Decisions

TATC File No. P-3770-33
MoT File No. EMS 73371

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jeff Paul Bickerstaff, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
subsection 605.84(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
J. Richard W. Hall


Decision: July 31, 2013

Citation: Bickerstaff v. Canada (Minister of Transport), 2013 TATCE 21 (Review)

Heard in: Vancouver, British Columbia, on May 23 to 25, 2012;

REVIEW DETERMINATION AND REASONS

Held: The Applicant, Jeff Paul Bickerstaff, admitted the factual elements constituting the offence alleged by the Minister, and no defence has been proven. However, due to mitigating factors, the penalty is lowered from $1 000 to $100.

The total amount of $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 Determination.

I. BACKGROUND

[1] The Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty (Notice) to the Applicant, Jeff Bickerstaff, on February 7, 2011, for an alleged contravention of subsection 605.84(1) of the Canadian Aviation Regulations, SOR/96-433 (CARs). The Notice reads as follows:

Schedule A - Annexe A

On or about November 5, 2010, at approximately 12:45 hours local time, at or near Langley Airport, B.C., you Jeff Paul Bickerstaff, conducted a take-off in an aircraft that was in the legal custody and control of the person, and where the aircraft was not: maintained in accordance with any airworthiness limitations applicable to the aircraft type design, specifically you flew Bell 206 Helicopter bearing Canadian Registration C-GPCX while the Tension-Torsion Straps were beyond their calendar life, thereby contravening Canadian Aviation Regulations 605.84(1).

Monetary penalty - $1000.00

[2] On March 4, 2011, the Applicant applied to the Transportation Appeal Tribunal of Canada (Tribunal) to review this decision.

[3] Towards the end of the Review Hearing, the Applicant admitted the occurrence of the contravention. However, he argued that there were defences that applied in this case that justify the contravention. As such, the Tribunal's consideration in this instance will focus on whether the Applicant has demonstrated a legitimate defence for this contravention. If no defence is proven by the Applicant, the Tribunal will then consider whether the $1000 sanction issued in this case was appropriate.

II.  STATUTE AND REGULATIONS

[4] Section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act) reads as follows:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate

(a) the designated provision that the Minister believes has been contravened;

(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and

(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.

[5] Subsection 605.84(1) of the CARs reads as follows:

605.84 (1) Subject to subsections (3) and (4), no person shall conduct a take-off or permit a take‑off to be conducted in an aircraft that is in the legal custody and control of the person, other than an aircraft operated under a special certificate of airworthiness in the owner-maintenance or amateur-built classification, unless the aircraft

(a) is maintained in accordance with any airworthiness limitations applicable to the aircraft type design;

(b) meets the requirements of any airworthiness directive issued under section 521.427; and

(c) except as provided in subsection (2), meets the requirements of any notices that are equivalent to airworthiness directives and that are issued by

(i) the competent authority of the foreign state that, at the time the notice was issued, is responsible for the type certification of the aircraft, engine, propeller or appliance, or

(ii) for an aeronautical product in respect of which no type certificate has been issued, the competent authority of the foreign state that manufactured the aeronautical product.

III.   PRELIMINARY ISSUE

A. Disclosure

[6] On January 15, 2012, the Applicant filed a motion with the Tribunal requesting additional information, including the last three years' worth of information, and files on all matters that had been resolved by Transport Canada through oral counselling, as well as his complete Transport Canada file.

[7] The Minister replied to the Applicant's request on February 6, 2012, stating that the disclosure obligations had been met in this case, and that he would be unable to fulfil the Applicant's demand because it was too broad and unspecific. The Applicant replied by specifying a list of documents he was seeking. The Minister stated that the documents requested did not exist, were irrelevant, or were subject to special privilege and could not be disclosed.

[8] I addressed this motion in a Ruling dated April 24, 2012, in which I dismissed the Applicant's motion in part. While I declined to order the disclosure requested by the Applicant, I nonetheless ordered that the Minister provide the Applicant with a specific list of documents the Applicant had requested over which the Minister was claiming privilege and the reasons why privilege was being claimed. I also ordered the Minister to provide a list of witnesses and can-say statements to the Applicant.

IV.   EVIDENCE

[9] As the Applicant has admitted to the occurrence of the contravention, the witness evidence summarized in this section will be limited to evidence concerning the defences raised by the Applicant and the sanction assessed by the Minister.

A. Minister

(1) Jeffrey Michael Durand

[10] In discussing the sanction assessed in this case, Mr. Durand noted that this was a first offence by Mr. Bickerstaff. He noted that the maximum fine for a contravention of subsection 605.84(1) of the CARs is $5 000. Mr. Durand stated that according to the Aviation Enforcement Procedures Manual (Manual) used by Transport Canada, a $1 000 fine is appropriate for a first contravention.

[11] Mr. Durand further noted that he could have also charged Mr. Bickerstaff's company for a contravention of this provision, but chose to charge only Mr. Bickerstaff. He found that there were no mitigating factors to allow for a lower fine.

(2) Roberto Chiatto

[12] The Minister called Roberto Chiatto, an inspector for Transport Canada Civil Aviation Enforcement, to interpret evidence demonstrating the installation of the straps on the helicopter and their subsequent calendar life. However, as the Applicant later admitted to the elements of the contravention, this testimony need not be discussed further.

B.  Applicant

(1) Ross McCutcheon

[13] Ross McCutcheon testified that he went with the Applicant to repossess the helicopter on November 5, 2010. He described the options that were available to the Applicant at that time, including taking the helicopter, or making arrangements to have it stored, then moving it at a later date.

[14] Mr. McCutcheon testified that an engineer was present working on the aircraft prior to Chief Engineer Scott Norris' arrival. Once the aircraft was ready, Mr. McCutcheon testified that Mr. Norris and the engineer pushed out the helicopter, and Mr. Bickerstaff ran the helicopter, then shut it down. At this point, Mr. Norris did the required paperwork.

[15] Mr. McCutcheon reported that Mr. Norris took about 20 to 30 minutes to do the paperwork, after which both he and Mr. Bickerstaff went to Mr. Norris' office to go over it. At this time, Mr. Bickerstaff also moved the aircraft registration back under his own company's name. He noted that Mr. Bickerstaff showed Mr. Norris a fax from Bell Helicopter which stated that the Tension-Torsion straps (straps) would be acceptable to fly with. Upon being shown this document, Mr. McCutcheon reports that Mr. Norris agreed it was okay to fly with the helicopter, and that the paperwork looked fine.

[16] In terms of signing the log book, Mr. McCutcheon testified that “Mr. Norris was looking after it, and that he did have to take some paperwork to the engineer to have some things signed off ….”

[17] He also testified that Mr. Bickerstaff asked Mr. Norris how the straps could be handled so that everything was done legally. Mr. Norris stated that now that the helicopter was registered privately, it was not part of Alpen Helicopters Ltd.'s operating certificate, and Mr. Bickerstaff, as the Pilot, was the person who had to sign to defer the straps. At this point, Mr. Norris put a sticker in the log book where Mr. Bickerstaff was to sign, and he signed the log book. Mr. McCutcheon reports that Mr. Bickerstaff asked Mr. Norris for further assurance as to whether that was what had to be done. Mr. Norris told Mr. Bickerstaff to make sure that when he landed, he signed the log book again for completing the test flight.

[18] Mr. McCutcheon reported that no‑one told them the helicopter was unserviceable, and that “everyone was very helpful in getting the helicopter released to us”.

[19] Mr. McCutcheon recalled Mr. Bickerstaff having served a Writ on Alpen Helicopters that same day. At this point, Mr. McCutcheon noted that Mr. Norris' mood changed slightly, and Mr. Norris told Mr. Bickerstaff that he was not an employee of Alpen Helicopters, but took the document and said he would place it on Robert Owens' desk.

[20] Mr. McCutcheon testified that, at that point, the helicopter was outside, and ready to be flown away.

(2) John Scott Palmer

[21] John Scott Palmer was a pilot at Alpen Helicopters from 2009 to 2011 on a casual basis. He reported that Mr. Bickerstaff was disliked at Alpen Helicopters, and that he had overheard conversations regarding Mr. Bickerstaff during his time at the company. He reported that Mr. Owens had boasted about intentionally misleading Mr. Bickerstaff regarding the helicopter.

[22] Mr. Palmer stated that Mr. Norris told him that Mr. Norris had instructed Mr. Bickerstaff to sign the log book to defer the straps as a snag. Mr. Norris told him that this was a joke and that he was not too concerned about any repercussions.

[23] Mr. Palmer also testified that Mr. Owens admitted to him that Mr. Owens initiated the complaint to Transport Canada. He also reported having personally had problems with Mr. Owens, but “not so much” with Mr. Norris.

(3) Jeff Paul Bickerstaff

[24] Mr. Bickerstaff has been in the aviation business for 40 years, during which time he has owned and leased over 40 helicopters. He testified that during the process of repossessing the helicopter in question, he took care to seek advice on insurance and other pertinent issues.

[25] In determining the correct procedure to take in this instance, the Applicant contacted Bell Helicopter to request a letter of no objection from Bell Helicopter to fly the helicopter even though the straps were calendar expired.

[26] In response to the Applicant's evidence on the issue of steps he undertook to determine the correct procedure to be followed, the Minister agreed that he had been duly diligent insofar as he had the helicopter registered and insured for the flight in question. The Minister also agreed with the Applicant's evidence that he was duly diligent in getting a filter put on the aircraft.

[27] With regard to the events of November 5, 2010, Mr. Bickerstaff reports arriving at the Alpen Helicopters hangar at about 8:45 a.m. At this point, Mr. Norris had not yet arrived, and an engineer was there working on the helicopter.

[28] With regard to deferring the defects and the Bell Helicopter waiver, the Applicant states that Mr. Norris told him to make a note that the defect was allowed and deferred by a Bell Helicopter letter, and to date and initial the note. The Applicant stated that he took this action on the advice of an aircraft maintenance engineer (AME), Mr. Norris. He states that Mr. Norris told him that he should sign the note because the helicopter had turned back into a private helicopter from a commercial helicopter, and as such Alpen Helicopters was no longer responsible for maintenance. The Applicant submits that Mr. Norris told him this information with authority, and that he did not believe he was being misled.

[29] The Applicant states that Mr. Norris at no time told him the aircraft was not safe for flight because of the calendar expired straps, contrary to what is stated in the Aviation Enforcement Case Report (Exhibit A‑3). Rather, according to the Applicant, Mr. Norris “did everything in his power to make sure that the aircraft was ready to fly, assisted with pushing it out, test running it, closing the cowlings, doing the paperwork, instructing me where to sign the different snags. He did nothing whatsoever in any way to indicate to me, communicate to me, or prevent me from taking the helicopter”.

V.  ARGUMENTS

A.  Applicant

(1) Due Diligence and Officially Induced Error

[30] The Applicant submits that he was duly diligent in attempting to prevent the contravention in this case by relying on the advice of a qualified AME who is licensed by Transport Canada. As such, he submits that the defence of officially induced error applies.

[31] The Applicant contends that he acted in good faith in relying on Mr. Norris' advice, and that he acted in a responsible manner in this instance. Furthermore, the Applicant states that it is illogical to think that he knew he was flying in contravention to the CARs, since he would not have been able to collect insurance if there had been an accident. Indeed, he submits that he made every effort to act within the boundaries of the Regulations.

[32] The Applicant submits that the evidence provided by Mr. McCutcheon supports his argument that he did all that was reasonable in the circumstances. Indeed, Mr. McCutcheon stated that he heard Mr. Norris telling the Applicant that he should sign the log book to defer the expired straps. Moreover, at no time did Mr. Norris try to prevent the aircraft from leaving or tell the Applicant that he should not fly. Rather, according to the Applicant, he “helped in every way to aid me to remove the aircraft and fly the aircraft”.

(2) Poor Investigation

[33] The Applicant also submits that the investigation in this case was incomplete, and that if it had been done in a balanced and fair manner, it would have resulted in oral counselling rather than a fine.

[34] The Applicant submits that Inspector Durand erred in finding that there was no possible defence of necessity, due diligence, or officially induced error as noted in his Aviation Enforcement Case Report (Exhibit A‑3), especially as he did not spend any time determining the steps taken by the Applicant to prevent the contravention.

[35] Moreover, the Applicant notes that an email written by Adrian Walker, Regional Manager at Transport Canada Aviation Enforcement (Exhibit A‑32), states that the only error made by the Applicant was not having an AME sign the deferral. The Applicant submits that had he known he needed an AME to sign, and that Mr. Norris could not do so, he could have easily found an AME to sign the deferral.

(3) Sanction

[36] The Applicant submits that the Minister erred in finding that the fine would be a deterrent in this instance. As stated by the Applicant, “the determination that a fine would in fact modify or prevent me after 40 years of a spotless record with Transport Canada, from reoffending is absurd ....”

B. Minister

(1) Poor Investigation

[37] The Minister submits that the investigation was done properly in this case, and that no aspect of the investigation was unfair or prejudicial to the Applicant. Moreover, the Minister submits that since the Applicant has admitted all elements of the contravention, the quality of the investigation is irrelevant and should not impact the result of the Review Hearing.

(2) Officially Induced Error

[38] The Minister submits that the Applicant has not proven that the contravention in this instance was an officially induced error. In order to demonstrate the existence of an officially induced error, the Minister submits that a person must show that: a) the person received advice from an official; b) the person relied on the advice; c) it was reasonable for the person to rely on the advice; and d) the advice was erroneous.

[39] However, in this instance the person from whom the Applicant received advice was not an official. Indeed, in order to constitute an officially induced error, the advice must be given from a person who is responsible for the administration or enforcement of a given law. In this case, the advice was not given by someone who is responsible for the administration or enforcement of the Act and Regulations, as an AME is not an official from Transport Canada who has authority over the Act and the Regulations. As such, the defence of officially induced error does not apply.

(3) Due Diligence

[40] The Minister contends that the Applicant has failed to prove that he was duly diligent pursuant to section 8.5 of the Act.

[41] The Minister submits that in order to have been duly diligent, a person must have taken all the actions to prevent a contravention. According to Skyward Aviation Ltd. v. Canada (Minister of Transport), 1998 CAT File No.: C‑1455‑41 (Appeal), making some efforts towards due diligence does not necessarily demonstrate due diligence as required by the Act.

[42] The Minister submits that the Applicant did not exercise all due diligence in this case. While the Applicant made some diligent actions, he did not follow all the necessary steps. Indeed, the Applicant had his aircraft insured and registered, and also secured a trailer and a hangar to use if required. Moreover, the Applicant contacted Bell Helicopter to see if it was acceptable to fly one time on the time-expired straps. However, an email from Bell Helicopter (Exhibit A‑16), demonstrates that Bell Helicopter gave the authorization for the Applicant's requested flight, but also advised the Applicant that authorization was required from the regulatory authorities. The Applicant never requested permission from Transport Canada as required. As such, it cannot be said that the Applicant exercised all due diligence as required by section 8.5 of the Act.

(4) Sanction

[43] While the Applicant has argued that the Minister should not have laid charges against him, and that oral counselling would have been more appropriate, the Minister submits that the Tribunal does not have the jurisdiction to change the nature of the sanction chosen by the Minister.

[44] The Minister submits that the $1 000 sanction in this instance is reasonable, and that aggravating factors existed in this case that would have merited a higher sanction. For instance, the Minister submits that:

1) the Applicant knew that the straps were expired;

2) the Applicant had bought new straps;

3) the Applicant had requested a letter of no objection from Bell Helicopter;

4) Bell Helicopter informed the Applicant he needed authorization from an applicable authority;

5) The Applicant did not get authorization from Transport Canada;

6) The Applicant flew the aircraft anyway;

7) The Applicant did not use the other alternatives he had secured to avoid violating the CARs.

[45] In addition to the aggravating factors that exist in this case, the Minister notes that the Applicant's company could have also been charged under section 8.4 of the Act, but the Minister chose not to. As such, the Minister submits that the sanction imposed was fair and lenient, and should not be altered by the Tribunal.

VI.  ANALYSIS

A.  Strict Liability Offence

[46] Both parties in this instance placed emphasis on whether or not the Applicant knew he was breaching the CARs by flying the helicopter on expired straps. However, it is worth noting that the offence at hand is a strict liability offence. As such, the Minister is not required to prove that the Applicant knowingly committed the offence. Rather, the Minister need only prove that the offence (or contravention) occurred. Once a contravention has been proven, the onus shifts to the Applicant to prove a defence for his actions. In the case at hand, the Applicant has admitted to committing the offence. As such, the burden is on the Applicant to prove the existence of a defence to justify his actions.

[47] Nevertheless, while the Minister is not required to demonstrate that a person has knowledge of the contravention in order to prove the existence of that contravention, such a consideration may be included in determining the appropriate penalty.

B. Defences

(1) Due Diligence

[48] The Applicant argues that the actions he took to register and insure the helicopter for the flight in question demonstrate due diligence. He also argues that he made every effort to act within the boundaries of the Regulations in this case, and was duly diligent in relying on the advice of a qualified AME, who is licensed by Transport Canada.

[49] The Minister, however, argues that although the Applicant took some steps towards diligence in this case, he has not proven a defence of due diligence pursuant to the Act.

[50] While acknowledging the steps taken by the Applicant to change the registration, obtain insurance, and contact Bell Helicopter for authorization to fly the helicopter, I must, unfortunately, find that a defence of due diligence has not been proven.

[51] As noted by the Minister, the letter the Applicant obtained from Bell Helicopter advised the Applicant that additional authorization was required from the regulatory authorities. Indeed, the authorization given by Bell Helicopter for the flight is not a valid substitute for the authorization required from Transport Canada in order to adhere to the CARs. Unfortunately, such authorization was not given by Transport Canada—or sought by the Applicant—in this instance. As such, he cannot be said to have been duly diligent in preventing the contravention.

(2) Officially Induced Error

[52] The Applicant contends that he received advice from Mr. Norris that the aircraft was safe for flight, and also received advice as to deferring the straps. He submits that he relied on this erroneous advice, which then resulted in a contravention of the CARs.

[53] The Minister submits that the advice relied on by the Applicant in this instance does not constitute an officially induced error, since the person giving the alleged advice was not from Transport Canada.

[54] The defence of officially induced error was discussed by the Supreme Court of Canada in Lévis (City) v. Tétreault, 2006 SCC 12 (Lévis). The Court in Lévis determined that six elements were required to prove the defence of officially induced error, including:

1) That an error of law or mixed fact and law was made;

2) That the person who committed the act considered the legal consequences of his or her actions;

3) That the advice obtained came from an appropriate official;

4) That the advice was reasonable;

5) That the advice was erroneous; and

6) That the person relied on the advice in committing the act.

I will consider these elements in relation to the case at hand to determine whether the Applicant has proven a defence of officially induced error.

[55] With regard to the first element, I am satisfied that an error of law or of mixed fact and law was made. Indeed, the flight undertaken by the Applicant was contrary to the CARs, and based on an erroneous understanding of the requirement of the CARs,as well as faulty advice surrounding these requirements.

[56] I am also satisfied that the Applicant considered the legal consequences of his actions. This is made clear by the fact that the Applicant sought authorization from Bell Helicopter prior to taking the flight.

[57] However, this defence fails on the third element. As noted by the Minister, Mr. Norris is not an appropriate official for the purposes of the CARs. The Ontario Court of Appeal decision of R. v. Cancoil Thermal Corp., (1986) 27 C.C.C. (3d) 295 found that a defence of officially induced error is available where a person has relied on the erroneous advice of “an official who is responsible for the administration or enforcement of the particular law”.

[58] It is clear that an AME is not responsible for the administration or enforcement of the CARs. As such, the advice given by Mr. Norris and relied on by the Applicant was not given by an appropriate official. Consequently, the defence of officially induced error cannot succeed in this instance.

C. Sanction

[59] As the Applicant has not successfully demonstrated a defence of due diligence or officially induced error, we must then consider the sanction applied by the Minister to determine if it is appropriate.

[60] The Minister deemed a penalty of $1 000 to be appropriate in this instance. The Minister argued the existence of aggravating factors, but did not consider these factors in imposing the minimum penalty pursuant to the Manual. Among the aggravating factors listed by the Minister were the considerations that: a) the Applicant knew that the straps were expired; b) the Applicant requested a letter of no objection from Bell Helicopter; and c) the Applicant did not use the other alternatives he had secured to avoid violating the CARs.

[61] I note, however, that these allegedly aggravating circumstances could also be considered mitigating circumstances when viewed in another light. Indeed, the Applicant knew the straps were expired, so he subsequently sought authorization from Bell Helicopter to make the flight. While not reaching the threshold of due diligence, this nevertheless demonstrates some diligence on his part. Similarly, the other alternatives planned by the Applicant demonstrate that he had options in place in case he was not able to make the flight. Moreover, his actions in obtaining insurance and changing the registration of the aircraft also demonstrate diligence on his part.

[62] I am also persuaded by the Applicant's argument that he did not breach the CARs knowingly or intentionally, and would not have done so as this would have voided his insurance. Furthermore, in the consideration of mitigating factors, I believe it is important to consider the Applicant's impressive record to date, which involves no incidents in the past 40 years.

[63] Indeed, I find that several mitigating factors exist in the circumstances of this case that were not considered by the Minister when assessing the penalty. While the Minister determined the $1 000 penalty based on the contents of the Manual, the Manual is not binding on the Tribunal, especially when presented with the facts of this particular matter. As such, I have the jurisdiction to lower the penalty in this instance as necessary. Based on the mitigating factors that existed in this case, I am of the opinion that a fine of $100 is appropriate and in the best interest of all concerned.

VII.  DETERMINATION

[64] The Applicant, Jeff Paul Bickerstaff, admitted the factual elements constituting the offence alleged by the Minister, and no defence has been proven. However, due to mitigating factors, the penalty is lowered from $1 000 to $100.

July 31, 2013

J. Richard W. Hall

Chairperson


Appeal decision
Elizabeth MacNab, Laura Safran, John Badowski


Decision: July 10, 2014

Citation: Canada (Minister of Transport) v. Bickerstaff, 2014 TATCE 25 (Appeal)

Heard in: Vancouver, British Columbia, on April 30, 2014

APPEAL DECISION AND REASONS

Held: The appeal is allowed in part and the monetary penalty is increased from $100 to $700.

The total amount of $700 is payable to the Receiver General of Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this decision.

I. BACKGROUND

[1] On February 7, 2011, the Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty (Notice) to the respondent, Jeff Paul Bickerstaff, pursuant to section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A-2, for an alleged contravention of subsection 605.84(1) of the Canadian Aviation Regulations, SOR/96-433 (CARs). The Notice alleged that Mr. Bickerstaff flew a Bell 206 Helicopter that did not meet the airworthiness requirements of the subsection in that the Tension-Torsion Straps were beyond their calendar life, and assessed a monetary penalty of $1,000. The Transportation Appeal Tribunal of Canada (Tribunal) received Mr. Bickerstaff's request for review on March 4, 2011 and a hearing was held in Vancouver, British Columbia, in four sessions between May 23, 2012 and April 26, 2013. On July 31, 2013, the review member issued his determination in which he found that while Mr. Bickerstaff had admitted all the factual elements of the offence, there were mitigating factors and consequently he reduced the monetary penalty from $1,000 to $100. The Minister's request for an appeal was filed on September 3, 2013 and was limited to appealing the reduction of the penalty.

II. STATUTES AND REGULATIONS

[2] Section 14 of the Transportation Appeal Tribunal of Canada Act sets out the nature of an appeal before an appeal panel of the Tribunal:

14. 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.

[3] Subsection 8.1(3) of the Aeronautics Act sets out the powers of an appeal panel in disposing of an appeal:

8.1 (3) The appeal panel of the Tribunal assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.

[4] Subsection 605.84(1) of the CARs provides:

605.84 (1) Subject to subsections (3) and (4), no person shall conduct a take-off or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, other than an aircraft operated under a special certificate of airworthiness in the owner-maintenance or amateur-built classification, unless the aircraft

(a) is maintained in accordance with any airworthiness limitations applicable to the aircraft type design;

(b) meets the requirements of any airworthiness directive issued under section 521.427; and

(c) except as provided in subsection (2), meets the requirements of any notices that are equivalent to airworthiness directives and that are issued by

(i) the competent authority of the foreign state that, at the time the notice was issued, is responsible for the type certification of the aircraft, engine, propeller or appliance, or

(ii) for an aeronautical product in respect of which no type certificate has been issued, the competent authority of the foreign state that manufactured the aeronautical product.

III. REVIEW DETERMINATION

[5] The review member hearing this matter found that Mr. Bickerstaff had admitted that he had contravened the regulation and so limited his determination to dealing with the possible defences to that contravention and to the amount of the penalty. He found that no defence of officially induced error could be based on the statements of an aircraft maintenance engineer (AME) on the grounds that such persons are not responsible for either the administration or enforcement of the CARs. He also found that there was no defence of due diligence under section 8.5 of the Aeronautics Act, since, while Mr. Bickerstaff took a number of steps towards such diligence, he failed to take all the necessary steps, which would have included seeking Transport Canada approval as set out in the letter from Bell Helicopter as a condition of an extension to use the time-expired Tension-Torsion straps. He found, however, that there were mitigating circumstances not considered in assessing the penalty, and consequently reduced it from $1,000 to $100.

IV. GROUNDS FOR APPEAL

[6] The grounds for appeal are as follows:

  1. The review member erred in fact and in law in significantly reducing the sanction imposed by the Minister.
  2. Such other grounds in fact and in law that the transcript of the proceedings may disclose.

V. ARGUMENTS

A. Appellant

[7] The appellant submitted written arguments supplemented by an oral presentation.

(1) Standard of Review

[8] The appellant's representative submitted that the standard of review was established as reasonableness by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir). That case also held that “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”. On that basis, the role of the appeal panel is to determine whether the decision under review falls within a range of possible outcomes that are defensible in respect of fact and law. In Farm Air Ltd. v. Canada (Minister of Transport), 2011 TATCE 20, TATC File No. C-3621-09 (Appeal), the appeal panel quoted the Federal Court of Canada's decision in Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17 (Billings), which explicitly dealt with the standard that a Tribunal appeal panel should meet when reviewing an initial review determination. The Court held that considerable deference should be given to the review member's findings of fact and credibility, and that an appeal panel should not interfere with a determination so long as it is within a range of reasonable outcomes based on the evidence before that member.

[9] The appellant's representative submitted that the review member made unreasonable findings of fact that should be overturned by the appeal panel, arguing that too little weight was given to the aggravating factors and too much weight to factors that the review member characterized as mitigating so that his conclusion was not within a range of reasonable outcomes based on the evidence before him.

(2) Aggravating and Mitigating Factors

[10] The appellant's representative pointed out that in paragraph [44] of his determination, the review member noted that the Minister had submitted that there were seven aggravating factors listed as follows:

1) The Applicant knew that the straps were expired;

2) The Applicant had bought new straps;

3) The Applicant had requested a letter of no objection from Bell Helicopter;

4) Bell Helicopter informed the Applicant he needed authorization from an applicable authority;

5) The Applicant did not get authorization from Transport Canada;

6) The Applicant flew the aircraft anyway;

7) The Applicant did not use the other alternatives he had secured to avoid violating the CARs.

[11] The appellant's representative pointed out that, in making his determination, the review member found in paragraph [60] that the Minister had argued that there were aggravating factors, but had not considered those factors in establishing the penalty as the minimum suggested in the Aviation Enforcement Procedures Manual (Manual).

[12] While agreeing with the review member that the respondent had acted properly in obtaining the letter of non-objection from Bell Helicopter, the appellant's representative submitted that the respondent had not followed the recommendation in the letter that he obtain authorization from the applicable authority, Transport Canada in this case. He argued that the only purpose of obtaining the letter was to verify that it would be safe to fly the aircraft with time-expired Tension-Torsion straps. He also submitted that the respondent's actions in obtaining insurance and changing the aircraft's registration did not meet the threshold of the due diligence defence set out in section 8.5 of the Aeronautics Act and, consequently, that the review member should not have considered these actions as mitigating factors.

[13] The appellant's representative submitted that the testimony of the respondent that he was not aware of the CARs, amounting to a statement that he was ignorant of the law for 40 years, should be considered as an aggravating factor and, taken together with his other actions (contacting Bell Helicopter, arranging for a trailer and hangar and contacting the RCMP), as an argument supporting his position that these actions were not taken as an attempt at due diligence but for the purpose of obtaining his aircraft and operating it safely.

[14] The appellant's representative submitted that the review member's determination reducing the penalty was not within a range of reasonable possibilities for a number of reasons: he misinterpreted and misapplied the aggravating factors relied upon by the Minister in assessing the amount of the penalty; he did not give enough weight to the respondent's failure to obtain authorization from Transport Canada; he did not give enough weight to the respondent's admission that he was unaware of the regulations; and finally, he considered as mitigating factors actions taken by the respondent for another purpose.

(3) General Deterrence

[15] The appellant's representative referred to Canada (Minister of Transport) v. Wyer, [1988] C.A.T.D. No. 123, CAT File No. O-0075-33 (Appeal) (Wyer), as establishing the principles to be applied by the Tribunal in considering the penalty that should be imposed for a contravention. These principles included both personal and general deterrence. He submitted that the review member, in reducing the penalty to $100, had not given adequate consideration to these principles.

(4) Schedule to the Aviation Enforcement Procedures Manual

[16] The appellant's representative pointed out that the penalty assessed against Mr. Bickerstaff was that suggested for a first contravention of subsection 605.84(1) of the CARs in the schedule of the Manual that sets out recommended penalties. While he recognized that the Manual is not binding on the Tribunal, he submitted that it is used throughout the country to promote consistency in the assessment of penalties and should have been given some weight by the review member when analyzing the sanction in paragraph [63] of his determination.

[17] Finally, the appellant's representative pointed out that, since the respondent had not appealed the review member's determination, he could not challenge it on the basis of defences that were rejected nor could he challenge the amount of the penalty of $100.

B. Respondent

[18] The respondent referred to his spotless record with Transport Canada as a mitigating factor and stated that he had never before violated a regulation. He suggested that he should be able to rely on the advice of an AME, who is licensed by Transport Canada, without having to confirm that the advice is accurate by consulting further with Transport Canada officials. Further, noting that the letter from Bell Helicopter referred to an “authorized party” rather than to Transport Canada, he submitted that he took the phrase used in the letter to refer to a licensed AME who was a director of maintenance.

[19] The respondent submitted that he had done everything reasonably possible to make sure that the aircraft could be operated. It had its annual inspection and he had it insured. He referred to the e-mail from a Transport Canada official (Exhibit A-32) that said his error was not having the AME sign the log entry for the time-expired straps and suggested that this was really only a technical error.

[20] He responded to the appellant's arguments concerning the deterrent effect of the penalty by saying that such arguments were weak in view of his excellent record. He concluded by asking the appeal panel to deny the appeal or to reduce the penalty to $1.

C. Appellant in Reply

[21] The appellant's representative objected to the arguments raised by the respondent on the basis that, since he had not appealed, he was limited to arguing that the review member's determination fell within the range of reasonable outcomes and could not raise new arguments such as asking that the penalty be reduced to $1. The appeal panel agreed that the respondent could not raise new issues but noted that, while not couched in legal language, his arguments as to mitigating circumstances fell within the scope of arguing the reasonableness of the review member's determination.

[22] The appellant's representative also pointed out that while the respondent had submitted that it was not unreasonable to assume that an AME was an “approved authority”, he had also admitted during the review hearing that he assumed it to be correct that it is the Minister of Transport who has the authority to make regulations affecting aviation.

VI. ANALYSIS

[23] The basis for an appeal hearing is set out in section 14 of the Transportation Appeal Tribunal of Canada Act as follows:

14. 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.

[24] 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 no other information will be considered. The appellant's representative submitted that much of the argument made by the respondent should not be considered since the respondent had not appealed the review member's determination and he ought not to be able to reargue the matter at the appeal stage. The appeal panel took the position that the respondent could refer to matters that related to determining whether the reduction of the penalty should be upheld. The panel also notes, however, that its decision should be based on the record of the proceedings before the review member and finds that a reference to matters that have been discussed in that record is appropriate from either party in an appeal.

(1) Standard of Review

[25] As pointed out by the appellant's representative, the Supreme Court of Canada determined in Dunsmuir that the standard for judicial review is reasonableness on matters of fact and matters of mixed fact and law, and correctness for questions of law. Reviewing a decision of an appeal panel of this Tribunal in the Billings case, the Federal Court of Canada held that a review member was owed considerable deference on determinations relating to facts and credibility and that an appeal panel should not interfere with such a determination so long as it fell within a range of reasonable outcomes based on the evidence that was before the review member. Dunsmuir also decided that once a standard of review had been determined, it did not need to be re‑examined in subsequent matters. The reasonableness standard has been adopted in relation to matters before an appeal panel of the Tribunal, most recently in Sellars v. Canada (Minister of Transport), 2013 TATCE 16, TATC File No. A-3895-33 (Appeal). Indeed, the appeal panel is not aware of any matter where it has been ignored and sees no reason not to apply this standard of review in the present matter. On this basis, the question to be resolved is whether the reduction of the penalty by the review member falls within a range of reasonable outcomes based on the evidence that was before him.

(2) Aggravating and Mitigating Factors

[26] In paragraph [44] of his determination, the review member listed seven aggravating factors referred to by the Minister's representative in his argument, including the respondent's knowledge that the Tension-Torsion straps were time-expired, the request for a letter of no objection from Bell Helicopter and the failure to use the alternatives he had arranged to avoid contravening the regulations. In paragraph [60], he noted that the Minister, through the Supervisor's Recommendation set out in Exhibit A-15, pointed out these aggravating factors but did not consider them in assessing the minimum recommended penalty.

[27] In paragraph [61] of his determination, however, the review member found that these aggravating circumstances could also be viewed as mitigating. Since the respondent knew the straps were time-expired, he sought advice from the manufacturer. He had made arrangements to store or move the helicopter if he could not make the flight. Further, his actions in changing the registration of the helicopter and obtaining insurance for it demonstrate some diligence on his part. The review member concluded that, while these actions were not sufficient to establish a due diligence defence, they did amount to mitigating factors that, taken together with the respondent's spotless 40-year record, justified a reduction in the penalty assessed against him.

[28] The appeal panel notes that the appellant's representative submitted that since the review member found that the mitigating factors did not amount to a due diligence defence under section 8.5 of the Aeronautics Act, they should not be considered. This argument ignores the distinction between a defence and mitigation. If a due diligence defence is successful, it leads to a decision that there was no contravention, whereas a finding that there were mitigating circumstances leads to a conclusion that there was such a contravention but there are circumstances that justify a lesser penalty.

[29] At the appeal hearing, the appellant's representative submitted that the respondent's aim was to fly the aircraft safely and that the actions that the review member found to be mitigating were undertaken for this purpose only and not to avoid a contravention of the regulations. The appeal panel rejects this argument. It seems clear that there can be several motives behind any action. The underlying aim of any aviation activity is that it will be carried out safely and, in order to do so, a pilot such as the respondent will take actions that attempt to comply with the regulations. That these actions may be inadequate in achieving compliance does not take away their mitigating effect.

[30] The appellant's representative also submitted that the respondent's statement at the review hearing that he had never heard of the CARs should be taken into account as an aggravating factor in determining an appropriate penalty. He argued that the statement was evidence that he was not aware of the aviation regulations. It is clear, however, from the respondent's evidence and actions that he was aware that there were regulations governing aviation activities as, for example, in requiring an aircraft to be registered and to undergo an annual inspection. It is a reasonable assumption that the respondent's statement referred to the acronym “CARs” rather than the fact of the existence of the regulations.

[31] The appellant's representative submitted that the review member's findings did not fall within a range of reasonable outcomes when the various aggravating factors mentioned in his argument were taken into account, in that he misinterpreted and misapplied the aggravating factors relied on by the appellant to impose the sanction. He referred specifically to the respondent's failure to obtain Transport Canada's authority to operate the flight as set out in the Bell Helicopter letter. This failure, however, forms the basis of the contravention and a fact that is the cause of a contravention cannot be said to further aggravate that contravention.

[32] The appeal panel finds that the review member's assessment that there were mitigating factors falls within the range of reasonable outcomes. Upon analysis as outlined above, the respondent's actions are capable of at least two interpretations and the review member, who had the advantage of seeing and hearing the witnesses, interpreted the evidence relating to the actions of the respondent as including actions that could be taken as mitigating his improper and unauthorized undertaking of the flight.

[33] The appeal panel notes that the respondent suggested that he should be able to rely on the advice of a licensed AME who told him that he could sign off the notation regarding the Tension-Torsion straps in the log. The appeal panel cannot accept this as a mitigating factor. While a pilot may not be aware of all the regulations affecting maintenance and approvals by an AME, he should be aware of what his own responsibilities are with regard to maintenance performance and notations.

(3) General Deterrence and the Schedule of Sanctions

[34] The appellant's representative submitted that the review member's reduction of the penalty from $1,000 to $100 was not within a range of reasonable outcomes because he failed to apply the principles relating to general deterrence and failed to give adequate weight to the Manual.

[35] The formative decision regarding the determination of an appropriate penalty by the Tribunal is that of an appeal panel of the Civil Aviation Tribunal, the predecessor of this Tribunal, in the Wyer case. This decision listed the matters to be considered as (a) denunciation, (b) deterrence, (c) rehabilitation, and (d) enforcement recommendations. It further pointed out that deterrence had two facets, one relating to preventing the individual from reoffending and the other generally aimed at preventing contraventions by the aviation community. The appeal panel explained:

General deterrence conveys to other members of the aviation community, fear of the consequences should one offend and, as well, demonstrates the merits of not offending. It is to be hoped, that a person with an attitude thus conditioned to regard conduct as reprehensible, will not deliberately commit such an act.

[36] Wyer also discussed the effect of recommended sanctions as set out in the Manual. At the time, the administrative monetary penalty was a newly established enforcement tool and the Manual, in laying out a range approach to penalties, was seen as attempting to establish an enforcement policy “which recognizes that the laws will be fairly and equally enforced and that all persons and corporations are equal in the eyes of the law”. The appeal panel acknowledged, however, that the Tribunal was not bound by the Manual but viewed it only as guidance in an attempt to achieve uniformity of approach. It also recognized that in individual matters, there might well be aggravating or mitigating factors that would influence the amount of the penalty to be assessed and that ultimately, a determination of penalty involves a balancing of various policy considerations implicit in the sentencing principles and in the aggravating or mitigating factors of the individual case.

[37] In the years since 1988, both the number of contraventions subject to the administrative monetary penalty and the maximum penalty have substantially increased but the goals set out in Wyer have remained consistent. In reducing the penalty by a factor of ten, the review member was taking into account what he found to be mitigating factors. He did not, however, consider the other purposes related to the enforcement of the regulations, notably that of general deterrence and the associated consistency of penalty. While neither the review member nor the appeal panel is bound by the guidelines set out in the Manual, the determination of an appropriate penalty must take into account both the individual circumstances of the particular matter being considered and the general purposes of enforcement in order to reach a conclusion that is within a reasonable range of possible outcomes. The guidelines, although not binding, have a function in establishing this range. Except in the most exceptional circumstances, the penalty should not be reduced to an amount that renders it nugatory nor should it be increased beyond the amount that is suggested for a subsequent offence.

[38] In this matter, both the investigating officer and his supervisor were aware that there were factors that could be considered as aggravating the offence but did not see fit to increase the suggested penalty on that account. The review member found that there were mitigating circumstances that should have been taken into account and reduced the penalty from $1000 to $100. The appeal panel finds that, while it was within the range of reasonable outcomes to find that there were mitigating circumstances, the extent of the reduction was not within that range. The suggested penalty must be accepted as being established in consideration of all the elements set out in Wyer and all of those elements should have been considered by the review member. The Manual suggests that an appropriate variation in respect of either aggravating or mitigating circumstances should be up to 30 per cent. While recognizing that it is not bound by this recommendation, the appeal panel finds that the circumstances of this matter are not so exceptional as to justify a more substantial reduction. The panel finds, therefore, that a penalty of $700 will adequately take into account the mitigating factors found by the review member.

VII. DECISION

[39] The appeal is allowed in part and the monetary penalty is increased from $100 to $700.

July 10, 2014

Reasons for the appeal decision: Elizabeth MacNab, Member

Concurred by: John Badowski, A/Chairperson

Laura Safran, Member