Decisions

CAT File No. C-2074-41
MoT File No. RAP5504-040228

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Farm Air Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 695.94(1)

Vicarious liability, Reduction of monetary penalty


Review Determination
David Lloyd Eckmire


Decision: November 9, 2000

Based upon the evidence before me, I find that the Minister has proven on a balance of probabilities the allegations contained in Counts 1 - 9 inclusive of the Notice of Assessment of Monetary Penalty. In view of the fact that this is a first offence, the monetary penalty is reduced from $500 on each count, to $250 on each count. The total monetary penalty of $2,250 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.

A Review Hearing on the above application was held Tuesday, September 26, 2000 at 10:00 hours at the Provincial Court Building, in Regina, Saskatchewan.

THE ALLEGATION

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

COUNT #1:

Canadian Aviation Regulation 605.94(1), in that on or about June 4, 1999, at or near Regina, Saskatchewan, you, being the person responsible for making an entry in a journey log of an aircraft, to wit, an Air Tractor Incorporated, AT-301, bearing Canadian registration marks C-FARM, did fail to enter the particulars set out in column I of an item in schedule 1, subsection 605.94(1), of the Canadian Aviation Regulations in the aircraft journey log at the time set out in column II of the item, specifically, you failed to enter the air time of each flight or series of flights daily, on completion of each flight or series of flights; and,

(proceedings by way of section 8.4(2) of the Aeronautics Act - Vicarious Liability)

COUNT #2:

FURTHER, on or about June 5, 1999, at or near Regina, Saskatchewan, you, being the person responsible for making an entry in a journey log of an aircraft, to wit, an Air Tractor Incorporated, AT-301, bearing Canadian registration marks C-FARM, did fail to enter the particulars set out in column I of an item in schedule 1, subsection 605.94(1), of the Canadian Aviation Regulations in the aircraft journey log at the time set out in column II of the item, specifically, you failed to enter the air time of each flight or series of flights daily, on completion of each flight or series of flights; a violation of Canadian Aviation Regulation 605.94(1); and,

COUNT #3:

FURTHER, on or about June 23, 1999, at or near Regina [...]

COUNT #4:

FURTHER, on or about June 27, 1999, at or near Regina [...]

COUNT #5:

FURTHER, on or about July 3, 1999, at or near Regina [...]

COUNT #6:

FURTHER, on or about July 4, 1999, at or near Regina [...]

COUNT #7:

FURTHER, on or about July 5, 1999, at or near Regina [...]

COUNT #8:

FURTHER, on or about July 13, 1999, at or near Regina [...]

COUNT #9:

FURTHER, on or about July 23, 1999, at or near Regina [...]

APPLICATION OF PENALTY:

COUNT #1 = $500

COUNT #2 = $500

COUNT #3 = $500

COUNT #4 = $500

COUNT #5 = $500

COUNT #6 = $500

COUNT #7 = $500

COUNT #8 = $500

COUNT #9 = $500

TOTAL:       $4,500

TRANSPORT CANADA'S CASE PRESENTATION

The parties were asked by the member if there was any pre-hearing conference or agreement. There being none, the hearing commenced, with the Minister's case presenting officer setting forth the particulars of the alleged contraventions of subsection 605.94(1) of the Canadian Aviation Regulations (CARs). The allegation is that Farm Air Ltd., being the registered owner of aircraft C-FARM, did fail to make the necessary and required entries of air time, flight time, and other particulars, for each flight, or series of flights on each day, as required by subsection 605.94(1) of the CARs.

Mr. Gagnon, the case presenting officer, called upon Mr. J. D. Gaudry, Civil Aviation Inspector, who conducted the investigation into this matter. Mr. Gaudry produced the Minister's exhibits, namely:

M-1 Notice of Assessment of Monetary Penalty

M-2 Copy of the aircraft journey log for C-FARM

M-3 Copy of the certificate of registration for C-FARM

M-4 Copy of the certificate of airworthiness for C-FARM

M-5 Copy of NAV CANADA flight data strip for June 27, 1999

M-6 Copy of NAV CANADA aircraft movement statistics (NCAMS) summary for June and July 1999

M-7 Copy of NAV CANADA air traffic control (ATC) audio tape for a portion of June 27, 1999

Mr. Gagnon explained that this investigation was prompted by a low flying complaint involving C-FARM which was received by the NAV CANADA Regina Airport control tower on June 27, 1999. Upon investigation, it was found there was no journey log entry for this date. After some difficulty in obtaining the aircraft journey log, a comparison was made between the NAV CANADA NCAMS report, and the aircraft journey log. (NCAMS is a computerized record of aircraft activity at any NAV CANADA flight service station or control tower.) Several inconsistencies were noted as a result of the comparison, where the aircraft was listed as actively in use on given days by NAV CANADA, yet did not have a corresponding entry in its journey log.

The original low flying complaint was found to have no merit; however, the missing journey log entries constituted a serious breach of the CARs.

Mr. Gagnon called upon Mr. Roger Smith, site manager for NAV CANADA at Regina Airport, who explained the function of the NCAMS report and the meaning of its acronyms, abbreviations, symbols and the time format used. Times shown are Universal Time Coordinated (UTC) also known as Zulu or Greenwich Mean Time. The local Regina time would be six hours behind the UTC time indicated.

The audio tape of the NAV CANADA control tower at Regina for a portion of June 27, 1999 was played, which indicated several radio contacts, arrivals and departures on that date for aircraft C-FARM.

Mr. Smith was cross-examined by Mr. Colhoun, who questioned the accuracy of the NCAMS report, and in particular a few apparent anomalies. Mr. Smith explained the use of acronyms or symbols to indicate overflights or missed approaches, which clarified the matter.

DOCUMENT HOLDER'S CASE PRESENTATION

Mr. Gagnon was questioned by Mr. Colhoun as to whether the Minister intended to call a pilot employed by Farm Air Ltd. as a witness. (The pilot had been subpoenaed to appear.) The Minister's case presenting officer indicated that the pilot would not be called. The document holder then entered a copy of Northern Airlink Limited[1] as Exhibit D-l, and a copy of subsections 605.94(1) and (2) of the CARs as Exhibit D-2. He contends that the requirement of making journey log entries is the responsibility of the pilot-in-command.

The document holder produced no witnesses, and concluded his presentation.

SUMMARY AND CONCLUSION

The Minister is required to prove on a balance of probabilities that aircraft C-FARM was operated on dates other than those shown in the journey log. The Minister must also demonstrate that the aircraft C-FARM was owned and operated by Farm Air Ltd.

Under subsection 8.4(2) of the Aeronautics Act, an owner of an aircraft may be held responsible for ensuring that the necessary and required entries as set forth in subsection 605.94(1) of the CARs are made. This is known as "vicarious liability."

The principle of vicarious liability is defined by Black's Law Dictionary as "indirect or imputed legal responsibility for acts of another; for example, the liability of an employer for the acts of an employee."

The Minister chose not to proceed against the person first responsible for making the entries in the journey log, namely the pilot-in-command. Why this person was subpoenaed as a witness by the Minister, but not called to testify by either the Minister or the document holder, is a mystery. Nevertheless, subsection 8.4(2) of the Aeronautics Act clearly establishes the legal link between the person acting, and the person ultimately responsible, in this case, Farm Air Ltd.

The evidence presented by the Minister clearly established that Farm Air Ltd. is the owner of C-FARM, and that journey log entries were not made for a number of dates, including June 4, 5, 23, 27, July 3, 4, 5, 13 and 23, 1999.

The NAV CANADA NCAMS reports and audio tape clearly show that aircraft C-FARM was actively operating in the Regina area on those same dates. Therefore, I must find that the Minister has proven on a balance of probabilities his allegations with respect to Counts 1 - 9 inclusive of the Notice of Assessment of Monetary Penalty.

In his defence, the document holder produced a copy of Northern Airlink Limited, and asserted that the Tribunal decision in this case supported his position that the pilot-in-command was responsible for making the entries in the journey log. The document holder pointed out that the Tribunal decision in this case dismissed the Minister's sanction on three of the counts, drawing a parallel to his case.

Upon closer examination of the Tribunal decision in this case, however, it is important to note that the reason that the charges were dismissed on the three counts related to making the required journey log entries, was that the Minister had not clearly established in the Notice of assessment of monetary penalty, that proceedings were being taken against the owner/operator of the aircraft under subsection 8.4(2) of the Aeronautics Act (the vicarious liability provision).

Such is not the case in the matter before me, and therefore the document holder's argument fails.

During his concluding summary, the Minister's case presenting officer indicated that the monetary penalty imposed was in keeping with a first offence. I find, however, that a monetary penalty of $250 on each of the nine counts is more appropriate for a first offence of this nature.

The requirement of making entries in an aircraft journey log is a serious matter. Careful record keeping is essential to determining required maintenance work. Appropriate weight and balance information is critical to safe operation of an aircraft, as is notice of any defects which require attention. Aircraft C-FARM's journey log is conspicuous by its lack of attention to such detail.

The monetary penalty assessed is therefore reduced to $250 for each of the nine counts, for a total of $2,250.

David Lloyd Eckmire
Member
Civil Aviation Tribunal


[1] Minister of Transport v. Northern Airlink Limited, CAT File No. W-1586-41.


Appeal decision
E. David Dover, William G. McDonald, William Thornton Tweed


Decision: May 15, 2001

The appeal is dismissed but the fine is reduced to $50 per count for a total of $450. 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 matter was held Friday, February 2, 2001 at 10:00 hours at the Provincial Court Building in Regina, Saskatchewan.

On Appeal Mr. Colhoun, president of the Appellant, defended his company by insisting that the flights that were recorded did not happen and, alternatively, if they did happen the pilot should have been responsible not Farm Air Ltd.

Mr. Colhoun pointed out that there were some discrepancies between the NAV CANADA records and the voice tape as well as an inappropriate entry as to the activities of aircraft C-FARM (practice ILS). The transcripts of the hearing show that Mr. Eckmire was made aware of the discrepancies and notwithstanding those irregularities determined that the evidence was sufficiently reliable to find on the balance of probabilities that the alleged offences had in fact occurred.

The member's finding of facts is not unreasonable and will not be disturbed by this panel.

Mr. Colhoun went on to argue that according to the common law and dictionary definition of vicarious liability Farm Air Ltd. was not liable in the circumstance. Neither the dictionary nor common law definition of "vicarious liability" is of assistance in this circumstance. The law in this case is set out in the Aeronautics Act at subsection 8.4(2):

(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

This subsection clearly provides that the operator of the aircraft be liable for the infractions of another document holder.

The question for the members of this panel to determine is, do the facts of this case as proven by the Minister satisfy all of the elements of subsection 8.4(2).

  1. Was Farm Air Ltd. the operator of the aircraft C-FARM? The evidence clearly indicates that to be the case.
  2. Was there another person who could be proceeded against? Yes, the pilot who was primarily responsible for the making of the log book entries.
  3. Was the aircraft in the possession of a person other than the operator? The answer to this question is no. The aircraft was in the care and control of Farm Air Ltd.'s pilot, an employee of Farm Air. Clearly he was Farm Air Ltd.'s agent at the time the infraction took place.

The Minister has therefore proved all elements of the offence. We therefore confirm the findings of the hearing officer. The infraction took place and pursuant to subsection 8.4(2) of the Act Farm Air Ltd. is subject to a sanction for the infraction.

THE SANCTION

The Minister originally assessed a sanction of $4,500, nine counts at $500 each. The Member reduced the sanction by one-half to $250 per count for a total of $2,250 stating in his reasons that the reduction was because it was a first offence. We would reduce the sanction further for the following reason.

The purpose of a sanction is to discourage the activity by punishing the offender and sending a message to other document holders that there are consequences for breaking the rules. To be fair the fine must be consistent with fines assessed against other document holders who commit similar offences. Other matters to consider when determining an appropriate fine are: how seriously did the infraction compromise safety and in a circumstance where the Minister proceeds against a document holder under subsection 8.4(2) of the Act, the culpability of the document holder proceeded against.

In this case there was no evidence presented to show that Farm Air Ltd. was culpable. There is no evidence that Farm Air Ltd. condoned or even knew that the log book entries were not being made as required. There is no evidence to suggest Farm Air Ltd. did not exercise reasonable control over the operation of its aircraft. All of which could have been demonstrated by the Minister, as the identity of the pilot was known. He was subpoenaed, but not called. Presumably he could have given testimony as to the circumstances of the infraction (he was doing a cash business unknown to his employer / the employer told him not to make the entries to extend use of lifed items). What he would have said is speculation but given that he is the person primarily responsible for making the log book entries his evidence as to why the log entries were not made would have been very helpful in establishing an appropriate sanction. Failure to call this witness or pursue other evidence of Farm Air's involvement in or acquiescence in the offence is a deficiency in the Minister's case which reduces the size of an appropriate fine. For these reasons we find for the Minister but reduce the fine to $50 per count for a total of $450.

DETERMINATION

The Appeal is dismissed but the fine is reduced to $50 per count for a total of $450.

Reasons for Appeal Determination:

William T. Tweed, Member

Concurred:

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