Decisions

TATC File No. O-4085-33
MoT File No. Z-5504-083217 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Guy Van Brabant, Applicant

- and -

Minster of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2
Canadian Aviation Regulations, SOR/96-433


Review Determination
Charles Sullivan


Decision: September 28, 2015

Citation: Van Brabant v. Canada (Minister of Transport), 2015 TATCE 17 (Review)

Heard in: Sarnia, Ontario, May 4 to 7,2015

REVIEW DETERMINATION AND REASONS

Held: Count 1: The Minister has proven, on a balance of probabilities, that the applicant, Mr. Guy Van Brabant, contravened subsection 602.14(2) of the Canadian Aviation Regulations pursuant to subsection 8.4(1) of the Aeronautics Act. As such, the monetary penalty of $750.00 is upheld.

Count 2: The Minister has proved, on a balance of probabilities, that the applicant, Mr. Guy Van Brabant, contravened section 602.21 of the Canadian Aviation Regulations pursuant to subsection 8.4(1) of the Aeronautics Act. As such, the monetary penalty of $1,000.00 is upheld.

The total amount of $1,750.00 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 issued a Notice of Assessment of Monetary Penalty (Notice) to the applicant, Mr. Guy Alexander Van Brabant, as the registered owner of aircraft C-GMMR, on August 20, 2014, pursuant to subsection 8.4(1) of the Aeronautics Act, R.S.C., 1985, c. A-2, with respect to alleged contraventions of subsection 602.14(2) and section 602.21 of the Canadian Aviation Regulations, SOR/96-433 (CARs).

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

1.  On or about September 8, 2013, at approximately 14:18 local time, at or near Germain Park, Sarnia, Ontario, a person operated a Van's RV-6 aircraft bearing registration C-GMMR while conducting neither a take-off, an approach or landing at a distance less than 500 feet from a person, thereby contravening subsection 602.14 (2) of the Canadian Aviation Regulations. Pursuant to subsection 8.4(1) of the Aeronautics Act, you, as the registered owner of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefor.

Monetary Penalty Assessed: $750.00

2.  On or about September 8, 2013, at approximately 14:18 local time, at or near Germain Park, Sarnia, Ontario, a person operated a Van's RV-6 aircraft bearing registration C-GMMR in such proximity to another aircraft as to create a risk of collision, thereby contravening section 602.21 of the Canadian Aviation Regulations. Pursuant to subsection 8.4(1) of the Aeronautics Act, you, as the registered owner of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefor.

Monetary Penalty Assessed: $1000.00

II. STATUTES AND REGULATIONS

[3] Subsection 602.14(2) of the CARs reads as follows:

602.14(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

[4] Section 602.21 of the CARs reads:

602.21 No person shall operate an aircraft in such proximity to another aircraft as to create a risk of collision.

III. EVIDENCE

     A.  Minister

1) Inspector Martina Wassmer

[5] Inspector Wassmer has been an employee of Transport Canada (TC) for ten years. She has an Air Transport Pilot Licence Class 1 Instructor rating and has flown as a corporate charter pilot. She has approximately 4500 hours total flying time.

[6] The respondent introduced Exhibit M-1, an email dated October 8, 2013, from Mr. Mark Seibutis to Inspector Wassmer. Inspector Wassmer testified that this email requested that she contact Mr. Stewart of RCAFA 403 Wing. She stated that in her subsequent conversation with Mr. Stewart, she learned that he was upset over the flypast that occurred on September 8, 2013 over the cenotaph at Germain Park, in Sarnia, Ontario.

[7] Inspector Wassmer testified that Mr. Stewart provided details on the location of the flypast and a description of the event. She stated that Mr. Stewart reported that the first flypast, which was flown from east to west over the cenotaph, was flown as planned and without incident; however, during the second flypast a few minutes later, a lone white aircraft flew through the formation in a diving manoeuvre, descending towards the crowd. Inspector Wassmer stated that she requested a written statement from Mr. Stewart describing the event and providing details.

[8] The respondent introduced Exhibit M-2 as evidence, an email dated October 27, 2013, from Mr. Kerry Horan to TC Inspector Wassmer. The email was read into the record by Inspector Wassmer. The respondent asked a single question to Inspector Wassmer regarding the last line of the email where it was stated by Mr. Horan “…feel free to contact me for any other information …”. The respondent asked Inspector Wassmer if she had contacted Mr. Horan. She responded that she had not.

[9] The respondent introduced Exhibit M-3 as evidence, an email dated October 30, 2013, from Mr. Mark Seibutis to Inspector Wassmer. The purpose of the email was to inquire as to progress and actions toward remedying the issue related to the flypast on September 8, 2013. The respondent asked Inspector Wassmer if she had called back. Inspector Wassmer stated that she advised Mr. Seibutis that the email had been received.

[10] The respondent introduced Exhibit M-4 as evidence, an email dated October 30, 2013, from Mr. Seibutis to Inspector Wassmer, entitled “Intruder into Sarnia Fly Past”. The purpose of the email was to forward a letter from Mr. Stewart to Inspector Wassmer regarding the aviation incident that occurred during the flypast. The respondent posed a question to Inspector Wassmer regarding her actions once she had received the email and attached letter. Inspector Wassmer stated that she was unsure of the jurisdiction as she was responsible for “TC Ops East” and the aviation event occurred in “TC Ops West”. She stated that she requested clarification form TC Ops West, Mr. Henri DeBruyn, on how to proceed.

[11] The respondent introduced Exhibit M-5 as evidence, an email dated November 1, 2013, from Mr. DeBruyn to Inspector Brenda Frame with a copy to Inspector Wassmer, entitled “FW: Intruder into Sarnia Fly Past; FW: wild pilot”. The purpose of the email was to advise Inspector Frame from TC Ops West to review and offer support to Inspector Wassmer's efforts in collecting information related to the aviation incident in question. The email confirmed that Inspector Wassmer would continue collecting information on the incident.

[12] The respondent introduced Exhibit M-6 as evidence, an email dated November 5, 2013, from Mr. Kerry Horan to Inspector Wassmer, entitled “wild pilot”. The purpose of the email was to forward to Inspector Wassmer a copy of a video of the formation flypast.

[13] The respondent introduced Exhibit M-7 as evidence, a digital video/audio recording, dated September 8, 2013, of the “COPA Flight 7” formation flypast over Germain Park in Sarnia, as recorded by Ms. Lorna Horan. The video was viewed twice at the hearing and showed a single small white aircraft fly over the assembled group attending the ceremony, followed by a formation flypast of five aircraft. The respondent questioned Inspector Wassmer regarding her actions upon receiving the video recording. Inspector Wassmer stated that the video was registered in a Transport Canada database. She also stated that she had received a message from Mr. Van Brabant regarding Transport Canada's interest in the incident. She added that there was no return call, however, a voice message was left with Mr. Van Brabant. Contact was eventually made, however, Inspector Wassmer did not know the date of the incident and would call back to confirm details.

[14] The respondent introduced Exhibit M-8 as evidence, an email dated November 8, 2013, from Mr. Van Brabant to Inspector Wassmer, entitled “From Guy Van Brabant”. The purpose of the email was to advise Inspector Wassmer that he neglected to confirm the identification of aircraft related to the Transport Canada review of the incident.

[15] The respondent introduced Exhibit M-9 as evidence, a chain of emails as follows:

  1. Exhibit M-9(2) dated November 8, 2013, from Inspector Wassmer to Mr. Van Brabant. The purpose of the email was to ask Mr. Van Brabant to submit official documentation for aircraft C-GMMR on September 8, 2013;

  2. Exhibit M-9(4) dated November 8, 2013, from Mr. Van Brabant to Inspector Wassmer. The purpose of the email was to advise the Inspector of confusion on the date for requested aircraft information; and,

  3. Exhibit M-9(5) dated November 8, 2013, from Inspector Wassmer to Mr. Van Brabant. The purpose of the email was to confirm that the date of the incident was September 8, 2013.

[16] The respondent introduced Exhibit M-10 as evidence, an email dated November 8, 2013, from Mr. Van Brabant to Inspector Wassmer entitled “Log entries for Oct 08/2013”. The email included three attachments and three colour photos of pages from Mr. Van Brabant's pilot log book. The respondent highlighted the confusion regarding the date in question. Mr. Van Brabant forwarded information related to October 8, 2013, whereas Inspector Wassmer was asking for information related to September 8, 2013.

[17] The respondent introduced Exhibit M-11 as evidence, an email dated November 8, 2013, from Mr. Van Brabant to Inspector Wassmer entitled “Documentation request with regard to amended dates”. The email was read into the record by Inspector Wassmer and included five colour photos as attachments. The purpose of this email was to forward information requested by Inspector Wassmer regarding the aviation incident of September 8, 2013. Of significance, the aircraft and pilot log book documents forwarded by Mr. Van Brabant did not show any entries to indicate that his aircraft was flown on September 8, 2013. In his email, Mr. Van Brabant requested that he be included via conference call should Inspector Wassmer discuss this event with her supervisor. He also asked to receive a copy of the letter of complaint against him regarding the aviation event of that day. When questioned by the respondent about this request, Inspector Wassmer stated that any info gathered could not be shared with Mr. Van Brabant.

[18] The respondent introduced Exhibit M-12 as evidence, an email dated November 8, 2013, from Mr. Van Brabant to Inspector Wassmer entitled “Insurance Documents as per an e-mail request”. The email included two attachments, which were colour photos of insurance documents regarding his aircraft, registration C-GMMR. Inspector Wassmer indicated that the documents were forwarded to Mr. Shawn O'Connor, Transport Canada Enforcement.

[19] The respondent introduced Exhibit M-13 as evidence, a series of three emails between Inspector Wassmer and Mr. O'Connor. The emails were dated January 16, 2014; January 17, 2014; and January 31, 2014. The purpose of the email exchange was to forward information regarding the incident and to provide the names and telephone numbers of concerned individuals who witnessed it.

[20] The respondent introduced Exhibit M-14 as evidence, an email from Mr. Dennis Smith to Inspector Wassmer, dated February 8, 2014. The purpose of the email was to provide his eye-witness account to Transport Canada regarding what he observed during the incident. When questioned by the respondent as to her actions, Inspector Wassmer stated that she forwarded the email to TC Enforcement.

[21] The respondent introduced Exhibit M-15 as evidence, an email from Mr. Edward Butler to Inspector Wassmer, dated February 9, 2014. The purpose of the email was to forward information and his eye-witness account to Inspector Wassmer with respect to the incident. When questioned by the respondent as to her actions, Inspector Wassmer stated that she had forwarded the email to TC Enforcement upon receipt.

[22] The respondent introduced Exhibit M-16 as evidence, an email dated February 10, 2014, from Mr. Seibutis to Inspector Wassmer entitled “Sarnia-Sept 8th, 2013 Incident report”. The purpose of the email was to forward two attachments: a written eye-witness account of the aviation incident of September 8, 2013; and a “Flight Briefing Sheet” that was used by the flypast formation on the day of the incident. When questioned by the respondent as to her actions, Inspector Wassmer indicted that she had forwarded the email to TC Enforcement upon receipt.

[23] The respondent introduced Exhibit M-17 as evidence, an email from Mr. William Pedlar to Inspector Wassmer, dated February 11, 2014. The purpose of the email was to forward background information and his eye-witness account with respect to the incident. When questioned by the respondent as to her actions, Inspector Wassmer indicted that she had forwarded the email to TC Enforcement upon receipt.

[24] The respondent introduced Exhibit M-18 as evidence, an email from Inspector Wassmer to Transport Canada Enforcement Manager, Mr. Jim Nyhuus, dated February 11, 2014. The purpose of the email was to forward to TC Enforcement additional information with respect to eye-witnesses to the incident.

[25] The respondent introduced Exhibit M-19 as evidence, an email from Inspector Wassmer to Mr. Nyhuus, dated March 5, 2014. The email included a hand-written letter from Mr. Richard West as an attachment. The purpose of the email was to forward to TC Enforcement this letter that she had received from Mr. West regarding his eye-witness account of the incident.

[26] The respondent introduced Exhibit M-20 as evidence, an email from Mr. Butler to Inspector Wassmer, dated March 10, 2014. The purpose of the email was to clarify what he said in his previous email to Inspector Wassmer regarding the incident. When questioned by the respondent as to her actions regarding the email, Inspector Wassmer indicted that she had forwarded the email to TC Enforcement upon receipt.

[27] The respondent introduced Exhibit M-21 as evidence, an email from Mr. Seibutis to Inspector Wassmer, dated March 15, 2014. The purpose of the email was to forward four colour photos that were produced from the video that was accepted as Exhibit M-7. When questioned by the respondent as to her actions regarding the email, Inspector Wassmer indicted that she had forwarded the email to TC Enforcement upon receipt.

Cross-examination of Inspector Wassmer

[28] The applicant questioned the witness regarding his request to use a fax machine instead of email to exchange information with Transport Canada. The applicant stated that his email was not reliable and this led to difficulties in forwarding requested information in a timely manner. The applicant also questioned Inspector Wassmer on her request for pilot logs, journey logs and insurance documents. Inspector Wassmer stated that it was considered normal procedure to request this type of information when gathering information into an incident. The applicant stated that he had requested a meeting with Inspector Wassmer and her manager regarding the incident, however, this request was not granted. Inspector Wassmer stated that she was not able to grant a meeting and that the incident was handed over to TC Enforcement for appropriate action.

2) Mr. John Stewart

[29] The respondent's opening questions to Mr. Stewart established the witness as a distinguished member of the community and a key organizer of the Battle of Britain ceremony on September 8, 2013. Mr. Stewart was the Master of Ceremonies and was located at the podium when the two formation flypasts and the aviation incident occurred. He provided a description of the various groups that were assembled at Germain Park and in the immediate cenotaph area, which included veterans, air cadets, the local MP, MPP, Mayor of St. Clair, and members of the general public.

[30] Mr. Stewart provided a general description of the two formation flypasts that were conducted by COPA Flight 7, a group of five aircraft, and the incident that occurred above the Battle of Britain ceremony. Mr. Stewart described the first flypast as being flown from east to west over top of the cenotaph area, followed by a left turn towards the south. He described the second flypast as being flown from south to north over top of the cenotaph.

[31] The respondent presented two Google Earth colour photos to Mr. Stewart, Exhibit M-22a and M-22b, which Mr. Stewart used to mark the four cardinal points and to identify Germain Park and the cenotaph area where the ceremony was held. The respondent presented a second set of two Google Earth photos to Mr. Stewart, Exhibit M-23a and M-23b, which Mr. Stewart used to mark the location of participants and spectators, and the flight paths of the two COPA 7 flypasts during the ceremony.

[32] Mr. Stewart stated that during the second flypast, he observed a lone aircraft (not part of the formation) in close proximity to the flypast formation team, travelling in the same direction. When questioned by the respondent, he stated that the lone aircraft overflew the cenotaph area at an altitude two-thirds below the COPA Flight 7 formation.

[33] The respondent questioned Mr. Stewart regarding Exhibit M-4, his letter to Inspector Wassmer dated October 24, 2013. Mr. Stewart stated that he was motivated to send the letter because he felt that the incident represented an insult to veterans. Mr. Stewart described a subsequent telephone call with the applicant as confrontational and stated that the applicant was angry about this letter.

[34] The respondent introduced Exhibit M-24 as evidence, a Transport Canada telephone record of a conversation between Mr. Stewart and TC Inspector Prasha Thirukumaran. The respondent questioned Mr. Stewart on information contained in the second paragraph of the telephone record with regard to the altitude of the incident aircraft. Mr. Stewart confirmed his estimate of 300 feet AGL (above ground level).

Cross-examination of Mr. Stewart

[35] During cross-examination, the applicant asked Mr. Stewart to confirm the location of Germain Park, the F86 aircraft and the cenotaph. The applicant also questioned Mr. Stewart on his rank of Lieutenant-Colonel. Mr. Stewart described his affiliation with air cadets and his service as a commanding officer at Camp Borden and C.F.B. Cold Lake.

[36] The applicant cross-examined Mr. Stewart on the subject-title of the email (Exhibit M-4) that was sent to Inspector Wassmer. He testified that the letter was sent due to aviation safety concerns and did not comment on the title of the email. The applicant cross-examined Mr. Stewart on his eye-witness account of the lone aircraft. He testified that he observed the incident aircraft during the second flypast from south to north and did not see the lone aircraft during the first flypast from east to west. The applicant questioned Mr. Stewart on his statement in the letter where he described the aircraft colour as maroon. He stated that his reference to a maroon aircraft was an error and that the incident aircraft was white in colour.

[37] The applicant cross-examined Mr. Stewart regarding a reference to Mr. Pedlar in the telephone record (Exhibit M-24), third paragraph, last sentence. He testified that the report was not his and that he didn't know why Mr. Pedlar was mentioned. The applicant also mentioned a telephone call, which the witness could not recall.

3) Mrs. Lorna Horan

[38] Mrs. Horan testified that she was attending the Battle of Britain ceremony with her husband, Mr. Kerry Horan, when the incident occurred, and that the purpose of her participation was to make a video recording of the two formation flypasts.

[39] Mrs. Horan marked her position on a Google Earth photo of Germain Park, which was entered as Exhibit M-25. Mrs. Horan identified Exhibit M-7 as being the video recording she had made during the ceremony, and had produced a copy for Inspector Wassmer.

Cross-examination of Mrs. Horan

[40] Under cross-examination, Mrs. Horan stated that she had a telephone interview with Inspector Wassmer regarding the ceremony and the video recording, and that she had produced two copies of the video.

4) Mr. Kerry Horan

[41] Mr. Horan has been an employee of the City of Sarnia for 25 years. He is currently the president of the Petrolia Legion, serving his second term, and is in his third year with the Canadian Armed Forces as a Second Lieutenant with the Petrolia Army Cadets.

[42] Mr. Horan testified that he attended the Battle of Britain ceremony to provide coordination for the formation flypasts and to pay his respect to the veterans. Mr. Horan stated that he was located near his wife and other legion members. He marked his position on a Google Earth photo, which was entered as Exhibit M-25.

[43] Mr. Horan provided a general description of the two flypasts as flown at the ceremony and also described the unexpected appearance of a lone white aircraft, which he stated flew extremely low over the cenotaph during the second formation flypast. He testified that the lone white aircraft was at an altitude of less than half the altitude of the formation team. Mr. Horan marked the flight path of the formation flypasts on a Google Earth photo, which was accepted as Exhibit M-26. He also marked the position of four groups of spectators near the cenotaph, and the approximate track of the lone white aircraft when it overflew the cenotaph area.

[44] Mr. Horan testified that the spectators he observed near the cenotaph looked horrified as the lone white aircraft departed the area. He also stated that he spoke to Mr. Stewart following the ceremony, who reported that he did not know in advance of the flypast about the lone aircraft and that he was frightened by the incident.

[45] Mr. Horan was questioned regarding Exhibit M-2, his email to Inspector Wassmer. Mr. Horan stated that he was the author of the email and attached letter, and that it was an accurate account of the incident. He also stated that he wrote his letter to address safety concerns. The letter reads in part:

On this day their first pass was complete and their preparation for their second pass was in the making when out of nowhere this white plane flys over us just above the treetops immediately ahead of the formation team, which I thought was rather dangerous and unusual especially with the speed the plane was travelling having seen many of these flyovers and these guys never are that low nor fly at that rate of speed.

[46] Mr. Horan testified that Exhibit M-7 was the video recording that his wife had made of the COPA Flight 7 flypasts during the Battle of Britain ceremony. He stated that he was able to read the last two letters of “MR” in the aircraft's registration.

Cross-examination of Mr. Horan

[47] During cross-examination, the witness testified that he did not observe the lone aircraft near the formation, nor was he aware of its speed. He also stated that he observed the lone aircraft for approximately five seconds and did not observe its registration.

5) Mr. William Pedlar

[48] Mr. Pedlar is a former firefighter for the City of Sarnia who retired after 33 years of service at the rank of Captain. He is currently a private pilot and a member of 403 Wing and the COPA Flight 7 formation team. He stated that he attended the Battle of Britain ceremony as a spectator and was located approximately 70 metres west of the cenotaph. Mr. Pedlar marked his position on a Google Earth photo, which was entered as Exhibit M-27.

[49] In response to the respondent's questions, Mr. Pedlar stated that the first formation flypast from east to west was executed as planned, however, prior to the second flypast, a lone aircraft overflew the cenotaph area at an altitude approximately 30 to 50 per cent of the formation flypast. He identified the aircraft as an “RV”. When characterizing the lone aircraft's flight over the cenotaph area, Mr. Pedlar stated: “He came down and it looked like he was in an evasive manoeuver to avoid hitting the ground. He was still dropping with his nose up. And then at that time I lost him in the trees, he went off to the east somewhere”.

[50] Mr. Pedlar was questioned on Exhibit M-17,his email to Inspector Wassmer, which represented his eye-witness account of the incident. He stated that his letter was an accurate account and that he was able to identify the incident aircraft as an RV-type aircraft. The respondent introduced Exhibit M-28, a telephone record of a conversation between Mr. Pedlar and Inspector Thirukumaran. Mr. Pedlar stated that he did not remember saying in the interview that the aircraft was an “RV-6”, just an “RV”.

Cross-examination of Mr. Pedlar

[51] Under cross-examination, Mr. Pedlar testified that the decision to provide witness statements to Inspector Wassmer was the consensus of a group of people at one of the re-build workshops held at Mr. West's house. He also stated that there were five aircraft in the formation flypast and the estimated speed of the formation was 90 to100 mph. Mr. Pedlar added that he observed the lone aircraft for approximately five seconds and was not able to provide an estimate of its speed.

6) Mr. Mark Seibutis

[52] Mr. Seibutis is a private pilot with 550 hours flying time; a graduate of Lambton College as a mechanical technologist; a graduate of Ontario Fire College, and for the last five years a Captain with Sarnia Fire Department. He stated that he currently serves as president of COPA Flight 7, and is a member of the 403 Wing Royal Canadian Air 15 Force Association Sarnia.

[53] Mr. Seibutis stated that on September 8, 2013, he was the flight lead of the COPA Flight 7 formation team for the flypasts over the Battle of Britain ceremony at Germain Park. Other members of the formation included: Mr. Ed Butler in position #2, Mr. Rick West in position #3, Mr. Dennis Smith in position #4, and Mr. Bill Canton in the #5 line-astern (trail) position. Mr. Seibutis described the formation as a four-aircraft diamond formation with a fifth aircraft in trail. He also stated that the flypasts were flown at an altitude of 1,000 feet AGL.

[54] Mr. Seibutis testified that COPA Flight 7 had been performing formation flypasts since 2009. He also stated that Mr. Van Brabant and another pilot were once members of the formation team, but were no longer involved as they had developed a difference of opinion regarding what was necessary to prepare for the flypasts. Mr. Seibutis stated that “those two parties felt that it was becoming too formal and it was taking the fun out of doing the flying”. He stated that the other members of the COPA Flight 7 formation team felt that the pre-flight briefings made the formation flights safer.

[55] Mr. Seibutis described the two formation flypasts that were planned for the ceremony. He stated that the first flypast was planned from east to west over top of the cenotaph followed by a left turn towards the south, and then a second flypast from south to north over top of the cenotaph followed by a right turn to depart the area. Mr. Seibutis then proceeded to give his account of the incident.

[56] Mr. Seibutis stated that the first flypast was flown as planned. He then described the second flypast, which included the incident. He testified that as the formation was approaching the cenotaph for the second flypast, a white streak went by his windshield. He stated that his aircraft immediately pitched down as he flew through the wake vortices of the white aircraft that had just flown in front him, and that he had to pull back as hard as he could to recover his aircraft. Not knowing what had just happened, he checked the other members and saw that they were still in the formation. He stated that as he was recovering his aircraft, he spotted a white aircraft “down low over the crowd, just past the cenotaph”, which then pulled straight up and climbed above his altitude and “peeled off to the right”. Mr. Seibutis then testified that as he was recovering, he had “a perfect top view of the lone white aircraft that was departing” and identified it as an RV6 aircraft. Mr. Seibutis stated that he then made a radio transmission, stating: “to the aircraft that just buzzed through the Battle of Britain formation … that was interesting flying”. He stated that he then heard the reply “eee-haw”. Mr. Seibutis testified that he recognized the voice on the radio as that of Mr. Guy Van Brabant.

[57] On September 9, 2013, the day after the formation flypasts over Germain Park, members of COPA Flight 7 convened a meeting at the home of Mr. Richard West to discuss the previous day's flypasts and the incident involving the lone white aircraft. Mr. Seibutis testified that during the meeting, the members expressed their safety concerns regarding the incident and decided to suspend their formation flypasts until they could receive assurances from Mr. Van Brabant that he would not interfere with future flypasts.

[58] At the request of the respondent, Mr. Seibutis used a Google Earth photo to plot the tracks of the two formation flypasts and the flight path of the lone white aircraft that flew through the formation. The photo was entered as Exhibit M-29.

[59] The respondent questioned Mr. Seibutis regarding Exhibit M-1, his email to Inspector Wassmer. He testified that he was the author of the email and that it was sent on behalf of Mr. Stewart.

[60] The respondent questioned Mr. Seibutis on Exhibit M-3, his email to Inspector Wassmer. Mr. Seibutis stated that he was the author of the email and that he felt compelled to communicate with Inspector Wassmer, as he was being asked about flypasts for the upcoming Remembrance Day ceremony and that he had not received a response from Inspector Wassmer regarding the incident that had occurred during the Battle of Britain ceremony. Mr. Seibutis stated that Inspector Wassmer did not provide a response prior to the planning meeting for the Remembrance Day ceremony and that, as the flight lead of COPA Flight 7, he did not feel comfortable with conducting formation flypasts until the incident involving the lone white aircraft was resolved.

[61] The respondent questioned Mr. Seibutis on Exhibit M-4, his email to Inspector Wassmer, entitled “Intruder into Sarnia Fly Past”. Mr. Seibutis stated that the purpose of the email was to forward a letter from Mr. Stewart to Inspector Wassmer regarding the incident. He stated that he agreed to forward Mr. Stewart's letter as he had not received any response from Inspector Wassmer.

[62] The respondent questioned Mr. Seibutis on Exhibit M-21, his email to Inspector Wassmer. The purpose of the email was to forward four colour photos that were taken from the video produced by Mrs. Horan. Mr. Seibutis testified that he used the camera on his iPhone to take still-frame images from the video. He further testified that he could produce clearer still photos of the aircraft in the video by adjusting the distance of his camera from the computer screen, and the zoom, which allowed him to observe the registration (C-GMMR) on the underside of the lone white aircraft.

[63] The respondent introduced Exhibit M-30, a Transport Canada telephone record of a conversation between Inspector Thirukumaran and Mr. Seibutis, who stated that from this conversation, he didn't think the Inspector grasped the seriousness of the incident. Mr. Seibutis also stated that he was surprised at some of the errors in the telephone record. He testified that he approached Mr. Van Brabant on the evening of September 8, 2013, and described his confrontation with him about the incident.

[64] The Minster introduced Exhibits M-31a and M-31b, two colour photos of an aircraft with registration marking C-GMMR. Mr. Seibutis testified that he could identify the aircraft as a Vans RV6 belonging to Mr. Van Brabant. He also testified that the pilot sitting in the cockpit of the aircraft in M-31a “appeared” to be Mr. Van Brabant.

Cross-examination of Mr. Seibutis

[65] Under cross-examination, Mr. Van Brabant questioned Mr. Seibutis on a similar but unrelated aviation event that occurred in 2010, where a lone aircraft joined a formation of aircraft that was being led by Mr. Seibutis without authorization and without first attending the pre-flight formation brief. Mr. Seibutis described the manner in which he dealt with the situation.

[66] Under cross-examination, Mr. Seibutis testified that he didn't know the type of camera Mrs. Horan used to produce the video recording. When questioned by Mr. Van Brabant, Mr. Seibutis described the assistance he received from his daughter in producing the still images from the video recording using iMovie and his iPhone. He testified that the video images had not been altered through the reproduction process.

[67] The applicant questioned Mr. Seibutis regarding the number of Vans RV6 aircraft in the local area, within 50 miles of Sarnia. Mr. Seibutis stated that he knew of three such aircraft. He also testified that the speed of the formation flypast was 90 knots.

[68] The applicant questioned Mr. Seibutis regarding Exhibit M-16, his email to Inspector Wassmer entitled “Sarnia-Sept 8th, 2013 Incident report”. Mr. Seibutis testified that the email was written on February 10, 2014 and that he believed the contents were accurate. He also confirmed that the decision to stand-down the formation team until the matter was resolved was based on safety concerns. He also testified that a former member of the team no longer participated in COPA Flight 7 flypasts as he felt that it was no longer fun; there were too many rules and not enough flying. Mr. Seibutis stated that Mr. Van Brabant no longer participated in formation flypasts and that he had expressed a concern related to the disparity of performance of his aircraft with other aircraft in the formation.

[69] The applicant further cross-examined Mr. Seibutis with regard to Exhibit M-16, with specific reference to the statement “this lead me to believe it was Guy Van Brabant in his RV6”. Mr. Seibutis testified that based on the type of aircraft and the “eee-haw” radio transmission made by the pilot, he believed it was Mr. Van Brabant.

Re-direct examination of Mr. Seibutis

[70] Mr. Seibutis responded to questions re-directed by the respondent and provided the following testimony:

  1. With regard to the photos entered as Exhibit M-21, he produced them using his own phone camera, which has greater resolution than his digital camera;

  2. With regard to the two photos entered as Exhibit M-31, he was not certain as to who produced them.

  3. With regard to Exhibit M-16, he delayed submitting his letter to Transport Canada until February 10, 2014, as “it wasn't until that time that Transport Canada really got back to us to let us know that they had received all the information and that things were proceeding”. He stated that earlier in February 2014, a conversation between Mr. Van Brabant and Mr. Stewart regarding the incident had ended poorly. He and his formation group were hoping the situation between them and Mr. Van Brabant could have been resolved in a positive manner, however, the conversation revealed that the fractious relationship would endure.

  4. With regard to Exhibit M-30, it was his assumption that other people nearby may have heard his heated conversation with Mr. Van Brabant that took place on the evening of September 8, 2013 at Reese's Corners.

7) Mr. Edward Butler

[71] Mr. Butler is a glider and private pilot with approximately 1,000 hours flying time. In the past, he has owned several aircraft including a Piper Cherokee, J3 Cub, de Havilland Tiger Moth, and a Chipmunk, and he currently owns a TWA-MRK1 Croton Flyer, which is a modified Pawnee.

[72] Mr. Butler testified that on September 8, 2013, he was flying as “number two” in the five-aircraft formation flypast for the Battle of Britain ceremony. During his testimony, he identified the other members of the formation as being Mr. Seibutis as the formation lead, Mr. West in position three, Mr. Smith in position four, and Mr. Canton in position five.

[73] Mr. Butler testified that on the afternoon of September 8, 2013, the members of the COPA Flight 7 formation team met at an airstrip near Reese's Corners, Ontario for a pre-flight mission brief for the flypasts. After the briefing, the five-aircraft formation went airborne at approximately 1400 hours and flew towards Sarnia for a time-on target over Germain Park of approximately 1418 hours local. Mr. Butler stated that the first flypast was flown from the east over top of the ceremony, followed by a left turn towards the south. He testified that shortly after the formation completed two left turns and was heading north towards the cenotaph for the second flypast, he witnessed a white RV6 aircraft dive down in front of Mark Seibutis, which caused Mr. Seibutis' aircraft to start shaking. The formation completed the second flypast, executed a right turn towards the east and departed the area.

[74] The respondent presented a Google Earth photo of Germain Park to Mr. Butler, which he used to annotate the four cardinal compass points and identify prominent ground features. The annotated photo was entered as Exhibit M-32. Mr. Butler testified that he did not observe the track that was flown by the white RV6 aircraft immediately following its close pass to Mr. Seibutis' aircraft nor was he able to identify the pilot flying it. With regard to the Exhibit M-15email, he stated that he decided to send his email to Inspector Wassmer as no action had been taken against Mr. Van Brabant to resolve the incident. He also testified that he attended the COPA Flight 7 meeting immediately following the flypasts when it was decided that the team would not conduct any more formation flypasts until the incident was resolved.

[75] Under cross-examination by the applicant, Mr. Butler testified that he was not aware of the existence of a video recording of the flypast. He also stated that there was approximately 30 feet of separation between his aircraft and Mr. Seibutis' aircraft. Mr. Butler testified that while flying in formation during the flypasts, he was concentrating on maintaining his position on the lead aircraft and not on ground features below or the track flown by the white RV6 aircraft.

8) Mr. Richard West

[76] Mr. West is a licensed ultra-light and private pilot with approximately 4,000 hours total flying time, which includes close to 2,000 flying hours on RV-type aircraft. He testified that he has built six aircraft, three of which were RV-types. He also testified that he performs pre-purchase inspections for prospective aircraft buyers in the Sarnia area, and that he carried out a pre-buy inspection seven or eight years ago on Mr. Van Brabant's RV6 aircraft. Mr. West provided a detailed description of Mr. Van Brabant's aircraft and identified it as depicted in Exhibit M-31a and M-31b.

[77] Mr. West testified that on the afternoon of September 8, 2013, members of the COPA Flight 7 formation team met at an airstrip near Reese's Corners, Ontario for a pre-flight mission brief for the Battle of Britain flypasts. He stated that while he was on the ground at Reese's Corners, he observed a white RV-type aircraft in the distance to the east of the airport at 3,000 feet. Mr. West testified that the formation took off and formed-up on the way to Sarnia to do the flypasts. He stated that the formation crossed over the monument at Germain Park from east to west for the first flypast, completed a turn to the south and then made a 180-degree turn for the second flypast from south to north.

[78] Mr. West testified that just as they were approaching the monument area for the second flypast, a white RV6 aircraft with registration C-GMMR dove immediately in front of the lead aircraft in an almost vertical dive, which he estimated to be 30 feet from the lead aircraft. He further testified that at that instant the lead aircraft pitched nose down, which caused him to briefly think that they may have collided. Mr. West stated that due to his close proximity with the lead aircraft, he kept his eyes on the formation lead until his aircraft had stabilized. He stated that he then visually acquired the RV6 at ground level as it crossed over the monument and that as it did so, its wingspan closely matched the base of the monument, which indicated that the aircraft was very close to the monument. Mr. West testified that the white RV6 aircraft then climbed almost vertical, directly in front of the formation, to an altitude a couple hundred feet above the formation, and then executed a right-hand wing-over to the east. He stated that at that point the formation leader made a radio transmission, saying “that certainly was an interesting manoeuvre, wasn't it”, which was followed by a transmission on the same frequency of “eee-haw”. He further testified that he recognized the voice of the “eee-haw” transmission as being that of Mr. Van Brabant. He stated that after completing the second flypast, members of formation proceeded to their respective home strips for landing.

[79] The respondent questioned Mr. West on the registration of the white RV6 aircraft involved in the incident, which Mr. West identified as C-GMMR in previous testimony. In his response, Mr. West testified that “it was like hanging a billboard directly in front of my eyes. I'm on the left side, the registration is on the left bottom of the RV6 aircraft and the letters are 18 inches tall, so it was just like hanging a billboard in front of me, 30 feet away. You couldn't miss it”.

[80] At the request of the respondent, Mr. West used a Google Earth photo to plot the tracks of the two formation flypasts and the flight path of the lone white aircraft that flew through the formation. The photo was entered as Exhibit M-33. Mr. West also provided a graphic depiction of the vertical flight path flown by the lone white RV6 aircraft, which was subsequently entered as Exhibit M-34. He stated that the formation flypast was flown at 1,000 feet above ground (AGL), or 1,650 feet above sea level (ASL).

[81] The respondent questioned Mr. West on Exhibit M-19, his hand-written eye-witness account of the incident. He testified that he wrote the letter, it was an accurate account of what he observed, and it was his signature at the bottom of the letter. He stated that his use of an abbreviated version of the aircraft registration, i.e. “MMR” in the letter, was related to how pilots use registration identifiers when they are airborne, that being just the last three letters of the registration instead of the full C-GMMR in this case. Mr. West testified that there was a meeting of the COPA Flight 7 formation team members on the evening after the incident, which included himself, Mr. Seibutis, Mr. Smith, Mr. Butler and Mr. Canton. He stated that during the meeting, a vote was taken which resulted in a unanimous agreement to stand the team down until the matter was resolved.

[82] Under cross-examination, Mr. West testified that he built the first RV aircraft in the Sarnia area and has carried out a lot of maintenance, repairs and test flying on this type of aircraft. He reiterated that he has almost 2,000 hours of flying time on RV aircraft and characterized himself as being very knowledgeable about them. In the cross-examination, Mr. West also provided a great deal of information regarding the performance of RV6 aircraft with respect to the manoeuvre that was flown during the incident on September 8, 2013.

[83] When cross-examined on the pre-flight formation briefing, Mr. West testified that as the formation lead, Mr. Seibutis played a leadership role in the briefing and that any changes to formation positions were requested by individual formation members, discussed within the group and then implemented. Mr. West characterized the briefing as normal. He confirmed during his testimony that the separation between the lone white RV6 and the lead aircraft was 30 feet.

9) Mr. Dennis Smith

[84] Mr. Smith obtained his private pilot licence in 1974 and has approximately 410 flying hours. He is a retired general contractor and currently owns a 1966 Citabria aircraft.

[85] Mr. Smith testified that he was a member of the COPA Flight 7 formation team during the flypasts in question. He stated that the members of the team included Mr. Seibutis as the formation lead, Mr. Butler as number two in echelon right, Mr. West as number three in echelon left, himself as number four in a trail position behind the formation lead, and Mr. Canton as number five in a trail position. He also stated that he had been flying with the formation team for five years.

[86] Mr. Smith testified that on the morning of September 8, 2013, he joined with the other team members in a pre-flight briefing. He stated that they approached the cenotaph from the east, made a left-swinging turn over the river after the first flypast, went around to the south and then proceeded in a northbound direction. After the second flypast over the cenotaph, the formation turned right towards the east and then departed the area. Mr. Smith stated that the flypasts were flown at 1,000 feet above ground.

[87] Mr. Smith testified that as the formation approached the cenotaph for the second flypast, an airplane appeared out his right window, which he found alarming. Mr. Smith stated that he identified the aircraft as a Vans RV6 with Mr. Van Brabant at the controls. He stated that he lost sight of the airplane due to the structure of his aircraft, but then reacquired it when it executed a vertical dive in front of Mr. Seibutis' aircraft. He stated that the aircraft disappeared from view until it reappeared in “an amazing steep climb”, followed by a turn to the right. In response to the respondent's question, Mr. Smith testified that following the incident, he heard a radio transmission from Mr. Seibutis stating “that was an interesting manoeuvre”, which was followed by a second loud transmission of “eee-haw”.

[88] The respondent presented a Google Earth photo of Germain Park, which Mr. Smith used to annotate the four cardinal points of the compass and to identify prominent ground features. The annotated photo was entered as Exhibit M-36. Mr. Smith testified that he didn't see either pass with respect to the formation's track over the ground as he was concentrating on his formation flying and the other formation airplanes around him.

[89] In response to questions regarding Exhibit M-14, his email to Inspector Wassmer, Mr. Smith testified that it was an accurate eye-witness account of the incident. He also testified that members of COPA Flight 7 felt it urgent to forward individual statements and eye-witness accounts to Transport Canada as there had not been any action taken from earlier reports.

[90] In response to questions regarding Exhibit M-37, atelephone conversation between he and Inspector Thirukumaran, Mr. Smith confirmed that as the formation team was approaching the cenotaph for the second flypast, he observed an aircraft pull up beside him, at the same altitude, and he was able to identify Mr. Van Brabant flying an RV6. He stated that the aircraft disappeared as it climbed above the formation and then reappeared in a vertical dive directly in front of the lead aircraft. He testified that he heard a loud “eee-haw” over the radio, of which he said “I assumed it was Guy Van Brabant. It sounded like his voice”.

Cross-examination of Mr. Smith

[91] Under cross-examination, Mr. Smith testified that he attended the pre-flight briefing on September 8, 2013 and that it was conducted by the flight lead, Mr. Seibutis. Mr. Smith stated that the group participated in the assignment of positions within the formation and that his position as number four was 10 feet below and 50 feet behind the lead aircraft. He stated that the formation speed was 100 knots and that the white RV6, which was flying faster than the formation, appeared beside him, at the same altitude, between his aircraft and the aircraft in the number two position. Mr. Smith also provided an explanation on the operation of the radio in his aircraft and how he switched frequencies.

[92] Under cross-examination, Mr. Smith testified that the meeting that was called subsequent to the Battle of Britain flypasts was convened by Mr. West at his property to discuss the incident. Mr. Smith stated that four of the five formation members of COPA Flight 7 were present, namely: Mr. Seibutis, Mr. West, Mr. Butler and himself. He stated that he was not aware as to why Mr. Canton did not attend.

10) Inspector Prasha Thirukumaran

[93] Inspector Thirukumaran has been an enforcement investigator with Transport Canada for four and a half years. She has a three-year diploma in Aviation Management from Georgian College and a master's degree in Aviation Management from Griffith University, Brisbane, Australia. She has also worked as a cruise scheduler with Air Georgian, a flight attendant with Zoom Airlines, and was employed as Warranty Administrator with Skyservice Business Aviation.

[94] Inspector Thirukumaran testified that the case in question was assigned to her by her manager on March 10, 2014, and that she reviewed the paper file on April 1. She explained that it was initially assigned to her colleague, Inspector Nyhuus, however, it was reassigned to her when Inspector Nyhuus was required to take sick leave.

[95] The respondent introduced Exhibit M-38, a letter dated February 12, 2014, from Inspector Nyhuus to Mr. Van Brabant. Inspector Thirukumaran testified that the purpose of this letter was to inform Mr. Van Brabant that Transport Canada was conducting an investigation on his aircraft at the time and place of the incident in question. It gave him an opportunity to participate or decline participation in the investigation.

[96] The respondent introduced Exhibit M-39, a letter dated April 3, 2014, from Mr. Van Brabant to Inspector Nyhuus. Inspector Thirukumaran testified that this letter indicated that Mr. Van Brabant was denying conducting any flight operations with his aircraft on September 8, 2013.

[97] The respondent introduced Exhibit M-40, a copy of a Distributed Air Personnel Licensing System (DAPLS) report dated July 10, 2014. Inspector Thirukumaran testified that this report indicated that Mr. Van Brabant has held a private pilot's licence since August 30, 1972.

[98] The respondent introduced Exhibit M-41, a record of the Canadian Civil Aircraft Register database for aircraft G-CMMR, dated July 10, 2014. Inspector Thirukumaran testified that this record indicates that Mr. Guy Van Brabant has been the registered owner since October 17, 2005.

Cross-examination of Inspector Thirukumaran

[99] Under cross-examination, Inspector Thirukumaran testified that she contacted Mr. Smith, Mr. Stewart and Mr. Pedlar directly and produced a telephone record of each conversation from memory. When questioned by the applicant, she stated that her telephone conversations were one on one.

[100] Under cross-examination, Inspector Thirukumaran testified that with regard to the Canadian Civil Aircraft Register, there were other aircraft registrations similar to G-CMMR. She stated that C-FMMR was an aircraft with a similar registration marking.

[101] The applicant introduced Exhibit A-1, Aviation Enforcement Case Report EMS 83217. Inspector Thirukumaran testified that she was the author of the report. When requested by the applicant, Inspector Thirukumaran read paragraph 1, the synopsis. Of note, the fourth line of the paragraph stated that “aircraft C-GMMR operated north to south …” which was technically and factually not accurate.

Re-direct examination of Inspector Thirukumaran

[102] During questions re-directed to the witness by the respondent, Inspector Thirukumaran testified that this line from the synopsis contained “an error”, “a typo”. She stated that the line should have read: “aircraft C-GMMR operated south to north …”.

B. Applicant

1) Mr. Robert Nethercott

[103] Mr. Nethercott is a private pilot with a night rating. He has been flying since 1976 and has been a licenced private pilot since 1997. He currently owns a Cessna 140 and a Vans RV4.

[104] In response to questions from the applicant, Mr. Nethercott testified that at cruise airspeed, his RV4 aircraft flies at 170 to 175 miles per hour. In cruise configuration, entering a vertical dive or near vertical dive, his aircraft would gain speed very quickly and “VNE” (velocity never exceed) would be exceeded in 300 feet, in approximately 10 seconds. Mr. Nethercott stated that recovery from a vertical dive would not over-stress the aircraft, but it would be physically challenging for the pilot.

[105] Mr. Nethercott testified that there had been an exchange between Mr. Seibutis and Mr. Van Brabant at the Reese's Corners Airport on September 9, 2013, at approximately 7:00 pm. Mr. Nethercott stated that he overheard Mr. Seibutis say to Mr. Van Brabant: “Guy, when is this going to stop?” He stated that Mr. Van Brabant responded by saying: “I'm going to ask you to leave my hangar space right now and move your vehicle, please”. Mr. Nethercott stated that further verbal exchanges occurred between Mr. Van Brabant and Mr. Seibutis with elevated voices, however, he could not hear the detail of what was being said.

Cross-examination of Mr. Nethercott

[106] During cross-examination, Mr. Nethercott testified that the information he previously provided regarding aircraft performance was for an RV4-type aircraft with a constant pitch propeller and not an RV6 aircraft.

2) Mr. Douglas Wayne Eves

[107] Mr. Eves has been involved in aviation since he was a boy. His father owned an aircraft and he currently owns an RV6 aircraft. He has approximately 1,000 hours total flying time as a pilot, and approximately 500 hours on his aircraft.

[108] In response to the applicant's questions, Mr. Eves testified that his RV6 aircraft cruises at approximately 170 knots at low-level and 182 knots at 10,000 feet. He stated that VNE of his aircraft is 182 knots, which is close to his cruise speed of 170 knots. Mr. Eves testified that in a 900-foot vertical dive from cruise airspeed, he wouldn't even guess as to how fast he would be going. He stated that it would be extremely fast and the airspeed would possibly exceed the aircraft's VNE.

[109] Mr. Eves testified that Mr. Seibutis called him shortly after the Battle of Britain flypasts and asked if he had been flying his RV6 aircraft on September 8, 2013. Mr. Eves testified that he told Mr. Seibutis he had not been flying his aircraft on that day, and that Mr. Seibutis had responded: “I didn't think it was you”.

Cross-examination of Mr. Eves

[110] During cross-examination, Mr. Eves testified that the airspeed attained in a 900-foot vertical dive would depend on the airspeed of the aircraft when it entered the dive. He stated that if his airspeed was 70 miles an hour, it would take longer to reach VNE. Mr. Eves confirmed during the cross-examination that he did not fly his aircraft on September 8, 2013, and that no one else could have flown it on that day as it was secured in a locked hangar.

3) Mr. William Canton

[111] Mr. Canton has been a private pilot since high school. He has approximately 800 hours flying time on a Citabria aerobatic aircraft and currently owns a Hatz biplane on which he has approximately 1,200 hours flying time. He builds aircraft and has a Star Duster Two in his garage.

[112] In response to the applicant's questions, Mr. Canton testified that in preparation for the Battle of Britain flypast, he attended the COPA Flight 7 formation briefing. He stated that the brief was conducted by Mr. Seibutis, who prepared the Flight Briefing Sheet (Exhibit M-16, attachment 2), with input from other formation members. Mr. Canton further stated that his position within the formation was based on factors related to the visibility he has from his cockpit, anticipated turbulence during the mission and the comfort level of formation members. He highlighted that decisions regarding positioning within the formation were based on the consensus of formation members.

[113] Mr. Canton testified that there were concerns regarding turbulence on September 8, 2013 and that the formation members “could spread out a little bit”. He stated that the formation went airborne, formed up, and headed towards Germain Park. Mr. Canton testified that he was flying his aircraft in a loose trail position to the other four formation members and caught sight of another lone aircraft to his right and slightly higher. He described the lone aircraft as “kind of white” but didn't notice any markings or stripes. He recalled that it was “like an RV” due to the little curve where the fuselage meets the distinctive tail.

[114] Mr. Canton testified that the next time he saw the lone aircraft, it was half a mile away, climbing through the formation's altitude. He stated that the formation continued and that the incident was “basically a non-event”. He added that he thought it was maybe unsafe but didn't feel it was “a threat”.

[115] In response to questions from the applicant, Mr. Canton testified that he has heard Mr. Van Brabant voice concerns regarding the mix of fast and slow aircraft in the same formation, and that Mr. Van Brabant was not comfortable with flying slow. Mr. Canton stated that he remembered the formation team meeting following the Battle of Britain flypasts, and that he was shocked and surprised at the level of excitement over the incident. He further stated that he remembers thinking he was the only member of the formation who didn't see it as a big deal.

[116] Mr. Canton concluded his testimony by stating that he was no longer a member of the COPA Flight 7 formation group, and that he had no intention of returning to the group as he didn't like the direction it was heading.

IV. ARGUMENTS

A. Minister

[117] The Minister submitted that all elements for both infractions had been proven and that, on a balance of probabilities, Mr. Van Brabant contravened the applicable sections of the CARs. He is therefore liable for these infractions as prescribed in Schedule A of the Notice.

B. Applicant

[118] The applicant submitted that his aircraft had not flown on the day of the incident in question. He had formally communicated this in writing to Transport Canada, providing copies of pages from his journey and pilot log books to support his claim. Neither official record contained any entries to indicate that his aircraft had conducted a flight that day.

V. ANALYSIS

[119] Before addressing the constituent elements of the two infractions, which form the basis of this determination, I would like to briefly address the issue of the applicant's Section 11 Charter Rights that he raised, and on which I ruled as the hearing Chair, at the hearing.

[120] The applicant stated that the incident occurred 20 months ago, and the passage of that amount of time until a hearing violated his Section 11 Charter Rights with regard to an expeditious hearing. I ruled on the matter, stating that the respondent and the applicant had been given the opportunity to raise preliminary motions at the beginning of the hearing, however, since the applicant was self-represented, I accepted the motion at that time. I explained that the Transportation Appeal Tribunal of Canada (TATC) had made every effort to schedule the hearing in a timely manner and that the high number of witnesses made it difficult to arrive at a date that was acceptable to all participants. Two attempts to set hearing dates were unsuccessful.

[121] The applicant stated that he had not been advised at any time by Transport Canada that he had the right to legal counsel and the right to remain silent, and that these omissions also violated his Section 11 Charter rights. I stated that Transport Canada was conducting the first part of an administrative process to gather information in regard to the incident, and that at no time during that period, were charges or violations being levied against the applicant. Furthermore, I note that Exhibit M-38 informs the applicant that on February 12, 2014, an investigation on his aircraft at the time and place of the incident in question had been initiated. The letter gave him an opportunity to participate or decline participation in the investigation and his right to seek legal counsel.

[122] The respondent stated that the 20-month period between the incident and the TATC hearing did not represent a Charter violation, and that a Transport Canada investigation of an incident is part of the regulatory process for gathering information. It is therefore not necessary to inform involved persons that they have the right to counsel or to remain silent.

[123] I therefore dismissed the applicant's assertion of a Section 11 Charter Rights violation.

[124] With regard to the two infractions, the Minister had the burden to establish, on a balance of probabilities, that Mr. Van Brabant committed them as described in Schedule A of the Notice.

[125] The two offences against the applicant are strict liability offences and the Minister is not required to prove intent. It is, however, incumbent upon the Minister to prove the constituent elements of each offence.

[126] In the case of section 602.21 (proximity as to create risk of collision), the elements are:

Number One: “no person”;

Number Two: “shall operate an aircraft”;

Number Three: “in such proximity to another aircraft as to create a risk of collision”;
           

[127] The first constituent element of “no person” is an element in both charges, and the Minister elected to proceed vicariously against the registered owner of the aircraft in question, as is the Minister's prerogative pursuant to subsection 8.4(1) of the Aeronautics Act. The Minister is therefore required to prove that “a person” was operating the aircraft during the incident and that the registered owner was Mr. Van Brabant. In presenting the Minister's case against the applicant regarding section 602.21 of the CARs, the respondent presented clear and compelling evidence that “a person” was operating the lone white RV6 aircraft in question with registration C-GMMR on September 8, 2013 at approximately 14:18 hours local time and that the registered owner of that aircraft on that day was Mr. Van Brabant.

a) Mr. Smith testified that just prior to the formation making its second pass over the Memorial at Germain Park, he witnessed “a person”, who he identified as Mr. Van Brabant, flying a Vans RV6 alongside his aircraft, which then climbed sharply and dove in front of the formation leader's aircraft;

b) Mr. Smith also confirmed the presence of “a person” in the aircraft in his email to Inspector Wassmer, in which he wrote: “After completing our first pass over the target, we were making our final approach to the cenotaph in a Northerly direction, when, out of the corner of my right eye an aircraft appeared beside me, between me (Blue 4) and Blue 2. I looked directly into the cockpit and clearly saw Guy Van Brabant in his RV6”.

c) In his telephone statement to Inspector Thirukumaran, Mr. Smith noted that he saw “a person” that day in an RV6 aircraft and confirmed it was Mr. Van Brabant. The evidence presented by Mr. Smith established that “a person” was operating the Vans RV6 aircraft and it wasn't being operated remotely.

[128] Regarding the second constituent element of section 602.21 of the CARS, “shall operate an aircraft”, section 31 of the Aeronautics Act defines an aircraft as “any machine capable of deriving support in the atmosphere from reactions of the air and includes a rocket.”

a) Inspector Thirukumaran introduced into evidence pictures obtained from the Internet of Mr. Van Brabant's aircraft. Mr. Seibutis testified that the aircraft in the pictures was owned by Mr. Van Brabant. Mr. West and Mr. Smith also testified that it was Mr. Van Brabant's aircraft.

b) Inspector Thirukumaran introduced into evidence a printout from the Canadian Civil Aircraft Register for C-GMMR showing it is an “aircraft”. Mr. Seibutis testified that it was a white “aircraft” that dove in front of him that day, and confirmed that it was a white Vans RV6. Mr. Seibutis presented still pictures derived from a video taken by Mrs. Horan that showed an aircraft bearing registration C-GMMR that dove in front of the lead aircraft in the formation and passed over the gathering of people near the cenotaph. Mr. Butler testified that he witnessed “an aircraft” dive in front of the formation leader's aircraft.

c) Mr. West testified it was a Vans RV6 aircraft that dove in front of the lead aircraft, and he confirmed the complete registration as C-GMMR. Mr. Smith also testified that it was a Vans RV6 that pulled alongside him, climbed and dove in front of the lead aircraft in the formation.

[129] An additional component of the constituent element above concerns a specific aircraft that was operating on a specific date, time and location. The Minister presented clear and compelling evidence that it was a white Vans RV6 aircraft with registration C-GMMR that was operating on the date, and at the time and location of the incident.

a) Mr. Stewart was on the ground by the cenotaph that day and testified that he witnessed a white, low-wing, single-engine aircraft operating over Germain Park at approximately 1418 hours. Mr. Van Brabant's aircraft fits that description. Mr. Stewart's testimony confirmed statements he made during a telephone interview between he and Inspector Thirukumaran.

b) Mr. Kerry Horan was on the ground attending the ceremony and testified that he saw a single-engine white airplane operating that day. Mr. Horan's letter to Inspector Wassmer stated: “after reviewing the video my wife took of the service … I noticed the plane on the second pass, 2 of the last call letters appear to be MR”. Mr. Van Brabant's aircraft is white in colour and has registration C-GMMR.

c) Mr. Pedlar was on the ground attending the memorial service and testified that he witnessed a white Vans RV-type aircraft operating that day and referred to its distinctive profile. This is also confirmed in the telephone record of his conversation with Inspector Thirukumaran.

d) Mr. Seibutis, the formation leader, testified that just prior to the second pass over the service, an aircraft suddenly filled his windscreen. He stated that after he was able to regain control of his aircraft, he identified it as a white Vans RV6-type aircraft.

e) In his letter to Inspector Wassmer, Mr. West wrote: “just as we approached the [cenotaph] I observed a white RV6 with maroon trim dive almost vertical in front of our lead aircraft”. This is also consistent with his telephone statement to Inspector Thirukumaran. As well, Mr. West testified that “it was like hanging a billboard directly in front of my eyes … I'm on the left side [of the formation], the registration [C-GMMR] is on the left bottom of the RV6 aircraft and the letters are 18 inches tall, so it was just like hanging a billboard in front of me, 30 feet away … you couldn't miss it”.

f) Mr. Smith testified that just prior to the formation's second pass over the cenotaph, he saw a Vans RV6 aircraft, which proceeded to climb and then dive in front of the lead aircraft. Mr. Smith testified that he did not see the registration, but recognized the pilot as Mr. Guy Van Brabant.

[130] As to the issue of who the registered owner of C-GMMR was on September 8, 2013, Inspector Thirukumaran entered into evidence a printout from the Canadian Aircraft Register, proving that Mr. Van Brabant was the registered owner on the date of the incident. This was confirmed by Inspector Wassmer. She stated that before calling Mr. Van Brabant, she accessed that same database.

[131] With regard to the constituent element of “in such proximity to another aircraft as to create a risk of collision”, it was incumbent upon the Minister to prove that there existed an improper action by the offending pilot that placed the incident aircraft in such a position. To that end, the respondent presented clear and compelling evidence of an improper action of diving immediately in front of the lead aircraft in the formation as to create a risk of collision.

a) Mr. Seibutis testified that just prior to reaching the cenotaph during the second flypast, he observed an aircraft dive in front of his aircraft. It was so close that its belly filled his entire windscreen; he described it as “a white blur”. Mr. Seibutis also testified that he recalled the distance from his aircraft as being a wingspan distance away, so close that it caused his aircraft to pitch downward, which he attributed to flying though the vortices of the incident aircraft. In his email to Inspector Wassmer, Mr. Seibutis, wrote: “Just prior to overhead the Memorial… a white RV looking aircraft passed directly in front of me, (lead aircraft-B1) diving down. I'm guessing not more than 30 ft ahead of my plane. I could not see the wingtips but the [fuselage] belly and tail filled my windshield and then disappeared below me/us”.

b) Mr. Butler testified that he witnessed the Vans-type aircraft pass very close to the lead aircraft. He also confirmed that the lead aircraft was tossed around just after the aircraft dove in front. In his email to Inspector Wassmer, Mr. Butler wrote: “the only thing I really saw was the bottom of a white RV6 diving down in front of Mark, our flight leader”. He also confirmed his written eye-witness account during his testimony during the hearing.

c) Mr. West testified that just prior to the formation flying over the Memorial for the second time, he observed a white Vans RV6 aircraft dive in front of the lead aircraft, estimating the distance to be about a wingspan, some 30 feet, away from the lead pilot. He also corroborated the testimony of Mr. Seibutis that it passed so close that it caused the lead aircraft to deviate from straight level flight. In his letter to Inspector Wassmer, Mr. West wrote: “Just as we approached the [cenotaph] I observed a white RV6 with maroon trim dive almost vertical in front of our lead aircraft. This aircraft was so close his wingspan almost matched that of the lead aircraft”. He also confirmed the estimated distance of 30 feet during his testimony at the hearing and in his telephone statement to Inspector Thirukumaran.

d) Mr. Smith testified that the Vans RV6 aircraft dove in front of the lead aircraft. He noted that the distance was no more than 30 feet between the two aircraft. His testimony was consistent with the eye-witness accounts of the other formation members regarding the improper action of diving in front of the lead aircraft and the distance as being a wingspan distance away from the lead pilot. In his email to Inspector Wassmer, Mr. Smith wrote: “…I momentarily lost acute sight of him, but nano seconds later the dirty white belly of his airplane was seen as he dove abruptly down about thirty feet in front of Blue 1”. His telephone statement to Inspector Thirukumaran also confirmed his eye-witness account that the RV6 aircraft dove in front of the lead aircraft.

[132] In the case of subsection 602.14(2) of the CARs (operated at a distance less than 500 feet from any person), the constituent elements of the charge are:

Number One: “except where conducting a take-off, approach or landing”;

Number Two: “no person”;

Number Three: “shall operate an aircraft”;

Number Four: “at a distance less than 500 feet from any person”.

[133] With regard to the first element “except where conducting a take-off, approach or landing”, the Minister presented clear and compelling evidence that the pilot of the incident aircraft was not conducting a take-off, approach or a landing at or near Germain Park.

a) Mr. Stewart, who once held a pilot's licence, was standing at the cenotaph in Germain Park when the incident occurred. He testified that the lone white aircraft dove and climbed over the crowd and was definitely not conducting a take-off, approach or landing, and that the actions of the pilot were not those of one conducting such manoeuvres. This assertion rings true, as there was no runway or landing area at or near the cenotaph or memorial area at Germain Park.

b) Mr. Horan testified that the solo aircraft was clearly not conducting a take-off or landing. He stated that having witnessed many flypasts, he thought the manoeuver appeared dangerous and unusual, especially given the speed at which the airplane was travelling.

c) When asked to characterize the action of the pilot in the lone white aircraft, Mr. Pedlar, who was standing in close proximity to the cenotaph, stated that the aircraft was not conducting a take-off or landing as it was going too fast and there was no place to land or take off in the area.

d) Mr. Seibutis confirmed in his testimony and eye-witness account that the lone white aircraft was not conducting a take-off or landing. He testified that after this aircraft dove directly in front of him, he watched it dive down well below his altitude, more than half the distance of his aircraft, over the group of persons gathered below. The lone white aircraft then climbed and departed towards the east.

e) Mr. West testified that the lone white aircraft that dove in front of Mr. Seibutis' aircraft was not conducting a take-off or landing. In his letter to Inspector Wassmer, he wrote: “This aircraft continued its almost vertical dive to what was observed to be tree top level over the crowd at the [cenotaph] and then pulled up almost vertical to above our altitude and then departed to the east”.

[134] The constituent element of “no person” as it relates to subsection 602.14(2) of the CARs was addressed in the analysis above, under section 602.21, and it applies to both subsections. The Minister presented clear and compelling evidence that a person was operating the incident aircraft.

[135] The constituent element of subsection 602.14(2), “shall operate an aircraft”, was also discussed under section 602.21 above and it applies to both subsections. The Minister presented clear and compelling evidence that the incident aircraft satisfies the definition of an aircraft.

[136] The final element of subsection 602.14(2) to be discussed is: “less than 500 feet from any person”. In presenting the Minister's case against the applicant, the respondent was successful in providing clear and compelling evidence that proved, on a balance of probabilities, that Mr. Van Brabant's aircraft was operated less than 500 feet from any person at the event that day.

a) Mr. Stewart testified that he was standing at the cenotaph during the ceremony and that prior to the formation making its second flypast, he witnessed a white low-wing aircraft fly at less than one-third the altitude of that of the formation team directly over the assembled group of people. Based on this eye-witness testimony, this would have placed the aircraft within 500 feet of the spectators gathered in Germain Park.

b) Mr. Seibutis and the other pilots of the formation team confirmed through their testimonies that the formation was flying at 1,000 feet above ground level when they passed over the cenotaph and when the formation was just about to fly over the persons gathered for the ceremony. The pilots also confirmed that he carried out an altitude check over the radio with everyone flying in the formation.

c) Mr. Horan testified that as he was waiting for the formation to make its approach from the south, all of a sudden, out of nowhere, a white aircraft flew over the assembled group, from south to north, at a high rate of speed, and then climbed away and departed to the east. When asked about the altitude of the lone white aircraft, he stated that it was less than half the altitude of the formation team. Taking into account the testimony of Mr. Seibutis and the other formation pilots, which confirmed that the formation was flying at 1,000 feet above ground level, the lone white aircraft would have been at an altitude less than 500 feet when it flew directly over top of the spectators at Germain Park.

d) Mr. Pedlar testified that he was standing on the paved pathway to the left of the cenotaph during the ceremony. When asked about the altitude of the white RV6 aircraft, Mr. Pedlar described it as being less than half the distance of the altitude of the formation team from the ground. As discussed in the previous paragraph, members of the formation team testified that their altitude was 1,000 feet above the ground, which would put the lone white aircraft at an altitude of less than 500 feet from the spectators when it overflew Germain Park.

e) In his testimony, Mr. Seibutis stated that when the lone white aircraft dove in front of him, which made his aircraft pitch downward, he watched the aircraft dive well below his altitude, more than half the distance he was flying over the group of persons gathered below. Mr. Seibutis testified that when he was presented the video from Mrs. Horan, he was able to discern the registration of the lone white aircraft as being C-GMMR when he viewed the images on an Apple iMovie program.

f) Mr. West testified that the formation was flying at 1,000 feet above ground level when it conducted the flypasts over the assembled group at Germain Park. He also stated that prior to the formation making its second pass over the persons gathered at the cenotaph, he witnessed the lone white aircraft dive directly in front of the lead aircraft in the formation. He further testified that his position within the formation allowed him to clearly observe the registration of the RV6 as being C-GMMR, and the subsequent diving manoeuvre towards the crowd below.

[137] The Minister had the burden to prove, on a balance of probabilities, each of the constituent elements of the two charges against the applicant. During the review hearing, the applicant heard testimony from ten witnesses called by the Minister. The applicant also exercised his right to cross-examine each of the Minister's witnesses and to call his own witnesses. A total of eight highly credible witnesses provided clear and compelling eye-witness accounts regarding; a lone white aircraft, a Vans-type aircraft, a Vans RV6, a Vans RV6 with a partial registration of “MR”, a Vans RV6 with full registration of C-GMMR, and a video and still photos with the full registration of C-GMMR. The Minister's witnesses also gave highly credible testimony regarding the manner in which the same aircraft was flown in close proximity and altitude to the lead aircraft when it flew over the assembled group of spectators at Germain Park. The Minister's respondent was successful in presenting clear and compelling evidence from highly credible witnesses to prove, on a balance of probabilities, each of the constituent elements of the two charges against the applicant.

[138] When given the opportunity to cross-examine the Minister's witnesses, the applicant did not challenge or refute the eye-witness accounts brought forward by the respondent. When given the opportunity to call his own witnesses, the applicant did not use this opportunity to address the constituent elements of the two charges against him. Instead, the applicant focused his efforts on bringing forward information unrelated to the constituent elements of the two charges. As is the prerogative of an applicant, Mr. Van Brabant chose not to offer any of his own testimony or evidence under oath.

[139] Regarding the issue of vicarious liability, subsection 8.4(1) of the Aeronautics Act allows the Minister to hold owners of aircraft responsible for the wrongful acts of third parties unless the owner presents evidence that their aircraft was in the possession of a person other than themself and without their consent. Inspector Wassmer testified that when she contacted Mr. Van Brabant concerning allegations that his aircraft was involved in this incident, he claimed that his aircraft had not flown on the day in question. He formally communicated this in a letter to Inspector Nyhuus, and provided Inspector Wassmer with copies of pages from his journey and pilot log books to support his claim. Of note, there were no entries in either official record to indicate that Mr. Van Brabant's aircraft had conducted a flight that day.

[140] Inspector Wassmer testified that at no time did Mr. Van Brabant offer any other explanation, other than forwarding copied pages from his log books.

[141] Mr. Van Brabant's claim that his aircraft did not fly on September 8, 2013, is judged to be insufficient to refute the overwhelming and compelling evidence presented by the Minister through the testimonies of eight credible witnesses. The information presented by Mr. Van Brabant to support his claim cannot be regarded as credible.

[142] The pilot demonstrated a flagrant disregard of published rules, regulations and procedures. Moreover, the vertical dive manoeuvre directly in front of the lead aircraft of the formation team and the subsequent low pass over Germain Park was a willful, reckless and unsafe act that jeopardized the lives of the other pilots and the spectators on the ground attending the Battle of Britain ceremony.

VI. DETERMINATION

[143] Count 1: The Minister has proven, on a balance of probabilities, that the applicant, Mr. Guy Van Brabant, contravened subsection 602.14(2) of the Canadian Aviation Regulations pursuant to subsection 8.4(1) of the Aeronautics Act. As such, the monetary penalty of $750.00 is upheld.

[144] Count 2: The Minister has proved, on a balance of probabilities, that the applicant, Mr. Guy Van Brabant, contravened section 602.21 of the Canadian Aviation Regulations pursuant to subsection 8.4(1) of the Aeronautics Act. As such, the monetary penalty of $1,000.00 is upheld.

September 28, 2015

Charles S. Sullivan

Member


Appeal decision
Suzanne Racine, Franco Pietracupa, J. Ed Macdonald


Decision: November 17, 2016

Citation: Van Brabant v. Canada (Minister of Transport), 2016 TATCE 32 (Appeal)

Heard at: Sarnia, Ontario, on June 22, 2016

APPEAL DECISION AND REASONS

Held: The appeal is dismissed. The appeal panel upholds the review determination, confirming the Minister's decision to assess monetary penalties of $750 for contravening subsection 602.14(2), and $1,000 for contravening section 602.21 of the Canadian Aviation Regulations.

The total amount of $1,750 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Decision.

I. BACKGROUND

[1] The Minister of Transport issued a Notice of Assessment of Monetary Penalty (Notice) to the applicant, Mr. Guy Alexander Van Brabant, as the registered owner of aircraft C-GMMR, on August 20, 2014, pursuant to subsection 8.4(1) of the Aeronautics Act,R.S.C., 1985, c. A-2, with respect to contraventions of subsection 602.14(2) and section 602.21 of the Canadian Aviation Regulations, SOR /96-433 (CARs).

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

1. On or about September 8, 2013, at approximately 14:18 local time, at or near Germain Park, Sarnia, Ontario, a person operated a Van's RV-6 aircraft bearing registration C-GMMR while conducting neither a take-off, an approach or landing at a distance less than 500 feet from a person, thereby contravening subsection 602.14 (2) of the Canadian Aviation Regulations. Pursuant to subsection 8.4(1) of the Aeronautics Act, you, as the registered owner of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefor.

Monetary Penalty Assessed: $750.00

2. On or about September 8, 2013, at approximately 14:18 local time, at or near Germain Park, Sarnia, Ontario, a person operated a Van's RV-6 aircraft bearing registration C-GMMR in such proximity to another aircraft as to create a risk of collision, thereby contravening section 602.21 of the Canadian Aviation Regulations. Pursuant to subsection 8.4(1) of the Aeronautics Act, you, as the registered owner of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefor.

Monetary Penalty Assessed: $1000.00

II. REVIEW DETERMINATION

[3] During the review hearing, the member heard testimonies from ten witnesses called upon by the Minister and from three witnesses called by the applicant. The review member was also able to consider the documentary evidence provided by the parties (Exhibits M-1 to M‑41, and A-1).

[4] At the review hearing, after having considered the oral and documentary evidence and having heard the arguments presented by the parties, the review member confirmed the Minister's decisions, in both files, on all counts.

III. GROUNDS FOR APPEAL

[5] On October 5, 2015, the appellant filed a request for appeal of the determination rendered by the review member. The appeal hearing, which was initially scheduled for May 10, 2016, was rescheduled to allow the appellant to be represented by his lawyer who, on June 17, 2016, filed a supplementary list of the grounds of appeal he intended to rely upon at the hearing. The appeal was heard June 22, 2016, based on the following amended grounds:

1- The member erred in law by unduly constraining the appellant's right to cross-examine the Minister's witnesses, thereby violating the appellant's rights under sections 7 and 11(d) of the Charter of Rights and Freedoms (Charter), or, in the alternative, violating the principles of natural justice.

2- The member erred in law by unduly constraining a number of the appellant's questions on examination-in-chief, thereby violating the appellant's section 7 and 11(d) Charter rights, or, in the alternative, violating the principles of natural justice.

3- The improper constraints imposed upon the appellant during examination-in-chief of his witnesses and cross-examination of the Minister's witnesses intimidated him to such an extent that he felt his own testimony would not be considered, and thus opted not to give evidence. NOTE: This ground for appeal is related to the appellant's representative's submission to raise a motion for introduction of fresh evidence. This motion and the Ground for Appeal 3 will be addressed jointly.

4- The member erred in fact in his assessment of the credibility of the Minister's witnesses.

5- The member erred in fact by not considering the expert evidence which suggested that only a well-trained aerobatic pilot would have been capable of performing the maneuvers described, and the maneuvers in question could not have been performed by the aircraft without dangerous risks to its structural integrity.

6- The member erred in fact by concluding that the full call sign of the appellant's aircraft could be made out from the video and pictures presented.

7- The member exhibited a reasonable apprehension of bias to the detriment of the appellant.

IV. MOTION AT APPEAL and Ground for Appeal 3.

[6] On the day of the appeal hearing, June 22, 2016, the appellant's representative raised a motion to introduce fresh evidence through viva voice evidence of the appellant. Because the motion was raised at the hearing, the appeal panel allowed the respondent to submit written submissions on the motion later on, followed by a reply from the appellant in writing. The panel informed the parties that their written submissions on the motion would be examined along with Ground for Appeal 3. 

[7] On July 4, 2016, the Transportation Appeal Tribunal of Canada (Tribunal) received a written submission from the appellant's representative in regard to the motion of introducing fresh evidence during the appeal process. This motion was presented jointly with the Ground for Appeal 3.

[8] The grounds for the application of fresh evidence are as follows:

1) During the course of the review, the applicant's questions during examination-in-chief and cross-examination were regularly interrupted and disallowed many times without merit.

2) These excessive constraints and the fact that the appellant was self-represented had an intimidating effect on Mr. Van Brabant. As a result, the appellant chose not to testify.

3) The anticipated evidence is relevant, credible and reasonably capable of belief, and could have changed the outcome of the review determination.

V. ARGUMENTS

A. Appellant

Standard of Review

[9] The appellant's representative submitted that the standard of review for fairness and bias should be correctness. He cited Bancarz v. Canada Transport, 2007 FC 451,where the Federal Court indicates clearly that the standard of review for fairness and bias is correctness. The constraints placed on Mr. Van Brabant and his inability to properly conduct a cross-examination are issues of fairness, and as such, the applicable standard of review is correctness.

[10] He made reference to the criminal case of R. v. Lyttle, 2004 SCC 5, where the trial judge unduly restricted the right of the accused to conduct a full and proper cross-examination of the Crown witness. The Supreme Court of Canada ruled that the trial judge's impugned ruling had an intimidating effect on the defence counsel. In heavily constraining Mr. Van Brabant's ability to cross-examine, the issue of fairness is evident. In reviewing the transcript of the hearing, it becomes apparent that the regular interruptions during cross-examination not only disturbed his rhythm but also constrained his ability to properly cross-examine the witnesses. This practice had an intimidating effect on the appellant.

Ground for Appeal 1

[11] The first ground for appeal submitted by the appellant's representative relates to the member's error in law by unduly constraining Mr. Van Brabant's right to cross-examine the Minister's witnesses, thus violating his Charter rights, or, in the alternative, violating the principles of natural justice. The main issue centered on two misapprehensions put forth by the review member as to what the confines of a cross-examination could be.

[12] Firstly, the appellant's representative submitted that the review member at one point stated to Mr. Van Brabant that the scope of cross-examination was to be confined to the evidence that was heard in examination-in-chief. This is not accurate, and in fact, an applicant is allowed a wide range of questioning when cross-examining the witness, so long as the subject and issues are relevant to the review hearing. Thus, the instruction and parameters the review member gave to the appellant in regard to the scope of questioning during cross-examination were erroneous. Several examples were submitted from the transcript in which the review member limits the appellant's ability to have a wider range in cross-examination questions.

[13] The second issue relates to the appellant's right to ask leading questions whilst in cross-examination. He submitted that the review member's instructions in this regard were at best misleading and confusing. He argued that in cross-examination, the appellant can and should be permitted to ask leading questions. The limits imposed by the review member as to the appellant's right to ask leading questions was problematic and flawed.

[14] Based on these two constraints imposed by the review member, the appellant's ability to make a full defence was severely limited. Mr. Van Brabant should have been given the opportunity to cross-examine his accusers as vigorously as he saw fit. The appellant's representative argued that having removed the ability to test and pursue the Minister's witnesses to the full extent allowed under cross-examination limited the appellant's ability to present a full defence.

Ground for Appeal 2

[15] The second ground for appeal submitted is that the review member erred by unduly constraining the appellant's questions on examination-in-chief, thereby violating the appellant's section 7 and 11(d) Charter rights, or, in the alternative, violating the principles of natural justice.

[16] The appellant's representative cited several examples in which the review member and/or the Minister's representative objected to the appellant's wording of questions during examination-in-chief. The examples point to the member's practice and tendency throughout the review to agree to the Minister's submissions without considering the merit that the appellant's questions deserved.

[17] A second issue raised by the appellant's representative on this ground for appeal centered on the review member's understanding of what can and cannot be accepted during examination-in-chief. He cited an example in which Mr. Van Brabant was asking a witness to explain how he had acquired a specific document. The member ruled to disallow this question and then offered the appellant the opportunity to bring this matter during his own case presentation.

[18] The appellant's representative provided several examples of the review member repeatedly interrupting the appellant during examination-in-chief. Many times the appellant was told that he could introduce or provide information during his own case presentation, but he had not yet decided to testify and was within his right to ask these questions. The repeated interruptions, at times frivolous, by both the Minister's representative and the review member, ultimately disrupted the appellant's flow and his ability to properly conduct his examinations-in-chief, and to provide the evidence that he would have wanted to present.

[19] This is therefore a question of fairness and thus subject to the standard of review of correctness.

Ground for Appeal 3

[20] See the response to the motion in the Analysis section of this decision (paragraphs 87 to 95).

Ground for Appeal 4

[21] Ground 4 of the appeal is based on the fact that the review member erred in his assessment of the credibility of the Minister's witnesses. In essence, the appellant's representative has raised the issue of collusion, in particular regarding the testimonies of the five witnesses that made up the formation flight team on the day that the incident occurred. According to the appellant, the member did not give any reasons in his determination as to why he found the five witnesses of the Minister to be “highly credible” nor did he address the possible collusion factor. The lack of written reasons does not call for deference from the appeal panel.

[22] Although the testimonies of each of these five witnesses varied slightly, it is alleged that after they discussed the aircraft intrusion, the perpetrator seemed a forgone conclusion. This points to an apparent confirmation bias amongst the witnesses, and the issue of credibility should have been accounted for by the review member.

[23] The appellant's representative raised specifically the testimony of Mr. Edward Butler, one of the pilots flying in formation that day. In a written letter to Transport Canada, Mr. Butler details the event of that day, and although he only saw the bottom of the RV6 and its white colour, he states that he was told by another pilot (and witness Mr. Seibutis) who the pilot was. Subsequently, a second letter to Transport Canada sets a different tone in which he seems to have changed his mind, in that he could not be sure who the pilot was.

[24] It is apparent from the review member's determination that the flight group testimony was given a high degree of credibility. The issues of collaboration between witnesses, and Mr. Butler recanting his first email to Transport Canada, were not given the appropriate weight by the member.

Ground for Appeal 5

[25] The member erred in fact by not considering the expert evidence. More specifically, Ground for Appeal 5 is centered on the fact that the expert evidence heard at the review suggests two important facts: that only a well-trained aerobatic pilot could have performed the described maneuver on that day, and that the identified aircraft could not have executed the maneuver in question without risk to its structural integrity and without having sustained structural damage.

[26] The appellant's representative argued that based on the evidence and testimony heard, Mr. Van Brabant would not have had the technical skills to perform the maneuver described. At the very least, only an aerobatic pilot would have been able to execute this task.

[27] Testimony during the review hearing raised several factors and estimations in respect to the RV6's ability to quickly accelerate in a vertical dive and exceed its VNE (never exceed speed). Exceeding VNE would result in structural compromising and damage to the aircraft, with an average pilot experiencing excessive G force and black-out conditions in the cockpit.

[28] The appellant, based on the witnesses' accounts of the maneuver, did not have the level of piloting skills to have been able to safely carry out the described trajectory of the intruding aircraft. The appellant's representative submitted that the testimonies of the experienced RV6 pilots as to the aircraft's flight characteristics when quickly exceeding its VNE speed were not properly considered in the determination.

Ground for Appeal 6

[29] The appellant's representative submitted that the member erred in fact by concluding that the full call sign of the appellant's aircraft could be made out in the video and pictures presented in evidence. In reviewing these exhibits, the call sign of the aircraft was not clearly identifiable, thus putting into question the review member's judgment in stating that it was visible.

Ground for Appeal 7

[30] The appellant's representative argued that the member exhibited a reasonable apprehension of bias to the detriment of Mr. Van Brabant. He submitted that the standard of review for fairness and bias is correctness, and that although the bias may not have been a conscious one or done out of malice, it is nevertheless a bias towards the Minister's representative.

[31] The transcript points to multiple examples, throughout the four days of hearing, of the review member's tendency to often agree with the Minister's representative without any firm reasoning or explanation as to why he was agreeing.

[32] Many objections raised by the Minister's representative were sustained by the review member with little discussion of their merit. Simply put, the review member's tenuous grasp on some points of law resulted in his over-dependence on the Minister's representative's suggestions and recommendations as to how to proceed and rule. A number of the appellant's questions in examination and cross-examination were legitimate, as were some of his objections raised, yet the review member did not give proper consideration to them. This had a direct impact on the appellant's ability to bring forth his case.

[33] Based on all the limitations placed on Mr. Van Brabant, an opportunity to mount a fair defence could not be provided.

B. Minister of Transport

Standard of Review

[34] The Minister's representative first addressed the standard of review. He argued that as per Dunsmuir v. New Brunswick, 2008 SCC, a full standard of review analysis is not necessary if the appropriate standard has already been established by jurisprudence.

[35] The appropriate standard of review applicable to tribunal decisions is addressed in Billings Family Enterprises Ltd. v Canada (Minister of Transport), 2008 FC 17. In this decision, Justice Harrington determined that review members are owed considerable deference with regard to findings of fact and issues of credibility that come before them. As long as a determination on review is within a range of reasonable outcomes based on the evidence that was before the review member, the appeal panel should not interfere.

[36] The Minister's representative submitted that the reasonableness standard applies to questions of law where a tribunal is considering its home statute; for example, when the TATC decides to receive evidence or not, the member should be granted discretion with regard to the application of subsection 15(2) of the Transportation Appeal Tribunal of Canada Act (TATC Act). He further submitted that restraint should be shown when reviewing the determination of the member. The determination and reasons do not have to address every argument made during the hearing, and as long as it falls within a range of reasonable outcomes, the determination should be upheld. Finally, the Minister's representative argued that the reasonableness standard ought to be applied even where the Charter is an issue.

Ground for Appeal 1

[37] The Minister's representative submitted that although the member may not have been clear in his initial statement in regard to leading questions by the applicant during cross-examination, his correction of this moments later renders the appellant's argument in this respect moot. The objections of the Minister's Counsel during the review were raised properly and as a result of improper lines of questioning by the applicant. The Minister's representative provided numerous examples of improper questioning where there was little choice but to object.

[38] The principles of natural justice and procedural fairness apply to hearings before administrative tribunals like the Transportation Appeal Tribunal of Canada. Administrative tribunals have lower standards of procedural fairness than a criminal court. The Minister's representative submitted that the determination under review is entirely administrative in nature and related to an administrative monetary penalty. As such, it does not attract the criminal standard of procedural fairness and factors relating to one's livelihood or liberty, as suggested by the appellant. He also submitted that section 15 of the TATC Act grants the member considerable latitude in evidentiary matters and that the appellant was allowed to test the evidence by cross-examining on every matter raised by the witnesses. Moreover, the member's choice to restrict cross-examination was reasonable given the broad authority provided by section 15, which enables the member to address matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice allow.

[39] Two Charter rights were raised by the appellant as being infringed upon; one under section 7 and one under section 11(d). The Minister's representative submitted that neither are applicable in this hearing. Section 7 refers to the right to life, liberty and security. At no time were these rights deprived, as the matter is strictly administrative. Section 11(d) refers to a person charged with an offence who has the right to be presumed innocent until proven guilty. The appellant was never charged with an offence.

[40] The appellant's argument that his right to cross-examine is an absolute right was challenged by the Minister's representative. Although important, the right to cross-examine is not absolute. He submitted that the principles of natural justice are satisfied as long as an individual has a fair opportunity to correct or controvert facts through other means. The appellant was provided with the opportunity to cross-examine all statements made by the witnesses. He was also provided an opportunity to provide his own evidence-in-chief. As was his right, he declined. The Minister's representative further submitted that even if unrestricted cross-examination were to have been provided to the applicant, the outcome, based on overwhelming evidence, would not have affected the determination rendered by the member.

Ground for Appeal 2

[41] The appellant has alleged that his examinations-in-chief were unduly and excessively interrupted by the Minister's Counsel at the review hearing. The Minister's representative submitted that the objections were founded and sustained. Based on a four-day hearing, the description of “excessive” is very subjective in this case. The objections were appropriate to the improper questioning by the applicant. Ultimately, Counsel must have the right to object to improper questioning and limit the number of objections. Trying to define “excessive” would undermine the integrity of the process.

Ground for Appeal 3

[42] The Minister's representative submitted that admission of new evidence is governed by section 14 of the TATC Act. In short, new evidence is admissible only when it was not previously available. The appellant has admitted that the evidence was available at the time of the hearing and as such, this renders the motion to admit new evidence inadmissible.

[43] Even if the panel were to employ the criteria of the Palmer test for admitting fresh evidence (as per Palmer v. The Queen, [1980] 1 S.C.R. 759), the decision to render it inadmissible should stand, for the following reasons:

1) The evidence the appellant seeks to admit was available at the time of the hearing, therefore it should not be admitted;

2) The appellant has not provided any evidence that is reasonably capable of belief because he is withholding the documents mentioned in the affidavit that accompanied the motion for adducing fresh evidence, which could provide some support to his request;

3) The appeal panel cannot consequently evaluate if the new evidence, when taken with the evidence adduced at the review hearing, could reasonably have affected the result.

[44] The Minister's representative reiterated that the evidence was available at the time of the hearing. The appellant's citing of fear and intimidation as reasons for not providing this evidence has no authority or supporting jurisprudence.

[45] He submitted that there was no evidence supporting the appellant's statement that the member and the Minister's Counsel were intimidating. The fact that Counsel objected often and that some of the objections were sustained by the member does not show bias against the appellant.

[46] Further, he submitted that the transcript of the hearing does not support the appellant's argument of intimidation and bias. The member made all efforts to assist the appellant. The member displayed patience and provided much latitude to Mr. Van Brabant throughout the four days. In fact, the appellant did thank the member on several occasions for his patience and comments.

[47] The Minister's representative submitted that no factual basis exists for the appellant to allege fear and intimidation from either the member or the Minister's Counsel. The appellant's interaction and conduct with the member and with Counsel demonstrated that he was capable and not debilitated by fear. The fact that he chose not to testify appears to be more of a tactical decision than one based on fear and intimidation. The decision to not testify was his right, and the consequences of not testifying are his.

[48] The issue of the evidence being credible and reasonably capable of belief was also raised by the Minister's representative. The appellant continues to withhold any documents mentioned in the affidavit that would have provided some support to his request and thus has not provided any element that would support that this evidence is credible and reasonably capable of belief.

Ground for Appeal 4

[49] The Minister's representative submitted that the issue of determining credibility is the “heartland” of a tribunal's jurisdiction. His position is that the member's determination of credibility must stand, unless the appellant can prove that it was based on erroneous finding of fact, or without regard to the evidence before the member. He further submitted that although the member did not speak in detail of the credibility of witnesses, he is not necessarily obliged to provide reasons of finding regarding the credibility. The fact remains that the testimony heard was supported by the evidence submitted.

[50] Lastly on this point, the Minister's representative addressed the appellant's suggestion that there is an apparent confirmation bias amongst the witnesses because they know each other and may have spoken to each other. The evidence presented at the hearing does not support this allegation. The fact that the testimonies of the Minister's witnesses did not agree at times demonstrates more a lack of collusion between them than if they had testified without inconsistencies.

Ground for Appeal 5

[51] Since none of the witnesses were qualified as experts, it would be impossible for the appellant to state that the member ignored expert evidence. The fact remains that the maneuver was performed, and that the pilot and aircraft were successful in executing it. Grounds for this appeal cannot be sustained against a standard of reasonableness.

Ground for Appeal 6

[52] The Minister's representative argued that the member is entitled to make findings of fact based on the evidence heard and the testimony provided. These findings of fact are reviewed on the reasonableness standard. The appellant stated that the videos and photography submitted did not show the full registration of the Vans RV6, C-GMMR. The Minister's representative submitted that the video and photographs were supported by viva voce evidence provided by Mr. Seibutis. The findings by the member are reasonable.

[53] Furthermore, he submitted that the member did not include the photographs in the list of evidence establishing the registration of the aircraft. This would indicate that little weight was placed on this exhibit in rendering his determination. Based on the preponderance of probability, the evidence and eyewitness testimony demonstrate that the registration of the aircraft was C-GMMR.

Ground for Appeal 7

[54] The Minister's representative stated that the test for reasonableness of bias is whether an informed person, viewing the matter realistically and practically and having thought it through, would conclude that it was more likely than not that the decision-maker would not decide fairly. He further stated that the allegation of bias goes to the core of the integrity of the Tribunal and its members. The threshold for finding reasonable apprehension of bias is high and must be supported with substantial grounds and material evidence. He submitted that it cannot rest on mere suspicion, conjecture or insinuations.

[55] He argued that the sole ground of bias mentioned by the appellant rested on the fact that the member sustained the Minister's Counsel's objections. This does not meet the test for reasonable apprehension of bias.

Appellant's Argument in Reply

[56] The appellant's representative argued that although the TATC Act does authorize the Tribunal to dispense with technicalities in the rules of evidence, it does not excuse it from the guidelines set out in the Statutory Powers and Procedures Act (SPPA). The SPPA is designed to provide a set of minimum procedural standards and applies to most tribunals in Ontario.

[57] He submitted that ambiguous language was used by the member in regard to his ability and right to ask leading questions in cross-examination. Although adequate clarification was provided to the appellant, it did not occur until two days into the hearing.

[58] While accepting the Minister's position that the Tribunal does not need to meet the high standards of a criminal court, the appellant's representative argued that it needs to meet the minimum standards as set forth in the SPPA. In response to the Minister's submission, the appellant addressed five specific procedural standards as laid out in the SPPA:

1) Nature of the decision;

2) Nature of the statutory scheme;

3) Importance of the decision;

4) Legitimate expectations;

5) Procedural choices.

[59] All are standards set out on the SPPA and are rights entitled to the appellant notwithstanding the broad authority afforded to the Tribunal under section 15 of the TATC Act.

[60] The appellant's representative submitted that the right to cross-examine is spelled out in the SPPA subsection 10.1(b). By limiting the appellant's cross-examination topics, his ability to properly test the Minister's witnesses' credibility was hampered. Failure of the Tribunal to provide this right under the SPPA does constitute a legitimate ground for appeal.

[61] The appellant's representative argued that the Minister has based his issue in regard to confirmation bias on the fact that the witnesses had spoken to each other after the incident. In fact, the primary issue was that all the pilots in the formation knew Mr. Van Brabant and most held a negative view of him. The assumption that he was flying that day confirms the bias against the appellant.

VI. ANALYSIS

Standard of Review

[62] The appeal panel's decision-making process begins with a determination of the appropriate standard of review. The standard of review of administrative decisions to be exercised by an appeal panel of the Tribunal was established by the courts, which came to the conclusion that there were only two standards: reasonableness and correctness.

[63] The appellant argued that the appropriate standard of review for a breach of procedural fairness is correctness. The Minister argued that a reasonableness standard should be applied to review determinations and cited Corneil v. Canada (Transportation Appeal Tribunal), 2015 FC 755, and Smith v. Alliance Pipeline Ltd., [2011] 1 S.C.R. 160, 2011 SCC 7.

[64] The Supreme Court explains clearly in Smith v. Alliance Pipeline that the standard of correctness under Dunsmuir (para. 62) governs a constitutional issue, a question of “general law” that is both of central importance to the legal system and outside the adjudicator's specialized area of jurisdiction or a question of jurisdiction.

[65] On the other hand, the standard of reasonableness will apply, as per Dunsmuir (paras. 51-54), when it relates to the interpretation of the Tribunal home statute, and raises issues of fact or involves intertwined legal and factual issues.

[66] When applying the Supreme Court approach, the appeal panel is of the opinion that the reasonableness standard should apply to the question raised by the appellant, that being a lack of fairness of the review member.

[67] The panel agrees that the issue of fairness is closely linked to matters dealing with the hearing and its process in a manner that is as informal and expeditious as the circumstances provided in the TATC home statute at section 15 (TATC Act). Although the fairness or lack thereof in the process is necessarily linked to legal issues, the panel does not consider that this question qualified per se as a question of general law under Dunsmuir or any other categories attracting the standard of correctness. The panel considers the question at hand raises an issue of fact and law governed by the standard of reasonableness.

[68] In Dunsmuir, the Supreme Court of Canada collapsed the standard of patent unreasonableness and reasonableness simpliciter into one standard: reasonableness. So long as the determination on review is within a range of reasonable outcomes based on the evidence, a reviewing body should not interfere. Questions of law should be reviewed as to whether the conclusion reached was correct, whereas questions of fact, or mixed fact and law, should be reviewed on the basis of whether the determination made was reasonable.

[69] As per the arguments raised regarding the SPPA, the Tribunal notes that this is a provincial Act, applicable in Ontario, and not binding on a federal tribunal like the TATC.

Ground  1: The member erred in law by unduly constraining the appellant's right to cross-examine the Minister's witnesses, thereby violating the appellant's section 7 and 11(d) Charter rights, or, in the alternative, violating the principles of natural justice.

Charter

[70] Pursuant to section 24 of the Charter, a court of competent jurisdiction may hear Charter arguments. The TATC can, accordingly, hear and render a decision with regard to the two Charter arguments submitted in Ground 1 of the appeal.

[71] Section 7 states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Therefore the appeal panel must consider if the rights of the appellant were infringed under section 7 of the Charter. According to the Supreme Court in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, the liberty interest protected by section 7 of the Charter protects an individual's personal autonomy and the right to make his own choice, and the security of the person encompasses bodily integrity and serious state-imposed psychological stress. Although section 7 must be interpreted broadly and in accordance with the principles and values of the Charter, the appeal panel fails to see how the alleged constraint of limiting cross-examination and leading questions would amount to a breach of section 7 of the Charter.

[72] The appellant was assessed an administrative monetary penalty; the protections of section 7 encompass fundamental rights, not economic interests. Therefore, the Tribunal must consider the state action claimed by the appellant that falls within section 7, namely the member's interventions regarding cross-examination and leading questions. The appeal panel finds that in this case, the review member's instructions regarding cross-examination and leading questions in cross-examination were reasonable; they were more often in response to objections to which a tribunal must respond and the record shows that those interventions were done in such a way as to allow the appellant to reformulate his questions, and to remind him that he could take the necessary time to cross-examine and to lead. Therefore, the appeal panel finds that the fundamental choices of the appellant were not breached, nor was his right to liberty or security of the person. At no time between the Notice of Monetary Penalty and the review hearing, and up to and including the appeal hearing, was Mr. Van Brabant deprived of any of these rights. Furthermore, he has maintained his aviation documents and flight privileges.

[73] Section 11(d) states “any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal”. The appellant was issued, on August 20, 2014, a Notice of Assessment of Monetary Penalty pursuant to subsection 8.4(1) of the Aeronautics Act. As stated in Guindon v. Canada, [2015] S.C.J. No. 41, some of the rights guaranteed by section 11 of the Charter have no meaning outside a criminal or quasi-criminal context, and some of the protections of section 11 are only applicable if the proceeding is criminal in nature or has a true penal consequence. As stated in Kabul Farms Inc. v. Canada [2016] FCA 143, how this plays out depends on the facts of particular cases. The Tribunal considers that the administrative monetary penalty assessed to the appellant does not violate section 11(d) of the Charter, as the facts of this case do not demonstrate that the proceeding is criminal in nature nor does it have a true penal consequence. For instance, the two provisions for the basis of the monetary penalties are regulatory in nature with the objective being to regulate aviation safety. The process leading to the imposition of the penalties is an administrative proceeding that gives the appellant the opportunity to be heard by an independent and impartial tribunal, and before the appellant has to pay the sanction, the Minister must establish the alleged contraventions on a balance of probabilities. The purpose and the effect of the sanctions, as per the facts of this case, are not of a magnitude or impact that can be considered punitive; they are of a protective nature to respect the minimum altitudes and distances for flying and a deterrent to the violation of such minimal altitudes and distances. No evidence indicates that any penal or criminal consequences were ever levied against Mr. Van Brabant.

Cross-examination

[74] The explanation by the member of the scope of the cross-examination, as found in the transcript at pages 168, 173, 315-317, 336 and 694, may not have been accurate and it is noted that the appellant may have been disallowed questions during cross-examination. However, procedure before an administrative tribunal such as the TATC is informal (versus a criminal court where the right to cross-examine is more formal) as per section 15 of the TATC Act, and confers to the member broad flexibility. The review member also nuanced his explanation and allowed for more latitude, and explained to the appellant that he could present his position later in the hearing. The important point to remember is that the member gave a fair opportunity to the appellant to correct or controvert any relevant statement brought forward to his prejudice. Even though the appellant may have perceived the process unfair, ultimately natural justice was satisfied, as the review member offered him an opportunity to later present his position following conclusion of the Minister's presentation of evidence. In fact, the transcript shows that ample opportunity and latitude was provided to the appellant to rephrase or clarify his questions, comments or issues throughout the review.

[75] In reviewing the member's conduct during cross-examination, it is the appeal panel's view that the principles of natural justice were respected and adhered to. The instructions provided by the member during the opening statement phase of the review did not have a constraining effect on the appellant. The role of the review member is to provide the parties with an opportunity to present evidence and make representations that are consistent with procedural fairness and natural justice.

[76] The role and guidance of a member during a review must not unduly affect or make the case of either party. A member must intervene when the parties are conducting themselves in a manner that does not accord these principles. The appellant was self-represented and this resulted, expectedly, in the review member intervening but also in offering as much guidance as possible without making the case for him.

[77] In reviewing the instructions provided by the review member regarding cross-examination, the appeal panel sees no breach in procedural fairness and natural justice principles. The member provided clarification and guidance on the parameters of cross-examination as per the following examples: on page 168 of the transcript, the member asks the appellant to reformulate a question to the witness in cross-examination and instructs “you are somewhat leading, which, I mean you can lead … you can lead in your questioning. In cross-examination we sometimes allow a little bit more leading”. The same observation is made on page 187, where the Minister's representative states that the appellant can ask leading questions. The review member agrees and adds “I want to give you as much latitude, as much opportunity, because I do realize that you're representing yourself, and these are not familiar processes…”.

[78] One can find an inaccuracy in the statement that “in cross-examination we sometimes allow a little bit more leading”. It can be argued that this is mostly the norm and not the exception, but this would not qualify as providing erroneous instructions to the appellant. The appeal panel, in reviewing the conduct of the review member, concludes that he fully respected the principles of natural justice while ensuring impartiality and appropriate intervention when necessary.

[79] Consequently, the appeal panel rejects Ground 1of the appeal

Ground  2: The member erred in law by unduly constraining a number of the appellant's questions on examination-in-chief, thereby violating the appellant's section 7 and 11(d) Charter rights, or, in the alternative, violating the principles of natural justice.

[80] Some objections may have been perceived as frivolous by the appellant (as on page 890 of the transcript, vis-à-vis what happened versus what he observed) but are almost reflexive coming from a person with a law background. An eyewitness is there to explain what he saw or observed. Being interrupted by the other party is part of the process. It is more difficult for a self-represented party to deal with these interruptions which may disrupt the flow. Some interruptions made by the Minister s representative were appropriate, as were some made by the appellant that were sustained by the member. Natural justice goes both ways.

[81] The appellant contends that the member constrained the appellant's examinations-in-chief, thus violating again sections 7 and 11(d) of the Charter. As previously discussed in Ground 1 of the appeal, both Charter sections referred to by the appellant are not engaged in this case.

[82] The second issue for examination is whether the review member violated the principles of natural justice during the appellant's examinations-in-chief. In reviewing the transcript, the appeal panel does note the numerous interventions by the member. It must also be noted that conducting a hearing in a manner that is consistent with fairness and natural justice can require or oblige the member's intervention in certain situations, especially when a member must respond to an objection formulated by a party. The probability of this occurring will increase with an individual who is self-represented and, as admitted to by the appellant, inexperienced in administrative tribunal protocol and procedures.

[83] In carefully reviewing the transcript, numerous examples were found of the appellant asking improperly formulated questions, raising irrelevant arguments, or bringing forward past issues and conduct within the formation group that did not pertain to the matter at hand. The opposing party is entitled to object to these types of questions during the examination-in-chief. If the member were NOT to accord the same right to both parties, the hearing could be in jeopardy of not according procedural fairness to the parties.

[84] The review member, under these situations, is obliged to intervene and ensure impartiality to both parties. Constraining the appellant or interrupting him to maintain the task at hand is a required and necessary role of the member. The line between providing assistance and guidance, while not overstepping the role in helping the applicant make their case, is very fine. The appeal panel, in reviewing the transcript (pages 884 through 957 in particular), finds that the member did not err in law or reasonableness during his interventions. During testimony of the three witnesses for the appellant, approximately 24 instances were noted in which the review member intervened. In 15 of these instances, the review member either requested clarification of the questioning, provided support and recommendations, and/or asked that the question be rephrased. Ultimately, the appellant agreed and was able to pursue his line of questioning.

[85] In reviewing the objections during the appellant's examinations-in-chief, and as examples of the Minister's objections that were sustained by the member, the panel found that one dealt with solicitor-client privilege (page 954. 10) and another dealt with an objection where the witness had already provided a response (page 949.20) which then went to weight to the review member. Other objections pertained to leading questions and off-the-record discussions. Furthermore, leading questions are not allowed during a cross-examination-in-chief.

[86] Subsection 7.91(3) of the Aeronautics Act entitles a document holder and the Minister to a hearing that is consistent with procedural fairness and natural justice. It is the appeal panel's view that these principles were demonstrated during the appellant's examinations-in-chief. The Ground for Appeal 2 is dismissed.

Ground 3: The improper constraints imposed upon the applicant during examination-in-chief and cross-examination intimidated him to such an extent that he felt his own testimony would not be considered, and thus opted not to give evidence. NOTE: This ground for appeal is directly tied to the appellant's representative's raising of a motion for introduction of fresh evidence. The decision in regard to this ground for appeal was rendered in the motion filed by the applicant.

[87] The basis of an appeal hearing is set out in section 14 of the TATC Act as follows:

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

[88] A motion by the appellant's representative was heard by the appeal panel in regard to introducing fresh evidence. This motion sought to introduce viva voce evidence from the appellant, Mr. Van Brabant. In short, the grounds listed for this application were as follows:

a) Mr. Van Brabant's questions during examination-in-chief and cross-examination were regularly interrupted and disallowed by the Tribunal;

b) The excessive constraints placed on the appellant, who was self-represented, created a chilling effect and he became too intimated to give testimony on his own behalf. Due to the psychological effects on the appellant, the evidence could not have been adduced at trial;

c) The appellant was improperly barred from presenting documents;

d) The evidence is relevant and speaks directly to the violation;

e) The testimony is credible and reasonably capable of belief;

f) The evidence would be reasonably capable to have affected the result of the review determination.

[89] For new evidence to be admitted it must, firstly, not have been available and secondly, be necessary for the purpose of the appeal. The appeal panel is of the view that both elements of accepting new evidence have not been met.

[90] Mr. Van Brabant was available to either testify during the review, or as was his right under subsection 7.91(5) of the Aeronautics Act, to waive this opportunity.

[91] Concerning the second element of accepting new evidence, the appeal panel has decided that it is not necessary for the purpose of this appeal. The key factor cited by the appellant centers on his perception that the opportunity to testify was duly affected by the overall intimidation and perceived bias against him by the review member. This is based on the numerous interventions and rulings on objections by the member. Furthermore, the evidence the appellant wishes to introduce does not meet the Palmer test and the criteria of due diligence, relevance, credibility and decisiveness. According to the Supreme Court in Public School Boards' Assn. of Alberta v. Alberta (Attorney General) [2000] 1 S.C.R. 44, the matters in issue should narrow rather than expand as the case proceeds up the appellate ladder, the application for fresh evidence should not be to broaden the field of combat, and a reasonable practice would be to include in the fresh evidence application a draft that identifies in some details the exact propositions for which the evidence was sought to be adduced.

[92] In response to this motion, the appeal panel has reviewed the transcript of the four-day review in an attempt to understand and determine the overall conduct and general tone of the review member towards Mr. Van Brabant, in particular during examination-in-chief and cross-examination. Natural justice is of paramount importance in administrative law, and its main tenets are the right to be heard, to be provided with the opportunity to present evidence, and to make representations.

[93] The appeal panel agrees that the overall general conduct of the review member during the four days has met this criteria. The opportunity for the applicant to present his case and/or testify was noted on at least 30 occasions, from day one through day four. As specific examples, on at least 12 occasions Mr. Van Brabant was given the opportunity by the review member to take the time he would require, or reminded that he was not limited in time during examination-in-chief and cross-examination (pages 162, 163, 164, 193, 350, 546, 551, 570, 574, 622, 684, 842 of the transcript).

[94] Being self-represented is a choice made by the applicant. Tribunal members are not fettered by the strict evidential and other rules applicable to court proceedings. However, even in a more relaxed scheme of rules, self-representation by an applicant opposing a represented defendant will inevitably bring more objections, as per Kane v. Board of Governors of UBC, [1980] 1 S.C.R. 1105 at page 1112. Mr. Van Brabant himself raised this issue several times during the review that his grasp of the proceedings was weak. Again, in reviewing the entirety of the four days, in the approximately 195 instances of objections raised by both parties, over 60 per cent were in support or in favour of the applicant.

[95] The appeal panel has considered the issue of fear and intimidation raised by the appellant as a basis to introduce new evidence in viva voce testimony at the appeal stage. In reviewing the member's overall procedural conduct during the hearing, and in reviewing the totality of the transcript, the appeal panel finds no substantiated evidence that the test to admit fresh evidence is met. The motion to admit fresh evidence in tandem with Grounds for Appeal 3 is dismissed.

Ground 4: The member erred in fact in his assessment of the credibility of the Minister's witnesses.

[96] The appellant argued that the member had “carte blanche” because he did not give reasons why he preferred the Minister's position over his, and that the member did not consider the collusion factor in his determination of credibility.

[97] The question the appeal panel must answer here is: was the member's determination of credibility based on erroneous factors or on an absence of evidence? It is true that the member did not offer lengthy reasons (para. 137 of the determination) and credibility is not much discussed. However, he was satisfied that all elements of the infraction were supported by “compelling” evidence from the Minister, and noted that the credibility of the Minister's witnesses was not challenged by the appellant. The panel owes deference to the review member on questions of fact and credibility.

[98] The Minister raised R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, which suggests that determining credibility is key in the Tribunal's role. A total of ten witnesses were presented by the Minister in the case at hand, and their respective testimonies were supported by 41 filed exhibits. It is the view of the appeal panel that the appellant has failed to show any factual proof that the review member erred in assessing the credibility of these witnesses.

[99] The appeal panel believes that the review member is in the best position to evaluate the credibility of the witnesses before him, and that deference must be shown to the member. In this case, the member did find the witnesses to be credible. Based on the review of the transcript, the appeal panel has decided that the member's assessment of credibility of the witnesses is reasonable, and unless it was unreasonable, we as an appeal panel would be loath to substitute our own findings for the member's.The Ground for Appeal 4 is dismissed.

Ground 5: The member erred in fact by not considering the expert evidence which suggested that only a well-trained aerobatic pilot would have been capable of performing the maneuvers described, and the maneuvers in question could not have been performed by the aircraft without dangerous risks to its structural integrity.

[100] In R. v. Mohan, [1994] 2 S.C.R. 9, at page 20, the Supreme Court has stated that the admission of expert evidence depends on the application of the following criteria:

a) Relevance;

b) Necessity in assisting the trier of fact;

c) The absence of any exclusionary rule;

d) A properly qualified expert.

[101] In short, the party seeking to bring in expert evidence must first qualify the witness as an expert, and demonstrate that the evidence is relevant and necessary to the case. The appellant seeking to present expert evidence has to first qualify the witness as an expert by putting into evidence the expert's skills, education and experience in the area targeted. The opposing party, i.e. the Minister, can then cross-examine the witness on his/her qualifications. Once the cross-examination is complete, both parties can present arguments as to the qualifications of the witness(es). Finally, the review member decides whether and where expertise is recognized.

[102] The three witnesses called by Mr. Van Brabant were not called as experts and as a result, their testimony could not be considered as expert evidence. Granted that the three witnesses do have knowledge and familiarity with the Vans RV4 and Vans RV6, this does not make them experts in the field of flight handling and the characteristics of aerobatic maneuvering.

[103] It can be concluded that no expert testimony was given at the hearing. Even if the maneuver was qualified by the appellant's witnesses as difficult, both on the aircraft and on the pilot, it was nevertheless completed despite this. Consequently, the Ground for Appeal 5 is rejected.

Ground 6: The member erred in fact by concluding that the full call sign of the appellant's aircraft could be made out from the video and pictures presented.

[104] The appeal panel, in reviewing the issue regarding the full call sign of the appellant's aircraft, has found that the determination rendered by the review member was reasonable. To summarize, the following matrix highlights the various testimonies and exhibits that were available to the review member in deciding this question (X signifies a confirmation of type of aircraft – Vans RV6, pilot – Mr. Van Brabant, and partial or full registration as C-GMMR):

Witness Page /para. of the transcript Identified type of aircraft Identified type of aircraft + partial registration Identified type of aircraft + pilot Identified type of aircraft + pilot + full registration
William Pedlar 369.20 X      
John Stewart 274.25 X     X
Edward Butler 595.10, 603.10 X      
Kerry Horan 339.5, 340.5 X X    
Richard West 640.15, 639.20 X     X
Mark Seibutis 409.15, 410.20 X     X
Dennis Smith 740.10 & .15 X   X  

[105] On page 26 of his determination, the review member, taking into consideration the totality of the evidence presented including the video and pictures, reasonably concluded on a balance of probabilities that the full call sign of the appellant could be made out.

Ground 7: The member exhibited a reasonable apprehension of bias to the detriment of the appellant.

[106] One major component of the principles of natural justice is the right to a decision made by an independent and unbiased decision-maker. Accordingly, the decision-maker must be completely independent and impartial in reaching his or her decision. What matters is whether there was an apprehended bias that may have prejudiced a party or affected the decision.

[107] According to the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, the test for considering a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that there was a reasonable apprehension of bias. When performing this test, the “informed person” is presumed to have full knowledge of all the relevant circumstances of the situation, and has the duty of impartiality (see also, for example, R. v. S (R.D.), [1997] 3 S.C.R. 484).

[108] As such, the appeal panel must ask itself if the review member was prone to bias either consciously or unconsciously to the determinant of the appellant. After reviewing the four days of hearing, the appeal panel has decided that no apprehension of bias was evident in the review member's conduct, nor was it evident in his determination.

[109] The principles of natural justice provide that a person affected by a decision is given the opportunity to present their case, the right to be heard, and the right to a decision that is untainted by bias.

[110] It is the appeal panel's opinion that the appellant was provided with these rights, as well as the right to be represented at the hearing, or to be self-represented. Each party to a hearing must be subject to the same rules. The appellant raised the issue of apparent bias in that the review member was influenced by the Minister's lawyer through numerous objections raised and interruptions during cross-examination and examination-in-chief.

[111] As discussed earlier, the actual transcript does not support this perception. The Minister's representative's objections, issues and concerns raised during the hearing were for the most part founded and with merit; that is his role and responsibility and you cannot find fault if it was done properly and without malice. The review member must display impartiality and be objective to both parties. This includes appropriate and timely intervention, and guidance when warranted.

[112] In reviewing the transcript of the hearing, it was noted that on at least 40 occasions the review member provided guidance in regard to such matters as proper questioning, relevancy to discussions and procedural matters. However, there are limits as to what a member can do for a self-represented applicant in order to ensure impartiality and without making the case for the self-represented party. The instances of the member's guidance are found on the following pages of the transcript: 168, 171, 172, 173, 187, 189, 197, 204, 221, 301, 315, 318, 353, 355, 356, 359, 391, 404, 500, 518, 539, 546, 548, 552, 572, 573, 574, 576, 620, 621, 680, 692, 700, 706, 714, 718, 719, 801, 844, 855, and 920.

[113] Mr. Van Brabant exercised his right to represent himself and to not testify. As he himself admitted often throughout the hearing, his grasp and understanding of tribunal proceedings and protocol was weak, and he was intimidated by the process. This inevitably led to numerous interjections from both the review member and the Minister's representative. The appeal panel agrees with the Minister in that the threshold for finding a reasonable apprehension of bias must be high. It must be substantiated by facts.

[114] After reviewing the member's conduct over the four days, having viewed the matter realistically and practically, and having thought the matter through, the appeal panel has concluded that there was no reasonable apprehension of bias.

VII. DECISION

[115] The appeal is dismissed. The appeal panel upholds the review determination, confirming the Minister's decision to assess monetary penalties of $750 for contravening subsection 602.14(2), and $1,000 for contravening section 602.21 of the Canadian Aviation Regulations.

[116] The total amount of $1,750 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Decision.

November 17, 2016

Reasons for the Appeal Decision: Mr. Franco Pietracupa, Member (chairing)

Concurred by: Mrs. Suzanne Racine, Member

Mr. James E. Macdonald, Member