Decisions

CAT File No. C-2155-33
MoT File No. RAP5504-041643 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

John McDonald Lederman, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.86(1)(b)

Evidence, Cansays


Review Determination
David Lloyd Eckmire


Decision: March 6, 2001

The Minister's alleged contravention of CAR 602.86(1)(b) has, on a balance of probabilities, been proven, and the sanction of a monetary penalty of $250.00 is confirmed. That amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above application was held at the Provincial Court Building, in Regina, Saskatchewan, Thursday, February 15, 2001, at 10:00 hours.

THE CHARGE

Mr. John McDonald Lederman was advised, by registered mail, of a Notice of Assessment of Monetary Penalty for contravention of paragraph 602.86(1)(b) of the Canadian Aviation Regulations (CARs), in that on or about May 5, 2000, at or near Regina, Saskatchewan, he did operate an aircraft, to wit, a Bell Helicopter Model 212, bearing Canadian registration marks C-FMPZ, with cargo on board, when the cargo was not restrained so as to prevent it from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

TRANSPORT CANADA'S CASE PRESENTATION

Mr. Doug Moyse, civil aviation inspector with Transport Canada, Prairie & Northern Region, outlined Transport Canada's case. He stated that Mr. John McDonald Lederman was pilot-in-command of aircraft C-FMPZ, on May 5, 2000, which after landing near the Shell Aerocenter at the Regina, Saskatchewan airport was "ramp checked" by two Transport Canada civil aviation inspectors, Mr. Richard J. C. Gagnon and Mr. Joe Gaudry.

The aircraft, a Bell Helicopter Company Model 212, bearing Canadian registration marks C-FMPZ, was found to be carrying cargo which was not restrained in accordance with paragraph 602.86(1)(b) of the CARs. Mr. Lederman was asked to produce his pilot licence and aircraft documents, which he did, and was informed that a contravention of the CARs had occurred and that an enforcement file would be opened. Inspectors Gagnon and Gaudry then took a number of photographs with a digital camera, showing the unsecured cargo in the aircraft cargo area.

Mr. Moyse was asked by the Hearing Officer if any pre-hearing conference was held, or memorandum of agreement had been reached between the parties. Mr. Moyse then tabled a "Statement of Agreed Facts", as agreed by the Minister and Mr. Lederman. These facts include:

  • Mr. John McDonald Lederman, Canadian pilot licence No. CH281721, was pilot-in-command of aircraft C-FMPZ, on May 5, 2000, at Regina, Saskatchewan.
  • Aircraft C-FMPZ, a Bell Helicopter Model 212, is owned by Campbell Helicopters Ltd., with a valid a certificate of registration (C of R) and certificate of airworthiness (C of A).
  • The aircraft had cargo on board.
  • The Minister's Exhibits M-1 to M-6 are certified true copies of:

M-1 Transport Canada Aircraft Document / Equipment Check List.
M-2 Five photographs of aircraft C-FMPZ, showing the cargo area.
M-3 Aircraft C-FMPZ C of A.
M-4 Aircraft C-FMPZ C of R.
M-5 Distributed Air Personnel Licensing System abstract for John McDonald Lederman.
M-6 Type Certificate Data Sheets (Pages 1-17).
"Can-Say" testimony of Inspectors Richard J. C. Gagnon and Joe Gaudry. (To be read into the record.)

The Hearing Officer asked Mr. Lederman if he agreed with the tabled "Statement of Agreed Facts", as presented by Mr. Moyse. Mr. Lederman confirmed his agreement, with specific exceptions to certain words used by both Inspectors Gagnon and Gaudry to describe the stowage of the cargo (e.g., "not restrained, or unrestrained").

The Minister's case presenting officer then proceeded to read the "Can-Say" testimony of Inspectors Gagnon and Gaudry, using the exhibit photographs to illustrate the cargo which was allegedly not restrained or secured.

Mr. Moyse offered a photocopy of The Oxford Concise Dictionary of Current English which defined "restrain" as "check or hold in from, keep in check or under control or within bounds, repress, keep down; confine, imprison ...".

Mr. Moyse asserted that the photographs and the testimony of the two Transport Canada inspectors clearly establish that the cargo carried on board helicopter C-FMPZ was not properly restrained as required by paragraph 602.86(1)(b) of the CARs.

DOCUMENT HOLDER'S CASE PRESENTATION

Mr. John McDonald Lederman took the stand and was sworn in as a witness, testifying in his own behalf.

He stated that he was a commercial helicopter pilot with over 20 years experience and over 6,500 hours as pilot-in-command. He has had no accidents or violations in his long career.

Mr. Lederman described the conditions of the flight of helicopter C-FMPZ which had departed Lethbridge, Alberta on the morning of May 5, 2000 with a fueling stop at Swift Current, Saskatchewan, before proceeding to Regina, Saskatchewan. Mr. Lederman testified that the helicopter was crewed by himself and Mr. Todd Hegg, a Campbell Helicopters Ltd. aircraft maintenance engineer. Mr. Lederman stated that the aircraft had been loaded by himself, Mr. Hegg and Mr. Jan Elbe, chief pilot for Campbell Helicopters Ltd., on May 4, 2000. Total cargo weight was estimated at 800 to 1,000 lbs., well below the aircraft's cargo capacity. The cargo consisted of several bulk containers, tools, aircraft servicing equipment, personal and flight gear and two cargo nets used for carrying external loads.

The aircraft was loaded in accordance with "standard industry practice", and in the appropriately designated cargo area of the aircraft. Mr. Lederman, using the Transport Canada photographs, illustrated that the cargo was "densely packed" and was restrained from fore and aft movement by the stowed four-man aft-facing passenger seat structure, and the stowed forward-facing five-man passenger seat structure. The densely packed cargo was restrained from side to side (lateral) movement by the closed cargo / passenger compartment doors. Small baggage and the two external cargo nets filled voids in the cargo area corners and behind the crew seats.

Mr. Lederman explained that the nature of a helicopter's flight characteristics are such that it is not subject to the same tendencies for cargo to shift during take-off, landing or in-flight turbulence. He stated that careful weather assessment and flight planning procedures were carried out prior to departure, and that no turbulence was either forecast or encountered during the flight. Take-offs and landings were normal, and the cargo did not shift or move at all during the flight.

Mr. Lederman objected to the Minister's Exhibit M-6 (excerpts from the aircraft Type Certificate Data Sheets) which he said was not relevant and which would not normally be available to the aircraft operator or pilot. He tabled the document holder's Exhibit R-1, which was a 15-page excerpt from the Bell Helicopter Company Model 212 Pilot Transition handbook, which illustrated the cargo / passenger area, its loading limitations and related information. He stated that aircraft C-FMPZ was loaded in accordance with these specifications, and was in fact well under the weight limitations.

Upon cross-examination, Mr. Moyse asked Mr. Lederman if the aircraft had been loaded in accordance with paragraph 602.86(1)(b) of the CARs. Mr. Lederman stated that he followed standard industry practice and the requirements of the Pilot Transition handbook. He stated that his main concern was safety and complying with weight and balance requirements.

Mr. Moyse then questioned Mr. Lederman concerning the location and size of two step ladders and a cylindrical plastic tube containing what Mr. Lederman described as steel ground rods used for remote fueling of the aircraft.

Considerable discussion ensued as to why these items were not secured, but appeared to be laid across the top of the densely packed cargo. Mr. Lederman replied that it was because these items needed to be readily accessible and may be required at a fuel or maintenance stop. Mr. Moyse asked whether these items could become dislodged during flight and be catapulted over the top of the extended head rests of the four-man aft-facing passenger seat, ultimately entering the crew compartment and thereby injuring a crew member or interfere with the operation of the aircraft. Mr. Lederman thought this to be unlikely.

Mr. Lederman offered a more liberal definition of the word "restrain" from Webster's Dictionary which stated "confine, stow, pack in convenient places, fill with articles compactly arranged". To this extent, Mr. Lederman considered that the cargo was "restrained" and that the requirements of paragraph 602.86(1)(b) of the CARs had been met.

SUMMARY

Mr. Moyse summarized the Minister's case and asserted that the Minister had proven, on a balance of probabilities, that:

  • Mr. Lederman was the pilot-in-command of aircraft C-FMPZ on May 5, 2000
  • That cargo carried on board the aircraft was not properly secured or restrained in accordance with paragraph 602.86(1)(b) of the CARs.

Mr. Moyse submitted jurisprudence for the Hearing Officer's reference, namely CAT File Nos. C-1921-33[1] and C-1984-33[2].

Mr. Moyse highlighted the seriousness of the contravention of the regulation by referring to the tragic outcome of the Points North Air DC-3 crash last year, which was suspected to have been caused by the shifting of the cargo during a flight manoeuvre (take-off).

Mr. Lederman in his concluding summary reiterated that the cargo was carried in the appropriate location and was well within weight and balance requirements. He asserted that the regulation must be read in its entirety and pointed out that paragraph 602.86(1)(a) of the CARs states that cargo must be "stowed in a bin, compartment, rack or location that is certified". He opined that the entire area aft of the crew compartment is "an approved area for cargo stowage" and that no additional restraint is required.

CONCLUSION

Mr. Lederman appears to be correct in stating that the cargo was carried in the appropriate location and that it was well within the weight and balance requirements. He may even be correct in his assertion that the cargo, because of its dense packing arrangement, was confined from both lateral and fore and aft movement.

The location of the two step ladders and tube containing the steel rods, which were placed on top of the other cargo, however, raises important questions. There was no apparent restraint of these objects which would prevent vertical movement, or prevent them from being catapulted into the crew compartment in the event of sudden turbulence or a pitching movement of the aircraft.

The Pilot Transition handbook for the Bell Model 212 helicopter clearly shows the location of a multitude of cargo hold down lugs in the cargo / passenger area. These attachment points are expressly for the purpose of restraining cargo both vertically as well as laterally and fore and aft.

The Transport Canada photographs also clearly show that the two yellow cargo nets used for slinging external loads were stowed casually in vacant corners of the cargo area. This begs the question - Why were they not used to secure / restrain the cargo from any potential vertical movement, and from possibly passing over the stowed four-man seat head rests and entering the crew compartment?

Mr. Lederman' s answer to this question was that the external load nets were quite large, larger in fact than the cargo area. They could, however, have been doubled up, or other restraining ropes used to lash down the cargo, and in particular the ladders and tube of steel rods.

Although no in-flight turbulence was either forecast or actually experienced, and not withstanding the fact that a helicopter may not react to sudden pitch, roll or yaw movements in the same way as a fixed wing aircraft does, I am not persuaded that laying large or small objects across the top of heavier densely packed cargo, without any method of restraining the movement of the cargo effectively in all directions, meets the requirement for restraint as called for in paragraph 602.86(1)(b) of the CARs.

Unforecast and unexpected turbulence may occur at any time, as may the requirement for sudden changes in the aircraft's flight path. In this particular case, the potential certainly existed for items in the cargo compartment to become dislodged and pass into the crew compartment where they could have injured or incapacitated the crew.

The Minister has, on a balance of probabilities, proven his case, and the sanction of a monetary penalty of $250.00 is confirmed.

David Lloyd Eckmire
Member
Civil Aviation Tribunal


[1] Minister of Transport v. Zaroski.

[2] Minister of Transport v. Blythman.


Appeal decision
Allister W. Ogilvie, Keith Edward Green, Sandra Lloyd


Decision: August 13, 2001

An Appeal Hearing on the above entitled matter was held Friday, June 22, 2001 at 10:00 hours at the Federal Court of Canada in Vancouver, British Columbia.

BACKGROUND

On May 5, 2000, Mr. John McDonald Lederman flew a Bell 212 helicopter into the airport at Regina, Saskatchewan. Transport Canada inspectors conducted a ramp check. They ascertained that the helicopter had cargo on board and in their opinion the cargo was not properly restrained.

That observation prompted Transport Canada officials to issue a Notice of Assessment of Monetary Penalty to Mr. Lederman in the following form:

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 602.86(1)(b), in that at approximately 1538 hours UTC, on or about May 5, 2000, at or near Regina, Saskatchewan, you did operate an aircraft, to wit, a Bell Helicopter Company 212 bearing Canadian registration marks C-FMPZ, with cargo on board when the cargo was not restrained so as to prevent it from shifting during the movement of the aircraft on the surface and during take off, landing and in flight turbulence.

Mr. Lederman contested that allegation at a review hearing before a single Tribunal Member on February 15, 2001 in Regina. The Member found that the Minister had proven the case on a balance of probability and he confirmed the $250.00 monetary sanction.

Mr. Lederman by letter of March 18, 2001 filed an appeal of that decision. The grounds of appeal are:

1) the Member misconstrued the meaning of CAR602.86(1) in that he interpreted subsection (a) as an additional requirement to that set out in subsection (b), whereas by use of the word 'or' the section clearly intends them to be understood as alternative methods of compliance with the section;

2) the Member disregarded the wording of CAR602.86(1)(b) where it specifies the adequacy of restraint upon cargo '...so as to prevent them from shifting during movement of the aircraft on the surface and during takeoff, landing and in-flight turbulence (ie: particular to the load, aircraft, and flight conducted);

3) the Member based his decision on speculation that a portion of the cargo might intrude into the crew area, that another method of restraining the cargo might have been devised, and upon a supposition of extreme flight conditions. No evidence was adduced on these points during the hearing by means of expert testimony or otherwise, contrary to the CAT requirement that there be prior disclosure in full, that such case be confined to the agreed statement where such exists, and contrary to the Rule of Natural Justice that the respondent be entitled to confront witnesses against him and cross-examine them;

The appeal was heard by a three-person panel on June 22, 2001 in Vancouver, British Columbia.

REPRESENTATION OF THE PARTIES

Appellant

Mr. Lederman appeared on his own behalf, and supplemented his grounds of appeal with verbal argument.

In particular he queried the Member's statement at p. 10 of the transcript: "We normally don't advise a decision right at the time, because there's evidence to look at, and I need to reflect upon the notes that I take and do any research and consultation that may be needed...."

He wonders with whom the Member will consult and asserts that any consultation is contrary to the tenets of natural justice.

Mr. Lederman also presented argument on technical interpretation of provisions of paragraphs 602.86(1)(a) and (b) of the Canadian Aviation Regulations (CARs), asserting that when read properly, he was in compliance with both. In rebuttal argument he raised the issue of the adequacy of the Type Certificate Data Sheet (Exhibit M-6), arguing that what was presented was an excerpt, not the whole document, contrary to the assertions of the case presenting officer (CPO).

Respondent

Ms. Caminsky appeared on behalf of the Minister, presenting oral argument to supplement a written submission. She had submitted that the Member's findings of facts were not unreasonable and therefore should not be overturned.

The photographic evidence adduced as Exhibit M-2 clearly showed that the ladders and plastic tube were not stowed or restrained. Further Mr. Lederman had agreed to the admission of the photographs that depicted the cargo loading. Upon questioning by the panel Ms. Caminsky continued to assert that there was sufficient evidence for the Member to have come to the conclusion that he had.

DISCUSSION

We do not concur with the Minister's assertions. We allow Mr. Lederman's third ground of appeal and therefore dismiss the charge against him. Although not necessary for the finding Mr. Lederman's verbal argument regarding the Member's consultation and the adequacy of the Type Certificate Data Sheet are worthy of comment. We have addressed those issues in that order.

The Minister's case is presented in the first 28 pages of the transcript of the proceeding. No witnesses are called, no sworn testimony received. The CPO purports to present "evidence" and the hearing officer seemingly accepts.

We are concerned that the procedure used for introduction and acceptance of evidence falls short of that required. An understanding of our concern can be appreciated in view of the very basics that are stipulated for the conduct of a Tribunal hearing. Subsection 37(4) of the Aeronautics Act provides that each member of the Tribunal has the powers of a person appointed as a commissioner under Part I of the Inquiries Act. In that Act it is provided that commissioners have the power of summoning before them any witnesses, and of requiring them to give evidence on oath or solemn affirmation (Part I, section 4). Those powers are reflected in the Civil Aviation Tribunal Rules. The Registrar may issue a summons for a person to appear as a witness before the Tribunal (Rule 14(1)). Witnesses at a proceeding shall be subject to examination and cross-examination orally on oath or solemn affirmation (Rule 16(1)). Thus it can be seen that by the operation of the Acts and the Tribunal Rules, that evidence is to be given by sworn witnesses. The rules requiring witnesses to take an oath or affirmation are designed to ensure the reliability of evidence presented.[1] In this instance that was not done. There was no evidence before the Member to establish or prove a fact. Therefore any finding of fact or conclusion drawn by the Member is unreasonable and is to be overturned.

There does seem to be some agreement between the parties as to certain facts but that is not clear. Statements in the transcript on several occasions allude to an agreement of some sort, whether it be an agreed statement of fact, or some other type of report or memorandum.[2] However there is no agreed statement of fact in this record to which we may refer.

The CPO stated that the Minister of Transport and John McDonald Lederman "have entered into an agreement of fact which reads, the Minister of Transport and John McDonald Lederman are in agreement regarding the following facts related to the notice of monetary penalty issued by the Minister of Transport on September 7th, 2000."[3]

The CPO read into the record a list of three items:

Item 1 - Mr. Lederman's licence # CH281721;

  • that he was the pilot-in-command of C-FMPZ operated on May 5, 2000 at about 1538 UTC at Regina Saskatchewan airport;

Item 2 - FMPZ is a Bell 212;

  • the registered owner is Campbell Helicopters Limited;

Item 3 - FMPZ had cargo on board.

It is incumbent upon the Minister to prove each element of the case at a review hearing. The document holder is free to admit facts, if he so chooses, but he is under no obligation to do so. An admission of fact dispenses with the need for proof of the issues which are admitted. In this case the three items that were seemingly admitted to at page 16 of the transcript encompass all of the essential elements of the offence but one. The very crux of the matter, whether or not the cargo was restrained is not admitted. The Minister still had to prove that.

Ms. Caminsky urged us that as the photos speak for themselves, the evidence of that essential element was proven by the photographs. They were entered as Exhibit M-2, which raises another issue. The entering of exhibits in this case is also problematic. The CPO purports to enter exhibits merely by handing them to the hearing officer and stating what they are. The hearing officer acquiesces to the procedure. Exhibits are to be entered through a witness who can provide pertinent testimony. For instance Exhibit M-1 is the Aircraft Document/Equipment Check. The comments section of it says "load security unsatisfactory." Whose comment is that? The person making out that check list should have been a witness to testify as to what that meant and to be available for cross-examination. We are unable to tell who filled out the sheet but we assume it was either Inspector Gagnon or Gaudry.

Exhibit M-2 is a series of photographs. The CPO enters them by saying in part "five digital photographs of the cargo on board Foxtrot, Mike, Papa, Zulu. And those are as a package."[4] Nothing more is said. The hearing officer accepts them as an exhibit. Who took the photographs? In the reading of Inspector Gagnon's can say the CPO states: "He had occasion to obtain digital photographs of the aircraft, ...." Does that mean that Inspector Gagnon took them? Or did he have occasion to obtain them for someone else? In the transcript it is further stated: "Aside from sizing the digital photos to fit the printing paper, the photos were not tampered with."[5] It is not clear if that statement comes from the can say of Inspector Gagnon or is the statement of Mr. Moyse. If it is Mr. Moyse's, how could he know, if they had been tampered with unless he took them? Inspector Gaudry's can say read into the transcript also mentions the photos where it states: "Photographs were taken of the unsecured cargo and carry-on baggage."[6] By whom? The record does not reveal who took the photographs.

Testimony is required to connect an exhibit to the issue at the hearing. The person who took the photos (whoever that might have been) should have appeared as a witness to testify that the photos that he took fairly and accurately showed the scene at the date and time in question. The document holder could then challenge such testimony on cross-examination. Without a witness speaking to the accuracy of the photographs they are just pictures of a helicopter.

It was asserted that Mr. Lederman had agreed to them as exhibits. The record shows that Mr. Lederman was consulted only after the exhibits were purportedly entered. After the close of the Minister's case the hearing officer had asked Mr. Lederman: "You're agreed with Exhibits M-1 to M-6 as being accurate and relevant to this matter" to which he replied "Yes, sir."[7] However Mr. Lederman's agreement does not have the effect of making the photos evidence, as they had not reached that threshold at their supposed entry.

The crux of the issue, whether or not the cargo was restrained is addressed in both inspectors' can says, which illustrates a further problem. A can say is a document prepared by the Minister for disclosure to the document holder. It is a series of statements that a witness "can say" when called to give evidence at a hearing. It is provided to the document holder to allow him or her to know the case that will have to be met and to allow the preparation of a meaningful cross-examination. It is the anticipated evidence of a witness to be called to give evidence. It is not evidence itself, even if read into a record.

In his opening Mr. Moyse states: "The two witnesses that I was going to call — and pardon me for slight stumbling here, but the two witnesses that the Minister was going to call are encompassed in the statement of agreed fact. I was going to read their can says into the record, which wouldn't require them being called as — it wouldn't require them — going up onto the stand."[8]

After the Minister's case was in, the hearing officer stated: "Okay. Mr. Lederman, now you have the opportunity to respond to, in particular, the can say evidence, which is the same, for our purposes, as having the witness testify."[9]

The can say is not evidence, the same as having the witness testify. It is not evidence at all. As was illustrated earlier the Acts and the Rules each contemplate a witness, giving testimony, on oath or affirmation and to be subject to cross-examination.

Here, the very crux of the case, whether the cargo was restrained or not is unproven. It is with that portion of the can says that Mr. Lederman took issue: "...there are assertions in the can says that I'm not admitting the truth of,"[10]

The Minister has no proof on that issue as he mistakenly read in can says on the issue rather then calling the inspectors to testify. The photos were not properly entered into evidence. They are unhelpful as we are unable to ascertain who took them, and no one testified as to their accuracy nor even when and where they were taken.

This proceeding was commenced under the designated provision sections 7.7 to 8.2. Part of the procedure is addressed at subsection 7.9(5) where it is stipulated:

(5) On a proceeding before a member of the Tribunal under subsection (4),

(a) the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister; and

(b) the person is not required and shall not be compelled to give any evidence or testimony in the matter.

This presents a most interesting dichotomy in that the burden of proving the contravention is on the Minister, but he called no witnesses to provide proof. The alleged offender is not required and cannot be compelled to give any evidence or testimony in the matter yet he is the only person who did so.

On the foregoing analysis we have allowed ground of appeal number three and we have overturned the Member's decision. However we must also address two other facets of Mr. Lederman's argument as they raise significant issues.

Mr. Lederman queried the Member's opening statement where he said that after the hearing was concluded he needed to reflect upon the notes he took, do any research and "consultation that may be needed — that may be necessary to assist me in reaching a decision."[11] It is an accepted tenet of natural justice that, "he who hears must decide".[12] It would be most untoward if a Member in coming to a determination consulted others. It would be a breach of natural justice. Although the statement was made during the Member's opening remarks there is no evidence that he did consult with anyone. The views he expressed in the determination can be seen to be based on what he considered to be the "evidence" before him. We do not find that he breached the rules of natural justice.

Mr. Lederman also raised the issue of the adequacy of Exhibit M-6, the Type Certificate Data Sheet for the Bell 212 helicopter. Our comments regarding the entry of evidence into the record apply equally to this exhibit. It was not entered through a witness whose testimony could link it to an issue. Mr. Lederman was concerned that the document was not complete and thus could not be replied upon. The Member had stated that the exhibit was obviously not the entire Type Certificate. Mr. Moyse twice replied that it was the Type Certificate in its entirety.[13]

The opening paragraph of Exhibit M-6 entitled "Type Certificate Data Sheet" states: "This Data Sheet which is part of Type Certificate No. H-86 prescribes the conditions and limitations..." (our emphasis). That paragraph stipulates that the Data Sheet is only part of the Type Certificate, contrary to the assertions of the CPO. The document, Exhibit M-6, may be the entire Type Certificate Data Sheet but it is not the entire Type Certificate as the Minister's representative asserted. Had that exhibit been entered through a witness, who had knowledge of the contents and origin of such document, perhaps the confusion would not have prevailed.

The real issue that arrises, aside from that above, is the Minister's reliance on the document. It was sought to establish that the area of the aircraft containing cargo was not a cargo area. This was to be established as Exhibit M-6 did not reveal that it was a cargo area. We find that to rely on the absence of something in a document, the entire document would be needed to establish that fact. As the entire Type Certificate was not in evidence, no point could have been established even if it had been properly entered as evidence.

DETERMINATION

The Appeal is allowed. The Tribunal finds that the Minister failed to prove Mr. Lederman contravened paragraph 602.86(1)(b) of the Canadian Aviation Regulations and dismisses the assessed penalty of $250.00.

Reasons for Appeal Determination by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Sandra K. Lloyd, Member
Keith Edward Green, Member


[1] J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada, (Toronto and Vancouver: Butterworths, 1992) at 2.

[2] Transcript pages 4, 5, 6, 8 and 12.

[3] Transcript pages 15 and 16.

[4] Transcript p. 18, lines 15-17.

[5] Transcript p. 22, lines 14-17.

[6] Transcript p. 24, lines 21-24.

[7] Transcript p. 27, lines 17-21.

[8] Transcript p. 5, lines 21-25; p. 6, lines 1-5.

[9] Transcript p. 26, lines 13-16.

[10] Transcript p. 6, lines 13-16; p. 26, line 25; p. 27, lines 4, 5, 11.

[11] Transcript p.10, lines 4-11.

[12]Sara Blake, Administrative Law in Canada, 2d ed., (Toronto & Vancouver: Butterworths, 1997) p. 70, s. 2.19.

[13] Transcript p. 20, lines 2 and 21.