Decisions

CAT File No. C-2650-33
MoT File No. RAP5504-47976 P/B

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Shiloh James Tegart, 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)

Unrestrained cargo, Inspection, Finding of fact, Evidence, Element of proof


Review Determination
Elizabeth M. Wieben


Decision: April 3, 2003

Based on the evidence presented before me, I conclude that the load as secured did not meet the requirements of paragraph 602.86(1)(b) of the Canadian Aviation Regulations and that the Minister has proven the alleged violation on a balance of probabilities. I uphold the monetary penalty of $250.00 assessed by Transport Canada against Mr. Shiloh James Tegart as an appropriate amount for a first offence. That amount, made payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held Monday, February 17, 2003 at 10:00 hours, at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

On July 13, 2002, the Respondent Mr. Shiloh James Tegart was the pilot of an aircraft, a PA31-350 bearing Canadian registration marks C-GRTG which landed at St. Andrews, Manitoba.

By Notice of Assessment of Monetary Penalty dated September 10, 2002, Mr. Tegart was assessed a monetary penalty of $250.00 for an alleged infraction of paragraph 602.86(1)(b) of the Canadian Aviation Regulations (CARs).

The Notice reads in part:

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

COUNT # 1: Canadian Aviation Regulation 602.86(1)(b), in that approximately 1530 hours UTC on or about July 13, 2002, at or near St. Andrews, Manitoba, you operated an aircraft, namely a PA31-350 bearing Canadian registration marks C-GRTG, with cargo on board when the cargo was not restrained so as to prevent it from shifting during take-off, landing, and in-flight turbulence.

As the monetary penalty was not paid by the specified date, Transport Canada has applied to the Civil Aviation Tribunal for a hearing.

THE LAW

Paragraph 602.86(1)(b) of the CARs reads as follows:

602.86 (1) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board, unless the carry-on baggage, equipment and cargo are

[...]

(b) restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

THE EVIDENCE

The case presenting officer for Transport Canada, Mr. Welwood, submitted an "Agreed Statement of Facts and Documents" signed both by Mr. Welwood for the Minister and by Mr. Barnsley for Mr. Tegart.

The parties agreed that Mr. Shiloh James Tegart was the pilot-in-command of an aircraft registered C-GRTG that landed at St. Andrews on July 13, 2002 and that the aircraft carried cargo on the right-hand side and passengers on the left-hand side of the cabin. They also agreed that Inspector Richard Gagnon completed a ramp check at that time and that photographs were taken of the cargo. It is also acknowledged that the Notice of Assessment of Monetary Penalty was received September 24, 2002.

Mr. Welwood stated that a ramp check had been completed on C-GRTG after it landed, that all licences were valid, that the weight was within limits but that Transport Canada alleged that the cargo on the right-hand side of the aircraft was not secured properly.

Inspector Richard Gagnon, who has been with Transport Canada for 10 years as an inspector testified that he had completed the ramp check on C-GRTG and that he had assessed Load Security "Not Satisfactory". Photos of the load were taken and three of these photos were submitted as evidence. Mr. Gagnon identified the aircraft through the registration on the tail and then in his testimony assessed the security of the load using the other two photos taken of the cargo.

Mr. Gagnon testified that the single strap over the top of the load did not secure the middle suitcase on the top as it did not go through the handles of the bag, or otherwise touch the bag and that the cargo beneath this bag was also not secure. He felt that if there were a rough jolt or turbulence, the load could slide sideways. Mr. Gagnon was also concerned about the strength of the single strap to secure the load. Under cross-examination Mr. Gagnon was adamant that the load could shift.

Mr. Tom Bennett, a Transport Canada aviation enforcement inspector and aircraft maintenance engineer, testified on behalf of Transport Canada. He stated that he was present at the ramp check and that he saw the aircraft being unloaded. When viewing the photos taken at the ramp check he testified that the cargo was not secured well enough to be either safe or legal. He stated further that he felt the cargo could shift because there were large gaps between some of the cargo and the single strap. Mr. Gagnon also testified that as an aircraft maintenance engineer experienced with this type of aircraft, this load was not tied with the proper techniques to prevent it from shifting.

While under cross-examination, Mr. Gagnon submitted Exhibit M-3 which explains the loading requirements according to the aircraft flight manual. He stated that although he had no evidence of the strength of that particular strap, the airframe is only certified to 150 lbs. and the weight of the load was 406 lbs. Mr. Bennett also testified that on this particular load, the load did not appear to be "cinched in tightly."

Mr. Shiloh James Tegart, an experienced airline transport pilot who has been flying for 17 years, testified on his own behalf. Mr. Tegart testified that he had suitcases in the cabin, rod cases in the wing lockers and some cargo in the nose locker. He described in detail how he puts a Piper approved attachment on the seat rail and then adds the strap to the attachment point. He further stated that he then stacks the bags on the seat rails, attaches another attachment on the seat rail at the rear of the aircraft and then ratchets down the load. He said that was what he had done in this case.

He testified that the strap and attachments were in good shape and that the load did not shift during the flight. He stated that he felt that what he was doing was "industry standard practice" and that it was sufficient to prevent the load from shifting. Under cross-examination he stated that the bags not touched by the strap were prevented from shifting by the "sandwich effect".

THE DISCUSSION

The parties had submitted an Agreed Statement of Facts so that all elements had been proven, except whether or not the cargo was restrained to meet the requirements of paragraph 602.86(1)(b) of the CARs. Mr. Gagnon and Mr. Bennett testified that the cargo could shift, that some of the bags were not secured by the single strap and that in this case it was not strapped tight enough to prevent shifting. Mr. Bennett also testified that according to the aircraft flight manual the strap and cargo attachments were limited to a maximum restraining capacity of 150 lbs. at 12 in. c.g. height of cargo and that the weight of the cargo was 406 lbs.

Mr. Tegart testified that in his mind he had secured the load, that it could not shift and that the method he had used met the industry standard. There was no testing of the specific strap, and there were no force calculations completed to verify the pull on the attachment points of the airframe or on the strap due to the c.g. of this particular cargo. Mr. Tegart testified that there were rod cases and other items in the wing lockers and nose compartment which would reduce the cabin baggage weight somewhat below the 406 lbs. of cargo weight noted on the ramp check.

Each of the witnesses was credible. I believe Mr. Tegart felt he had met the requirement to secure the load and that this was proven by the fact that he was meeting the "industry standard". Mr. Gagnon's statements specifically stated that he was there, that he saw the load and that it could shift. Mr. Bennett also stated that the load could shift and that the load was neither safe nor legal. The photographs corroborate the testimony of Mr. Gagnon and Mr. Bennett that at least some of the bags were not secure. Documentation from the aircraft flight manual was submitted by Transport Canada and they felt that the amount of baggage in the cabin exceeded the tie down limitations of the manual. The aircraft flight manual (M-3) at page 6-23 actually specifies the baggage tie down rings capacity when attached to the seat tracks as 200 lbs. and that the maximum restraining capacity of the cargo straps is 150 lbs. at 12 in. c.g. height of cargo. The manual also gives instructions on how to do these calculations.

The purported evidence of the aircraft flight manual was not confirmed in testimony or denied in testimony with any factual information. No one measured any of the forces on the load to be able to say whether or not the load was in compliance with the aircraft flight manual placards.

CONCLUSION

I am looking at evidence given by two witnesses who have no personal gain or loss through their testimony and whose testimony is supported by photographs. In addition their concerns are noted on a ramp check where everything else is assessed as satisfactory. On the other hand I look at evidence from an equally experienced pilot who has a personal interest in the outcome of this situation and who specified that he flew a hundred or more loads and who testifies that this particular load was secure. I have photos which show the securing of the load. These photos support the testimony of the two inspectors and do not support that these bags were cinched so tightly that they could not move.

I was given jurisprudence by both parties which I reviewed. These cases all contained some element or level of evidence that was different from the circumstances here.

DETERMINATION

Based on the evidence presented before me, I conclude that the load as secured did not meet the requirements of paragraph 602.86(1)(b) of the CARs and that the Minister has proven the alleged violation on a balance of probabilities. I uphold the monetary penalty of $250.00 assessed by Transport Canada against Mr. Shiloh James Tegart as an appropriate amount for a first offence.

Elizabeth Wieben
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, David S. Ahmed, E. David Dover


Decision: July 23, 2003

We allow the appeal and dismiss the penalty.

An appeal hearing on the above entitled matter was held before a three-member panel on Wednesday, June 25, 2003 at 10:00 hours at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

Mr. James Tegart was the pilot of a PA31-350 aircraft which landed at St. Andrews airport in Manitoba on July 13, 2002. His flight was met by two Transport Canada inspectors who were conducting ramp checks.

As one inspector was concerned as to the total weight of the aircraft's contents, the baggage from the cabin and nose and wing lockers was all weighed. It was within the applicable limits. All but one of the other portions of the check were deemed satisfactory. The security of the load in the cabin was deemed to be unsatisfactory.

Subsequently, Transport Canada sent Mr. Tegart a Notice of Assessment of Monetary Penalty which alleged that he had violated paragraph 602.86(1)(b) of the Canadian Aviation Regulations (CARS) in that he had operated an aircraft with cargo on board when the cargo was not restrained so as to prevent it from shifting during take-off, landing, and in-flight turbulence.

A review hearing of that matter was held before a single Member on February 17, 2003 in Winnipeg, Manitoba. The Member, Ms. E Wieben, concluded that the load as secured did not meet the requirements of paragraph 602.86(1)(b) of the CARs. Therefore, she upheld the monetary penalty of $250.00.

Mr. Tegart did not agree with that finding and therefore requested an appeal hearing of the matter.

HELD

We allow the appeal and dismiss the monetary penalty.

Grounds of Appeal:

  1. The Review Determination contains errors of fact and law.
  2. The Review Determination errs in concluding that the Minister of Transport proved the alleged violation on the balance of probabilities.
  3. The Review Determination errs in being based on or influenced by photographs that have no probative value.
  4. The Review Determination errs in being based on or influenced by the opinions of Transport Canada witnesses when those opinions were not based on any physical evidence.
  5. The Review Determination errs in attributing evidence to the wrong witnesses, and ignoring other evidence, thereby contaminating the findings of fact and credibility in the Determination.
  6. The Review Determination errs in concluding that the load in question was insecure in the absence of any physical proof of that fact while there was direct evidence to the contrary that the hearing officer apparently accepted as credible.
  7. The Minister of Transport's inspectors failed to test or measure in any way the actual restraint of the load. Mere observation and photographs are patently not reliable or credible bases to conclude insecurity, especially when far more conclusive testing could readily have been performed. The absence of any effort by the Minister's inspectors to test the restraint disqualifies their opinions and the Review Determination errs in failing to so find.
  8. The effect of the Review Determination is to place the onus on a document holder to disprove the unfounded opinion of the Minister, contrary to law and natural justice.
  9. The Review Determination errs in concluding that Shiloh James Tegart contravened paragraph 602.86 (1)(b) of the Canadian Aviation Regulations.
  10. And such other grounds as counsel may advise and the Tribunal may allow.

REPRESENTATIONS OF THE PARTIES

Appellant

Mr. Barnsley's position is provided in the grounds of appeal. In essence he argues that the Member made a determination that was not founded on evidence. That is an error which should cause us to overturn the Member's decision. In his submission he pointed out to us what he asserts is the only evidence that can be accepted, and that evidence would allow a favourable decision for his client.

Respondent Minister

Mr. Hector submits that findings of fact should not be overturned unless they are unreasonable, and he proffered jurisprudence to support that proposition. In this case, he says that the Member's findings were not unreasonable. Those findings were based on the testimony of Inspectors Gagnon and Bennett, which she found credible, as well as on the photographs taken at the scene.

DISCUSSION

The review hearing Member must make a decision on the issue presented in the case before her. The issue was whether or not the load was secured in accordance with the regulations. A decision cannot be made unless the necessary facts exist. The Tribunal must find the facts and these facts must be based on evidence.[1]

The Member found as fact that the load as secured did not meet the requirement stipulated in the regulations and hence found a violation by the document holder.

We have determined that the Member's finding of fact was incapable of being supported by the evidence and is thus unreasonable.

In the opening of proceedings the Minister expressed his intention of calling an inspector as an expert witness. The Member ultimately decided that she did not need the expert's help in interpreting the evidence. However, during the discussion regarding expert witness qualification the Minister's representative acknowledged that an expert witness is called to give opinion evidence. The expert was not to be an eye witness. He would have reviewed the evidence and come up with an opinion.[2]

We would find that to be a correct statement of the role of an expert. But in this case the Minister's eye witnesses, who were not qualified to give opinion evidence, were the ones who tendered opinions on the security of the load. A review of the record shows that neither Inspector Gagnon nor Inspector Bennett actually tested the security of the load. There is no evidence to show that they did anything but view it.

In cross-examination Inspector Gagnon was asked if he had any evidence that a single strap in the aircraft, tightly cinched around the load, could not prevent it from shifting as required by the CARs. He replied that other than his own opinion he did not have any evidence.[3]

A similarly worded question was posed to Inspector Bennett and he too replied that he had no evidence.[4] The inspector did want to go on to qualify his answer. That qualification involved the procedures and limitations found in the aircraft flight manual. However, the Member declared that the purported evidence of the flight manual was not confirmed in testimony or denied in testimony with any factual information. It could not be stated whether or not the load was in compliance with the flight manual placards (Exhibit D-4).

Although both inspectors held opinions as to the security of the load, they both conceded under cross-examination that neither had any evidence.

The only evidence before the Member as to the actual security of the load came from Mr. Tegart. He detailed in his testimony how he went about securing the load. In somewhat colourful vernacular he described the tension that he imposed through the ratchet mechanism by saying that he would ratchet it down until the passengers' eyes start bulging in fear that he was going to crush their suitcases. He tested the security of the load by grabbing the strap and shaking it back and forth to ensure that it would not topple sideways into the alleyway.[5] The Member stated each of the witnesses was credible so we are not left to doubt the veracity of Mr. Tegart's testimony.

What we have on the record is the opinion evidence of inspectors balanced by their admission that they had no actual evidence as to the security of the load. As these witnesses were also found to be credible, their statements that they had no evidence as to the security of the load is not in doubt.

The Member also relied upon the photographs taken at the scene. She stated that the inspectors' testimony was supported by those photos and do not support that the bags were cinched so tightly that they could not move. We reiterate that their testimony was opinion only in that neither of them tested the security of the load. As they were unable to testify as to how tightly the bags were cinched, we fail to see how a photo provides that answer.

The Member found that the jurisprudence offered by the parties all contained some element or level of evidence that was different from the present circumstance. We concur with that, as cases under this section are very fact specific. Nonetheless, we find them instructive.

In MoT v. Phillips,[6] at review (upheld on appeal) the Member found that:

The [responsibility] for properly restraining a load has to rest with the crew, in particular the Captain, his judgement as to what is considered safe loading has to relied on till proven otherwise.

As we have stated earlier there is no evidence, i.e., proof otherwise, in the case at hand. The only evidence is that of Mr. Tegart who testified that the load was secure.

CONCLUSION

We allow the appeal and dismiss the penalty.

Reasons for Appeal Decision by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Dr. David Ahmed, Member
David Dover, Member


[1]S. Blake, Administrative Law in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1997) at 49.

[2]Transcript of proceedings, p. 12.

[3]Transcript, p. 25.

[4]Transcript, p. 34.

[5]Transcript, pp. 51-53.

[6]Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, 1986.