CAT File No. O-1342-37
MoT File No. 6504-C-6155-028211
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
641296 Ontario Inc. (north East Air Services), Respondent
Aeronautics Act, S.C., c.A-2, s.7.7, 7.9, 8.4(1), 37
Air Navigation Orders, II, No.4, 3; VIII, No.2, 3
Air Regulations, C.R.C. 1978, c.2, s.210(1)(a), 826(1), 827
Air Worthiness Manual, s.571.101(e)
Regulatory Compliance Procedures Manual, s. 12.6.1, 12.6.2, 12.6.3
Certificate of Airworthiness, Disclosure, Due Diligence, Hearsay, Journey Log Entries, Location of Hearing, Names of Witnesses, Notes, Observer at a Public Hearing, Prescription of Personal Apparel or Accessories, Vicarious Liability
Allister W. Ogilvie
Decision: June 4, 1997
Offence 1: I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 8. He has not met his burden on counts 9 and 10. The monetary assessment of $100.00 on each of counts 1 to 8 stands for a total of $800.00. Offence 2: I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 8. He has not met the burden on counts 9 and 10. The monetary assessment of $100.00 on each of counts 1 to 8 stands for a total of $800.00. Offence 3: I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 5. He has not met his burden on counts 6 and 7. The monetary assessment of $250.00 on each count stands for a total of $1,250.00. Offence 4: I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 8. He has not met his burden on counts 9 and 10. The monetary assessment of $250.00 on each count stands for a total of $2,000.00.
In the result, North East Air Services' assessed monetary penalty in the total amount of $4,850.00 is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this Determination.
A Review Hearing on the above matter was held May 5, 1997 at 10:00 hours at the Federal Court of Canada, in the city of Toronto, Ontario.
641296 Ontario Inc. doing business as North East Air Services (hereafter N.E.A.S.) is an air carrier which, in part, operates aerial-spray aircraft based in Brantford, Ontario but operated in diverse locations throughout the country. In late August and early September of 1995, N.E.A.S. had a contract for aerial spray application with Ontario's Ministry of Natural Resources (hereafter M.N.R.). N.E.A.S. was to supply aircraft, air crew and ground support personnel to perform that application. Between August 27 and September 9, 1995, it was alleged that N.E.A.S. did not maintain journey logs for two of its aircraft (C-FUOG and C-FJSH) and that those two aircraft were flown when their respective Certificates of Airworthiness were not in force as neither aircraft had received its scheduled 100-hour inspection.
Those allegations resulted in the following 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):
Air Regulations, s.826(1), in that as detailed in the following separate counts you, as the owner of a Schweizer G164A aircraft, registered C-FUOG, did not maintain for the aircraft a journey log pursuant to the Aircraft Journey Log Order, (Air Navigation Order Series VIII, No.2.s.3).
Air Regulations, s.826(1), in that as detailed in the following separate counts you, as the owner of a Schweizer G164A aircraft, registered C-FJSH, did not maintain for the aircraft a journey log pursuant to the Aircraft Journey Log Order, (Air Navigation Order Series VIII, No.2, s.3).
Air Regulations, s.210(1)(a), in that a Schweizer G164A aircraft, registered C-FUOG, was flown, as detailed in the following separate counts, when the certificate of airworthiness was not in force. The certificate of airworthiness was not in force because the aircraft did not receive a 100 hour inspection and no scheduled inspection interval tolerance was applied in accordance with the Airworthiness Manual chapter 571.101 (e) as required by the Inspection Program Approval.
Air Regulations, s.210(1)(a), in that a Schweizer G164A aircraft, registered C-FJSH, was flown, as detailed in the following counts, when the certificate of airworthiness was not in force. The certificate of airworthiness was not in force because the aircraft did not receive a 100 hour inspection and no scheduled inspection interval tolerance was applied in accordance with the Airworthiness Manual chapter 571.101 (e) as required by the Inspection Program Approval.
Before the commencement of the hearing of the issues, numerous preliminary motions were heard.
Mrs. Forbes appeared on behalf of the Respondent 641296 Ontario Inc. (N.E.A.S.). Mr. O. Binder appeared for the Applicant, Minister of Transport (hereafter the Minister).
The Respondent filed a written request to the Tribunal requesting that an order be made requiring the hearing participants to refrain from wearing perfume or cologne as she suffered adverse reactions to them. No order was made. At the outset of the hearing, upon noticing fragrances being worn, Mrs. Forbes made a motion to dismiss the hearing on the ground that she would suffer a reaction. The motion was denied. The Tribunal does not have the power to prescribe the participants' use of personal apparel or accessories.
The Respondent explained that, due to family problems and extenuating personal circumstances, her physician had ordered her not to continue work on the file. As she was the maintenance coordinator, only she could prepare the file. She had understood that the hearing would not go forward until the end of May. Having the hearing on May 5, 1997 did not allow sufficient time to prepare. Therefore, she requested an adjournment.
The adjournment was denied. The acts grounding the allegations occurred in August/September of 1995. A prior hearing date had been established and an adjournment had previously been given. The Notice of Review Hearing for May 5, 1997 was sent April 11, 1997. In the circumstances the Respondent had ample time to prepare its case.
The Respondent made a motion to dismiss based on a lack of full disclosure by the Minister. The disclosure package she received included "will-say" statements of witnesses, but did not include the witnesses' names. This hindered her ability to prepare a defence. Although the "will-say" indicated that some witnesses were ex-employees, this was not so for them all.
The Minister replied that full disclosure had been made by November 19, 1996. The names of witnesses were not provided for the fear of harassment and badgering that the Minister anticipated would occur if they had been disclosed. Further, N.E.A.S. did not ask for the names, when provided the disclosure.
The Respondent said a request had been made through Aviation Enforcement. Although some statements were identifiable as ex-employees, some were not, and N.E.A.S. was disadvantaged by that.
The Minister replied that the "will-say" sufficiently identified most individuals and that the names of some others were irrelevant, as various personnel working for the M.N.R. could be utilized as witnesses.
The motion was denied. An application to the Civil Aviation Tribunal may be made to order the Minister to produce the witnesses' names. The Respondent says she was not aware of that until the Friday before the hearing. There was sufficient time between the issuance of the disclosure package and the hearing for the Respondent to have made an application for disclosure of the names.
The Respondent stated that she could see on the desk at which the Minister's representative was seated that he had reams of charts and an analysis regarding the charges, but that she had not been disclosed any of it. On that basis, she moved for dismissal. The Minister's representative rebutted, stating that any such analysis was done in his own preparation, and that none of such analysis would be entered as evidence. The motion was denied. I was satisfied that the Minister had made appropriate disclosure.
The Respondent made a motion to disqualify a witness, a Mr. Tibor Ribi, on the basis of conflict of interest. A brief description of unsatisfactory business dealings between the Respondent and Mr. Ribi was given as the basis of such conflict.
The Minister replied that Mr. Ribi was to testify to facts, and his business relation was not in the equation.
The motion was denied. It is the nature of some witnesses, that they may be in a conflict with a participant in the hearing.
The Respondent made a motion to disqualify another witness, a Mr. G. Sutcliffe. Again a brief description of unsatisfactory relationship between the parties was given. She stated that her fear and anxiety regarding the witness might compromise her ability to cross-examine him.
The Minister replied that he had no control over the witness' behaviour as a former employee of N.E.A.S.
The motion was denied. I assured Mrs. Forbes that the hearing would be conducted in a civil manner.
The Respondent moved to disqualify another witness, a Mr. A. Klauke, on the basis that Mr. Klauke had not been advised of his rights and that his evidence was obtained by coercion. The basis of that allegation was that, in a telephone call between the Respondent and the witness, she asked if he knew of his right not to have to answer, and he replied no. He was also alleged to have said that he gave his answer because he was told he would be subpoenaed otherwise.
The Minister replied that the Minister of Transport does not provide warning to other than the alleged offender and that no threats had been issued.
The motion was denied on the basis that it is the alleged offender who has a right to be warned, not the witness. The obligation to appear at the hearing, pursuant to a subpoena, is not in the nature of a threat that would vitiate testimony.
The Minister called Mr. D. Desramaux, an employee of the M.N.R., District of Nipigon, who had administered the aerial-spray contract in the Nipigon District.
He testified to the existence of a contract for aerial spray between the M.N.R. and N.E.A.S. (Exhibit M-1). As well he was present at the Hele air-strip, from which N.E.A.S.' aircraft operated. He described some of the logistics of the operations. The M.N.R. created a document called the Aerial Spraying Load Record, which included aircraft operated, by whom, times out and in, number of litres carried and other information not germane to this proceeding (Exhibit M-1). Mr. Desramaux stated that the log indicated aircraft C-FJSH was flown by a Paul Willoughby, and an aircraft C-FUOG was flown by a Gordon Sutcliffe, and C-GQMA by a Tibor Ribi.
This log indicated that those aircraft had flown at Hele strip, in Nipigon on August 27, 28 and 29. Mr. Desramaux had made the log entries, or had supervised them and was personally on site.
Another document generated by the M.N.R. during the operation was entitled Fire Log but which was essentially a radio transmission log. It recorded the radio transmission times between the aircraft and the Hele airstrip and remarks. The log indicated transmissions from C-FUOG on August 27, and from all of the three previously noted aircraft on August 28 and 29. Mr. Desramaux also participated in the creation of this log and supervised the mixing/loading of chemicals for the aircraft and other site activities.
Mrs. C. Forbes, maintenance coordinator for N.E.A.S., presented its case. As such she cross-examined Mr. Desramaux. Exhibit M-1 contained numerous individual documents pertaining to the contract between the M.N.R. and N.E.A.S. One such sheet that Mr. Desramaux identified listed N.E.A.S.' personnel which included under the heading of Mix and Load Personnel:
(i) Supervisor – Ernie Parchewsky
(ii) Andreas Klauke
and under Aircraft Maintenance Engineer:
(i) Andrew Gabura
Mr. Desramaux acknowledged that Mr. Parchewsky and Mr. Klauke had been present at the airstrip during the operations.
Mr. Desramaux was cross-examined as to the accuracy of the times in and out found in the logs. It was established that there was no definition to guide him. He testified that the M.N.R. used the time of aircraft starting to roll on take-off and the radio-call from the pilot on touch down. It was established that he did not see each and every take-off or landing so could not swear as to each particular entry.
Upon completion of the work in Nipigon District, N.E.A.S.' aircraft were also contracted to spray blocks in the Atikokan District. Mr. Vern Craven, a supervisor for the M.N.R. Atikokan District, was called to testify. He was directly involved in the tender and award process between the M.N.R. and N.E.A.S. Exhibit M-2, entered through Mr. Craven consisted of two invoices between the M.N.R. and N.E.A.S. for aerial spray application in the Atikokan District. One invoice was signed by him, the other by another person who he stated had been a supervisor at that time.
The Aerial Spraying Load Record and Fire Log/Radio Log for the Atikokan spray area were entered as Exhibit M-3 and Exhibit M-4. The Radio Log entries for September 1, 2, 3, 4 and 7 indicate transmissions from aircraft C-FUOG and C-FJSH. C-GQMA is indicated in September 1-4 (Exhibit M-3).
The Aerial Spraying Load Record, Atikokan, shows the presence of all three aircraft, September 1-3 and C-FUOG and C-FJSH on September 4.
Upon cross-examination Mr. Craven stated that he was not at the airstrip, did not then make the entries, nor could he attest to the entries' accuracy. It was shown that in the Aerial Spraying Load Record for September 2, at load 3, aircraft C-GQMA shows an out time of 18:49 and an in time of 18:40, indicating a flight that took off before it arrived. Load 4 of the same day for aircraft C-FJSH indicates a time out of 18:43 and time in of 18:45, which would account for a two-minute flight. Mr. Craven could not testify whether the times recorded were from a rolling take-off or wheels up.
The Minister called Mr. P. Weiser who is an employee of Statistics Canada. His duties included the compilation of Aircraft Movement Statistics for Transport Canada. Exhibit M-5, four sheets of Aircraft Movement Statistics, was entered through Mr. Weiser.
He testified that the data on aircraft movement was observed and compiled at various airport sites and forwarded, where such data was compiled by him.
The Aircraft Movement Statistics sheet entered as Exhibit M-5 showed that aircraft C-FUOG and C-FJSH were observed in Brandon, Manitoba on August 25 and 26 and September 8 and 9. The aircraft are reported in Thunder Bay, Ontario and Fort Frances, Ontario, on August 26. They are both shown to be in Atikokan on August 29 and September 1, 2, 3 and 4 and C-FUOG only in Atikokan on September 7 and 8.
Upon cross-examination on this data, the witness could not testify as to who saw the aircraft, or who made the report. He stated he only compiled numbers provided and could not confirm, deny or edit the aircraft movements.
Day 2, Witness 4
The Minister called Mr. T. Ribi, a professional pilot currently self-employed with his own aircraft and company. During the summer of 1995, Mr. Ribi sub-contracted his service and aircraft – C-GQMA to N.E.A.S. which was to be responsible for the maintenance of his aircraft.
He testified to operating in Strasbourg, Saskatchewan, as well as in Atikokan and Nipigon on the aerial spray contracts with the M.N.R. He stated that he knew and worked with pilots Willoughby and Sutcliffe on those contracts.
Mr. Ribi testified that Mr. E. Parchewsky had advised him not to enter times in the log as no mechanic was available and a 100-hour inspection could not be done in the field. He stated that he knew Mr. Parchewsky to be the owner of N.E.A.S.
He also testified that pilots Willoughby and Sutcliffe had asked Mr. Parchewsky for 100-hour inspections.
He estimated his flying time to be 25 or 35 hours of spray and eight hours of ferry time.
Cross-examination largely probed past business dealings between Mr. Ribi and N.E.A.S. which were apparently quite unsatisfactory to both parties, but which was not germane to this proceeding.
Mr. Ribi conceded on cross-examination that it was the pilot's responsibility to complete the log, but reiterated that Mr. Parchewsky had told him not to do so.
Mr. Andreas Klauke was called by the Minister. He is an apprentice Aircraft Maintenance Engineer (AME). During August and September of 1995 he worked with N.E.A.S. stating his duties to be repair and maintenance of aircraft, C-FUOG and C-FJSH, as well as participating in the mix and load operation. He testified that he did not certify aircraft as he was not qualified and that there was no one on the sites who was so qualified.
He stated that others present on the site were Mr. E. Parchewsky and another apprentice AME. Mr. Klauke testified to have performed maintenance functions such as changing a tire, changing spark plugs, and rectifying a tail wheel cable break. He stated that he was aware that the aircraft were due for 100-hour inspections, that Mr. Parchewsky was also aware, but did nothing about it.
Mr. Klauke estimated that the aircraft flew about thirty hours in each of Nipigon and Atikokan.
In cross-examination Mr. Klauke's status was clarified. In Brantford, he worked as an apprentice AME for the Aircraft Maintenance Organization, a district entity from N.E.A.S. In the summer of 1995, he was placed on a leave of absence from the maintenance facility and given a contract as mix and load personnel for the air carrier entity. He was listed in Exhibit M-1 as mix and load personnel.
In further cross-examination he stated that he was aware that Mr. Andrew Gabura was the company AME and that Mrs. Forbes was the maintenance coordinator. However, he did not go through the maintenance coordinator regarding the on site mechanical issues, nor did he request Mr. Gabura to attend the site. However, he further stated that Mr. Parchewsky asked him to do the repairs right there, and stated that he thought Mr. Parchewsky, as owner, had the authority to do so.
Mr. Gordon Sutcliffe was called to testify by the Minister. He stated that he was a professional pilot, for some thirty years, holding an ATR licence and having experience on many types of aircraft. During the summer of 1995 he was asked by N.E.A.S. to ferry an aircraft out to Saskatchewan and was then asked by the owner, Mr. Parchewsky, to stay on and participate in spraying in Saskatchewan and then Atikokan and Nipigon. He flew the AG-CAT aircraft registered C-FUOG.
When questioned about having concerns with the operation, Mr. Sutcliffe testified that his aircraft was due for a 100-hour inspection but, when he asked that it be done, that Mr. Parchewsky replied there was not time and it would be done when convenient. He stated that to his knowledge the inspection was never done.
Other concerns were ongoing maintenance such as a broken tail wheel cable. He stated that Mr. Parchewsky wanted him to carry on with no repair, but he insisted upon it being rectified, a task which Mr. Klauke performed.
Mr. Sutcliffe stated that he estimated flying time to be about fifteen hours for each block and about ten to eleven hours each way for the ferry flights.
Cross-examination revealed that he had made no effort to contact the maintenance coordinator or the AME, Mr. Gabura, about his concerns. He did state that he did not need to contact the maintenance coordinator because Mr. Parchewsky was higher in the organization and reiterated that Mr. Parchewsky had told him to stop entries.
Regarding the unscheduled maintenance, Mr. Sutcliffe stated that he had assisted in replacing spark plugs on the engine and stated that there was no log entry of maintenance or release for such work.
Mr. Wilcox of Transport Canada was qualified as an expert in aviation Regulatory/Mechanical field, having extensive experience in both hands on and regulatory matters.
Through Mr. Wilcox, it was established that the Certificates of Registration for aircraft C-FUOG (Exhibit M-6) and C-FJSH (Exhibit M-8) listed 641296 Ontario Inc. (N.E.A.S.) as owner of both aircraft.
He testified that excerpts photocopied from the journey log of C-FUOG (Exhibit M-7) revealed that no flights were entered for August 27, 28 and 29 and September 1, 2, 3, 4, 7, 8 and 9. He also testified that the excerpts photocopied from the journey log of C-FJSH revealed that no flights were entered for August 27, 28 and 29 and September 1, 2, 3, 4, 7, 8 and 9.
Mr. Wilcox testified N.E.A.S. had an approved Inspection Program in place which required inspections of the aircraft at 100-hour intervals. Maintenance done in accord with the approved program had to be done to Transport Canada approved standards. Any defects rectified required a certification in a proper document by a qualified individual.
Inspector Wilcox testified that the journey log of C-FUOG showed the aircraft's last inspection to have been accomplished on June 21, 1995 at a time of 3156.7 hours. The last entry, before the period that is subject of the allegations, was August 21, 1995, showing 3245.1 hours.
As regards aircraft C-FJSH, he testified that its journey log showed the aircraft's last inspection to have been accomplished on April 26, 1995 at a time of 5590.9 hours. The last entry before the period that is the subject of the allegations was August 10, 1995 showing 5687.7 hours.
The cross-examination delved into areas that concerned the record of the company and type of operation it performed, which were not pertinent to the allegations.
Mr. Wilcox did concede that there was no definitive way to ascertain the number of hours flown over the 100-hour inspection.
Mrs. Forbes was sworn to give a statement on behalf of N.E.A.S., having chosen not to present any witnesses on its behalf.
She testified to being the maintenance coordinator of N.E.A.S., and detailed some of the position's duties, including compiling and filing Annual Aircraft Inspection Reports. This lead her to conclude that the average year sees 35-50 hours on each aircraft each year.
She stated that the air carrier N.E.A.S. was distinct from the maintenance facility.
In her duties she stated that she had created a detailed operations manual setting out positions. She gave personnel extensive training, telling each of the personnel of their particular duties and responsibilities.
During the busy season, as the aircraft and crew spread to diverse locations, she stayed at base to provide one base, one authority.
Mr. Gabura, the Director of Maintenance, was available to fly to each site, where the aircraft were located, if required.
The pilots were all given briefings and binders, outlining the line of authority with instructions to contact her with any concerns. The clear line of authority was pilot – maintenance – coordinator – maintenance facility.
Mrs. Forbes stated that Mr. E. Parchewsky was the owner of the company but did not have authority to direct its pilots. Mr. Parchewsky's authority lay in the ground operations such as fuelling and mix and load. He was simply not in the loop regarding maintenance.
On cross-examination, Mrs. Forbes again admitted that Mr. Parchewsky was the company owner. She conceded that N.E.A.S. operated aircraft C-FJSH and C-FUOG in August and September of 1995 on contracts with the M.N.R. in Nipigon and Atikokan. She conceded that N.E.A.S. was registered owner of each aircraft.
The Minister argued that, on the evidence presented, all elements of each offence had been proven on a balance of probabilities.
The proof of ownership of the aircraft was established through the Certificate of Registration of the aircraft and the admission of Mrs. Forbes.
The Minister argued that the proof of the flights having been made but not logged was established through the testimony of pilots, documentary evidence of the Aerial Spraying Load Record, Radio Logs, and Aircraft Movement Statistics when compared to the journey logs. The evidence of contracts between N.E.A.S. and the M.N.R. for aerial spray application in Nipigon and Atikokan Districts confirmed the other evidence.
Regarding the allegations of flying the aircraft while the certificate of airworthiness was not in force, the Minister argued that utilizing the journey logs excerpts in evidence, which showed times and dates of the last inspection, when compared to flying times given by witnesses, would show that 100-hour inspections were overdue on both aircraft, and thus they were being flown while Certificates of Airworthiness were not in force.
Mrs. Forbes, on behalf of N.E.A.S. gave oral testimony which included descriptions of very detailed operations manuals and subsequent procedures which were in place for N.E.A.S. during the time in question. Extensive training for personnel was provided, which included a clear delineation of authority. She stated that this was especially important as the equipment and personnel, by the very nature of the activities, were removed from the home base. She remained at the home base to provide a control functioning authority for the people to work through. She admitted that Mr. E. Parchewsky was the owner of N.E.A.S. but asserted that he had no authority to direct the pilots, as such authority was vested in her.
In essence, she asserted that N.E.A.S. exercised all due diligence to prevent any contraventions, by having all the proper systems in place.
However, during her testimony, she stated that it was the pilots' responsibility to keep the appropriate logs, and that in some cases they had failed to do so. During her testimony and arguments she stated that it was only during the hearing process that she became aware of the deficiencies in the operation, for example, the unscheduled, unauthorized field maintenance.
DISCUSSION – section 826 of the Air Regulations – offences 1 and 2
For the Minister to prove the allegations in offences 1 and 2, it is necessary to make out all constituent elements of the offence.
Section 826 of the Air Regulations provides:
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).
Air Navigation Order, Series VIII, No. 2, section 3 provides that certain particulars as set out in a schedule shall be entered in every aircraft journey log.
The Schedule at item 2 includes many particulars (1-13) such as (1) Date of each flight, (2) Names of flight crew members, (3) Point of departure and point of destination, (4) Time up, (5) Time down, (6) Air time, (7) Flight time, and (8) Total air time since date of manufacture.
It naturally flows from the nature of the particulars that there had to have been a flight of the aircraft to invoke the requirement to enter the particulars. The recording of the particulars for each flight can be seen to be the requirement to "maintain" the journey log.
Therefore, the Minister must prove:
(1) that N.E.A.S. was the owner of the aircraft;
(2) that the aircraft was registered under the regulations;
(3) that a flight of the aircraft took place;
(4) that the particulars of the flight were not entered in the journey log.
Offence 1 – Aircraft C-FUOG – section 826 of the Air Regulations
The Minister entered a photocopy of the Certificate of Registration for aircraft C-FUOG (Exhibit M-6). The certificate shows the name of the owner to be 641296 Ontario Inc. (N.E.A.S.). Under cross-examination the representative of N.E.A.S. admitted owning the aircraft. On that evidence the Minister established that N.E.A.S. was the owner of the aircraft which was registered under the regulations.
The evidence that flights of aircraft C-FUOG took place, varies depending on the days in question and the geographic location. For each count, Mr. Wilcox of Transport Canada testified that there was no log entry. A perusal of Exhibit M-7, excerpts from the journey log of C-FUOG, shows no flights logged between August 21, 1995 and September 9, 1995.
Counts 1, 2, 3 refer to alleged flights on August 27, 28 and 29 in the vicinity of Hele airstrip, Nipigon District. The evidence tendered to show that flights occurred in aircraft C-FUOG on these dates includes: the existence of a contract between the M.N.R. and N.E.A.S. for aerial spray application; the representative of N.E.A.S. acknowledged that its aircraft flew on contract in the district; the Aerial Spraying Load Record and the Fire/Radio Logs from Nipigon; the testimony of Mr. D. Desramaux and the testimony of Mr. G. Sutcliffe, the pilot of the aircraft.
The Aerial Spraying Load Record and Fire/Radio Logs were completed by Mr. Desramaux or were completed under his supervision. He was physically on site and witnessed the flight activity. Mr. G. Sutcliffe testified to being the pilot of C-FUOG flying from Hele airstrip. I find that the flights alleged to have occurred on August 27, 28 and 29 did occur, but were not entered in the journey log.
Counts 4 through 9 refer to alleged flights on September 1,2, 3, 4, 7 and 8 in the Atikokan District. The evidence tendered to show that flights occurred on aircraft C-FUOG on those dates includes: the existence of contract between the M.N.R. and N.E.A.S. for aerial spray applications; the representative of N.E.A.S. acknowledged that its aircraft flew on contract in the district; the Aerial Spraying Load Record and the Fire/Radio Logs from Atikokan M.N.R.; the Aircraft Movement Record and the testimony of Mr. V. Craven and the testimony of Mr. G. Sutcliffe, the pilot of the aircraft.
The Fire/Radio Logs show flights on September 1, 2, 3, 4 and 7 and the Aerial Spraying Load Record on September 1, 2, 3 and 4. The only records of flights on September 8, and September 9 are the Aircraft Movement Statistics which show C-FUOG in Atikokan, Ontario on September 8 and in Brandon, Manitoba on September 9.
Unlike in the Nipigon District, Mr. V. Craven of the M.N.R. was not present at the site and took no part in the completion of the Aerial Spraying Load Record or Fire/Radio Logs. He did testify that there was a contract for aerial spray application and that he supervised the tender/contract process. As he could not testify as to creation of these logs, the Aerial Spraying Load Record and Fire/Radio Logs then fall into category of "hearsay evidence". However, as the Civil Aviation Tribunal is an administrative tribunal, and while quasi-judicial in nature, it is not bound by legal or technical rules of evidence (Aeronautics Act, s. 37). Hearsay may be admitted, but only given the weight it is due.
The weight given hearsay may be less than that of direct evidence because it is often untrustworthy as the author is not under oath and not subject to cross-examination, so it is inherently weaker evidence. However, in this instance, the logs of the Atikokan District are corroborated by the existence of the spray contract and by the direct evidence of pilot Sutcliffe.
I find that the flights alleged to have occurred on September 1, 2, 3, 4, 7 and 8 did occur but were not entered in the journey log.
Counts 9 and 10 refer to alleged flights on September 8 in Atikokan and September 9 in the vicinity of Brandon, Manitoba. The only evidence tendered to show that a flight occurred on those days was the Aircraft Movement Record.
The Aircraft Movement record has been mentioned in each previous count but not discussed. The record was entered as Exhibit M-5 through Mr. P. Weiser, an employee of Statistics Canada. Mr. Weiser's role was the compilation of data sent to his office, from various locations. By the vary nature of his task, he was unable to confirm or deny that flights took place. He merely collated data sent to him. The exhibit was a photocopy, not certified, or otherwise attested to in any manner by the person originally creating the record. Where it is proffered as the only evidence of a flight having taken place, without corroboration from other sources, I reject it as being insufficient proof.
Pilot Sutcliffe had not testified to individual flights on particular dates, but testified as to his participation in the spray contracts. The evidence of September 8 and 9 does not include any reference in the M.N.R. Aerial Spraying Load Record or Radio/Fire Logs. Therefore, the only evidence is the Aircraft Movement Record which, of its own, is insufficient to establish that a flight occurred on September 8 and 9.
In summary, the Minister has established that N.E.A.S. was the owner of aircraft C-FUOG, registered under the regulations, and that the aircraft did fly on the dates as alleged in counts 1 to 8 of offence 1, without N.E.A.S. maintaining a journey log for that aircraft. Counts 9 and 10 are dismissed.
Offence 2 – Aircraft C-FJSH – section 826 of the Air Regulations
The Minister entered a photocopy of the Certificate of Registration for aircraft C-FJSH (Exhibit M-8). The Certificate shows the name of the owner to be 641296 Ontario Inc. (N.E.A.S.). Under cross-examination, the representative of N.E.A.S. admitted owning the aircraft. On that evidence the Minister established that N.E.A.S. was the owner of an aircraft registered under the regulations.
The evidence that flights of aircraft C-FJSH took place varies depending on the days in question and geographic location.
For each count, Mr. Wilcox testified that there was no log entry. A perusal of Exhibit M-9, excerpts from the journey log of C-FJSH, shows no flights logged between August 10, 1995 and September 9, 1995.
Counts 1, 2 and 3 refer to alleged flights on August 27, 28 and 29 in the vicinity of Hele airstrip, Nipigon District. The evidence tendered to show that flights occurred in aircraft C-FJSH on those dates includes the existence of a contract between the M.N.R. and N.E.A.S. for aerial spray application. The representative of N.E.A.S. acknowledged that its aircraft flew on such contract. The Aerial Spraying Load Record and Fire/Radio Logs from Nipigon M.N.R., the testimony of Mr. D. Desramaux and pilots Sutcliffe and Ribi complete the evidence.
The Aerial Spraying Load Record and Radio/Fire Logs were compiled by Mr. Desramaux or completed under his supervision. He was physically on site and witnessed the flight activity. The Aerial Spraying Load Record and Fire/Radio Logs indicate the pilot to be P. Willoughby. He was not present to give evidence. Pilots Ribi and Sutcliffe testified to having been at Hele, and seeing aircraft C-FJSH and Willoughby. I find that the flights alleged to have occurred on August 27, 28 and 29 did occur, but were not entered in the journey log.
Counts 4 through 8 refer to alleged flights on September 1, 2, 3, 4 and 7 in the Atikokan District. The evidence tendered to prove that flights occurred on aircraft C-FJSH on these dates includes the existence of a contract between the M.N.R. and N.E.A.S. for aerial spray application. The representative of N.E.A.S. acknowledged that its aircraft flew on such contract. The Aerial Spraying Load Record and Fire/Radio Logs from Atikokan M.N.R., the Aircraft Movement Record and the testimony of Mr. V. Craven and pilots Ribi and Sutcliffe complete the evidence.
As discussed in offence 1 Mr. Craven was not a witness to any flights, nor did he take part in the compilation of the Aerial Spraying Load Record and Fire/Radio Logs. Mr. Craven did testify to the existence of a contract for aerial spray application. The logs were kept as a record throughout that contract in the normal course of M.N.R. business. In the evidence at offence 1, Mr. Sutcliffe testified to being the pilot of C-FUOG, but here the alleged pilot, Mr. Willoughby, did not testify.
Pilots Ribi and Sutcliffe did not testify to particular flights, but both testified to being on the spray sites at Atikokan and Nipigon, in the presence of pilot Willoughby and aircraft C-FJSH.
In the result, all evidence to establish these flights is hearsay. However, I find that in its totality, the evidence does establish that the flights alleged to have occurred on September 1, 2, 3, 4 and 7 did occur, but were not entered in the journey log.
Counts 9 and 10 refer to alleged flights on September 8 and 9 in the vicinity of Brandon, Manitoba. The evidence tendered to prove that these flights occurred on aircraft C-FJSH on these dates consists solely of the Aircraft Movement Record. For reasons previously discussed, I find that evidence insufficient to establish that such flights occurred.
In summary, the Minister has then established that N.E.A.S. was the owner of the aircraft C-FJSH, registered under the Regulations, and that the aircraft did fly on the dates as alleged in counts 1 to 8 of offence 2, without N.E.A.S. maintaining a journey log for that aircraft. Counts 9 and 10 are dismissed.
Offences 3 and 4 – paragraph 210(1)(a) of the Air Regulations
For the Minister to prove the allegations in offences 3 and 4, it is necessary to make out all the constituent elements of those offences.
Paragraph 210(1)(a) of the Air Regulations states:
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 of airworthiness issued under this Part or under the laws of the country in which the aircraft is registered
The conditions upon which the certificate of airworthiness is issued are found in ANO, Series II, No. 4 at section 3 where it states:
3. Every certificate of airworthiness issued in respect of an aircraft is issued on condition that
(a) the aircraft will be maintained in accordance with a maintenance program that meets the aircraft standards of airworthiness established by the Minister pursuant to section 211 of the Air Regulations, and
(b) an entry will be made in the aircraft journey log of the aircraft by an authorized person, certifying that the aircraft is
(i) airworthy, or
(ii) released for return to service,
whichever is applicable, at the times and in accordance with the procedures set out therefor in the Airworthiness Manual or in the Engineering and Inspection Manual.
In summary, the Minister must prove that the particular aircraft was flown when the certificate of airworthiness was not in force.
Mr. Wilcox of Transport Canada was qualified as an expert regarding the regulatory requirements. He testified that N.E.A.S. had an Inspection Approval Program in place. That program required that inspection intervals of 100 hours were required. Although it was possible in particular circumstances to apply a 10% tolerance to this interval, such circumstances were not met, and thus the inspection interval continued to be 100 hours. The representative of N.E.A.S. addressed but did not refute that assertion on cross-examination.
He testified that, during an inspection, defects were to be rectified, and airworthiness directives carried out. An inspection was required to be certified in the journey log by a qualified individual.
Offence 3 – aircraft C-FUOG – paragraph 210(1)(a) of the Air Regulations
Mr. Wilcox testified that the last 100-hour inspection of aircraft C-FUOG was on June 21, 1995 at a time of 3156.7 hours. He stated the next inspection would then be required at (3156.7 + 100 hours) 3256.7 hours. The last entry before the flights in question was on August 21, 1995 at 3245.1 hours. That is, the next 100-hour inspection would be due in 11.6 hours.
However, as the evidence has shown, there are no log entries between August 21 and September 9, 1995, although, pursuant to offence 1, it has to be established that C-FUOG flew on certain dates in that time frame.
Mrs. Forbes illustrated that the Aerial Spraying Load Record and Fire/Radio Logs were not accurate, nor could anyone attest to the exact times flown.
The Minister did not rely on those times, however, but relied upon the direct testimony of the pilot of C-FUOG, G. Sutcliffe, and of Mr. Klauke.
Mr. Klauke testified that he knew the aircraft was due for a 100-hour inspection but could not state on which day. He estimated the flying time to be about thirty hours for each of Atikokan and Nipigon, for a total of about 60 hours.
Mr. Sutcliffe testified that the aircraft was overdue for an inspection but did not say on what day. He stated that it took about ten hours to ferry the aircraft out, about eleven back, as well as about fifteen hours on each of Atikokan and Nipigon for a total of about 51 hours.
I note that the witnesses' estimate of hours flown varies. I do not take any adverse inference from that. It is the natural result of not entering the particulars of each flight in the journey log. There is no evidence that can establish exactly when the 100-hour inspection was due. It would be incongruous to, say the least, if the breach of one provision, the requirement to maintain the journey log, resulted in impunity from another, the requirement to do an inspection in a specific time frame. However, by utilizing either witness' testimony, a conclusion can be reached.
As noted, on April 21, the journey log shows that a 100-hour inspection would be due in 11.6 hours. Pursuant to count 1, it has been established that the aircraft flew on August 27, 28 and 29 from Hele airstrip in Nipigon District. The evidence of Mr. Sutcliffe and Mr. Klauke established that at least fifteen hours flying was accomplished in Nipigon. Thus, on a balance of probabilities, the 11.6 hours would have been reached sometime in the period that the aircraft flew in Nipigon.
The Minister does not allege that the certificate of airworthiness was not in force during flights in Nipigon but rather for flights commencing on September 1 in Atikokan District.
Since an inspection was due in 11.6 hours, and the evidence suggests at least fifteen hours were flown in Nipigon, I find that a 100-hour inspection was due prior to the commencement of flights of September 1 in Atikokan.
Mr. Wilcox testified that there was no entry of a 100-hour inspection in the journey log, and his opinion as an expert was that the certificate of airworthiness was not in force on all dates alleged in offence 3.
Exhibit M-7, excerpts from the log, shows no entries of an inspection and certification in that period.
Although it cannot be definitively stated on which day the 100-hour inspection was due, I find that, on a balance of probabilities, the Minister proved it was due before the commencement of the flight(s) on September 1, 1995.
The Minister has then established that aircraft C-FUOG did fly on the dates as alleged in counts 1 to 5 of offence 3 when the certificate of airworthiness was not in force, because the 100-hour inspection had not been accomplished. As in offence 1, it has not been established that the aircraft flew on September 8 and 9. Hence counts 6 and 7 are dismissed.
Offence 4 – aircraft C-FJSH – paragraph 210(1)(a) of the Air Regulations
Mr. Wilcox testified that the last 100-hour inspection of aircraft C-FJSH was entered on April 26, 1995 at 5590.9 hours. He stated the next inspection would then be required at (5590.9 + 100 hours) 5690.9 hours. The last entry before the flights in question was on August 10, 1995 at 5687.1 hours. That is, a 100-hour inspection would be due in 3.8 hours.
The entry in the journey log of August 10 shows the aircraft to be in Strasbourg, Saskatchewan. The flights that have been established subsequent to August 10, were in the Nipigon and Atikokan Districts of Ontario. Although no flights were logged, the aircraft had to be flown from Saskatchewan to Ontario. On a balance of probabilities, I find that the 100-hour inspection was due before the flights in Ontario.
Mr. Wilcox testified that in his opinion the 100-hour inspection would have been due before the flights in question and that the log revealed no 100-hour inspection in the journey log. His opinion as an expert was that the certificate of airworthiness was not in force on all dates alleged in offence 4.
The Minister has then established that the aircraft C-FJSH did fly on the dates as alleged in counts 1 to 8 of offence 4, when the certificate of airworthiness was not in force, because the 100-hour inspection had not been accomplished. It was not established that flights took place on September 8 and 9 in Brandon, Manitoba. Consequently, counts 9 and 10 are dismissed.
DEFENCE OF DUE DILIGENCE
Mrs. Forbes, in her testimony on behalf of N.E.A.S., described the systems and procedures that it had in place to accomplish compliance with the regulations. In essence, it amounted to a defence of due diligence.
However, these systems as described were not in accord with the reality of the situation. The paper trail created by N.E.A.S. showed that Mr. E. Parchewsky was in charge of mix and load at the various sites. Mrs. Forbes testified that was his only function. He did not have authority over pilots. Mr. Klauke was required to take a leave of absence from his apprentice AME duties at the maintenance organization to become a mix and load person with no consequent maintenance function.
The testimony of Mr. Klauke and pilots Sutcliffe and Ribi contradicts the paper picture. During testimony of the pilots and cross-examination by N.E.A.S. it became clear that there was a strong under current of distrust and animosity between the pilots and N.E.A.S. However, Mr. Klauke presented as an honest forthright witness, and his testimony corroborated the pilots' testimony. Both pilots stated that Mr. Parchewsky told them not to enter flight times in the logs. Mr. Klauke performed maintenance functions at the request of Mr. Parchewsky. Although he was only in charge of mix and load on paper, the evidence shows that Mr. Parchewsky, the owner of N.E.A.S., exercised authority over the pilots and personnel throughout.
The concept of due diligence is that one takes all the necessary steps to prevent the commission of an offence. The evidence shows that the principal of N.E.A.S., Mr. Parchewsky, precipitated the contraventions. In such circumstances, the defence of due diligence is not available.
During portions of cross-examination and on giving testimony on N.E.A.S.'s behalf, the Respondent asserted that it was the pilots' responsibility to maintain the journey log. She testified to having been "let-down" by certain of her personnel who did not fulfill their responsibilities.
However, it must be noted that the Respondent's assertion regarding the responsibility for log entries is incorrect.
Section 826 of the Air Regulations, previously stated, requires the owner of an aircraft registered under the Regulations to maintain for that aircraft an aircraft journey log.
Section 827 of the Air Regulations provides:
827. Every entry in a log maintained pursuant to section 826 shall be made accurately and in ink by a competent person and signed by that person as soon as possible after the events they record.
Therefore, the entry need not be made by the pilot but rather by "a competent person."
Offences 1 and 2 dealt with allegations against the owner, N.E.A.S.; whereas offences 3 and 4 dealt with allegations that the aircraft were flown while the certificate of airworthiness was not in force.
In the normal course of events, the pilot flies the aircraft, but the allegation in these offences are against the N.E.A.S.
Regarding offences 3 and 4, the Notice of Monetary Penalty also included reference to subsection 8.4(1) of the 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.
The section is sometimes referred to as the "vicarious liability" section. In essence, the registered owner (N.E.A.S.) of an aircraft may be proceeded against in respect of and found to have committed an offence in relation to the aircraft (C-FUOG/C-FJSH) for which another person (the pilot) is subject to be proceeded against.
The Minister elected to proceed against the registered owner instead of the pilot, and quite properly gave notice of this intention by inclusion of a reference to subsection 8.4(1) in the Notice of Assessment of Monetary Penalty in offences 3 and 4.
Both parties spoke to sanction.
The Minister stated that the purpose of the regulations was to ensure safety. Paragraph 210(1)(a) of the Air Regulations, regarding the airworthiness of the aircraft, went directly to the safety issue in his opinion. He asserted that the alleged violations were knowingly committed. Transport Canada's policy was to be fair but firm and consistent. In the instance case the amount of penalty per count was below the maximum that could have been levied against a corporation.
The Respondent stated that a minimal fine would sufficiently make the point for N.E.A.S. She felt that the alleged violations were not "up there" on the scale of threats to safety, and the fines should reflect that.
The evidence that I have accepted shows that the principal of N.E.A.S. precipitated the contraventions by his order not to log flight times. The Respondent testified to the August-September season being the busy season, yet the maintenance coordinator failed to notice that there were no log entries for two aircraft during that busy time. These are aggravating circumstances, and no mitigating circumstance was offered.
In the result, for those counts that the Minister has made out, the monetary assessment stands.
I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 8. He has not met his burden on counts 9 and 10. The monetary assessment of $100.00 on each of counts 1 to 8 stands for a total of $800.00.
I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 8. He has not met the burden on counts 9 and 10. The monetary assessment of $100.00 on each of counts 1 to 8 stands for a total of $800.00.
I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 5. He has not met his burden on counts 6 and 7. The monetary assessment of $250.00 on each count stands for a total of $1,250.00.
I find that the Minister has proven his case, on a balance of probabilities, on counts 1 to 8. He has not met his burden on counts 9 and 10. The monetary assessment of $250.00 on each count stands for a total of $2,000.00.
In the result, North East Air Services' assessed monetary penalty amounts to a total of $4,850.00.
Civil Aviation Tribunal
Caroline Desbiens, Faye H. Smith, Samuel J. Birenbaum
Decision: February 27, 1998
The appeal is dismissed. The total amount of $4,850.00 (being sixteen counts of subsection 826(1) of the Air Regulations assessed at $100.00 each and thirteen counts of paragraph 210(1)(a) of the Air Regulations assessed at $250.00 each) is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this Determination.
The appeal herein was scheduled to take place on October 28, 1997. On October 20, 1997, ten motions were filed with the Tribunal Registry by the Appellant's representative, Mrs. Carolyn Forbes. The appeal panel granted the 90-day postponement for medical reasons requested in motion number 5 and denied the other nine motions.
Accordingly, the Appeal Hearing on the above matter was held before three designated Tribunal Members, on Tuesday, January 27, 1998 at 10:30 a.m. at the Brant Park Inn, in Brantford, Ontario.
The Appellant is appealing the determination rendered June 4, 1997 by Allister Ogilvie, Vice Chairperson, following the Minister's request for review. That determination contained confirmation of 16 counts of alleged contraventions of subsection 826(1) of the Air Regulations carrying individual assessments of $100 and 13 counts of alleged contraventions of paragraph 210(1)(a) of the Air Regulations carrying individual assessments of $250 for a total amount of $4,850.
We adopt the Tribunal Member's succinct statement of facts at page one of the Review Determination as follows:
641296 Ontario Inc. doing business as North East Air Services (hereafter N.E.A.S) is an air carrier which, in part, operates aerial-spray aircraft based in Brantford, Ontario but operated in diverse locations throughout the country. In late August and early September of 1995, N.E.A.S. had a contract for aerial spray application with Ontario's Ministry of Natural Resources (hereafter M.N.R.). N.E.A.S. was to supply aircraft, air crew and ground support personnel to perform that application. Between August 27 and September 9, 1995, it was alleged that N.E.A.S. did not maintain journey logs for two of its aircraft (C-FUOG and C-FJSH) and that those two aircraft were flown when their respective Certificates of Airworthiness were not in force as neither aircraft had received its scheduled 100-hour inspection.
The particulars of the allegations relating to 20 contraventions of subsection 826(1) of the Air Regulations and 17 contraventions of paragraph 210(1)(a) of the Air Regulations are set out in the Notice of Assessment of Monetary Penalty dated August 26, 1996. The total assessed monetary penalty of $6,250 was not paid on or before September 25, 1996 as stipulated in the Notice of Assessment of Monetary Penalty. The Minister of Transport requested that a review hearing be held in accordance with section 7.9 of the Aeronautics Act.
Following postponements the review hearing proceeded on May 5,1997, after which the Tribunal Member determined that the Minister had proven his case on a balance of probabilities as follows:
For offence 1, the Vice Chairperson upheld 8 alleged contraventions of subsection 826(1) of the Air Regulations, confirming a monetary assessment of $100 for each of these counts for a total of $800.
For offence 2, he upheld 8 alleged contraventions of subsection 826(1) of the Air Regulations, confirming a monetary assessment of $100 for each of these counts for a total of $800.
For offence 3, he upheld 5 contraventions of paragraph 210(1)(a) of the Air Regulations, confirming a monetary assessment of $250 for each count for a total of $1,250.
For offence 4, he upheld 8 contraventions of paragraph 210(1)(a) of the Air Regulations, confirming a monetary assessment of $250 for each count for a total of $2,000.
A request for appeal signed by Carolyn Forbes for North East Air Services dated July 4, 1997 was filed with the Tribunal. The twelve grounds of appeal are summarized and discussed below under the heading Representations of the Parties.
Motion No. 1 – Removal of Observer
Mrs. Forbes appearing on behalf of the Appellant 641296 Ontario Inc. (N.E.A.S.) objected to the presence at the hearing of Mr. Arbour, an Inspector from the Department of Transport. Mrs. Forbes submitted that she believed that Mr. Arbour is currently carrying out an investigation and that she was intimidated by his presence and sought his removal. This motion was denied on the basis that Mr. Arbour was entitled to attend this public hearing as an observer. Mrs. Forbes then requested a short adjournment to discuss the matter with Transport Canada officials. Following this adjournment the Minister's representative advised that Mr. Arbour would remain outside the hearing room.
Motion No. 2 – Request for Postponement
Mrs. Forbes asked that the hearing be rescheduled to a further date as she had sent her case to the Canadian Owners and Pilots Association (COPA) and has not received a response, but feels that they will take her case due to its national interest. She requested an adjournment as she hoped that COPA would provide her with a lawyer. The Minister's Representative did not object to the request for counsel though indicated that the request was not timely and that there was no confirmation that COPA will help. Mrs. Forbes indicated that she had contacted COPA in mid December of 1997, and produced evidence of a written request dated January 26, 1998. The panel stated that due to the lateness of this request and the number of adjournments previously granted to the Appellant relative to these alleged occurrences of August and September 1995, the panel must in keeping with the Tribunal mandate to proceed expeditiously deny the motion and proceed with the appeal.
REPRESENTATIONS OF THE PARTIES
DISCLOSURE – THE ISSUE
The Appellant's first ground for appeal states that Transport Canada failed to make full disclosure of evidence to the satisfaction of the Respondent.
Mrs. Forbes submitted that the Tribunal's Guide to Hearings states that the names of witnesses should be provided. She stated that they never got the witnesses' names and that the witnesses had not signed the statements that she had received. She indicated that she faxed a request to Transport Canada and asked for the identity of the witnesses and was denied this as she received no response. She further indicated that she had written to the Tribunal though later stated that she may not have written but may have telephoned the Tribunal office instead.
Mrs. Forbes indicated that she was not given disclosure of a chart that Mr. Binder and Mr. Wilcox had put together and, while they did not produce it as an exhibit at the review hearing, they had used it to examine and support their claim. Mrs. Forbes believed that the chart should have been produced to her to help her defence.
Mrs. Forbes made references to Chapter 12 of the Regulatory Compliance Procedures Manual in support of her arguments on disclosure. In its introduction, the manual provides a general description of the Tribunal and provides information to Transport Canada Inspectors on the Tribunal process and the role of Transport Canada's case presenter. Mrs. Forbes referred to paragraphs (10) and (11) of section 12.6.2 entitled "Full Disclosure" as well as section 12.6.3 entitled "Witnesses."
DISCLOSURE – THE POLICY
Transport Canada's policy on disclosure in the Regulatory Compliance Procedures Manual states in part:
12.6.1 Disclosure – Statement of Policy
Regional and Headquarters Directors shall disclose to a document holder, or his representative, all the evidence the Case Presenting Officer intends to present at a CAT hearing. ... Furthermore, full disclosure shall include any evidence which may assist the document holder in his defence. TCA's full disclosure policy has two main purposes:
(1) to ensure that the document holder knows the case to be met and is able to make full answer and defence; and,
(2) to encourage the resolution of facts at issue including, where appropriate, the resolution of the case prior to the hearing date.
12.6.2 Full Disclosure
(2) copies of the text of all written statements concerning the case which have been made by a person with relevant evidence to give or where the person has not provided a written statement, a copy or transcription of any notes that were taken by an inspector when interviewing the witness and if there are no notes, a summary of the anticipated evidence of the witness;
(4) a copy of all written or recorded statements concerning the case which have been made by the document holder to an inspector. In the case of verbal statements, a verbatim account, where available, including any notes of the statement taken by inspectors during the interview. If a verbatim account is not available, an account or description of the statement, whether the statement, in whatever form, is intended to be adduced or not;
(10) particulars of any other evidence on which the CPO intends to rely at the hearing and any information known to the CPO which the document holder may use to impeach the credibility of a Department witness in respect of the facts at issue in the case; and,
(11) if applicable, a copy of the flow chart relating to an airworthiness matter referred to in section 12.6 (6).
In providing information concerning the identity or location of a witness to the document holder or his representative, four considerations are pre-eminent. These are:
(1) the right of a document holder to a fair hearing;
(2) the principle that there is no property in a witness;
(3) the right of a witness to privacy and to be left alone until required by subpoena to testify at the hearing; and,
(4) the need to prevent the intimidation or harassment of witnesses, to prevent danger to the lives or safety of witnesses and to prevent interference with the administration of justice.
Accordingly, in balancing these four considerations:
(1) A witness shall be informed by the investigating inspector that his identity and the details of his statement may be disclosed to the document holder.
(2) Where a witness does not wish to have his identity revealed to the document holder or does not wish to be interviewed by or on behalf of the document holder, or where there is a reasonable basis to believe that the witness may be intimidated or harassed, TCA may reserve information concerning the identity or location of the witness unless the CAT orders its disclosure.
(3) Where the identity of a witness is withheld for the reasons stated above, a de-identified statement shall be disclosed which shall identify the witness by category such as, eye witness, expert witness, TCA Inspector, etc.
(4) Where a witness does not object to the release of this information, and there exists no reasonable basis to believe that the disclosure will lead to interference with the witness or with the administration of justice, the information shall be provided to the document holder without an order.
Mrs. Forbes then reviewed the transcript of the review hearing at page 16 and following, where she indicated that she had not received full disclosure in that she was not provided with the names of the witnesses. She stated that she was not given any evidence, or any indication of which witnesses were going to testify. The transcript reveals Mr. Wilcox's response that full disclosure was made to N.E.A.S. on November 19, 1996. "Can says" were provided for each witness. He further stated that it is Transport Canada's policy not to disclose the names of witnesses if there is any indication that witnesses will be badgered or in any way contacted. Mr. Wilcox further stated at page 24 that it is Transport Canada's policy that they do not disclose names for fear of people being contacted by the alleged offender and harassed and that it is not their policy to disclose names when it comes to "can says," and there is no mandate to disclose them.
At page 29, Mrs. Forbes cites the Guide to Tribunal Hearings at page 4 as follows:
... where disclosure of documents and names of witnesses are not forthcoming, an application for their production may be made to the Tribunal prior to the hearing.
Mrs. Forbes then stated that the information regarding the Aviation Enforcement Disclosure policy which was read in by Mr. Wilcox should have been disclosed to her, and if she had known she could have appealed to the Tribunal to ask for production of the names.
By way of response the Minister's representative at appeal stated that the Minister was following its disclosure policy in this case. The witnesses had given their statements voluntarily, and the Minister had information that the individuals did not wish to be named, and in such cases the Minister does not give the name of the witnesses.
DISCLOSURE – DISCUSSION
The issue of disclosure is a recurring one and, while written policies by the Department of Transport address the matter generally, the Tribunal must review each case on its merits. It was for this reason that this panel, in responding to an earlier motion based on alleged lack of proper disclosure, requested that Transport Canada produce, for examination by the panel, the entire disclosure package dated November 19, 1996 which had been disclosed prior to the review hearing.
Respecting the disclosure of the names of the witnesses, it would appear from the submissions in this case that Transport Canada had been instructed by the witnesses not to disclose their identity, and hence the statements were given in a de-identified form. This position was in accord with the policy above referred to as paragraph 12.6.3 of the Regulatory Compliance Procedures Manual. It is also clear that the Tribunal has the power to order production of the names where it deems it necessary and appropriate. It is of course necessary for an application to be made to the Tribunal requesting that the names be produced by way of a Tribunal order. This information is included in the Guide to Tribunal Hearings which is provided to the parties upon receipt by the Tribunal of a request for review.
A review of the relevant documentation herein reveals that no such request was made to the Tribunal. A request for disclosure was made to the Minister by Mrs. Forbes, and a letter dated November 8, 1996 and received by the Tribunal on November 19, 1996 verifies this request. The Minister's disclosure package dated November 19, 1996 was given to the Respondent. No request for the names of the witnesses was made to the Tribunal until the date of the review hearing on May 5, 1997.
Under the heading Motion 3 of the Review determination the Tribunal Member denied the request for disclosure of the witnesses' names on the basis that there was sufficient time between the issuance of the disclosure package and the hearing for the Respondent to have made an application for disclosure.
This panel has by reason of its review of the entire disclosure package, the opportunity to further comment on its contents. Essentially the "can says" of the witnesses reveal the following: Witnesses 1 and 2 are each supervisors with the Ministry of Natural Resources. Witness 6 is an employee of Statistics Canada, and Witness 7 is the Transport Canada Aviation Enforcement Investigator who investigated this case. Witness 3 was an employee of the Respondent in August and September of 1995 and flew aircraft C-FUOG. Witness 4 was contracted to fly his aircraft for the Respondent in August and September of 1995. Witness 5 was an apprentice Aircraft Maintenance Engineer for the Respondent during the period August and September 1995.
We agree that the application for production of names was not made in a timely manner. With the knowledge of the contents of the disclosure package we are able to say that in our view the Appellant should have been aware of the identity of witnesses 3, 4 and 5 from the specifics of the statement summaries in the disclosure package. Witness 5 was named in the statement. While it may be inappropriate to make comment in the absence of submissions on the point by the Minister's representative, one wonders at the rationale for non-disclosure of names of government employees, most notably the name of the Transport Canada inspector who carried out the investigation of this matter.
Regarding the request for production and disclosure of the charts and analysis of charges prepared by the Minister's representative for his own use and not entered as evidence, we see no reason to compel production of such working materials and agree with the Tribunal Member on this issue.
We are satisfied from our review that the Appellant was not deprived of the right to know the case against it and not deprived of the right to adequately and properly prepare its case in advance of the review hearing. While the proper procedure would have been to seek a Tribunal ruling on the matter by way of a pre-hearing request to the Tribunal in accordance with the Guidelines prepared by the Tribunal Registry, we find that the Appellant's rights to fairness and natural justice regarding disclosure were met through the production of the disclosure package by the Department of Transport on November 19, 1996, and that the Appellant had ample opportunity to prepare its case and to arrange for the attendance of witnesses, if desired. Accordingly, the first ground of appeal fails.
Grounds 2 and 5
The Appellant states that there were errors made in citing reasons for disallowing the Respondent's Motions 5, 6 and 7 made at the review hearing to dismiss witnesses Ribi, Sutcliffe and Klauke.
At review, Mrs. Forbes brought a motion which sought to have the witness Klauke disqualified on the basis that he had not been advised of his rights and that his evidence was obtained by coercion. The Tribunal Member at Motion 7 ruled on this issue in denying the motion on the basis that only an alleged offender has the right to be warned, not the witness.
In her submissions on appeal Mrs. Forbes reiterated her arguments respecting her view of Mr. Wilcox's requirement to warn the witness Klauke citing section 4.12 of the aforementioned Regulatory Compliance Procedures Manual as the authority for such proposition. Additionally, under ground 5 Mrs. Forbes stated that the witness Klauke was not advised of his rights, although she had not talked to the other witnesses. She asserted that if Transport Canada was in violation of its own manual then she cannot get a fair hearing.
It is the view of this panel that the ruling of the Tribunal Member at review was correct on Motion 7 and that to the extent that the Transport Canada manual differs on the point, it is in error and requires amendment.
Respecting the issue of coercion, at page 201 of the transcript of the proceedings, the Tribunal Member asked the witness Klauke whether he felt threatened, coerced or otherwise to give his evidence, to which the witness replied, "No, I did not, sir." This issue has been finalized.
It is the opinion of this panel that Motions 5 and 6 at the review hearing were also correctly decided by the Tribunal Member who refused to disqualify the witnesses Ribi and Sutcliffe on the basis of past conflicts and unsatisfactory business dealings.
Regarding Motions 5, 6 and 7 presented at the outset of the review hearing, it is the observation of this panel that the basis of the motions goes to credibility, and this issue should be dealt with as part of cross-examination and not by way of preliminary motion.
In the result, we reject appeal grounds 2 and 5 herein.
Grounds 3, 6 and 7
The Appellant submitted that there was collusion and entrapment occurring during the review hearing between the Case Presenting Officer, the Expert Witness and another enforcement officer which nullified the hearing, that Transport Canada failed to control their witnesses and that Transport Canada officials inappropriately socialized with the witnesses. Mrs. Forbes stated that these matters placed her under duress and impaired her ability to effectively present the case.
At appeal, Mrs. Forbes indicated that other than two aspects involving intimidation from socializing where the Tribunal Member sided with Transport Canada, she felt that the Tribunal Member conducted a fair hearing. Upon consideration, the panel finds that the Tribunal Member correctly dealt with each issue which arose respecting the conduct of persons inside and outside the hearing room. As indicated the Tribunal Member has no jurisdiction over the conduct of persons outside the hearing room, and we find that his rulings and supervision within the hearing room were instrumental in producing a civilized and fair hearing. Consequently, these three grounds must fail.
Mrs. Forbes stated that requests for consideration of her physical disabilities were inadequately handled by the Tribunal and dismissed in one instance further impairing her ability to effectively defend the matter. Mrs. Forbes was advised by the Registry that the Civil Aviation Tribunal did not have its own policy specific to the conduct of hearings, rather it relied upon the parties to make their needs known to the Registry and that every effort would be made to accommodate the parties to the extent possible. Mrs. Forbes did make application to have the Tribunal make an order requiring participants to refrain from wearing perfume or cologne. The Tribunal Member's rulings in this regard were entirely reasonable, and the transcript of the proceedings does verify the Tribunal Member's ongoing vigilance. This ground of appeal is therefore dismissed.
Grounds 8 and 9
The Appellant's representative objected to the location of the hearing being in Toronto instead of in Brantford as she had requested. Moreover, she objected to the use of a courtroom instead of an informal boardroom.
The Tribunal's policy as to the venue of the hearings is as follows: In enforcement matters, the location will normally be where the alleged infraction occurred, or the nearest practical alternative, so that witnesses for the document holder and Transport Canada may present themselves with minimum displacement costs. On April 23, 1997, a request for change of venue was received by the Tribunal from Mrs. Forbes. On April 24, 1997, Mrs. Forbes was informed by letter from the Registry that on the balance of convenience the hearing would proceed as planned on May 5, 1997 in Toronto. We agree with the Tribunal decision as to choice of venue for the review hearing. The Tribunal Registry did make arrangements for facilities in Brantford for the conduct of this appeal at the request and convenience of the Appellant.
Grounds 10 and 11
Mrs. Forbes alleged that, since Transport Canada failed to give complete disclosure, the Respondent did not have a key witness in attendance and further alleged that the witness was unable to attend the hearing due to other obligations. Additionally, a request was made to present the witness at the appeal.
These grounds of appeal reiterate the request made by way of motion prior to the appeal hearing. The motion sought to introduce the evidence of the shareholder to refute the assertion by material witnesses that they were directed not to make entries in the aircraft journey log. The Appellant stated that it was unaware that this allegation would be given so much prominence and thus had not called the shareholder of the company who was unavailable for the two days of the hearing in any event. Additionally, the Appellant stated that at the time of the review it was not aware that the concept of "vicarious liability" would be used.
The wording of the Notice of Assessment of Monetary Penalty dated August 26, 1996 does in the panel's view contain notification of the shareholder's responsibility as owner and includes the concept of "vicarious liability."
Moreover, this panel has requested and has received production of the disclosure package dated November 19, 1996 which had been forwarded to the Appellant by the Minister's representative prior to the review hearing. From our review of this package we are satisfied that the Appellant herein should have been aware of the testimony regarding log book entries at the time of the review hearing and had ample opportunity to prepare its case and to arrange for the attendance of witnesses if desired.
At the appeal hearing, Mrs. Forbes repeated her concerns regarding this concept of "vicarious liability" indicating her view that she could not find a definition of the concept. For clarification, we would briefly point out that the Notice of Assessment of Monetary Penalty states in the last paragraph forming part of offence 3 as follows:
Pursuant to the Aeronautics Act s. 8.4 (1) 641296 Ontario Inc. (North East Air Services), as the registered owner of the aircraft identified in Offence 3, is liable to the penalty assessed for the violations detailed in said offence.
The same wording is used for offence 4 as well. We therefore find that adequate notice of this concept was communicated in the Notice of Assessment of Monetary Penalty.
The meaning of this concept is clearly conveyed upon reading subsection 8.4(1) of the Aeronautics Act which states:
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.
We do not feel that these grounds of appeal have merit and deny them for the reasons already given above relating to the denial of the motion.
It is here alleged that Transport Canada did not follow its own procedures manual regarding the conduct of reviews in that the investigating officer also acted in cross-examination or in trying the case.
It is not the role of the Tribunal to assist or direct the Minister of Transport in the enforcement of guidelines written for employees of Transport Canada. It is however the role of the Tribunal Member conducting the review to determine how the procedure of the hearing will unfold.
Section 37 of the Aeronautics Act is instructive on this point. Specifically subsection (1) states:
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.
Additionally, the Civil Aviation Tribunal Rules give the Tribunal the latitude, where procedural matters are not provided for by the Act, to conduct the proceedings and to take any action it considers necessary to settle matters effectively, completely and fairly.
We determine that this ground of appeal must fail.
We have reviewed the entire conduct of the review hearing and conclude that it was conducted in a manner that was fair to all parties and in complete accord with the rules of natural justice. After reviewing the Tribunal Member's detailed analysis of each of the alleged contraventions, we uphold the Tribunal Member's Review Determination and reasons. The finding that the Minister's case was proven on a balance of probabilities is in accord with the standard of proof required in cases before this Tribunal in Minister of Transport v. Thomas Ritchie Phillips (CAT File No. C-0014-33). The test for proof was aptly summed up by the Tribunal in Norbert A. Selbstaedt v. Minister of Transport (CAT File No. C-0081-02 Appeal) as follows:
The Tribunal in weighing the document holder's right to procedural fairness and natural justice and the Minister's obligation to maintain an adequate level of public safety have determined that the standard of proof to be imposed on the Minister is not the criminal standard of 'proof beyond a reasonable doubt' but the civil standard of 'proof on a balance of probabilities'.
The appeal is dismissed. The total amount of $4,850.00 (being 16 counts of subsection 826(1) of the Air Regulations assessed at $100.00 each and 13 counts of paragraph 210(1)(a) of the Air Regulations assessed at $250.00 each) is confirmed.
Reasons for Appeal Determination by:
Faye Smith, Chairperson
Caroline Desbiens, Member
Dr. Samuel Birenbaum, Member
 Transport Canada, Aviation Regulation Directorate, Regulatory Compliance Procedures Manual, First Edition, Document No. TP 4751E, at 12 – 1.
 Prepared and distributed by the Civil Aviation Tribunal.
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