Decisions

TATC File No. Q-4163-44
MoT File No. N-5504-085298

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Indo Canadian Academy Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A 2, paragraph 7.3(1)(d)
Canadian Aviation Regulations, SOR/96-433, paragraph 405.33(2)(b)
Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, paragraph 19(1)(b)


Review Determination
Charles Sullivan


Decision: May 3, 2016

Citation: Indo Canadian Academy Inc. v. Canada (Minister of Transport), 2016 TATCE 11 (Review)

Heard in: Ottawa, Ontario, on January 26 and 27,2016

REVIEW DETERMINATION AND REASONS

Held: The Minister has proven, on a balance of probabilities, that the applicant, Indo Canadian Academy Inc., contravened paragraphs 405.33(2)(b) of the Canadian Aviation Regulations and 7.3(1)(d) of the Aeronautics Act. As such, the Tribunal confirms the Minister's decision to suspend the applicant's Flight Training Unit Certificate for 14 and 30 days respectively for each contravention, amounting to a total suspension of 44 days. This suspension will commence 35 days following service of this determination.

I. BACKGROUND

[1] The Minister of Transport (Minister) issued a Notice of Suspension (Notice) to the applicant, Indo Canadian Academy Inc., on July 24, 2015 alleging contraventions of paragraph 405.33(2)(b) of the Canadian Aviation Regulations, SOR/96-433 (CARs), and of paragraph 7.3(1)(d) of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act), pursuant to subsection 6.9(1) of the Act.

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

1. On or about August 8th 2014, at or near Gatineau, Quebec, on request from Mr. Rami Ali Ahmed Khalifa, a trainee receiving training for the purpose referred to in subsection 405.33(1) of the Canadian Aviation Regulations (CARs), Indo Canadian Academy Inc., as the person responsible for maintaining the trainee's pilot training record, failed to provide Mr. Rami Ali Ahmed Khalifa with the said record, thereby contravening paragraph 405.33 (2)(b) of the CARs.

Suspension: 14 days

2. On or about August 21st 2014, at or near Gatineau, Quebec, Indo Canadian Academy Inc., as the person responsible for maintaining student pilot Mr. Rami Ali Ahmed Khalifa's pilot training record (PTR), wilfully obstructed a person who was performing duties under Part 1 of the Aeronautics Act (the Act); more specifically, subsequent to a demand to produce the student pilot's PTR made by Inspector Taylor pursuant to paragraph 103.02(2)(c) of the CARs, Indo Canadian Academy Inc. produced a document to the inspector that it knew was not signed by Mr. Rami Ali Ahmed Khalifa, thereby contravening paragraph 7.3(1)(d) of the Act.

Suspension: 30 days

Total Suspension of the Flight Training Unit Certificate : 44 days

[3] On August 25, 2015, the Transportation Appeal Tribunal of Canada (Tribunal) received an application for review from Indo Canadian Academy Inc. with regard to the Notice. The applicant also requested a stay of the suspension, which was granted by the Tribunal on September 1, 2015, until the conclusion of the review of the Minister's decision.

II. STATUTES AND REGULATIONS

[4] Subsection 6.9(1) of the Act states:

6.9 (1) If the Minister decides to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued has contravened any provision of this Part or of any regulation, notice, order, security measure or emergency direction made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at that person's latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

[5] Paragraph 7.3(1)(d) of the Act states:

7.3 (1) No person shall

[...]

(d) wilfully obstruct any person who is performing duties under this Part;

[6] Section 405.33 of the Canadian Aviation Regulations reads in part as follows:

405.33 (1) A person who conducts flight training for the issuance of a private pilot licence, a commercial pilot licence or a flight instructor rating — aeroplane or helicopter shall, for each trainee, maintain a pilot training record that meets the personnel licensing standards.

(2) On request from a trainee receiving training for the purposes referred to in subsection (1), the person responsible for maintaining the trainee's pilot training record shall

(a) certify the accuracy of the entries; and

(b) provide the trainee with the record.

[7] Subsection 103.02(2) of the CARs reads in part as follows:

103.02 (2) Every person who

(a) is the holder of a Canadian aviation document,

(b) is the owner, operator or pilot-in-command of an aircraft in respect of which a Canadian aviation document, technical record or other document is kept, or

(c) has in possession a Canadian aviation document, technical record or other document relating to an aircraft or a commercial air service

shall produce the Canadian aviation document, technical record or other document for inspection in accordance with the terms of a demand made by a peace officer, an immigration officer or the Minister.

III. PRELIMINARY ISSUE

[8] The hearing was called to order at 9:00 a.m. (local time) on January 24, 2016. The Tribunal member advised those in attendance that the applicant, Indo Canadian Academy Inc., did not have a representative present and that there would be a 15‑minute delay in proceedings while the Tribunal attempted to make contact with the applicant in order to determine that party's intentions.

[9] The hearing was reconvened at 9:30 a.m. The member advised those present that all efforts to contact the applicant had been unsuccessful and that the hearing would proceed.

IV. EVIDENCE

A. Minister

(1) Mr. Rami Ali Ahmed Khalifa

[10] Mr. Khalifa was born in Libya, graduated from Ali Aljal High School in Tripoli, and obtained an aircraft maintenance engineer diploma from Absea Training Institute in Libya in 2011. Unable to find work in Libya as an aircraft maintenance engineer, he looked into obtaining a commercial pilot licence. He made contact with Ms. Ritu Chaturvedi of Indo Canadian Academy Inc. at the Gatineau Airport and registered with the Academy to undergo pilot training. Mr. Khalifa arrived in Canada in May 2014 at the Ottawa International Airport, was met by Ms. Chaturvedi and was subsequently taken to where he would be staying during his pilot training program, which was a house rented by Ms. Chaturvedi for student pilots near the Gatineau airport.

[11] Mr. Khalifa testified that shortly after his arrival he made a request for English language training. Indo Canadian Academy Inc. offered to provide him such training but he declined as it was an informal program offered at the airport and not something on which he wanted to spend his money. Mr. Khalifa further stated that he was to receive three groundschool training session per week; however, this level of training was not provided. He also stated that groundschool classes were conducted in a meeting room in the airport terminal, which meant that, when it was used by the airport operator, he was required to sit, sometimes for hours at a time, in the airport terminal until the room became available. He also stated that the Academy did not have a flight simulator to support student training. Mr. Khalifa testified that he did not feel prepared for his flights in the aircraft due to the inadequate level of groundschool instruction and the absence of simulator training.

[12] Mr. Khalifa testified that during the first week of his training, Indo Canadian Academy Inc. demanded that, in addition to the $15,000 down payment he had paid for his commercial pilot licence training, he pay an additional $10,000 or they would report him to immigration officials. Mr. Khalifa stated that the manner in which he was treated by Indo Canadian Academy Inc. made him feel as though he had done something wrong. Combined with the poor training he was receiving, Mr. Khalifa found this to be very stressful. He called a relative in Toronto for assistance; however, the situation with Ms. Chaturvedi could not be resolved, so Mr. Khalifa paid the $10,000.

[13] Mr. Khalifa testified that he continued his training until the beginning of August 2014, at which time Indo Canadian Academy Inc. asked him for additional funds. Mr. Khalifa stated that he did not want to pay any additional money as most of the time his groundschool training was cancelled without explanation and the Academy's three aircraft were often grounded. He decided that he would finish the training for a private pilot licence and then transfer to a new flight training school. Mr. Khalifa testified that he felt that he was wasting time and money at the Academy.

[14] Mr. Khalifa testified that his final flight with Indo Canadian Academy Inc. was flown on August 5, 2014. On the same day, Indo Canadian Academy Inc. issued Mr. Khalifa a letter stating that he would be breaking the rules if he didn't pay another $6,500 and that he would be reported to Immigration Canada and the police.

[15] Mr. Khalifa testified that he advised Indo Canadian Academy Inc. that he was not happy with the type of training he was receiving and was going to leave the school after obtaining his private pilot licence. Mr. Khalifa stated that Mr. Ravi, Ms. Chaturvedi's partner and an employee of Indo Canadian Academy Inc., advised him that he could not change schools as he had a visa and study permit for Phoenix Aviation School (the name under which Indo Canadian Academy Inc. was conducting business), and that if he was to leave the Academy he would be in Canada illegally. Mr. Khalifa advised Mr. Ravi that he was not going to continue his pilot training at Indo Canadian Academy Inc. and have them steal his money, and that he had already decided that he would change schools.

[16] Mr. Khalifa testified that Mr. Ravi advised him that he would need to sign a document in order to receive his pilot training record (PTR) from Indo Canadian Academy Inc. Mr. Khalifa testified that he advised Mr. Ravi that he would need to deal with his lawyer as he no longer trusted Indo Canadian Academy Inc. Mr. Khalifa stated that he did not sign the document as requested by Mr. Ravi and he did not see his PTR that morning.

[17] Mr. Khalifa testified that August 6, 2014 was his last day at Indo Canadian Academy Inc., and before he departed, he asked to have $25,000 returned to him as the Academy had received twice the amount needed from him to obtain his private pilot licence. Mr. Ravi advised Mr. Khalifa that he could have his money returned when he went back to Libya. Mr. Khalifa stated that he was afraid of Indo Canadian Academy Inc. and decided to move out of the house he rented from them and move in with friends. Mr. Khalifa testified that after leaving Indo Canadian Academy Inc., he enrolled with Ottawa Aviation Services at the Ottawa Airport.

[18] The witness introduced an email dated August 7, 2014 he wrote to Ms. Ritu Chaturvedi (Exhibit M‑1). Mr. Khalifa testified that the email advised Ms. Chaturvedi that he was quitting Phoenix Aviation Flight Academy as of that day, and that he was requesting a financial statement and his school progress report (his PTR) for the last two months.

[19] The witness introduced a photocopy of page 16 from his pilot log book (Exhibit M‑2). Mr. Khalifa testified that the photocopied page indicated that on August 5, 2014 he flew a solo flight at Phoenix Aviation Academy and on August 13 he flew his first flight with Ottawa Aviation Services. Mr. Khalifa stated that his last day at Indo Canadian Academy Inc. at Gatineau Airport was August 6 and confirmed that the message he wrote to Ms. Chaturvedi (contained in Exhibit M‑1) was sent both by email and Canada Post on August 7.

[20] Mr. Khalifa testified that he made contact with Ms. Jenny Putinsky at Ottawa Aviation Services when he arrived to begin his new pilot training program. Ms. Putinsky contacted Indo Canadian Academy Inc. to request Mr. Khalifa's PTR; however, the Academy stated that they had sent it to the RCMP and Ottawa Police Service. Ms. Putinsky then contacted Transport Canada and spoke with Inspector Nick Taylor, explained Mr. Khalifa's situation and asked Inspector Taylor for assistance in obtaining his PTR. Mr. Khalifa went to Transport Canada offices in Ottawa on August 21, 2014 and registered a formal complaint against Indo Canadian Academy Inc.

[21] The witness introduced an email dated August 21, 2014 he wrote to Transport Canada Civil Aviation Service Ontario (Exhibit M‑3). The purpose of the email was to advise Transport Canada that Indo Canadian Academy Inc. was holding his PTR and refusing to give it to him as requested.

[22] The witness introduced a document produced by Indo Canadian Academy Inc. dated August 7, 2014 (Exhibit M‑4). Mr. Khalifa testified that this letter from Phoenix Aviation indicated that Mr. Khalifa was in possession of his PTR. Mr. Khalifa testified that the first time he saw the document was at Inspector Taylor's office at Transport Canada. Mr. Khalifa further testified that although the signature on the document was similar to his, he stated that he did not sign the document. Mr. Khalifa stated that Transport Canada asked him to provide documents with his signature so as to facilitate an investigation into the authenticity of the signature on document M‑4.

[23] The witness introduced a series of 13 documents, each of which, as he testified, bears his authentic signature (Exhibit M-5, annotated as M-5/A to M-5/M).

(2) Inspector Nicholas Taylor

[24] Inspector Taylor is an employee of Transport Canada, Civil Aviation Ontario Region, and is the Technical Team Lead of Flight Operations at the Ottawa Regional Office. Prior to joining Transport Canada in 2003, he was a flight training unit chief flight instructor, manager of a flight training unit and a flight test examiner. In August 2014, he was the supervisor overseeing flight operations inspectors and responsible for flight operations, air operators, flight training units, and airports in the Eastern Ontario Region.

[25] The witness introduced an email from Ms. Jenny Putinsky with subject line “International Student: Rami Ahmed”, dated August 18, 2014 and addressed to Transport Canada Civil Aviation Service Ontario (Exhibit M‑6). Inspector Taylor testified that he received the email from Ms. Putinsky and considered it to be a request for assistance from a school under his supervision. Inspector Taylor stated that he had also received an email from Mr. Khalifa, which was a formal complaint regarding his treatment by Indo Canadian Academy Inc. Inspector Taylor stated that he contacted Mr. Khalifa on August 21, 2014 and learned that Mr. Khalifa was requesting assistance in retrieving his PTR and funds he had paid to Indo Canadian Academy Inc. Inspector Taylor stated he advised Mr. Khalifa that he could provide assistance in retrieving his PTR as it was an aviation document, but could not help him with retrieving the funds he had paid to the Academy.

[26] Inspector Taylor stated that he made plans to visit Indo Canadian Academy Inc. on August 21, 2014, which included contacting his counterpart in the Quebec Region, Inspector Stéphane Bradette, to inform him that he would be visiting a flight school under his supervision. Inspector Taylor stated that Inspector Bradette stated he would also be visiting Indo Canadian Academy that day to conduct a programme validation inspection. Inspectors Taylor and Bradette coordinated their activities so as to arrive together at Indo Canadian Academy Inc. at 1:30 p.m. that day.

[27] Inspector Taylor testified that when he arrived at Indo Canadian Academy Inc., he met Ms. Ritu Chaturvedi, Mr. Robbi Virdi, and Mr. Donald Doyle, the chief flight instructor. Inspector Taylor advised Mr. Doyle that he was there to retrieve Mr. Khalifa's PTR. Mr. Doyle responded that they had already given the PTR to Mr. Khalifa and produced a document to support the transaction (Exhibit M-4, letter from Phoenix Aviation). Inspector Taylor retained a copy of this document for his records and, while at Indo Canadian Academy Inc., made copies of the flight records, journey logs, and daily flight sheets that pertained to Mr. Khalifa. Inspector Taylor stated that the photocopied records would allow Mr. Khalifa to re-create his PTR.

[28] The witness stated that he reviewed letter M-4 and the photocopied daily flight sheets, which had Mr. Khalifa's signature. He also spoke with Mr. Khalifa at his office following his visit to Indo Canadian Academy Inc. and presented him with letter M-4, at which time Mr. Khalifa denied having knowledge of the document and denied having placed his signature on it.

[29] Inspector Taylor introduced a Detection Notice dated October 2, 2014, he prepared and filed with Transport Canada Quebec Region (Exhibit M-7). The witness stated that he filed the Detection Notice as he felt that things were not as they should be with regard to Mr. Khalifa's PTR. He had contacted Inspector Charles Burroughs, an enforcement inspector in the Quebec Region, and relayed the information he had gathered on the issue. Inspector Taylor stated that it was Inspector Burroughs who had asked him to file the Detection Notice with the Quebec Region.

[30] The witness introduced a summons issued by the Tribunal dated November 26, 2015 directed to Mr. Rami Khalifa, and a cheque for the sum of $50 made out to Mr. Khalifa dated November 12, 2015 (Exhibit M-8). Inspector Taylor testified that he served a summons on Mr. Khalifa based on a formal request from the Minister's representative, Mr. Eric Villemure. He also stated that he delivered to Mr. Khalifa a cheque for the sum of $50 to cover costs associated with his appearance at the hearing before the Tribunal.

(3) Mr. Marco Ghirotto

[31] Mr. Ghirotto was hired by the RCMP in 1982 and completed a two-year Understudy Training Programme to become a document examiner. He was issued an expert diploma by the RCMP on completion of his training in 1984. Mr. Ghirotto's academic achievements also include a Master's Degree in Sociology from McMaster University and a Law Degree from the Université de Montréal. He has lectured and taught on subjects related to document examinations and made presentations to lawyers' groups, the Barreau du Québec, the Association du Jeune Barreau de Montréal and a Police College in Quebec. His experience as a document examiner includes a total of 1,487 case files and 52 engagements where he provided expert testimony for the RCMP.

[32] Mr. Ghirotto introduced his curriculum vitae, which lists his qualifications, experience, education, publications and presentations (Exhibit M‑9). Mr. Ghirotto was qualified as an expert witness by the Tribunal member chairing the hearing.

[33] The witness introduced a Transport Canada document entitled “Énoncé des travaux (mandat)” which defined his mandate with respect to Transport Canada's case involving Mr. Khalifa and Indo Canadian Academy Inc. (Exhibit M‑10).

[34] He also introduced a report dated October 8, 2015, which he submitted to Inspector Burroughs regarding his expert work and analysis of the documents presented as Exhibits M-4 and M-5 (Exhibit M‑11).

[35] In his expert-witness testimony, Mr. Ghirotto provided a detailed explanation as to how he carried out his expert analysis of the signatures appearing on documents M-4 and M-5, specifically the methodology used in analysing each of the signatures on the 14 documents. Mr. Ghirotto testified that his findings were related to “probability”, and allowed him to conclude that the writer of the specimen signatures (Exhibit M-5) probably did not execute the questioned signature on the document at issue (Exhibit M-4).

(4) Inspector Charles Burroughs

[36] Inspector Burroughs is an employee of Transport Canada Civil Aviation at the regional office in Dorval, Quebec. He has been an occupation investigator since September 2000 specializing in reviewing and analysing information related to possible offences and violations to the CARs and the Act. Inspector Burroughs testified that, in September 2014, he was made aware of possible non-compliance on the part of Indo Canadian Academy Inc. by Inspector Taylor, who then forwarded the Detection Notice to him in October 2014, including a photograph of document M-4 and various supporting statements.

[37] The witness introduced a printout of a record from the “Registre des entreprises du Québec” (Quebec's registry of companies), dated 23 July 2015 (Exhibit M‑12). Inspector Burroughs testified that the printout identified the alleged Detection Notice offender as “Phoenix Aviation”, and Ms. Ohi Lan Virdi as the “Accountable Executive”, primary shareholder and “Vice President” of the company, as well as Ms. Ritu Chaturvedi as its “President”.

[38] Inspector Burroughs testified that he forwarded a letter of investigation on December 15, 2014 that offered Indo Canadian Academy Inc. the opportunity to provide comments on the alleged non-compliance. The letter was sent by registered mail with the expectation of a response within 30 days. The letter came back marked “Unclaimed” on January 6, 2015. Inspector Burroughs stated that he made arrangements to hand-deliver the letter of investigation personally, and proceeded to contact the Forensic Sciences Department of the RCMP to secure the services of an expert document examiner to analyse the signature on document M-4.

[39] Inspector Burroughs stated that he hand-delivered the letter of investigation on February 26, 2015 directly to Ms. Chaturvedi, whom he was able to identify beforehand through recent photographs. Inspector Burroughs stated that he allowed Indo Canadian Academy Inc. 30 days to review the details of the letter and provide a response; however, no response was forthcoming. Inspector Burroughs stated that he then proceeded to produce his report that outlined all the facts and supporting documentation of the case, and his recommendations for charges and penalties. He received $500 in funding in May 2015 to secure the services of a private document examiner to support his investigation.

[40] Inspector Burroughs testified that with respect to non-compliance with the CARs and violations of the Act, it came down to two charges and two penalties. The first charge was related to a 14-day suspension for the offence of not providing a student his PTR upon request, thereby contravening paragraph 405.33(2)(b) of the CARs.

[41] In response to the Minister's questions, Inspector Burroughs provided testimony regarding the penalties associated with the first charge. The details he provided were as follows:

  • First offence: three to seven days' suspension, or a $1,250 monetary penalty;
  • Second offence: seven to fourteen days' suspension, or a $2,500 monetary penalty;
  • Third and further offences: 14 to 30 days' suspension, or a monetary penalty;
  • Mitigating and aggravating factors may be applied to reduce or increase penalties and fines as recommended by regulatory enforcement authorities and endorsed by the Tribunal.

[42] Inspector Burroughs cited several examples of coercion exercised by Indo Canadian Academy Inc. that he considered to be aggravating factors:

  • Pressure on the student to pay money upfront;
  • Threats related to the student's visa status in Canada;
  • Retaining the PTR to prevent the student from transferring schools;
  • Threatening to report the student to immigration authorities and the police.

[43] With respect to the second charge based on a contravention of paragraph 7.3(1)(d) of the Act, which prohibits the wilful obstruction of any person who is performing duties under Part 1 of the Act, Inspector Burroughs stated that Inspector Taylor had a duty to investigate a complaint from a student who was trying to transfer from a school in Gatineau to a school in Ottawa. He was obliged to determine whether or not the document holder of the school in Gatineau was complying with the CARs. Inspector Burroughs emphasized that Indo Canadian Academy Inc. carried out an act of contempt when it presented a fraudulent letter to a regulatory inspector. Inspector Burroughs stated that the second charge of wilful obstruction when dealing with a federal agency is a serious matter that he regarded as an aggravating factor, which led him to recommend a 30-day suspension.

V. ARGUMENTS

A. Minister

[44] The Minister's representative submitted that the elements for both charges had been proven and that, on a balance of probabilities, Indo Canadian Academy Inc. contravened the applicable sections of the CARs and the Act. Indo Canadian Academy Inc. is therefore liable for these infractions as prescribed in Schedule A of the Notice.

B. Applicant

[45] Indo Canadian Academy Inc. did not appear at the hearing and presented no arguments.

VI. ANALYSIS

[46] The respondent adduced evidence through the examination-in-chief of three witnesses and one expert witness, and the presentation of 13 exhibits at the hearing. The applicant was not present to cross-examine witnesses or challenge evidence presented by the Minister.

[47] The Minister's case focused on the two contraventions brought against Indo Canadian Academy Inc., the elements of which are as follows:

Contravention #1 (paragraph 405.33(2)(b) of the CARs):

  • On August 8, 2014, at or near Gatineau, Quebec, Mr. Rami Ali Ahmed Khalifa requested his PTR from Indo Canadian Academy Inc.,
  • Indo Canadian Academy Inc. is the person responsible for maintaining Mr. Khalifa's trainee's PTR, and
  • Indo Canadian Academy Inc. failed to provide Mr. Khalifa with the said record.

Contravention #2 (paragraph 7.3(1)(d) of the Act):

  • On or about August 21, 2014 at or near Gatineau,
  • Indo Canadian Academy Inc. was requested to produce a PTR by a Transport Canada inspector,
  • Indo Canadian Academy Inc. provided the Transport Canada inspector with a document that it knew was not signed by Mr. Rami Ali Ahmed Khalifa, and in doing so, wilfully obstructed a person who was performing duties under Part 1 of the Act.

[48] Mr. Khalifa testified that he was not happy with the flight training he had received from Indo Canadian Academy Inc. He stated that he did not feel prepared for his flights in the aircraft due to inadequate groundschool instruction and the absence of simulator training. He also testified that the manner in which he was being treated by Indo Canadian Academy Inc. made him feel as though he had done something wrong, which he found very stressful. Mr. Khalifa decided to leave the Academy after he obtained his private pilot licence and then transfer to a new flight school to obtain a commercial pilot licence.

[49] Mr. Khalifa testified that on August 6, 2014, which was his last day of training at Indo Canadian Academy Inc., the school issued him a letter stating that he would be breaking the rules if he didn't pay an additional $6,500 and that he would be reported to Immigration Canada and the police. Mr. Khalifa advised the Academy that he would not be continuing his training with them and asked to have $25,000 returned as he believed he had paid twice the amount needed to obtain his private pilot licence. Indo Canadian Academy Inc. advised him that he would have his money returned when he returned to Libya. He was then advised by the Academy that he needed to sign a document to receive his PTR. Mr. Khalifa testified that he did not see or sign the document as he didn't trust the Academy and that he did not see his PTR. On August 7, 2014, Mr. Khalifa sent an email to Ms. Chaturvedi of Indo Canadian Academy Inc. (Exhibit M-1) requesting a financial statement and his PTR. Mr. Khalifa did not return to Indo Canadian Academy Inc. and subsequently enrolled with Ottawa Aviation Services at the Ottawa Airport.

[50] After arriving at Ottawa Aviation Services, Mr. Khalifa sent an email to Transport Canada (Exhibit M-3) to register a formal complaint against Indo Canadian Academy Inc. and to advise Transport Canada that the Academy was holding his PTR. At the same time, Ms. Jenny Putinsky of Ottawa Aviation Services contacted Indo Canadian Academy Inc. and requested Mr. Khalifa's PTR; however, the Academy stated that they had sent it to the RCMP and the Ottawa Police Service. Ms. Putinsky then contacted Transport Canada and asked for assistance in securing Mr. Khalifa's PTR.

[51] Inspector Taylor of Transport Canada visited Indo Canadian Academy on August 21, 2014 for the purpose of investigating Mr. Khalifa's complaint and to retrieve Mr. Khalifa's PTR. When questioned on Mr. Khalifa's PTR, Mr. Doyle, who was the chief flying instructor at Indo Canadian Academy Inc., stated that the Academy had given the PTR to Mr. Khalifa and produced a document that was allegedly signed by Mr. Khalifa to support this transaction (Exhibit M-4). Inspector Taylor spoke with Mr. Khalifa following his visit and presented him the signed document. Mr. Khalifa denied having knowledge of the document and denied having placed his signature on the document.

[52] With assistance from the RCMP, Transport Canada secured the services of an expert document examiner, Mr. Marco Ghirotto, to analyse the signature on document M-4 and a series of other documents with Mr. Khalifa's signature. Through his expert analysis, Mr. Ghirotto concluded that the signature on document M-4 was probably not the signature of Mr. Khalifa.

(1) Contravention #1

[53] With regard to the first contravention of failing to provide the PTR, there were three opportunities for Indo Canadian Academy Inc. to provide the requested record. The first arose from Mr. Khalifa's request as he prepared to leave the Academy in early August 2014. The second opportunity occurred when Ms. Putinsky from Ottawa Aviation Services made a request on behalf of Mr. Khalifa for his PTR. Indo Canadian Academy Inc. advised Ms. Putinsky that the requested document had been forwarded to the police. The third opportunity occurred when Inspector Taylor requested Mr. Khalifa's PTR, which resulted in Indo Canadian Academy Inc. producing a document that stated that Mr. Khalifa had already received his PTR.

[54] The inconsistent information offered by Indo Canadian Academy Inc. in response to the three requests for Mr. Khalifa's PTR is troubling. Indo Canadian Academy Inc. initially stated that Mr. Khalifa would need to sign a document to receive his PTR. Mr. Khalifa testified that he did not sign the document and did not receive his PTR. To the second request, Indo Canadian Academy Inc. stated that the PTR had been forwarded to the police. To the third request, the Academy's chief flying instructor presented a document to a Transport Canada inspector that was allegedly signed by Mr. Khalifa and stated that Mr. Khalifa had received his PTR. Most troubling was the testimony of an expert witness that indicated that the signature on the document produced by Indo Canadian Academy Inc. to Transport Canada was probably not the signature of Mr. Khalifa.

[55] The Minister adduced clear and compelling evidence from four reliable and credible witnesses that based on the balance of probabilities, Indo Canadian Academy Inc., as the person responsible for maintaining the trainee's PTR, failed to provide Mr. Khalifa with the said record, thereby contravening paragraph 405.33(2)(b) of the CARs.

(2) Contravention #2

[56] With regard to the second contravention of wilfully obstructing a person who was performing duties under Part 1 of the Act, as outlined above at paragraph [49], the Minister adduced clear and compelling evidence from an expert document examiner that Indo Canadian Academy Inc. presented a document for the purpose of misleading and deceiving a Transport Canada inspector, which is a wilful act to obstruct a person performing duties under Part 1 of the Act.

(3) Sanction

[57] With regard to the issue of sanction, the Tribunal heard testimony from Inspector Burroughs regarding Transport Canada's decision to suspend the flight training unit's certificate for a total of 44 days. Inspector Burroughs explained the process whereby Transport Canada reviews evidence gathered in an investigation and then determines the sanction that would be appropriate after considering mitigating and aggravating factors. Recommendations are forwarded from aviation investigators to Transport Canada senior managers for a policy-based decision.

[58] Inspector Burroughs explained how the flight training unit's conduct constituted an aggravating factor warranting a second-tier sanction of 14 days. Its treatment of Mr. Khalifa and its general behaviour and conduct as a flight training unit was unwarranted and unlawful. The Tribunal deems the 14‑day suspension for the first charge to be an appropriate sanction.

[59] With regard to the second contravention of wilful obstruction, Inspector Burroughs testified that the intent of the recommended sanction was not only to impose punishment on the document holder who wilfully committed the non-compliance, but was also meant to send a clear message to other training units in the aviation community that Transport Canada finds any act of wilful obstruction and non-compliance to be a serious contravention. A third-tier sanction of a 30‑day suspension is deemed appropriate for the second charge.

VII. DETERMINATION

[60] The Minister has proven, on a balance of probabilities, that the applicant, Indo Canadian Academy Inc., contravened paragraphs 405.33(2)(b) of the Canadian Aviation Regulations and 7.3(1)(d) of the Aeronautics Act. As such, the Tribunal confirms the Minister's decision to suspend the applicant's Flight Training Unit Certificate for 14 and 30 days respectively for each contravention, amounting to a total suspension of 44 days.

May 3, 2016

Charles S. Sullivan

Member


Review Determination (2)
Charles Sullivan


Decision: May 3, 2016

Citation: Indo Canadian Academy Inc. v. Canada (Minister of Transport), 2016 TATCE 12 (Ruling)

Heard in: Ottawa, Ontario, on January 26 and 27,2016

RULING ON THE MINISTER'S REQUEST FOR COSTS

Held: In accordance with paragraph 19(1)(b) of the Transportation Appeal Tribunal of Canada Act, costs are awarded to the Minister for an amount of $2,700, which the Tribunal believes to be reasonable in this case.

The total amount of $2,700 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this ruling.

I. BACKGROUND

[1] The review hearing requested by the applicant, Indo Canadian Academy Inc., was originally scheduled to take place before the Transportation Appeal Tribunal of Canada (Tribunal) on November 20, 2015. Before that date, the applicant requested that the hearing be postponed, and it was rescheduled for January 26 and 27, 2016. When the hearing was called to order on the morning of January 26, the respondent, a representative of the Minister of Transport (Minister), was present and ready to proceed but the applicant was not in attendance. Efforts undertaken by the Tribunal to contact the applicant were unsuccessful. After a 30‑minute recess, the Tribunal member allowed the hearing to proceed in the absence of the applicant.

II. REQUEST

[2] The respondent advised the member that the Minister would seek to have the Tribunal award costs against the applicant based on paragraph 19(1)(b) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act), which provides the following:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

[...]

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; [...]

[3] In support of this request, the respondent adduced evidence through the testimony of two of its witnesses, Transport Canada Inspectors Nicholas Taylor and Charles Burroughs during the hearing.

[4] Inspector Taylor introduced a summons issued by the Tribunal dated November 26, 2015 directed to Mr. Rami Khalifa, and a cheque for the sum of $50 made out to Mr. Rami Ali Ahmed Khalifa dated November 12, 2015 (Exhibit M-8). Inspector Taylor testified that he served a summons on Mr. Khalifa based on a formal request from the Minister's representative, Mr. Eric Villemure, and that he delivered to Mr. Khalifa a cheque for the sum of $50 to cover costs associated with his appearance at the hearing before the Tribunal.

[5] Inspector Burroughs introduced a copy of the service contract entered into by Transport Canada and Mr. Marco Ghirotto, an expert document examiner (Contract No. T3123-150144, awarded January 18, 2015, Exhibit M-13). Inspector Burroughs stated that the service contract was negotiated in October 2015, in preparation for a Tribunal hearing that was initially scheduled for the following month. The total amount of $3,329.35 included $2,700 for Mr. Ghirotto's time to appear at the hearing as well as expenses related to his travel, accommodation and meals at government per diem rates. Inspector Burroughs further stated that Mr. Ghirotto's fee for his work as a document examiner was $750, and was not part of the $3,329.35.

[6] At the hearing, the Minister requested to be reimbursed for the following costs incurred by Transport Canada:

(a) witness fees for Mr. Khalifa in the amount of $50; and

(b) an estimated cost for the document examiner Service Contract in the amount of $3,329.35.

III. EX PARTE MOTION

[7] On February 12, 2016, the respondent sent to the Tribunal an ex parte motion to re‑open the evidentiary record and adduce additional evidence regarding costs. Generally, ex parte applications are only made when explicitly provided by statute and in very specific cases such as a case of emergency. The Aeronautics Act contains very few provisions that allow ex parte applications. The initial proceeding giving rise to this separate ruling on costs was based on section 6.9 of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act), which does not allow for an ex parte motion. Subsections 6.9(6) and (7) of the Act state that the Tribunal shall appoint a time and place for the review of the Minister's decision and that, at the time and place appointed, the parties will be given an opportunityconsistent with procedural fairness and natural justiceto present evidence and make representations. An ex parte motion in this case is contrary to these provisions. Therefore, the Tribunal cannot accept such motion.

IV. ANALYSIS

[8] In a review proceeding under section 6.9 of the Act, the applicant is not compelled to testify. This means that if the applicant had been in attendance but had not participated in the proceeding, the Minister would still have had to present his case since he has the burden of proving the contraventions. However, the hearing that was scheduled for November 20, 2015 by the Tribunal was postponed at the request of the applicant. On the new hearing date, January 26, 2016, the applicant was not in attendance and every effort made by the Tribunal to contact the applicant was unsuccessful. The applicant provided no explanation or reason as to why it did not appear.

[9] The Tribunal considers that, by having requested a postponement, the applicant led the Tribunal and the other party to believe that it intended to attend the hearing and possibly put a case forward. Both the Tribunal and the respondent accepted the applicant's request for a postponement based on that understanding. By failing to appear at the new hearing date without providing any justification, especially as the party having requested a postponement, the applicant created a situation where the award of costs can be considered. In the circumstances of the case, a reasonable reimbursement for costs incurred by the Minister is justified.

V. RULING

[10] In accordance with paragraph 19(1)(b) of the TATC Act, costs are awarded to the Minister for an amount of $2,700, which the Tribunal believes to be reasonable in this case.

May 3, 2016

Charles S. Sullivan

Member