Decisions

CAT File No. C-2031-33
MoT File No. RAP5504-040920 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

George Schmitt, Respondent

LEGISLATION:
Aeronautics Act., R.S., c. 33 (1st Supp.), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 202.13(2)

Ultra-light aircraft, Aircraft registration, Responsibility of pilot-in-command


Review Determination
William G. McDonald


Decision: September 7, 2000

I confirm the Minister's finding that Mr. George Schmitt did contravene subsection 202.13(2) of the Canadian Aviation Regulations and confirm the monetary penalty of $500. This amount, made payable to the Receiver General of 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, August 29, 2000 at 10:00 hours at the Town of Winkler Civic Centre, in Winkler, Manitoba.

BACKGROUND

On February 28, 2000, a monetary penalty of $500 was assessed against Mr. George Schmitt, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport alleging that Mr. Schmitt had contravened the following provision:

Canadian Aviation Regulation, subsection 202.13(2), in that at approximately 1915 hours local on or about the 11th day of June A.D., 1999, at or near Winkler, Manitoba, you operated a Six-Chuter aircraft bearing serial number 981965SR2C1 in Canada when it was not registered in Canada.

On June 11, 1999, a Six-Chuter powered parachute, serial number 981965SR2C1, departed the Winkler Airfield with one person on board on a flight to a private residence near the village of Reinland, Manitoba. The Six-Chuter powered parachute was followed by the Winkler Police who charged the pilot with impaired operation of a vehicle. Transport Canada was notified of the incident by the Winkler Police Department, conducted an examination and assessed Mr. Schmitt the monetary penalty.

THE LAW

Subsection 202.13(2) of the Canadian Aviation Regulations (CARs):

Division II-Aircraft Registration

Registration of Aircraft-General

202.13 (1) ...

(2) Except as otherwise authorized pursuant to subsection 202.14(1), 202.42(3) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force in Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

The witnesses, excepting the document holder, Mr. Schmitt, were excused from the room prior to the commencement of proceedings.

There was a pre-hearing conference held between the parties but no settlement was reached.

Prior to hearing the evidence the Member accepted a motion by the Case Presenting Officer Mr. J. D. Gaudry that an amendment to the Notice of Assessment be allowed. The change being in the serial number of the Six-Chuter powered parachute. That the serial number be amended to 981965SR2CL, the change being the final digit 1 to the letter L.

THE EVIDENCE

Mr. Gaudry, the Case Presenting Officer, stated that Mr. George Schmitt was the pilot-in-command of the flight that took place on June 11, 1999 and that the Six-Chuter powered parachute was not registered.

He called as his first witness Mr. Richard Gagnon, a Transport Canada Enforcement Officer. Mr. Gagnon stated that in June of 1999 the Winkler Police Department contacted Transport Canada to inform them of the flight conducted by Mr. Schmitt and that the Winkler Police believed that the Six-Chuter was not registered. Mr. Gagnon conducted the investigation by Transport Canada and determined that the Six-Chuter was not registered. Mr. Gaudry tendered four exhibits in the course of his questioning of Mr. Gagnon.

Exhibit M-1 the Notice of Assessment issued to Mr. Schmitt

Exhibit M-2 the Acknowledgement of Receipt signed by Mr. Schmitt from Canada Post

Exhibit M-3 the definition of aircraft under the Aeronautics Act

Exhibit M-4 the Transport Canada Certificate of a record search for the registration of the Six-Chuter powered parachute, serial number 981965SR2C1, which indicates no registration certificate was issued

Mr. Gaudry then called his second witness Constable Raymond Friesen. Constable Friesen testified that he was a member of the Winkler Police Department on June 11, 1999. The department received a phone call from Kevin Greening of Arty's Air Service at the Winkler field. Mr. Greening told Constable Friesen that a powered parachute was flying erratically around the airfield and that he was afraid that it might crash. Constable Friesen and his partner proceeded to the airfield and observed the powered parachute flying in an unsafe manner. They proceeded onto the field in the cruiser car and as they approached the aircraft it took off and flew away in a southeasterly direction. Constable Friesen then followed the aircraft from the Winkler field to a private residence near Reinland where the aircraft landed. Constable Friesen approached the aircraft and identified the pilot as Mr. George Schmitt. He subsequently charged Mr. Schmitt with impaired operation of a vehicle and contacted Transport Canada about the lack of registration.

Mr. Gaudry then called his third witness Mr. Brian Toews. Mr. Toews stated that he is the owner of Red Baron Powerchutes, a flight instructor and a dealer for the Six-Chuter powered parachute aircraft. Mr. Toews testified that Mr. Schmitt was a student of his and that he had purchased the Six-Chuter from Red Baron Powerchutes.

Mr. Gaudry proceeded to submit a number of documents as evidence and questioned Mr. Toews on each of the documents.

Exhibit M-5 Powered Parachute Training Course Syllabus

Mr. Toews testified that this syllabus was used by Red Baron during the ground school training and that question 18 on page 6, regarding registration, was explained to students. Mr. Gaudry asked if Mr. Schmitt had taken the ground school and Mr. Toews testified that he had.

Exhibit M-6 Powerchutes Pre-Solo Exam, copy of Mr. Schmitt's exam

Mr. Gaudry asked if a pre-solo exam was undertaken by all students. Mr. Toews testified that all students take the exam before soloing and that Mr. Schmitt had written the exam submitted as Exhibit M-6. Mr. Gaudry asked if question number 18 regarding the necessary documents on board was answered correctly by Mr. Schmitt. Mr. Toews responded that Mr. Schmitt had answered the question on necessary documents correctly.

Exhibit M-7 The Ultralight Information Manual

Mr. Gaudry asked Mr. Toews if any other information was given to the students and Mr. Toews testified that all students were given a copy of Exhibit M-7, the Ultralight Information Manual. Mr. Toews was asked about the registration section and whether this section was gone over with students. Mr. Toews responded that the registration information was gone over with reference to pages 13 and 18, both of which deal with registration.

Exhibit M-8 Red Baron Powerchutes Bill of Sale

Mr. Gaudry asked Mr. Toews if Red Baron had sold the Six-Chuter to Mr. Schmitt. Mr. Toews confirmed the sale and verified the bill of sale as evidence.

Exhibit M-9 Transport Canada Powered Parachutes General Information Brochure

Mr. Gaudry asked Mr. Toews if any other information was given to new owners of powered parachutes. Mr. Toews testified that Mr. Schmitt received a copy of Exhibit M-9, the Transport Canada information brochure on powered parachutes. Mr. Gaudry pointed out that the third section of the brochure titled "How are powered parachutes registered?" deals with the procedure of registering a powered parachute.

Mr. Schmitt was then provided the opportunity to question Mr. Toews. Mr. Schmitt asked a number of questions regarding his having flown the aircraft prior to writing the pre-solo exam. Mr. Toews responded that students are allowed to fly dual, that is with an instructor, prior to the pre-solo exam. He stated that it is not the policy of Red Baron to allow students to fly solo prior to the pre-solo exam.

Mr. Toews was excused and Mr. Schmitt was sworn in.

Mr. Schmitt testified that he was trained in the air before the permit was issued. He stated that it was his understanding that the aircraft came with registration and that it was his decision to obtain additional insurance if he so chose.

Mr. Gaudry then asked Mr. Schmitt a number of questions regarding training and registration. Mr. Gaudry asked if Mr. Schmitt's instructor Carl had gone over the training syllabus (M-5). Mr. Schmitt testified that he had gone over the syllabus with Carl. Mr. Gaudry asked Mr. Schmitt if he had answered question number 18 of the pre-solo exam correctly. Mr. Schmitt responded that he had the correct answer but was confused between the registration and the insurance. Mr. Gaudry asked if Mr. Schmitt had received any information when he purchased the Six-Chuter. Mr. Schmitt testified that he had received the Ultralight Information Manual (M-7) but had not seen the Transport Canada brochure (M-9) prior to today. Mr. Gaudry asked if Mr. Schmitt was the pilot-in-command of the Six-Chuter during the flight undertaken on June 11, 1999 and if the three documents (certificate of registration, student pilot permit and liability insurance) were on board. Mr. Schmitt testified that he was the pilot-in-command on June 11, 1999 and he had only his student pilot permit on board the aircraft.

There being no further questions the Member closed the evidentiary record and asked for closing statements.

Mr. Gaudry stated that the evidence provided shows that the Six-Chuter is designated an aircraft and that no registration was ever issued by Transport Canada. He further stated that Constable Friesen identified Mr. Schmitt as the pilot-in-command, Mr. Schmitt was confirmed as the owner by Mr. Toews and that he had written and passed the pre-solo exam, correctly answering question 18 dealing with registration. He also stated that Mr. Schmitt admits having received the Ultralight Information Manual which also lays out registration requirements. He closed by stating that Mr. Schmitt was the pilot-in-command, there was no registration and therefore Mr. Schmitt was in violation of the CARs and that the argument of due diligence does not apply in these circumstances.

Mr. Schmitt in his closing statement pointed out that the aircraft was not registered when he was training and that it was his understanding that registration took place when the machine came into the country. He also stated that he was confused between the registration and insurance procedures and that these two documents were never clearly explained to him.

DETERMINATION

In this matter the burden is on the Minister to prove its case. The weight of the evidence presented clearly shows that Mr. George Schmitt was the pilot-in-command of the Six-Chuter powered parachute flown on June 11, 1999. Mr. Schmitt himself testified that he was the pilot-in-command and that no registration was on board the aircraft on that day.

Mr. Schmitt testified that it was his understanding that the registration took place when the aircraft entered Canada and that he was confused about insurance and registration. Both the Ultralight Information Manual and the Red Baron Ground School Training Syllabus make it clear that it is the responsibility of the pilot-in-command and owner to ensure that the necessary documents are carried on board during any flight. While it is regrettable that Mr. Schmitt was confused about these documents he did have the opportunity to question Mr. Toews of Red Baron Powerchutes at any time during his training and after he had purchased the aircraft. It is a pilot's responsibility to avoid confusion in all aspects of flight to ensure the safety of all involved. This includes having the necessary documentation and certificates on board the aircraft. It was Mr. Schmitt's responsibility, as a pilot and owner, to ensure that all necessary documentation was on board during any flight. Mr. Schmitt failed to take responsibility in this matter and I have determined the following:

I confirm the Minister's finding that Mr. George Schmitt did contravene subsection 202.13(2) of the CARs and confirm the monetary penalty of $500.

William G. McDonald
Member
Civil Aviation Tribunal