Decisions

TATC File No. H-3146-33
MoT File No. EMS 54631

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Louis Grenier, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 6.9, 7.3(1)(c), 7.7, 28
Canadian Aviation Regulations, SOR/96-433, ss. 101.01(1), 103.06(1), 571.10, 571.11(1), 605.85(1), 605.92(1)

Maintenance Release, False Fuel Entries Made in Journey Log with Intent to Mislead, Best Evidence Rule, Aircraft Maintenance Engineer (AME), Aircraft Journey Log and Technical Log


Review Determination
Caroline Desbiens


Decision: October 13, 2006

TRANSLATION

The decision of the Minister of Transport is upheld as Louis Grenier has contravened subsection 605.85(1) of the Canadian Aviation Regulations. The Minister has demonstrated, on a balance of probabilities, that the applicant conducted the 18 take-offs alleged in the notice of assessment of monetary penalty when the maintenance release for the ferry tank on the aircraft was not issued pursuant to the provisions of section 571.10 of the Canadian Aviation Regulations. Consequently, the Minister of Transport is justified in imposing a fine of $100 per flight, for a total amount of $1,800. The total amount of the fine must be made payable to the order of the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

[1]     A review hearing on this matter was held on January 20 and June 1, 2006 at the Commission des lésions professionnelles in Montréal, Quebec. A number of preliminary motions and objections were dealt with by conference call on February 15 and May 5, 2006. The representations on sanctions were made by conference call on September 12, 2006.

I. BACKGROUND

A. File No. H-3147-02

[2]     The respondent is proceeding against the applicant under section 6.9 of the Aeronautics Act for having contravened paragraph 7.3(1)(c) of the Act. More particularly, the applicant is charged with having, on June 10, 2004, made or caused to be made a false entry with intent to mislead in respect of a ferry fuel tank in the journey log of his aircraft registered as C-FXOH. The Minister contends that the applicant made this entry with the intention of falsely suggesting that it was given a maintenance release by an aircraft maintenance engineer (AME), specifically Éric Landry. The sanction imposed is a suspension of the pilot licence of Louis Camille Grenier for a period of 30 days pursuant to section 6.9 of the Act.

[3]     The notice of suspension stipulates as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

SEE SCHEDULE A

[translation]

1. On or about June 10, 2004, as registered owner of the aircraft registered as C-FXOH, you made or caused to be made, with intent to mislead, a false entry entitled "Ferry Tank" in a log that is required to be kept under Part I of the Aeronautics Act, the aircraft journey log, thereby contravening section 7.3(1)(c) of the Aeronautics Act.

Sanction imposed: 30-day suspension of licence.

B. File No. H-3146-33

[4]     This matter was heard parallel with another matter concerning the applicant (file no. H-3146-33) in which he is charged with having conducted 18 take-offs after June 10, 2004 with his aircraft registered as C-FXOH, while it underwent maintenance in connection with the ferry tank, although this work was not certified with a maintenance release signed in accordance with section 571.10 of the Canadian Aviation Regulations (CARs), thereby contravening subsection 605.85(1) of the CARs. The sanction imposed is a fine of $100 per flight, or a total of $1 800, pursuant to sections 7.7 and following of the Act.

[5]     The notice of assessment of monetary penalty reads as follows:

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):

SEE SCHEDULE A

[translation]

1. On or about June 21, 2004, at the St-Mathieu-de-Beloeil Airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

2. On or about June 28, 2004, at the Montréal/St-Hubert airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

3. On or about July 2, 2004, at the Montréal/Pierre-Elliott-Trudeau International Airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

4. On or about July 3, 2004, at the Montréal/St-Hubert airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

5. On or about July 6, 2004, at the Montréal/St-Hubert airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

6. On or about July 6, 2004, at St-Mathieu-de-Beloeil Airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

18. On or about July 18, 2004, at the Isafjordur airport, Iceland, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

7. On or about July 6, 2004, at the Montréal/St-Hubert airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

8. On or about July 8, 2004, at the Sept-Îles Airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

9. On or about July 9, 2004, at the Kangiqsualujjuaq (Georges River) Airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

10. On or about July 9, 2004, at the Kuujjuaq Airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

11. On or about July 10, 2004, at the Kangirsuk Airport, Quebec, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

12. On or about July 10, 2004, at the Pangnirtung airport, Nunavut, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

13. On or about July 11, 2004, at the Qikiqtarjuaq (Broughton) airport, Nunavut, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

14. On or about July 14, 2004, at the Kangerlussuaq/Sondre Stromfjord airport, Greenland, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

15. On or about July 15, 2004, at the Nuuk airport, Greenland as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

16. On or about July 17, 2004, at the Kulusuk, Greenland airport, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

17. On or about July 17, 2004, at the Kulusuk airport, Greenland, as pilot-in-command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

[6]     At the commencement of the hearing, the parties agreed that the evidence submitted by the respondent in file no. H-3147-02 pertaining to the contravention of section 6.9 of the Act would also apply to file H-3146-33 pertaining to the contravention of sections 7.7 and following of the Act.

[7]     Counsel for the applicant stated that he reserved the right to submit different evidence in both files. However, after hearing the respondent's evidence, the applicant decided not to adduce any evidence in either file, and the Tribunal's decision in respect of the evidence presented by the Minister will apply to both file no. H-3147-02 and file no. H-3146-33.

[8]     The respondent called four witnesses:

  • Jean-François Mathieu, responsible for enforcement of the Act in Ottawa, Transport Canada;
  • Éric Landry, AME;
  • Philippe Couillard, AME;
  • Michel Paré, inspector, Transport Canada.

[9]     The applicant called no witnesses and elected not to testify in this case, as he is allowed under subsection 6.9(7.1) of the Act.

[10]     At the hearing, the applicant presented a preliminary motion concerning the admissibility of the copy of the journey log filed by the respondent which included the false entry alleged in the notice of suspension and the 18 take-offs conducted after June 10, 2004 alleged in the notice of assessment of monetary penalty. According to the applicant, the Minister has the onus to demonstrate that the original was not available and that efforts were made to obtain the original document, which he failed to do. Accordingly, the copy of the journey log does not constitute the best evidence and is therefore inadmissible.

[11]     For the reasons set out in the decision of February 15, 2006, given by conference call, this motion was dismissed.

[12]     The Tribunal is not bound by the strict rules of evidence and must render its decision informally in accordance with the principles of fairness and natural justice. In terms of the objection, it was held that the copy was admissible as evidence, but that the Tribunal reserved the right to assess its probative force after hearing all of the testimony and evidence in this case. It should also be noted that the Minister adduced in evidence a letter from the Icelandic civil authorities as exhibit M-4 signed by an inspector of the Icelandic civil aviation authorities, who attests that he obtained the original of the journey log, states that he photocopied the original of the journey log himself and attests that it is a true copy of the journey log sent to Transport Canada. In the Tribunal's decision on the objection, it was held that this letter from the Icelandic civil authorities certifying the true copy of the journey log was sufficient to establish prima facie evidence of the content of the journey log since the Minister of Transport never had the original of the journey log in his possession and would have required extraordinary procedures to obtain the original, given the applicant's refusal to cooperate in this case. The applicant could, if necessary, adduce evidence to the contrary of this prima facie evidence at the hearing to show that the copy was not a true copy of the original or that he did not have the original in his possession so that it was impossible for him to verify the authenticity of the copy to the original.

II. PRELIMINARY MOTIONS

[13]     After commencing the hearing and hearing the testimony of Mr. Mathieu, a witness for the respondent, the applicant filed five additional motions on March 16, 2006. The particulars of these motions are as follows:

  • Particulars of alleged contraventions: The applicant argued that the notice of assessment of monetary penalty and the notice of suspension were alleged in general terms that in neither case allowed him to identify the exact nature of the alleged contraventions and in what way the so poorly identified act or omission constituted a violation. As formulated, the applicant argued, the charges laid were so general and nebulous that it was impossible to adequately defend.
  • Disclosure of evidence in the language of the applicant: The applicant asked that the documents written in the English language sent by the respondent Minister in the context of the disclosure of evidence be translated.
  • Disclosure of photographic evidence: The applicant also objected to the production of the copies of photographs submitted by the Minister as exhibit M-2, which were taken by the Icelandic civil aviation authorities. The applicant argued that the copies of the photographs could not be put in evidence unless one was in possession of the original and the photographer was called to establish the facts and circumstances of the taking, development (if applicable) and printing of the photos in question.
  • Disclosure of evidence from abroad: The applicant also objected to the production of a set of documents originating directly or indirectly from outside the country (Iceland) without the possibility of examining or cross-examining the sources of these documents.
  • Official's Misconduct: Finally, the applicant filed a motion for a stay of proceedings on the ground that the testimony of Mr. Landry, AME, was inadmissible since he was unduly pressured by the respondent to submit a statement. The process undertaken by the respondent's inspectors to obtain Mr. Landry's testimony brought the administration of justice into disrepute and so tainted the entire adversarial process as to require the ultimate procedural remedy, the definitive stay of proceedings.

[14]     An additional conference call was held on May 5, 2006 to deal with the applicant's motion for particulars, to the effect that the notice of assessment of monetary penalty and notice of suspension were insufficiently clear to enable him to defend himself.

III. DECISION ON THE PRELIMINARY MOTIONS

[15]     By the time this conference call was held, the applicant had already received the translation of all of the respondent's documents written in English and delivered in the disclosure of evidence process, so the second motion was already settled. Also, during this conference call, the Tribunal ruled that the last three motions (disclosure of photographic evidence, disclosure of evidence from abroad and official's misconduct) would be addressed in the course of the hearing after an assessment of the evidence in its entire context, since these motions sought to attack evidence that was not yet adduced and testimony that was not yet given. The Tribunal preferred to hear all of the respondent's evidence, assess its probative value and the credibility of the witnesses before ruling on the preliminary objections raised by the applicant.

[16]     Consequently, during the conference call of February 15, 2006, the Tribunal had to decide whether the two notices respectively issued by the Minister in files H-3146-33 and H-3147-02 were sufficiently detailed to enable the applicant to reasonably know the reasons why he was being charged. In short, the question before the Tribunal was the following: Was the applicant reasonably informed of the charges so that he had an opportunity to present a full defence and obtain a fair hearing?

[17]     At the conclusion of this conference call, and after hearing the submissions of both parties, the Tribunal answered this question in the affirmative and concluded that the applicant was reasonably informed of the charges so that he had an opportunity to present a full defence and obtain a fair hearing. In file H-3147-02, concerning the notice of suspension of the applicant's licence under section 6.9 of the Act, the notice of suspension includes the date of the offence, June 10, 2004, and it clearly identifies all of the information required in subsection 103.06(1) of the CARs, including:

  • the section under which the notice of suspension is sought, section 6.9 of the Act;
  • the legal provision that the applicant has contravened (paragraph 7.3(1)(c) of the Act) warranting a suspension under section 6.9 of the Act;
  • in what capacity the applicant is being charged, i.e. as registered owner of the aircraft;
  • the aircraft for which the journey log was allegedly falsified and the alleged contraventions, i.e. a false entry regarding an auxiliary tank (ferry tank) in the aircraft journey log:

[translation] . . . you made or caused to be made, with intent to mislead, a false entry entitled "Ferry Tank" in a log that is required to be kept under Part I of the Aeronautics Act . . .

[18]     Also in the course of this conference call, the respondent explained to the applicant that the entry concerning the ferry tank was false and misleading on the ground that it suggested that some maintenance work on this equipment was given a maintenance release when this was false. This explanation, given orally during the conference call, could readily be inferred as well from the notice of assessment of monetary penalty in file no. H-3146-33 being dealt with in a common hearing.

[19]     Accordingly, the applicant was in a position to know that the alleged false entry concerned a ferry tank for an entry in the journey log dated June 10, 2004 and that this entry was misleading because it falsely suggested that it was given a maintenance release. Consequently, before presenting his defence, the applicant could obtain all the necessary information and make all the appropriate verifications to demonstrate that this entry was not false and was not made with intent to mislead, or that he was not the author thereof.

[20]     As to the notice of assessment of monetary penalty in file no. H-3146-33, this notice provided enough information to the applicant to enable him to know that he was being charged with having conducted 18 take-offs when some maintenance work on a part, the ferry tank, on June 10, 2004, had not been certified through a maintenance release pursuant to section 571.10 of the CARs. More particularly, the notice of assessment of monetary penalty indicates the information required in section 103.08 of the CARs, including:

  • the legal provisions concerned, i.e. the requisite formalities for the maintenance release (section 571.10 of the CARs);
  • the legal provisions that were contravened (subsection 605.85(1) of the CARs);
  • the legal provisions pursuant to which a fine is imposed (section 7.7 of the Act);
  • the date of all take-offs conducted without a maintenance release;
  • in what capacity the applicant is being charged, i.e. as pilot-in-command;
  • that the maintenance for which a maintenance release was not signed concerned a ferry tank entered on June 10, 2004;
  • the identification of the aircraft in question;
  • the alleged facts, namely that the applicant conducted 18 flights after June 10, 2004 while the aircraft was subject to maintenance concerning a ferry tank entry in the journey log dated June 10, 2004, without this work being certified through a maintenance release as described in section 571.10 of the CARs; and
  • the amount of the fine and the terms of payment and the description of the procedures for disputing the notice of assessment of monetary penalty.

[21]     The facts alleged in respect of the notice of suspension therefore enabled the applicant to understand that, according to the Minister, some maintenance work was done on the ferry tank for which a maintenance release was required under the Act and that such release was not completed, as a result of which the applicant was prohibited from conducting take-offs with his aircraft after June 10, 2004. The allegation was sufficient to enable the applicant to defend against the imposed fine since he was able to obtain the appropriate information and documentation to demonstrate, for example, that the work done on the ferry tank was not maintenance work that required certification, that no work was done on a ferry tank, or that the ferry tank was not on board the aircraft at the time of the alleged take-offs.

[22]     Consequently, the respondent did not have to detail in the notice what type of work was done on the ferry tank. If, according to the applicant, the respondent had to prove what type of work was done on the ferry tank in order to impose a fine on the applicant, the latter could submit this argument in defence.

[23]     It was also surprising, to say the least, if not irresponsible, for the applicant to file this motion late, after the hearing had begun. The Tribunal ventures to doubt the applicant's credibility when he alleges to be unable to defend himself because of the lack of detail in the notice of suspension and notice of monetary penalty. If the applicant was so confused, would he not have presented his motion even before a hearing date was set or at least before the hearing began?

[24]     For all of these reasons, the applicant's motion for particulars was dismissed during the conference call held on February 15, 2006.

IV. LAW

[25]     Paragraph 7.3(1)(c) of the Act provides:

7.3 (1) No person shall

. . .

(c) make or cause to be made any false entry in a record required under this Part to be kept with intent to mislead or wilfully omit to make any entry in any such record;

[26]     Section 6.9 of the Act reads:

6.9 (1) If the Minister decides to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued has contravened any provision of this Part or of any regulation, notice, order, security measure or emergency direction made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at that person's latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

. . .

(3) Where the holder of a Canadian aviation document or the owner or operator of any aircraft, airport or other facility in respect of which a Canadian aviation document is issued who is affected by a decision of the Minister referred to in subsection (1) wishes to have the decision reviewed, he shall, on or before the date that is thirty days after the notice is served on or sent to him under that subsection or within such further time as the Tribunal, on application by the holder, owner or operator, may allow, in writing file with the Tribunal at the address set out in the notice a request for a review of the decision.

. . .

(7) At the time and place appointed under subsection (6) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner or operator affected by the decision, as the case may be, with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension or cancellation under review.

[27]     On September 3, 2002, the Federal Court of Canada, Trial Division, in Canada (Attorney General) v. Woods, 2002 FCT 928, held that the Tribunal had jurisdiction to review issues concerning contraventions of section 7.3 of the Act when the Minister of Transport decides to suspend or cancel a Canadian aviation document on the ground that someone contravened subsection 7.3(1) of the Act.

[28]     The Federal Court so decided even though paragraph 7.3(1)(c) required an element of intention. In that case, the holder of the aviation document contended that the Civil Aviation Tribunal had no jurisdiction to hear or review an offence in a class requiring mens rea, so the Minister should have used the indictable procedure or summary conviction procedure in the case of an offence listed in subsection 7.3(1) of the Act. Briefly put, Mr. Woods argued that when the Minister proceeds following an offence under subsection 7.3(1) of the Act, it is subsection 7.5(1) and not section 6.9 that should be used to prohibit further use of a pilot's licence. The Federal Court rejected Mr. Woods' argument and instead held that subsection 7.3(1) of the Act presents a list of provisions under which the contravention may result in suspension under section 6.8 and subsection 6.9(1) of the Act. The Federal Court further held that section 8.5 of the Act allowing the defence of due diligence was not incompatible with this interpretation. In particular, the Court concluded that if wilful conduct such as that covered by subsection 7.3(1) is made out, there will be no question of due diligence. Making false entries with the intention to mislead is totally inconsistent with due diligence to prevent that contravention. Conversely, however, the Federal Court held that if due diligence to prevent any contravention was established, it is difficult to see how the required mens rea could be found.

[29]     Concerning the probative value of an entry in the journey log, section 28 of the Act provides as follows:

28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

[30]     Subsection 605.92(1) of the CARs provides:

605.92 (1) Every owner of an aircraft shall keep the following technical records in respect of the aircraft:

(a) a journey log . . . .

[31]     Section 605.85 of the CARs concerning a maintenance release stipulates:

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

. . .

(4) No maintenance release is required in respect of tasks identified as elementary work in the Aircraft Equipment and Maintenance Standards.

[32]     The expression "maintenance release" is defined as follows in subsection 101.01(1) of the CARs:

"maintenance release" means a certification made following the maintenance of an aeronautical product, indicating that the maintenance was performed in accordance with the applicable provisions of these Regulations and the standards of airworthiness[.]

[33]     The same subsection defines the expression "elementary work" as follows:

"elementary work" means those tasks that are listed as elementary work in the Aircraft Equipment and Maintenance Standards[.]

[34]     Section 571.10 of the CARs stipulates:

571.10 (1) No person shall sign a maintenance release required pursuant to section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

(2) Except as provided in subsection (4), a maintenance release shall include the following, or a similarly worded, statement:

"The described maintenance has been performed in accordance with the applicable airworthiness requirements."

(3) No maintenance release is required in respect of any task designated as elementary work in the Aircraft Equipment and Maintenance Standards that is performed by

(a) in the case of a glider, a balloon or an unpressurized small aircraft that is powered by a piston engine and not operated pursuant to Part IV or VII, the pilot of the aircraft;

(b) in the case of an aircraft operated under Part IV or VII, a person who has been trained and authorized in accordance with the flight training unit's or the air operator's maintenance control manual (MCM), approved under Subpart 6 of Part IV or of Part VII, respectively; or

(c) in the case of an aircraft operated pursuant to Subpart 4 of Part VI, a person who has been trained in accordance with those sections of a private operator's operations manual that contain details of the operator's maintenance control system . . . .

[35]     Subsection 571.11(1) states:

571.11 (1) Except as provided in subsections (2) and (7), no person other than the holder of an aircraft maintenance engineer (AME) licence issued under Part IV, specifying a rating appropriate to the aeronautical product being maintained, shall sign a maintenance release as required by section 571.10.

[36]     Appendix A of the Aircraft Equipment and Maintenance Standards, entitled "Elementary Work" (standard 625), provides an exhaustive list of what constitutes elementary work. More particularly, the first paragraph of appendix A provides:

The following list is exhaustive; if a task is not listed, it is not elementary work. Elementary work is a form of maintenance that is not subject to a maintenance release. Hence, it need not be performed by a holder of an AME licence, or by persons working under an AMO certificate. The owner is responsible for controlling authorizations to persons who may perform elementary work.

[37]     This list of elementary work includes 29 tasks and none of the tasks described in this list relates to a ferry tank.

[38]     Considering section 605.92 of the CARs, it is not disputed that an aircraft owner has a duty to keep a journey log for his or her aircraft and that it is required to be kept under the Act.

[39]     Considering sections 571.11 and 605.85 of the CARs and the Aircraft Equipment and Maintenance Standards, maintenance work, in contrast to elementary work, must be certified by the signing of a maintenance release by an AME and this certification must fulfill the requirements of section 571.10 of the CARs.

V. ISSUES

[40]     The issues are the following:

  1. Has the respondent established on a balance of probabilities that the applicant is the registered owner of the aircraft registered as C-FXOH?
  2. f so, has the respondent established on a balance of probabilities that the applicant's aircraft journey log included a ferry tank entry on June 10, 2004?
  3. If so, has the respondent established on a balance of probabilities that this entry was false and that the applicant made it or caused it to be made with intent to mislead?
  4. Has the respondent established on a balance of probabilities that the applicant was the pilot-in-command of aircraft C-FXOH and that as such, he conducted the take-offs of this aircraft on the dates and from the airports described in schedule A of the notice of assessment of monetary penalty, i.e. the 18 take-offs entered between June 21 and July 18, 2004 in the aircraft journey log?
  5. f so, has the respondent established on a balance of probabilities that, during these take-offs, the aircraft was equipped with a ferry tank and that it underwent maintenance concerning the ferry tank entry in the aircraft journey log dated June 10, 2004?
  6. If so, has the respondent established that this maintenance work was not given a maintenance release signed pursuant to section 571.10 of the CARs?

VI. EVIDENCE

A. Respondent's evidence

(1) Jean-François Mathieu

[41]     Mr. Mathieu testified primarily on the fact that he received an investigation file completed by the Icelandic civil aviation authorities which contained letters from an Icelandic civil aviation inspector, a certified true copy of the journey log of aircraft C-FXOH and some copies of photographs. These exhibits were filed as M-1, M-2, M-3 and M-4. With respect to exhibit M-4, the civil aviation inspector, Hreiðar Páll Haraldsson, attests that he took the photographs and made a photocopy of the aircraft journey logbook, which was given to him directly by the applicant, Mr. Grenier, who was accompanied by his counsel, when an investigation was held in Iceland following the crash of aircraft C-FXOH in Iceland. Mr. Haraldsson also attests to the accuracy and truthfulness of the information provided with respect to exhibit M-4. In his letter dated July 27, 2004 (exhibit M-1), the inspector, Mr. Haraldsson, states that he was able to find from his inspection that a ferry fuel tank was installed in aircraft C-FXOH on June 10, 2004, and, in support of his inspection, he sent Transport Canada the photographs of the ferry tank that he took and some entries in the journey log that he photocopied, referring to a maintenance release concerning a ferry tank on June 10, 2004.

[42]     No Icelandic civil aviation inspector testified at the hearing since it appears from an email (exhibit M-5) that the representatives of the Icelandic civil authorities refused to be personally involved as witnesses in a foreign hearing.

[43]     Counsel for the applicant objected to the admissibility in evidence of the nine copies of photographs taken in Iceland, which are attached to the letter (exhibit M-1), on the ground that these are not original photographs and are produced without the possibility of establishing the facts and circumstances of the taking, development and printing of the photographs in question. At the hearing, this objection was upheld since the respondent did not produce the original photographs or call the author, so the trustworthiness of the copies could not be established. However, if the respondent had produced the original photographs, the Tribunal is of the opinion that these original photographs, combined with the testimony of the Icelandic civil aviation authorities (exhibit M-4) would have allowed the Tribunal to assign necessary accuracy of these photographs. Consequently, for the purposes of this decision, the Tribunal cannot consider the copies of photographs that purport to establish the presence of the ferry tank in the aircraft on June 10, 2004.

[44]     Mr. Mathieu also stated that after examining these documents, he decided to turn the file over to the Transport Canada inspector, Mr. Paré, to conduct an investigation since the documents suggested to him that Mr. Grenier might have contravened the CARs. Mr. Mathieu's attention was drawn to the fact that Mr. Grenier could not have provided any documentation to the Icelandic civil aviation authorities concerning the installation of a ferry tank that was on the aircraft at the time of the accident.

[45]     Mr. Mathieu also stated that he never had the original of the aircraft journey log in his possession and that he relied on the true copy submitted by the Icelandic civil aviation authorities. Mr. Mathieu then filed as exhibit M-3 a copy of the journey log of aircraft C-FXOH. As mentioned earlier, counsel for the applicant objected to the admissibility in evidence of the copy of the journey log in the absence of any evidence by the respondent that the respondent was unable to obtain the original after making reasonable efforts. For the reasons already set out previously, and in the decision made by conference call on February 15, 2006, the Tribunal decided that the copy of the journey log was admissible as evidence, but that its probative force would be assessed once all the evidence was heard. Indeed, since the respondent never did possess the original of the journey log (Mr. Mathieu's testimony), never inspected the aircraft, was not given any cooperation by the applicant notwithstanding a request to that effect and obtained testimony by the airworthiness inspector of the Icelandic civil aviation authorities that he made a photocopy of the journey log himself, a copy of this journey log (exhibit M-3) was ruled admissible in evidence. It was decided that it would not be reasonably convenient to force the respondent to get a search warrant to obtain the original of the journey log when the respondent is in possession of a certified true copy by a public authority. Furthermore, there was nothing to prevent the applicant from adducing rebuttal evidence to show that the photocopy (exhibit M-3) was not consistent with the original, was incomplete or that he could not verify the copy because he did not have the original in his possession. The applicant's objection to the evidence concerning exhibit M-3 was therefore overruled and the probative force of this copy is analyzed later in this decision. In Cassiar Mountain Outfitters v. Canada (Minister of Transport), [1996], appeal determination, W-0244-37 and W-0243-33 (CAT), [1996] C.A.T.D. no. 49 at ¶ 21 (QL), the Tribunal, sitting on appeal, decided that a copy of a log, certified to be a true copy of the original by the person who photocopied it, was admissible and was proof of the matters stated therein under section 28 of the Act, in the absence of evidence that it was falsified or was erroneous or incomplete.

(2) Éric Landry

[46]     Mr. Landry is an AME with Aviamax Inc., a company that generally looks after the maintenance of aircraft C-FXOH in Beloeil. At the very outset of Mr. Landry's testimony, counsel for the applicant moved for a dismissal of proceedings and, to that effect, asked that a voir dire be held to discuss the misconduct of the Transport Canada official in the course of the investigation. Counsel argued that exhibits D-2 to D-7 filed by the applicant show that Mr. Paré threatened a suspension of the AME licence against Mr. Landry in order to obtain a statement from him that he did not fill in the ferry tank entry in the course of his maintenance release in the journey log (exhibit M-3).

[47]     On October 21, 2004, Mr. Paré of Transport Canada wrote to Mr. Landry to follow up on their telephone conversation of August 18th concerning an investigation into the facts surrounding the installation of a ferry fuel tank on aircraft C-FXOH. This letter of October 21, 2004 (exhibit D-4) is accompanied by a draft statement (exhibit D-5) prepared by Mr. Paré following the version of the facts recounted by Mr. Landry concerning the installation of a ferry fuel tank. In his letter (exhibit D-4), Mr. Paré asks Mr. Landry to fill in the missing information on the statement, where necessary, to sign and date it only if Mr. Landry is in full agreement with the statements contained therein and to return it in the envelope accompanying the statement.

[48]     Several months after sending this statement, Mr. Paré contacted Mr. Landry to find out whether he would be prepared to sign the statement that was sent to him in late October 2004. The record of Mr. Paré's telephone call (exhibit D-7) indicates that Mr. Landry told him that, pursuant to a consultation with a lawyer, he now wanted to refrain from providing a statement in this matter. Mr. Landry also mentioned that his colleague, Philippe Couillard, also wished to refrain from any statement. This memo (exhibit D-7) by Mr. Paré therefore indicates that he recommended preparing a letter of investigation to be sent to Mr. Landry for a possible contravention of subsection 571.10(1) of the CARs.

[49]     On January 28, 2005, Mr. Paré wrote to Mr. Landry (exhibit D-3) to tell him that Transport Canada was investigating an alleged offence by him under subsection 571.10(1) of the CARs, which in part prohibits anyone from signing a maintenance release required under section 605.85 of the CARs unless the standards of airworthiness applicable to the maintenance performed and stated in chapter 571 of the Airworthiness Manual were complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual. Letter D-3 states more specifically that Mr. Paré was investigating whether the maintenance release dated June 10, 2004 in the journey log of aircraft C-FXOH and signed by Mr. Landry failed to comply with the standards set out in section 571.10 of the Airworthiness Manual, given the absence of a brief description of the work performed concerning the ferry tank entry and the lack of any reference to the weight and balance modifications in the journey log, contrary to what is required by appendix C of standard 571. This letter asks Mr. Landry to cooperate with the investigation, but states that he is not obliged to answer this letter from Transport Canada or to say anything to the investigator, Mr. Paré.

[50]     On February 10, 2005, Mr. Paré sent the following statement to Mr. Landry (exhibit D-2) by fax: [translation] "As discussed, upon receipt of the witness statements that you have agreed to return to me duly signed, I will send you a letter that will confirm my intentions to close the above-referenced file with no action."

[51]     Finally, on June 10, 2005, Mr. Mathieu of Transport Canada wrote to Mr. Landry to tell him that, in view of the information collected during the investigation and the information exchanged in their telephone conversation, Transport Canada agreed not to take any action against Mr. Landry and to close the investigation in his regard (exhibit D-6).

[52]     The applicant argues that Mr. Paré's conduct constitutes a threat to Mr. Landry that discredits the administration of justice since the sole purpose in sending a notice of investigation (exhibit D-3) was to force him to testify against the applicant in these matters. The closing of Mr. Landry's investigation (exhibit D-6) upon receipt of his written statement shows that it was a threat of prosecution made in bad faith. The applicable sanction in such a situation would be the complete dismissal of the proceedings against Mr. Grenier, the applicant.

[53]     At this stage of the hearing, the Tribunal ruled that this motion was premature since not all of the Minister's evidence had yet been submitted. More particularly, Mr. Landry's testimony was not yet given nor that of Mr. Paré, the Transport Canada inspector. The Tribunal also reminded the applicant that an administrative tribunal is required to apply the test of the balance of probabilities in the administration of its evidence and not that of proof beyond a reasonable doubt applied in a criminal trial. The Tribunal is governed by section 15 of the Transportation Appeal Tribunal of Canada Act, which states that the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it. Accordingly, all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit, and all parties must also be given an opportunity to submit their evidence. In this case, the Department did not file the voluntary statements made by Messrs. Couillard and Landry and the Tribunal had to allow the respondent to submit all of its evidence before addressing the applicant's argument as to the misconduct of the Transport Canada official.

[54]     In this case, all witnesses were present, they could be cross-examined to find out whether they felt they were forced to come and testify at the hearing. So it was decided that the Tribunal would hear the evidence as a whole and assess the credibility of all witnesses — Messrs. Landry and Couillard, the AMEs, and Mr. Paré, the Transport Canada inspector — to determine whether the Minister's investigative process in this matter so discredited the administration of justice that the proceedings should be dismissed.

[55]     In his testimony, Mr. Landry stated that the applicant was a regular client of his business and that he regularly worked on the applicant's aircraft. Mr. Landry is well acquainted with the applicant's aircraft in this case, a Helio aircraft, and acknowledges that he performed the maintenance work appearing in the journey log (exhibit M-3) on June 10, 2004. In particular, Mr. Landry acknowledged that document M-3 is, regarding the entry of June 10, 2004, a true copy of the journey log of the applicant's aircraft C-FXOH. He acknowledged that he removed the floats and added wheels on this aircraft on June 10, 2004. He acknowledged his entries in the journey log and that he filled out the maintenance release to the right of this entry. However, Mr. Landry clearly stated that he did not make the ferry tank entry appearing under the description of tasks concerning the work done to remove the floats and to add the wheels and this ferry tank entry was not affixed by the apprentice working with him or by Mr. Couillard, who is the other AME in the firm. Mr. Landry does not know who made the entry regarding the ferry tank. Mr. Landry also confirmed that on June 10, 2004, there was no ferry fuel tank in aircraft C-FXOH and that he did not do any work on the ferry tank.

[56]     On cross-examination, Mr. Landry admitted that the applicant's journey log is accessible by several persons other than the applicant since some of the applicant's friends had access to his aircraft. Mr. Landry also admitted that aircraft C-FXOH could easily be located in more than one unsupervised location at the Beloeil airport. Mr. Landry stated that Mr. Paré of Transport Canada contacted him to obtain details about the ferry tank entry in the aircraft journey log and that he voluntarily provided his version of the facts to Mr. Paré, that is, neither he nor the apprentice assisting him made the ferry tank entry in the aircraft journey log, they did not do any work on a ferry tank and they noted that the aircraft was not equipped with such a tank on June 10, 2004. However, Mr. Landry mentioned that he told Mr. Paré that he did not want to sign a written statement of his version of the facts since the applicant was one of his clients and, to repeat his expression, he [translation] "felt that he was in conflict", that is, caught between [translation] "a rock and a hard place". Following Mr. Landry's refusal to make a written statement, Mr. Paré then told him that he would have to conduct an investigation on him as well if he refused to cooperate. Mr. Landry says he felt a [translation] "certain pressure" from Mr. Paré to have him sign a written statement and, since Mr. Paré was to conduct an investigation on him, Mr. Landry finally agreed to provide a written statement. Mr. Landry stated that he would not have signed a statement if there had not been an investigation on him. Mr. Landry then asked Mr. Paré of Transport Canada to confirm that he was no longer under investigation since he was providing the statement voluntarily.

(3) Philippe Couillard

[57]     Mr. Couillard is the other AME employed by Aviamax Inc. who did maintenance on the applicant's aircraft C-FXOH on June 10, 2004. Mr. Couillard acknowledged having done some maintenance work on this aircraft on two occasions since he recognized two of his maintenance releases in the copy of the journey log (exhibit M-3). Mr. Couillard also confirmed that he did not make the ferry tank entry in the journey log on June 10, 2004. He stated that the ferry tank was not on board aircraft C-FXOH on June 10, 2004 and he also confirmed that he did not install or participate in the installation of a ferry fuel tank on aircraft C-FXOH on June 10, 2004.

(4) Michel Paré

[58]     Mr. Paré was the Transport Canada inspector in charge of the investigation in this matter. He stated that Mr. Mathieu provided him with the Icelandic civil aviation authorities' file and the purpose of his investigation was primarily to verify the compliance of the installation of a ferry tank on the aircraft involved in an accident in Iceland. In fact, the documentation submitted by the Icelandic civil aviation authorities indicated that Mr. Grenier was unable to provide them with any documentation pertaining to the installation of a ferry tank and the verifications by Mr. Paré were to determine whether the installation of the ferry tank could be made without obtaining a supplementary airworthiness certificate. Mr. Paré's investigation was primarily based on the entry found in exhibit M-3, the true copy of the aircraft journey log dated June 10, 2004, which describes certain maintenance work and, more particularly, the removal of floats from the aircraft and installation of wheels. This work was certified by the AME, Mr. Landry. Mr. Paré determined that the maintenance work was performed by Mr. Landry after verifying the licence number of the AME appearing to the right of the entry of June 10, 2004 in exhibit M-3. Following the entry of June 10, 2004, we find on the same line as well the addition of the expression "ferry tank" and this addition is part of the maintenance release issued by Mr. Landry in the journey log (exhibit M-3). This addition immediately follows the description of the work on the floats and wheels which is dated June 10, 2004 and is not separated from it at all, appearing on the same line.

[59]     After examining this entry in the journey log, Mr. Paré contacted Mr. Landry to obtain further information about the work done on the ferry tank on aircraft C-FXOH. During his telephone conversation with Mr. Landry, Mr. Paré was surprised to find that Mr. Landry did not perform any installation or did any work in respect of a ferry tank. Mr. Landry confirmed that he did not make the ferry tank entry, but that he did the rest of the maintenance work indicated as of June 10, 2004, that is, removal of the floats and addition of wheels on the aircraft. This maintenance work was done with the assistance of an apprentice technician, Daniel Perras; Mr. Couillard, AME, also participated in the maintenance work performed on the aircraft on June 10, 2004.

[60]     As a result of this information, Mr. Paré's investigation took a new turn since he was now confronted with a false entry in the journey log. In effect, the person who carried out the maintenance work and signed the maintenance release was telling him that he and his colleagues never did any work on a ferry tank although this entry was located opposite his maintenance release. During his telephone conversation, Mr. Paré was also informed that Mr. Couillard, the other technician who worked on aircraft C-FXOH, did not make this entry in the aircraft journey log either. And during this telephone conversation, Mr. Landry told Mr. Paré that there was no ferry tank on board the aircraft on June 10, 2004 when he signed his maintenance release, and Mr. Couillard's opinion was to the same effect. Mr. Paré then asked Messrs. Landry and Couillard if they were prepared to submit written statements as to the subject matter of the telephone conversation, which they agreed to do.

[61]     Mr. Paré subsequently prepared draft statements that he sent to Messrs. Landry and Couillard for them to make any necessary modifications and return the duly signed statements to him.

[62]     To his surprise, a few months after contacting Messrs. Landry and Couillard, they told Mr. Paré that they would now prefer not to sign any written statements, having consulted their counsel (exhibit D-7). At the hearing, Mr. Paré indicated that without a written statement by the two AMEs, he had a problem with his investigation since he no longer had any evidence against the pilot, Mr. Grenier, regarding the ferry tank entry in the journey log. Since it was also presumed that the ferry tank entry in the journey log was by the person who signed the maintenance release under section 28 of the Act and since Mr. Landry refused to confirm that he was not the person who made the entry, Mr. Paré found himself in a situation in which he also had to investigate the actions of Mr. Landry. Because the ferry tank entry did not meet the standards in the Airworthiness Manual, given the lack of a brief description of the work done on a ferry tank, Mr. Landry also became an "alleged offender" under the Act and the CARs.

[63]     In this situation, Mr. Paré told the Tribunal that he had no alternative but to advise Mr. Landry that he was now under investigation since he was refusing to confirm his version of the facts and he would have no alternative but to send him a notice to the effect that he was under investigation. Accordingly, Mr. Paré prepared the letter filed as exhibit D-3, notifying Mr. Landry that the Department of Transport had to investigate him regarding the ferry tank entry appearing in the journey log (exhibit M-3) dated June 10, 2004, and that he was asking Mr. Landry to send him his comments, if applicable. After sending this letter, Mr. Paré finally received the two written statements of Messrs. Landry and Couillard, and Mr. Landry asked him to confirm in writing that the investigation was closed with regard to him.

[64]     The Minister did not file these written statements at the hearing since the two witnesses were available to testify in both cases at issue.

[65]     On cross-examination, counsel for the applicant attempted to get Mr. Paré to admit that he tried to threaten investigation on Mr. Landry to obtain a statement from him. However, Mr. Paré denied this and instead explained that the circumstances of the investigation meant that he had no choice but to carry out an investigation regarding Mr. Landry if the latter could not confirm his version in writing. Mr. Paré also told the Tribunal on cross-examination that he did not put any pressure on Mr. Landry to obtain his statement and he never had any intention of using the investigation as a negotiating tool.

[66]     Mr. Paré added that he had given Mr. Landry an opportunity to modify his written statement or contact him if he had any questions and he took steps to give Mr. Landry enough time (at least three months) to respond to these requests. Mr. Paré said he did not want to put any pressure on Mr. Landry.

[67]     Mr. Paré also stated in the course of his testimony that he contacted the applicant, Mr. Grenier, to get his version of the facts, but the latter preferred not to provide any statement or cooperation in this matter as he is entitled to do under the Act.

[68]     Mr. Paré also stated that he contacted a representative of Bel Air Aviation following Mr. Landry's suggestion since the latter suspected that the applicant arranged with this company to install the ferry tank. When Mr. Paré contacted Bel Air Aviation representative, he was told that the applicant indeed purchased a set of parts for installation of a ferry tank. Counsel for the applicant objected to this on the ground that this evidence constituted hearsay and was inadmissible as evidence in this case. Since the Bel Air Aviation representative was not called as a witness at the hearing, the applicant was unable to cross-examine him. The Tribunal agrees with the applicant's argument that this evidence cannot be considered for the purposes herein.

[69]     Having received the written statements from the two AMEs that they did not do any work on a ferry tank on June 10, 2004, that they never entered a ferry tank reference in the aircraft journey log on June 10, 2004 and that, according to them, there was no ferry tank in the aircraft at that time, Mr. Mathieu of Transport Canada confirmed in writing to Mr. Landry, at the latter's request, that he was terminating any investigation on him in this case. This letter was filed as exhibit D-6.

[70]     The Minister's evidence was therefore completed by the deposition of these four witnesses and by the filing of the following documents through the inspector, Mr. Paré: a certificate of registration for aircraft C-FXOH (exhibit M-7), a certificate of airworthiness for aircraft C-FXOH (exhibit M-8), and a computer printout (exhibit M-9) from the Transport Canada internal database attesting that the applicant, Mr. Grenier, holds a pilot licence from Transport Canada.

[71]     These documents clearly establish that the owner of aircraft C-FXOH is the applicant and he also holds a commercial pilot licence issued by Transport Canada.

B. Applicant's evidence

[72]     The applicant's evidence is limited to issues raised by the cross-examinations of Messrs. Mathieu, Landry and Paré and the filing of exhibits D-1 to D-7 concerning Mr. Paré's investigation and the correspondence exchanged between Messrs. Paré and Landry.

[73]     On cross-examination, Mr. Mathieu admitted that he never obtained the original of the journey log for aircraft C-FXOH. Mr. Paré, the investigator in charge of the file, also admitted he never asked to obtain the original of the journey log since, according to the information he obtained from the Icelandic authorities, the aircraft was damaged in Iceland as a result of a crash and he assumed that the journey log remained in Iceland in the aircraft. Mr. Paré also admitted that he did not take any actual steps to go and inspect the aircraft or to obtain the journey log other than his request for the cooperation of the applicant, Mr. Grenier, who refused to cooperate in this matter.

[74]     Finally, on cross-examination, Mr. Landry admitted that the applicant's aircraft, based at the Beloeil airport, could occasionally be located either outside or inside in a hangar, so it was accessible by more than one person who knew the applicant and was authorized to use the applicant's aircraft. Mr. Landry admitted, therefore, that persons other than the applicant might have had access to the aircraft journey log.

[75]     The applicant's evidence therefore consisted of casting doubt as to the author of the ferry tank entry in the journey log on June 10, 2004. However, the applicant provided no evidence opposing the Minister's evidence to indicate that the copy of the journey log (exhibit M-3) was not accurate, to show that the aircraft was never equipped with a ferry tank, or to indicate that he was not the author of the ferry tank entry.

VII. ARGUMENTS

A. Respondent's argument

[76]     The respondent Minister argues that he established all of the elements of the offences appearing in the notice of suspension of the applicant's licence and notice of assessment of monetary penalty for the 18 take-offs listed in schedule A of that notice.

[77]     The Minister submits that under section 28 of the Act, the entries appearing in the journey log (exhibit M-3) are proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, against the owner of the product. In this case, the Minister states that the owner of the aircraft is required under section 605.92 of the CARs to keep a journey log for his aircraft. Thus, in the absence of evidence to the contrary, the entries appearing in the journey log for June 10, 2004, are proof of their content against the aircraft owner, the applicant Mr. Grenier.

[78]     Regarding the offence to paragraph 7.3(1)(c) of the Act that the applicant made or caused to be made a false entry in the journey log with intent to mislead, the Minister argues that by adding the ferry tank entry immediately after the maintenance work performed by Mr. Landry and in direct connection with Mr. Landry's maintenance release regarding removal of the floats and addition of wheels, the applicant was deliberately attempting to make us believe that this entry referred to a maintenance release. The Minister argues as well that the applicant could not be unaware of the existence of this entry since he conducted all of the 18 flights alleged in the notice of assessment of monetary penalty after the entry dated June 10, 2004, and recorded the entries pertaining to these flights in the aircraft journey log.

[79]     The Minister submits that since the ferry tank entry is placed next to the maintenance release on the journey log, it can be inferred that the person who made the entry performed some maintenance work on the aircraft for which a maintenance release was required. If not, the ferry tank entry would be made separately from the release. Furthermore, under the Act, only elementary work does not require a maintenance release and such work is generally elementary tasks such as adjustment of rotating nuts and change of oil. These elementary tasks are described in appendix A of the Aircraft Equipment and Maintenance Standards. The Minister explains that the list of elementary work appearing in this standard is an exhaustive list so that if a job is not listed, it is maintenance work for which a maintenance release is required. In this case, the Minister says that no work done on a ferry tank is elementary work according to the exhaustive list provided in appendix A of this standard. Since we can necessarily deduce that some maintenance work was done on the ferry tank, the Minister does not need to prove what type of maintenance work was done.

[80]     Considering the evidence of Messrs. Landry and Couillard that they did not do any work on the ferry tank on June 10, 2004, and they did not make the ferry tank entry in the journey log (exhibit M-3), and considering also the way in which the ferry tank entry was inserted in the journey log (placed next to the release) and the lack of evidence to the contrary by the applicant, the Minister contends that the applicant made or caused to be made a false entry in the journey log regarding the ferry tank with intent to mislead and, more particularly, to suggest that the maintenance work performed on the ferry tank was given a maintenance release.

[81]     The Minister consequently argues that the applicant has contravened paragraph 7.3(1)(c) of the Act.

[82]     The Minister also argues that the copies of the photographs filed as exhibit M-2 show that the aircraft involved in an accident in Iceland, C-FXOH, had a ferry tank on board at the time of the crash. The person who took these photographs attests to this through his letters M-1 and M-4. However, the person who took the photographs did not testify at the hearing and the original of the photographs was not produced. In the absence of the person who took these photographs and filing of the original of the photographs, the Tribunal is unable to consider a copy of them since the copy is not sufficiently reliable to grant it any probative value.

[83]     The Minister submits, finally, that the onus was not on him to identify the person who made the ferry tank entry in the journey log since the entry in the journey log is proof against the person who was required to keep the record, the owner of the aircraft, in the absence of evidence to the contrary, as provided in section 28 of the Act. This is a reversal of the burden of proof and it is up to the applicant to prove, on a balance of probabilities, that he was not the person who made the false entry.

[84]     The Minister adds that the entire system of mandatory keeping of a journey log is based on mutual trust between the Minister of Transport and the pilots and owners of aircraft and that a false entry clearly breaches this relationship of trust. A breach of this relationship should entail a punitive sanction that is relatively harsh to preclude recidivism. The Minister recommends, therefore, a suspension of the pilot's licence for a period of 30 days. In support of his argument, the respondent submitted the decision in Bailey v. Canada (Minister of Transport), [1992], review determination, O-0318-04 (CAT), [1992] C.A.T.D. no. 38 (QL).

[85]     In Bailey, the mechanic falsely told Transport Canada that toggle switches and circuit breakers were replaced on an aircraft that was immersed in Lake Ontario, with a view to obtaining a new certificate of airworthiness for this aircraft. A 30-day suspension of the AME's licence was imposed. This suspension was imposed in order to deter professionals, who are required to comply with the regulatory regime promulgated by the Act, from providing false information, since they are responsible for air safety. In that case, the Tribunal held that:

. . . Transgressions must be dealt with firmly so as to ensure that the trust which is so necessary in facilitating the regulatory scheme, deters others from betraying the code of ethics which is the foundation of the relationship between Aircraft Maintenance Engineers and others in the aviation community.

[86]     The Minister, on the other hand, submits that the evidence on the ferry tank entry also entails offences for the subsequent take-offs since the applicant conducted several take-offs, 18 in all, after June 10, 2004, although the ferry tank was not given a maintenance release in accordance with the requirements of section 571.10 of the CARs, contravening as well section 605.85 of the CARs. This conclusion is based on the entry in the journey log (exhibit M-3) and also on the testimony of the AMEs, Messrs. Landry and Couillard, that they are not the persons who made the ferry tank entry in the journey log, they did not do any maintenance work on the ferry tank, they did not sign a maintenance release for work on this ferry tank and that there was no ferry tank in the aircraft. Furthermore, since a ferry tank task cannot constitute elementary work for which a maintenance release is not required under subsection 605.85(4) of the CARs, it must be concluded that some maintenance was done on the ferry tank, work that requires a maintenance release under sections 605.85 and 571.10 of the CARs. Finally, since the testimony of the AMEs establishes that there was no ferry tank on board the aircraft at the time of their maintenance work, the ferry tank entry must necessarily concern the installation of that tank, so the tank had to be on board the aircraft during the 18 take-offs that are the subject matter of the notice of assessment of monetary penalty.

[87]     Concerning the take-off locations appearing in the notice of assessment of monetary penalty, a total of 18 take-offs conducted between June 10 and July 18, 2004, appearing in the copy of the journey log (exhibit M-3), the airports where the take-offs took place appear in the second column of the journey log and the codes were interpreted by Mr. Paré, the Transport Canada inspector, using the flight supplement issued by Transport Canada. Mr. Paré also testified that he verified the airports situated in Greenland in order to determine the take-off locations appearing in the journey log. The applicant did not dispute Mr. Paré's interpretation as to the identification of the airports where the take-offs took place by Mr. Paré and transcribed on the notice of assessment of monetary penalty.

B. Applicant's argument

[88]     The applicant generally argues that the Minister has not discharged his onus to prove, on a balance of probabilities, that the applicant made a false entry in the aircraft journey log, that there was a ferry tank on board the aircraft as of June 10, 2004, and that this tank was given a maintenance release.

[89]     The applicant argues in particular that the copy of the journey log (exhibit M-3), on which the respondent's proof primarily rests, is of no probative value since it is a copy and the Minister should have produced the original or demonstrated that it was impossible for him to produce the original. The applicant cites the best evidence rule and argues that in the absence of the best evidence, the copy should be rejected.

[90]     The applicant argues that the investigation conducted by Mr. Paré for the Department of Transport in this case so discredits the administration of justice that the notice of assessment of monetary penalty and the notice of suspension of the applicant's licence should be overruled. The Minister of Transport, he argues, obtained the testimony of the AME, Mr. Landry, through extortion by threatening him with proceedings to suspend his licence. The applicant notes that the documentary evidence, letters D-2 to D-6, shows that Mr. Paré closed the investigation file on Mr. Landry once he obtained a written statement from him. This establishes that the respondent used the threat of prosecution against Mr. Landry solely to force him to provide evidence against the applicant. The applicant argues, in short, that the letters D-2 to D-6 and Mr. Landry's testimony at the hearing demonstrate that Mr. Landry felt obliged to sign a voluntary statement confirming that he was not the person who made the entry dated June 10, 2004 regarding the ferry tank, under threat of suspension of his AME licence. The applicant contends, therefore, that Mr. Landry feared suspension of his mechanic's licence, which is his livelihood and that he had no alternative but to produce a written statement incriminating the applicant. This, he says, demonstrates extortion, which brings the administration of justice into disrepute and warrants a stay of all the proceedings.

[91]     Lastly, the applicant argues that the Minister had the onus of establishing who wrote the ferry tank entry in the journey log (exhibit M-3) and that the applicant intended to mislead. The applicant further submits that the respondent also had a duty to establish the date on which this entry was made and the type of work that was performed on the ferry tank, so the notice of assessment of monetary penalty should be rejected as well as the notice of suspension of the pilot's licence.

[92]     The ferry tank entry is meaningless, the applicant argues, since it fails to indicate what type of work was performed. Counsel for the applicant contends that it cannot be presumed that the ferry tank entry means that a ferry tank had been installed on June 10, 2004. Although section 28 of the Act creates a legal presumption of the entry against the person required to keep the register or the person who made the entry, the applicant argues that, in the absence of any particulars, it is impossible to infer anything whatsoever from the ferry tank entry. The Minister's evidence is full of conjecture and does not even constitute circumstantial evidence, the applicant says.

[93]     Accordingly, since the Minister is unable to prove that the applicant installed a ferry tank on June 10, 2004, or that it is in fact the applicant who made the ferry tank entry in the journey log, the applicant cannot be criticized for having made a false representation in the journey log and the notice of suspension of his licence should be rejected. Moreover, since the Minister is unable to prove that the ferry tank was installed in aircraft C-FXOH on June 10, 2004 — the ferry tank entry does not detail any type of work or maintenance — the Minister cannot prove that the applicant conducted 18 flights although a ferry tank was installed on June 10, 2004 without being given a maintenance release.

[94]     As for the suspension imposed for a contravention of paragraph 7.3(1)(c) of the Act, the applicant submits that it is much too harsh. He has more than 5 000 hours of flight time in his log and owns six aircraft and has used them without a contravention or conviction under the Act as a pilot or owner. Moreover, there is no connection between the work done on the ferry tank, if any, and the aircraft crash.

[95]     Counsel for the applicant submits that this case differs from the Bailey case, cited above at ¶ [84], submitted by the respondent, which involved a false representation concerning the replacement of circuit breakers in order to obtain a certificate of airworthiness for the aircraft, which is directly related to aviation safety. In this case, the Minister did not prove how the work pertaining to the ferry tank affected safety and, since the sanction must also be assessed in terms of objective seriousness, the lack of such evidence warrants a more lenient sanction.

[96]     As to the notice of assessment of monetary penalty, the applicant argues that the 18 fines of $100 constitute multiple convictions for the same facts and submits that a single fine of $100 should be imposed.

VIII. ANALYSIS AND CONCLUSION

A. Probative force of the copy of the journey log

[97]     The applicant elected not to adduce any evidence contrary to the copy of the journey log (exhibit M-3) despite the Minister's evidence made through the two AMEs, Messrs. Landry and Couillard, that the entries appearing in the copy M-3 concerning the maintenance releases they signed are consistent with the maintenance releases they signed on aircraft C-FXOH, except with respect to the ferry tank entry which they never added. In particular, Mr. Landry confirmed that he and the apprentice that he was working with on June 10, 2004 made the entry regarding the removal of the floats and addition of the wheels on aircraft C-FXOH and Mr. Landry confirmed that it was his release, but neither he nor the apprentice, Mr. Perras, were the persons who made the ferry tank entry next to his maintenance release. The testimony of the other AME who participated in the maintenance work on June 10, 2004 is to the same effect. Considering this testimony combined with the certificate of the Icelandic civil aviation authorities filed as exhibit M-4 and considering section 28 of the Act, the Tribunal is of the opinion that the copy of the journey log (exhibit M-3) establishes with probative force the entries appearing in the journey log for June 10, 2004 in the absence of any evidence to the contrary by the applicant.

[98]     Consequently, the applicant's argument that exhibit M-3 has no probative value is rejected.

B. Official's misconduct / dismissal of proceedings

[99]     The Supreme Court of Canada, in R. v. Power, [1994] 1 S.C.R. 601, reaffirmed that in criminal matters, the courts have a residual discretion to remedy an abuse of the court's process, but only in the clearest of cases, i.e., conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. The Court said the evidence must be overwhelming and the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. Since the Attorney General, through his or her prosecutorial function, expresses the community's sense of justice, the courts should be careful before attempting to "second-guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare, the Court said.

[100]     This prudence imposed in criminal matters by the Supreme Court of Canada applies a fortiori to an administrative tribunal such as this one, which need not apply such strict rules of evidence and procedure.

[101]     With respect, the Tribunal is not of the opinion that the evidence demonstrates extortion by the Minister to force Mr. Landry's testimony. The Minister of Transport did not adduce as evidence the statements of Messrs. Landry and Couillard. Instead, he called them as witnesses at the hearing who voluntarily testified concerning the facts surrounding the circumstances of June 10, 2004 without telling the Tribunal they had actually feared having their licences suspended if they did not make a written statement or if they did not come to testify. Contrary to the submissions by counsel for the applicant, the notice of investigation (exhibit D-3) sent by Mr. Paré to the AME, Mr. Landry, dated January 28, 2005, does not indicate that Mr. Landry's licence will be suspended should the investigation prove conclusive. Moreover, this notice of investigation does not threaten Mr. Landry with the filing of a charge should he not cooperate. The notice simply states that an investigation was initiated into a possible contravention of the CARs by Mr. Landry in connection with the ferry tank entry and Mr. Landry is under no obligation to cooperate. Finally, the evidence demonstrates that it was Mr. Landry who asked the Transport Canada investigator to stay the investigation on him after he submitted his written statement.

[102]     Also, Mr. Paré's testimony at the hearing and especially his cross-examination do not establish that he used the threat of a sanction or charge against Mr. Landry as a negotiating tool to obtain a written statement from him. Although the investigation process involving Mr. Landry helped to facilitate obtaining evidence against the applicant (Mr. Landry stated that he would not have provided a written statement had he not received the notice of investigation, and the notice of investigation was issued after Mr. Landry refused to sign a written statement), this procedure does not violate the conscience of the community such that it would be unfair to continue. In the absence of the written statements, the Minister could also subpoena Messrs. Landry and Couillard to testify in order to obtain their version of the facts, and in any case they were always prepared to come and testify. Moreover, the applicant refused to cooperate with the respondent's investigation. That is his right, but by refusing to cooperate he exposed himself to the risk that the Minister's investigation would be based on information obtained from third parties with the consequences that follow.

[103]     Mr. Paré's explanation of the reasons why he had to reconsider Mr. Landry as a presumed offender in this case is plausible and Mr. Paré's testimony is credible. He said that in the absence of a written statement by Mr. Landry, his investigation had to continue regarding Mr. Landry as well as Mr. Grenier since, under section 28 of the Act, the entry of June 10, 2004 regarding the ferry tank was evidence either against the person who made the entry or against the person who was required to keep a record. And the person who had signed the maintenance release was Mr. Landry. From Mr. Paré's standpoint, if Mr. Landry ultimately refused to submit a written statement of his version of the facts given over the telephone, the respondent could well doubt the accuracy of that version and the respondent was justified in considering Mr. Landry as the person who made the ferry tank entry and pursuing his investigation in respect of both the applicant and Mr. Landry in order to determine whether there were grounds for legal action.

[104]     Mr. Paré also stated that there would have had to be a lack of communication between him and Mr. Landry if the latter felt uneasy since he at no time intended to use the investigation of Mr. Landry as a negotiating tool to extract a statement. Moreover, the notice of investigation sent to Mr. Landry by Mr. Paré is one of the usual practices of Transport Canada for the purpose of notifying someone that he or she is the subject of an investigation for a possible contravention of the CARs and that the person may cooperate, but is not obliged to do so. When all is said and done, this notice of investigation was not, in this case, an extraordinary procedure denoting bad faith.

[105]     Although there is no doubt that Mr. Landry felt uncomfortable in this situation, since the applicant is his client and he would not have provided a written statement if an investigation had not been initiated on him, the context and sequence of events and the testimonies of Messrs. Paré and Landry do not in any way establish that Mr. Paré's investigation was marked by bad faith or violated the conscience of the community such that it would be unfair to continue the proceedings.

[106]     The applicant's second argument on the request for a stay of proceedings is therefore rejected.

C. Evidence from abroad

[107]     For the purposes of our analysis of the evidence, the Tribunal agreed that apart from the certification of a true copy of the journey log (exhibit M-3) issued by the Icelandic civil aviation authorities, none of the letters emanating from that source were proof of their content, since the author of those letters could not be cross-examined by the applicant. Accordingly, the Tribunal is unable to consider the fact that the Icelandic civil aviation authorities noted the presence of a ferry tank in aircraft C-FXOH during their inspection in Iceland.

[108]     However, for the reasons hereinafter stated, the Tribunal finds that it may presume that such a tank was on board the aircraft as of June 10, 2004, given the absence of evidence to the contrary by the applicant.

D. Notice of suspension of licence and notice of assessment of monetary penalty

[109]     Section 28 of the Act stipulates that an entry in a record that is required to be kept under the Act is proof of the matters stated therein as against the person who made the entry or was required to keep the record or against the owner of the aeronautical product in question, in the absence of evidence to the contrary. The Minister's evidence rests largely on the legal presumption in section 28 of the Act, in the absence of evidence to the contrary by the applicant. In this case, it is clear that the applicant was the owner of aircraft C-FXOH on June 10, 2004 and that as such, he had the responsibility of keeping the journey log under section 605.85 of the CARs.

[110]     In this case, the applicant decided not to provide any evidence contrary to the filing of the copy of the journey log (exhibit M-3), which is proof of the matters therein including the ferry tank entry of June 10, 2004 in the journey log of aircraft C-FXOH, as well as the entry of the 18 flights made by the applicant that were the subject matter of the notice of assessment of monetary penalty. Moreover, the testimonies of the AMEs, Messrs. Landry and Couillard, that they are not the persons who made the ferry tank entry dated June 10, 2004, that they did not do any work on a ferry tank and that the aircraft was not equipped with a ferry tank on June 10, 2004, is not contradicted. The ferry tank entry was therefore not the subject matter of Mr. Landry's maintenance release. The Tribunal can presume, from the placing of the ferry tank entry in direct connection with the maintenance release of June 10, 2004, that some maintenance work was done on June 10, 2004 regarding the ferry tank, especially because no work on a ferry tank can constitute elementary work.

[111]     The Tribunal agrees with the Minister's argument that the exhaustive list of elementary work for which a maintenance release is not required does not include work in connection with a ferry tank. Accordingly, the Tribunal is also able to presume that some maintenance requiring a maintenance release by an AME was done on the aircraft.

[112]     Furthermore, had the person who made the entry not intended to suggest that the maintenance work on the ferry tank had been released, the person would not have entered it opposite to the maintenance release immediately after the other maintenance tasks performed on June 10, 2004, but would have written it off to the side or after that certification. The choice of location of the ferry tank entry also establishes the intention to mislead or make a false entry.

[113]     Finally, since there was no ferry tank on board aircraft C-FXOH when the AMEs did their maintenance work on June 10, 2004, it may be presumed that the object of the subsequent ferry tank entry was its installation and not its removal.

[114]     In view of these presumptions of fact, it was incumbent on the applicant to submit contrary evidence. Unfortunately, he chose not to submit any evidence.

[115]     In the absence of proof to the contrary by the applicant, the Tribunal can presume, from the journey log (exhibit M-3), on a balance of probabilities, that a ferry tank was on board the aircraft as of June 10, 2004, and that it had not been given a maintenance release.

[116]     The documents filed by the Minister, exhibits M-7 and following, also show that the applicant, Mr. Grenier, holds a pilot licence and is the registered owner of aircraft C-FXOH, and exhibit M-3 shows that he conducted the flights himself between June 10 and July 18, 2004. The applicant, moreover, does not deny the take-off dates with aircraft C-FXOH or the airports where the take-offs alleged in the notice of assessment of monetary penalty took place.

[117]     To summarize, in view of section 28 of the Act, and in view of the testimonies of the AMEs, Messrs Landry and Couillard, and the absence of proof to the contrary by the applicant, the Minister's evidence therefore establishes on a balance of probabilities, the following facts:

1. On June 10, 2004, Mr. Landry, with the assistance of an apprentice AME, Mr. Perras, performed maintenance work on aircraft C-FXOH, owned by the applicant, to remove the aircraft's floats and add wheels, and he filled out a maintenance release for these maintenance tasks in the journey log of aircraft C-FXOH.

2. These individuals also acknowledged that the June 10, 2004 entries appearing in the copy of the journey log (exhibit M-3) are in accordance with their original entries.

3. Neither the AMEs, Messrs. Landry and Couillard, nor the apprentice AME, Mr. Perras, who participated in the maintenance work performed on June 10, 2004, made the ferry tank entry appearing just beside the maintenance work described by Mr. Landry in the journey log.

4. Messrs. Landry and Couillard confirmed that aircraft C-FXOH was not equipped with a ferry fuel tank during the maintenance work performed on this aircraft and recorded on June 10, 2004 in the aircraft journey log.

5. The ferry tank entry was clearly next to Mr. Landry's maintenance release. This ferry tank entry is dated June 10, 2004, since it is part of the entry appearing on June 10, 2004 and is not separated from it in any way. The choice of placement of the entry suggests that it is part of the tasks performed on June 10, 2004 for which a maintenance release was signed by Mr. Landry and, in the absence of proof to the contrary, this factor is sufficient to prove the intentional element in paragraph 7.3(1)(c) of the Act.

6. Under section 28 of the Act, this ferry tank entry next to the maintenance release of an AME who denies that he made it is proof against the registered owner of the aircraft, i.e. the applicant. Under section 605.92 of the CARs, the applicant must keep a journey log and he has not provided any proof to the contrary on a balance of probabilities that he was not the person who made this entry. The evidence submitted by Mr. Landry that other persons could have had access to the aircraft journey logbook at the Beloeil airport simply casts doubt and does not constitute proof on a balance of probabilities in opposition to the Minister's evidence.

7. Although this ferry tank entry does not specify what work was done on this equipment, in the absence of proof to the contrary, it may be inferred that maintenance work, and not elementary work, was done on the equipment on June 10, 2004, since the entry was next to a maintenance release dated June 10, 2004. Moreover, elementary work cannot be done on this item of equipment under appendix A of the Aircraft Equipment and Maintenance Standards in which elementary work is described in great detail and does not involve a ferry tank. Thus, the Minister's evidence establishes that some maintenance work was done on the ferry tank of aircraft C-FXOH on June 10, 2004, and, on a balance of probabilities, it involved its installation and not its removal, in light of the testimonies of the AMEs, Messrs. Landry and Couillard, that the ferry tank was not installed on the aircraft when they completed their maintenance work.

8. Since the applicant did not provide any evidence, he is presumed to be the person who made the entry for maintenance work on the ferry tank on June 10, 2004 for which a maintenance release was required, but no such release was completed.

[118]     It should be pointed out that a journey log is a record in which the pilot and owner of the aircraft must record all important facts relating to the aircraft. This record is indispensable for ensuring the air transport safety. Accordingly, when work is done on an item of equipment, the person making the entry is required to record the work done in detail, in failing to do so, he infringes the CARs. Since the person who makes an entry in a journey log must necessarily provide details to that entry, the person shall suffer the consequences when he or she fails to do so. In this case, since the entry pertains to a maintenance release, it cannot be inferred that the entry is meaningless. On the contrary, its author demonstrates the intention to assign some importance to it by attaching it to a maintenance release. To admit that the ferry tank entry is meaningless would mean that the Minister of Transport could never prove his case when an entry is not deliberately detailed although legally, it must be. Consequently, the Tribunal cannot concur with the applicant's contention that the ferry tank entry is without meaning, since journey logs must contain all entries that are important to an aircraft in order to ensure safe transportation with that aircraft and to maintain the necessary relationship of trust between the Department of Transport and the aviation community.

[119]     The inductions or conclusions that are drawn from a record that must be kept, such as a journey log, are related to the presumptions that apply also to records kept in the normal course of business of a company from which the rules of evidence generally allow the Tribunal to derive findings of fact and juridical acts. As an example, the Tribunal refers to subsection 30(2) of the Canada Evidence Act, which applies to business records. Similarly, if all maintenance work is to be recorded by the owner of the aircraft, and a maintenance job must be given a maintenance release, it can necessarily be inferred that an entry in relation to a particular item, in this case a ferry tank, opposite a maintenance release concerns a task that is maintenance work and not elementary work for which no release is required in the record.

[120]     In the absence of evidence to the contrary by the applicant, and in view of the testimonies of Mr. Landry and his apprentice, Mr. Perras, confirming that they are not the persons who made the ferry tank entry next to Mr. Landry's maintenance release, the Tribunal is of the opinion that the applicant made an entry in the journey log of his aircraft C-FXOH on June 10, 2004 with intent to mislead. By adding the ferry tank entry, he falsely encouraged the belief that the maintenance work on that item of equipment was checked and given a maintenance release by Mr. Landry.

[121]     In doing so, the applicant contravened paragraph 7.3(1)(c) of the Aeronautics Act and the Minister of Transport is justified in suspending his pilot licence for a 30-day period. In the Tribunal's opinion, the 30-day suspension for a first offence is warranted in order to deter persons responsible for keeping mandatory records under the Act and responsible for aviation safety from making false representations. A false representation by an aircraft owner in a journey log that must be kept in the interest of aviation safety must be punished severely, as must a false representation by an AME for the purpose of obtaining a certificate of airworthiness, if we want to maintain a relationship of trust in the keeping of this mandatory record. Keeping a journey log is of utmost importance to the aviation safety.

[122]     Contrary to the applicant's contention, the Tribunal in Bailey, cited above at ¶ [84], did not impose a 30-day suspension because there was evidence of a direct relationship between the false representation and the threat to air safety; rather, it did so to punish the false representation as such by a professional (an AME) on whom there is a duty of integrity to maintain the trust that is so necessary for the applicability of the regulatory scheme. The Tribunal is of the opinion that aircraft owners and AMEs must ensure this trust in the keeping of a mandatory journey log and that a misrepresentation in the journey log by an aircraft owner must be punished severely because it has a direct impact on air safety.

[123]     Considering the journey log (exhibit M-3), the lack of evidence by the applicant as to the lack of a ferry tank in aircraft C-FXOH between June 10 and July 18, 2004, and the testimony of Mr. Landry that he did not install or do any maintenance work on a ferry tank on June 10, 2004 and thus, he did not sign a maintenance release for such work, the Tribunal must also find that the Minister has proven, on a balance of probabilities, that the applicant did conduct the 18 take-offs alleged in the notice of assessment of monetary penalty although the ferry tank was not given a maintenance release pursuant to the provisions of section 571.10 of the CARs. Considering the testimonies of the AMEs that there was no ferry tank in the aircraft at the time of their maintenance work, it may be inferred from the ferry tank entry appearing in the journey log that the tank was installed and not removed on June 10, 2004. The applicant therefore breached the provisions of section 605.85 of the CARs.

[124]     The Tribunal is also of the opinion that a fine of $100 per flight is warranted in the circumstances, making a total fine of $1 800. Subsection 7.3(1) of the Act provides that each flight constitutes a distinct offence so the 18 fines of $100 do not constitute multiple convictions for the same facts. The amount of $100 per flight is also reasonable for a first offence.

October 13, 2006

Caroline Desbiens
Member
Transportation Appeal Tribunal of Canada


Appeal decision
Faye H. Smith, Howard M. Bruce, Suzanne Racine


Decision: December 20, 2007

Citation: Grenier v. Canada (Minister of Transport), 2007 TATCE 29 (appeal)

[Official English translation]

Heard at Montréal, Quebec, on September 7, 2007

Held: For all of the reasons set out below, the appeal is dismissed on all counts and the penalties are confirmed. The total amount of the penalties, $1800, is 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.

I. BACKGROUND

[1] The appeal hearing relates to file nos. H ‑3146‑33 and H-3147-02. The appeal is from the determinations made by member Caroline Desbiens, following a review hearing held on January 20 and June 1, 2006, at Montréal, Quebec, as well as decisions with regard to preliminary objections heard by conference call on February 15 and May 5, 2006. The submissions on the sanctions were made by conference call on September 12, 2006.

[2] On July 18, 2004, an aircraft registered in Canada as C-FXOH (aircraft) and piloted by Louis Grenier crashed during take-off in Iceland. Following the accident, Icelandic authorities sent Transport Canada a letter of information accompanied by photographs of the damaged aircraft and a certified copy of the aircraft's journey log. Mr. Haraldsson attested that he had photocopied the journey log and taken the photographs in the envelope.

[3] After examining the copy of the journey log, Transport Canada's Chief of Aviation Enforcement, Jean‑François Mathieu, decided to refer the matter to Inspector Michel Paré, so that Mr. Paré could carry out an investigation regarding an entry in the journey log, dated June 10, 2004, to the effect that a ferry tank had been installed.

[4] During his investigation, Mr. Paré contacted aircraft maintenance engineers (AMEs) Éric Landry and Philippe Couillard from the company Aviamax Inc. It is important to point out that during the hearing, both AMEs recognized the entry dated June 10, 2004 in the copy of the aircraft's journey log.

[5] In his testimony, Mr. Landry stated that he was an AME and that Mr. Grenier had asked him to replace the aircraft's floats with wheels. Moreover, he confirmed that Mr. Grenier had not asked him to do any other work and that he had never made the ferry tank entry in the aircraft's journey log.

[6] On May 11, 2005, after Mr. Paré's investigation, a notice of assessment of monetary penalty was served on Mr. Grenier by the Minister pursuant to section 7.7(1) of the Aeronautics Act, R.S.C. 1985, c. A‑2, as amended by R.S., c. A‑3 (Act). The notice alleged that Mr. Grenier had made 18 take-offs with the aircraft registered as C-FXOH. Maintenance work had been carried out on the aircraft, without a signed maintenance release in accordance with section 571.10 of the Canadian Aviation Regulations, SOR/96‑433 (CARs), thereby contravening section 605.85(1) of the CARs. Further, on May 11, 2005, a notice of suspension was served on Mr. Grenier in accordance with section 6.9 of the Act on the grounds that he had made or had caused to be made, with intent to mislead, a false entry in the aircraft's journey log, thereby contravening section 7.3(1)(c) of the Act.

[7] The review member confirmed the Minister's decisions with regard to the contraventions, the penalties and the suspension imposed on the appellant. The following contraventions, penalties and suspensions were confirmed with regard to the offences described below:

File no. H-3146-33 (TATC)

[translation]

1. On or about June 21, 2004, at the St-Mathieu-de-Beloeil Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

2. On or about June 28, 2004, at the Montréal/St-Hubert Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

3. On or about July 2, 2004, at the Montréal/Pierre‑Elliott‑Trudeau International Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

4. On or about July 3, 2004, at the Montréal/St-Hubert Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

5. On or about July 6, 2004, at the Montréal/St-Hubert Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

6. On or about July 6, 2004, at the St-Mathieu-de-Beloeil Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

7. On or about July 6, 2004, at the Montréal/St-Hubert Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

8. On or about July 8, 2004, at the Sept-Îles Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

9. On or about July 9, 2004, at the Kangiqsualujjuaq (Georges River) Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

10.  On or about July 9, 2004, at the Kuujjuaq Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

11.  On or about July 10, 2004, at the Kangirsuk Airport, Quebec, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

12.  On or about July 10, 2004, at the Pangnirtung Airport, Nunavut, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

13.  On or about July 11, 2004, at the Qikiqtarjuaq (Broughton) Airport, Nunavut, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

14.  On or about July 14, 2004, at the Kangerlussuaq/Sondre Stromfjord Airport, Greenland, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

15.  On or about July 15, 2004, at the Nuuk Airport, Greenland as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

16.  On or about July 17, 2004, at the Kulusuk Airport, Greenland, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

17.  On or about July 17, 2004, at the Kulusuk Airport, Greenland, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

18.  On or about July 18, 2004, at the Isafjordur Airport, Iceland, as pilot‑in‑command, you conducted a take-off in an aircraft registered as C-FXOH of which you had legal custody and control, when that aircraft had undergone maintenance in respect of the "Ferry Tank" entry in the aircraft journey log, dated June 10, 2004, although this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, thereby contravening subsection 605.85(1) of the Canadian Aviation Regulations. Penalty assessed: $100

File no. H-3147-02 (TATC)

[translation]

1. On or about June 10, 2004, as registered owner of the aircraft registered as C‑FXOH, you made or caused to be made, with intent to mislead, a false entry entitled "Ferry Tank" in a log that is required to be kept under Part I of the Aeronautics Act, the aircraft journey log, thereby contravening section 7.3(1)(c) of the Aeronautics Act. Sanction imposed: 30-day suspension of licence.

[8] On November 13, 2006, counsel for the appellant appealed these determinations to the Tribunal. The following arguments were raised therein:

[translation]

A. The decision-maker in this matter erred in admitting in evidence the copy of a document – part of a journey log – without requiring that the respondent seeking to file this document in evidence establish that reasonable care had been taken as well as honest and good faith efforts made to obtain the original, that this was impossible and why;

B. The decision-maker in this matter erred in allowing the introduction and filing in evidence of information, documents and exhibits from an extraterritorial source having earlier categorically refused to participate in any hearing in any way whatsoever – not even by conference call – thereby depriving the principal party from his inalienable right to cross-examine and verify the truthfulness, reliability and accuracy of the evidence introduced unilaterally in order to establish its inadmissibility;

C. The decision-maker in this matter erred in changing, midstream and despite her earlier decision on this point, her determination to follow the almost archaic precepts of Subramaniam on admissibility of hearsay evidence, particularly given the information from the extraterritorial source categorically refusing to contribute to the debate in any way whatsoever;

D. The decision-maker in this matter erred in reversing the burden of proof on the applicant, misunderstanding the nature and scope of the legal presumptions applicable in the matter and refusing to exercise any discretion in that respect;

E. The decision-maker in this matter erred in failing to order that the proceedings be stayed despite the irrefutable evidence of serious misconduct by the investigating officer in this matter, or in failing to exclude any evidence – direct, indirect or derivative – from this officer, his office and/or the relevant witnesses;

F. The decision-maker in this matter erred in deciding the applicant's application regarding the sufficiency of the wording of the text of the charges, before hearing the parties, as is clearly indicated by the content of the conference call of February 15, 2006;

G. The decision-maker in this matter erred in confirming the decisions of the Minister, despite the undeniable lack of evidence of:

  • the actual meaning of the ferry tank entry;
  • the moment when the entry was made in the document;
  • the identity of the author of the ferry tank entry;
  • the exclusive opportunity;
  • the actual existence of a ferry tank;
  • the execution, nature and scope of the "work performed"; and
  • the intention to mislead;

H. Overall, the decision-maker in this matter made a serious error in acting against the applicant in the course of the proceedings, in her manner of leading the debates, deciding objections, interpreting the evidence in this matter and the applicable law, thereby denying him of his right to a hearing held in accordance with the principles of fundamental rights, procedural fairness and natural justice; and

I. With regard to the sanctions imposed, the decision-maker in this matter erred in failing to consider the circumstances as a whole and by imposing unduly harsh measures not at all justified by the evidence specific to this matter, generally accepted sentencing principles and the applicable case law.

II. FACTS

[9] On July 18, 2004, the aircraft piloted by Mr. Grenier crashed on take-off in Iceland. After the accident, a file prepared by the Icelandic authorities was sent to Transport Canada. This file contained photographs of the damaged aircraft as well as a certified copy of its journey log. Mr. Mathieu confirmed that after reviewing the documentation, he had sent the file to Mr. Paré.

[10] Mr. Paré testified that he had received the documentation from Mr. Mathieu and that his investigation was intended primarily to verify the compliance of the ferry tank installed on the aircraft damaged in Iceland. Specifically, he based his investigation on the ferry tank entry, dated June 10, 2004, appearing in exhibit M‑3, namely the certified copy of the aircraft's journey log.

[11] Mr. Paré communicated with Mr. Landry to determine whether he had made the ferry tank entry in the aircraft's journey log, since it appeared under his signature. In his testimony, Mr. Landry confirmed that on June 10, 2004, he had not installed a ferry tank, and that his maintenance work had been limited to replacing the floats of the aircraft with wheels. He also stated that he had not made the ferry tank entry in the aircraft's journey log.

III. APPELLANT'S ARGUMENT

[12] At the hearing, the appellant expanded on his appeal arguments, namely:

A. Tribunal's error regarding the admission of the journey log excerpt

[13] As first and second grounds of appeal, the appellant states that the review member erred in admitting into evidence a copy of an excerpt from the journey log without requiring that the respondent establish that reasonable care had been taken and that honest efforts in good faith had been made to obtain the original. According to counsel for the appellant, the Tribunal erred by ignoring the basic principle of best evidence. Further, given that the member excluded all of the exhibits originating from the Icelandic authorities, namely exhibits M‑1, M‑2 and M‑4, counsel for the appellant submits that she also should have excluded exhibit M-3, namely the copy of the journey log excerpt. As she did not do so, the appellant was deprived of his right to cross‑examine and to verify the truthfulness, reliability and accuracy of the evidence contained in exhibit M‑3.

B. Admissibility of hearsay evidence

[14] The review member erred in admitting into evidence information originating from an extraterritorial source, contrary to the principles of Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965.

C. Reversal of the burden of proof

[15] The review member erred in reversing the burden of proof on the balance of probabilities on the appellant. According to the appellant, the presumption created by section 28 of the Act is rebuttable. Considering that there is contrary evidence in the file, this presumption does not hold. The appellant submits that there is no evidence in the record regarding the existence of a ferry tank.

D. Stay of the proceedings

[16] The review member erred based on the fact that she did not order that the proceedings be stayed on the grounds of serious misconduct by the inspector responsible for this matter. In fact, according to the appellant, Mr. Paré's conduct with regard to obtaining a written declaration by Mr. Landry would be an abuse of power similar to extortion. The appellant argues that the inspector's conduct was so reprehensible that the Tribunal should have stayed the proceedings.

E. Sufficiency of wording of the text of the charges

[17] The appellant submits that the review member erred in dismissing the applicant's motion contemplating the sufficiency of the wording of the text of the charges, prior to hearing the parties.

F. Lack of evidence

[18] The appellant submits that the review member erred in arriving at her conclusion despite a total lack of evidence with regard to the meaning of the ferry tank entry, as to when this entry was made in the journey log, as to the identity of the author, as to the existence of a ferry tank, as to the intention to mislead and as to the performance and extent of the work done on June 10, 2004.

G. Failure to respect the rules of natural justice

[19] The appellant submits that the review member, through the way she led the debate and interpreted the evidence in general, did not comply with the fundamental principles of procedural fairness and natural justice. Also according to the appellant, the member made a series of decisions intended to fill in the gaps in the prosecution's evidence.

H. Sanctions imposed

[20] In terms of the sanctions imposed, the appellant contends that the suspension is too harsh based on the facts in this matter. With regard to the 18 penalties, the appellant submits that it is a single offence multiplied by 18.

IV. MINISTER'S ARGUMENT

A. Tribunal's error regarding the admission of the journey log excerpt

[21] The Minister submits that following a conference call on February 15, 2006, the review member was correct to admit in evidence the copy of the journey log excerpt, i.e. exhibit M‑3. According to the Minister, this decision is reasonable and respects the principles of the admissibility of evidence in administrative law. The Minister's representative stated that the reviewing tribunal is administrative and, that in accordance with section 15 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATCA), there is no obligation to follow technical rules of evidence.

[22] In filing the copy of the journey log excerpt, the Minister provided the best evidence possible, particularly since two witnesses identified the copy of the journey log in question.

B. Admissibility of hearsay evidence

[23] Once again, the Minister argues that there is nothing to prevent the Tribunal, being master of the proceeding, from modifying and reviewing decisions midstream, if after hearing the parties the assessment of the evidence justifies it.

[24] In the eyes of the Minister, what is important is that the final determination rendered by the Tribunal is reasonable and that it is based on the evidence presented for the hearing. With regard to the rules set out in Subramaniam v. Public Prosecutor, cited above in paragraph 14, they do not prevail over the application of section 15 of the TATCA.

C. Reversal of the burden of proof

[25] According to the Minister, the review member did not misunderstand the nature and the scope of the legal presumption formulated at section 28 of the Act. As the appellant did not file any evidence contrary to the evidence filed by the Minister, the member was correct to rely on the evidence filed at the hearing.

D. Stay of the proceedings

[26] The Minister submits that the review member correctly dismissed the appellant's motion seeking to stay the proceedings. In fact, in the Minister's opinion, this draconian measure was not at all motivated by the facts in this matter. The member relied on the case law to justify that the Tribunal did not have overwhelming evidence before it establishing that Mr. Paré had unlawful grounds, that he acted in bad faith or that he had committed an act so wrong that it violated the conscience of the community, such that it would genuinely be unfair and indecent to proceed.

[27] The Minister therefore considers that the review member's decision on this issue was reasonable.

E. Sufficiency of the wording of the text of the charges

[28] The Minister considers that the review member was correct to determine that the applicant's motion regarding the sufficiency of the wording of the text of the charges was submitted late. In fact, counsel for the appellant presented this motion only after receiving the evidence disclosed and hearing the testimony of Mr. Mathieu. Further, by relying on Canada (Attorney General) v. Yukon, [2006] FC 1326, in the event that the notice was inadequate, an adjournment would have been a way to remedy the situation. The Minister therefore considers that the member's position on this point was reasonable, considering the circumstances.

[29] Further, the Minister submits that the notice of suspension and the notice of assessment of monetary penalty meet the requirements contemplated at sections 6.9 and 7.7(1) of the Act and at sections 103.06(1) and 103.08 of the CARs.

F. Lack of evidence

[30] The Minister reiterates that the review member properly relied on the legal presumption formulated at section 28 of the Act and that she reasonably assessed the evidence filed.

G. Failure to respect the rules of natural justice

[31] The Minister simply states that the review member reasonably decided the issue while respecting fundamental rights, procedural fairness and natural justice.

H. Sanctions imposed

[32] The Minister contends that the sentencing principles raised by the Tribunal are stated in Canada (Minister of Transport) v. Wyer, [1988], appeal determination, CAT file no. O-0075-33, [1988] C.A.T.D. no. 123 (QL). According to the Minister, the review member properly decided it best to uphold the sanctions imposed in order to deter any reasonable person keeping a compulsory record and responsible for aviation safety from making false statements.

V. DISCUSSION

[33] With regard to the facts and the evidence filed in this case, it is important to note the case law and the principles guiding the Tribunal. In terms of findings of fact, Moore v. Canada (Minister of Transport), [1991], appeal determination, CAT file no. C-0138-33, [1991] C.A.T.D. no. 5 at 5 (QL), confirms the principle to the effect that an appeal tribunal ought not to counter the hearing officer's findings of fact unless they are patently unreasonable. In this decision, the appeal panel refers to and applies the following criteria:

I am satisfied that a finding of fact by the hearing officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is none-the-less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an appeal tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearing officer.

This distinction may be subtle, but it is vital both to the preservation of the integrity of the appeal process and the safeguarding of the fundamental rights of the individual.

[34] As for the credibility of the witnesses, Canada (Minister of Transport) v. Phillips, [1987], appeal determination, CAT file no. C-0014-33, [1987] C.A.T.D. no. 14 at 6 (QL), confirms the principle to the effect that the hearing officer is in the best position to prefer evidence:

The hearing officer is in the best position to be able to determine which evidence on the record he prefers; which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. Unless the findings of the hearing officer are patently unreasonable and cannot be supported by the testimony - under oath - the appeal tribunal should be reluctant to substitute its findings. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance. . . .

[35] In our opinion, the review member's findings of fact were entirely reasonable since they were supported by testimony that the member deemed credible. As the member's observations were not patently unreasonable, her determinations should not be reviewed with regard to the facts in these matters.

[36] We must therefore examine the grounds for appeal raised by the appellant in order to determine whether the review member's findings were unreasonable. In fact, in Long v. Canada (Minister of Transport), [2004], appeal decision, TATC file no. O-2824-02, [2004] C.T.A.T.D. no. 20 (QL), the Tribunal states the following regarding the standard of review and the Tribunal's appeal proceedings:

45 As the Aeronautics Act and its subordinate legislation are generally concerned with aviation safety we do not think that a decision which may have safety consequences should have to be patently unreasonable, i.e., clearly irrational before it may be found wanting.

46 We find that the 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".

A. Ground of appeal: Admissibility of exhibit M-3

[37] Before deciding on the admissibility of exhibit M‑3, we believe that it is essential to grasp the specific evidence that the respondent wanted to establish. In fact, by presenting exhibit M-3, the respondent wanted to establish the entry in the journey log, dated June 10, 2004, which was certified by the AME, Mr. Landry, Canadian Aviation Regulations as well as the addition of the words "ferry tank". The admissibility of the evidence must therefore be examined from this perspective.

[38] Not only was exhibit M‑3 a copy certified by the Icelandic authorities, but the June 10, 2004 entry was confirmed by the undisputed testimony of Mr. Landry.

[39] Section 28 of the Act must also be considered, which reads as follows:

28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

[40] The appellant submits that the review member erred by admitting in evidence exhibit M‑3, namely the copy of the excerpt from the aircraft's journey log, without requiring that the respondent establish that reasonable care had been taken and that honest efforts in good faith had been made to obtain the original.

[41] Section 15 of the TATCA reads as follows:

15. (1) Subject to subsection (2), the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it, and all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

. . .

(5) In any proceeding before the Tribunal, a party that has the burden of proof discharges it by proof on the balance of probabilities.

[42] Further, section 4 of the Transportation Appeal Tribunal of Canada Rules, SOR/93‑346, states the following:

4. Where a procedural matter not provided for by the Act or by these Rules arises during the course of any proceeding, the Tribunal may take any action it considers necessary to enable it to settle the matter effectively, completely and fairly.

[43] It must also be noted that the journey log is a document that the appellant had the obligation to keep up to date in accordance with section 605.92(1)(a) of the CARs. It is therefore an exhibit established in the ordinary course of business.

[44] In terms of admissibility, the most important test is that of relevance. The assessment of probative value can then be used to determine the weight to be assigned to the evidence admitted based on all of the evidence submitted by both parties.

[45] Paragraph 45 of Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471 refers to the following statement:

A tribunal must be cautious, however, as it is much more serious to refuse to admit relevant evidence than to admit irrelevant evidence, which may later be rejected in the final decision. . . .

(P. Garant, Droit administratif, vol. 2, Le contentieux (3rd ed. 1991), at p. 231.)

[46] In terms of hearsay evidence, the basic principle is set out in Canada (Attorney General) v. Mills, [1984] F.C.J. no. 917 at 2 (QL), which states as follows:

. . . [B]oards of referees, like other administrative tribunals, are not bound by the strict rules of evidence applicable in criminal or civil courts; they may, therefore, receive and accept hearsay evidence.

[47] The admissibility of hearsay evidence has been confirmed many times by the Tribunal. The decision in Air Nunavut Ltd. v. Canada (Minister of Transport) [1999], review determination, CAT file no. C‑1705-10, [1998] C.A.T.D. no. 44 (QL), provides the following:

30 Hearsay evidence can be of value, especially if verified or corroborated by other evidence or if it forms the corroboration of some other evidence.

[48] A very recent Tribunal decision, Sierra Fox Inc. v. Canada (Minister of Transport), [2005], appeal decision, TATC file no. O-2997-41, [2005] C.T.A.T.D. no. 17 (QL), states as follows:

27 The rule against the admittance of hearsay is a prime example of one of the legal and technical rules of evidence. The Tribunal is relieved of the legal and technical rules of evidence by the operation of section 15 of the Transportation Appeal Tribunal of Canada Act (TATCA). Being relieved of the legal and technical rules of evidence does not mean that no rules apply. It has been recognized that the basic criterion for the admissibility of evidence in an administrative setting is relevance.

28 Exhibits M-1 and M-2, the DATRs [daily air traffic records], are hearsay as they are written statements made by persons otherwise than in testimony at the proceeding in which they are offered as proof of the truth of their contents. They are relevant because, if true, they would go to establishing the factual basis upon which the contravention could be found. Therefore, we find that they are admissible as relevant evidence.

(Footnotes omitted.)

[49] However, in this same decision, the Tribunal limited the acceptance of uncorroborated hearsay evidence:

54 We find that it is an error to accept this uncorroborated hearsay evidence as the sole proof of an allegation. The jurisprudence reviewed above convinces us that unsubstantiated hearsay evidence should not be relied upon as it is insufficient evidence upon which to base a contravention.

[50] In this case, exhibit M‑3 and more specifically the entry dated June 10, 2004 are very relevant and were corroborated by two witnesses. Further, the appellant did not rebut the presumption of section 28 of the Act.

[51] It is our opinion that if we apply the principles set out above and consider that this is an administrative tribunal that need not abide by the technical rules of evidence, the review member properly and reasonably admitted the contents of exhibit M‑3 in evidence, even more so because the entry dated June 10, 2004 has been identified and corroborated by two witnesses, including the signer, Mr. Landry. It is therefore not secondary evidence, since the appellant was able to question the person who made the entry dated June 10, 2004.

[52] We dismiss this ground of appeal.

B. Ground of appeal: Admissibility of hearsay evidence

[53] The appellant argues that the review member erred by admitting in evidence information from an extraterritorial source, contrary to the principles in Subramaniam v. Public Prosecutor, cited above in paragraphs 14 and 24. For the reasons stated at paragraphs 45 to 49 of this decision, hearsay evidence is admissible before the Tribunal and the principles set out in Subramaniam do not prevail in the field of administrative law.

[54] The entry dated June 10, 2004 does not come from an extraterritorial source. As stated for the purposes of the preceding ground, the author and signer of the entry dated June 10, 2004, Mr. Landry, testified and confirmed his entry as well as the fact that he had not noted the words "ferry tank". As this entry was corroborated, it was relevant to the case.

[55] We must reiterate the principles stated regarding the first ground of appeal. The review member need not strictly abide by technical rules of evidence. She therefore properly determined that exhibit M‑3 was relevant to the matter and therefore admissible in evidence.

[56] We dismiss this ground of appeal.

C. Ground of appeal: Reversal of the burden of proof

[57] The appellant contends that the review member erred in reversing the burden of proof on the appellant, by incorrectly applying the presumption created by section 28 of the Act which states as follows:

28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

[58] The Tribunal accepts the Minister's interpretation. It clearly follows from the legal presumption formulated under section 28 of the Act that aircraft owners must be held legally responsible for the entries contained in the journey logs of their aircraft. To rebut this presumption, the appellant need only have adduced evidence to the contrary establishing that the entry should not have been understood as it appeared in the record. Asking the appellant to rebut the presumption created by section 28 of the Act does not reverse the burden of proof.

[59] Since the appellant did not adduce evidence contradicting the entries contained in exhibit M‑3, the Tribunal concludes that the presumption created by section 28 of the Act applies to the entries noted in the journey log (exhibit M‑3). These entries are admissible for the truth of their content.

[60] R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, describes strict liability offences:

51   Proof of the prohibited act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care. . . .

[61] In the case of strict liability offences, as in this matter, it is not necessary for the Minister to establish mens rea, i.e. the appellant's wrongful intent. The Minister need only establish that the appellant committed the wrongful act and, when this evidence is adduced, the appellant has the burden of establishing that he took reasonable care to avoid committing the prohibited act. In this matter, the appellant did not adduce any evidence in that respect.

[62] In this matter, we must apply section 605.92(1)(a) of the CARs, which requires that aircraft owners keep an up-to-date journey log and section 571.10(2)(b)(ii) which states that a maintenance release must include a brief description of the work performed.

[63] In the absence of evidence to the contrary when applying section 28 of the Act, or evidence adduced by the appellant that he took reasonable care to avoid committing the prohibited offence, it is our opinion that it was reasonable for the review member to determine that the ferry tank entry in the journey log did not satisfy regulatory requirements. Both of the AMEs who worked on the aircraft on June 10, 2004, namely Messrs. Landry and Couillard, testified that they had not made the ferry tank entry.

[64] We dismiss this ground of appeal.

D. Ground of appeal: Stay of the proceedings

[65] According to the appellant, Mr. Paré's conduct with regard to obtaining Mr. Landry's written statement was an abuse of power comparable to extortion. His conduct was allegedly so reprehensible that the Tribunal should have proceeded to stay the proceedings. We cannot support such a position. In fact, the principles set out by the Supreme Court in R. v. Power, [1994] 1 S.C.R. 601, should be reviewed, namely:

11 I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.

12 To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. As will be developed in more detail further in these reasons, the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, but also to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to "second guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.

[66] In this matter, we cannot find that Mr. Paré's actions were vitiated to the extent that they amounted to a clear case of abuse of process. As the Supreme Court indicated in R. v. Power, cited above in paragraph 65, cases of this nature are extremely rare.

[67] We dismiss this ground of appeal.

E. Ground of appeal: Sufficiency of wording of the text of the charges

[68] The appellant submits that the review member erred in deciding the applicant's application regarding the sufficiency of the wording of the text of the charges, before hearing the parties.

[69] In R. v. Sault Ste. Marie (City), cited above in paragraph 60, the Supreme Court pointed out that when it examines the validity of an offence, the Court must verify whether the accused truly suffered prejudice as a result of the ambiguity of the terms used.

[70] In Canada (Attorney General) v. Yukon, cited above in paragraph 28, the Federal Court states as follows:

25 . . . The question is always to be resolved by determining whether the affected party knows the case it has to meet and then has a meaningful opportunity to be heard.

[71] We find that the position of the review member on this point is reasonable, considering all of the facts in the record. The terms used in the count are not ambiguous. The appellant had all of the information necessary to make full answer and defence.

[72] If the appellant considers that the ferry tank entry is too ambiguous in the counts, he not only just raises his own turpitude given that he is responsible for the log entry, but he also establishes that this entry does not meet the requirements of the CARs.

[73] We dismiss this ground of appeal.

F. Ground of appeal: Lack of evidence

[74] According to the appellant, there was a total lack of evidence regarding the meaning of the ferry tank entry, with regard to when this entry was made in the journey log, the identity of the author of this entry, and even the existence of a ferry tank and the intent to mislead.

[75] With respect, we cannot find as such. The principles of Moore v. Canada (Minister of Transport), cited above in paragraph 33, are clear. We find that the review member's decision was reasonable, given that she took into account the evidence that she had to consider.

[76] Moreover, it must be reiterated that the appellant is accused of breaching section 605.85(1) of the CARs. The legal presumption of section 28 of the Act and the appellant's lack of evidence to the contrary, combined with Mr Landry's testimony to the effect that he was not the author of the ferry tank entry of June 10, 2004, and that he had not installed a ferry tank, were sufficient to enable the review member to determine that the appellant had committed the offences alleged.

[77] In fact, as the respondent's representative pointed out, even if the Minister had not been able to prove the existence of a ferry tank, the ferry tank entry is nonetheless incomplete. It does not include any description of the nature of the work performed, which does not comply with section 571.10(2)(b)(ii) of the CARs.

[78] As stated above, the fact that the appellant considers the ferry tank entry as ambiguous and vague in the count is to a degree an admission that the entry is incomplete in the aircraft's journey log.

[79] Further, the review member's finding to the effect that the ferry tank entry had been noted with the intent to mislead is far from unreasonable, if we consider where this entry was noted in the aircraft's journey log.

[80] We dismiss this ground of appeal.

G. Ground of appeal: Failure to respect the rules of natural justice

[81] The appellant submits that the review member acted against the appellant in the course of the proceedings. She denied him the right to a hearing respecting fundamental rights, procedural fairness and natural justice. The appellant even goes so far as to argue that the member made a series of decisions intended to compensate for the prosecution's evidentiary shortcomings.

[82] We consider that the hearing was held in keeping with the appellant's fundamental rights and the rules of natural justice.

[83] The appellant would have preferred that the review member exclude certain evidence. However, he was not deprived of a hearing respecting the principles of natural justice because she admitted this evidence.

[84] We dismiss this ground of appeal.

H. Ground of appeal: Penalties and sanctions

[85] According to the appellant, the review member erred in failing to take into account all of the circumstances and by imposing unduly harsh measures that were unjustified by the evidence specific to this matter, general sentencing principles and the applicable case law.

[86] From the outset, it must be taken into account that public safety is the prevailing concern of aviation regulations and that the penalties imposed are deterrent measures. Their purpose is to prevent recidivism by wrongdoers and also to protect the general public.

[87] Included among the cornerstones of aviation regulations are the protection of the public and the scrupulous and systematic keeping of a journey log. We agree that the review member was correct to deem it proper to uphold the sanctions imposed. She thereby intended to make every person responsible for keeping an up-to-date journey log more aware of the need to do so scrupulously and honestly.

[88] We dismiss this ground of appeal.

VI. CONCLUSION

A. File no. H-3146-33

[89] The appeal is dismissed. The appeal panel confirms the review determination with regard to all of the counts and upholds the penalties assessed totalling $1800.

B. File no. H-3147-02

[90] The appeal is dismissed. The appeal panel confirms the review determination and the penalty imposed, namely a suspension of the appellant's commercial pilot licence. Accordingly, the appeal panel confirms the 30-day suspension of Mr. Grenier's commercial pilot licence.

December 20, 2007

Reasons for appeal decision by: Howard M. Bruce, Member

Concurred by: Faye Smith, Chairperson

Suzanne Racine, Member