Decisions

CAT File No. C-1836-41
MoT File No. RAP5504-C11114-031848 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Wapiti Valley Air Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 700.02(1)

Tribunal bias, Motion to adjourn, Cross-examination of witness, Air Operator Certificate


Review Determination
William Thornton Tweed


Decision: May 11, 2000

I confirm the Minister's finding that Wapiti Valley Air Ltd. did operate an air transport service when it did not hold an air operator certificate authorizing it to operate that service contrary to subsection 700.02(1) of the Canadian Aviation Regulations and confirm the monetary penalty of $5,000. That amount, made payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A Review Hearing on the above matter was held Tuesday, March 21, 2000 at 10:00 hours at the Prince Albert City Hall, in Prince Albert, Saskatchewan.

BACKGROUND

Mr. Leo Hiebert was at the relevant time the owner of a Cessna 185 Canadian registered C-GFVZ. This aircraft was registered to Blue Water Aviation Services Ltd. (Blue Water) pursuant to a lease agreement which among other things provides that the aircraft would be flown only by pilots in the employ of Blue Water and that it would not be flown by Mr. Hiebert, the lessor. There was no management agreement between Wapiti Valley Air Ltd. (Wapiti) and Blue Water.

Blue Water did at the relevant time have an air operator certificate authorizing the operation of Cessna 185 type aircraft. Wapiti did not at the relevant time have an air operator certificate authorizing the operation of Cessna 185 type aircraft.

All negotiations with the Saskatchewan Government were conducted by Mr. Hiebert. All invoices for air charter service to the Saskatchewan Government were on Wapiti bills. All short term aviation service contracts were between Saskatchewan Environment and Resource Management (SERM) and Wapiti.

Aircraft C-GFVZ was flown by Mr. Hiebert under the SERM service contract on July 10, 11, 12, 14, and 15, 1998.

THE EVIDENCE

Mr. Robert Bruce, a regional duty officer for SERM, testified he was contacted by Mr. Hiebert who Mr. Bruce understood was looking for work on behalf of Wapiti. Mr. Bruce made a verbal agreement with Mr. Hiebert to charter a Cessna 185 from Wapiti. Aircraft C-GFVZ was positioned to Stoney Rapids to fly for SERM on a short term air service contract.

Mr. Robert P. Spracklin, the provincial aviation manager for SERM, became aware of Mr. Hiebert and Wapiti on or about July 15, 1998. As there was no standing offer he requested confirmation of operating authority and insurance. The standing offer he received named both Wapiti and Blue Water. Mr. Spracklin indicated his office received the requested documents on or about July 20, 1998.

Ms. Sharon Fitch, an accounts clerk with SERM, confirmed that she processed the invoices for payment, and a cheque was issued to Blue Water on August 31, 1998.

Mr. Edward A. Gaffray, president of Blue Water, advised that his letter dated July 7, 1998 was as a result of a call from Mr. Hiebert who indicated he had a problem with the Saskatchewan Government. Mr. Gaffray stated that Blue Water's records on Mr. Hiebert are incomplete and do not demonstrate that Mr. Hiebert was in fact employed by Blue Water as a pilot.

Based on the context in which Mr. Gaffray referred to the letter and his statement that he was not sure "the letter may have been backdated," I am convinced that the letter was in fact backdated. Mr. Gaffray also confirmed that Blue Water had in fact paid Wapiti a portion of the funds paid it by the Saskatchewan Government.

CONCLUSION

Messrs. Hiebert's and Gaffray's position that the operation was at all times Blue Water's is not supported by any corroborating evidence. I find all the corroborating evidence supports the Minister's position that Wapiti was operating a commercial air service without an air operator certificate. The evidence demonstrates that, but for the Saskatchewan Government requirements and inquiries, Blue Water's name would never have appeared on any documents.

Mr. Hiebert carried out all negotiations with SERM. The operations of aircraft C-GFVZ were controlled by Mr. Hiebert. He flew the aircraft and he maintained the aircraft all on behalf of Wapiti.

There was no evidence that Blue Water exercised any operational control over the aircraft. To the contrary Blue Water's only involvement was to provide documents requested by SERM and cash the Government of Saskatchewan's cheque.

I confirm the Minister's finding that Wapiti Valley Air Ltd. did operate an air transport service when it did not hold an air operator certificate authorizing it to operate that service contrary to subsection 700.02(1) of the Canadian Aviation Regulations and confirm the monetary penalty of $5,000.

William T. Tweed
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, E. David Dover, William G. McDonald


Decision: October 31, 2000

The appeal is dismissed. The Appeal Panel finds that the Tribunal Member had made no reviewable error. We uphold the Minister's decision to assess a monetary penalty of $5,000. This amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

An appeal hearing on the above entitled matter was held October 12, 2000 at 10:30 hours at Prince Albert City Hall in Prince Albert, Saskatchewan.

BACKGROUND

Mr. Leo Hiebert is a pilot and the proprietor of Wapiti Valley Air Ltd. He also owns a Cessna 185 aircraft C-GFVZ. In the summer of 1998 the aircraft was leased to and registered in the name of a company in Pine Falls, Manitoba, doing business as Blue Water Aviation Services Ltd. Blue Water held an air operator certificate, issued by the Minister of Transport. That certificate authorized, amongst other things, the operation of a Cessna 185 aircraft.

In July of 1998 Mr. Hiebert was flying C-GFVZ in northern Saskatchewan. The aircraft was chartered to the Forest Fire Management branch, a division of the Saskatchewan government, on a short term aviation contract during a busy fire season.

The contract for the flying was drawn between the appropriate government division and Wapiti Valley Air, signed by Mr. Hiebert. The Saskatchewan government flight logs show Wapiti Valley Air as the company or agency that owns or leased the aircraft.

Mr. Hiebert had a letter from Blue Water purportedly allowing him to act as their agent. After some consideration the Saskatchewan government issued payment to Bluewater for the contracted flying. Wapiti Valley then received payment from Blue Water.

A subsequent investigation by the Minister of Transport lead it to the conclusion that Wapiti Valley Air Ltd. was operating an air transport service when it did not hold an air operator certificate. The Minister assessed a monetary penalty against Wapiti in the amount of $5,000. As the penalty was not paid, the Minister requested a hearing of the matter before the Civil Aviation Tribunal.

The review hearing, before a single member was held in Prince Albert, Saskatchewan on March 21, 2000. The hearing Member confirmed the Minister's finding that Wapiti Valley Air Ltd. did operate an air transport service when it did not hold an air operator certificate.

Mr. Hiebert, on behalf of Wapiti Valley, appealed the decision in the following form:

In the case Minister of Transport verus Wapiti Valley Air please be advised that we are appealing the decision by Mr. Tweed.

Mr. Tweed has shown that he is not inpartial when he indicated favor to MOT when the Tribunal was postponed the last time even thought Transport had postponed it twice previous.

He gave Wapiti improper instructions on how they were to cross examine or redirect questioning on evidence given by Transport wittness. This did not afford the opportunity to properly examine the evidence against Wapiti or the the facts as repersented by Transport witnesses.

Mr. Tweeds conclusion are based on bias and not on actual fact or law. Such as his conclusion that Mr. Hiebert has to lease his aircraft for free to Blue Water Aviation.

It is also apparent that Mr. Gaffery may not remember all the facts of dealings with Hiebert in regards to this case. This may be caused by the horrific aircraft accident that Mr. Gaffery was in several months previous, which in fact caused Transport to postpone the Tribunal as Mr. Gaffery had broken neck and was extremely lucky to be alive, althought his engineer riding with him was not so lucky.

It is the postion of Wapiti Valley Air that in fact this case should be dealt with in a court of law with real judge and leagal council present for Wapiti.

I would also suggest that the appeal be booked for late fall at the earliest.

Pursuant to that request an appeal hearing before three members was convened on October 13, 2000 in Prince Albert.

REPRESENTATION BY THE PARTIES

Mr. Hiebert

At the outset of the hearing Mr. Hiebert was granted a half-hour postponement to review his documentation.

Mr. Hiebert took issue with the hearing Member, Mr. Tweed's findings of fact, for example that he was not an employee of Blue Water. The lack of pay stubs or incomplete training records were problems with Blue Water, but did not show that he was not an employee of that firm. Even though he was an employee of Blue Water he was also entitled to his lease payment, which he had received.

The postponements granted by Mr. Tweed favoured Transport Canada and thus showed that he was biased. In fact, one letter from Mr. Tweed stated that he had sympathy for Transport Canada's position. Regarding the earliest of postponements, Mr. Hiebert had not received any correspondence.

Mr. Hiebert argued that the instructions regarding cross-examination given to him by Mr. Tweed prevented his effective examination of the witness. This was further indicia of bias. Mr. Hiebert expressed his utter and complete dissatisfaction with the process in which he found himself enmeshed and expressed a desire to have his case heard in a court of law rather than the Tribunal setting.

Upon conclusion of his verbal presentation Mr. Hiebert elected to leave the hearing without listening to the Minister's presentation thus denying himself his right to reply. He did receive the Minister's written factum.

Mr. Hector

As Mr. Hiebert had left the proceeding Mr. Hector, the Minister's Advisory and Appeal Officer chose not to present a verbal argument to which Mr. Hiebert could not respond. Rather, as Mr. Hiebert was in possession of the factum, Mr. Hector restricted his presentation to a verbal review of that document.

Through the factum, Mr. Hector asserted that the Review Member's determination was based on certain findings of fact. Those findings of fact should not be disturbed unless they are unreasonable, and here they were not unreasonable.

The factum listed various findings the Member had made, and reviewed the source of the findings in the transcript. Mr. Hector urged that the Member's determination be upheld.

DISCUSSION

A review of the registry records shows that the 1st two postponements were conducted by telephone. That is why Mr. Hiebert did not get a written confirmation. The 1st of those occurred when Mr. Gaffery was immobile after his accident. Another postponement was granted when a Transport Canada witness had an illness in the family which turned out to be terminal.

The record does show that Mr. Tweed was sympathetic to the Applicant's (Transport Canada's) argument in one request for postponement. Transport Canada was resisting a request for adjournment from Mr. Hiebert. Although sympathetic to the argument, Mr. Tweed nevertheless granted the adjournment. We do not agree that the history of postponements indicates that Mr. Tweed was not impartial.

A review of the transcript does not reveal that the hearing Member gave improper instructions regarding cross-examination. On the contrary we find that Mr. Tweed attempted to assist Mr. Hiebert, an unrepresented document holder, with his directions on cross-examination.

We are in agreement with the Minister's position that the findings of fact are not unreasonable. Mr. Hiebert suggests that they are unreasonable and gives the example of Mr. Tweed's conclusion that Mr. Hiebert has to lease his aircraft for free to Blue Water. It may be that Mr. Hiebert has drawn that conclusion from Mr. Tweed's findings but nowhere in the reasons nor in the transcript are we able to find such an assertion.

Regarding the reliability of Mr. Gaffery's remembrance of the facts in his dealings with Mr. Hiebert, we have no basis on which to evaluate that assertion. We do note that Mr. Hiebert gave his testimony as to those dealings and was free to counter or contradict those given by Mr. Gaffery.

Mr. Hiebert takes the position that his case should be dealt with in a court of law. Participation in aviation is voluntary. A person must fulfill certain criteria in order to obtain an aviation document, whether it be a pilot licence or company operations certificate. Once a participant in this regime, the document holder has both privileges and obligations. The administrative penalties regime prescribed by the Aeronautics Act applies to all of those participants and appeals from such administrative action is to the Civil Aviation Tribunal as prescribed by Part IV of the Act. Thus Mr. Hiebert/Wapiti Valley Air, although an unwilling participant, is nevertheless subject to strictures of the regime. It may be that he has other legal recourse but comment upon that is not within our purview.

CONCLUSION

Our review of the record and consideration of the parties' arguments leads us to the conclusion that they do not reveal the legal frailties asserted by Wapiti Valley Air Ltd.

DETERMINATION

The appeal is dismissed. The Appeal Panel finds that the Tribunal Member had made no reviewable error. We uphold the Minister's decision to assess a monetary penalty of $5,000.

Reasons for Appeal Determination by:

Allister Ogilvie, Vice-Chairperson

Concurred:

E. David Dover, Member
William G. McDonald, Member