Decisions

TATC File No. O-3699-41
MoT File No. PAP5504-68915

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Eagle Flight Centre , Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
subsection 406.03(1) of the Canadian Aviation Regulations


Review Determination
J. Richard W. Hall


Decision: November 19, 2013

Citation: 1074040 Ontario Inc. v. Canada (Minister of Transport), 2013 TATCE 34 (Review)

Heard in: Toronto, Ontario, on November 15, 2012, and June 17 to 18, 2013

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has not proven that the Applicant, 1074040 Ontario Inc., contravened subsection 406.03(1) of the Canadian Aviation Regulations. Consequently, the monetary penalty of $5 000 is dismissed.

I. BACKGROUND

[1] The Applicant, 1074040 Ontario Inc. d.b.a. Eagle Flight Centre (Eagle Flight Centre), received a Notice of Assessment of Monetary Penalty (Notice) from the Minister of Transport (Minister) dated May 12, 2010, which alleges that the Applicant contravened subsection 406.03(1) of the Canadian Aviation Regulations,SOR/96‑433 (CARs). Consequently, Eagle Flight Centre was assessed a monetary penalty of $5 000. Schedule A to the Notice received by the Applicant reads as follows:

On or about May 18, 2009, at or near Sudbury Ontario, you, 1074040 Ontario Inc. c.o.b. as Eagle Flight Centre, operated a flight training service using an aeroplane or helicopter in Canada when you did not comply with the conditions and operations specifications set out in a flight training unit operator certificate which did not authorize you to operate that service. Specifically, (as set out in section 406.13(a) of the Canadian Aviation Regulations (CARs)), you did not employ, on a full-time basis, a maintenance manager, thereby contravening subsection 406.03(1) of the CARs. Monetary Penalty Assessed: $5000.

[2] The Applicant's Request for Review was received by the Transportation Appeal Tribunal of Canada (Tribunal) on June 10, 2010.

[3] Although the terms Person Responsible for Maintenance (PRM) and Maintenance Manager were used interchangeably throughout the Review Hearing, this Review Determination only refers to a Maintenance Manager as indicated in the Notice, and at subparagraph 406.11(2)(b)(iv) of the CARs.

II. STATUTES AND REGULATIONS

[4] Subsection 406.03(1), subsection 406.11(1), paragraph 406.11(2)(a), subparagraph 406.11(2)(b)(iv), and section 406.13 of the CARs read as follows:

406.03 (1) Subject to subsections (2) and (3), no person shall operate a flight training service in Canada using an aeroplane or helicopter in Canada unless the person holds a flight training unit operator certificate that authorizes the person to operate the service and complies with the conditions and operations specifications set out in the certificate.

[…]

406.11(1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner specified in the personnel licensing standards, issue or amend a flight training unit operator certificate where the applicant demonstrates to the Minister the ability to

(a) maintain an adequate organizational structure;

(b) maintain operational control;

(c) comply with maintenance requirements;

(d) meet the personnel licensing standards; and

(e) conduct the operation safely.

(2) For the purposes of subsection (1), an applicant shall have

(a) a management organization capable of exercising operational control;

(b) managerial personnel who are employed on a full-time basis and who perform the duties related to the following positions:

[…]

(iv) if the applicant does not hold an approved maintenance organization certificate, a maintenance manager;

[…]

406.13 A flight training unit operator certificate shall contain the following general conditions:

(a) the flight training unit shall maintain the organizational structure referred to in paragraph 406.11(1)(a);

III. EVIDENCE

A. Minister

(1) Robert Treleaven

[5] Robert Treleaven is a Civil Aviation Safety Inspector with Transport Canada, as well as a licensed Aircraft Maintenance Engineer (AME), and a licensed pilot. His current role with Transport Canada includes leading a small group of Airworthiness Inspectors.

[6] He stated that he became aware of the situation involving Eagle Flight Centre when Chad Joseph Laframboise phoned him on May 14, 2009 to report that Roland Kurt Hemmer, the certificate holder for Eagle Flight Centre, had asked Mr. Laframboise to assist with an upcoming Program Validation Inspection (PVI) that was going to be done within the next month. Mr. Laframboise explained that he was no longer the Maintenance Manager for Eagle Flight Centre, and had not been since late 2008. Mr. Treleaven asked Mr. Laframboise to advise him of this in writing; this was done by email from Mr. Laframboise to Mr. Treleaven on May 14, 2009 (Exhibit M-1).

[7] After speaking to Mr. Laframboise, Mr. Treleaven then checked whether a new Maintenance Manager had been appointed to the company. However, he found no evidence of a new Maintenance Manager having been nominated or appointed. He reports that flight training was continuing at Eagle Flight Centre at that time, and it was on this basis that Mr. Treleaven filled out a Detection Notice that resulted in Transport Canada Aviation Enforcement looking into this matter further.

[8] On cross-examination, Mr. Treleaven stated that he did not tell Mr. Hemmer that Mr. Laframboise was no longer Maintenance Manager until he made contact with him on May 25, 2009, although attempts were made to contact Mr. Hemmer prior to this date.

[9] On re-examination, Mr. Treleaven agrees that the Organization Chart contained in the Maintenance Control Manual (Exhibit M‑3) lists Mr. Laframboise as Maintenance Manager, and that this document was in effect in May 2009.

[10] On recall, Mr. Treleaven was shown Mr. Laframboise's Invoice (Exhibit A‑3) and the Continuing Business Agreement (Exhibit A-5). He stated that he did not recognize these documents.

(2) William Randy Miller

[11] William Randy Miller is a Civil Aviation Safety Inspector with the Aviation Enforcement division of Transport Canada. He holds an AME licence and a private pilot licence. Mr. Miller reports sending out a letter of investigation to Eagle Flight Centre advising that Transport Canada was investigating Eagle Flight Centre for an alleged violation of subsection 406.03(1) of the CARs (Exhibit M‑16).

[12] Mr. Miller reported that Mr. Hemmer submitted copies of the journey log book, company flight sheets, and journey log data pages for the relevant period of time when asked to do so, including a list of flight training lessons provided by Eagle Flight Centre on May 18, 2009 (Exhibit M‑18).

[13] Mr. Miller then read into evidence a letter of response dated April 7, 2010 and written by Mr. Hemmer, which stated that Mr. Laframboise was still Maintenance Manager at the time in question (Exhibit M‑21). Attached was a letter signed by Mr. Laframboise. Mr. Miller stated that after receiving these letters, he phoned Mr. Hemmer on April 15, 2010 to discuss the enforcement investigation. Mr. Miller reported that during this conversation, Mr. Hemmer stated that the company did have a Maintenance Manager at the time, and that the company was in the process of trying to replace Mr. Laframboise as Maintenance Manager. Mr. Hemmer also stated that he was not aware of an email sent by Mr. Laframboise regarding his resignation from the company, and had not received a copy of this email. During the discussion, Mr. Hemmer said that Mr. Laframboise had indicated he would remain as Maintenance Manager until a new Maintenance Manager was found.

[14] Mr. Miller then phoned Mr. Laframboise to discuss the letter signed by Mr. Laframboise that was enclosed in the package sent by Mr. Hemmer. He reports that Mr. Laframboise told him that he notified Mr. Hemmer in late 2008 that he wished to resign from the position of Maintenance Manager, and that Mr. Hemmer asked if he would help to find a replacement. Mr. Laframboise stated that he found two candidates, then advised Mr. Hemmer that there was nothing more he could do. Mr. Laframboise then told Mr. Miller about Mr. Hemmer bringing the letter to him to sign, and about how he had requested he remove the inaccurate information contained in the letter.

[15] Mr. Miller then asked Mr. Laframboise if he was Maintenance Manager from January 2009 to May 2009, and Mr. Laframboise stated that he was not. Mr. Laframboise said that Mr. Hemmer kept contacting him during this period, but that he had no knowledge of the status of the aircraft of Eagle Flight Centre. Mr. Laframboise confirmed that he resigned as Maintenance Manager in late 2008. Mr. Miller then asked Mr. Laframboise to write a letter regarding the information he provided during their conversation. Mr. Laframboise then sent him an email to confirm the content of their discussion (Exhibit M-24).

[16] Mr. Miller stated that following the conversation with Mr. Laframboise and his subsequent email, he was of the opinion that Mr. Laframboise was not the Maintenance Manager for Eagle Flight Centre during the period of time at issue. As such, he recommended that Eagle Flight Centre be assessed a monetary penalty.

[17] When asked on cross-examination whether he had ever seen a resignation letter from Mr. Laframboise to Eagle Flight Centre, Mr. Miller responded in the negative. Mr. Miller noted that Mr. Laframboise wrote in his email that he contacted Mr. Hemmer in late 2008 to resign; however, Mr. Miller did not have a copy of that email. When asked if it seemed like Mr. Hemmer was truthful in dealing with his requests, Mr. Miller stated that “it sounded like he was telling me the truth, but I am not sure”.

(3) Ricky Stephen Houle

[18] Ricky Stephen Houle is a Civil Aviation Safety Inspector for Transport Canada. Mr. Houle recalled that he photocopied a number of documents for Mr. Hemmer when Mr. Hemmer came into his office and asked him to make photocopies on behalf of Mr. Miller. Mr. Houle stated that he felt comfortable photocopying the documents as requested because he had known Mr. Miller for a long time. After making the photocopies, Mr. Houle put them in an envelope in a secure room. He stated that the originals were given back to Mr. Hemmer. He testified to signing and dating Exhibit M‑19, the journey log excerpt for aircraft C‑GGXL.

(4) Chad Joseph Laframboise

[19] Chad Joseph Laframboise is a licensed AME, and is currently the Operations Manager for Northern Uniform. He testified that he was the Maintenance Manager for Eagle Flight Centre from June 2008 until late November 2008. He further testified that he only had a “couple of brief encounters” with Mr. Hemmer after those dates.

[20] Mr. Laframboise stated that he was contacted by Mr. Hemmer who notified him that there was going to be an audit by Transport Canada. Mr. Laframboise claimed that Mr. Hemmer was requesting his involvement with this audit, to which he commented at the hearing, “I didn't understand seeing as … I had resigned”. At that point, Mr. Laframboise contacted Transport Canada as he felt that “there were things happening behind the scenes that I wasn't aware of, and I wanted Transport Canada to understand where I stood …”

[21] Regarding his resignation from Eagle Flight Centre, Mr. Laframboise stated that he sent an invoice attached to an email to Mr. Hemmer, which stated that he was finished with the position and would like to be paid for the services rendered. Mr. Laframboise stated that he no longer has a copy of this email, as he changed computers at home and could not recover the email. He stated that he never got a response to his email to Mr. Hemmer, and as such he ceased further duties for Eagle Flight Centre.

[22] Mr. Laframboise stated that he had a phone conversation with Mr. Hemmer regarding his resignation. He stated that Mr. Hemmer requested he do more work for Eagle Flight Centre and Mr. Laframboise indicated that he was finished, in accordance with his previous email.

[23] With regard to the letter he signed for Mr. Hemmer (Exhibit M‑21), Mr. Laframboise indicated that Mr. Hemmer approached him and stated that he needed something in writing “to clarify what my role was and what the time frame was”. Mr. Hemmer came by his new workplace with a letter for Mr. Laframboise to sign, but Mr. Laframboise stated that he was not able to sign the letter “because there were clearly some untruths in it”. Regarding the letter, he stated, “I don't think I physically wrote on it”, but rather that he told Mr. Hemmer what the letter would have to say for him to sign it. According to Mr. Laframboise, Mr. Hemmer left and came back shortly thereafter, stating that he had edited it according to what he had said. Mr. Laframboise stated that he read the letter quickly, and that once he saw that there were changes made, he signed the letter. He stated that he was busy and found it “somewhat embarrassing to have somebody chasing me around the plant”.

[24] Regarding the differences in the letters Mr. Hemmer brought him to sign, Mr. Laframboise indicated that the initial letter stated that he had worked until May. He did not agree with this statement. He stated that “…I offered the names of two people who may be suitable to replace me, and that was the only thing that happened between November and May”, and he requested that this change be made to the letter. Mr. Laframboise stated that when Mr. Hemmer came back with the letter, “he assured me that it was in there”, so he signed the letter. However, he stated that when he read the letter after signing it, he found it to be misleading, as it was written that “in November, Mr. Hemmer and I agreed to continue business until a suitable replacement could be found”. Mr. Laframboise indicated that this is not correct, and that he simply agreed to bring forth the names of some people who he thought would be suitable for the position. Furthermore, he stated that the statement “we searched for and interviewed many candidates” is not correct. Rather, he indicated that he was told that there were candidates interviewed, but he did not participate in that process. Mr. Laframboise also took issue with the statement “late November 2008 I informed Mr. Hemmer that I would like to resign”. Rather, he noted that at this time, he sent an email to Mr. Hemmer stating that he was resigning the position.

[25] Regarding the context of the letter signing, Mr. Laframboise stated that he was uncomfortable having Mr. Hemmer in his work environment, so he signed the letter in order to finish his dealings with him. He then later read the letter and noticed its inaccuracies. Mr. Laframboise indicated that he drafted an email to Mr. Miller explaining the circumstances of the letter and also explained these circumstances in their telephone conversation.

[26] When asked about his interactions with Nicholas Hurdman, Mr. Laframboise stated that his only dealings with Mr. Hurdman were when he was beginning the role of Maintenance Manager for the company. According to Mr. Laframboise, “he introduced me to the computer program which I understand or I believe he developed to control maintenance and flights and maintenance schedules”.

[27] In cross-examination, Mr. Laframboise clarified that when his home computer stopped working, he was not able to recover his resignation letter. He agreed that he attached an invoice to his resignation letter, but that he does not currently have a copy of the invoice. He also could not recall providing Transport Canada with a copy of the invoice, but when presented with Exhibit A-3, he agreed that it was the invoice to which he was referring. He stated that he resigned from the position in writing by email in November 2008, but did not notify the Minister of his resignation at that time. As such, he stated that the first time the Minister received anything from Mr. Laframboise in writing would have been the follow-up email he sent to Mr. Treleaven after their phone conversation.

[28] When presented with a copy of the draft letter on cross‑examination (Exhibit A‑4), Mr. Laframboise confirmed that the writing at the bottom of the page was his, which included the following note:

I informed Mr. Hemmer that I would like to resign in [the] fall. Mr. Hemmer & I continued business on a consultation basis until a suitable replacement was found. We searched for and questioned many candidates, and found someone in May 2009.

When questioned, Mr. Laframboise agreed that the last two paragraphs of the letter he signed match what he wrote at the bottom of the draft letter.

[29] Mr. Laframboise was also presented with a Continuing Business Agreement dated July 21, 2008 (Exhibit A‑5). He stated that while he was familiar with some of the information contained in the document, the document itself did not look familiar. He agreed that the document outlined the Continuing Business Agreement between him and Eagle Flight Centre as of July 21, 2008, and confirmed that consultation was part of his business arrangement with the company. When asked, he agreed that his hand-written note stating that they “continued business on a consultation basis” at the bottom of the draft letter matches the wording of the Continuing Business Agreement.

[30] On re‑examination, Mr. Laframboise agreed that because of the three years that had passed since the event, he did not have an exact recollection of whether he had made hand‑written notes on the draft letter. He also agreed that at the time he signed the letter, he was more concerned with his current job than addressing the details of Mr. Hemmer's needs. Moreover, he noted that he was not given a copy of the letter he signed for Mr. Hemmer, and that because he had not seen it for a long time, he did not have an exact recollection of the changes he had requested. He also agreed that the terms “consultation” and “consulting” could be used in a variety of contexts, and that he had not done any Maintenance Manager duties at Eagle Flight Centre since his resignation.

B. Applicant

(1) Roland Kurt Hemmer

[31] Roland Kurt Hemmer began flight training in 1983 after first being licensed in 1981. He started Eagle Flight Centre in 1994, and he is the owner, operator, president and the only employee of the company. Mr. Hemmer stated that the maintenance at Eagle Flight Centre is performed by Lawrence Aero, which has done their maintenance for about 16 years.

[32] When asked about the maintenance tracking system used by Eagle Flight Centre, Mr. Hemmer stated that the system is programmed to schedule the next upcoming inspection. Mr. Hemmer stated that once the tracking system shows that the aircraft is due for maintenance, the air operator is notified and a purchase order is printed. He stated that the Maintenance Manager's role is to ensure that no airworthiness directives have been missed and that the aircraft goes in on schedule. He noted that Lawrence Aero also has a system in place to track upcoming maintenance, but that previous audits have found this system to not be secure. When maintenance is required, Mr. Hemmer flies the aircraft to Lawrence Aero. In summary, he stated that the role of Maintenance Manager for Eagle Flight Centre includes scheduling maintenance, determining whether there are any new or recurring airworthiness directives to address, and ensuring everything is covered for upcoming inspections.

[33] Mr. Hemmer stated that two inspections were done in 2008, and estimated that for the 100‑hour inspection that was done, Mr. Laframboise was required to put in about 15 to 20 minutes of work. Mr. Hemmer stated that he spoke to Mr. Laframboise after this inspection, and that no additional work was required. Mr. Hemmer noted that they discussed Mr. Laframboise's role at Eagle Flight Centre at that time, but did not discuss his resignation. Rather, he stated that this was discussed sometime around late November or early December 2008, when Mr. Laframboise said that “he was thinking of resigning”. However, Mr. Hemmer recalled Mr. Laframboise saying that he would remain in the position until a replacement was found. Mr. Laframboise later provided Mr. Hemmer with two names as possible replacements. The subsequent Maintenance Manager took on the role in May 2009.

[34] Mr. Hemmer noted that he dealt with the data entry for the company. Mr. Hemmer clarified that Mr. Hurdman is the company's “computer person” who programmed the maintenance tracking system for Eagle Flight Centre.

[35] Mr. Hemmer stated that he had not seen the Invoice and the Continuing Business Agreement (Exhibits A-3 and A-5) prior to the Review Hearing.

[36] Mr. Hemmer stated that he had contact with Mr. Laframboise when an aircraft was due for a 50-hour inspection in April 2009. At that time, Mr. Hemmer contacted Mr. Laframboise and requested that he come and go over the maintenance tracking system and the airworthiness directives. Mr. Hemmer stated that Mr. Laframboise “wasn't interested in coming out and doing it. He just basically said, ‘send it down to Lawrence Aero'”. Mr. Hemmer then printed off the maintenance package, signed it, and sent it to Lawrence Aero.

[37] Mr. Hemmer's next contact with Mr. Laframboise occurred when he contacted Mr. Laframboise regarding an upcoming Transport Canada audit. Mr. Hemmer stated that he contacted Mr. Laframboise in early May to tell him about a meeting and to ask if a pre-audit could be scheduled. Mr. Hemmer stated that a time was set for the pre-audit meeting, and that Mr. Laframboise failed to show up. According to Mr. Hemmer, there were “no calls, no cancellation, no notification. He just wasn't there”.

[38] Mr. Hemmer reported that he was informed that he no longer had a Maintenance Manager when he received a letter and an email from Transport Canada postponing the scheduled audit because of a lack of a Maintenance Manager. Mr. Hemmer states that at that point, he attempted to contact both Transport Canada and Mr. Laframboise, and could not reach either. He was finally able to reach Mr. Laframboise at some point “after the entire audit was cancelled”. Mr. Hemmer reported discussing with Mr. Laframboise why he did not have a Maintenance Manager when Mr. Laframboise had stated that he would cover as Maintenance Manager until a new person was in place. He stated that his next conversation with Mr. Laframboise was probably not until the following year in April 2010.

[39] Mr. Hemmer stated that Mr. Hurdman drafted the letter signed by Mr. Laframboise. He stated that he went to go visit Mr. Laframboise at his place of work so that Mr. Laframboise could review and sign the letter. Mr. Laframboise stated that he was uncomfortable with the letter, so Mr. Hemmer offered to make any changes he desired to the letter. Mr. Laframboise then made some changes to the letter, and Mr. Hemmer brought the letter back to Mr. Hurdman so that the corrections could be made.

[40] After the corrections were made, Mr. Hemmer brought the letter back to Mr. Laframboise at his place of employment. Mr. Hemmer reported that he approached Mr. Laframboise in his office, and that Mr. Laframboise did not seem agitated. Mr. Laframboise did not make any further changes to the letter before signing it.

[41] Mr. Hemmer stated that he stopped operating when he was told by Transport Canada that he did not have a Maintenance Manager.

[42] Mr. Hemmer noted that he requested a copy of the email that Mr. Laframboise sent to Transport Canada once he had learned that Mr. Laframboise had contacted Transport Canada. However, Mr. Hemmer never received a copy of this email as requested. When asked if Mr. Laframboise had ever told Mr. Hemmer that he quit, Mr. Hemmer answered in the negative.

[43] On cross-examination, Mr. Hemmer was asked what the purpose was in having Mr. Laframboise sign a letter that neither he nor Mr. Hemmer had written. Mr. Hemmer responded that “it was to discover what went on and what the procedures were from Mr. Laframboise” as he was the Maintenance Manager for the company. Mr. Hemmer stated that he did not feel he was pressuring Mr. Laframboise into signing the letter. According to Mr. Hemmer, “he may have been busy, but he gave no indication that I was a bother to him”.

[44] When questioned about the purpose of the letter, Mr. Hemmer denied the allegation that he just wanted Mr. Laframboise to say he was the Maintenance Manager. According to Mr. Hemmer, “I didn't get him to say he was the PRM; he actually was the PRM”.

[45] Mr. Hemmer could not explain why Mr. Laframboise would have scratched out the paragraph of the original letter which stated that he was employed full-time as Maintenance Manager during the time in question and that he did not resign in October, as alleged, if he was indeed still employed with Eagle Flight Centre.

[46] Mr. Hemmer noted that he had a new candidate for Maintenance Manager at the end of May or early June 2009, immediately after finding out that Mr. Laframboise was no longer with Eagle Flight Centre. The new candidate, however, was not successful in his Transport Canada interview.

(2) Nicholas Hurdman

[47] Mr. Hurdman is a retired teacher who spent much of his career teaching computer programming. He holds an aviation licence, and has also taught aviation in the Canadian Armed Forces. He reported meeting Mr. Hemmer in the late 1980s when he was taking flight training. He reported that Mr. Hemmer had an audit during that time that did not go well, and Mr. Hurdman made some recommendations for improvement. Mr. Hurdman stated that he became more involved with the workings of Eagle Flight Centre at that time, and by 2003, he had a database application in place to suit Eagle Flight Centre's specific needs.

[48] Mr. Hurdman recalled being present for the scheduled pre-audit meeting, and Mr. Laframboise not showing up for the meeting. Mr. Hurdman recalled that shortly thereafter, Eagle Flight Centre received a letter from Transport Canada for non-compliance for not having a Maintenance Manager. He stated that he thinks Eagle Flight Centre received the letter in March 2010. Mr. Hurdman stated that, as a result of the letter, he advised Mr. Hemmer to “get rid of your OC [operator certificate] right away. Take it over and surrender your OC [operator certificate] and figure out what is going on”.

[49] With regard to Exhibit A-4, Mr. Hurdman stated that he suggested to Mr. Hemmer that he get something in writing from Mr. Laframboise. Mr. Hurdman reported that he drafted the letter for Mr. Hemmer who then took it to Mr. Laframboise. He stated that Mr. Hemmer reported to him that Mr. Laframboise was uncomfortable with part of the letter, so Mr. Hurdman made the changes requested by Mr. Laframboise. He stated, however, that he did not copy Mr. Laframboise's suggestion verbatim, but that he paraphrased it. He stated that “in retrospect, maybe I should have copied exactly, verbatim, but I just put what was there. I think it still pretty well covers what was on there”.

[50] On cross-examination, Mr. Hurdman was asked what his role is with Eagle Flight Centre. He responded that “I don't really have a position or a title. I just do stuff… I do the computer program and assist with some of the data entry”. He further elaborated that he and Mr. Hemmer are “definitely friends, and I help out with the operation, but I don't have any official capacity”.

IV. ARGUMENTS

A. Minister

(1) Proving the Allegation

[51] The Minister submits that she has proven, on the balance of probabilities, that the Applicant operated a flight training service when it did not employ a full-time Maintenance Manager. The Minister notes that this is a strict liability offence, and as such she is not required to prove any intent on the part of the Applicant.

[52] The Minister submits that the daily flight sheets for Eagle Flight Centre for May 18, 2009, and the journey logbook excerpt for the aircraft show that Eagle Flight Centre conducted flight training on May 18, 2009. As well, she notes that this point was also admitted to by Mr. Hemmer.

[53] The Minister submits that based on subparagraph 406.11(2)(b)(iv) of the CARs, Eagle Flight Centre is required by law to employ a full-time Maintenance Manager as it is a Flight Training Unit (FTU).

[54] Mr. Laframboise swore under oath that he was not the Maintenance Manager for Eagle Flight Centre on or about May 18, 2009. Rather, he testified that he resigned as Maintenance Manager in late 2008, about six months prior to the date in question. Mr. Laframboise testified that he indicated he was resigning to Mr. Hemmer both in writing and over the phone.

[55] The Minister submits that Mr. Laframboise's recollection of the matter at issue is supported by a variety of documents and/or occasions, including:

  1. His telephone conversation with Inspector Treleaven in which he advised Mr. Treleaven of his resignation;
  2. Mr. Treleaven's testimony to that effect;
  3. Mr. Laframboise's email to Mr. Treleaven confirming their telephone conversation;
  4. Mr. Laframboise's telephone conversation with Mr. Miller in which he confirmed his resignation;
  5. Mr. Miller's testimony to that effect;
  6. Mr. Miller's notes of the telephone conversation;
  7. Mr. Laframboise's email to Mr. Miller confirming their telephone conversation, and confirming that he was not the Maintenance Manager for Eagle Flight Centre.

[56] The Minister submits that although the letter signed by Mr. Laframboise is “arguably slightly contradictory” to his other statements, the letter should be given little weight, since Mr. Laframboise gave sworn testimony as to how the letter should be interpreted, how he came to sign the letter, and that he was not Maintenance Manager at the time in question. The Minister submits that this testimony carries more weight than the letter, which was not signed under oath.

[57] Moreover, even though the signature on the letter was Mr. Laframboise's, the letter was presented to him for his signature at his place of employment without him having had the opportunity to review it. Furthermore, both Mr. Hemmer and Mr. Hurdman testified that Mr. Laframboise was very uncomfortable with the letter. The Minister submits that it is clear Mr. Laframboise crossed out the last paragraph that stated he was employed full‑time as a Maintenance Manager for Eagle Flight Centre during the period in question. The Minister submits that this highlights the fact that Mr. Laframboise was denying the contents of that paragraph, and also demonstrates he was not employed full-time as Maintenance Manager for Eagle Flight Centre.

[58] The Minister contends that the Applicant's position that Mr. Laframboise continued to work for Eagle Flight Centre as Maintenance Manager is not believable because of the abundance of evidence to the contrary, including Mr. Laframboise's statement that he was not involved with any maintenance work at Eagle Flight Centre for six months starting in November 2008. Other evidence supporting this point includes Mr. Laframboise's July 17, 2008 letter to Transport Canada stating that he intended to visit Eagle Flight Centre regularly throughout the week (Exhibit M‑2); however, no such visit occurred for about six months.

[59] Furthermore, Mr. Hurdman provided testimony that he was performing several of the Maintenance Manager functions, including participating in audits. According to the Minister, “if there had been a PRM, as stated by Mr. Hemmer, it raises the question as to why his friend, who did not even hold an official position at Eagle Flight, would be getting involved in PRM work to begin with”.

[60] Moreover, the Minister notes that Mr. Hemmer did not put any evidence on record to show that he contacted Mr. Laframboise immediately upon hearing the “allegedly surprising news” that Mr. Laframboise was no longer Maintenance Manager. The Minister argues that a reasonable person would have called and kept some record of contacting the Maintenance Manager immediately after learning of their resignation, to try to understand where the communication broke down. However, the Minister submits that none of this occurred because Mr. Hemmer knew long before of Mr. Laframboise's resignation.

[61] Furthermore, the Minister submits that Mr. Laframboise had nothing to gain by informing Transport Canada that he had resigned from his position as Maintenance Manager if this was not true. Mr. Hemmer, on the other hand, knew that he would be facing an enforcement action if he was unable to convince Transport Canada that Mr. Laframboise was lying about his resignation.

[62] The Minister submits that Mr. Hemmer contacted Mr. Laframboise twice in an attempt to have him tell Transport Canada that he was the Maintenance Manager for Eagle Flight Centre. This first occurred in May 2009, shortly after receiving the letter from Transport Canada advising Eagle Flight Centre that it was going to undergo a PVI, and once again in April 2010 when he had Mr. Laframboise sign the letter written by Mr. Hurdman. The Minister notes that Mr. Hemmer's April 2010 visit to Mr. Laframboise occurred shortly after he was advised that Transport Canada was investigating Eagle Flight Centre for an alleged contravention of the CARs. The Minister submits that the timing of this contact favours the Minister's theory that Mr. Hemmer only contacted Mr. Laframboise when he was concerned that Transport Canada would find out about the lack of a Maintenance Manager at Eagle Flight Centre.

[63] The Minister submits that Mr. Laframboise testified that he resigned as Maintenance Manager and, as such, ceased to fulfil the obligations and responsibilities for the position.

[64] The Minister submits that Mr. Hurdman's testimony is mostly irrelevant to the contravention, and submits that his testimony at times contradicts Mr. Hemmer's; for instance, both people claimed to do the data entry for the company. Furthermore, the Minister submits that Mr. Hurdman stated that the company found out about Mr. Laframboise's resignation in March, while Mr. Hemmer stated that he only learned of the resignation in May. The Minister submits that Mr. Hurdman's testimony reinforces the theory that Mr. Laframboise was no longer at Eagle Flight Centre by confirming that Mr. Hurdman performed several of the Maintenance Manager's functions.

[65] In terms of assessing credibility, the Minister cites case law stating that evidence of a disinterested witness should prevail over that of a person who may be interested in the outcome of the case. Indeed, the Minister submits that when an important fact is contradictory, a reviewing body must weigh the motives of the witnesses, their relationship with the parties, their attitude and demeanour in the witness box, the way in which they gave evidence, and the probability of the facts sworn, in order to reach a conclusion as to which version should be taken as true. As such, the Minister argues that the evidence of Mr. Laframboise deserves extra consideration since he is a disinterested witness, while Mr. Hemmer has an interest in the outcome of the Review Hearing. Moreover, in terms of the probability of the facts sworn by the witnesses, the Minister submits that Mr. Laframboise should not be believed as having been the Maintenance Manager for Eagle Flight Centre given that he had not shown up at the company for six months.

(2) Sanction

[66] In discussing the sanction, the Minister submits that the $5 000 monetary penalty assessed against the Applicant is fair and should be upheld. The Minister submits that Wyer v. Canada (Minister of Transport), 1988 CAT File No. O-0075-33 (Appeal),lists the principles that should be considered when determining a sanction, including: denunciation, deterrence, and rehabilitation. The Minister submits that a $5 000 fine provides a punishment but is not too severe. Furthermore, the Minister submits that this amount is what is consistent with Transport Canada's internal policy. Indeed, the Minister submits that the fine of $5 000 meets the principle of denunciation without being excessive, and is also appropriate in achieving the principle of deterrence. Finally, the Minister submits that a penalty of $5 000 would allow Eagle Flight Centre to be rehabilitated, and not be pushed into bankruptcy as the result of an excessive fine.

[67] The Minister submits that there are aggravating factors in this instance, which include Mr. Hemmer's dishonesty insofar as he claimed that he was not advised of Mr. Laframboise's resignation, as well as the fact that the planned flights occurred when the company did not have a Maintenance Manager. Moreover, the Minister notes that there were several breaches of the CARs in this instance, but that the Applicant was only charged for one breach. Furthermore, the Minister notes that Mr. Hemmer is experienced as a flight instructor, and has been operating his company for 20 years. Indeed, the Minister submits that “Mr. Hemmer's experience and knowledge of the procedures and regulations should be taken into account in assessing the proportionality of the monetary penalty”.

[68] In reply to the Applicant's closing statement, the Minister submits that the CARs stipulate that a company must have a full-time Maintenance Manager and that there is no exception for companies that have only one aircraft. Indeed, the CARs are clear about the requirements to be followed, and Eagle Flight Centre did not comply with those requirements.

B. Applicant

[69] The Applicant's Representative submits that although Mr. Laframboise claims to have quit as Maintenance Manager, nobody—including Mr. Laframboise, Transport Canada, or Mr. Hemmer—has a copy of the email, despite the fact that Mr. Laframboise was told by Transport Canada that he should notify it of any change in his status as Maintenance Manager.

[70] The Applicant's Representative submits that Mr. Laframboise stated that he did not do any work for Eagle Flight Centre after November 2008, and sent an email to that effect to Transport Canada; however, he did not send this information to Eagle Flight Centre.

[71] The Applicant's Representative notes that when Transport Canada informed Eagle Flight Centre that it did not have a Maintenance Manager, Mr. Hemmer voluntarily surrendered his OC, essentially shutting down his operation.

[72] The Applicant's Representative submits that there are problems with the testimony of the Minister's witnesses in this case. For instance, Mr. Treleaven stated that his role includes ensuring the verification of the quality assurance system at aviation enterprises, yet Mr. Treleaven admitted that he does not know the system used at Eagle Flight Centre. The Applicant argues that it is important to know the system used as that would determine his knowledge of the responsibilities of the Maintenance Manager at Eagle Flight Centre.

[73] Similarly, Mr. Houle testified that his job was to verify quality assurance systems at aviation enterprises; however, he admits that he does not know the quality control systems at Eagle Flight Centre.

[74] Furthermore, the Applicant's Representative argues that it is a two-step process to terminate a Maintenance Manager. First, one of the five situations described in the Minister's letter at Exhibit M‑2 must exist; then secondly, the Minister must terminate the Maintenance Manager. In this case, there is no documentation of the Minister terminating Mr. Laframboise as Maintenance Manager. The Applicant's Representative notes that Mr. Treleaven did not terminate Mr. Laframboise as Maintenance Manager, nor did he contact Eagle Flight Centre to advise that it was without a Maintenance Manager.

[75] Mr. Hurdman explained how the systems at Eagle Flight Centre were developed, and having a computer program automate and verify most of the Maintenance Manager functions left the Maintenance Manager in an oversight role, which required limited time and work as the aircraft only flew about 50 hours in six months.

[76] Mr. Hurdman testified that he expected Mr. Laframboise to be at the pre-audit meeting, which was a major event for Eagle Flight Centre. Mr. Hemmer testified to the same effect. Mr. Hemmer also testified that he met with Mr. Laframboise in the fall, and that Mr. Laframboise expressed his desire to resign, but agreed to stay on until a replacement had been found. To this end, Mr. Laframboise provided Mr. Hemmer with a couple of names of possible replacements.

[77] The Applicant's Representative submits that Mr. Hemmer never got the email that Mr. Laframboise sent to Transport Canada stating that he quit. Similarly, Mr. Laframboise stated that he sent an email in November 2008 to resign his position, but such an email was never sent to Transport Canada.

[78] Mr. Hemmer contacted Mr. Laframboise when the 50-hour inspection was due; Mr. Laframboise said to proceed with the inspection. Meanwhile, Mr. Laframboise was expected at the pre-audit by both Mr. Hemmer and Mr. Hurdman, but failed to show up.

[79] Indeed, rather than attending the pre-audit, Mr. Laframboise emailed Transport Canada to say that he had not done any recent work for the company. However, he neglected to send this email to Eagle Flight Centre. The Applicant's Representative submits that Eagle Flight Centre expected Mr. Laframboise to fulfil the functions of the Maintenance Manager.

[80] The Applicant's Representative states that one year after the event, Mr. Hemmer met with Mr. Laframboise and offered him a letter for his review. He made notes on the bottom of the letter to reflect the changes he wished to make. These changes were incorporated into a second letter which Mr. Laframboise then signed.

[81] Moreover, while the Minister suggests that Mr. Hemmer was untruthful in this case, the Applicant submits that “the conduct, untruthfulness, obfuscation of … [Mr.] Laframboise was clear”. Mr. Hemmer, however, surrendered his OC as soon as he learned about the company's lack of a Maintenance Manager. The Applicant's Representative submits that this demonstrates that Mr. Hemmer and Eagle Flight Centre take safety very seriously.

V. ANALYSIS

A. Burden of Proof

[82] Based on the evidence before me and the agreement of the Applicant, I am satisfied that Eagle Flight Centre conducted flights on May 18, 2009. As such, the issue left to be determined is whether Eagle Flight Centre had a Maintenance Manager on this date, or whether the company was operating contrary to the CARs, as alleged by the Minister.

[83] The burden is on the Minister to demonstrate that the Applicant did not have a Maintenance Manager on the date in question. The Minister has brought evidence that Mr. Laframboise was not the Maintenance Manager on this date, including the testimony of Mr. Laframboise, as well as emails and discussions between Mr. Laframboise and Transport Canada Inspectors.

[84] I note that the Minister's case hinges on the testimony and evidence provided by Mr. Laframboise. Indeed, all of the evidence before me regarding a lack of a Maintenance Manager was either provided directly by Mr. Laframboise, or evidence that was created as a result of communications between Mr. Laframboise and Transport Canada. As such, the credibility of Mr. Laframboise's testimony is crucial in determining that the Minister has proven her case.

B. Credibility and Evidentiary Findings

[85] There are several inconsistent statements in the testimony of Mr. Laframboise that result in my placing little weight on his testimony. One such inconsistency is his testimony that he made no physical notes on the letter brought to him by Mr. Hemmer, whereas he then agreed that Exhibit A‑4 contains his hand-written notes. Of course, this in and of itself could be a forgivable error due to the passage of time, as noted by the Minister.

[86] However, it is also noteworthy that during his testimony Mr. Laframboise claimed to have read the edited letter quickly prior to signing it, but when later asked if he read the edited letter before or after signing it, his response was “after I signed it.” Indeed, Mr. Laframboise then testified that he signed the letter brought to him by Mr. Hemmer without reading it, then later noted that his changes were not incorporated, which resulted in inconsistent statements being made which conflict with his later testimony. However, the draft version of the letter makes it clear that the changes made by Mr. Laframboise were indeed incorporated into the letter, thereby demonstrating Mr. Laframboise's approval of the letter. Consequently, Mr. Laframboise's attempt to distance himself from the letter rings false as he clearly affected the substantive content of the letter.

[87] I find that the discrepancies in Mr. Laframboise's explanation about how he came to sign the letter, in conjunction with the fact that he signed the letter, then provided inconsistent testimony about this issue, has resulted in a concern of credibility regarding this witness's testimony.

[88] Indeed, I find that Mr. Laframboise's evidence was also inconsistent with regard to his role in finding a replacement Maintenance Manager. On the one hand, he claims that his involvement in this aspect was very limited, stating that: “the only thing that we did was that I offered the names of two people who may be suitable to replace me, and that was the only thing that happened between November and May”. He then stated in his testimony that “you contacted me in that time, and we spoke about two candidates that may be able to replace me. I don't even know what happened, so make those changes.” However, he wrote in his May 4, 2010 email to Randy Miller that “I pursued a couple of possible candidates, and one of them seemed interested” (Exhibit M‑24). He states further in this same email that “the phrase ‘doing business' in the letter was referring to the time spent as a consultant and as a recruiter between Jan and Apr 2009”. Moreover, Mr. Laframboise's writing on the draft letter states that “I informed Mr. Hemmer that I would like to resign in [the] fall. Mr. Hemmer & I continued business on a consultation basis until a suitable replacement was found. We searched for and questioned many candidates, and found someone in May 2009” [emphasis added]. Clearly, these statements are contradictory in terms of his involvement in finding a Maintenance Manager replacement.

[89] The Minister submits that there are inconsistencies in the testimony of the Applicant's witnesses as well; for instance, that both Mr. Hemmer and Mr. Hurdman claim to do data entry for Eagle Flight Centre. However, I note that it is possible for both witnesses to contribute to the data entry, and that one person doing data entry does not preclude another person from assisting with it as well.

[90] Of greater interest for the purpose of this Review Hearing is the inconsistency alleged by the Minister that Mr. Hurdman stated that the company knew of Mr. Laframboise's resignation in March, while Mr. Hemmer stated that he only learned of his lack of a Maintenance Manager in May. While this discrepancy could be note‑worthy, I find that the context of this discrepancy is important. Indeed, although Mr. Hurdman provides a tentative date, saying, “I think it was March”, he then went on to describe the same set of circumstances described by Mr. Hemmer in discovering the lack of a Maintenance Manager, which involves the letter Eagle Flight Centre received by Transport Canada in May 2009.

[91] Of course, of these two witnesses, it is Mr. Hemmer's testimony that is the most significant to the Minister's case. Nevertheless, based on the demeanour and the probability of the truth of Mr. Hemmer's evidence, I was not inclined to place great weight on this evidence. However, I am nevertheless inclined to prefer the testimony of the Applicant's witnesses to that of Mr. Laframboise because of the multiple inconsistencies found in his testimony.

[92] While the Minister suggests that Mr. Laframboise's testimony deserves more weight because he is a disinterested witness to the proceedings, I note that the charges in this case originated from a complaint made by Mr. Laframboise to Transport Canada, and that the entirety of the evidence put forward by the Minister to prove this case originates from this same witness. Indeed, Mr. Laframboise's inconsistent testimony is the entire foundation for the Minister's case.As such, I believe that his testimony must be considered in the context of an unsatisfied former employee who did not end his job on amicable terms: Mr. Laframboise wrote to Transport Canada that he left the position because of a “communication breakdown” (Exhibit M-1), and has also complained that he was not paid for the services rendered. When examined in this light, the evidence provided by Mr. Laframboise is not disinterested or impartial.

[93] I do not find that the testimony of Mr. Laframboise is enough in and of itself to prove the contravention on the balance of probabilities. In this case, unfortunately, the problematic testimony of Mr. Laframboise and evidence resulting from it is the crux of the Minister's case, and it is not enough to convince me of the contravention on the balance of probabilities. As such, I find that the charges against the Applicant should be dismissed.

C. Proving the case

[94] Nevertheless, the Minister states that for all intents and purposes, Eagle Flight Centre knew there was no Maintenance Manager as Mr. Laframboise was inactive for at least a six‑month period. However, I note that Transport Canada knew at the outset that Mr. Laframboise's involvement as Maintenance Manager would be limited at times based on the work plan he submitted, and that Transport Canada approved this work plan prior to appointing him as Maintenance Manager. Moreover, both the Continuing Business Agreement and the letter signed by Mr. Laframboise demonstrate that this consultation relationship was a part of Mr. Laframboise's business arrangement with the company.

[95] Furthermore, in the conversation Mr. Laframboise had with Mr. Miller on May 4, 2010 (Exhibit M‑23), Mr. Miller describes Mr. Laframboise as having stated that: “Mr. Hemmer kept on contacting him during the time period; however, he had no knowledge of the status of Eagle Flight Centre aircraft.” This lends support to Mr. Hemmer's testimony that he attempted to contact Mr. Laframboise to have him fulfill the duties required of a Maintenance Manager, including the request to attend the pre-audit meeting, which was testified to by Mr. Hemmer and Mr. Hurdman.

[96] I find that the Minister has not demonstrated, on the balance of probabilities, that the Applicant did not have a Maintenance Manager at the time of the alleged infraction. Indeed, the Minister has not shown that Mr. Laframboise left the role at any specific point in time. Rather, based on the evidence before me, it appears that Mr. Laframboise essentially stopped following through with commitments he made to Eagle Flight Centre and their requests for assistance. This in and of itself is not adequate proof that the Applicant did not have a Maintenance Manager on the date in question. Indeed, Transport Canada was aware that Mr. Laframboise would only be employed on a part‑time basis, and accepted him as Maintenance Manager despite this fact.

[97] Moreover, the Minister notes that Mr. Laframboise sent a letter to Transport Canada on July 17, 2008, stating that he intended to visit Eagle Flight Centre regularly throughout the week, but that no such visit occurred for six months. While the Minister submits that this is proof that Mr. Laframboise was no longer the Maintenance Manager at this time, I note that this can alternatively be interpreted as supporting the theory that Mr. Laframboise became unreliable as the Maintenance Manager, rather than proof that he had quit the position altogether. The evidence before me, combined with the problems in Mr. Laframboise's testimony, suggest that Mr. Laframboise became unreliable in his role as the Maintenance Manager, rather than quitting the position as alleged.

D. Termination of Approval

[98] The Applicant has argued that terminating a Maintenance Manager is a two-step process, including the existence of one of five situations, followed by the Minister's termination of the Maintenance Manager. Indeed, the letter sent by the Minister to Mr. Laframboise states that the Minister's approval to act as Maintenance Manager may be rescinded if one of the five situations occurs. However, in this case, the Minister merely took the alleged existence of one of the five factors as proof that the Applicant no longer had a Maintenance Manager.

[99] Indeed, the Minister has not demonstrated that Mr. Laframboise had quit as the Maintenance Manager prior to the date in question. As discussed, his limited activity in the company was known to and approved by Transport Canada, based on Mr. Laframboise's approval letter (Exhibit M‑2). Moreover, even if Mr. Laframboise did cease to fulfill his obligations, surely a subsequent cancellation of approval should have resulted in notification from Transport Canada to both the Maintenance Manager and the company for which he was approved to work. Consequently, it would seem that the Minister missed a vital stage in the process: both the official termination of approval of Mr. Laframboise as the Maintenance Manager, and notification to all the parties affected regarding this termination of approval.

[100] I find that the Minister has not proven, on the balance of probabilities, that the Applicant contravened the CARs as alleged. As such, I find that the charge against the Applicant should be dismissed.

VI. DETERMINATION

[101] The Minister of Transport has not proven that the Applicant, 1074040 Ontario Inc., contravened subsection 406.03(1) of the Canadian Aviation Regulations. Consequently, the monetary penalty of $5 000 is dismissed.

November 19, 2013

J. Richard W. Hall

Chairperson