Decisions

CAT File No. O-1338-33
MoT File No. PAP-6504-P-729464-027209

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Jacques André Eric Goyet, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, ch. A-2, s. 7.7, 8.1(3) and 37
Air Regulations, C.R.C. 1978, ch. 2, s. 218(a), 534(2)(a)

Rule of Evidence-Element of Proof, Maximum Weight, Open Air Assembly, Low Altitude Flight, Basic Weight and Balance Record


Review Determination
Suzanne Jobin


Decision: August 15, 1997

TRANSLATION

The Respondent, Jacques André Eric Goyet, did not contravene paragraph 534(2)(a) of the Air Regulations. Accordingly, the Minister's assessment of a monetary penalty of $500.00 for contravention is cancelled. As for paragraph 218(a) of the Air Regulations, the Tribunal upholds the minister's decision and confirms the $500.00 monetary penalty assessed. The $500.00 monetary penalty is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Tuesday, April 1, 1997, at 10:00 hours in the Standard Life Building, in the city of Ottawa, Ontario. The hearing continued Thursday, June 19, 1997, at 10:00 hours in the same venue.

BACKGROUND

On August 22, 1996, Transport Canada issued a Notice of Suspension that reads in part 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):

Offence #1

Air Regulations, s.534 (2) (a), in that you, on or about August 26, 1995, in the vicinity of Hill Island, Ontario, as pilot-in-command of Enstrom 280C helicopter registered C-GJWQ, flew over an open air assembly of persons at an altitude less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft.

Offence #2

Air Regulations, s.218 (a), in that you, on or about August 26, 1995, at or near the Kingston Airport in the Province of Ontario, did unlawfully fly an aircraft, to wit: an Enstrom 280C Helicopter registered C-GJWQ, when the weight of the said aircraft and its load exceeded the maximum permissible weight specified in the Certificate of Airworthiness and, the maximum take-off weight specified for the aircraft in the Aircraft Type Approval Data Sheet which forms part of the said certificate of Airworthiness.

PREAMBLE

Before the Review Hearing of April 1, 1997, a request for a postponement had been filed by Transport Canada, and submissions were filed by the Respondent objecting to the Applicant's request. The Tribunal notified the parties that representations would be heard at the Review Hearing on this matter and a determination subsequently rendered.

According to the wishes expressed by Transport Canada, and given the absence of certain witnesses, it was agreed that the Review Hearing of April 1, 1997 would apply only to the offence proceeded against pursuant to paragraph 218(a) of the Air Regulations. It was also agreed that the parties would present all the evidence of that alleged offence at that hearing. At the request of the Respondent's counsel, a written submission was allowed and sent to the Tribunal on April 21, 1997 by the Respondent. A written response to this submission was filed by Transport Canada on May 5, 1997. The oral arguments of the Applicant had been presented April 1, 1997.

It is worth noting that the parties subsequently agreed that the evidence presented on that first day of the hearing could be used to decide the case concerning the alleged contravention of paragraph 534(2)(a) of the Air Regulations.

At the Review Hearing of April 1, 1997, the Tribunal set June 6, 1997 as the date for resumption of the hearing. At the Respondent's request, a second postponement was granted and the Review Hearing was postponed until June 19. A third request for a postponement by the Respondent's new counsel was denied by the Tribunal. The Respondent represented himself when the Review Hearing resumed June 19, 1997.

THE LAW

Section 7.7 of the Aeronautics Act provides as follows:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Paragraph 534(2)(a) of the Air Regulations stipulates as follows:

(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;

Paragraph 218(a) of the Air Regulations states:

218. No person shall fly or attempt to fly any aircraft unless

(a) the weight of the aircraft and its load does not exceed the maximum permissible weight specified in the certificate of airworthiness or flight permit;

THE FACTS

On August 26, 1995, the Respondent, Jacques André Eric Goyet, was the pilot-in-command of a helicopter registered as C-GJWQ. With him were two passengers, Mr. Patrick Portelance and Mr. Bernard Dupuis, both of whom were preparing to cover, as work assignments, an aquatic event.

These passengers had boarded the aircraft in Gananoque, in the Province of Ontario. They stopped for fuel at Kingston Airport and then headed for Hill Island, where there were many boats participating in this event and several spectators. One passenger was equipped with a photographic camera, and the other with a video camera. The pilot experienced some difficulties, and the helicopter crash-landed on the water below.

ARGUMENTS

Paragraph 534(2)(a) of the Air Regulations:

Transport Canada claims that on August 26, 1995, during the aforementioned event, the Respondent flew at an altitude below that permitted by the regulations. Transport Canada argues that the evidence presented at the Review Hearing clearly shows that the alleged contravention did take place and is therefore asking the Tribunal to confirm the Minister's decision.

The Respondent maintains that on August 26, 1995, at the time of the alleged offence, he was experiencing major mechanical difficulties. He testified that these difficulties caused the aircraft to lose power and forced him to make an emergency landing. Before these mechanical difficulties became apparent, the Respondent claims he was flying at an altitude and a distance permitted by the Air Regulations. He is therefore asking the Tribunal to dismiss the indictment brought pursuant to paragraph 534(2)(a) of the Air Regulations.

Paragraph 218(a) of the Air Regulations:

The Applicant claims that the Respondent flew an aircraft whose weight and load exceeded the maximum permissible specified in the certificate of airworthiness or flight permit, in contravention of paragraph 218(a) of the Air Regulations. The Applicant argues that the maximum permissible weight for this type of aircraft is 2,350 pounds, and that when the alleged offence occurred the aircraft's weight exceeded the maximum allowed.

Whichever scenario is accepted, the Applicant alleges that the weight of the aircraft exceeded the maximum allowed when it was at or near Kingston Airport. The Applicant's representative argues that this overload could not have been less than 110 pounds and, counting 45 pounds for baggage, may have been as much as 154 pounds over the maximum permissible weight. This overload was 217 pounds, taking into account the real weight of the passengers.

In these circumstances, and in view of the evidence presented, the Minister is asking the Tribunal to confirm his decision and maintain the $500.00 monetary penalty imposed on the Respondent.

Moreover, the Respondent claims that the Minister has not proven that on August 26, 1995, the weight of the aircraft registered as C-GJWQ exceeded the maximum permissible weight specified in the certificate of airworthiness or flight permit.

The Respondent challenges the validity of the documentary evidence presented by the Applicant, specifically, the validity of the document entitled Basic Weight and Balance Record (Exhibit M-10), which establishes the aircraft's empty weight. He also challenges the veracity of the data used by the expert witness for the Applicant to establish the aircraft's weight at the time of the alleged offence. He claims that this expert's testimony was based on hearsay and on documents that were out-of-date, incomplete or inadmissible in evidence.

In short, it is the Respondent's opinion that the Minister has not established the empty weight of the aircraft on August 26, 1995. Nor has he established, as he claims, the weight of the baggage, the weight of the fuel containers or container, and the real weight of the helicopter's passengers on that date. The Respondent therefore argues that the Applicant has not met his burden of proof, and therefore asks the Tribunal to cancel the Minister's decision.

DISCUSSION

Paragraph 534(2)(a) of the Air Regulations:

Transport Canada has shown that on August 26, 1995, in the vicinity of Hill Island, Ontario, an Enstrom 280C helicopter, registered as C-GJWQ and flown by the Respondent, flew over an assembly of persons at an altitude and a distance less than those stipulated by the regulations.

While the Minister of Transport has successfully proven the above facts, it is the Tribunal's opinion that the Respondent's testimony and the evidence presented explain the alleged conduct.

Mr. Goyet has testified that, at the time of the alleged offence, he was experiencing mechanical difficulties which forced him to attempt an emergency landing. However, there is a stipulation that, in such a case, the prohibition of paragraph 534(2)(a) does not apply. The Tribunal has no reason to doubt the Respondent's credibility.

Transport Canada has shown that the aircraft had had some mechanical difficulties the day before the flight of August 26, 1995. While the Transport Canada expert doubts that further problems occurred or that the conduct criticized was the result of mechanical difficulties, he does not entirely rule out this possibility.

No matter, only the aircraft's pilot-in-command knew the circumstances in which the events of the alleged offence took place. He testified that before the mechanical troubles occurred, the aircraft was flying at an altitude and within a radius consistent with the regulations.

It is true, I agree, that certain witnesses presented by Transport Canada contradict the pilot's testimony on this point. The testimony is far from consistent on this matter. The Tribunal must, in the circumstances, give the Respondent the benefit of the doubt. Again, the Tribunal has no reason to doubt the veracity of the Respondent's testimony or his credibility.

Paragraph 218(a) of the Air Regulations:

The Tribunal is of the opinion that the evidence presented at the Review Hearing showed, on a balance of probabilities, that on August 26, 1995, the weight of the helicopter registered as C-GJWQ exceeded the maximum permissible weight of 2,350 pounds when it was at or near Kingston Airport.

The documentary evidence and the testimony given have established to the Tribunal's satisfaction that the empty weight of the aircraft was 1,641 pounds on August 26, 1995. The Respondent's arguments that the documents submitted were out-of-date cannot be maintained. The objections of the Respondent's representative as to the inadmissibility of document M-10 are dismissed. Although the document dates from 1981, Transport Canada's expert witness and inspector both confirmed its validity and applicability at the time of the alleged offence.

The evidence also showed that the aircraft's fuel tanks were filled when it stopped at Kingston Airport. According to the data provided by Transport Canada, the capacity of the tanks was 40 American gallons, equivalent to 240 pounds.

As for the other allegations, Transport Canada presented three scenarios. The first scenario, which the Tribunal adopts in this proceeding, establishes the weight of a passenger at 182 pounds, based on a standard and practice. According to this formula, the weight of the passengers on board was 546 pounds.

Even without taking into account the weight of the baggage or the real weight of the passengers, which may be greater than the standard used, the maximum permissible weight for this type of aircraft was evidently exceeded at the time the helicopter took off from Kingston Airport. The arguments of the Respondent's representative concerning the use of the standard of 182 pounds or the credibility of the testimony given cannot refute this fact.

It must be remembered that the alleged offence is a strict liability offence. The Minister of Transport therefore has the burden of proving, on a balance of probabilities, that the alleged offence occurred. The Minister did not have to prove that the Respondent deliberately contravened the provisions of the Air Regulations. The Respondent could have raised section 8.5 of the Aeronautics Act as a defence to clear himself of all liability in this case. This section states as follows:

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

The Respondent has chosen not to testify in this case, and cannot raise this defence.

DETERMINATION

The Respondent, Jacques André Eric Goyet, did not contravene paragraph 534(2)(a) of the Air Regulations. Accordingly, the Minister's assessment of a monetary penalty of $500.00 for contravention is cancelled. As for paragraph 218(a) of the Air Regulations, the Tribunal upholds the Minister's decision and confirms the $500.00 monetary penalty assessed.

Suzanne Jobin
Member
Civil Aviation Tribunal


Appeal decision
Caroline Desbiens, Faye H. Smith, Pierre Rivest


Decision: February 17, 1998

TRANSLATION

The Tribunal dismisses the appeal and upholds the Tribunal's Review Determination of August 15, 1997. The Tribunal confirms the assessed monetary penalty of $500.00. The $500.00 monetary penalty is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.

An Appeal Hearing on the above matter was held Friday, January 30, 1998, at 10:30 hours, at the Standard Life Building, in Ottawa, Ontario.

BACKGROUND

The Minister, hereinafter referred to as "the Respondent," issued a Notice of Assessment of Monetary Penalty to Mr. Jacques André Eric Goyet, hereinafter referred to as "the Appellant," pursuant to section 7.7 of the Aeronautics Act, on the grounds that on or about August 26, 1995, near Kingston Airport, in the province of Ontario, the Appellant flew an Enstrom 280C helicopter bearing registration marks C-GJWQ when its weight exceeded the maximum permissible weight specified in the certificate of airworthiness and the aircraft type approval, a contravention of paragraph 218(a) of the Air Regulations.

A Review Hearing concerning this alleged offence was held before Member Suzanne Jobin, in Ottawa, April 1, 1997, and continued June 19, 1997.

On August 15, 1997, the Review Tribunal upheld the decision of the Respondent Minister with respect to the alleged offence and confirmed the assessed monetary penalty of $500.00.

REASONS FOR REVIEW DETERMINATION

The Review Tribunal found that the evidence presented at the hearing by the Respondent had shown, on a balance of probabilities, that on August 26, 1995, the weight of helicopter C-GJWQ flown by the Appellant exceeded the maximum permissible weight (2,350 pounds) on take-off.

Specifically, the Review Tribunal determined that the empty weight of the aircraft in force at the time of the alleged offence was 1,641.85 pounds, that the maximum permissible weight was 2,350 pounds, and that the Appellant had flown the helicopter while its weight exceeded the permissible useful load of 709 pounds, as the aircraft's actual useful load was at least 786 pounds on take-off. The assessed overload of 77 pounds was conservative, as only the weight of both the aircraft's fuel tanks, full at the time of take-off (240 pounds), and the weight of the three passengers, totalling 546 pounds, was taken into account. The weight of each passenger was determined using the standard of 182 pounds per passenger which is generally applied in the field of aviation to calculate an aircraft's weight and balance. The Review Member did not include the weight of either the baggage or the uncontested weight of the engine oil in calculating the helicopter's overload.

This determination was rendered in view of the documentary evidence, testimony and expert opinion submitted by the Respondent at the Review Hearing, the Appellant having provided no evidence to refute any of the elements of proof of the alleged offence by the Respondent. Nor did the Appellant place in evidence any element that might have supported a defence of due diligence within the meaning of section 8.5 of the Aeronautics Act.

It therefore appears, specifically, that the following elements of proof were not at all disputed at the Review Hearing: the date of the flight, the location of the alleged infraction, the pilot's identity, the identity of the aircraft, the maximum permissible weight of 2,350 pounds, the number of passengers (three adults, including the pilot), the 15 pounds of engine oil (log book, Exhibit M-4), the fact that one passenger had complete mobile equipment for filming the aquatic event (passenger Portelance's testimony), the fact that one of the helicopter's doors, weighing 6 pounds, was removed before the flight, the fact that the pilot had filled the fuel tanks before the flight (Mr. Birrell's testimony), and the fact that the two tanks on board the helicopter had a capacity of 40 American gallons, were full (Mr. Birrell's testimony), and weighed the equivalent of 240 pounds (Mr. Coyle's expert testimony and log book entry, Exhibit M-4).

During the Review Hearing, the Appellant confined his argument to the claim that the Minister had not proven the empty weight of the helicopter and its overload on take-off. The Appellant disputed the admissibility of the "Basic Weight and Balance Record" (Exhibit M-10) filed by the Respondent, as this document dated from March 15, 1981, its author was not known, it had been issued when the aircraft was under American certification, and there was nothing to indicate that the aircraft had undergone any modification since that date, as the entire aircraft log book had not been produced at the Review Hearing. It should be pointed out that the Appellant did not cross-examine the Respondent's witnesses about this document.

As for the lack of evidence concerning the aircraft's overload, the Appellant claimed, in short, that the Minister had erred in its calculation of the aircraft's useful load with respect to the following: (a) in not disregarding the weight of the aircraft's door which was removed before the flight; (b) in counting 55 pounds as baggage weight, whereas the witness Portelance had stated that his video equipment weighed less than 50 pounds; and (c) in not taking into account the real weight of the three passengers. It should be pointed out that the Appellant never placed in evidence the real weight of the passengers to dispute the Respondent's claim in this regard.

As mentioned earlier, the Review Member dismissed these claims, pointing out that although the Basic Weight and Balance Record dated from 1981, Transport Canada's expert witness and inspector had confirmed its validity and applicability at the time of the alleged offence. Moreover, not counting the baggage weight and the real weight of the passengers, which may have exceeded the standard used, the Review Member concluded that the maximum permissible weight for this helicopter had obviously been exceeded at the time of take-off.

GROUNDS FOR THE APPEAL

The Appellant appealed this determination on September 12, 1997, and the Appeal Hearing was held January 30, 1998, in Ottawa.

The grounds cited for the appeal may be summarized as follows:

The Review Tribunal erred in determining the aircraft's empty weight based on the weight shown in the Basic Weight and Balance Record (Exhibit M-10). The Appellant claims that the Basic Weight and Balance Record and the form approving these latest modifications (Exhibit M-5), used to determine the empty weight of the helicopter, are not valid because they date from March 15, 1981, and because the Respondent did not place in evidence the helicopter's log book to attest to the weight and balance in force for the aircraft before the alleged infraction. In short, the Minister of Transport did not discharge its burden of proving that the empty weight of the helicopter, 1,641.85 pounds, was in force at the time of the incident, because the Basic Weight and Balance Record should have been "validated" by the latest log book entries to be made by the aircraft maintenance engineer (AME) with respect to this helicopter's weight and balance.

As the second ground for appeal, the Appellant argues that the Respondent did not prove that the helicopter was overloaded at the time of take-off, as it did not prove the real weight of the passengers, and the baggage weight had not been clearly established at 55 pounds.

THE ISSUES

  1. Did the Review Tribunal err in finding that the Minister had discharged its burden of proving, on a balance of probabilities, that the aircraft's empty weight on take-off was 1,641 pounds? Specifically, did the Review Tribunal err in finding that the Basic Weight and Balance Record and the testimony of Transport Canada's Inspector Elliott and its expert witness were sufficient to show that the aircraft's empty weight at the time of the alleged offence was 1,641 pounds, in the absence of proof to the contrary from the Appellant?
  2. Did the Review Tribunal err in finding that the Minister had discharged its burden of proving, on a balance of probabilities, that the aircraft was overloaded at the time of take-off? Specifically, did the Tribunal err in counting a total weight of 546 pounds for the passengers, which weight was determined based on the standard and practice generally applied in the field of aviation to calculate weight and balance, namely, 182 pounds per passenger?

DISCUSSION

Let us recall first that under the terms of subsection 37(1) of the Aeronautics Act, 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.

We would also point out that the Review Tribunal was correct in determining that the Minister of Transport had the burden of proving, on a balance of probabilities, the occurrence of the alleged offence. In fact, this Tribunal has ruled many times that the applicable criterion for assessing evidence before this Tribunal should be that of a balance of probabilities.

In this case, however, the dispute concerned the probative value of the "Basic Weight and Balance Record" and its amendment (Exhibits M-10 and M-5) produced by the Respondent, dating from March 15, 1981, and bearing no dated Canadian certification.

It appears, specifically from the evidence, that this report was initially issued by the American government's Federal Aviation Administration (FAA) while the aircraft was registered in the United States. This document shows the empty weight of the helicopter in question (identified by its serial number) and the changes made to this weight on March 15, 1981. In fact, the Respondent filed Exhibit M-5, entitled "Major repair and alteration," also issued by the FAA, certifying that the aircraft's Basic Weight and Balance Record of January 10, 1980 was amended March 15, 1981, following the installation of a radio on board the helicopter, bringing the helicopter's empty weight to 1,641.85 pounds. From Exhibit M-10, it appears that this Basic Weight and Balance Record was signed by a Transport Canada representative when the aircraft was registered in Canada. The identity of the signer and the date of signing are not known. At the hearing, the Transport Canada inspector for the Ontario Region, responsible for investigating this case, stated, however, that the Basic Weight and Balance Record and its amendment dated March 15, 1981, were the documents in force in Canada at the time of the alleged offence, as no amendments or changes had been made since March 15, 1981. In fact, had the helicopter undergone any major alteration since being registered, Transport Canada would have issued a new Basic Weight and Balance Record, as required by law. This inspector checked the Transport Canada records himself (p. 38 of the transcript). This Basic Weight and Balance Record for the helicopter was therefore an integral part of the certificate of airworthiness that was filed as Exhibit M-2, and would be the official document for determining the empty weight of the helicopter.

The Civil Aviation Tribunal has previously ruled many times, specifically in Minister of Transport v. 123582 Canada Inc.,[1] that this Tribunal is an administrative tribunal whose procedure leaves considerable latitude to apply the rules of natural justice or the principle of fairness.

Thus, the Civil Aviation Tribunal is not limited to applying the rules of evidence which take precedence in a civil or criminal matter. However, the value given the elements of proof allowed in this context is still based on the recognized broad legal principles of fairness and natural justice.

The Respondent submits that, on page 6 of her determination,[2] the Member relied on these principles in dismissing the Appellant's arguments that the documents were out-of-date: "The Respondent's arguments that the documents submitted were out-of-date cannot be maintained. The objections of the Respondent's [here, the Appellant's] representative as to the inadmissibility of document M-10 are dismissed. Although the document dates from 1981, Transport Canada's expert witness and inspector both confirmed its validity and applicability at the time of the alleged offence."

Relying on the case Wayne A. Hodges v. Minister of Transport,[3] the Respondent claims that Transport Canada was not required to summon the author of the document to testify, as there were no elements showing that the document may not have been accurate. According to the Minister, the Appellant had every opportunity to cross-examine the Minister's expert witness and inspector in this case as to the probative value of this Basic Weight and Balance Record, and produced no evidence to refute or even challenge its accuracy.

The Appellant responded that the Minister of Transport should have produced in evidence the entire aircraft journey log to prove that the said Basic Weight and Balance Record (Exhibit M-10) had not been amended. In support of this claim, the Appellant submitted an element of proof that had not been presented at the Review Hearing, namely, that the helicopter had allegedly undergone alterations one year before the alleged offence (the helicopter had allegedly been painted) and these alterations should have resulted in an amendment to the Basic Weight and Balance Record for this aircraft. To show the impact such an alteration can have on an aircraft's weight and balance, the Appellant also attempted to file copies of log books of other aircraft in which aircraft maintenance engineers had entered calculations of weight and balance. The Tribunal refused to allow these elements as evidence during the appeal.

We in fact could not allow as evidence these elements submitted by the Appellant, as under the terms of subsection 8.1(3) of the Aeronautics Act, the Appeal Tribunal shall not hear evidence that was available at the Review Hearing.

Nor can we accept the Appellant's claim that it is necessary to check the aircraft's Basic Weight and Balance Record against its log book. At that hearing, the Appellant decided not to submit any evidence in this regard and did not even attempt to cross-examine the Respondent's witnesses on this point. The Appellant thus never refuted or challenged the probative value of the documents submitted by the Minister, namely, the Basic Weight and Balance Record and its amendment (Exhibits M-10 and M-5). We therefore agree with the Minister's contention that the Review Tribunal did not err in finding that this Basic Weight and Balance Record showed, on a balance of probabilities, that the empty weight of the aircraft applicable at the time of the alleged offence was 1,641.85 pounds. In fact, according to the evidence submitted, this Basic Weight and Balance Record formed an integral part of the aircraft's certificate of airworthiness (Exhibit M-2) at the time of the incident. As the Transport Canada investigator testified, this report was still in force according to Transport Canada records, as no changes had been made to it.

In short, in view of this evidence, it is up to the Appellant to contest the probative value of these documents or to bring evidence of due diligence vis-à-vis the alleged offence. In the absence of elements of proof to the effect that this document was inaccurate or not in force, there was no need for the Respondent to summon the person who certified this document to testify. In fact, in the absence of evidence to the contrary, there was no reason to suppose that this Basic Weight and Balance Record did not accurately reflect the entries made such that the document attested to its content.

In view of the foregoing, the probative value attributed to the elements of proof admitted by the Review Tribunal in the context of this matter respected the recognized legal principles of fairness and natural justice.

As for the second ground of the appeal, it too must be dismissed.

The Appellant did not show that the Review Member erred in her assessment of the evidence as to the weight of the two fuel tanks, which were full. In fact, the Appellant produced no evidence at the Review Hearing to refute this element of proof. Furthermore, the Appellant's log book entries (Exhibit M-4) show a weight of 240 pounds for fuel, and according to section 28 of the Aeronautics Act, entries made in this log are proof of the matters stated therein as against the person who made the entry.

Moreover, it was not unreasonable for the Review Member to take into account 182 pounds per passenger, in accordance with the standard and general practice applied in the field of aviation to calculate the weight and balance of an aircraft. As the Appellant provided no evidence to the contrary as to the real weight of the passengers, it was reasonable to conclude that the Respondent had proven, on a balance of probabilities, that the total weight of the passengers and the fuel was at least 786 pounds, such that the maximum permissible weight for this aircraft was exceeded at the time of take-off. Furthermore, this conservative method used by the Review Member did not include the weight of the engine oil, established at 15 pounds, or the weight of the baggage which, though under 50 pounds, was certainly not negligible. In the circumstances, there was no doubt that the maximum permissible weight was exceeded, even taking into account the fact that one of the helicopter's doors had been removed. In fact, the weight of this door was negligible (6 pounds).

Consequently, the conclusions the Review Member drew from the facts were reasonable given the documentary evidence and testimony presented by the Minister of Transport, and given that the Appellant provided no evidence to the contrary.

FINDINGS

WHEREAS, pursuant to paragraph 218(a) of the Air Regulations, the weight of the aircraft and its load must not exceed the maximum permissible weight specified in the certificate of airworthiness or flight permit;

WHEREAS the documentary evidence (Basic Weight and Balance Record) and the testimony of Inspector Elliott of Transport Canada showed, on a balance of probabilities, that the empty weight of the aircraft applicable on August 26, 1995, was 1,641.85 pounds;

WHEREAS the Appellant's failure to provide evidence at the Review Hearing refuting the empty weight of the aircraft applicable on August 26, 1995, or contesting the probative value of the Basic Weight and Balance Record put in as evidence;

WHEREAS the helicopter's maximum permissible weight of 2,350 pounds was not refuted;

WHEREAS the Minister of Transport showed, on a balance of probabilities, that the aircraft was overloaded at the time of take-off, taking into account only the weight of the passengers and fuel tanks;

WHEREAS the weight of the engine oil and baggage was not negligible;

WHEREAS the Appellant provided no element of proof to refute or challenge the weight of the passengers and fuel established by the Respondent;

WHEREAS the alleged offence is a strict liability offence;

WHEREAS the Appellant did not invoke the grounds of defence provided in section 8.5 of the Aeronautics Act to exonerate himself in this matter;

The Tribunal dismisses the appeal and upholds the Tribunal's Review Determination of August 15, 1997. The Tribunal confirms the assessed monetary penalty of $500.00.

Reasons for Appeal Determination by:

Caroline Desbiens, Member

Concurred:

Faye Smith, Chairperson
Pierre Rivest, Member


[1] CAT File No. Q-0274-41, April 24, 1992, p. 5.

[2] (Review Determination) CAT File No. O-1338-41, August 15, 1997.

[3] ((Appeal Determination) File No. W-0142-02, October 29, 1992, p.12.