Decisions

CAT File No. O-0494-37
MoT File No. PAP6504-Z-022274

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Richard Pizzardi and Donald Doyle, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2, ss 7.7, 7.9(2), 8.4(1), 37(1)
Air Regulations, C.R.C. 1978, c. 2, ss 210(1)a), 534(2)a), b), 826(1), (2)
Aircraft Journey Log Order, (Air Naviagtion Order, Series VIII, No. 2), s. 3
Airworthiness Manual, s. 575.103

Vicarious liability, Low altitude flight, Journey log entries, Elsewhere than over a built-up area, Certificate of Airworthiness, Built-up areas


Review Determination
Bruce L. Pultz


Decision: January 9, 1996

Offence 1: I confirm counts 1 and 2 (Air Regulations 534(2)(a)).

Offence 2: I confirm counts 1, 2, 4 and 5 (Air Regulations 534(2)(b)). I dismiss count 3.

Offence 3: I confirm offence 3 (Air Regulations 210(1)(a)).

Offence 4: I confirm counts 1 to 5, 10 to 17 (Air Regulations 826(1)), although I combine counts 13 and 14 as one count. Counts 6 to 9 were withdrawn by the Minister.

The total monetary penalty is confirmed at $5,800.00. The Civil Aviation Tribunal must receive this payment, made to the order of the Receiver General for Canada, within 15 days after service of the present determination.

A Review Hearing on the above matter was held December 6, 7 and 8, 1995, in the City Hall, in the city of Kingston, Ontario.

THE CONTRAVENTIONS

Mr. Pizzardi and Mr. Doyle received a Notice dated May 25, 1994, outlining four offences and a number of counts. It reads, in part:

NOTICE OF ASSESSMENT OF MONETARY PENALTY

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):

Offence 1

Air Regulations, s.534(2)(a), in that on each flight detailed in the following counts, a Cessna 172 aircraft registered C-GBPR was flown at an altitude of less than 1000 feet above the highest obstacle within a radius of 2000 feet from the aircraft.

Count 1: On or about June 7, 1993, at approximately 14:10 local time over the built-up area of the settlement of Harrowsmith, Ontario.

Count 2: On or about July 14, 1993, over the built-up area of the settlement of Garden Hill, Ontario.

Offence 2

Air Regulations, s.534(2)(b), in that on each flight detailed in the following counts, a Cessna 172 aircraft registered C-GBPR was flown at an altitude of less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

Count 1: On or about May 26, 1993, at approximately 13:00 local time, over the residences located on County Road 38, north west of Ivanhoe Station, Ontario.

Count 2: On or about June 2, 1993, at approximately 14:55 local time, over the residence located in the vicinity of Highway 37 and 7th Concession of Thurlow, north of Belleville, Ontario.

Count 3: On or about June 7, 1993, at approximately: 2:40 p.m. local time over the residences located near the vicinity of R.R. 1 Newburgh, Ontario.

Count 4: On or about July 28, 1993, at approximately 15:50 local time, over the residences located in the vicinity of Highways 7 and 28, near Fowlers Corners, Ontario.

Count 5: On or about August 25, 1993, at approximately 12:20 local time, over the residence on the l0th Concession, West Flamborough, in the vicinity of Flamborough, Ontario.

Offence 3

Air Regulations, s. 210(1)(a), in that a Cessna 172 aircraft registered C-GBPR was flown during the period of approximately May 26, 1993 through August 25, 1993, on approximately thirty-five (35) flights when the certificate of airworthiness was not in force. The certificate of airworthiness was not in force because a maintenance release was not completed following maintenance performed on or about March 24, 1993.

Pursuant to the Aeronautics Act, s.8.4(1) Richard Pizzardi and Donald Doyle, as the registered owners of C-GBPR, are liable for the penalty provided for the contraventions assessed in respect of Offences 1, 2 and 3.

Offence 4

Air Regulations, s.826(1), in that the journey log for Cessna 172 aircraft registered C-GBPR was not maintained in accordance with Aircraft Journey Log Order (ANO VIII, No 2, s.3) as no entries were made for each flight detailed by the following counts.

Count 1: May 26, 1993 at approximately 13:00 local time in the vicinity of Ivanhoe, Ontario.

Count 2: May 27, 1993 at approximately 21:53 U.T.C. in the vicinity of Kingston, Ontario.

Count 3: June 2, 1993 at approximately 14:55 local time in the vicinity of Highway 37 and 7th Concession of Thurlow north of Belleville, Ontario.

Count 4: June 7, 1993 at approximately 14:00 local time in the vicinity of Harrowsmith, Ontario.

Count 5: June 7, 1993 at approximately 14:30 local time in the vicinity of Newburgh, Ontario.

Count 6: June 22, 1993 at approximately 16:41 U.T.C. in the vicinity of Kingston, Ontario.

Count 7: June 22, 1993 at approximately 17:22 U.T.C. in the vicinity of Kingston, Ontario.

Count 8: June 23, 1993 at approximately 13:39 U.T.C. in the vicinity of Kingston, Ontario

Count 9: June 27, 1993 at approximately 19:34 U.T.C. in the vicinity of Kingston, Ontario

Count 10: July 14, 1993 at approximately noon in vicinity of Garden Hill, Ontario.

Count 11: July 20, 1993 at approximately 21:11 U.T.C. in the vicinity of Kingston, Ontario.

Count 12: July 28, 1993 at approximately 15:50 local time in the vicinity of Fowlers Corners, Ontario.

Count 13: July 29, 1993 at approximately 14:52 U.T.C. in the vicinity of Kingston, Ontario.

Count 14: July 29, 1993 at approximately 16:50 U.T.C. in the vicinity of Kingston, Ontario.

Count 15: August 4, 1993 at approximately 21:26 U.T.C. in the vicinity of Kingston, Ontario.

Count 16: August 5, 1993 at approximately 16:58 U.T.C. in the vicinity of Kingston, Ontario.

Count 17: August 25, 1993 at approximately 12:20 local time in the vicinity of Flamborough, Ontario.

Monetary penalty assessed as follows:

Offence 1

Count 1: $ 500.00

Count 2: 500.00

Offence 2

Count 1: 500.00

Count 2: 500.00

Count 3: 500.00

Count 4: 500.00

Count 5: 500.00

Offence 3

1,000.00

Offence 4

Count 1: 150.00

Count 2: 150.00

Count 3: 150.00

Count 4: 150.00

Count 5: 150.00

Count 6: 150.00

Count 7: 150.00

Count 8: 150.00

Count 9: 150.00

Count 10: 150.00

Count 11: 150.00

Count 12: 150.00

Count 13: 150.00

Count 14: 150.00

Count 15: 150.00

Count 16: 150.00

Count 17: 150.00

TOTAL PENALTY ASSESSED $ 7,050.00

THE LAW

Portions of the Aeronautics Act, the Air Regulations and the Airworthiness Manual relevant to this case are:

Aeronautics Act

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

7.9 (2) Where a person served with a request under subsection (1) fails to appear before the member of the Tribunal at the time and place set out in the request, the member of the Tribunal shall consider all the information that is presented to him by the Minister in relation to the contravention referred to in the request.

7.9 (4) Where a person served with a request under subsection (1) appears before the member of the Tribunal at the time and place set out in the request, the member of the Tribunal shall provide the Minister and the person with a full opportunity consistent with procedural fairness and natural justice to present evidence before the member of the Tribunal and make representations in relation to the alleged contravention.

37 (1) Subject to subsection (5), the Tribunal or a member thereof is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

Air Regulations

210 (1) No person shall fly or attempt to fly an aircraft, other than a hang glider or an ultra-light aeroplane, unless there is in force in respect of that aircraft

(a) a certificate or airworthiness issued under this Part or under the laws of the country in which the aircraft is registered

534 (2) Except as provided in subsections (4), (5) and (6), or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft

(a) over the built-up area of any city, town or other settlement or over any open air assembly of persons except at an altitude that will permit, in the event of an emergency, the landing of the aircraft without creating a hazard to persons or property on the surface of the earth, and such altitude shall not in any case be less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft; or

(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

826 (1) Every owner of an aircraft, other than an ultra-light aeroplane, registered under these Regulations shall maintain for that aircraft an aircraft journey log and an aircraft technical log.

(2) The Minister may, by order, prescribe the particulars to be entered in the aircraft journey log and the aircraft technical log that are to be maintained pursuant to subsection (1).

Airworthiness Manual

575.103 Maintenance Release

(a) Except as provided in 575.109, where an aircraft has undergone maintenance, the certificate of airworthiness or flight permit of that aircraft is not in force until a maintenance release has been signed in respect of the work performed.

(b) N/A

(c) No person shall sign a maintenance release unless the maintenance in respect of which the release is prepared has been performed in accordance with the applicable standards of airworthiness.

(d) No person shall sign a maintenance release in respect of any partially completed task unless the details of the outstanding items are entered in the appropriate maintenance record.

BACKGROUND

The allegations heard during these proceedings all relate to events that occurred in 1993.

A teleconference was held November 1, 1995, some six weeks prior to this Hearing. The participants were Mr. Richard Pizzardi and Mr. Donald Doyle, the Minister's representatives, Mr. Mike Wilcox and Mr. Oskar Binder, and Bruce Pultz of the Civil Aviation Tribunal. Mr. Doyle stated that they had not received full and timely disclosure and thus were unable to contact some or all of the witnesses prior to the Hearing. The Tribunal agreed and the Hearing was postponed for about a month. It was rescheduled to December 6, 7 and 8, 1995.

During this hearing, Mr. Doyle again stated that they had not received the names and phone numbers of the witnesses that the Minister intended to call. The Tribunal determined that while Mr. Pizzardi and Mr. Doyle had not received disclosure in the precise format requested, they had received adequate disclosure to properly prepare their defence.

This Hearing lasted three days with witnesses for the Minister heard each day. Mr. Pizzardi and Mr. Doyle did not call any witnesses, or formally present other evidence to the Hearing.

THE OFFENCES AND COUNTS

At the commencement of this Hearing, the Minister's representative announced that they would not be proceeding against Mr. Pizzardi and Mr. Doyle with respect to Counts 6, 7, 8 and 9 of Offence 4.

All the allegations in this case relate to flights in Cessna 172 aircraft C-GBPR. Mr. Pizzardi and Mr. Doyle were, at the time, the registered owners of this aircraft. To summarize, the allegations identified in:

  • Offences 1 and 2 relate to low flying.
  • Offence 3 relates to operating the aircraft when the Certificate of Airworthiness was not in force.

The above allegations are made under the vicarious liability provision of subsection 8.4(1) of the Aeronautics Act. The allegations in:

  • Offence 4, failure to make proper entries in the aircraft Journey Log Book, were made directly against Mr. Pizzardi and Mr. Doyle as the Registered Owners.

To prove these allegations the Minister brought:

  1. witnesses who testified that the aircraft flew near them at a low altitude;
  2. a witness who testified regarding "Daily Air Traffic Records" which indicated that the aircraft arrived or departed the Kingston airport on specific dates;
  3. copies of fuel receipts and a witness to show the aircraft had flown on specific dates, and
  4. copies of the aircraft Journey Log Book to show that no entries were made for some of the flights referred to in items 1, 2 and 3 above.
  5. Also, copies of the Journey Log were introduced to show that some thirty-five flights were made when the Certificate of Airworthiness was not in force.

There were thirteen flights that resulted in one, or more, allegations. Several flights resulted in an allegation that there had been a contravention for both low flying and the failure to properly keep the Journey Log. The following flights relate to the allegations made under Offences 1, 2 and 4.

THE WITNESSES

The Minister alleges that, during a flight which took place May 26, 1993, Cessna aircraft C-GBPR contravened the low flying regulations and Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the aircraft Journey Log Book.

Mr. Steve Farrell witnessed the flight. He identified himself as the Director of Safety and Compliance for J & F Trucking. He has about twenty years experience in industrial and traffic investigation. He has no aviation experience but enjoys airplanes. His testimony relates to an incident which took place at approximately 13:00 hours local time over the residences located on Country Road 38, north west of Ivanhoe Station, Ontario.

Mr. Farrell was working on a farm in a rural area. The weather was clear and sunny. He was holding the head of a large Belgian horse while another man was working at the rear of the horse. The horse started "fussing up."

An aircraft, which he thought was a Cessna 172, appeared very low. It came by them once, then turned, circled and came by them again. He estimated the aircraft altitude to be equal to the height of two or three hydro poles, which are approximately 40 feet high in his area. He then deduced the aircraft altitude to be between 80 and 120 feet above the ground. Mr. Farrell stated the aircraft was blue and white and the registration was C-GBPR.

He had previously seen aircraft that low only when students were practising touch and go's. He initially thought the airplane was going to land, or was in trouble. On the aircraft's second pass, the horse Mr. Farrell was holding "tried to stand up" and pulled him off the ground. He feared for his safety and that of the person at the rear of the horse. They had to make repairs to the inside of the barn because the horses in the barn had been frightened and had damaged some mangers.

I accept Mr. Farrell's testimony, and I confirm a contravention of low flying under paragraph 534(2)(b) as outlined in Offence 2, Count 1. I uphold the associated monetary penalty of $500.00. I also find that there was a failure to make a Journey Log entry, a contravention of subsection 826(1) as outlined in Offence 4, Count 1. I uphold the associated monetary penalty of $150.00.

The Minister alleges that a flight took place May 27, 1993 and that Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the Journey Log Book.

Mr. Boyd Cumming, the manager of the Kingston Flight Service Station, explained that the on-duty operator of the Flight Service Station keeps a log called the Daily Air Traffic Record (Exhibits M-20 to M-27). The entries note the aircraft registration, the aircraft type, the date and time the aircraft arrives or departs or contacts the Flight Service Station by radio.

Mr. Cumming identified and explained the entry for May 27, 1993 (Exhibit M-20). He stated that the record showed Cessna 172 C-GBPR arrived at the Kingston airport at 21:53Z and departed at 21:45Z. It was not brought out during testimony at the Hearing, but it has been subsequently noted that the information on this Exhibit seems to show that, on the day in question, the aircraft departed some eight minutes before it arrived. Obviously one of the entries is in error. In any event, either entry on its own serves to verify that a flight occurred.

Inspector Binder entered a fuel receipt (Exhibit M-30) which showed that aircraft C-GBPR, a Cessna 172, purchased fuel on May 27, 1993. He testified that he obtained the receipt from Central Airways, a fuel vendor on the Kingston airport, to show that C-GBPR flew on the day in question.

I accept the testimony of both Mr. Cumming and Inspector Binder. I determine that their evidence, in total, supports that on a balance of probabilities at least one flight occurred, and there was a failure to make a Journey Log entry, a contravention of subsection 826(1) as outlined in Offence 4, Count 2. I uphold the associated monetary penalty of $150.00.

The Minister alleges that, during a flight which took place June 2, 1993, Cessna aircraft C-GBPR contravened the low flying regulations and Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the aircraft Journey Log Book.

Mr. John Olson witnessed the flight. He identified himself as a retired Canadian Air Force pilot. He flew as an active pilot for some thirty years, including twelve to fifteen years involvement in flight safety and accident prevention. He flew numerous types of aircraft including some time instructing on the Chipmunk which would be defined as a light aircraft. His testimony relates to an incident which took place at approximately 14:55 hours local time over the residence located in the vicinity of Highway 37 and 7th Concession of Thurlow, north of Belleville, Ontario.

Mr. Olson was working on his house in a rural area which contains a fair number of houses, including acreages and farms. He was first attracted to the sound of an aircraft undergoing large power changes, then he saw it doing tight turns low to the ground. It was occasionally climbing and descending to stay with the contours of the surface. The aircraft was a Cessna type, white with blue trim and the registration was C-GBPR. It circled and flew directly over him twice. He estimated the altitude to be between 100 and 300 feet. He judged the altitude by knowing the aircraft's wing span is about 35 feet and noting that the altitude was equivalent to three or four wing spans. He could also see detail clearly on the aircraft, including the faces of the people in the cockpit.

Inspector Binder entered a fuel receipt (Exhibit M-31) which showed that aircraft BPR had purchased fuel on June 2, 1993. He testified that he obtained the receipt from Central Airways, a fuel vendor on the Kingston airport, to show that C-GBPR flew on the day in question.

The Minister also introduced the Daily Air Traffic Record for Kingston for June 2, 1993 (Exhibit M-21). This record showed that C-GBPR both arrived and departed Kingston. The entry indicating the departure time had the aircraft registration letters transposed to read C-GBRP. Inspector Binder testified that this must have been a typographical error, as he looked up the aircraft registered as C-GBRP and found it to be a glider based in Quebec. In any event, the correct entry serves to prove that a flight took place that day.

I accept Mr. Olson's testimony and confirm a contravention of low flying under paragraph 534(2)(b) as outlined in Offence 2, Count 2. I also uphold the assessment of a $500.00 monetary penalty.

The fuel receipt introduced by Inspector Binder along with the Daily Flight Record and the evidence of Mr. Olson, in total, support that on the balance of probabilities at least one flight occurred, and there was a failure to make a Journey Log entry, a contravention of subsection 826(1) as outlined in Offence 4, Count 3. I uphold the associated monetary penalty of $150.00.

The Minister alleges that, during a flight which took place June 7, 1993, Cessna aircraft C-GBPR contravened the low flying regulations, and Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the aircraft Journey Log Book.

Mr. Kenneth Evans witnessed the flight. He has a Private Pilot Licence and is a student at the Kingston Flying Club. His testimony relates to an incident which took place at approximately 14:10 hours local time over a built-up area in the settlement of Harrowsmith, Ontario.

Mr. Evans was standing on a small secondary road near his home at about 14:00 hours and saw an aircraft about a mile away flying very low and doing steep turns. He watched it for a few moments and then went home. A short time later, what he believed was the same aircraft came directly over his house. It came by his house twice, very low. He identified it as a Cessna 172 or 180, mostly white with blue trim with the registration markings C-GBPR.

Mr. Evans has a 65-foot T.V. antenna, and he estimated the aircraft to be approximately twice the height of the antenna, which puts the aircraft at an altitude of about 130 feet above ground. He noticed that the window on the left door of the aircraft was open or missing. He also noticed that the pilot was wearing sun glasses and waved at Mr. Evans.

As further evidence to show that C-GBPR flew on June 7, the Minister called Mr. Kent Warton. He worked at the Brockville airport at the time and refuelled C-GBPR. He testified that on June 7, 1993 he saw C-GBPR arrive and depart the Brockville airport. He refuelled the aircraft and identified Mr. Richard Pizzardi as one of the persons on board.

I accept the testimony of Mr. Evans and Mr. Warton and confirm an allegation of low flying under paragraph 534(2)(a) as outlined in Offence 1, Count 1. I uphold the assessment of a $500.00 monetary penalty. I also find there was a failure to make a Journey Log entry, a contravention of subsection 826(1) as outlined in Offence 4, Count 4. I uphold the associated monetary penalty of $150.00.

The Minister alleges that, during another flight which took place June 7, 1993, Cessna aircraft C-GBPR contravened the low flying regulations, and Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the aircraft Journey Log Book.

Mr. Edward Embury witnessed an incident that took place between 14:30 hours and 15:00 hours local time over the residences located near the vicinity of RR #1 Newburgh, Ontario.

Mr. Embury owns a large farm complex. He was standing near a noisy piece of equipment when he saw an aircraft flying very low over the trees. The aircraft made several passes, one directly over Mr. Embury. He estimated its altitude to be 150 feet above the ground. The aircraft flew near the top of his corn elevator which is 140 feet high. The airplane was white with blue trim. He also noticed that the aircraft had markings on it which included the letters G and B.

Mr. Embury had some previous contact with the "Department of Environment" and thought perhaps they had returned with an aircraft.

The Minister's representative showed Mr. Embury a photograph containing several light aircraft. Mr. Embury was able to identify a white and blue Cessna 172 as the aircraft in the photo that most closely resembled the machine he saw flying low over his farm.

There were two incidents on June 7 that resulted in allegations of low flying. One was witnessed by Mr. Evans near Harrowsmith and the other by Mr. Embury near Newburgh. Mr. Warton's evidence regarding refuelling C-GBPR at the Brockville airport (see previous flight) also supports at least two flights on June 7, one arriving and one departing the airport.

While I believe Mr. Embury honestly reported the events as he saw them, his testimony did not reflect an accurate assessment of the aircraft's altitude. He was able to obtain only two letters of the aircraft registration and was generally unfamiliar with the various types and sizes of aircraft. I believe the possibility of error in his estimate of the aircraft's altitude is significant. I therefore dismiss Count 3 of Offence 2 and the associated $500.00 monetary penalty.

The allegation of failing to properly keep a Journey Log is not dependent on Mr. Embury's accurate assessment of the aircraft's altitude. I find that the evidence, in total, shows that on a balance of probabilities the aircraft flew twice on June 7, 1993 without proper Journey Log entries; therefore, I confirm there was a contravention of subsection 826(1) as outlined in Offence 4, Count 5. I uphold the associated monetary penalty of $150.00.

The Minister alleges that, during a flight which took place July 14, 1993, Cessna aircraft C-GBPR contravened the low flying regulations, and Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the aircraft Journey Log Book.

Mr. Rudka witnessed the flight. He is not a pilot but is familiar with airplanes and has been involved with the local airport for five years. His testimony relates to an incident which took place over a built-up area of the settlement of Garden Hill, Ontario.

While Mr. Rudka was walking to the store, he saw the aircraft flying low and doing turns. He noted that it was making large power changes. He recognized it as a white and blue Cessna 172 with the markings C-GBPR. The aircraft made about four passes over the road, one of which was right above him. The aircraft was flying at an altitude of about 150 feet. It maintained this altitude continuously during the time he saw the airplane.

He has observed Search and Rescue helicopters operating in the area, and they were not as low as this aircraft. He has never seen another aircraft flying in the area as low as this aircraft was flying.

Mr. Rudka has a keen interest in aviation and appears to be an accurate observer of aircraft operations. While he did not use a comparative measure to estimate the aircraft's altitude, I accept his testimony.

I confirm the Minister's allegation of a contravention of paragraph 534(2)(a) as outlined in Offence 1, Count 2, and I uphold the assessment of a $500.00 monetary penalty. I also find that there was a failure to make a Journey Log entry, a contravention of subsection 826(1) as outlined in Offence 4, Count 10. I uphold the associated monetary penalty of $150.00.

The Minister alleges that, during a flight which took place July 28, 1993, Cessna aircraft C-GBPR contravened the low flying regulations, and Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the aircraft Journey Log Book.

Mr. Eugene Luxemburger witnessed the flight. His testimony relates to an incident which took place at approximately 15:50 hours local time over the residences located in the vicinity of Highways 7 and 28 near Fowlers Corners, Ontario.

Mr. Luxemburger has been flying for some forty years. He was the Chief Glider Instructor of the Glider Club and was on the airport at Omemme, Ontario. He received a phone call from a local resident complaining that the Glider Club's tow plane was flying too low over some nearby houses. He went to the hangar where their tow plane was kept and found the engine was cold. He then drove to the area where the complaint came from.

At about 14:30 hours, as he left the hangar, he noticed an aircraft flying very low. It was at tree-top height. It was a white and blue Cessna with the registration C-GBPR. He initially thought it was a 150, but later thought it may have been a 172. It was flying quite slow with the flaps down and made six or seven passes over the area. He estimated the height of the aircraft to be 30 to 50 feet above the ground. He used the tree tops, hydro poles and a couple of T.V. antennae to assist in judging the aircraft's altitude.

The Minister also introduced the Daily Air Traffic Record for the Kingston airport for July 28, 1993 (Exhibit M-23). This record showed that C-GBPR arrived at 21:23Z.

Even though Mr. Luxemburger initially thought the aircraft was a Cessna 150, I accept his testimony and confirm the Minister's allegation of a contravention under paragraph 534(2)(b) as outlined in Offence 2, Count 4. I uphold the assessment of a $500.00 monetary penalty. I also find that there was a failure to make a Journey Log entry, a contravention of subsection 826(1) as outlined in Offence 4, Count 12. I uphold the associated monetary penalty of $150.00.

The Minister alleges that, during a flight which took place August 25, 1993, Cessna aircraft C-GBPR contravened the low flying regulations, and Mr. Pizzardi and Mr. Doyle failed to make an entry for the flight in the aircraft Journey Log Book.

Mrs. Ellen Wall witnessed the flight. She lives in a rural area on a 100-acre farm. Her testimony relates to an incident that took place at approximately 12:20 hours local time over the residence on the 10th Concession, West Flamborough, in the vicinity of Flamborough, Ontario.

She was in her yard when she saw the aircraft. It was white with turquoise blue. The markings were C-GBPR. It flew low over their farm and circled several times. She estimated the altitude of the aircraft at between 80 and 100 feet. She knows their silos are 80 feet high, and she thought the aircraft was going to hit the top of the silo. She said that aircraft occasionally fly over their farm at an altitude sufficiently low to scare their live stock. She was also concerned that someone was possibly using an airplane to survey their property for a later robbery.

I accept Mrs. Wall's testimony and confirm the Minister's allegation of a contravention under paragraph 534(2)(b) as outlined in Offence 2, Count 5, and I uphold the assessment of a $500.00 monetary penalty. I also find that there was a failure to make a Journey Log entry, a contravention of subsection 826(1) as outlined in Offence 4, Count 17. I uphold the associated monetary penalty of $150.00.

The Minister alleges that five additional flights took place for which Mr. Pizzardi and Mr. Doyle failed to make the proper entries in the Journey Log Book.

Mr. Boyd Cumming, the manager of the Kingston Flight Service Station, identified and explained several entries in the Daily Air Traffic Record (Exhibits M-22, M-24, M-25, M-26 and M-27).

I accept the testimony of Mr. Cumming regarding the information on the Daily Air Traffic Record. There were minor errors in some entries, none of which affected the essence of his evidence which was a confirmation that certain flights took place in C-GBPR.

Mr. Cummings's testimony showed that on a balance of probabilities the following flights occurred:

I find there was a flight on July 20, 1993 wherein aircraft C-GBPR arrived at the Kingston airport at 21:11Z and departed at 22:06Z. (Exhibit M-22). I confirm the allegation of a contravention of subsection 826(1) relating to Offence 4, Count 11. I uphold the associated monetary penalty of $150.00.

The evidence shows that aircraft C-GBPR was in contact with the Kingston Flight Service Station twice on July 29, 1993, once while departing the airport at 14:52 (Exhibit M-24) and again some 1 hour and 58 minutes later when C-GBPR contacted Kingston by radio (Exhibit M-25). The Minister has treated these as individual events and has assigned separate counts, Offence 4, Counts 13 and 14. There is a good possibility that this was a single flight. I therefore find that Counts 13 and 14 should be combined. I confirm the allegation of a contravention of subsection 826(1) relating to Offence 4, Counts 13 and 14 combined. I uphold the associated monetary penalty of $150.00.

I find there was a flight on August 4, 1993 wherein aircraft C-GBPR arrived at the Kingston airport at 21:26Z (Exhibit M-26). I confirm the allegation of a contravention of subsection 826(1) relating to Offence 4, Count 15. I uphold the associated monetary penalty of $150.00.

I find there was a flight on August 5, 1993 wherein aircraft C-GBPR departed the Kingston airport at 16:58Z (Exhibit M-27). I confirm the allegation of a contravention of subsection 826(1) relating to Offence 4, Count 16. I uphold the associated monetary penalty of $150.00.

Offence 3

Offence 3 involves the alleged operation of Cessna C-GBPR when its Certificate of Airworthiness was not in force because maintenance had been performed and a Maintenance Release was not properly completed in the Aircraft Journey Log.

It was the Minister's evidence, as given by Inspector Wilcox, that subsection 826(1) of the Air Regulations requires that the aircraft owner maintain a Journey Log. A copy of the Journey Log (Exhibit M-33, part 1 of 2) shows that maintenance work was recorded March 24, 1993. There was no corresponding Release specifically indicating that the maintenance had been performed in accordance with the applicable standards of airworthiness, as required by section 575.103 of the Airworthiness Manual. The Minister alleges that some 35 flights which occurred after march 24, 1993 were in violation of paragraph 210(1)(a) of the Air Regulations and has assessed a $1.000.00 penalty for all the flights.

Mr. Pizzardi and Mr. Doyle did not offer evidence as to any mitigating factors which could justify operating the aircraft when the Log Book entries failed to indicate that it had been properly maintained.

The Tribunal confirms that a contravention has occurred and upholds the $1.000.00 penalty.

CROSS-EXAMINATION

Mr. Pizzardi and Mr. Doyle were not present on December 6, the first day of this Hearing. As a result they did not have an opportunity to observe or cross-examine 4 witnesses. The witnesses presented by the Minister on that day were Mr. Steve Farrell, Mr. John Olson, Mrs. Ellen Wall and Mr. Dan Rudka.

Mr. Pizzardi and Mr. Doyle requested that either the Hearing be reconvened to re-hear the 4 witnesses or the related allegations be dropped.

By way of background, the Tribunal first received the request for a Review Hearing on June 27, 1994. It took some 16 months to schedule a hearing. The Tribunal made a number of attempts to contact Mr. Pizzardi and Mr. Doyle, and finally a hearing was set for November 7, 8 and 9, 1995. Those dates were set and agreed to by all parties on October 4, 1995, over a month before the scheduled Hearing.

On October 31, 1995, about a week before the scheduled Hearing, Mr. Doyle called the Tribunal requesting that the Hearing be postponed, and the previously referred to teleconference was held. Following this teleconference, the Tribunal decided to postpone the Hearing and it was re-scheduled for December 6, 7 and 8, 1995.

The Hearing was to begin at 10:00 hours. At approximately 09:30 hours, the Tribunal office in Ottawa received a call from Mr. Doyle stating he was still in his home near Montreal and would not be in Kingston in time for the start of the Hearing. He stated the weather had been unsuitable for driving but was improving. It was agreed that the start of the Hearing would be put back to 13:00 hours, and Mr. Pizzardi and Mr. Doyle would leave "as soon as practicable" and arrive as close to 13:00 hours as safe driving would allow.

The Minister's representative had scheduled the testimony of 4 witnesses that day (Wednesday), 5 witnesses Thursday and 2 witnesses Friday. The witnesses came from a wide area across the province of Ontario.

At 13:00 hours Mr. Pizzardi and Mr. Doyle had not arrived and had not contacted the Tribunal. In giving consideration to further delaying the Hearing, an important factor was that it was not practical to simply "bump" the 4 witnesses which were to be heard Wednesday to the next day. As there was no way to know what time Mr. Pizzardi and Mr. Doyle would arrive, a decision was made to proceed with the Hearing. It commenced shortly after 13:00 hours.

The evidence of the 4 witnesses was heard and the Hearing adjourned in late afternoon. Mr. Pizzardi and Mr. Doyle did not make an appearance and thus did not participate in the Hearing on Wednesday, December 6.

Mr. Pizzardi and Mr. Doyle did appear at the start of proceedings on Thursday morning. Mr. Doyle read the following statement into the record, and it was entered as Exhibit D-1.

I [sic] would be very unfair and not in usual procedure for any hearing or court for the accused not to have the right to cross-examin [sic] a witness. The reasons for that is for assessing the witness demeanor, his accuracy to remember events and offer helpful information to determine the validity of his testimony.

Mr. Chairman, if we are not given the right to cross examin those witnesses heard on Dec. 6th/95, it will go to the unfairness of this hearing. We are in the position to imply that the Civil Aviation Tribunal has over-stepped their mandat [sic] for a right to a fair hearing. The options are to allow us to cross-examin or stay those proceedings and withdraw the charges [related to Wednesday's witness testimony].

I'm sure Mr. Chairperson you can appreciate our position to ensure the right to a fair hearing by a fair and impartial Tribunal. Guidelines are set by the Tribunals and Court and they must be followed. Those are my submissions about the said matter.

The Minister's representative replied to Mr. Doyle's statement by saying that fair and proper notice of this Hearing was provided by the Tribunal. The notice was dated November 7, 1995, approximately a month before the Hearing. The Minister's representatives were able to make it to the Hearing, as did the Minister's witnesses and the Tribunal. Mr. Pizzardi and Mr. Doyle knew the weather conditions might result in slower than normal driving conditions, as everyone else did. They could have travelled the evening before the Hearing. The RCMP and Provincial Roads Ontario reported that road conditions were more than acceptable for automobile travel along their route.

All proper procedures were followed by the Tribunal, including delaying the start of the hearing for 3 hours to accommodate Mr. Pizzardi and Doyle.

The Minister's representative further stated that Mr. Pizzardi and Mr. Doyle were offered the opportunity to review the audio tapes of the testimony of the 4 witnesses heard on Wednesday, but chose not to do so.

The Minister's representative does not agree that Mr. Pizzardi and Mr. Doyle have the grounds to request that this Hearing be re-convened at a later date so they may have the opportunity to cross-examine the 4 witnesses. Nor have they shown grounds for the allegations to be withdrawn.

DISCUSSION

In all actions taken by the Tribunal and its members, including decisions on process, the most important feature is fairness. Subsection 7.9(4) of the Aeronautics Act directs that during a Review Hearing:

. . . the member of the Tribunal shall provide the Minister and the person with a full opportunity consistent with procedural fairness and natural justice to present evidence before the member of the Tribunal and make representations in relation to the alleged contravention.

Subsection 37(1) of the Aeronautics Act states that:

. . . the Tribunal or a member thereof is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

To grant Mr. Doyle's request that he have the opportunity to cross-examine all the witnesses would mean re-convening the Hearing for this purpose alone.

It must be decided whether Mr. Pizzardi and Mr. Doyle were genuinely unable to get to Kingston for the first day of the Hearing because of poor driving conditions or if, in fact, they could have been properly in attendance if they had wanted to be.

The Tribunal believes that the principle of fairness must be applied to all participants, this includes the Minister and the witnesses as well as Mr. Pizzardi and Mr. Doyle. If fairness is to be truly applied, it must apply to everyone.

Having regard to the issue of fairness in its broadest sense, the Tribunal notes that Mr. Doyle's request for a postponement of the Hearing during the teleconference was based primarily on his wanting to obtain the names and telephone numbers of the witnesses the Minister intended to call. This was an important reason for granting a postponement. Having undergone this further delay, there was no indication at the Hearing that Mr. Pizzardi and Mr. Doyle had, in fact, made an effort to contact any of the witnesses prior to the Hearing.

CONCLUSION

After a careful analysis of all the circumstances of this case, the Tribunal concludes that, on a balance of probabilities, Mr. Pizzardi and Mr. Doyle could have attended the first day of the Hearing by making no more than a reasonable effort.

The right to cross-examination, particularly in an administrative law context, is by no means absolute. With regard to proceedings before the Civil Aviation Tribunal, the right to cross-examine must be assessed against the Tribunal's overall statutory mandate. This mandate includes, as noted, instructions to deal with matters, "as informally and expeditiously as the circumstances and consideration of fairness and natural justice permit." The mandate also includes how to proceed in the event the Respondent does not appear at a Review Hearing.

Subsection 7.9(2) states that, when a person has been properly served with a request to appear and then fails to appear, " . . . the member of the Tribunal shall consider all the information that is presented to him by the Minister in relation to the contravention referred to in the request."

In the case at hand, I believe that the Tribunal's commitment to fairness has been properly met by the many accommodations made in setting a Hearing date, postponing the Hearing and delaying the Hearing's start time. It must also be noted that Mr. Pizzardi and Mr. Doyle declined the opportunity to review the tapes of the evidence given by witnesses when they were not in attendance. In these circumstances, I am of the view that granting the request of Mr. Pizzardi and Mr. Doyle to reconvene the Hearing for the purposes of cross-examining that evidence would amount, in itself, to an abuse of process.

Mr. Pizzardi and Mr. Doyle were provided with adequate disclosure of the case against them and were also provided with a reasonable opportunity to meet and rebut the Minister's evidence. As such, I believe that the requirements of fairness and natural justice have been met, and I therefore decline to reconvene the Hearing or to dismiss the relevant offences.

Offences 1, 2 and 3 were alleged under the vicarious liability provisions of subsection 8.4(1) of the Aeronautics Act. This section specifically provides relief if, at the time of the offence, ". . . the aircraft was in the possession of a person other than the owner without the owner's consent . . . ." The Tribunal notes that Mr. Pizzardi and Mr. Doyle did not avail themselves of this defence. At no time did they give any indication that they were unaware of the operations of Cessna C-GBPR.

Offence 4, involving the failure to make proper entries in the aircraft Journey Log, was alleged directly against Mr. Pizzardi and Mr. Doyle as the Registered Owners.

SUMMARY

A summary of the Offences and the monetary penalties are:

Offence 1

Count 1: $500.00 Confirmed
Count 2: $500.00 Confirmed

Offence 2

Count 1: $500.00 Confirmed
Count 2: $500.00 Confirmed
Count 3: Dismissed
Count 4: $500.00 Confirmed
Count 5: $500.00 Confirmed

Offence 3

$1,000.00 Confirmed

Offence 4

Count 1: $150.00 Confirmed
Count 2: $150.00 Confirmed
Count 3: $150.00 Confirmed
Count 4: $150.00 Confirmed
Count 5: $150.00 Confirmed
Count 6: Withdrawn
Count 7: Withdrawn
Count 8: Withdrawn
Count 9: Withdrawn
Count 10: $150.00 Confirmed
Count 11: $150.00 Confirmed
Count 12: $150.00 Confirmed
Count 13: Combined with Count 14
Count 14: $150.00 Confirmed
Count 15: $150.00 Confirmed
Count 16: $150.00 Confirmed
Count 17: $150.00 Confirmed

TOTAL PENALTY ASSESSED $5,800.00

DETERMINATION

Offence 1: I confirm counts 1 and 2 (Air Regulations 534(2)(a)).

Offence 2: I confirm counts 1, 2, 4 and 5 (Air Regulations 534(2)(b)). I dismiss count 3.

Offence 3: I confirm offence 3 (Air Regulations 210(1)(a)).

Offence 4: I confirm counts 1 to 5, 10 to 17 (Air Regulations 826(1)), although I combine counts 13 and 14 as one count. Counts 6 to 9 were withdrawn by the Minister.

The total monetary penalty is confirmed at $5,800.00.

Bruce L. Pultz
Vice-Chairperson
Civil Aviation Tribunal


Appeal decision
Arthur H. Lindop, Faye H. Smith, Suzanne Jobin


Decision: October 31, 1996

The Tribunal dismisses the Appeal and upholds the Tribunal's Review Determination. The Tribunal must receive the payment of $5,800.00, made payable to the order of the Receiver General for Canada, within 15 days after the service of this determination.

An Appeal Hearing on the above matter was held before the three designated Tribunal Members, Wednesday, August 28, 1996 at 10:30 hours at the Federal Court of Canada, in the city of Montreal, Quebec.

BACKGROUND

In a Notice of Assessment of Monetary Penalty dated May 25, 1994, the Minister of Transport assessed monetary penalties in the total amount of $7,050.00 against Mr. Pizzardi and Mr. Doyle held vicariously liable as owners of a Cessna 172 aircraft, (registered as C-GPBR), respecting alleged offences of low flying and the operation of the aircraft when its certificate of airworthiness was not in force. It was further alleged that Mr. Pizzardi and Mr. Doyle were liable as owners for failure to maintain the aircraft journey log.

Following a Review Hearing on December 6, 7, and 8, 1995, Mr. Bruce Pultz rendered a determination on January 9, 1996, upholding the Minister's allegations and confirming the monetary penalties assessed by the Minister save for count 3 in offence 2 which was dismissed. The particulars of the determination are as follows:

Offence 1: I confirm counts 1 and 2 (Air Regulations 534(2)(a)). $1,000.00

Offence 2: I confirm counts 1, 2 , 4 and 5 (Air Regulations 534(2)(b)). I dismiss count 3. $2,000.00

Offence 3: I confirm offence 3 (Air Regulations 210(1)(a)). $1,000.00

Offence 4: I confirm counts 1 to 5, 10 to 17 (Air Regulations 826(1)), although I combine counts 13 and 14 as one count. Counts 6 to 9 were withdrawn by the Minister. $1,800.00

Total monetary penalties assessed: $5,800.00

GROUNDS FOR APPEAL

Richard Pizzardi and Donald Doyle by letter dated January 24, 1996 appealed this determination on grounds summarized as follows:

1) The witnesses who testified on the first day of the hearing were not present on the subsequent hearing days, and thus their testimony was not subjected to cross-examination by the Appellants. Witnesses John Olson and Dan Rudka were not available for cross-examination, and thus the contents of their testimony was unknown to the Appellants.

2) The Tribunal Member failed to consider the testimony of Mr. Steve Farrell which indicated that the aircraft was going to land in a field.

3) The Tribunal Member did not take into account the testimony of Mr. Boyd Cummings relating to flight records in which errors were made by his personnel.

4) The Tribunal Member accepted as evidence a fuel bill which could have come from other locations and had two letters missing and could have been the receipt of another aircraft.

The Appellants request that they be granted a new hearing so that witnesses who were not available for cross-examination would be available.

ARGUMENTS

Mr. Doyle on behalf of the Appellants stated that on the day of the Review Hearing, he had notified the Tribunal that due to road conditions he could not be at the hearing. He indicated that he had arrived in Kingston from his home in Quebec in the evening of the first day of the hearing. He further stated that on the second day he had requested that he be given the opportunity to cross-examine the four witnesses who had appeared the day before. He felt that he could have obtained more detailed information by cross-examination.

He also urged that the records of the Kingston Flying Club should not have been taken at face value since they had errors and further that the fuel bill which was submitted was incomplete. In addressing offence 3, Mr. Doyle found the assessed penalty to be excessive. The Appellants request that four of the alleged infractions should be withdrawn.

The Respondent alleges that the Tribunal Member at review made a reasoned decision to proceed with the hearing and that the non attendance of the Appellants at the review was not grounds for re-examination of the witnesses. She said that a large number of witnesses had been summoned to give evidence on the first day of the hearing, and they could not re-attend the next day.

The Respondent summarized facts relating to the requested adjournment as follows: The adjournment requested at the review was not the first adjournment in the matter. The Appellants had requested the adjournment at about nine thirty in the morning and the Tribunal Member adjourned the matter until one o'clock in the afternoon. There was no further communication from the Appellants between nine thirty in the morning and five o'clock in the afternoon of that day.

The Respondent further argued that the right to cross-examination is not absolute, and that the Appellants were offered the opportunity to review tapes of the testimony of the first hearing day although declined to do so.

The Respondent requested that the determination of the Tribunal Member be upheld, and that the penalties in the amount of $5,800.00 be confirmed.

ISSUES

1. INABILITY TO CROSS-EXAMINE WITNESSES

The Appellants argue that, by reason of their absence, they were unable to cross-examine the four witnesses who appeared on the first day of the Review Hearing and thus were treated unfairly.

At page 15 of the Review Determination, under the heading "CROSS-EXAMINATION", the Tribunal Member makes a very detailed account of the facts relating to the absence of Mr. Pizzardi and Mr. Doyle on December 6 which was the first day of the hearing. On that day, Mr. Farrell, Mr. Olson, Mrs. Wall and Mr. Rudka presented their evidence which was not subjected to cross-examination by the Appellants who did not arrive at the hearing until its resumption the next day.

While it is unnecessary in our view to repeat the facts, it is telling to consider at least three things. First, that following the telephone call at 9:30 a.m. on December 6, it was agreed that the start of the hearing would be put back from 10:30 hours to 13:00 hours and that Mr. Pizzardi and Mr. Doyle would leave "as soon as practicable" and arrive as close to 13:00 hours as safe driving would allow. Apparently, four witnesses were scheduled to proceed on that first day of the hearing with five more on the second day and two on the third hearing day. The witnesses came from a wide area across the province.

Secondly, at 13:00 hours, the Applicants had not arrived and had not contacted the Tribunal. The Tribunal Member stated that, in giving consideration to further delaying the hearing, an important factor was that it was not practical to simply "bump" the scheduled 4 witnesses over to the next day. As there was no way of knowing what time Mr. Pizzardi and Mr. Doyle would arrive, a decision was made to proceed with the hearing. It commenced shortly after 13:00 hours.

Thirdly, upon commencing the next day, Mr. Doyle read a statement into the record, which statement was later filed as Exhibit D-1. Essentially Mr. Doyle submitted that it would be unfair and unusual to be deprived of the right to cross-examination and asked to be allowed to cross-examine the witnesses or to have the charges related to their evidence withdrawn. When offered the opportunity to review the audio tapes of the testimony of the four witnesses heard the previous day, Mr. Pizzardi and Mr. Doyle chose not to do so.

The Tribunal Member, at pages 17 and 18 of his determination, cited the subsection 7.9(4) of the Aeronautics Act as follows:

... the member of the Tribunal shall provide the Minister and the person with a full opportunity consistent with procedural fairness and natural justice to present evidence before the member of the Tribunal and make representations in relation to the alleged contravention.

In declining Mr. Doyle's request that he have the opportunity to cross-examine all the witnesses who had appeared on the first day of the hearing when Mr. Pizzardi and Mr. Doyle were absent, the Tribunal Member stated that, for fairness to be truly applied, it must be applied to all participants. He further stated that the right to cross-examination, particularly in an administrative context, is by no means absolute and must be assessed against the Tribunal's overall statutory mandate to deal with matters as informally and expeditiously as the circumstances and consideration of fairness and natural justice permit.

We concur with the conclusion reached by the Tribunal Member at review that on a balance of probabilities Mr. Pizzardi and Mr. Doyle could have attended the first day of the hearing making no more than a reasonable effort and that the Tribunal's commitment to fairness had been met in this case in its setting of the hearing date, postponing the hearing and delaying the hearing start time.

2. TESTIMONY OF AIRCRAFT LANDING IN A FIELD – EXCEPTION TO PARAGRAPH 534(2)(b) OF THE AIR REGULATIONS:

It is suggested by the Appellants that one of the witnesses on the first day of the hearing testified that the aircraft was going to land in a field, and it is also suggested that the Tribunal Member failed to consider Mr. Farrell's evidence on this issue. This witness did allude to the possible landing by the aircraft; however, we would note at page 14 of the transcript that the witness concluded that the aircraft did not land.

There is no actual evidence in the transcript of the proceedings nor elsewhere in the record of any landing or attempted landing in the field by the aircraft in question. Thus the exception set out in the introductory words of paragraph 534(2)(b) has not been made out by the Appellants on whom the burden falls to establish that such exception applies. Accordingly, we must conclude that the Member at review was correct in his confirmation of a contravention of low flying being paragraph 534(2)(b) of the Air Regulations in count 1 of offence 2 as well as the related breach of subsection 826(1) of the Air Regulations respecting failure to make the entry in the journey log.

3. TESTIMONY RELATING TO ERRORS IN FLIGHT RECORDS

and

4. FUEL BILLS SUBMITTED IN SUPPORT OF THE FLIGHT IN QUESTION

Mr. Boyd Cummings' evidence was that he did not personally make the entries in the Kingston Airport Daily Air Traffic Reports, that he did not see the aircraft and that he was acting in a supervisory role at the time of the alleged infraction. He stated that the employees rely on the radio for identification of aircraft in making these entries.

In his determination, the Tribunal Member at review acknowledged that these records made in the ordinary course of business are admissible, and he further acknowledged the possibility of errors. He did nonetheless conclude that this evidence together with that of Inspector Binder relating to the fuel receipts showed that the aircraft flew at least once on the day specified. Thus the Tribunal Member confirmed contravention of subsection 826(1) of the Air Regulations as outlined in offence 4, count 2. Having reviewed this evidence in its totality, we are in agreement with these conclusions.

CONCLUSION

The Appellants' request for a new hearing is denied. After careful review of the circumstances this panel also adheres to the view that to grant the Appellants' request to reconvene the hearing for the purposes of cross-examining the evidence given on the first day of the hearing would amount to an abuse of the process. Accordingly, we cannot conclude that the inability to cross-examine the witnesses who had given testimony on the first day of the hearing amounts to a denial of natural justice and thus are of the opinion that the issue regarding cross-examination of witnesses was rightly decided by the Tribunal Member.

Paragraphs 7.9(5)(a) and (b) of the Aeronautics Act make it quite clear that the burden of proving the elements of each of the alleged contraventions rests with the Minister of Transport, and that the Appellants need not give any evidence or testimony. Once the Minister of Transport has provided evidence and made its case, the evidentiary burden shifts in these as in all strict liability offences[1] to the Appellants who must prove on a balance of probabilities that they have exercised all due diligence to prevent the commission of the offences as alleged or proof of any exception or defence as applies in the circumstances of the case.

On a review of the material before us, we concur with the assessments of fact and the conclusions reached by the Member at review regarding proof on a balance of probabilities of the elements of the offences as alleged. We have also concluded that the Appellants have not satisfied us as to the applicability of any exceptions or defences that would apply under the Aeronautics Act.

For the above reasons, the Tribunal dismisses the Appeal and upholds the Tribunal's Review Determination.

Reasons for Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Suzanne Jobin
Arthur H. Lindop


[1] Regina v. Sault Ste. Marie, [1978] 2 S.C.R. 1299