Decisions

TATC File No. A-3895-33
MoT File No. 5504-74866

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

James Edward Sellars, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
subsections 202.13(2) and 602.77(1) of the Canadian Aviation Regulations, SOR/96 433, pursuant to section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A-2


Review Determination
Franco Pietracupa


Decision: May 16, 2013

Citation: Sellars v. Canada (Minister of Transport), 2013 TATCE 16 (Review)

Heard in Moncton, New Brunswick, on February 28, 2013

REVIEW DETERMINATION AND REASONS

Held: Count 1: The Minister has proven, on the balance of probabilities, that the Applicant, James Edward Sellars, contravened subsection 602.77(1) of the Canadian Aviation Regulations. As such, the monetary penalty of $250 is upheld.

Count 2 and Count 3: The Minister has proven, on the balance of probabilities, that the Applicant, James Edward Sellars, contravened subsection 202.13(2) of the Canadian Aviation Regulations. The monetary penalty of $1 000 for each count is upheld, for a total penalty of $2 000.

The total amount of $2 250 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] The Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty (Notice) to the Applicant, James Edward Sellars, on June 4, 2012, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act), with respect to alleged contraventions of subsections 202.13(2) and 602.77(1) of the Canadian Aviation Regulations, SOR/96‑433 (CARs).

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

1. On or about June 21, 2011, you, James Edward Sellars, failed to close a flight plan from Havelock, NB to Cable Head airport, PEI, thereby contravening subsection 602.77(1) of the Canadian Aviation Regulations (CARs).

Monetary Penalty Assessed: $250.00

2. On or about, June 21, 2011, at or near Havelock, NB to Cable Head airport, PEI, you operated an aircraft without registration in Canada, thereby contravening subsection 202.13(2) of the Canadian Aviation Regulations (CARs).

Monetary Penalty Assessed: $1000.00

3. On or about, July 16, 2011, at or near Havelock, NB to Cable Head airport, PEI, you operated an aircraft without registration in Canada, thereby contravening subsection 202.13(2) of the Canadian Aviation Regulations (CARs).

Monetary Penalty Assessed: $1000.00

Total Monetary Penalty Assessed: $2250.00

[3] A Request for Review was filed with the Transportation Appeal Tribunal of Canada (Tribunal) on June 22, 2012. A Review Hearing on the matter was held in Moncton, New Brunswick (NB), on February 28, 2013.

II. REGULATIONS

[4] Subsections 202.13(2) and  602.77(1) of the CARs read as follows:

Division II — Aircraft Registration

Registration of Aircraft — General

202.13(2) Except as otherwise authorized under subsection 202.14(1) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

[…]

Requirement to File an Arrival Report

602.77(1) Subject to subsections (3) and (4), a pilot-in-command of an aircraft who terminates a flight in respect of which a flight plan has been filed under subsection 602.75(1) shall ensure that an arrival report is filed with an air traffic control unit, a flight service station or a community aerodrome radio station as soon as practicable after landing but not later than

(a) the search and rescue action initiation time specified in the flight plan; or

(b) where no search and rescue action initiation time is specified in the flight plan, one hour after the last reported estimated time of arrival.

III. PRELIMINARY MOTION

[5] On February 27, 2013, Mr. Sellars submitted a motion in writing to the Tribunal in which a specific statement of fact was raised. Upon further questioning and clarification from the Tribunal Member, both parties agreed on the following: that Mr. Sellars was the Pilot‑In‑Command (PIC) of aircraft N666RS, a Bellanca 17‑30A, on June 21, 2011, and July 16, 2011. As well, the Minister provided clarifications and assurances to Mr. Sellars that the disclosure package sent to him by the Minister was necessary and required in order for the Applicant to mount a suitable defence.

IV. EVIDENCE

A. Minister

(1) John Navaux

[6] John Navaux is a retired Air Traffic Controller (ATC), a former Transport Canada Inspector, and is currently a Director and member of the Havelock Flying Club, NB. He testified that he is familiar with aircraft N666RS as it has been seen in Havelock for some time. He confirms having seen the aircraft attend various events at the airfield over the last two to three years, as well as having seen the aircraft hangared on numerous occasions.

[7] In further testimony, Mr. Navaux confirmed that Mr. Sellars is the owner of a hangar in Havelock.

[8] In cross‑examination, Mr. Navaux was asked if he could confirm that aircraft N666RS was permanently based in Havelock during the time period in question of two to three years. He responded that he could not confirm this fact.

(2) Christian Allain

[9] Christian Allain is a Civil Aviation Safety Inspector with Transport Canada based in Moncton, NB. He was assigned to conduct an investigation regarding the allegations levied against Mr. Sellars. He testified that a Canadian Aviation Daily Occurrence Report (CADOR) was generated on June 22, 2011 (Exhibit M‑2), following the failure to close a Visual Flight Rules (VFR) flight plan by the PIC of aircraft N666RS. The flight plan was filed by the aircraft on June 21, 2011, and indicated that it was to undertake a VFR flight from Havelock, NB to Cable Head Airpark, Prince Edward Island (PEI). After the aircraft had not arrived at its estimated time and a waiting period of 60 minutes had been observed as required by the aircraft's flight plan, a Communications Search (Comsearch) was initiated for the aircraft. The aircraft and pilot were eventually located by the Royal Canadian Mounted Police (RCMP) in Cable Head Airpark. The pilot then advised the RCMP that he had omitted to close the flight plan.

[10] Following the review of the CADOR, Mr. Allain testified that a request for the ATC flight audio recording was initiated. Furthermore, a letter dated December 12, 2011, in support of the investigation, was sent from him to Mr. Sellars (Exhibit M‑3) requesting the aircraft documentation, as well as photocopies of the journey logbook title page, certificate of registration, and any other pertinent documentation. Mr. Sellars was advised in this letter that the information requested was to be submitted on a voluntary basis and was not mandatory.

[11] Mr. Allain further testified that he requested the journey logbook pages relevant to the specific time period of August 27, 2008, to December 1, 2011. He confirmed that no documents were submitted by Mr. Sellars following this letter, nor at any time during the investigation.

[12] Mr. Allain also testified that Transport Canada sent a request for all pertinent information in regards to aircraft N666RS to the United States of America's (USA) Federal Aviation Administration (FAA). Among the documents Transport Canada received, was a letter dated April 23, 2010, sent by the FAA to Paladin Global Aviation Inc. (Paladin Global) in which the Agency issued a “Notice of Apparent Ineffectiveness of Certificate of Aircraft Registration for Civil Aircraft N666RS” (Exhibit M‑7).

[13] Mr. Allain went on to explain that the letter stated that based on section 47.9(f) of the USA Federal Aviation Regulations (FARs), the FAA informed Paladin Global that it was required to submit a six‑month report in which the aircraft's total accumulated hours flown within the USA were indicated. The letter stated that as this report has not yet been received, the Agency cannot determine if the aircraft is based and primarily used in the USA and, as such, the registration appeared to be ineffective under section 47.41(a)(8)(ii) of the FARs.

[14] A second document brought to the Tribunal's attention by Mr. Allain was the Aircraft Registration Application (Exhibit M‑7). Mr. Allain specifically testified to the section in which the name of the applicant for this certificate was, “Paladin Global Aviation Incorp.”, c/o Tom Witmer Aviation. In the second section further down on this form, Box (1) b. was ticked off indicating and certifying that that the owner/operator was a non-citizen corporation organized and doing business under the laws of the State of Delaware, USA; that the aircraft was based and primarily used in the USA; and that any records or flight hours would be available for inspection at “Witmer Aviation, Pottstown, Pa”. The Application was signed by “J. E. Sellars”, President, and dated September 2, 2008.

[15] Mr. Allain testified that he contacted Mr. Sellars by telephone on November 2, 2011. Questions regarding the ownership, utilization and base of operations for N666RS were raised by Mr. Allain. He stated that Mr. Sellars informed him that he was not the owner of aircraft N666RS; that the aircraft is owned by a leasing company called Paladin Global, based in Delaware and was unaware that the Certificate of Registration had expired. He assured Mr. Allain that he would inform the leasing company of this fact. Mr. Allain went on to say that he was told that numerous pilots flew N666RS and that the aircraft, to Mr. Sellars's knowledge, was at this time in Pottstown.

[16] Mr. Allain initiated a second telephone call to Mr. Sellars on November 22, 2011. Mr. Allain explained that he was unable to communicate with Paladin Global, but had touched base with Mr. Witmer. Mr. Sellars reiterated that he was leasing the aircraft during the summer from Paladin Global and that Mr. Witmer was responsible for the technical maintenance of the aircraft in the USA. Mr. Sellars was unable to provide any contact information in regards to Paladin Global. Mr. Allain informed Mr. Sellars that a witness had seen the aircraft in Havelock as of the week before and not in Pennsylvania as stated. Mr. Sellars replied that it had only returned to the USA a few days ago.

[17] Mr. Allain testified that Mr. Witmer informed him that he had only conducted a pre-buy inspection on N666RS a few years ago, and had not seen the aircraft since then, although he was still receiving correspondence for the aircraft on occasion.

[18] In cross‑examination, Mr. Allain was asked if situations arise in which pilots forget to close their respective flight plans. He responded that it occurs on occasion. As well, Mr. Allain was asked if he has ever worked for the FAA; he replied that he has not.

[19] Further discussion centred on the documents sent by the FAA to Mr. Allain. A question was raised as to the date of the Aircraft Re-Registration Application form sent in by Paladin Global and signed by “J. E. Sellars” (Exhibit M‑7). Mr. Allain confirmed that the date of the signature was August 31, 2011, thus prior to the expiry of the existing Certificate of Registration, which was stated as September 30, 2011 on the application.

[20] The issue of differences in the interpretation of terminology used by the FAA and Transport Canada was raised in cross‑examination. Mr. Allain responded that he has not worked for the FAA and as such was not an expert regarding any differences in the interpretation of terminology used by the FAA and Transport Canada.

[21] In redirect examination, Mr. Allain explained that Mr. Witmer had not seen the aircraft N666RS since the pre-buy inspection which, based on the invoice (Exhibit M‑8), would have been on August 26, 2008.

(3) Lloyd Taylor

[22] Lloyd Taylor is the Superintendent of Aviation Enforcement for Transport Canada in Moncton. Mr. Taylor testified that he met with Mr. Sellars in May 2012 at the request of the Applicant. Mr. Taylor was asked if at this meeting Mr. Sellars was able to produce any of the requested documents that would have helped in the investigation. He replied that he was informed by Mr. Sellars that the aircraft had since been sold and no documents were available.

[23] Mr. Taylor stated that the discussion during the meeting centred on several facts regarding the relationship between Mr. Sellars and Paladin Global. Mr. Sellars did clarify that he was the sole person named under this company. Mr. Sellars also mentioned that he had received no mail correspondence between Mr. Witmer and himself with regards to Paladin Global, and was unaware of any requirements on his part to keep the Certificate of Registration valid, until he had heard this from Mr. Taylor.

[24] Mr. Taylor went on to testify that several questions were raised to Mr. Sellars regarding the required paperwork needed to maintain the validity of the Certificate of Registration. He stated that Mr. Sellars's response again centred on the fact that he had received no correspondence from either Mr. Witmer or the FAA, and was unaware of any.

[25] In cross‑examination, Mr. Taylor was asked by the Applicant if it was possible that some correspondence may not have been received by him. Mr. Taylor replied that this could be possible.

B. Applicant

(1) James Edward Sellars

[26] Regarding the first count in the Notice, James Edward Sellars testified that he in fact omitted to close his flight plan on June 21, 2011, but that it was unintentional. He went on to explain that there may have been confusion as to whether Air Traffic Services would close his flight plan, as is done in controlled airports. Secondly, he stated that the owner of the airfield Cable Head Airpark met him on arrival and proceeded to provide him with a tour of the facilities. That delay, and based on the fact that his cellphone had been turned off, created the situation that triggered the Comsearch for N666RS, approximately 60 minutes after it had landed.

[27] In response to the second and third counts regarding the allegedly expired Certificate of Registration, Mr. Sellars explained that Tom Witmer's address of business was to act as his drop‑off mail centre for USA‑based correspondence in relation to N666RS. He was unaware that mail being received there was not being forwarded to his address in Moncton.

[28] He went on to explain that when he was informed by Mr. Taylor that his Certificate of Registration was set to expire on September 30, 2011, he sent an Aircraft Re-Registration Application to the FAA on August 31, 2011. Mr. Sellars testified that he was informed by the FAA by way of letter on October 26, 2011, that since the Re‑Registration Application had only been received by the FAA in October, after the expiry of the Certificate of Registration, he would now be obligated to re-apply under the Aircraft Registration Application form.

[29] Mr. Sellars also testified that he was given assurances via telephone from the FAA office in Oklahoma City, Oklahoma, USA, that his Certificate of Registration remained valid pending further information sent on his behalf. He mentioned that on the Aircraft Registration Application form signed by him on September 2, 2008 (Exhibit M‑7), a note clearly specifies that pending receipt of the aircraft's Certificate of Registration, the aircraft may be operated for a period not in excess of 90 days.

[30] Mr. Sellars further specified that the aircraft operates in the USA during the winter and only operates in Canada during the summer months. He also went on to clarify that the aircraft has been in Canada over the winter due to weather and would make its way back to the USA in the early spring. He confirmed that the aircraft has yet to be sold.

[31] In cross‑examination, Mr. Sellars admitted to being the PIC of N666RS, and to not closing his flight plan on arrival in Cable Head.

[32] The Minister asked Mr. Sellars if he had any documentation on him with respect to N666RS's journey logbook so as to verify how many hours the aircraft flies in Canada versus the USA; the response was “no”. Mr. Sellars went on to say that flight legs flown by the aircraft in the USA were flown by USA pilots. This was completed in a non-monetary fashion as the aircraft was simply lent to the pilots. He also confirmed that he does not have an FAA pilot licence.

[33] Mr. Sellars was asked if he received any correspondence from Mr. Witmer during the period of August/September 2008 to May 2011. He stated that none was sent to him even though he had spoken to Mr. Witmer on numerous occasions during this period. Mr. Sellars clarified that he was only made aware of the requirements of submitting six‑month flight activity reports to the FAA by Mr. Taylor in November 2011. Once made aware of this obligation, Mr. Sellars explained that he proceeded to contact the FAA in order to receive all mail correspondence at his address in Canada.

[34] The location of the aircraft over the past two to three years was also raised by the Minister. Some confusion as to its location during the winter was highlighted. Mr. Sellars confirmed that for the 2012-2013 winter season the aircraft remained in Canada and would not meet the FAA criteria that was issued under the Certificate of Registration for non-citizens of the USA. Mr. Sellars also confirmed that the signature on the initial Aircraft Registration Application for N666RS, dated September 2, 2008, was his. He also confirmed that he had understood the requirements under the FARs for the need to have the aircraft fly 60 per cent of its hours primarily in the USA.

V. ARGUMENTS

A. Minister

[35] Concerning the first count, the Minister argues that the PIC for N666RS, Mr. Sellars, acknowledged that he did not close the flight plan within one hour after landing (as indicated in the plan) as required by subsection 602.77(1) of the CARs. The Minister argues that testimony from the Applicant, as well as his lack of grasp of the seriousness of this oversight, must be taken in consideration. Responsibility rests with the PIC and not with any other Flight Support Services.

[36] As to the second and third counts, the Minister argues that the requirements to maintain the validity of the Certificate of Registration hinged on the need for the aircraft to be based primarily in the USA; this provision was never met. Although he had a voluntary option to provide documentation to Transport Canada in order to clarify this required condition, the Applicant did not provide any. Furthermore, the requirement to provide a six‑month activity report to the FAA, as stated in section 47.9 of the FARs, was never met until such time as Mr. Sellars was finally made aware of this by Transport Canada during the course of the investigation.

[37] As well, issues regarding the ownership and location of the aircraft during the period of September 2008 to May 2011 remain unclear. The Minister maintains that Mr. Sellars' testimony was conflicting as to the owner and operator of N666RS. Mr. Sellars' responses to questioning early on in his testimony led the Minister to believe that Mr. Sellars would need to contact Paladin Global in order to respond to certain allegations; yet further in testimony, Mr. Sellars testified that this USA company is in fact identified under one person: himself. This fact, along with the lack of documentary support, did not help matters. The Minister argues that he has proven, on the balance of probabilities, that N666RS does not appear to have flown frequently in the USA, and since no six‑month reports were ever submitted, the Certificate of Registration was rendered invalid. Finally, the Minister argues that the fines levied are based on Transport Canada's first level guidelines, and have been applied properly.

B. Applicant

[38] Concerning the first count, the Applicant admits that he testified that he did not close his flight plan as required by the CARs. He argues that when flying into controlled airports, this service is offered and provided to him by Flight Support Services. He argues that this is a frequent occurrence within the industry, and that this was simply an oversight on his part. He agrees with the Minister as to the seriousness of this oversight, and did apologize for this mishap.

[39] Mr. Sellars goes on to explain that the second and third counts are without merit. The expiration date of the Certificate of Registration is September 30, 2011, which was valid on the dates that the two charges are alleged to have taken place (June 21, 2011 and July 16, 2011). He also argues that in telephone discussions with the FAA, he was never told the certificate was invalid. The need to submit a six‑month activity report was understood by him after having been brought to his attention and he has adhered to this since. Again, from his discussion with the FAA, he agrees that this additional information report was omitted though required; however, in his opinion, this did not render the Certificate of Registration invalid. Mr. Sellars argues that in accordance with this certificate a 90‑day window after expiry is also available, thus making the certificate valid until November or December 2011.

[40] The Applicant argues that all necessary steps had been taken with Mr. Witmer as to having documentations forwarded to him, but although some mail was sent, no FAA documents were ever forwarded to his attention until this issue with Transport Canada came to light.

C. Minister's Reply

[41] The Minister submits that the responsibility for closing a VFR flight plan rests solely with the PIC. As to the date of validity on the aircraft's Certificate of Registration, the Minister reiterated that a separate requirement in the FARs must be met in order for this date to remain valid. When this requirement is not met, it renders such a certificate invalid. Its use and effectiveness depends on the other criteria and requirements being met.

VI.  ANALYSIS

A.   Count 1: Subsection 602.77(1) of the CARs

[42] The Tribunal Member must decide whether the Minister has proven, on the balance of probabilities, that Mr. Sellars contravened subsection 602.77(1) of the CARs, which, as indicated above, specifies as follows:

602.77(1) Subject to subsections (3) and (4), a pilot-in-command of an aircraft who terminates a flight in respect of which a flight plan has been filed under subsection 602.75(1) shall ensure that an arrival report is filed with an air traffic control unit, a flight service station or a community aerodrome radio station as soon as practicable after landing but not later than

(a) the search and rescue action initiation time specified in the flight plan; or

(b) where no search and rescue action initiation time is specified in the flight plan, one hour after the last reported estimated time of arrival.

[43] Since monetary penalties assessed under section 7.7 of the Act are for strict liability offences, the Minister only has to demonstrate that the contravention has occurred. There is no real dispute by Mr. Sellars that he filed a VFR flight plan on June 21, 2011, from Havelock, NB to Cable Head, PEI, as he agreed to this in viva voce testimony. Mr. Sellars also admitted under oath that he omitted to close his flight plan on arrival. Although the Applicant argued that this service is normally offered to him at controlled airports and that this may have played a part in his omission to call the Flight Service Centre to close the flight plan, the facts presented by the Minister and the testimony given by both Mr. Allain and Mr. Sellars himself, clearly indicate to the Tribunal Member that the Minister has proven this allegation on the balance of probabilities.

B.   Counts 2 and 3: Subsection 202.13(2) of the CARs

[44] In my view, the Minister has proven, on the balance of probabilities, that Mr. Sellars contravened subsection 202.13(2) of the CARs on June 21, 2011, and on July 16, 2011.

[45] In his testimony, Mr. Sellars explained that from the time of his purchase of the Bellanca 17‑30A, until he was advised by Transport Canada during the investigation of the alleged offences in November 2011, all pertinent mail information regarding this aircraft was to be sent to him from a USA location by Mr. Witmer. Since little correspondence was forwarded to his attention and, based on his testimony, no FAA mail or letters, he was unaware that any issues regarding eligibility existed with his FAA Certificate of Registration.

[46] He testified that when he contacted the FAA office in Oklahoma City, he was told that the certificate was still valid until its expiry date of September 30, 2011. Based on this information, the Applicant assumed the certificate was in order and proceeded to inform the FAA to now direct his correspondence to his Canadian mailing address; and furthermore, advised the FAA that he would now be sending the activity reports as required under section 47.9 of the FARs.

[47] With that said, it is my view that the Applicant did not meet the accompanying requirements to maintain the validity of his Certificate of Registration during the period in which it was issued, that is from May 14, 2009, to September 30, 2011. Two critical pre‑conditions in the continuing eligibility of the aircraft's certificate were not complied with, and no evidence provided to that effect was presented to the Tribunal to indicate the contrary. These conditions are the ones that the FAA indicated had not been met: that the aircraft be used primarily in the USA; and that the Applicant provide six-month reports.

(1) Aircraft Registration Application (Exhibit M‑7)

[48] Mr. Sellars confirmed that he is the sole person registered or operating under Paladin Global. He also confirmed that the signature in the Aircraft Registration Application form is his. Section 2 of this form is clearly ticked off and states: “A non-citizen corporation organized and doing business under the laws of (state) Delaware and said aircraft is based and primarily used in the United States”. Testimony from Mr. Sellars confirmed that this was not the case, specifically during the period of August 2011to the date of the Hearing. Mr. Sellars has the right not to provide any evidence in regards to the aircraft's base of operations and/or hours flown, but, in relying on what was presented in evidence and on what was heard through testimony, the Tribunal Member has no other choice but to agree that this condition was not met. The Minister's documentary evidence indicates several time periods, from the Aircraft Registration Application, dated September 2, 2008, until the Aircraft Re-Registration Application sent by Mr. Sellars on August 31, 2011, during which time the exact location of the aircraft could not be confirmed. Mr. Sellars collaborated some of these facts in testifying as to the uncertain location of the aircraft during this timeframe.

(2) Notice of Apparent Ineffectiveness of Certificate of Aircraft Registration for Civil Aircraft N666RS (Exhibit M‑7)

[49] It is the Tribunal Member's view that this correspondence, submitted into evidence by the Minister, between the FAA and Paladin Global, demonstrates the non-compliance of Mr. Sellars in properly maintaining a valid registration for N666RS. Dated April 23, 2010, it informs Paladin Global (Mr. Sellars) that the continued eligibility of the certificate, issued and based on section 47.9 of the FARs, is to be predicated under the obligation that Paladin Global submit to the FAA Aircraft Registry office, a six‑month report which shows the accumulated total hours flown by the aircraft within the USA during that period. In determining compliance with this section of the FARs, the operator/owner must submit these reports every six months during the period of validity of the Certificate, which in this case would be until September 30, 2011. I would add as well, that this requirement is clearly indicated under section 47.9 of the FARs. The letter goes on to state that the FAA has not received any report to date and, as such, the FAA is unable to determine that the aircraft is based and primarily used in the USA. Accordingly, the registration appears to be ineffective under this section.

[50] The Applicant's explanation is centred on the fact that he had relied on Mr. Witmer's services in forwarding any correspondence regarding N666RS to his attention. Mr. Allain testified that in his investigation he did call Mr. Witmer. Mr. Witmer confirms that he conducted a pre-buy inspection on the aircraft in late August 2008, then did not see the aircraft again, although he may have received some mail on occasion for N666RS. Other than testimony from Mr. Sellars in regards to this agreement with Mr. Witmer, no other documentary evidence was submitted to the Tribunal on this point. Telephone communications with the FAA offices in the USA were also discussed, but with little collaborative evidence.

[51] With that said, I believe that Mr. Sellars has a duty to comply with all required pre‑conditions laid forth in the issuance and maintenance of the eligibility of the Certificate of Registration as agreed to by him when he applied for this registration. In my view, Mr. Sellars is synonymous with Paladin Global, acting as President and testifying to his status as President as well. The Tribunal has evidence to the fact that Mr. Sellars, in signature and under the title of President of Paladin Global, purchased N666RS on August 27, 2008, applied for an aircraft registration for N666RS on September 2, 2008, and applied for a re-registration for N666RS on August 31, 2011. In my view, to simply state that a third party had the responsibility to forward any required correspondence and mail to him is neither acceptable nor prudent. Add to this the fact that no written or oral evidence about this agreement was submitted to the Tribunal during this Review Hearing. Ultimately, the responsibility rested with the owner/operator of N666RS to adhere to the conditions set forth in the Certificate of Registration when he applied for and received issuance of it. In not maintaining the required reporting agreement in order to keep this certificate valid, it is my view that it became ineffective when Mr. Sellars did not send the required reporting forms to the FAA, thus contravening subsection 202.13(2) of the CARs.

VII. DETERMINATION

[52] Count 1: The Minister has proven, on the balance of probabilities, that the Applicant, James Edward Sellars, contravened subsection 602.77(1) of the Canadian Aviation Regulations. As such, the monetary penalty of $250 is upheld.

[53] Count 2 and Count 3: The Minister has proven, on the balance of probabilities, that the Applicant, James Edward Sellars, contravened subsection 202.13(2) of the Canadian Aviation Regulations. The monetary penalty of $1 000 for each count is upheld, for a total penalty of $2000.

May 16, 2013

Franco Pietracupa

Member


Appeal decision
Richard F. Willems, Suzanne Racine, Elizabeth MacNab


Decision: April 14, 2014

Citation: Sellars v. Canada (Minister of Transport), 2014 TATCE 15 (Appeal)

Heard in Moncton, New Brunswick, on November 26, 2013

APPEAL DECISION AND REASONS

Held:  The appeal is allowed and the monetary penalty of $2,000 assessed by the Minister is cancelled.

I. BACKGROUND

[1] The Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty, under section 7.7 of the Aeronautics Act, to Mr. James Edward Sellars on June 4, 2012. This notice alleged three separate contraventions of the Canadian Aviation Regulations (CARs). The first count alleged that he failed to close a flight plan, as required by subsection 602.77(1), for which he was assessed a penalty of $250. The second and third counts alleged that on June 21, 2011 and on July 16, 2011, he had operated an aircraft in Canada without the registration required by subsection 202.13(2), for which he was assessed a penalty of $1,000 for each flight. Mr. Sellars requested a review by the Transportation Appeal Tribunal of Canada (Tribunal) on June 22, 2012 and a review hearing was held at Moncton, New Brunswick, on February 28, 2013. In his determination, dated May 16, 2013, the Tribunal member found that the Minister had proven all three contraventions on a balance of probabilities. While Mr. Sellars accepted the determination with respect to the first count, he appealed it with regard to the second and third counts, on June 19, 2013.

II. REVIEW DETERMINATION

[2] The member hearing the review determined that Mr. Sellars was the sole person registered or operating under Paladin Global Aviation Inc., a non-citizen U.S. corporation, and was the holder of the registration for the aircraft. He found that Mr. Sellars had a duty to comply with the conditions of the issuance and maintenance of the United States' Federal Aviation Administration (FAA) Certificate of Aircraft Registration (FAA Certificate), as established by the FAA and the Federal Aviation Regulations (FARs). He found that the “Notice of Apparent Ineffectiveness of Certificate of Aircraft Registration for Civil Aircraft N666RS” (FAA Notice), dated April 23, 2010, demonstrated that Mr. Sellars was not in compliance with the requirement for the continued effectiveness of the FAA Certificate because he had not filed the report required by section 47.9 of the FARs, showing the accumulated total hours flown by the aircraft within the United States during each six-month period. Because of this failure, the member found that the FAA registration was ineffective and consequently there was no valid registration for the aircraft when it was flown in Canada on the dates set out in the Notice of Assessment of Monetary Penalty.

III. GROUNDS FOR APPEAL

[3] The basis for the appeal, set out in his request of June 17, 2013, is that at the time of the contraventions, Mr. Sellars had a valid registration in the United States and consequently met the requirements of subsection 202.13(2) of the CARs.

IV. ARGUMENTS

A. Appellant

[4] The Appellant submitted that at all times during the flights, he had a valid FAA Certificate issued by the FAA and thus was in compliance with the requirements of subsection 202.13(2) of the CARs. In support, he referred to his evidence that he had spoken to an official of the FAA concerning the status of his FAA Certificate, after he became aware of the necessity to file reports every six months. He was assured that a failure to do so did not affect the certificate's validity.

[5] He also referred to the letter from the FAA counsel dated April 23, 2010 (part of Exhibit M-7), that stated that his FAA Certificate appeared to be ineffective since he had not filed the six-month report required by FAR 47.9(f). He suggested that this was a computer-generated document and that it did not result in a fine or a fee but could be cured simply by filing the required document, which he did immediately upon becoming aware of the requirement. He submitted that since his FAA Certificate was renewed in accordance with the requirements of the FARs, the FAA must have been satisfied that his existing FAA Certificate was in force.

[6] Finally, the Appellant expressed his concerns that the whole matter had not been settled in an expeditious, efficient and cordial manner, and that it was reasonable for him to rely on the FAA Certificate that he had at all times.

[7] The appeal panel notes that the Minister's representative objected to a number of statements made by the Appellant on the basis that they introduced new evidence that was not put forward at the review hearing. Specifically, she was concerned about statements made by the Appellant concerning the filing of the required reports under FAR 47.9(f). She acknowledged, however, that these statements did not appear to have any relevance to the case.

B. Minister

[8] The Minister's representative submitted that the standard of review for the appeal panel has been established by the Federal Court in Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, (Billings), where it was held that the panel owed considerable deference to the Review Member's findings of fact or credibility but that it was entitled to take its own view of the law. In its recent decision in Butterfield v. Canada (Minister of Transport), 2013TATCE 22 (Appeal), file no. P-3433-33 (Butterfield), dated August 14, 2013, the appeal panel held that if the finding of fact or credibility fell within the range of reasonable outcomes based on the evidence before the Review Member, an appeal panel should not interfere with that determination.

[9] The Minister's representative outlined the evidence presented at the review hearing. She pointed to the evidence of a Transport Canada investigator that he had been informed by Mr. Tom Witmer, who appeared as the owner of the aircraft on the FAA website, that the aircraft had been sold to Mr. Sellars in 2008, but that he continued to receive communications from the FAA concerning it. In a conversation in November 2011, Mr. Sellars told the investigator that the aircraft was owned by a Delaware corporation, Paladin Global Aviation Inc., and that Mr. Witmer did all the mechanical work on the aircraft. He also stated that he was not aware that the FAA registration of the aircraft had expired. In subsequent conversations and meetings with Transport Canada officials, it emerged that Mr. Sellars was the owner of the corporation; that a Mr. Jim Whitty, whom at first he denied knowing, in fact had custody of the aircraft at certain times of the year; that the aircraft had left Canada in October or November, 2011; that the aircraft had been sold and later that it was being sold; that no FAA communications had been forwarded to him; that he was not aware of any FAA regulations relating to the continuing registration of the aircraft; and that he had not been filing the required reports every six months. Mr. Sellars also testified that he was the pilot of the aircraft at the times of the alleged contraventions and that the aircraft had not flown 60 per cent of the time in the United States. Throughout, Mr. Sellars' statements had been inconsistent and he had not provided any documents or logs relating to the aircraft, in spite of requests to do so by Transport Canada.

[10] The Minister's representative also referred to the contents of Exhibit M-7, certified true copies of documents provided by the FAA from its file relating to the registration of the aircraft. These included the FAA Notice to Paladin Global Aviation Inc., c/o Tom Witmer Aviation, dated April 23, 2010, stating that the corporation had failed to file the six-month report, required by section 47.9(f) of the FARs, that would indicate compliance with the requirement in section 47.9(b) that the aircraft be flown primarily in the United States. Consequently, the registration appeared to be ineffective under section 47.41(a)(8)(ii). The Minister's representative explained that this latter reference was an error and that the correct reference is to section 47.41(a)(6)(ii) of the FARs.

[11] The Minister's representative referred to the findings of the Review Member in paragraphs [45] to [49] of his determination. She pointed out that he had found that Mr. Sellars was not aware of the FAA's regulatory requirements for maintaining the FAA Certificate; that he had failed to meet the requirements that the aircraft be operated primarily in the United States; and that a report be filed every six months concerning its movements. The Review Member found that the FAA Certificate was ineffective under section 47.9 of the FARs since the regulatory requirement to file the reports had not been met. The Minister's representative submitted that these findings were reasonable.

[12] The Minister's representative submitted that on the basis of the above, it had been shown that the Appellant was in contravention of subsection 202.13(2) of the CARs, since the aircraft was not registered in Canada and its registration in a contracting state was ineffective. She pointed out that the registration of aircraft is an important factor in maintaining aviation safety and that an aircraft owner in Mr. Sellars' position does not receive Airworthiness Directives or other safety information from Transport Canada.

[13] She said that the Appellant had offered no evidence that disproved the Minister's case and that his excuse that he had not received the information from the FAA was the result of an arrangement that he himself had made. This, together with his inconsistent statements, should be taken into account in assessing his credibility and commitment to ensuring compliance with aviation safety requirements. She submitted that without proof to the contrary, an aircraft with an ineffective registration and that is no longer eligible for such registration, cannot be considered to be in compliance with subsection 202.13(2) of the CARs. On this basis, she invited the appeal panel to uphold the Review Member's finding of fact that the FAA Certificate for aircraft N666RS was ineffective, and that Mr. Sellars was in breach of subsection 202.13(2).

[14] The Minister's representative addressed the submissions made by the Appellant. She referred to his statement that he had filed two “ancillary” documents and, on the assumption that these referred to the six-month reports, she pointed out that there had been no evidence concerning them at the review hearing. In any event, they would be irrelevant since they could only have been filed after the date of the infraction. Although the Appellant submitted that the letter in Exhibit M-7, dated April 23, 2010, suggested that the FAA Certificate appeared to be ineffective, it is clear that the phrasing was used to allow the holder to provide some explanation concerning the failure to provide the required reports. If there is no explanation, it is obvious that the requirements of the FARs were not met and the registration is not valid. The Appellant did not present any evidence to counter the Review Member's application of the law, as supported by the Minister's witnesses and the documentary evidence.

[15] The appeal panel pointed out that it was not until the letter dated November 2, 2011, that the FAA stated it had been determined that the FAA Certificate had expired on September 30, 2011. It asked the Minister's representative if it was possible that the FAA Notice is a request for further information but that it does not invalidate the registration. In response, she replied that while the registration might continue to exist, it was ineffective. She suggested that the FAA used words such as “valid”, “effective”, “expired” and their opposites interchangeably, both in their website and their regulations, so that it may be confusing to someone who does not operate under those regulations. She pointed to section 47.41(a) of the FARs which states that the registration is effective until certain specified events have occurred, including the failure to file the required six-month report. The necessary conclusion from this provision is that failure to comply renders the registration ineffective even if it continues to exist.

[16] The appeal panel asked if it was being asked to take official notice of the FAA regulations since the FARs had not been entered in evidence, although some had been provided at the review hearing as guidance material. There is no evidence concerning the procedures of the FAA in relation to the FAA Notice; whether it is a notice that the registration is ineffective or might be ineffective, or if there are further steps the FAA might take to confirm it is ineffective. In response, the Minister's representative stated it was the Minister's position that, once it was established that the aircraft was not registered in Canada, the onus should be on an Applicant to prove it was registered in another country. She asked that the appeal panel take official notice of the FARs, which are very clear on the matter. She could not speak to any other FAA procedures that apply in the matter but maintained that the regulations were clear and that the Appellant did not comply with them. Finally, she pointed out that if the onus was on the Minister to prove the policies in place in contracting states, and to provide and possibly translate documents that would show registration in another country, it would be virtually impossible for the Minister to apply and enforce subsection 202.13(2) of the CARs.

C. Appellant in Reply

[17] The Appellant again referred to his conversation with an FAA official who said that his FAA Certificate had never been invalid or revoked. Mr. Sellars pointed out that he had provided a copy of the registration at the review hearing. He answered the Minister's allegation that he had been dishonest, inconsistent and not forthcoming, by saying that he was simply exercising his right not to incriminate himself and that he had been told by Transport Canada officials that his participation was voluntary.

[18] The Appellant suggested that the Minister's representative's statement that it would be impossible for the state to conduct an investigation if it were not able to interpret how the rules of a foreign state are operated, is unfairly pitting the state against the individual. He asserts that the Transport Canada officials involved in this matter had, in fact, no training in the interpretation or application of the FARs, and that he is therefore disadvantaged by any resulting misinterpretation and misapplication of the regulations by the department. He suggests it is a “slippery slope” to say the contrary ‑ that it is the state that is somehow disadvantaged against an individual trying to defend himself under such circumstances. He suggested that the documents issued by the FAA, and their interpretation and application of the rules, should prevail.

[19] The Appellant referred to the FAA Notice. He repeated that he had not been aware of the requirement to file a report every six months, since communications from the FAA had not been forwarded to him. He repeated, however, that he had dealt with the matter as soon as he became aware of the requirement and that he had been told in a telephone conversation that his FAA Certificate was valid. He stressed that the notice suggested “apparent ineffectiveness”, and suggested that the FAA had adopted a more flexible approach than Transport Canada in accepting a letter or a telephone call as providing an acceptable explanation (as provided for in the FAA Notice).

V. ANALYSIS

[20] The basis for an appeal hearing is set out in section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act) as follows:

An appeal shall be on the merits based on the record of the proceedings before the member from whose determination the appeal is taken, but the appeal panel shall allow oral argument and, if it considers it necessary for the purposes of the appeal, shall hear evidence not previously available.

Essentially, this means that the appeal panel must reach its decision on the basis of the evidence that was before the Review Member at the initial hearing, and that generally no additional evidence will be considered. The appeal panel notes that, throughout the submissions of the parties, statements were made that were not supported by the evidence presented at the review hearing. Consequently, these statements will not be considered in reaching our conclusions.

[21] Subsection 202.13(2) of the CARs provides:

Division II — Aircraft Registration

Registration of Aircraft — General

202.13(2) Except as otherwise authorized under subsection 202.14(1) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

[22] The Minister's submission that the Appellant contravened this subsection is based on the contention that the registration granted in respect of the aircraft N666RS by the FAA was ineffective at the time of the flights. In effect, the aircraft was not registered “in a contracting state”, as required by subsection 202.13(2) of the CARs. The Minister reached this conclusion on the basis of a certified true copy of the FAA Notice dated April 23, 2010, issued from the Office of Aeronautical Center Counsel (part of Exhibit M-7). This document states that the aircraft owner has failed to file the six-month report concerning the aircraft usage that is required by section 47.9(f) of the FARs. It could therefore not be determined that the aircraft was based and primarily used in the United States, as required by section 47.9(b), with the consequence that the registration appears to be ineffective under 47.41(a)(8)(ii) of those regulations. The FAA Notice concludes with an invitation to provide any information that would tend to show that the registration is still effective. The Appellant submitted that he had spoken by telephone with an FAA official as soon as he became aware of the notice and that he had been told that that the FAA Certificate had never expired, or that it was completely void or invalid. While he expanded his account of the conversation in his submission on appeal, these comments do not constitute evidence and cannot be considered.

[23] Put simply, the appeal panel is asked to find that Mr. Sellars has operated his aircraft in contravention of a Canadian law on the basis of the Canadian finding that he is in breach of a FAA regulation as interpreted by Canadian officials. This matter raises a number of questions that require consideration by the Tribunal, the most important being the extent to which official notice may be taken of foreign legislation, the evidentiary status of such legislation, and whether the Tribunal can determine that there has been a breach of the foreign law and, if so, what is the standard of review for such a determination.

A. Official Notice of Foreign Legislation

[24] Section 16 of the TATC Act provides that the members of the Tribunal have the powers of a commissioner under Part 1 of the Inquiries Act. These powers include the ability to take official notice, which is the same as judicial notice taken in the courts, where it is appropriate to do so. Official notice is always taken of the laws of Canada but it has been consistently held that foreign laws must be proven as facts in evidence. Sayer v. Canada (Minister of Citizenship and Immigration), 2011 FC 144, Heneghan J. of the Federal Court held:

In the first place, I observe that general foreign law must be proven, that is with evidence. A reviewing court cannot simply take judicial notice of foreign law.

[25] The ability of an administrative tribunal to take official notice of foreign laws was discussed by the Immigration and Refugee Board in Vaganova v. Canada (Citizenship and Immigration), [2008] I.A.D.D. No. 2952. In that matter the Board stated:

It is established law that Canadian courts will not take judicial notice of foreign law unless authorized by statute.  Foreign law is treated as a fact and must be proven.  This requires that production of an official copy of the statute(s) in question.  But if the content and implications of the statute cannot be determined by reference to the words of the statute itself, expert evidence is required.  No knowledge of foreign law can be imputed to a decision maker.  It may be oral evidence, occasionally evidence by affidavit, or by requesting such information by means of sending a reference to an appropriate legal body in the jurisdiction in question.

[26] The appeal panel finds, therefore, that it cannot take into account provisions of the FARs that were not produced in evidence at the review hearing.

[27] The appeal panel notes that the Minister's representative submitted that official notice should be taken of foreign laws, otherwise it would be impossible to apply and enforce subsection 202.13(2) of the CARs. We cannot accept this submission. Essentially, she is arguing that the Minister should be able to interpret a foreign law without any evidence or consideration of its meaning or application in the jurisdiction where it has been established, with the possible result that Canadian determination would conflict with that of the foreign state.

[28] An example of where the Tribunal has considered evidence of foreign lawsis Virdi v. Minister of Transport, TATC file no. O-3194-02 (Review) (Virdi). This matter involved a suspension based on a Canadian's failure to comply with a foreign law as required by subsection 4(2) of the Aeronautics Act. The allegation was that Mr. Virdi had failed to comply with section 91.139 of the FARs when entering Air Defense Identification Zone (ADIZ) airspace without complying with the applicable Notices to Airmen (NOTAM). At the review hearing, both the FARs and the NOTAM were entered as exhibits in evidence given by an inspector from the FAA, and these were considered evidence of their contents. Further, officials from the United States gave evidence that confirmed there had been non-compliance with the FARs and the NOTAM by Mr. Virdi's aircraft. On the basis of this evidence, the Review Member found that there had been a contravention of subsection 4(2) and confirmed the suspension.

B. Foreign Laws as Evidence

[29] At the review hearing, the Minister's representative provided copies of sections 91.203 and 47.9 of the FARs for information purposes. Section 91.203(a)(2) sets out the requirement to have “an effective U.S. registration certificate issued to its owner” in order to operate a civil aircraft. Section 47.9(f) is the provision that sets out the requirement to file the report every six months. The section, however, does not establish a sanction for the failure to do so. No attempt was made to enter these copies as evidence, presumably on the basis that they were subject to official notice. There was, however, oral evidence given by a Transport Canada official of the contents of section 47.9(f) while discussing the FAA Notice of April 23, 2010 set out in Exhibit M-7. The member hearing the review determined that Mr. Sellars was not in compliance with the requirements of the FARs in paragraph [49] of his determination, but he seems to have based this conclusion largely on the allegations set out in the notice and made only a glancing reference to the actual section 47.9. The appeal panel finds that it is likely that the member would have reached the same conclusion on the basis of the oral evidence given at the review hearing, and the copies of the actual FARs had little or no influence.

[30] The appeal panel notes that while the FAA Notice refers to section 47.41(a)(8)(ii) as establishing ineffectiveness for failure to provide the report, not even a copy of this provision was provided for guidance, nor was it mentioned in submissions at the review hearing.

[31] At the appeal hearing, the Minister's representative pointed out that there was an error in the FAA Notice dated April 23, 2010, in that, while it stated that the certificate appeared to be ineffective under section 47.41(a)(8)(ii), there was no such provision and the correct reference would be to section 47.41(a)(6)(ii). She suggested that the Tribunal should take official notice of the provisions of the FARs. As pointed out above, however, foreign law must be proven as a fact in evidence. This provision was not proven or even mentioned at the review hearing and therefore cannot be taken into account.

[32] The Minister's representative also submitted that the FARs should be interpreted so that the words “valid” and “invalid” are used interchangeably with “effective” and “ineffective”, but provided no evidence in support. This is, in fact, an interpretation of foreign law that would require evidence from an expert in that law in order for it to be considered. The appeal panel notes, however, that the FAA seems to have considered the registration to be valid on August 31, 2011 (Exhibit A-2), a date well after that of the FAA Notice.

C. Hearsay Evidence

[33] Subsection 15(1) of the TATC Act provides that the Tribunal is not bound by any legal or technical rules of evidence. Since the establishment of the Tribunal's predecessor, the Civil Aviation Tribunal, in 1986, it has generally been the practice to allow the introduction of hearsay evidence. The concern has not been whether to accept the hearsay but rather to determine the weight that should be given to it. In Sierra Fox Inc. v. Canada (Minister of Transport), 2007 FC 129,the appeal panel reviewed the earlier decisions relating to hearsay evidence and came to the following conclusions:

  • Hearsay evidence is admissible
  • The basic criterion for its admissibility is relevance
  • Not all relevant evidence is of equal probative value, and
  • Uncorroborated hearsay evidence should not be relied upon, as it is insufficient evidence upon which to base a contravention

[34] The appeal panel believes that the bulk of the evidence, on which the decision that the FAA Certificate was ineffective is based, is hearsay. While the FAA Notice dated April 23, 2010 was certified to be a true copy of the document kept in the file, that certification is at best a statement of its existence and not proof of the truth of its contents. There was no evidence given as to the basis on which it was prepared, its legal effect, or what further action, if any, would be taken concerning the aircraft's registration. In fact, when asked, the Transport Canada official stated that he had no particular knowledge of how the FAA used language. The panel notes, however, that there is corroboration that the reports were not filed, since Mr. Sellars testified to that effect.

[35] Equally, Mr. Sellars' testimony that he was told by the FAA that his certificate was valid, is hearsay. There is some corroboration in that he entered into evidence a copy of the FAA Registry page concerning the aircraft, dated August 31, 2011, that showed its registration status as “valid” (Exhibit A-2). Consequently, the Tribunal finds that while there is corroborating evidence of the allegation in the FAA Notice, the holder of the FAA Certificate did not file the required reports, and that there is no corroborating evidence that the failure to do so would result in the FAA Certificate becoming ineffective or invalid.

[36] As for the Appellant's credibility issue brought up by the Minister, the appeal panel believes that this issue was best left to the Review Member's appreciation. The panel notes, however, that Mr. Sellars merits some of the criticisms leveled against him by the Respondent. While he expressed concerns that matters were not settled in an efficient, flexible and cordial manner, his behaviour was none of these things. While he was certainly entitled to refuse to provide the documentation that was requested, his refusal to do so was accompanied by inconsistent and sometimes misleading statements. Although he may have had a good reason to register his aircraft in the United States, once he had done so he displayed little interest in the obligations that such registration entailed and failed to take steps to ensure that he was aware of such obligations.

D. Burden of Proof

[37] The Minister's representative suggested that once the Minister had shown that an aircraft was not registered in Canada, the burden shifted to the Applicant to show that it had a valid registration in a “contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada”. She based this statement on the difficulty the Minister would face in translating and establishing foreign law. She did not explain, however, how a shift in the burden of proof would be justified under subsection 7.91(4) of the Aeronautics Act, which provides that “the burden of establishing that a person has contravened a designated provision is on the Minister”, nor did she provide any precedent that would support shifting the burden of proof. The words of subsection 202.13(2) of the CARs quoted further above authorize the operation in Canada of aircraft that are registered in certain foreign states. If the Minister wishes to dispute such a registration, she has the burden of proving that it does not exist. The mere fact that there may be difficulties in providing proof of non-compliance with the foreign law does not justify shifting the burden of proof to a person who has been accused of its breach. Virdi again serves as an example of the methods available to the Minister of showing that a Canadian has not complied with a Canadian legislative requirement to comply with foreign laws.

E. Standard of Review

[38] In Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir), it was determined that the standard for judicial review is reasonableness on matters of fact, and correctness for questions of law. This standard has been adopted in relation to matters before an appeal panel of the Tribunal. Dunsmuir also decided that once a standard of review had been determined, it did not need to be repeated in subsequent matters.

[39] The Minister's representative submitted that the standard of review for an appeal panel of the Tribunal was established by the Federal Court in Billings. It establishes the appropriate standard as an appeal panel, giving considerable deference to the Review Member's findings of fact and credibility but being entitled to take its own view of the law. Further, she submitted that in Butterfield, the appeal panel adopted the statement in Dunsmuir that findings by a Review Member are reasonable if they are in a range of reasonable outcomes based on evidence before that member. The appeal panel agrees with this standard and sees no reason not to confirm the Review Member's findings of fact that Mr. Sellars was the sole person registered or operating under Paladin Global Aviation Inc.; that Paladin was the FAA-registered owner of the aircraft; that Mr. Sellars had a duty to comply with the FAA regulations concerning the issuance and maintenance of the FAA Certificate; and that he had not filed the required documents. These findings are largely supported by the evidence of Mr. Sellars himself.

[40] Consideration of the member's finding that the FAA Certificate was ineffective and thus that there was not a valid certificate of registration from a contracting state, and a consequent violation of subsection 202.13(2) of the CARs, leads to a different conclusion. Whether a determination that a Canadian has violated a foreign law is a question of law or of fact, the decision cannot be based on uncorroborated hearsay evidence. There was no reliable evidence offered that would corroborate the statement in the FAA Notice that the registration “appears to be ineffective”. Even if the provisions of the FARs that were provided as guidance are considered as evidence, they do not indicate that a failure to provide the reports result in an ineffective registration. In the absence of such corroborating evidence, the appeal panel finds that the Review Member's finding that the FAA Certificate was invalid does not come within the range of reasonable outcomes, and that the Minister has not shown on a balance of probabilities that the FAA Certificate was either ineffective or invalid. Consequently, she has not shown that there was a breach of subsection 202.13(2) of the CARs.

[41] The appeal panel finds that the Minister has not proven the charges on the balance of probabilities.

VI. DECISION

[42] The appeal is allowed and the monetary penalty of $2,000 assessed by the Minister is cancelled.

April 14, 2014

Reasons for the Appeal Decision: Elizabeth MacNab, Member

Concurred by: Suzanne Racine, Member

Richard Willems, Member