Decisions

CAT File No. C-1095-02
MoT File No. RAP 6504-P243981-028159

CIVIL AVIATION TRIBUNAL

BETWEEN:

Leslie G. Marsh, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Air Regulations, C.R.C 1978, c. 2, s. 218(A)

Disclosure, Overweight Aircraft, Admissibility of Evidence


Review Determination
Gordon R. Mitchell


Decision: September 29, 1995

I find that the Applicant Mr. Leslie G. Marsh did contravene Air Regulation 218(a).

I confirm the Minister's decision to assess a two- day suspension which shall begin on the fifteenth day following the service of this determination.

A Review Hearing on the above matter was held Wednesday, September 6, 1995 at 14:00 hours at the Pickle Lake Hotel, in Pickle Lake, Ontario.

BACKGROUND

The Notice of Suspension issued to Leslie G. Marsh reads as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulation 218(1)(a) in that, at approximately 1524 hours local, on April 8, 1994, at or near Kanabia Lake [sic], Ontario, you did unlawfully attempt to fly an aircraft, to wit a De Havilland DHC-3 bearing Canadian Registration Marks CF-CZO when the weight of the said aircraft and its load exceeded the maximum permissible weight specified in the Certificate of Airworthiness and, the maximum take off weight specified for the aircraft in the Aircraft Type Approval Data Sheet which forms part of the said Certificate of Airworthiness.

THE LAW

Paragraph 218(a) reads as follows:

218. No person shall fly or attempt to fly any aircraft unless

(a) the weight of the aircraft and its load does not exceed the maximum permissible weight specified in the certificate of airworthiness or flight permit;

OVERVIEW

On April 8, 1994, Pilot Marsh was flying De Havilland Otter CF-CZO, owned by Gold Belt Air Transport. He arrived at Kabania Lake, Ontario to complete the haul of building material to Fishbasket Camp.

The De Havilland Otter C-FFIJ belonging to Winisk Air was not able to complete the haul because of an accident which had caused major damage to the left undercarriage and further transmitted to left adjacent fuselage area. The Winisk Otter was at the end of a 2500-ft ice strip, having hit a snow bank when attempting to take off.

The load from the Winisk Air Otter C- FFIJ was transferred to the Gold Belt Otter CF-CZO. Pilot Marsh then attempted twice to take off but aborted both times.

The Gold Belt Otter was then unloaded and the load weighed. It was determined that the aircraft was grossly overloaded. The load was split and two trips were made to complete the haul.

MOTION PRIOR TO CALLING WITNESSES

Thomas Meilleur, agent for the Applicant Leslie G. Marsh and operations manager for Gold Belt Air Transport, requested a ruling on "Full Disclosure." He contended that Inspector Pratt had refused him this. Mr. Meilleur's request was for the qualifications of two Inspectors, one was to be called as a witness and the other was in attendance at this Hearing.

Mr. Pratt, when asked, stated that full disclosure of all "evidence" had been given. He added that Mr. Meilleur's request went beyond evidence; it was for disclosure of internal correspondence which is not given out. Mr. Pratt stated that Mr. Meilleur, as a representative of Pilot Leslie G. Marsh, had received from Mr. Pratt, "a complete disclosure package of all the relevant evidence and all of the evidence we had."

Mr. Meilleur's tenacious and lengthy diatribe continued. He used as an example the Ontario Provincial Police who, he contended, used the policies he was alluding to regarding evidence. Mr. Pratt pointed out that this was not the case and explained the difference between evidence and information.

Mr. Meilleur's concern centred on his earlier request for the personal flying background of two Transport Canada Inspectors. Mr. Pratt assured him they were fully qualified for the positions they held in Transport Canada.

After this extensive discussion my position on this matter is to accept the fact that full disclosure had been made and therefore proceed with the hearing!

EVIDENCE

The Minister's first witness Inspector Gagnon was called, and he presented the following exhibits:

M-1: A copy of the Certificate of Registration for De Havilland DHC-3, CF-CZO.

M-2: Copies of two pages from the Aircraft Journey Log for CF-CZO. The first page covered aircraft identification and fuel and weight data. The second page was headed Aircraft Journey Log and Daily Flight Report No. 30145, dated April 8, 1994, showing aircraft captain named Marsh.

Mr. Meilleur questioned the authenticity of exhibits entered that were not stamped and signed as Certified True Copies. He was referring to Exhibit M-2 consisting of two pages.

Inspector Gagnon explained that much of Transport Canada's communications in these matters are done by telephone and fax. In this case Inspector Gagnon had requested and received the information by fax from Gold Belt Air Transport. He did not have the original to compare and attest to as a certified true copy.

When he has the original and the copy he would normally stamp and sign the certification.

Mr. Pratt asked if the information had been provided by the aircraft owner. Inspector Gagnon was allowed time to check back on his file.

Mr. Meilleur pointed out that he had no problem with the exhibit. He just wanted to be sure the proper weight was given to the exhibit.

Mr. Pratt contended that the document should be given full weight as the owner of the aircraft provided it, and, since Mr. Meilleur was the operations manager of Gold Belt Air Transport, he may well have been the person that supplied the document.

Inspector Gagnon's information from his records indicated he had faxed a request to Thomas Meilleur of Gold Belt Air Transport on February 7, 1995, requesting information. He received the material which included Exhibit M-2 on the same day by fax and signed by Mr. Meilleur.

The material was entered as Exhibit M-2!

M-3: Four pages of description and packing slips from McDiarmid Lumber.

Mr. Meilleur again indicated his concerns regarding the Exhibit not being stamped and signed as a Certified True Copy. After considerable discussion on this matter Mr. Meilleur said that he was not contesting the authenticity of the document, just the fact that it was not certified. He stated further that the reason he was not objecting to the authenticity of the material was that it had no relevance in his defence of this case.

M-4: Type Approval Data Sheet for De Havilland DHC-3.

Mr. Pratt questioned Inspector Gagnon on his further action on this case. Inspector Gagnon said that he had written Mr. Marsh, the pilot of Gold Belt Air Transport Otter CF-CZO, and indicated to him that he had violated paragraph 218(a) of the Air Regulations and informed him of the related charges.

Mr. Marsh phoned on February 21, 1995, saying that he was prepared to discuss the issue and that he did not want the call recorded. According to Inspector Gagnon's notes, Mr. Marsh had flown to Kabania Lake, and Gold Belt was chartered by the mile to move the building material still at Kabania.

Mr. Marsh spoke to the Loadmaster about the load weight given to the Winisk Air Otter and was told that it was 2400 lbs. Mr. Marsh advised the Loadmaster he would take 2200 lbs and was satisfied at the time that this was the load put on his aircraft. He said that he took a couple of runs, using the road instead of the ice strip.

After a couple of runs, Pilot Marsh advised the Loadmaster there was something wrong with the load. Mr. Marsh said he wished there was a scale available and was told by the Loadmaster that there was. It was brought out and the load weighed. Once the proper load was established, the balance of the material was moved, Mr. Marsh said.

Mr. Meilleur questioned Inspector Gagnon regarding the charge being laid against Mr. Marsh. Inspector Gagnon stated that the charge came about as a result of the Gold Belt Air Transport Otter, flown by Mr. Marsh, being chartered to complete the transportation of building material that was not completed by the Winisk Otter because of the accident.

In redirect by Mr. Pratt, Inspector Gagnon said that Mr. Marsh was aware of the accident involving the Winisk Otter.

The Minister's second witness, John Gregory Morison, was sworn in. He stated that when the Gold Belt Otter arrived at Kabania Lake they took the load from the damaged Winisk Otter and loaded it in the Gold Belt Otter. The loaded aircraft then taxied out to the ice road and tried to take off a couple of times but was not able to.

Mr. Morison said he then looked at the load and checked the information he had. He discovered an error in the weight of the 4x4 tiles that resulted in the actual weight for the tiles being 2800 lbs and not 1400 lbs as believed. The tiles were weighed and thus established as actually being 2800 lbs.

Mr. Morison stated that they made a couple of loads from the material they had loaded on the Gold Belt Otter, and the aircraft was then able to take off.

Mr. Pratt asked Mr. Morison if the complete load from the damaged Otter was transferred to the Gold Belt Otter, Mr. Morison answered, "Yes, as far as I know it was."

Mr. Meilleur questioned Mr. Morison extensively regarding the loading of the Gold Belt Otter, Mr. Marsh's part in the loading and the amount removed from the aircraft after it taxied back from the two attempted take- offs. Mr. Morison said he was not certain.

Mr. Morison was asked how much overload was on the Gold Belt Otter and he answered, "Oh we knew it was quite a bit overweight."

Mr. Morison was asked if any weighing of the material from the Winisk Otter was done before transferring it into the Gold Belt Otter, he said, No.

CONCLUSION

Throughout this hearing, there is little reference to scales being used to determine proper loads. The scales had been used as a last resort it would appear, when they would have solved the problem in most cases of making estimates.

Mr. Meilleur in several instances referred to Pilot Marsh's experience, professionalism and abilities as a pilot. The more I was prompted to be aware of this the harder it was for me to imagine a pilot who had helped load the aircraft, taxied it to the ice road, attempted to take off, aborted the take-off, turned to attempt another take-off without at some point recognizing that he was grossly overloaded. I believe that Mr. Marsh's expertise should have led him to this conclusion at least before the second take- off attempt.

It has been stated that the load taken from the Winisk Otter and loaded in the Gold Belt Otter was from 1400 to 2000 lbs over maximum. It was certainly at least 1400 lbs over as accounted for in the error found in the weight of the tiles.

My concern is not to determine the exact amount of overload but the fact of definite overload. I am firmly convinced that the aircraft was overloaded when Mr. Marsh attempted to take off.

DETERMINATION

I confirm the Minister's decision to assess a two- day suspension.

Gordon R. Mitchell
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Fred W.R. Clarke, Robert L. Mortimer


Decision: August 13, 1996

The Appeal is denied. The Document Holder contravened paragraph 218(a) of the Air Regulations, and did not exercise all due diligence to prevent the contravention. The two- day suspension is confirmed and will commence at midnight on the fifteenth day following service of this determination.

By agreement, this Appeal proceeded by way of written submissions.

BACKGROUND

This Appeal resulted from a determination made by Mr. Gordon Mitchell following a Review Hearing on September 6, 1995. Mr. Marsh was alleged to have contravened paragraph 218(a) of the Air Regulations in that he did unlawfully attempt to fly an aircraft when the weight of the said aircraft and its load exceeded the maximum permissible weight specified in the Certificate of Airworthiness.

Mr. Mitchell found that Mr. Marsh did contravene paragraph 218(a) of the Air Regulations, and confirmed the Minister's decision to assess a two- day suspension of his Airline Transport Pilot Licence, Number A243981.

On October 26, 1995, Mr. Meilleur on behalf of the Appellant requested an appeal of the Review Determination by Mr. Mitchell. On November 3, 1995, the Tribunal issued a Notice of Appeal and granted a Stay of the Suspension until the Appeal Hearing consideration and determination. On January 25, 1996, the Tribunal advised that both parties had agreed to proceed by way of written submissions. On March 6, 1996, Mr. Meilleur made a request to enter new evidence in the appeal.

NEW EVIDENCE

The Appellant asked that seven exhibits be accepted as new evidence in the appeal. Four of those, however, had been available to the Appellant at the Review Hearing, and the Appeal Panel therefore denied their introduction. The other three exhibits had been requested from Transport Canada before the Review Hearing, but their disclosure was denied; these documents were obtained after the Review Hearing by the Appellant through the Access to Information Act. Because these three exhibits were not previously available to the Appellant, their introduction was permitted in a ruling by the Appeal Panel on April 1, 1996.

GROUNDS FOR APPEAL

The Appellant specified three main grounds for the appeal:

  • The Review Hearing Member erred in his decision on full disclosure;
  • the Review Hearing Member failed to address the defence of due diligence as provided for in section 8.5 of the Aeronautics Act; and
  • evidence submitted by the Respondent did not meet the test of authentic true copy and should not have been allowed in evidence.

DISCLOSURE – THE ISSUE

At the start of the Review Hearing, the Appellant had asked that, in keeping with his right to full disclosure, the Review Hearing Member instruct Transport Canada to provide him with the information he had requested and had been denied. The Respondent argued that Mr. Meilleur had received a complete disclosure package of all the relevant evidence. Moreover, Transport Canada was unable to give him what he wanted because in so doing they might breach confidentiality of innocent third parties, and they did not have the authority to give him that information. Mr. Mitchell ruled that no evidence had been withheld, and that he accepted Transport Canada's view of the matter.

DISCLOSURE – POLICY

Transport Canada's policy on disclosure in the Regulatory Compliance Procedures Manual states in part:

12.6.1 Disclosure – Statement of Policy

Regional and Headquarters Directors shall disclose to a document holder, or his representative, all the evidence the Case Presenting Officer intends to present at a CAT hearing .... Furthermore, full disclosure shall include any evidence which may assist the document holder in his defence. TCA's full disclosure policy has two main purposes:

(1) to ensure that the document holder knows the case to be met and is able to make full answer and defence; and,

(2) to encourage the resolution of facts at issue including, where appropriate, the resolution of the case prior to the hearing date.

12.6.2 Full Disclosure

(2) copies of the text of all written statements concerning the case which have been made by a person with relevant evidence to give or where the person has not provided a written statement, a copy or transcription of any notes that were taken by an inspector when interviewing the witness and if there are no notes, a summary of the anticipated evidence of the witness;

(4) a copy of all written or recorded statements concerning the case which have been made by the document holder to an inspector. In the case of verbal statements, a verbatim account, where available, including any notes of the statement taken by inspectors during the interview. If a verbatim account is not available, an account or description of the statement, whether the statement, in whatever form, is intended to be adduced or not;

(10) particulars of any other evidence on which the CPO intends to rely at the hearing and any information known to the CPO which the document holder may use to impeach the credibility of a Department witness in respect of the facts at issue in the case;

DISCLOSURE – JURISPRUDENCE

In the Appeal of Norman Albert Baudish, Appellant and Minister of Transport, Respondent (CAT File No. W- 0182- 02, October 5, 1993), the Tribunal examined in depth the general duty of Transport Canada to make disclosure to a document holder. The Tribunal's conclusion about this matter was in part:

In particular there is a general duty on the part of Transport to disclose all material it proposes to use before the Tribunal and especially all evidence which may assist the document holder, even if Transport does not propose to adduce it. (underline added)

The absolute withholding of information which is relevant to the document holder can only be justified on the basis of a legal privilege which excludes the information from disclosure. (underline added)

Because the duty to disclose relates to all "relevant" information, the Tribunal member must determine whether or not the information is in fact relevant. In order to make that determination, the Tribunal member should receive submissions, and may well be required to inspect statements and documents or to hear oral evidence, to determine whether or not the information is in fact relevant.

In a Federal Court of Appeal case between CIBA- GEIGY Canada Ltd. and the Patented Medicine Prices Review Board on June 7, 1994, the Judgment dismissed the appeal which had to do with the extent of the disclosure required to the Appellant of documents in the hands of the Board. The Appellant sought the disclosure to it of all documents in the Board's possession which related to the matters in issue in the hearing, particularly the report on which the Chairperson acted in ordering the hearing. The Board refused the Appellant's request for such exhaustive disclosure based in part on the reason that:

...the Board must balance its duty to give every opportunity to a Respondent to be heard against its responsibility to ensure that its orders do not have the effect of limiting its ability to discharge its responsibilities to the public on an ongoing basis. In order to discharge such responsibilities, the Board must be confident that it is getting candid, complete and objective advice from its staff. This is particularly the case in respect of the preliminary views it receives as to whether there is sufficient evidence to justify calling a hearing into a matter.

The Judicial Review by Justice J. McKeown upheld the board's decision, finding in part:

The board is supposed to proceed efficiently and to protect the interest of the public. This requires, inter alia, that a hearing shall not be unduly prolonged. Certainly the subject of an excess price hearing is entitled to know the case against it, but it should not be permitted to obtain all the evidence which has come into the possession of the Board in carrying out its regulatory functions in the public interest on the sole ground that it may be relevant to the matter at hand. The Board's function is not to obtain information solely for investigating purposes; its primary role is to monitor prices. In its decision, the Board recognized the need to balance its duty to the applicant against limiting its ability to discharge its responsibilities in the public interest on an ongoing basis....To require the Board to disclose all possibly relevant information gathered while fulfilling its regulatory obligations would unduly impede its work from an administrative viewpoint. Fairness is always a matter of balancing diverse interests. I find that fairness does not require the disclosure of the fruits of the investigation in this matter.

The Appeal Court agreed that the Motions Judge had correctly stated and applied the law.

DISCLOSURE – DISCUSSION

The three exhibits allowed as new evidence in this appeal by the Panel are some of the information requested at the Review Hearing by Mr. Meilleur and denied by Transport Canada. The Respondent acknowledges that this internal correspondence was not available to the Appellant at the Review Hearing, but states that it is not relevant to the determination of the case.

It is important to establish the meanings of evidence and information as they relate to disclosure. In Effective Advocacy Before Administrative Tribunals, Andrew J. Roman writes:

Evidence is the testimony of witnesses and the production of physical things (including documents, charts and photographs as well as actual objects) which are presented to a court or tribunal for the purpose of proving a fact or supporting an argument ....

This does not mean that a tribunal has the attitude that everything and anything is evidence. The tribunal can only rely on evidence which has some cogency ....

The Concise Oxford Dictionary gives a legal definition of evidence in part as "information (given personally or drawn from documents etc.) tending to establish fact; statements or proofs admissible as testimony in court;"

From the above it is clear that someone must decide whether witnesses' testimony or physical things should be presented to the Tribunal or not. That decision is a judgment with which both the Appellant and the Respondent may not agree. Moreover, information which may be considered not relevant by one party could become part of the other party's submission of evidence. Each party must make its own decision as to the relevancy of the information and whether or not it would support their case by being submitted as evidence. The final judgment as to the relevancy and weight of submitted evidence is that of the Tribunal.

The Appellant argues that information ought not to be withheld if there is a reasonable possibility that withholding it will impair the right of the accused to make full answer and defence. That principle is agreed, but the relevance of that information to the case at hand is the criterion by which the principle must be applied. It is not sufficient that the information concerned is on the subject matter; it must be of such direct relevance that it might be expected to be adduced at the hearing as part of the defence evidence and/or argument.

Exhibit A- 1 comprises 11 pages of handwritten notes between Transport Canada staff members. This internal correspondence appears to be part of the process of determining whether or not to proceed against Mr. Marsh, and if so what the sanction should be. In the process of making those decisions, staff members should be able to present their opinions candidly and informally as that process is an internal matter. It would be unreasonable if Transport Canada staff were not able to discuss and decide on enforcement action in confidence because all material concerning a case had to be disclosed, as noted above in Justiould unduly impede the work of the Department.

Exhibit A- 1 has been introduced, but its relevance to the Appellant's defence is the point on which the justification for its disclosure must be determined. The Appellant argues in his written appeal submission that page 2 of the Exhibit indicates the sanction was changed to a suspension from a fine to accommodate the lapsed time. While that appears to be the case, it is an option that Transport Canada has to exercise under the Aeronautics Act, regardless of how unseemly such a change may be. There is no time limitation under section 6.9 of the Aeronautics Act, and the reference to summary conviction in section 26 applies only to court proceedings.

The Appellant then expresses astonishment with the assertion "that Transport Canada would deliberate the case with supposition misinformation, and assumptions without making any attempts to the discovery of the TRUTH." Such astonishment and assertion do not provide any defence against the alleged contravention, nor justification for disclosure.

In his final reference to Exhibit A- 1, the Appellant decries what he assumes is meant by the use of the phrase "on the balance of probabilities." He does not seem to appreciate that in the context of the notes the phrase "balance of probabilities" was likely in reference to that standard of proof used by the Tribunal rather than the more restrictive standard of "beyond a reasonable doubt " used in the courts; regardless, it does not affect the defence nor justify disclosure.

Exhibit A- 2 documents the Details of Investigation by Inspector Gagnon. The Respondent argues that all the evidence in this exhibit was presented in the transcript by vive voce testimony and disclosed to Mr. Marsh prior to the hearing. What was disclosed to the Appellant apparently were the handwritten notes made by Inspector Gagnon after his phone call with Mr. Marsh (transcript p. 29), and not the "more detailed ... and atch note books." (transcg with the TC policy on disclosure.

The information in Exhibit A- 2 is relevant to the subject case, and some of it might have been used by the Appellant in preparing his defence, particularly his cross- examination of Inspector Gagnon. The fact that the content of the exhibit was presented in testimony at the Review Hearing does not provide a valid rationale for not disclosing that information before the hearing so the Applicant could use it in his preparation. Not disclosing that information to the document holder and then introducing it in testimony at the hearing is a contradiction in action that cannot be justified on the basis of files being protected, nor in the light of the disclosure policy that refers to the inclusion of evidence which may assist the document holder in his defence.

In Exhibit A- 3, Inspector Gagnon made a recommendation against sanction and further action in this case. This document entitled "RAP RECOMMENDATION & DETERMINATION" is directly relevant to the defence. It is a vital piece of information that was revealed during the Review Hearing only as a result of Mr. Meilleur's cross- examination of Inspector Gagnon. Its influence on the Hearing Member's decision would depend on the use made of that information during the hearing by the document holder, but it is information that potentially is "evidence which may assist the document holder" (Baudish Appeal), and therefore should have been available to him before the Review Hearing. With reference to Transport Canada's disclosure policy, this document is a "written statement concerning the case which has been made by a person with relevant evidence to give", and it is "information known to the CPO which the document holder may use to impeach the credibility of a Department witness in respect of the facts at issue."

DUE DILIGENCE –THE ISSUE

In the Review Hearing the finding was made that Mr. Marsh's aircraft was definitely overloaded when he made two attempts at take- off. That finding has been accepted.

The contravention of paragraph 218(a) of the Air Regulations is a strict liability offence, and thus the intent or awareness of the document holder in his actions is not a consideration. Once it is established that the contravention occurred, the burden of proof shifts to the document holder. In strict liability cases a suitable defence is provided for under section 8.5 of the Aeronautics Act:

No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

Mr. Meilleur contends that Mr. Marsh exercised all due diligence to prevent a contravention of paragraph 218(a) of the Air Regulations. His written submission cites ten points in support of that contention. The Respondent argues that the facts cited are insufficient to demonstrate that all due diligence was exercised in light of the previous accident and aborted first attempt.

DUE DILIGENCE – DISCUSSION

Diligence is defined as "the attention and care legally expected or required of a person." The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.

In this case, the Appellant argues that Mr. Marsh exercised due diligence by instructing Mr. Morison, an experienced loadmaster, to load only 2200 lb. on his aircraft; that no one involved was aware of the discrepancy in documentation from McDiarmid Lumber Co. concerning the weight of specific items in the load until after Mr. Marsh had attempted to take off; that no one suspected an overload on either aircraft; and that Inspector Gagnon had recommended against sanction in the case because he found that the pilot exercised due diligence in the situation.

The Respondent has stated that the pilot- in- command cannot rely on the loadmaster, and he is ultimately responsible for the aircraft. In addition, it is irrelevant that the loadmaster and Mr. Marsh did not suspect the overweight load as intent is not an element of the offence. The Inspector's view that due diligence was exercised is also considered irrelevant because his supervisor and thus the delegate of the Minister did not agree with his opinion. Finally, the Respondent argues that, as an experienced pilot, Mr. Marsh should have known that the snow conditions were not the cause of the problems with the first attempt to fly.

Under normal circumstances, due diligence would initially be met by directing the loadmaster to put on board the aircraft a specific weight of materials. Once the aircraft had been loaded, the pilot would then check back with the loadmaster on the actual weight of the load, and verify it with the appropriate documentation. Normally, a pilot could and likely would otherwise depend on his loadmaster to ensure the correct load within the limits of maximum weight and centre of gravity, as is routinely done in airline and other commercial operations. In this case, however, the circumstances were not routine.

Mr. Marsh flew into Kabania Lake to take a load of material from an aircraft of the same type that had failed to get airborne and had crashed on take- off. He was to fly this load to its destination at Fish Basket Camp. At that time, the Appellant contends no one knew the cause of the crash of the first aircraft (FFIJ), but it was assumed that the crash resulted from the pilot's attempt to take off downwind. From the transcript and the written submission, it would appear that no one involved — Mr. Marsh, Mr. Zaroski ( the pilot of FFIJ), Mr. Morison, Mr. Meilleur (as the Operations Manager of Goldbelt Air Transport), or Mr. Bottenfield (the owner of Winisk Air and FFIJ) — had given any consideration to the possibility that FFIJ could have been overloaded when it crashed on take- off. That is difficult to accept.

Although the cause of FFIJ's crash on take- off apparently was not known at the time of the alleged contravention, an experienced pilot in that situation would likely think about a number of possible causes: an engine power loss or failure; an excessive tailwind or unsuitable take- off surface; an overweight or improper load; incorrect pilot technique; or a combination thereof. Mr. Marsh could not take any precautionary measures related to two of those possible causes, power failure and pilot technique, but he could take action to control the other two to ensure his safe operation.

It appears that Mr. Marsh exercised due diligence concerning the tailwind and surface condition, using the road rather than the ice strip, attempting to take off once with skis and wheels, and then with wheels only. The second attempt at take- off was not unreasonable if he used it as a cautionary action to confirm whether or not use of the skis on the surface condition had been the cause or a contributing cause to the unsatisfactory aircraft performance, which presumably prompted him to abort the first take- off attempt.

Some inconsistencies appear between testimonies in the transcript of the Review Hearing with reference to the load weight, but Mr. Marsh apparently ascertained from Mr. Morison that the load aboard FFIJ supposedly weighed 2400 – 2500 lb. He then directed Mr. Morison to load his aircraft (FCZO) with a maximum of 2200 lb. During the loading, Mr. Marsh assisted with the positioning of the materials inside the cabin of his aircraft, but apparently did not participate in the actual move of materials between the aircraft. Mr. Morison testified that the entire load was transferred from FFIJ to CZO, but also stated that he had difficulty remembering details of what had happened so long before. The transcript indicates that neither Mr. Marsh nor Mr. Morison noticed anything about the load that would make them suspect a possible overload.

Aside from the appearance of the load, a number of possible actions to ensure that the materials loaded onto FCZO did not exceed 2200 lb. were not taken. A scale was available, but the load was moved directly from FFIJ to CZO without any weighing of the materials during the transfer. No reference is made in the transcript to any checking of documents concerning the load before, during or after its transfer, nor to any discussion between pilot and loadmaster to confirm what the actual weight was of the load that had been put on board FCZO. Mr. Marsh then made two attempts to take off.

After Mr. Marsh had aborted his take- offs, Mr. Morison discovered a significant discrepancy in the documentation from McDiarmid Lumber Co. about the weight of the materials. Subsequently, weighing some of the materials confirmed that they weighed much more than the amounts used by the loadmaster in his calculations. While errors were made by both the supplier and the loadmaster, the ultimate responsibility remains with the pilot.

In view of the circumstances that prevailed wherein a possible cause of the crash of FFIJ was an overload condition, Mr. Marsh's actions to ensess than they should have been. Mr. Morison had been the loadmaster for FFIJ, and some caution about his work would be in order when the cause of the crash had not been established. To simply tell this loadmaster the maximum weight of materials to be put on board without any further checks or precautions was not sufficient.

ADMISSION OF EVIDENCE

The Appellant argues that the Hearing Member, Mr. Mitchell, allowed evidence which failed to meet the test of authentic true copies to be entered by the Respondent. In accordance with subsection 37(1) of the Aeronautics Act, the Civil Aviation Tribunal is not bound by any legal or technical rules of evidence. The member may use his judgment in dealing with the matter informally and expeditiously by permitting evidence to be entered if it is considered to be in the interests of fairness and natural justice. In the two instances in which he objected, Mr. Meilleur eventually stated that he had no objection to the evidence itself, but only to the fact that the documents were not the originals or certified true copies.

CONCLUSION

The admission of evidence in the Review Hearing was correct and appropriate, and in keeping with considerations of fairness and natural justice.

In the matter of disclosure, the information in Appeal Exhibit A- 1, while of considerable interest, was not relevant for use in the hearing once the course of action was decided by Transport Canada. Internal correspondence and other file notes must continue to be protected from any requirement for wholesale disclosure if the enforcement staff are to be able to fulfill their responsibilities in an expeditious manner. Again, the test is of relevance to providing full answer on the part of the document holder.

Appeal Exhibits A- 2 and A- 3, however, contained information that was clearly relevant to the alleged contravention, and particularly relevant for the document holder in preparing his presentation and cross- examination for the Review Hearing. The fact that much of the information came out in testimony at the hearing does not alter the requirement for the relevant information to be disclosed to the document holder in advance of the hearing, so that he has time to consider it for use as evidence or reference in the hearing. Details of an investigation and the associated recommendation and determination can reasonably be expected to have information that is of relevance for the document holder.

The opinions of Transport Canada and the document holder may well be at variances on the issue of relevance. If agreement cannot be reached between them, the Tribunal member must review the information, decide its relevance and then direct disclosure accordingly. To forestall an adjournment while the member reviews the information, an application for disclosure to the Tribunal by the document holder should be made prior to the initial hearing.

Actions that constitute due diligence in a particular situation are a matter of judgment, and that judgment is not easy when the record is incomplete in detailing exactly what happened, when and how. Nevertheless, sufficient information is available to this Appeal Panel to conclude that, under the circumstances that prevailed at Kabania Lake on April 8, 1994, a prudent, professional pilot exercising due diligence would have done more than did Mr. Marsh to ensure his aircraft was not overloaded before attempting a take- off.

DETERMINATION

The Appeal is denied. The Review Hearing Member should have reviewed the material requested by the Document Holder and ordered some of it disclosed, but the Document Holder's rights to fairness and natural justice concerning disclosure were met through this Appeal. Moreover, there is nothing in the material disclosed on Appeal which would lead us to conclude that the Appellant's right to make full answer and defence was hindered at Review.

The Document Holder contravened paragraph 218(a) of the Air Regulations, and did not exercise all due diligence to prevent the contravention. The two- day suspension is confirmed.

Reasons for Appeal Determination by:

Mr. Robert L. Mortimer

Concurred:

Mrs. Faye Smith
Mr. Fred W.R. Clarke