Decisions

TATC File No. C-3140-02
MoT File No. RAP5504-054664 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

John David Castle, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9(8)
Canadian Aviation Regulations, SOR/96-433, s. 302.11(a)
Charter of Rights and Freedoms, ss. 6, 11, 24

Smoking on an Apron, Motion to Quash


Review Determination
William Thornton Tweed


Decision: October 26, 2006

I confirm the Minister of Transport's decision and the sanction of a one-day suspension for each offence for a total of three days.

[1]     A review hearing on this matter was held August 22, 2006 at 1:00 p.m. in Rankin Inlet, Nunavut.

BACKGROUND

[2]     John David Castle received a notice of suspension where it was alleged that he did on four occasions, in particular, August 6, 9, 12 and 18, 2004, smoke on the apron of the Rankin Inlet Airport, in Nunavut, thereby contravening paragraph 302.11(1)(a) of the Canadian Aviation Regulations (CARs).

EVIDENCE

[3]     At the hearing of the matter, the Minister of Transport chose to withdraw the allegation that Mr. Castle was smoking on the apron at Rankin Inlet Airport on August 6, 2004.

[4]     Three witnesses, Nigel Kubluitok, Jake Kenneth Punshon and Allyn Burrill testified that they saw Mr. Castle smoking in an area of the Rankin Inlet Airport property they believe to be the "apron". They each identified the date and where on the airport property they observed Mr. Castle smoking. I found all of the witnesses to be credible.

[5]     Based on the testimony of all of the witnesses, Mr. Castle was observed smoking in an area of the airport property that was used for loading and unloading of passengers, cargo and the parking and refuelling of aircraft.

THE LAW

[6]     Paragraph 302.11(a) of the CARs reads as follows:

302.11 (1) Subject to subsections (2) to (4), no person shall, at an airport, smoke or display an open flame

(a) on an apron;

[7]     Subsection 101.01(a) of the CARs reads as follows:

101.01 (1) In these Regulations:

...

"apron" - means a part of an aerodrome, other than the manoeuvring area, that is intended to be used for the loading and unloading of passengers and cargo, the refuelling, servicing, maintenance and parking of aircraft and the movement of aircraft, vehicles and persons engaged in services necessary for those purposes; (aire de trafic)

DETERMINATION

[8]      Based on the evidence presented, I find on balance of probabilities that John David Castle was smoking on the apron of the Rankin Inlet Airport, Nunavut, on August 9, 12 and 18, 2004. I confirm the Minister of Transport's decision and the sanction of a one-day suspension for each offence for a total of three days.

October 26, 2006

William T. Tweed
Member
Transportation Appeal Tribunal of Canada


Appeal decision
Arthur W. Lyon, Faye H. Smith, Richard F. Willems


Decision: August 14, 2007

Citation: Castle v. Canada (Minister of Transport), 2007 TATCE 20 (appeal)

Heard at Toronto, Ontario, on May 9, 2007

Held: The appeal is dismissed. The appeal panel confirms the review determination and the penalty assessed being a three-day suspension for breaches of section 302.11(1)(a) of the Canadian Aviation Regulations, SOR/96-433 (CARs). The appellant elected to serve the suspension prior to his request for review.

I. BACKGROUND

[1]     A notice of suspension dated March 15, 2005 served upon the appellant, John David Castle, assessed a suspension of one day for each of four allegations for a combined suspension of four days of Mr. Castle's airline transport pilot licence. The incidents occurred at or near the airport at Rankin Inlet, Nunavut, on August 6, 9, 12 and 18, 2004 when Mr. Castle is alleged to have been smoking on the apron of the airport in contravention of section 302.11(1)(a) of the CARs. At the review hearing, the Minister of Transport withdrew the first allegation dated August 6, 2004.

[2]     The review hearing was held on August 22, 2006 at Rankin Inlet, Nunavut. In his determination dated October 26, 2006, the member held that the Minister of Transport had proved the offences as alleged and confirmed the Minister's decision to suspend the appellant's pilot licence for three consecutive days in respect of the infractions committed on August 9, 12 and 18, 2004.

II. GROUNDS FOR APPEAL

[3]    The appellant filed a request for appeal on November 27, 2006 on the following grounds:

(1) (a) The hearing was fundamentally unfair and marred by so many procedural and substantive flaws that the verdict was unsound.

(2) (a) That the prosecution undermined several guarantees necessary,

(i) to a fair trial under law and the Canadian Charter of Rights;
(ii) including the right to an impartial court;
(iii) the presumption of innocence, the ability to prepare a defense, and the right to cross-examine witnesses.

(3) (a) The applicant was denied the opportunity by the "decision" of Mr. William Tweed dated May 18, 2006, and was prevented,

(i) from the ability to a hearing by telephone, written submissions (affidavit), to accept alternate forums in the interest of justice;
(ii) failed to provide the defense with adequate disclosure of the Minister's allegations.

(4) (a) Erred in failing to consider that on November 16, 2005 the petitioner request for a postponement pending clarification of the deficiencies in the disclosure statements on the grounds that:

(i) the evidence is insufficient to conduct a hearing;
(ii) the facts contradict the testimony of the Minister's witnesses;
(iii) there is no evidence that a breach of the regulations has occurred;
(iv) that the petitioner had been subjected to a biased investigation.

(5) (a) That the petitioner's 24(1) charter rights would be contravened in commencing a hearing given the above disclosure deficiencies, furthermore that the defendant had been rendered impecunious and could not travel to Rankin as result of these spurious allegations requested relief by hearing by telephone, affidavit, or other means as the member should permit so that "natural justice" could be observed.

(i) the evidence is insufficient to conduct a hearing;
(ii) the facts contradict the testimony of the Minister's witnesses;
(iii) there is no evidence that a breach of the regulations has occurred;
(iv) that the defendant was "ultra vires" to the Minister of Transport at the time and place of the said offence.

(6) (a) That the defendant could not afford to travel to Rankin to cross-examine the Minister's witnesses was a failure of justice before it began. Diminished the petitioner's charter 24(1) right to a court of competent jurisdiction, in part, caused by a derivative of the Minister's representatives failure to respond with "procedural fairness".

(7) The applicant hereby requests relief in the form of

(a) a hearing to be scheduled in Ottawa at the Minister's and the Tribunal's convenience.

III. APPELLANT'S SUBMISSIONS

[4]     The appellant filed an application for the introduction of new evidence on appeal. He sought to introduce exhibits filed at the review hearing, rulings made by the member prior to review, and other matters of record and jurisprudence. The appeal panel advised that these matters could be addressed as they were already part of the record and that jurisprudence could be addressed at appeal as a matter of course. However, item 14 on the appellant's list of documents, being "Log Sheet No. 16855 – Aircraft C-FTXQ – dated August 14, 2004, was new evidence for the purposes of this appeal.

[5]     Section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, sets out the test for the introduction of new evidence on appeal. It states that:

14. An appeal shall be on the merits based on the record of the proceedings before the member from whose determination the appeal is taken, but the appeal panel shall allow oral argument and, if it considers it necessary for the purposes of the appeal, shall hear evidence not previously available.

[6]     Mr. Castle indicated that this logbook page was not part of the record and that he wanted to introduce it to prove that the inspector who had indicated that he had communicated with him on August 14, 2004 was mistaken since this is proof that he was elsewhere on that date. Mr. Castle did not deny that he had communicated with that inspector, just that he did not speak to him on August 14th. The panel rejected the request to introduce the logbook page as on the basis of the foregoing section of the Transportation Appeal Tribunal of Canada Act, the panel considered that it was neither necessary nor relevant to the issues on appeal.

[7]     The appellant made the following arguments:

(a) that there was a lack of disclosure relating to the inspector's conversation which was not dealt with by the member in his preliminary ruling of May 24, 2006;
(b) that the four offences should not have been heard together;
(c) that the hearing should not have been held in Rankin Inlet; and
(d) that the four offences were trivial.

[8]     The appellant further argued that the matter should have been dealt with in writing or by affidavit and further that there was no offence committed. Additionally, Mr. Castle stated that the area on which he was smoking was not part of the apron and that he could not have been on the apron since the aircraft was in the middle of the apron. He further argued that Transport Canada had no jurisdiction over him as he was not acting in the capacity as crew member at the time. Mr. Castle concluded that there were a number of complaints about him in a short period of time because he had complained about the fuel handler at Rankin Inlet airport.

[9]     Mr. Castle argued that the member's review determination is deficient because he considered evidence that was wrong and that he had no opportunity to cross-examine because the Minister would not agree to a change of venue.

IV. MINISTER'S SUBMISSIONS

[10]     The Minister filed submissions setting out the facts, law and findings of credibility and stated that the appeal panel could not overturn Mr. Tweed's review determination unless it was patently unreasonable. The Minister stated that Mr. Tweed decided the case and made no reviewable findings of fact and that it was clear that the Minister had refuted all of the submissions made in writing by the appellant.

[11]     The Minister's representative stated that the appellant sought to have a rehearing. At paragraphs 43 and 44 of his submissions, he states that the alleged deficiencies which the appellant wished to have cleared up before the hearing were actually allegations to be proved by the Minister at the hearing. Hence, no further clarification could be made prior to the review hearing. Additionally, the assertion that there was no evidence of an offence or that the evidence was insufficient to conduct a hearing were really matters to be decided by the member following the review hearing.

[12]     The Minister's representative submitted that the review determination must stand as it cannot rationally be described with respect to any of its elements as an "unreasonable decision". Conversely, he argued that the review determination is clearly reasonable in all of its aspects.

V. DISCUSSION

[13]     The appellant's arguments are concentrated on two issues arising out of Mr. Tweed's ruling of May 18, 2006 to proceed with the hearing in Rankin Inlet. The appellant argues that he should have been permitted to participate in the hearing through the use of alternate means such as telephone and/or affidavit. The second issue seems to be whether the appellant was provided with adequate disclosure of the allegations made against him.

[14]     In his ruling of May 18, 2006, the member states the following with reference to the issue of a non-attending party's participation in a hearing.

This Tribunal and its predecessor the Civil Aviation Tribunal have a long standing policy of holding hearings into alleged infractions as close as possible to the location of the alleged occurrence . . . This Tribunal has in the past accepted telephone testimony and affidavit evidence; however, only with the agreement of the parties. A party's ability to effectively cross-examine the witness in the case of telephone evidence is limited and in the case of affidavit evidence is non-existent. The Tribunal is then tasked with applying the appropriate weight to the evidence.

[15]     The member made a decision that no special allowances would be made for non-traditional forms of participation in the hearing by a non-attending party. As alluded to in the foregoing paragraph, the absence of a party from a hearing leads to impediments. However, where attempts to come to some accommodation are unworkable, the member must make the decision as to the location of the hearing based on the balance of convenience. It is our view that the member made the correct decision on the facts of this case considering that the offence took place at Rankin Inlet and as well that the Minister had four witnesses, three of whom resided in Rankin Inlet. It was clear that Rankin Inlet was the most convenient forum.

[16]     We concur with the Minister's representative that the questions of deficiencies of evidence or contradictions of facts are matters to be dealt with at the hearing. These are not matters that can be resolved by a series of requests for clarification in advance of the hearing, given that the member had stated in his ruling of May 18, 2006 that upon his review of the notice of suspension, he found that it clearly sets out the dates of the alleged offences and the particular section of the CARs that is alleged to have been violated, providing to the applicant the information necessary to enable him to prepare a defence.

VI. DECISION

[17]     The appeal is dismissed. The appeal panel confirms the review determination and the penalty assessed being a three-day suspension for breaches of section 302.11(1)(a) of the CARs.

August 14, 2007

Reasons for appeal decision:

Faye Smith, Chairperson

Concurred by:

Richard F. Willems
Arthur W. Lyon