Decisions

TATC File No. C-3197-33
MoT File No. RAP5504-56968 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Ralph Edmund Wight, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.100(a)


Review Determination
William Thornton Tweed


Decision: March 27, 2006

Ralph Edmund Wight did contravene paragraph 602.100(a) of the Canadian Aviation Regulations and the penalty of $750.00 is upheld. This amount is to be made payable to the Receiver General for Canada and must be received by the Tribunal within thirty-five days of service of this determination.

A review hearing on this matter was held Tuesday, December 13, 2005 at 13:00 hours at the Four Points Sheraton Hotel in Winnipeg, Manitoba.

FACTS

All of the essential elements of the offence have been proven or admitted. On June 5, 2005, at approximately 19:37 hours UTC at or near Stony Rapids, Saskatchewan, the applicant was the pilot-in-command of a Cessna 170B float plane bearing Canadian Registration marks C-FTUN. Mr. Wight departed the water base that lies within a mandatory frequency (MF) area without first reporting his intentions with Edmonton Centre.

VFR communications procedures at uncontrolled aerodromes with MF and ATF areas are set out in the Canadian Aviation Regulations (CARs):

Subsection 602.97(2) of the CARs:

[...]

(2) The pilot-in-command of a VFR or IFR aircraft operating within an MF area shall maintain a listening watch on the mandatory frequency specified for use in the MF area.

[...]

Section 602.99 of the CARs:

602.99 The pilot-in-command of a VFR or IFR aircraft that is operated at an uncontrolled aerodrome that lies within an MF area shall report the pilot-in-command's intentions before entering the manoeuvring area of the aerodrome.

Section 602.100 of the CARs:

602.100 The pilot-in-command of a VFR or IFR aircraft that is departing from an uncontrolled aerodrome that lies within an MF area shall

(a) before moving onto the take-off surface, report the pilot-in-command's departure procedure intentions;

(b) before take-off, ascertain by radiocommunication and by visual observation that there is no likelihood of collision with another aircraft or a vehicle during take-off; and

(c) after take-off, report departing from the aerodrome traffic circuit.

This first contact between C-FTUN and Edmonton Centre was at 07:39:40 local time (UTC 19:39:17). The applicant called Edmonton Centre and said, "I'm just off the water at Stony Rapids, we have the tanker in sight and we're on our way to Yellowknife."

Edmonton Radio then advised that "this is a mandatory frequency zone you're to call us prior to departure, ... report clear of the zone" to which Mr. Wight responded: "call you clear of the zone, sorry about that, yeah."

The requirements as set out above in CARs 602.99 and 602.100 were clearly not complied with.

DUE DILIGENCE

The Aeronautics Act provides at section 8.5 regarding due diligence:

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.

Mr. Wight's defence was in essence that notwithstanding the violation had occurred, he had exercised all due diligence. In making a due diligence defence, the onus of proof moves to the applicant who is then obliged to produce evidence that proves on balance of probabilities that he did, in fact, exercise all due diligence necessary to prevent the occurrence.[1]

EVIDENCE

Mr. Mark Dean Suetta, a flight service specialist for NAV CANADA, testified that at all relevant times he was employed by NAV CANADA, and was working the traffic at Stony Rapids. He advised that he had not experienced any problems contacting water aircraft, and the frequency and all equipment were checked at the change of shift and found to be serviceable. Mr. Suetta stated that during the relevant period, there were no radio problems either observed or reported. He also stated that he spoke to other aircraft operating in the area at the relevant times. There was nothing in direct or cross-examination that would cause me to question Mr. Suetta's testimony.

Mr. Wight claims that he made several attempts to call on the MF while taxiing. His claim is supported by a sworn statement of Carol Hanna (Exhibit A-1) who states that she heard Mr. Wight make at least three attempts to make radio contact prior to take-off. Given that Ms. Hanna did not appear in person to give evidence, there was no opportunity for the Minister to cross-examine this witness, and there was no other evidence to corroborate her assertion. I can therefore give very little weight to her statement.

There is no other evidence to support the applicant's claim that he attempted to make contact with Edmonton Centre. Although Mr. Wight's explanation that the mounting location of his VHF radio antenna may have caused him problems reaching Edmonton Centre, that does not explain why none of the other aircraft in the area at the time reported his transmissions to Edmonton Centre or why he did not attempt to contact Edmonton Centre through one of the other aircraft.

His apology to Edmonton Centre when advised by Edmonton Centre of the MF zone requirement is not consistent with having made several unsuccessful attempts to contact them. It is more likely that rather than apologizing he would have advised them he had made several attempts to contact them.

Mr Wight's testimony concerning his taxiing to position for take-off, the direction of his take-off, and whether or not the take-off was within the MF zone, was inconsistent and contradictory.

FINDING

In view of all of the evidence presented, I find that the applicant has not discharged the onus required of him to establish, that notwithstanding the offence had occurred, he exercised all due diligence to prevent such an offence.

DETERMINATION

I therefore confirm the Minister's finding and confirm the Notice of Assessment of Monetary Penalty in the amount of $750.00.

March 27, 2006

William T. Tweed
Member
Transportation Appeal Tribunal of Canada


[1] Leslie G. Marsh v. Minister of Transport, appeal determination, [1996], C-1095-02.


Appeal decision
Allister W. Ogilvie, John Saba, Michel Larose


Decision: August 25, 2006

The appeal is dismissed and the monetary penalty in the amount of $750 as assessed by the Tribunal member at review is upheld for the contravention of paragraph 602.100(a) of the Canadian Aviation Regulations. This amount is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 15 days of service of this decision.

[1]     An appeal hearing in the above matter was held Tuesday, July 25, 2006, at 10:00 a.m. at the Commission des lésions professionnelles in Montréal, Québec.

BACKGROUND

[2]     On June 5, 2005, at approximately 19:37 UTC at or near Stony Rapids, Saskatchewan, the appellant, Ralph Edmund Wight, was the pilot-in-command of a Cessna 170B float plane bearing Canadian registration marks C-FTUN.

[3]     Transport Canada alleged that Mr. Wight, while pilot-in-command of a float plane, had departed the water base that lies within an mandatory frequency (MF) zone without first making a radio transmission reporting his intentions with the Edmonton Flight Information Centre.

[4]     Pursuant to a Notice of Assessment of Monetary Penalty dated September 22, 2005, the Minister of Transport assessed a monetary penalty of $750 for an alleged violation of paragraph 602.100(a) of the Canadian Aviation Regulations (CARs).

[5]     Mr. Wight requested a hearing to review the alleged infraction.

[6]     A hearing of the matter was held before a single member, William T. Tweed, on December 13, 2005, in Winnipeg, Manitoba.

[7]     In a determination dated March 27, 2006, the member confirmed the Minister's finding that Mr. Wight did contravene paragraph 602.100(a) of the CARs and confirmed the Notice of Assessment of Monetary Penalty of $750.

[8]     Mr. Wight appealed that determination.

GROUNDS OF APPEAL

[9]     Mr. Wight's grounds of the appeal are based on a 10-point statement in a letter dated April 20, 2006, in which the appellant argues that the learned member erred on the following basis:

  1.  
    1. I did not take off from the Stony Rapids sea plane base.
    2. I did take off miles down river from the Stony Rapids sea plane base.
    3. My takeoff intentions were only known after I had found a suitable and safe takeoff location.
    4. At this time, radio contact was not possible with the Stony Rapids' radio station (Edmonton Centre).
    5. I did contact this facility as soon as possible after takeoff.
    6. This procedure is consistent with that used by myself and numerous other pilots for the past 30 years in the Montreal MF control zone. This can be confirmed by contacting this facility.
    7. Ms. Hanna, my witness, did not appear in person because of the cost involved in travelling from Montreal to Winnipeg.
    8. My apology to Edmonton centre was normal considering I was unable to contact them prior to takeoff.
    9. There was no reason to contact other aircraft when no conflict of traffic existed in my location, which was miles from the airport.
    10. If my testimony was inconsistent and contradictory, this was possibly a result of not being familiar with this location, as it was my first visit; and the fact that I was not made aware of the problem until months after the incident.

THE LAW

[10]     VFR (visual flight rules) communications procedures at uncontrolled aerodromes within MF and aerodrome traffic frequency (ATF) areas are set out in the following sections of the CARs.

[11]     Subsection 602.97(2) of the CARs reads as follows:

(2) The pilot-in-command of a VFR or IFR aircraft operating within an MF area shall maintain a listening watch on the mandatory frequency specified for use in the MF area.

[12]     Section 602.99 of the CARs states:

602.99 The pilot-in-command of a VFR or IFR aircraft that is operated at an uncontrolled aerodrome that lies within an MF area shall report the pilot-in-command's intentions before entering the manoeuvring area of the aerodrome.

[13]     Section 602.100 of the CARs reads as follows:

602.100 The pilot-in-command of a VFR or IFR aircraft that is departing from an uncontrolled aerodrome that lies within an MF area shall

(a) before moving onto the take-off surface, report the pilot-in-command's departure procedure intentions;

(b) before take-off, ascertain by radiocommunication and by visual observation that there is no likelihood of collision with another aircraft or a vehicle during take-off; and

(c) after take-off, report departing from the aerodrome traffic circuit.

[14]     The Aeronautics Act provides the following at section 8.5 regarding "due diligence":

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.

SUBMISSIONS OF THE PARTIES

Appellant – Ralph Edmund Wight

[15]     Mr. Wight asserts that the decision rendered by the member is based upon errors of finding affecting the application of the law. Mr. Wight challenges the interpretation and/or the weight attached to five key alleged facts by the member.

[16]     First, Mr. Wight suggests that at some time, he was outside of the five-mile radius of the MF zone and not subject to the requirement of radio contact with the Edmonton Flight Information Centre prior to take-off. The member had found that the appellant was within the MF area when he conducted the take-off in question.

[17]     Second, Mr. Wight claims that he made at least three attempts to make radio contact in the MF zone while taxiing, as he was trying to transmit his intentions to take off. His allegation was supported by a sworn statement of Carol Hanna who did not appear in person to give evidence. The member gave very little weight to her statement on the basis that there was no opportunity for the Minister to cross-examine this witness and there was no other evidence to corroborate her assertion.

[18]     Third, Mr. Wight argues that it was not possible to communicate with the Edmonton Flight Information Centre because of his aircraft's take-off location in an alleged "blind spot" whereby surrounding terrain and line of sight limitations made VHF (very high frequency) transmission by his aircraft's equipment to the airport's receiver impossible. Moreover, Mr. Wight alleged that he had made a "blind transmission" reporting his location and intention, but that the Edmonton Centre did not hear this transmission because their receiver system is inadequate. The member allegedly ignored or attached insignificant weight to this evidence.

[19]     Fourth, the appellant claims that the member erred in deeming as irrelevant an alleged custom and procedure in the Montréal control zone inapplicable in another zone, Stony Rapids in this case. The alleged custom and procedure in the Montréal zone allows float plane pilots who are unable to communicate from the water to make their first contact with the control centre after take-off, i.e. when airborne.

[20]     Fifth, Mr. Wight states that his apology to the Edmonton Flight Information Centre for not communicating before take-off was his normal practice in the circumstances. The appellant disagreed with the member's interpretation that such an apology was inconsistent and in conflict with his claim that he had made several attempts to contact the Centre before take-off.

[21]     On these and other bases, the appeal panel was invited to overturn the member's decision.

Respondent – Minister of Transport

[22]     Peter Davidson, case presenter, submitted written and oral submissions on behalf of the Minister. The Minister submits that the test to be applied when reviewing a member's findings of fact or credibility of witnesses should not be disturbed on appeal unless they are "unreasonable". Jurisprudence was provided as to the meaning to be attributed to "unreasonable". In this case, the Minister argues that the record revealed that the findings were supported by the evidence.

[23]     The member had found that all of the essential elements of the commission of the alleged offence were established. Mr. Wight was identified as the pilot-in-command of a VFR aircraft (C-FTUN) that departed from an uncontrolled aerodrome that lies within an MF area on June 5, 2005. The pilot did not report his departure procedure intentions to the Edmonton Flight Information Centre before moving onto the take-off surface.

[24]     Furthermore, the member found that "due diligence" was the defence that Mr. Wight sought to establish. However, the member determined that due diligence had not been exercised in this case – in other words, Mr. Wight did not establish that he had taken all reasonable steps to avoid the offence.

[25]     The appeal panel is asked to uphold those findings.

DISCUSSION

[26]     The constituent elements for Mr. Wight's contravention of paragraph 602.100(a) of the CARs were based on the facts that Mr. Wight was the pilot-in-command of the Cessna 170B float plane bearing Canadian registration marks C-FTUN at the place and on the time and date that the offence occurred.

Standard of Review

[27]     The Minister has submitted – and this appeal panel concurs – that the review member's findings of fact should not be disturbed unless they are "unreasonable" and that findings of credibility of witnesses should not be overturned unless they are "patently unreasonable". Indeed, as stated by an appeal panel in the case of Long v. Canada (Minister of Transport), [2004], appeal determination, TATC file no. O-2824-02, [2004] CTATD no. 20 ¶ 46 (QL), the internal "standard of review as between the determination at first instance and that on appeal in Transportation Appeal Tribunal of Canada proceedings is whether the findings are 'unreasonable' ".

The Commission of the Offence

[28]     Most contraventions of the Aeronautics Act and its subordinate legislation are considered to be strict liability offences. It is not necessary for the Minister to prove that the alleged offender had an intention to commit the offence. The party alleging the contravention, the Minister of Transport in this case, must prove the constituent elements of a strict liability offence on a balance of probabilities as asserted in Shermet v. Canada (Minister of Transport), [1996], appeal determination, CAT file no. C-1021-02, [1996] CATD no. 64 (QL).

[29]     This appeal panel concurs with the member's finding on the basis of the evidence before him that there was an undisputed violation by Mr. Wight of paragraph 602.100(a) of the CARs. All the constituent elements of the offence were established on the balance of probabilities.

[30]     This panel sees no basis upon which the finding that Mr. Wight violated paragraph 602.100(a) of the CARs should be disturbed. As stated above, the standard of review of the member's findings of fact is "reasonableness" and in this case, the member's findings were totally reasonable with no evidence to suggest otherwise.

Due Diligence Defence

[31]     Once the commission of the offence had been proven, the member recognized that the outstanding issue was whether Mr. Wight had discharged the burden of proof upon him to establish the defence of due diligence. Indeed, most of the argumentation in the review hearing centred on this question.

[32]     The appeal panel in Shermet, cited above in ¶ [28], has provided guidance on the due diligence defence in the following statement:

[18]     Once the party alleging contravention has proved the constituent elements of a strict liability offence on a balance of probabilities, the onus then shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid commission of the offence. This assertion respecting a defence to strict liability offences was set out in the case of R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, and is also codified in section 8.5 of the Aeronautics Act.

[33]     The due diligence defence is expressly provided in section 8.5 of the Aeronautics Act:

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.

[34]     In this case, in making a due diligence defence, the onus of proof moves to the alleged offender, Mr. Wight, who is then obliged to produce evidence that proves on the balance of probabilities that as the pilot-in-command, he did, in fact, exercise all due care and diligence necessary to prevent the commission of the offence, as determined in Marsh v. Canada (Minister of Transport), [1996], appeal determination, CAT file no. C-1095-02, [1996] CATD no. 44 (QL).

[35]     However, this panel agrees with the member that based on all documentary evidence and testimony provided, Mr. Wight has been unable to prove that he had exercised due diligence to avoid the situation which he claims caused him to contravene paragraph 602.100(a) of the CARs.

[36]     On the one hand, Mr. Wight claimed that he had made several efforts to make radio contact with the Edmonton Flight Information Centre prior to take-off and while taxiing downstream from the seaplane base. On the other hand, there are examples of this not being the case. For example, no other aircraft in the area at the time of the alleged offence reported the alleged transmissions by Mr. Wight to Edmonton Radio. Mr. Wight admits that he could have requested the nearby tanker to relay his message to the Edmonton Flight Information Centre; however, he chose not to do so. Furthermore, as the member noted, at page 3:

[Mr. Wight's] apology to Edmonton Centre when advised by Edmonton Centre of the MF zone requirement is not consistent with having made several unsuccessful attempts to contact them. It is more likely that rather than apologizing he would have advised them he had made several attempts to contact them.

[37]     This panel concurs that after weighing the relevant evidence, the member made a "reasonable" conclusion that Mr. Wight has not discharged the onus required of him to establish that notwithstanding the offence had occurred, he exercised all due diligence to prevent such an offence. As asserted in the appeal decision of Moore v. Canada (Minister of Transport), [1991], appeal determination, CAT file no. C-0138-33, [1991] CATD no. 5 (QL), a different trier of fact could have arrived at a different "impression of the facts" than the member; however, the member's "findings are [not] so unreasonable" that it could not have been possibly reached by another trier of fact.

DECISION

[38]     The appeal is dismissed and the $750 penalty assessed at the review hearing is upheld.

August 25, 2006

Reasons for appeal decision by:

Dr. John Saba, Member

Concurred:

Allister Ogilvie, Vice-Chairperson
Dr. Michel Larose, Member