700.02(2) of the Canadian Aviation Regulations. The assessed monetary penalty of $5 000 in respect of each count is upheld, for a total penalty of $20 000.

October 26, 2012

Patrick T. Dowd

Member


Appeal decision
Suzanne Racine, J. Richard W. Hall, Arnold Marvin Olson


Decision: September 17, 2013

Citation: Lumsden Aero Ltd. v. Canada (Minister of Transport), 2013 TATCE 26 (Appeal)

Heard in: Regina, Saskatchewan, on March 26 and 27, 2013

APPEAL DECISION AND REASONS

Held: The Appeal is dismissed. The charges against Lumsden Aero Ltd. are upheld. However, the $5 000 penalty for each count is upheld, except for Counts 2 and 3, the penalties for which are reduced to $50 per count. As such, the total penalty owing is reduced from $35 000 to $25 100.

The total amount of $25 100 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 Decision.

TATC File No. C-3696-41 (Farm Air Ltd.)

TATC File No. C-3697-41 (Lumsden Aero Ltd.)

I.  BACKGROUND

[1] On May 13, 2010, the Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty to each Appellant for alleged breaches of the Canadian Aviation Regulations, SOR/96-433 (CARs). The first Notice of Assessment of Monetary Penalty (Notice 1) alleges that Farm Air Ltd. (Farm Air) operated a United States of America (U.S.) registered aircraft to conduct aerial work involving the dispersal of product on four occasions in July 2009, when it did not hold an Air Operator Certificate, contrary to subsection 700.02(2) of the CARs. The total penalty assessed for the counts in Notice 1 was $20 000.

[2] The second Notice of Assessment of Monetary Penalty (Notice 2) alleges that Lumsden Aero Ltd. (Lumsden Aero) operated the same aircraft when there was no flight authority in effect on seven different occasions, contrary to subsection 605.03(1) of the CARs. The total penalty assessed for the counts in Notice 2 was $35 000.

[3] The Appellants filed a request for review with the Transportation Appeal Tribunal of Canada (Tribunal) regarding the alleged contraventions. A Review Hearing in this matter occurred in Regina, Saskatchewan from October 24 to 28, and November 1 to 2, 2011.

[4] In his Review Determination dated October 26, 2012, the Review Member found that the Minister had proven the allegations against both Farm Air and Lumsden Aero, and upheld the penalties assessed by the Minister.

[5] On November 7, 2012, the Appellants requested an appeal of the Review Member's Determination. The Appeal Hearing took place in Regina, Saskatchewan on March 26 to 27, 2013.

II.  PRELIMINARY ISSUES

[6] Prior to the Appeal Hearing, Norman Colhoun, representing the Appellants, submitted several requests for the Appeal Panel's consideration; namely, he requested to submit additional evidence on appeal, including a new Special Airworthiness Certificate (SAC), dated November 20, 2012, obtained from the U.S. Federal Aviation Administration (FAA), as well as an email dated June 8, 2004. The Appellants also submitted two requests for clarification stemming from the Review Determination.

[7] The Minister also made a request to postpone the scheduled Appeal Hearing due to a pending FAA investigation of the new SAC obtained by the Appellants.

[8] The Appeal Panel disposed of these issues by way of an Interlocutory Ruling dated March 18, 2013, which dismissed the Appellants' request in part. In deciding whether or not the Appellants could enter new evidence on appeal, the Appeal Panel considered whether the new evidence was necessary for the purposes of the appeal and whether it was previously available, pursuant to section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act).

[9] The Appeal Panel held that the Appellants could submit the new SAC, but that the Minister would be given the opportunity to cross-examine the Representative of the Appellants on this evidence, and would also be allowed to provide rebuttal evidence.

[10] The Appeal Panel found that the SAC was relevant to the proceedings at hand and was not previously available to the Appellants. Indeed, if the Appellants could prove that the old SAC was erroneous, then it could affect whether the CARs were contravened in this instance. However, in fairness to the Minister, the Appeal Panel felt it was appropriate to allow the Minister the opportunity to cross-examine the Appellants' Representative on this new evidence, as well as to allow the Minister to provide rebuttal evidence if necessary.

[11] The Appeal Panel denied the Appellants' request to submit the email dated June 8, 2004, as well as their requests for clarification. The Appeal Panel decided not to accept the June 8, 2004 email on the basis that the Review Member had already considered accepting this evidence and declined to do so, finding that the threshold test of section 14 of the TATC Act had not been met.

[12] With regard to the clarifications sought by the Appellants, the Appeal Panel notes that it is not in a position to provide the Appellants the requested clarification with regard to the Review Member's Determination. Moreover, such statutory recourse is not available to the Appellants under the Aeronautics Act, R.S.C. 1985, c. A-2, or the TATC Act.

[13] The Appeal Panel also denied the Minister's request for a postponement because the Appeal Panel determined that the Minister had adequate time to obtain information from the FAA prior to the Appeal Hearing, and that there was no need to wait until the outcome of the FAA investigation to hold the Appeal Hearing.

III.  EVIDENCE

A. Appellants

(1) Norman Colhoun

[14] Mr. Colhoun entered several pieces of evidence on appeal, including the corrected copy of the SAC, as well as an email chain from Eric Barr of the FAA (Exhibit A‑A‑3). Mr. Colhoun stated that this evidence is significant because it classifies the aircraft as an S-2R, as opposed to an S2R as it was classified on the previous SAC. Mr. Colhoun stated that this was significant because, in accordance with Inspector Gaudry's testimony, if the aircraft was an S-2R, it did not require validation of a foreign flight authority to operate in Canada. Mr. Colhoun notes that the date of issuance for the new SAC is also significant, as it was back‑dated to when the aircraft was built in 1974.

[15] On cross‑examination, the Minister entered the U.S. FAA's Operating Limitations Restricted Aircraft for Aircraft N4190X (Exhibit A‑M‑1). Mr. Colhoun conceded that the operating limitations attached to the S-2R were similar to those attached to the S2R. Mr. Colhoun also conceded that Exhibit A‑M‑1 requires that evidence of special permission from a foreign country be kept on board the aircraft, although he argued that it did not apply in this instance because of the Bilateral Aviation Safety Agreement (BASA). Mr. Colhoun also conceded that Exhibit A‑A‑2 lists the aircraft as being a restricted category aircraft, and noted that he does not have a standard Certificate of Airworthiness for the aircraft in question.

[16] When asked, Mr. Colhoun agreed that he has transitioned the aircraft from having spray gear to not having spray gear. According to Mr. Colhoun, the aircraft has been transitioned “not frequently, but it's been done since 2004 when we acquired the aircraft”. Although Mr. Colhoun stated that he had an Aircraft Maintenance Engineer (AME) inspect the aircraft to say that it met type certificate A3SW, he did not bring any documentation to that effect.

B. Minister

(1) Joseph David Gaudry

[17] Given the unusual circumstances surrounding the new evidence the Appellant requested to enter on appeal, the Appeal Panel allowed the Minister to provide rebuttal evidence. The Minister called Inspector Joseph David Gaudry to provide the rebuttal evidence regarding the updated SAC that was introduced on Appeal (Exhibit A‑A‑2).

[18] Inspector Gaudry reports having spoken to Mr. Barr of the FAA regarding the updated SAC that Mr. Barr issued on behalf of the FAA. Mr. Barr confirmed to Inspector Gaudry that he received a letter from Mr. Colhoun requesting a change in the model number found on the SAC. Inspector Gaudry states that Mr. Barr referred to the type certificate in effect at that time, and noted that both aircraft types were in the restricted category, so Mr. Barr did not see any issue with changing the model number on the SAC. However, in so doing he also attached a separate document of operating limitations (Exhibit A‑M‑1).

[19] Inspector Gaudry reports that the operating conditions attached to the updated SAC include that persons and cargo shall not be carried for compensation or hire, as well as that the aircraft may not be operated over a foreign country without the special permission of that country. These conditions are contained on the backside of the updated SAC.

[20] Inspector Gaudry notes that, as a result of these conditions, the aircraft at issue would still require permission from the Minister to operate in Canada. Moreover, Inspector Gaudry states that an aircraft that has aerial spraying gear cannot operate in the normal category.

[21] On cross-examination, Inspector Gaudry agreed that Revision 30 of type certificate number A4SW was not in effect at the time of the Review Hearing, rather Revision 28 was in effect at that time.

[22] On cross-examination, Inspector Gaudry agreed that normal category aircraft do not require a validation of foreign flight authority, and stated that how and where the aircraft is operated will determine what type of Certificate of Airworthiness is required. Mr. Gaudry testified that the aircraft in question was always operated under the restricted category.

[23] On re-examination, Inspector Gaudry stated that the restricted category type certificate is the A4SW, while a standard Certificate of Airworthiness would be issued for a normal category aircraft.

IV.  REVIEW DETERMINATION

[24] The Review Determination dated October 26, 2012, found that the Minister had proven that both Farm Air and Lumsden Aero had contravened the CARs,and the respective penalties of $20 000 and $35 000 were upheld. In reaching his conclusion, the Review Member made a variety of factual and legal findings, which the Appellants have contested on appeal.

[25] The Review Member found that the Appellants had not demonstrated that the doctrine of estoppel should be applied in this case, nor did the Appellants have any legitimate expectation that their behaviour was being condoned by the Minister.

[26] The Review Member also found that the aircraft at issue was no longer registered in the U.S. because of the expiration of its Certificate of Registration. Accordingly, the Review Member found that “the evidence before the Tribunal seems to show that the aircraft has been operating illegally in Canada for a number of years”. However, the Review Member then noted that in the event that his statutory interpretation on this point was wrong, he would nevertheless consider the case on its merits. As such, the Review Member then considered each charge in isolation to determine whether the Minister had proven her case.

[27] In upholding the charges against Lumsden Aero, the Review Member weighed the evidence correlating to each alleged flight. Regarding the flight dated July 3, 2009, the Review Member considered the photographs taken by eyewitnesses to the event, and also relied on the Appellants' Representative's admission that spraying occurred on this date.

[28] In considering the alleged flights on or about July 7, 12, and 17, 2009, the Review Member relied on invoices from Farm Air to Hanmer Seeds regarding work done on or about July 8, 13 and 18, 2009, as well as corresponding accounts payable statements from Hanmer Seeds. He also noted that eyewitness testimony existed.

[29] In upholding the violation of August 24, 2009, the Review Member relied on a photograph that was published in the Regina newspaper, the Leader-Post, on August 25, 2009, on which the registration number for the aircraft is visible using a magnifying glass.

[30] The Review Member found that thecontravention of November 28, 2009 had been proven by the testimony of a witness who reported that the Appellants' aircraft arrived in Moose Jaw, Saskatchewan on this date. The witness also identified this aircraft as the one he had worked on in Moose Jaw, Saskatchewan at around the same time.

[31] The Review Member held that the violation of March 29, 2010 had been proven by the testimony of a variety of witnesses, one of whom saw the aircraft land and also identified the Appellants' Representative as being the person he spoke with upon the aircraft's landing. Other witness testimony corroborated this evidence, including witness testimony that the Appellants' Representative entered his shop and asked for work to be done on his aircraft, as well as witness testimony from a person who claims that he drove Mr. Colhoun's vehicle from Moose Jaw back to Regina after Mr. Colhoun indicated that he was going to leave with the aircraft.

[32] The Review Member then considered that even if the foreign flight authority were valid, the aircraft nonetheless required proper validation before flying in another country. According to the Review Member, “even if I were to find that the aircraft held a SAC, flying over a foreign country is not allowable without special permission of the country, which did not exist in this case. Because the aircraft did not have the appropriate validation at the relevant time, it was clearly not operated in accordance with its flight authority”.

[33] The Review Member next considered charges against a third company that were dismissed. As such, they are not relevant to the Appeal Hearing and will not be considered.

[34] The Review Member then analysed the four charges against Farm Air. He found that the contravention of July 3, 2009 had been proven on the basis of an admission of Mr. Colhoun that he sprayed on this date, as well as a witness who testified that Mr. Colhoun was hired to disperse product to control mosquitos and insects for an event. The Review Member found that a contravention of the CARs had occurred, and that the flying farmer exemption did not apply in this instance.

[35] In upholding the alleged contraventions that occurred on or about July 7, 12, and 17, 2009, the Review Member relied on a variety of evidence, including eyewitness testimony from those who observed the aircraft spraying and smelled the spray, as well as invoices from Farm Air to Hanmer Seeds for aerial spraying and related accounts payable statements.

[36] The Review Member then went on to address a variety of arguments made by the Appellants, some of which were raised by the Appellants on appeal. For instance, the Review Member noted that “Mr. Colhoun was repeatedly advised that the issue of one production order and its accompanying affidavits was irrelevant and moot because… the Member would not consider them in reaching his Determination”. He also found that “in the other production order, there were explainable and regrettable errors made by Transport Canada in citing the wrong Criminal Code sections”.

[37] The Review Member also considered the BASA put forth by the Appellants and held that it was not relevant to the issues before the Tribunal. He found that the BASA applied only to new aircraft, and as such did not apply to the aircraft at hand.

[38] In terms of the penalties imposed, the Review Member found that while aggravating circumstances might have existed, the Minister did not impose an increased penalty due to aggravating circumstances. Consequently, the Review Member upheld the penalties imposed by the Minister.

V.  GROUNDS OF APPEAL

[39] The Appellants submitted Grounds for Appeal dated November 10, 2012, which included the following:

  1. The Appellants were unable to make full answer and defence at the Review Hearing because the Minister wilfully delayed Access to Information requests;
  2. The aircraft had the required validation;
  3. The Review Member erred in allowing into evidence the affidavits signed by Inspector Gaudry used to obtain the Production Orders because Inspector Gaudry presented false evidence under oath in order to obtain these Production Orders;
  4. The Review Member erred in relying on evidence obtained as a result of the Production Orders;
  5. The Review Member erred in determining that the aircraft was not properly registered in the U.S.;
  6. The Minister cannot charge the Appellants with contraventions after having failed to act for so many years, due to the doctrine of estoppel;
  7. The Review Member erred in his interpretation and application of the BASA;
  8. The flights that occurred took place under the flying farmer exemption;
  9. The Appellants were denied procedural fairness because they did not have the opportunity to present oral arguments at the Review Hearing;
  10. The new SAC establishes that the aircraft is an S-2R model.

VI.  ISSUES

[40] The issues to be determined on this Appeal are as follows:

  1. What is the appropriate standard of review?
  2. Did the Review Member err in finding that the aircraft did not have a valid flight authority?
  3. Did the Review Member err in considering the evidence obtained as a result of the Production Orders?
  4. Did the Review Member err in finding that the aircraft was not properly registered in the U.S.?
  5. Was the Minister prevented from laying charges against the Appellants due to estoppel or legitimate expectations?
  6. Were the Appellants unable to make full answer and defence because of inadequate disclosure?
  7. Did Farm Air conduct the flights in question under the flying farmer exemption?
  8. Was the Appellants' right to procedural fairness breached as a result of not presenting oral arguments at the Review Hearing?
  9. Did the Minister proceed against the wrong parties?
  10. Were the penalties appropriate in this instance?

VII.  ARGUMENTS

A.  Appellants

(1) Updated SAC

[41] The Appellants contend that the updated SAC (Exhibit A‑A‑2) serves to correct a typographical error that existed in the original SAC that was issued by the FAA on April 23, 1974. The Appellants allege that this new evidence demonstrates that the aircraft at issue is an S‑2R model, and as a result the aircraft does not require any authorization in order to operate in a foreign country, pursuant to type certificate A3SW, Revision 18.

[42] Furthermore, the Appellants note that even if the updated SAC had not corrected the aircraft model at issue, that the Multiple Airworthiness Certification Procedures listed in a service letter from the Ayres Corporation (A-1) note that a model S2R aircraft may carry both a normal and a restricted category airworthiness certificate concurrently.

(2) The Aircraft had a Valid Flight Authority

[43] The Appellants submit that the aircraft had a valid flight authority at the time of the alleged contraventions. They note that section 507.05 of the CARs titled Validation of Foreign Flight Authority states as follows:

507.05 Where an aircraft is operating under a foreign flight authority that is issued in respect of the aircraft or the fleet of which it is a part and that does not conform to Article 31 of the Convention, and the Minister determines that the aircraft is safe for flight, the Minister shall validate the foreign flight authority, thereby authorizing the operation of the aircraft in Canadian airspace.

[44] They note further that the regulation of a validation for a foreign flight authority does not impose a cancellation date. Rather, they submit that the standardised validation of an SAC for light sport or experimental light-sport aircraft for the purpose of operating a U.S. registered light‑sport aircraft in Canadian airspace (A-A-1) states that this validation is valid for an indefinite period.

[45] The Appellants further allege that the FAA confirmed by email that a validation is not required when a restricted category aircraft is handled in accordance with 14 CFR § 21.25(a)(1) and (b)(1-7), as well as § 21.185, pursuant to Exhibit A-18.

[46] Moreover, the Appellants note that no validation was required in 2004, nor was validation required after the implementation of the BASA in 2008.

[47] Moreover, the Review Member erred in finding that the BASA applies to new products only, as it also applies to replacement parts.

(3) The Review Member erred in admitting the Affidavits

[48] The Appellants submit that the Review Member erred in allowing the affidavits signed by Inspector Gaudry (Exhibits M‑30 and M‑32) in order to obtain the Production Orders (Exhibits M‑29 and M‑31).

[49] The Appellants allege that Inspector Gaudry falsely stated under oath that he spoke to Robert Meyer about Mr. Colhoun's farming activities. Inspector Gaudry admitted at the Review Hearing that he spoke to Remington Walker rather than Mr. Meyer, but the Appellants note that Mr. Walker testified at the Review Hearing that he did not recall having such a conversation with Inspector Gaudry.

[50] The Appellants allege that Inspector Gaudry also falsely stated under oath that Paul Hofer told him that Mr. Colhoun rented out his farmland in 2007 and 2008 to a man named Jim Latrace. The Appellants contend that contrary to what Inspector Gaudry affirmed in the affidavit, Mr. Hofer stated that he told Inspector Gaudry that Mr. Colhoun rented some of his farmland to a man named Jim Lagrace. Furthermore, Mr. Hofer testified that at no time did he see the aircraft in question take off, contrary to Inspector Gaudry's affirmation.

[51] The Appellants also note that Inspector Gaudry used the wrong section of the Criminal Code, R.S.C., 1985, c. C‑46, when he applied for the Production Orders before the Provincial Court.

(4) The Review Member erred by relying on evidence obtained by the Production Orders

[52] While the Review Determination states at paragraphs [145] and [227] that the Review Member dismissed the two Production Orders and the information contained therein for a lack of relevance, the Appellants note that the Review Member nevertheless relied on the Hanmer Seeds invoices (Exhibit M‑35) that were obtained from Production Order at Exhibit M-31 in reaching his Determination. The Appellants state that the Review Member erred in so doing, and that his findings were inconsistent.

[53] The Appellants contend that, for the above-noted reasons, the evidence obtained as a result of the Production Orders should be excluded from evidence.

(5) The Review Member erred in finding that the aircraft was not properly registered in the U.S.

[54] The Appellants contend that the Review Member also erred in finding that the aircraft was not properly registered in the U.S. during the period of time at issue in this case. Rather, they argue that the aircraft was in fact registered at all times in the U.S. during the time period at issue.

(6) Estoppel

[55] The Appellants submit that the Minister was aware that the Appellants had been operating the aircraft since 2004, and that by not charging them sooner, the Minister is now estopped from doing so. Indeed, the Appellants submit that it is unreasonable to now charge them for flights operated without validation when the Minister knew that they had been operating the aircraft for over five years.

[56] The Appellants submit that they relied on the Minister's failure to charge them for a period of several years as evidence that the validation issued by Transport Canada in June 2004 was open-ended.

(7) Wilful delay in disclosure

[57] The Appellants submit that they were unable to make full answer and defence at the Review Hearing because the Minister wilfully delayed access to the Appellants' access to information requests until after the Review Hearing.

[58] The Appellants submit that the access to information requests show email exchanged in June 2004 between the Minister and the FAA in relation to the Appellant's SAC and the BASA, and that these emails demonstrate the FAA's position that a validation was not required if the aircraft met the requirements of 14 CFR § 21.25.

[59] Indeed, the Appellants note that by June 2010—almost a year after the date of the alleged offences—Transport Canada was still in the process of determining whether a validation was necessary.

[60] The Appellants submit that documents that were not disclosed by the Minister support the Appellant's assertion that the wrong parties were proceeded against, and furthermore that information redacted by the Minister in the email chain at Exhibit A‑16 would have answered the question as to the requirement of a validation.

(8) Flying Farmer Exemption

[61] The Appellants also submit that the flights operated in this instance were conducted under the flying farmer exemption pursuant to the CARs; indeed, they claim that a validation was not required in this case because the Appellants were operating under subsection 700.02(3) of the CARs.

[62] Moreover, the Appellants submit that they were misdirected by the Review Member as to whether or not they were required to prove that the flights occurred under this exemption. They argue that the errors made by the Review Member in this case affected the Appellants' ability to prove their case.

[63] Furthermore, the Appellants submit that the Minister did not establish that the flights occurred outside of 25 miles from the centre of the Appellants' Representative's farm. They submit that the Minister's evidence demonstrates that she was unsure where the centre of the farm was, or how many farms the Appellants' Representative owns.

(9) Oral Arguments

[64] Finally, the Appellants submit that they were denied procedural fairness as a result of not being able to present their arguments orally at the end of the Review Hearing. The Appellants submit that the Review Member should not have requested written arguments only, and that according to section 17 of the Transportation Appeal Tribunal of Canada Rules, SOR/93‑346 (TATC Rules), written arguments can only be made in addition to, rather than in lieu of oral arguments.

[65] The Appellants submit that the Review Member erred in his interpretation of the TATC Act, and in so doing, breached the Appellants' right to a procedurally fair hearing.

[66] Moreover, the Appellants submit that they were prejudiced by not having the opportunity to present oral arguments. The Appellants submit that presenting oral arguments would have been easier for their Representative as the issues of the case would have still have been fresh in the Appellants' Representative's mind at the end of the Review Hearing.

(10) Wrong Party Charged

[67] Although not in the Appellants' Request for Appeal, while at the Appeal Hearing, the Appellants also argued that the Minister erred in charging Farm Air and Lumsden Aero. The Appellants argue that the care, custody and control of the aircraft were with Colhoun Farm rather than the Appellants. They also note that most of the documentation that has been submitted in this case is addressed to Colhoun Farm.

B.  Minister of Transport

(1)  New SAC

[68] The Minister submits that even if the new SAC presented by the Appellant shows the aircraft in question as an S-2R model, it is nonetheless in the restricted category and subject to clause D(2) on the back of the SAC, which states that no person may operate the aircraft over any foreign country without the special permission of that country.

[69] Moreover, the Minister notes that Type Certificate Data Sheet No. A4SW, Revision 30 shows that both the S2R and S-2R models are included in the restricted category, and as such are subject to the same requirement to obtain permission to operate in a foreign country. As a result, there has been no change in the conditions of operation of the aircraft and it still requires special permission to operate in a foreign country.

[70] The Appellants' aircraft was not issued a standard certificate that would have allowed the Appellants to operate flights over a foreign country without the need for validation. Indeed, the Appellants never applied for a standard airworthiness certificate, and the aircraft was only ever issued a restricted SAC.

[71] Furthermore, the Minister notes that the Appellants produced no evidence to show that the procedures for multiple airworthiness certification as noted in the service letter from Ayres Corporation (A-1) were completed in order to allow the aircraft to hold both a normal and restricted classification simultaneously.

(2) Validation required

[72] The Minister notes that the FAA's operating limitations for the Appellants' restricted aircraft (A-M-1) states that the aircraft may not be operated over any foreign country without the special permission of that country. The new evidence brought on appeal indicates the same at clause D(2) on the reverse of the updated SAC (A-A-2). The Minister submits that the updated SAC (A-A-2) is no different than the SAC submitted at the Review Hearing (Exhibit M‑19), as they are both certificates for a restricted aircraft.

[73] The Minister contends that the implementation procedures of the BASA have no effect on the conditions of airworthiness of the aircraft and do not provide the Appellants the authority to operate in Canada. The Minister also argues that the BASA is intended to address the importation of aircraft rather than the operation of aircraft in foreign countries, and the evidence before the Tribunal shows that the aircraft was not imported into Canada.

[74] Furthermore, the Minister submits that the BASA applies to aircraft type designs to be certified by the FAA and Transport Canada for a standard Certificate of Airworthiness and for certain type designs in the restricted category that are not eligible for a standard certificate. The Minister contends that the Appellants' aircraft was eligible for a standard Certificate of Airworthiness, but they did not apply for one. As such, the Appellants' aircraft was operated under a restricted Certificate of Airworthiness without the proper validation.

[75] In summary, the Minister notes that the BASA does not apply in this case because the aircraft at issue is a restricted category aircraft that was not imported into Canada. Indeed, even though the aircraft in question meets the requirements of the BASA, the Appellants did not follow the correct procedure to import it under the BASA, and as such the BASA does not apply in this case.

(3) Production Orders

[76] The Minister submits that the Appellants wanted the Production Orders and affidavits to be entered into evidence to demonstrate the errors they contained in order to test the credibility of a witness, while requesting that the documents produced as a result of the Production Orders be excluded from evidence.

[77] The Review Member found Inspector Gaudry's testimony about the error in the Production Orders to be credible and made no reviewable error on this point. Furthermore, the Minister contends that the Review Member's findings on this point were reasonable and should be given deference.

[78] The Minister notes that the Member does not consider or rely on the Production Orders or the information in the Production Orders in reaching his Determination. While he does consider the invoices from Hanmer Seeds, these were documents that were produced as a result of the Production Orders and were not the Production Orders themselves, or the information they contained.

[79] The Minister also notes that if the Appellants had concerns about the Production Orders, they could have requested to have the Production Orders quashed by an appropriate court.

[80] The Minister submits that no reviewable errors occurred with respect to the Production Orders, the related affidavits, or the exclusion of evidence. Indeed, the Minister submits that the Production Orders and affidavits were entered as desired by the Appellants, and the resulting information was properly admitted and weighed by the Review Member.

[81] The Minister submits that the issues of credibility and weighing of evidence are the proper functions of the Review Member, and that deference is owed to those findings.

(4) U.S. Registration

[82] The Minister notes that the Review Member concluded that it seemed that the aircraft was no longer registered in the U.S. The Minister submits that even if the Review Member was wrong on this point, the Appeal Panel should defer to his findings of fact, because even if the aircraft was registered in the U.S., the flight authority would have needed to be validated prior to flying over a foreign country.

[83] Furthermore, the Minister notes that even though she did not ask the Review Member to make a finding of fact on this issue, the Review Member was not precluded from doing so.

[84] Furthermore, even if the Review Member was in error on this point, the Minister submits that this factual finding is not determinative of the charges, and that the Review Member nevertheless did a full assessment and analysis of the charges at issue. Moreover, the Minister notes that the Review Member's finding on this point did not affect the outcome in this case, since the outcome in either instance would be that there was no valid flight authority in place at the time of the flights.

(5) Estoppel / Legitimate Expectations

[85] The Minister submits that the Review Member made no reviewable error on this issue, and that there was no evidence submitted by the Appellants that could have led the Review Member to conclude that the Appellants had legitimate expectations that the Minister would not charge them in the future.

(6) Disclosure

[86] The Minister submits that the Review Member found in his Determination as well as during a post-hearing application that the undisclosed documents in question in this instance were not relevant, not necessary, and also previously available.

[87] The Minister notes that the Appellants made the same request prior to and during the Review Hearing, as well as on Appeal, without success. Indeed, the Review Member was satisfied with the Minister's disclosure of evidence to the Appellants in this instance.

(7) Flying Farmer Exemption

[88] The Minister submits that the flying farmer exemption was a defence that was open to the Appellants to make, but that the Appellants never raised such a defence. Moreover, the Minister notes that the Review Member suggested to the Appellants during the Review Hearing that the flying farmer exemption could be a possible defence.

[89] The Minister contends that she did not have to prove that the Appellants were not eligible to an exemption pursuant to subsection 700.02(3) of the CARs. The Minister charged Farm Air under subsection 700.02(2) of the CARs, and was only required to prove on the balance of probabilities the elements of that provision, which are that the Appellants operated an aircraft to conduct aerial work without an Air Operator Certificate.

(8) Oral Arguments

[90] The Minister argues that both parties agreed to submit written submissions, which indicates that there was a discussion on the issue even though it does not appear in the transcript.

[91] The Minister contends that the intention of section 17 of the TATC Rules is to allow each party the opportunity to present their arguments, and that in this instance both parties had the same opportunity to present their arguments in the same format. Moreover, the Appellants were provided six weeks to present their arguments in writing.

[92] The Minister submits that if the Appeal Panel were to decide that there was a breach of procedural fairness in this instance, then the Appeal Panel must also conclude that the breach was cured by the appellate process, as was done in the Tribunal decision of Sharp Wings Ltd. v. Minister of Transport, 2012 TATCE 13, TATC file no. P‑3698‑41 (Appeal).

(9) Care and Control of the Aircraft

[93] In reply to the Appellants' allegation that the wrong party was charged, the Minister notes that the Review Member dealt with this issue in his Determination and that his findings should not be overturned. Indeed, the Minister contends that the Appellants brought no evidence that the care and control of the aircraft had been transferred to Colhoun Farm. Furthermore, the aircraft could not have been in the care and control of Colhoun Farm because it is not a legal entity.

VIII. ANALYSIS

A.  Issue 1 What is the appropriate standard of review?

[94] The first step in reviewing the Determination made by the Review Member is to determine the appropriate standard on which to review the Review Determination. The Supreme Court of Canada determined in Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 57, that a full standard of review analysis is not necessary if the appropriate standard has previously been established.

[95] In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, the Federal Court addressed the appropriate standard of review applicable to an appeal panel reviewing first level Tribunal decisions. Billings established that review members are owed considerable deference with regard to findings of fact and issues of credibility. As such, so long as a decision on review is within a range of reasonable outcomes based on the evidence that was before the review member, the appeal panel should not interfere.

[96] However, no deference is due to a review member with regard to issues of law (see Billings, and NAV CANADA v. Canada (Minister of Transport), 2010 TATCE 28, TATC file no. H‑3472-40 (Appeal)). Accordingly, issues of law are to be determined on a standard of correctness.

B.  Issue 2 – Did the Review Member err in finding that the aircraft did not have a valid flight authority?

[97] The updated SAC presented by the Appellants at the Review Hearing describes the aircraft as being an “S-2R” model, rather than the “S2R” model described in the initial SAC. The updated SAC is dated April 23, 1974, the same date that the initial SAC was issued. The Appeal Panel decided to let the Appellants enter this evidence on appeal, understanding that it could determine whether or not the aircraft required validation to fly in Canada.

[98] However, while the model numbers are different on these SACs, other aspects of the SACs remain consistent. Notably, the new SAC is also for a restricted aircraft. In this respect, both SACs are the same. Similarly, both are subject to clause D(2) on the back of each SAC which states that no person may operate the aircraft over a foreign country without the special permission of that country. As such, the Minister contends that the updated SAC is no different than the SAC submitted at the Review Hearing as they are both certificates for restricted aircraft.

[99] While the Appellants have asked the Appeal Panel to look at the model number alone in determining whether a valid flight authority was required for the series of flights undertaken by the Appellants, to do so would be to ignore the fact that the updated SAC is still subject to clause D(2) found on the back of the SAC, which states that no person may operate the aircraft over a foreign country without the special permission of that country. Indeed, both SACs that were before the Appeal Panel were for restricted aircraft. As such, the Appellants required special permission to operate in a foreign country. This permission was not obtained by the Appellants as required.

[100] The Appellants have also argued that they were operating the aircraft pursuant to the BASA. However, the Appeal Panel notes that the aircraft at issue did not meet the implementation procedures of the BASA because it remained U.S. registered. In his Determination, the Review Member found that the BASA was not “germane to the issues before the Tribunal” and as such did not apply. The Appeal Panel finds that the Review Member's findings on this point were reasonable, while recognizing that the Review Member's conclusions as to the limitations on the BASA's application to new aircraft only may have been incorrect.

[101] While the Appellants have attempted to argue that the new evidence before the Tribunal implies that the FAA should have issued a standard Certificate of Airworthiness in this case, the Appeal Panel notes that the Appellants cannot reasonably rely on their belief of what the documents they possess should say. Rather, the Appeal Panel is only interested in whether or not the aircraft was operated in accordance with what the aircraft documentation does say.

[102] For the above-noted reasons, the Appeal Panel finds that the Review Member was reasonable in finding that the aircraft did not have a valid flight authority at the time of the flights in question.

C.  Issue 3 - Did the Review Member err in considering the evidence obtained as a result of the Production Orders?

[103] The Appellants contend that the Review Member erred in admitting the affidavits signed by Inspector Gaudry that were used to obtain the Production Orders. The Appellants allege that the Production Orders contained a variety of errors, including the names of people Inspector Gaudry had allegedly spoken to and the section of the Criminal Code under which he applied for the Production Orders.

[104] Furthermore, the Appellants submit that the Review Member erred in stating that he was dismissing the Production Orders and the information they contained due to a lack of relevance, but then relying on the Hanmer Seeds invoices that were obtained as a result of one of the Production Orders. For these reasons, the Appellants submit that the evidence obtained as a result of the Production Orders should have been excluded from evidence.

[105] The Minister submits that the Appellants' demands are inconsistent, as they wanted the Production Orders and affidavits to be entered into evidence to demonstrate the errors they contained in order to test the credibility of a witness, while nevertheless requesting that the documents produced as a result of the Production Orders be excluded from evidence.

[106] The Minister contends that the Review Member did not rely on the Production Orders or the information contained in the Production Orders in reaching his Determination. While he did consider the invoices from Hanmer Seeds, the Minister notes that these documents were produced as a result of the Production Orders, and were not the Production Orders themselves or the information they contained.

[107] The Minister submits that no reviewable errors occurred with respect to the Production Orders, the related affidavits, or the exclusion of evidence; that the Production Orders and affidavits were entered as desired by the Appellants; and that the resulting information produced was properly admitted and weighed by the Review Member.

[108] The Review Member wrote in his Determination that:

Mr. Colhoun was repeatedly advised that the issue of one production order and its accompanying affidavits was irrelevant and moot because the Minister's Representative would not use them as evidence to support his case and the Member would not consider them in reaching his Determination. In the other production order, there were explainable and regrettable errors made by Transport Canada in citing the wrong Criminal Code sections.

[109] The Appeal Panel notes that the only Production Order and related information to obtain a Production Order at issue in this instance is that entered as Exhibit M-31.

[110] Indeed, the Appellants have raised a concern that the Review Member erred in stating that he did not rely on the Production Orders and the Information to Obtain a Production Order while then relying on the Hanmer Seeds evidence in upholding the charges against Farm Air.

[111] In considering the Production Orders and the Information to Obtain a Production Order, the Review Member found that the errors contained within these documents were “explainable and regrettable”, but he found that the errors in these documents were moot because he did not consider this evidence in reaching his Determination.

[112] As noted by the Minister, the Review Member's statement on this point was accurate. Indeed, while he relied on the evidence resulting from the Production Order, he did not rely on the Production Order itself or the information contained therein in making his Determination.

[113] Both parties agree that there were errors with the Production Orders and their supporting documents. The disagreement between the parties on this issue concerns whether the evidence resulting from the faulty Production Orders—specifically the Production Order entered as Exhibit M‑31—was properly considered and relied on by the Review Member.

[114] While the Appeal Panel recognizes the errors contained in both the Production Order and related affidavit, the Appeal Panel cannot say that the Review Member erred in his treatment of this evidence. Indeed, although the Appellants have shown that the information contained in Inspector Gaudry's affidavit was incorrect, the Appeal Panel cannot simply speculate as to how a judge would have treated the issue differently had these flaws been made known. Indeed, such a decision is outside of the Tribunal's jurisdiction, and better left to a court of competent jurisdiction.

[115] As such, the Tribunal cannot simply quash the Production Order and deny the admission of documents produced as a result of the Production Order. Given the facts at hand and the jurisdictional limitations on the Tribunal, the Appeal Panel finds that the Review Member followed the right course of action in accepting and considering this evidence, despite the “regrettable errors” it may have contained.

[116] Nevertheless, the Appeal Panel wishes to highlight its concern with the quantity and significance of the errors in these documents. The errors contained in these documents suggest that Transport Canada took a careless and cavalier approach to obtaining these Production Orders and related documents. Accordingly, the Appeal Panel feels that this requires further consideration in the penalty portion of this Decision.

D.  Issue 4 - Did the Review Member err in finding that the aircraft was not properly registered in the U.S.?

[117] In his Determination, the Review Member found that because the Certificate of Registration had expired on September 11, 2004, the SAC was automatically cancelled. The Review Member based this finding on his interpretation of the Triennial Aircraft Registration (Exhibit A‑22) which updates the FAA aircraft registry files when no registration activity has occurred in the past 36 months. However, in so doing, it seems that the Review Member failed to consider that Exhibit A‑22 is an update report based on recent activity. While the Review Member concluded that the lack of activity was an indication that the aircraft remained unregistered, the Appeal Panel finds that the lack of activity indicated the opposite—that the aircraft remained registered. This finding is supported by the evidence before the Appeal Panel. For instance, the FAA Registry N‑Number Inquiry Results, dated December 8, 2008 (Exhibit M‑21), indicate that the aircraft was registered as a restricted aircraft in the U.S. Moreover, the fact that the Appellants were able to submit an updated SAC also demonstrates that the aircraft was registered in the U.S. on November 20, 2012 (Exhibit A‑A‑2).

[118] Although the Appeal Panel finds that the Review Member erred in his factual finding on this point, it is nonetheless not fatal to the Determination. Even a properly registered aircraft requires the appropriate validation prior to flying in another country. Moreover, after making his faulty finding on the U.S. registration point, the Review Member nevertheless went on to consider the case on its merits to determine if the contraventions had been proven on the balance of probabilities. It is this analysis that is crucial to the appeal before us.

E.  Issue 5 - Was the Minister prevented from laying charges against the Appellants due to estoppel or legitimate expectations?

[119] The Appellants have attempted to argue that the Minister was estopped from laying charges against them due to the Minister's failure to act on this knowledge despite the amount of time that the Minister knew that these flights were being conducted.

[120] The Review Member examined this issue through the consideration of legitimate expectations, that being, whether due to the passage of time without having been charged for such offences, the Appellants had legitimate expectations that they would not later be charged for their actions.

[121] Where legitimate expectations are found to exist, they affect the content of the duty of fairness owed to the individuals affected. The fact that the Minister was aware that the Appellants were operating flights since 2004 and did not take action until 2009 does not result in legitimate expectations for the Appellants that they would not be proceeded against. Furthermore, no representation was ever made by Transport Canada to the Appellants that it was acceptable for them to operate the aircraft in question without special permission. In June 2004, the Minister provided the Appellants with a validation of the SAC to fly in Canada, complete with a list of conditions to be met as well as an expiry date of July 21, 2004 (Exhibit M‑24). From there, the Appellants could have imported the aircraft into Canada, leased the aircraft to an air operator under subpart 3 of the CARs, or conducted work as a U.S. specialty air service pursuant to the North American Free Trade Agreement. However, the Appellants did not partake of any of these options and continued to fly the aircraft with a restricted SAC provided by the FAA.

[122] The Appellants have not given any convincing reason as to why the Minister's position would be different five years later. It is unreasonable for the Appellants to assume that they are entitled to operate the aircraft without the proper authorization because the Minister did not take action sooner.

[123] The Appeal Panel finds that the Review Member was reasonable in determining that no legitimate expectations existed in this instance.

F.  Issue 6 - Were the Appellants unable to make full answer and defence due to inadequate disclosure?

[124] The Appellants have attempted to argue that they were unable to make full answer and defence in this case due to inadequate disclosure. The Minister submits that full disclosure was made, and that the Review Member was satisfied with the Minister's disclosure of evidence.

[125] The Appeal Panel notes that the issue of disclosure was raised prior to, during, and after the Review Hearing, and that the Review Member was satisfied with the disclosure provided to the Appellants in this case. The Appeal Panel notes that this finding is reasonable.

[126] Insofar as the Appellants' concern with disclosure relates to the access to information process, the Appeal Panel notes that the Tribunal has no jurisdiction in issues relating to the access to information process and the timing of requests made under the Access to Information Act, R.S.C., 1985, c. A-1.

G.  Issue 7 - Did Farm Air conduct the flights in question under the flying farmer exemption?

[127] In this instance, the charges against Farm Air were made under subsection 700.02(2) of the CARs. Subsection 700.02(3) provides an exemption to subsection 700.02(2) whereby a person may prove that he or she was operating an aircraft as a flying farmer, therefore providing a defence to a charge under subsection 700.02(2).

[128] As subsection 700.02(3) provides a defence against the charges, it is up to the defendant to prove the existence of the defence by proving the four cumulative conditions listed in subsection 700.02(3).

[129] The Review Member was reasonable in determining that this defence was not proven. Indeed, it is clear that the dispersal of products on July 7, 12 and 17, 2009 occurred outside of 25 miles of the Appellants' Representative's farm, and it is equally as clear that the dispersal of products that took place on July 3, 2009 was for non-agricultural purposes. The Appellant did not bring any evidence to demonstrate otherwise.

[130] The Appellants suggest that they were misdirected by the Review Member as to whether or not they were required to prove that the flights occurred under this exemption, and that the errors made by the Review Member on this point affected the Appellants' ability to prove their case.

[131] However, an examination of the transcript demonstrates that even if there was confusion early on in the Review Hearing as to the flying farmer issue, this issue was clarified by all parties prior to the end of the Review Hearing. For instance, on page 753 of the Review Hearing transcript, Mr. Colhoun is noted as having asked, “so the flying farmer is a defence, correct?” to which the Review Member responded, “I think in this situation it would be”.

[132] In a later discussion of the flying farmer defence found on page 756 of the transcript, Mr. Colhoun asks for clarification as to whose burden it is to prove the elements of the flying farmer defence. Specifically, he asked, “do I have to say that or do they have to prove it?” The Review Member responded to this question with “no, they don't have to prove it”.

[133] Although any confusion about this possible defence is unfortunate, it is clear to the Appeal Panel that the Appellants' Representative had an understanding of his opportunity to provide this defence prior to the end of the Review Hearing. Furthermore, the Appeal Panel notes that it is not the responsibility of the Review Member to guide the Appellants through making a defence. Despite any confusion that may have occurred on this point, it is clear that the Appellants had the information they required prior to the close of the Review Hearing.

[134] Accordingly, we find that any confusion related to the flying farmer defence in this instance was not fatal to the Determination, and that the Review Member was reasonable in determining that the Appellants did not prove the flying farmer defence pursuant to subsection 700.02(3) of the CARs.

H.  Issue 8 - Was the Appellants' right to procedural fairness breached as a result of not presenting oral arguments at the Review Hearing?

[135] The Appellants submit that their right to a procedurally fair hearing was breached when they were forced to make written arguments instead of oral arguments at the end of the Review Hearing. The Minister, however, notes that the Appellants were indeed able to make arguments and that no breach of procedural fairness occurred. Moreover, the Minister states that if a breach of procedural fairness did occur, it was cured during the Appeal Hearing.

[136] Because the discussion regarding the provision of written submissions occurred off the record, it is impossible to know whether the decision to provide written submissions in lieu of oral arguments was strongly objected to as stated by the Appellants, or whether the Appellants seemed comfortable with this arrangement, as suggested by the Minister.

[137] There is little doubt that the best practice in this instance would have been to have oral arguments as planned and supplement these oral arguments with written submissions, as contemplated in Rule 17 of the TATC Rules. However, changing procedural aspects of a Review Hearing does not automatically result in a breach of procedural fairness. The Appeal Panel is inclined to agree with the Minister's argument that the right at issue is the right to make arguments. In this case, both parties had the opportunity to make arguments in the same fashion. Furthermore, the Appellant was given ample time to provide these arguments to the Tribunal.

[138] While it is unfortunate that the Appellants did not have the opportunity to provide oral arguments as they would have preferred, the Appeal Panel cannot say that the entire Review Hearing was procedurally unfair as a result of this omission. As noted, both parties had an equal opportunity to provide arguments, and were provided ample time to do so. Since both parties had the opportunity to have their arguments fully considered by the Review Member, the Appeal Panel finds that no breach of procedural fairness occurred in this instance.

[139] However, if the Appeal Panel is wrong and this omission did result in a breach of procedural fairness, the Appeal Panel finds that this breach was cured on appeal. Indeed, the alleged error that occurred at the Review Hearing was minor and had no apparent prejudicial effect on the Appellants. Moreover, the Appellants were provided great latitude in terms of the arguments they were able to address on appeal, and were also provided the rare opportunity to present new evidence on appeal.

I.  Issue 9 - Did the Minister proceed against the wrong parties?

[140] The Appellants allege that the Minister proceeded against the wrong parties in this case, and should have instead proceeded against Colhoun Farm.

[141] This issue was also raised by the Appellants at the Review Hearing and dealt with by the Review Member in his Determination. The Appeal Panel believes that the Review Member addressed this issue reasonably, noting thatColhoun Farm is not a legal entity and finding that the Minister made no error in proceeding against the Appellants in this case.

[142] Moreover, while the Appellants have attempted to rely on an alleged aircraft lease between Colhoun Farm and Skynorth Aviation Ltd., the Appeal Panel accepts the Minister's argument that the lease was invalid because Colhoun Farm is not a legal entity. Moreover, the lease was signed on the date of expiration and was not registered with Transport Canada.

J.  Issue 10 – Were the penalties appropriate?

[143] The penalties issued against the Appellants in this instance are the maximum available penalties pursuant to Schedule II to Part I of the CARs. As such, any change in the penalties in this instance would be to lower the penalties as a result of mitigating factors. With this in mind, the Appeal Panel has determined that the carelessness on the part of the Minister in obtaining the Production Orders and the resulting evidence should be considered as a mitigating factor affecting the penalties in this instance.

[144] The Appeal Panel notes that the Minister holds the flying public to a high standard, requiring that those who fly aircraft adhere strictly to the CARs and other relevant legislation. In this instance, however, Transport Canada did not live up to a similarly high standard in conducting its investigatory and preparatory work.

[145] The Appellants' Representative contends that he was negatively impacted by the errors contained in the Production Orders and the Information to Obtain a Production Order. Indeed, the Appellants' Representative states that he has lost business as well as a good rapport with people in his community who now mistakenly believe that he is being investigated for serious criminal activity because of these errors.

[146]The Appeal Panel finds that the negative financial and personal impacts experienced by the Appellants as a result of these errors should be reflected in the penalties assigned to them. The Appeal Panel notes that two counts against each Appellant rely solely on the Hanmer Seeds evidence as proof of the contraventions. While the Appeal Panel acknowledges the validity of this evidence, it nonetheless finds that the penalty attached to these occurrences should be altered to reflect the negative repercussions already experienced by the Appellants as a result of obtaining this evidence. As such, the Appeal Panel finds that the charges against Farm Air and Lumsden Aero dated July 7 and 12, 2009 should be lowered to $50 per count.

[147] It is hoped that this lowered penalty will compensate to some degree for the negative impacts experienced by the Appellants because of the errors made in this instance. Furthermore, it is the Appeal Panel's hope that this reduction in penalty will encourage the Minister to take every precaution to avoid making similar errors in the future.

IX. DECISIONS

A. Farm Air Ltd.

[148] The Appeal is dismissed. The charges against Farm Air Ltd. are upheld. However, the $5 000 penalties levied against Farm Air Ltd. for Counts 1 and 2 are each reduced to $50, and the $5 000 penalties for Counts 3 and 4 are each maintained. As such, the total penalty owing is reduced from $20 000 to $10 100.

B. Lumsden Aero Ltd.

[149] The Appeal is dismissed. The charges against Lumsden Aero Ltd. are upheld. The $5 000 penalty for each count is upheld, except for Counts 2 and 3, the penalties for which are reduced to $50 per count. As such, the total penalty owing is reduced from $35 000 to $25 100.

September 17, 2013

Reasons for the Appeal Decision: J. Richard W. Hall, Chairperson

Concurred by: Suzanne Racine, Member

Arnold Olson, Member