Decisions

CAT File No. O-2193-37
MoT File No. PAP 5504-042322

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

James Edward Garrow, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 202.13(2), 406.05(1), 406.05(2), 606.02(8)

Ultra-Light Aircraft, Insurance, Increase of Monetary Penalty, Failure to Appear at Hearing, Certificate of Registration


Review Determination
Philip D. Jardim


Decision: June 25, 2001

James Edward Garrow did contravene the regulations as alleged by the Minister. I therefore uphold the sanctions for Count 1, 3 and 4, but increase the penalty for Count 2 to $1,500.00 for a total amount of $2,850.00. This amount is to be made 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 April 24 and 25 and reconvened June 20, 2001 at Kitchener, Ontario.

BACKGROUND

Consequent on reports made to Transport Canada about alleged irregularities concerning the operation of an ultra-light aircraft, Zenair Zodiac CH601HD, registered as C-IIIA, by James Edward Garrow, they commenced an investigation. As a result of this investigation, Mr. Garrow was allegedly found to have infringed the Canadian Aviation Regulations (CARs), and Transport Canada issued the familiar "Notice of Assessment of Monetary Penalty" scheduling 4 alleged offences, with fines totalling $2,350.

Mr. Garrow did not pay the fine, and the Minister of Transport applied to the Tribunal for a Review Hearing, which was scheduled and took place in Kitchener, Ontario, initially on April 24 and 25, 2001. On the second day of this hearing, Mr. Garrow claimed that:

  1. He did not know that he had the right to bring witnesses;
  2. He did not know that he had the right to retain counsel, etc.;
  3. He did not know anything about Tribunal hearings and their conduct.

At this stage, I realized that to continue the hearing would be contrary to the precepts of fairness and natural justice, and to give Mr. Garrow the fullest opportunity to defend himself, I adjourned the hearing, with the promise that he would be contacted by the Tribunal with a Guide to Tribunal Hearings, and a new date for the resumption of the hearing. I expressed surprise that he had not already received this together with the notice of the hearing - he denied having received it.

In the interim period of two months, repeated attempts were made to contact Mr. Garrow by phone, and to serve him with another copy of the Guide to Tribunal Hearings, and the notice of the reconvened hearing. Eventually, the bailiff was able to serve the documents on his wife. There is an affidavit on file to this effect.

At 10:00 a.m., on June 20, 2001, I reconvened the hearing at the Regional Municipality of Waterloo Building, in Kitchener, Ontario. Mr Garrow was not present, and to give him every opportunity to attend, I recessed for 30 minutes. At 10:30 a.m. he had not arrived, and I therefore resumed the hearing in his absence.

THE LAW

Subsection 202.13(2) of the CARs (Offence 1 – $1,000):

202.13 (1) [...]

(2) Except as otherwise authorized pursuant to subsection 202.14(1), 202.42(3) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

Subsection 606.02(8) of the CARs (Offence 2 – $1,000):

606.02 (1) [...]

(8) No aircraft owner not referred to in paragraph (2)(a), (b) or (c) shall operate an aircraft unless, in respect of every incident related to the operation of the aircraft, the owner has subscribed for liability insurance covering risks of public liability in an amount that is not less than

(a) $100,000, where the maximum permissible take-off weight of the aircraft is 1 043 kg (2,300 pounds) or less;

(b) $500,000, where the maximum permissible take-off weight of the aircraft is greater than 1 043 kg (2,300 pounds) but not greater than 2 268 kg (5,000 pounds);

(c) $1,000,000, where the maximum permissible take-off weight of the aircraft is greater than 2 268 kg (5,000 pounds) but not greater than 5 670 kg (12,500 pounds);

(d) $2,000,000, where the maximum permissible take-off weight of the aircraft is greater than 5 670 kg (12,500 pounds) but not greater than 34 020 kg (75,000 pounds); and

(e) $3,000,000, where the maximum permissible take-off weight of the aircraft is greater than 34 020 kg (75,000 pounds).

Subsection 406.05(1) of the CARs (Offence 3 – $250):

406.05 (1) No person shall operate a flight training unit using a glider, balloon, gyroplane or ultra-light aeroplane in Canada unless the person notifies the Minister in writing of

(a) the legal name, trade name and address of the operator of the flight training unit;

(b) the base of operations;

(c) the category of aircraft;

(d) the type of flight training to be conducted; and

(e) the name of the flight instructor who will be responsible for operational control of the flight training operations.

Subsection 406.05(2) of the CARs (Offence 4 – $100):

(2) The information referred to in subsection (1) shall be provided to the Minister by the flight training unit

(a) prior to commencing flight training operations;

(b) within 10 working days after any change in the information; and

(c) upon the service being discontinued.

The total fines amount to $2,350.00.

EVIDENCE

The Minister's case was presented by Mr. Richard Newcombe. He presented a dossier of exhibits, M-1, divided into six sections, which are appropriately numbered. Mr. Newcombe called seven witnesses, five of whom appeared during the first session, on April 24 and 25, with the remaining two appearing on June 20th.

Mr. Garrow agreed that he had received full disclosure, and was also given a copy of the dossier of exhibits.

I excluded all of the other witnesses before Mr. Newcombe called his first witness, Ms. Pat Pybus. She is Transport Canada's civil aviation safety inspector who investigated this case. She was affirmed in the usual manner. Mr. Newcombe took Ms. Pybus through the dossier of exhibits.

It was established that Mr. Garrow had bought the aircraft, Xenair Zodiac CH 601, registration C-IIIA from Mr. Art Mitchell of Flypass Ltd, on March 3, 4 and 5, 2000 (Exhibit M-1, 2A, 3, 4 & 5). Its certificate of registration (C of R) became invalid as ownership and control of the aircraft passed to Mr. Garrow. It was then necessary for the new owner to apply for and obtain a new certificate of registration. It was established that he did not do so, even after receiving a request from Transport Canada in a letter dated August 9, 2000 (Exhibit M-1, 3C).

It was established that Mr. Garrow operated the aircraft and established a training school, using instructors James Martin and Dale Lounsbury. Some 60 flights were operated between May 27 and June 7, 2000. During this time the aircraft. was neither registered nor insured. When the training pilots became aware of the lack of insurance, they ceased operations and during their attempts to establish whether the aircraft was insured, they made reports to Transport Canada, when they found that it was not insured. They said, under oath, that Mr. Garrow had told them that the aircraft was insured through COPA Insurance and/or British Aviation. It is also clear that Mr. Garrow never notified Transport Canada of his training school, or that he had commenced training pilots.

Witnesses Peter Ireland, COPA Insurance, and Linda Horrobin, Insurance Broker, British Aviation, testified that there was no insurance in effect on C-IIIA after May 1, 2000.

Transport Canada has only fined Mr. Garrow for one flight; however, there were 60 flights recorded in the aircraft logbook, and they could have charged him with all of these.

In his exhaustive cross-examination of Ms. Pybus, Mr. Garrow sought to establish that he was always the owner of C-IIIA, and that he was a part-owner of Flypass Ltd., in which name the aircraft was registered. He further alleged that the bills of sale are "perjured and false". Despite producing some documentation showing that he owned C-IIIA, the aircraft was never registered in Mr. Garrow's name.

Mr. Garrow took issue with and questioned the validity of the exhibits. He frequently delved into irrelevant issues, and I had to continually advise him to keep his questions relevant. Despite my interventions he continued to do so, and went through the Minister's Exhibit M-1 page by page, frequently taking issue with Ms. Pybus, and threatening to take legal action against those who were instrumental in bringing this action by the Minister against him.

Mr. Garrow did not have any questions for the two insurance witnesses.

He did take issue with each of his former flight instructors, witnesses Dale Lounsbury, and James Martin, both of whose evidence was straightforward and to the point. I had to bring up Mr. Garrow repeatedly on irrelevance during his questioning of these witnesses. He became angry and distraught, especially when his line of questioning on money, and how much was paid to whom was ruled not relevant. Mr. Garrow's behaviour became threatening. When Mr. Newcombe declined redirect following Mr. Garrow's cross-examination of Mr. Martin, Mr. Garrow queried the meaning of redirect, and I explained it to him. He expressed frustration in an aggressive manner, saying that he had not been briefed by the Tribunal on the conduct of hearings. He stated that he did not know that he could retain counsel, or bring witnesses. I expressed surprise that he had not received the Tribunal's Guide to Tribunal Hearings, when he was informed of the date and place of this hearing: he denied having received this. At this stage, I adjourned the hearing in the interest of fairness and natural justice to Mr. Garrow, giving him the benefit of the doubt.

On resuming the hearing on June 20th, Mr. Garrow did not appear, despite a late start at 10:30 a.m., to give him time to make the hearing, lest he had been unavoidably delayed.

Two remaining witnesses testified: Mr. Art Mitchell, the former owner of the aircraft and Owner of Flypass Ltd. Mr. Mitchell testified that he had been the owner of C-IIIA. He confirmed the bills of sale of the aircraft to Mr. Garrow, to whom he passed ownership in settlement of a personal debt. Mr. Mitchell testified that Mr. Garrow had not had any share in his company, Flypass Ltd., or in C-IIIA prior to March 5, 2000.

Mr. Mitchell further confirmed under oath that he had terminated his training school, and the insurance on the aircraft on April 30, 2000 after it left his ownership and control. He also confirmed the validity of the exhibits relevant to him, in the Minister's Exhibit M-1.

Mr. Amy was the final witness. He was a student who paid Mr. Garrow for his training. He testified that he had brought copies of his cancelled cheques and his logbook to the hearing on April 24 and 25, and that the brown envelope they were in had been taken by Mr. Garrow from the table, sometime during these days. He had contacted Mr. Garrow, who admitted that he had them, and would return them, but had not done so. Mr. Amy testified that he had paid Mr. Garrow for the training he received.

The evidentiary record was closed, and in his summary, Mr. Newcombe reiterated the salient points of the case, emphasizing that Mr. Garrow had ignored a reminder from the Minister to register his aircraft, and that he had operated it without insurance, jeopardizing the instructors and the public at large. He had, said Mr. Newcombe, shown complete disregard and disrespect for the regulations, and his responsibilities as an aircraft owner.

DETERMINATION

During the time that Mr. Garrow attended the hearing I sought to help and advise him of his rights and conduct at Tribunal hearings. It is unfortunate that he has chosen not to attend the second sitting of this hearing to give evidence on his own behalf. As a result, and in the light of the overwhelming evidence corroborated by all of the Minister's witnesses, I find that Mr. Garrow did contravene all of the regulations under reference above.

I also find that Mr. Garrow has demonstrated contempt for the regulations and Transport Canada's attempts to enforce them. I therefore uphold the penalties assessed in the Notice of Assessment of Monetary Penalty, except that I increase the fine levied in count 2 to $1,500.00. My reason for increasing this penalty is that Mr. Garrow sought to deceive his two instructors that the aircraft was insured, when it was not. This was not only illegal, but it essentially stripped them of any protection they would have been entitled to, had there been an accident; not to mention the public at large.

The schedule of penalties therefore becomes:

  • Count 1 $1,000.00
  • Count 2 $1,500.00
  • Count 3 $250.00
  • Count 4 $100.00
  • Total      $2,850.00

In summary, at the conclusion of this hearing, I have determined that James Edward Garrow did contravene the regulations as alleged by the Minister. I therefore uphold the sanctions for Counts 1, 3 and 4, but increase the penalty for Count 2 to $1,500.00, because he sought to deceive his two instructors that his aircraft was insured, when it was not. The total amount of the penalty is $2,850.00.

Philip D. Jardim
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Samuel J. Birenbaum, Suzanne Racine


Decision: December 28, 2001

In view of the Appellant's failure to appear, there was no case for the Respondent to meet. We determined that the Appeal was to be dismissed, and that the Review Determination be upheld. The total amount of $2,850.00 is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

In accordance with a duly served Notice of Hearing, a hearing was convened to address the Appeal filed by Mr. James Edward Garrow of the Review Determination rendered by Tribunal Member, Mr. Philip Jardim, dated June 25, 2001.

The hearing convened at 10:00 a.m., December 13, 2001, in Toronto, Ontario. The Respondent Minister of Transport was represented by Mr. G. Hector. The hearing was adjourned until 10:15 to allow for a possible late appearance. During that time, it was verified that the Tribunal's registrar had not received any message from Mr. Garrow regarding his absence.

The hearing reconvened at 10:15 a.m. In view of the Appellant's failure to appear, there was no case for the Respondent to meet. We determined that the Appeal was to be dismissed, and that the Review Determination be upheld.

Reasons for the appeal determination:

Allister Ogilvie, Chairperson

Concurred:

Dr. Samuel Birenbaum, Member
Suzanne Racine, Member