Decisions

CAT File No. O-1944-33
MoT File No. PAP 5504-744326-033636

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Patrick William Burnside, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 401.03(1)(b)

Valid medical certificate


Review Determination
Philip D. Jardim


Decision: April 13, 2000

I have determined that Patrick William Burnside did have a valid medical certificate for his private pilot licence No. 744326 on April 4, 1999. Therefore, no offence took place, and the fine of $1,000 is hereby quashed.

A Review Hearing on the above matter was held Tuesday, April 11, 2000 at 10:00 hours at North Bay, Ontario.

BACKGROUND

On April 4, 1999, Patrick Burnside flew his Wagaero Cuby aircraft, registered C-GAUO from Lake Nabonsing, Ontario. The aircraft suffered engine failure during the flight, and in the ensuing forced landing, struck trees. Mr. Burnside was fortunate to escape from the wreck without injury; however, the aircraft was subsequently destroyed by fire (see Exhibits M-1 and M-2).

Transport Canada and the Transportation Safety Board investigated the accident, and the Aviation Enforcement branch of Transport Canada wrote Mr. Burnside on September 14, 1999 alleging that at the time of the accident, his medical certificate was not in force, contrary to paragraph 401.03(1)(b) of the Canadian Aviation Regulations (CARs). Mr. Burnside did not respond to the letter, and on November 18, 1999 a Notice of Assessment of Monetary Penalty was issued in an amount of $1,000, under section 7.7 of the Aeronautics Act (Exhibit M-5).

Mr. Burnside did not pay the fine, hence Transport Canada applied to the Tribunal for this hearing.

THE LAW

Section 7.7 of the Aeronautics Act states:

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 401.03(1)(b) of the CARs states:

401.03 (1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless

(a) subject to subsection (2) and sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising such privileges, the appropriate permit, licence or rating; and

(b) the person is the holder of, and can produce while so acting and while exercising such privileges, a valid and appropriate medical certificate.

EVIDENCE AND ORAL ARGUMENTS

Transport Canada, represented by Mr. David Bland, gave sworn evidence, supported by six exhibits, that Mr. Burnside was the pilot-in-command of C-GAUO on April 4, 1999, and that his medical certificate was not in force, according to Transport Canada's records. This evidence included a certificate from the Secretary of the Department of Transport (Exhibit M-6), stating that Mr. Burnside's medical certificate was valid up to October 1, 1998. Further, that between October 1, 1998 and April 30, 1999, no medical certificate was issued to Mr. Burnside. Hence, an infraction of the CARs had taken place. Mr. Bland rested his case.

Mr. Sangster, representing Mr. Burnside, produced three exhibits in support of his client's response to Transport Canada's allegations:

Exhibit D-7 Mr. Burnside's Civil Aviation Medical Examination Report, dated "96-09-03." This report required Mr. Burnside to undergo a further colour blindness test (Farnsworth D-15). This test was completed on November 15, 1996.

Exhibit D-8 A copy of Mr. Burnside's Farnsworth colour test, stating that he had passed it on November 15, 1996. This was sent at that time to Transport Canada, and the certificate tendered as D-8 is dated March 30, 2000.

Exhibit D-9 A copy of a Transport Canada medical certificate, issued to Patrick William Burnside, No. 744326. This certificate is a copy of the original which was destroyed in the aircraft fire on April 4, 1999. This certificate is clearly dated "1997-10-22," and validates licence P744326 to "1999-10-01." The date of the medical examination on this certificate is given as "1997-09-03."

Mr. Burnside took the stand and was duly sworn. He stated that the original of Exhibit D-9—his medical certificate —was destroyed in the aircraft fire. This photocopy had been made by his wife, and was transmitted by facsimile to his insurance company. He testified that his wife made and kept copies of his documents, and that this was a true copy of the certificate destroyed with the aircraft.

Mr. Sangster remarked that paragraph two of Exhibit M-6, the certificate from the Secretary of the Department of Transport, does NOT include any reference to 1997. It seemed to him that someone in the Ministry keyed in 1997 instead of 1996, and issued Mr. Burnside's medical certificate, dated 1997-10-22, valid to 1999-10-01. Mr. Burnside did therefore have a valid medical certificate on April 4, 1999. The fact that the date of the Medical Examination Report is "96-09-03" was of little or no consequence to his client. Mr. Burnside acted properly in assuming that the medical certificate issued to him properly validated his licence.

I enquired of Mr. Bland whether Transport Canada had a record of this medical certificate, dated 1997-10-22. He replied that they did not. There was only a mention on the file that a medical certificate had been issued. The validity of the certificate was taken two years from the date of the medical report. Private pilot licence medical certificates are valid for two years from the date of the completed medical examination for pilots under 40 years old.

Mr. Bland requested a recess, and he and Mr. Sangster, Counsel for Mr. Burnside, left the room for a discussion.

On resuming, Mr. Bland confirmed that Transport Canada does not keep copies of medical certificates. I further questioned Mr. Bland as to the authenticity of this copy of the medical certificate: its format, font, etc. He asserted that it seemed to him to be in the proper form and he had no concerns as to its authenticity.

DETERMINATION

Given that the medical certificate issued to Mr. Burnside (D-9), is authentic, and there is no reason to doubt this, even though the original was destroyed in the aircraft accident, it is clear that Mr. Burnside was in full compliance with paragraph 401.03(1)(b) of the CARs.

It is evident that in the course of processing Mr. Burnside's medical report, someone in Transport Canada erred in entering the dates on his medical certificate. Since Transport Canada no longer keeps records of these certificates, they could only rely on the dates given on the doctor's Medical Examination Report, hence the Secretary, Mr. McCullough's, certificate, (M-6).

This shortcoming in Transport Canada's record keeping should be rectified as soon as possible, before further embarrassment and inconvenience are caused to document holders, not to mention Transport Canada itself.

In conclusion, I have determined that Patrick William Burnside did have a valid medical certificate for his private pilot licence No. 744326 on April 4, 1999. Therefore, no offence took place, and the fine of $1,000 is hereby quashed.

Philip D Jardim
Member
Civil Aviation Tribunal