Decisions

CAT File No. A-1475-33
MoT File No. 6504-P-139634-029413

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Joseph Gilles Jean Lapointe, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.6(2), 7.7, 33(3), 37
Canadian Aviation Regulations, SOR/96-433, s. 602.31(1)(b)
Canadian Charter of Rights and Freedoms, s. 7

Tape recording, Expert witness, Due diligence, Disclosure, Defenses, Best evidence, Air traffic control, Air traffic control clearance


Review Determination
Allister W. Ogilvie


Decision: November 20, 1997

I uphold the Minister's decision. The Minister has proven, on a balance of probabilities, that Captain Lapointe did not comply with the clearance received and accepted by him. The defence of due diligence has not been proven. The Minister's assessment of a monetary penalty of $250 is confirmed. This amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within 15 days following service of this determination.

A Review Hearing on the above matter was held Wednesday, October 29, 1997 at 10:00 hours at the Deer Lake Motel, in Deer Lake, Newfoundland.

BACKGROUND

On January 27, 1997, Air Canada flight 4600 flew between Halifax, Nova Scotia and Deer Lake, Newfoundland. Nearing Deer Lake, the flight was cleared to do an instrument landing system (ILS) approach on runway 25. Another aircraft, Speedair 8828, was to hold on the runway until hearing that flight 4600 reported over the junction beacon outbound, during its ILS procedure. The Flight Service Station (FSS) next heard from Air Canada 4600 as it turned base on a visual approach to runway 25.

The Minister alleged that Air Canada 4600 did not comply with the clearance provided. That allegation formed the basis for the Minister of Transport's Notice of Assessment of Monetary Penalty which states in part:

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):

Canadian Aviation Regulations section 602.31(1)(b) in that, at approximately 1556 U.T.C. hours on January 27, 1997 at or near Deer Lake, Newfoundland, being the pilot-in-command of a DC9-32 aircraft bearing Canadian registration Marks CF-TML, operated as ACA4600 you did fail to comply with an air traffic control clearance received and accepted by you by reason of the fact that you failed to cross the Junction Beacon (FK) outbound for one minute prior to commencing an ILS approach to runway 25 as cleared and did thereby commit an offence contrary to section 7.6(2) of the Aeronautics Act, R.S.C., c. A-3, s.1.

PRELIMINARY MOTION

Mr. Fenn, counsel for the Respondent, made a preliminary motion for additional disclosure. It was his position that the Respondent was entitled to the entire Transport Canada file but that he had only received select portions of it.

The Case Presenting Officer for Transport Canada stated that it was his opinion that he was not required to produce the whole file, as it contained the investigator's notes.

RULING

I ruled that Mr. Fenn could review contents of the file excluding the investigator's notes.

EVIDENCE

There is no issue that Captain Lapointe was pilot-in-command of Air Canada 4600 on January 27, 1997. Although evidence was tendered in proof of the fact, Captain Lapointe readily acknowledged that he was the pilot-in-command on the flight in question.

That the flight was given an approach clearance for an ILS on runway 25, Deer Lake was established from both the Captain's and FSS specialist's evidence. Captain Lapointe further acknowledged in his letter of April 16, 1997 to the investigator, Mr. Tataryn, that the clearance was to cross the junction beacon outboard for one minute before commencing the procedure turn. However, Captain Lapointe testified that, as he arrived south west of the beacon, the flight encountered visual meteorological conditions, and he asked the first officer to cancel the instrument flight rules (IFR). He stated that he had heard the first officer cancel but granted that he did not hear the acknowledgement of the cancellation. The first officer, Mr. Rapenda, testified to having called and cancelled the flight's IFR clearance with Deer Lake FSS but could not recall if he had had an acknowledgment.

Both pilots concurred that they asked the FSS to cancel the IFR flight plan, a second time when the flight was two miles on final. The pilots stated that they did so because of the doubt or surprise that registered in the specialist's voice when they contacted him on their final approach.

The FSS communications were handled by Mr. Barry Reid, the specialist on duty on January 27, 1997. Mr. Reid identified his own voice on a compressed tape recording which was made of the incident. The tape is accompanied by a transcript for ease of reference.

The transcript of the tape reveals that Mr. Reid initially communicated with the aircraft when the crew members were estimating the field in twelve minutes. The next communication was when they called, stating that they were doing a visual approach and were turning left base with the airport in sight.

Mr. Reid confirmed in cross-examination that he first saw the aircraft when it was on the base leg. This information was relayed to the Area Control Centre as soon as he was able to do so. The tape showed that in later comments to the Area Control Centre, Mr. Reid stated that Air Canada 4600 had not asked him for an approval for a visual.

The compressed tape of the occurrence, which has been referred to, was made by Mr. Jeff Vey, of the Deer Lake FSS. He testified that he had secured the original tape at the behest of Transport Canada. From it, he made a cassette recording (i.e., the compressed tape). At the hearing he identified the tape, from the handwriting on the label and identified his own voice on the preamble of the compressed tape. He declared that the cassette was new and that he also electronically cleaned it before making the recording. The master tape was subsequently returned to service. The tape was played at the Review Hearing to have its contents become part of the record and was entered as Exhibit M-1.

At the request of Mr. Fenn, the tape was played beyond the point at which the transcript declares "Tape ends." That revealed that there was an additional transmission found beyond the indicated end. That communication is a reiteration of some of the former portion of the tape.

Mr. Vey was subject to a detailed cross-examination regarding the tape, the method of copying, the continuity of possession, and the accuracy of his recording equipment. Although he testified that he had listened to the tape to verify it, he had no explanation of the additional communication found, nor did he possess any personal knowledge regarding the taped communications.

The Transport Canada investigator in charge regarding the occurrence was Mr. Tataryn. He is an experienced pilot with a strong IFR background. As such, he was qualified to give opinion evidence regarding instrument flying.

He testified that the clearance for Air Canada 4600's approach, including the restriction to cross the junction beacon outbound for one minute, was to assure separation from the aircraft about to take off, Speedair 8828.

It was his opinion that a pilot would be expected to have cancelled his IFR before doing anything other than what was provided in the clearance. Upon cross-examination, Mr. Fenn referred Mr. Tataryn to Captain Lapointe's letter (Exhibit D-2) where it was stated that they had cancelled IFR with Deer Lake FSS and asked if it was then permissible to continue visual flight rules (VFR). Mr. Tataryn maintained that that was not correct. It would only be permissible if the pilot had received confirmation of the cancellation.

THE LAW

The Minister has alleged that Captain Lapointe violated the following provision:

Paragraph 602.31(1)(b) of the Canadian Aviation Regulations (CARs) provides:

602.31 (1) Subject to subsection (3), the pilot-in-command of an aircraft shall

(...)

(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command

Subsection 602.31(1) of the Regulations states that it is subject to subsection (3). Subsection (3) allows the pilot-in-command to deviate from a clearance to the extent necessary to carry out a collision avoidance manoeuvre. That circumstance does not arise in this instance.

ARGUMENT

Mr. Miles contended that the violation of paragraph 602.31(1)(b) of the CARs had been made out as Captain Lapointe had admitted to being the pilot-in-command on the flight in question. It was proven that the clearance, complete with restriction, had been received and accepted by Captain Lapointe. The FSS specialist and tape showed that the flight had deviated from the clearance. Therefore, all elements of the offence were proven. He contended that the offence, being a designated provision, was classified as one of strict liability, and hence no intention needed to be shown.

Mr. Fenn provided argument on several points. He maintained that the Minister had not satisfied the onus of proof. He also argued that the Minister's failure to give full disclosure on a timely basis was reason for me to decide in his client's favour. Alternatively, should I find that the Minister did establish all elements of the offence, he argued that the Captain exercised all due diligence in the circumstance.

Regarding the compressed tape, Mr. Fenn asserted that it was of no evidentiary value as it was not the best evidence, i.e., was not the original FSS tape. He pointed out the extra communication found on the tape and the lack of explanation of it.

Mr. Fenn contented that there had been a cancellation of the IFR, as evidenced by the pilot's testimony. If there was a breakdown in communication between the FSS and Area Control Centre, that was not the fault of the pilot. This point also went to his argument of due diligence, as he stated that he did not know what else the pilot could have done.

I also note that Mr. Fenn contested acceptance of Mr. Tataryn as an expert witness, as Mr. Tataryn's can-say statement did not contain any reference to expert testimony. He did not contest the acceptance on the ground of Tataryn's qualifications.

DISCUSSION

The Minister must prove all the elements of an offence, on a balance of probabilities, to make out the case. For an alleged infraction of paragraph 603.3l(1)(b) of the CARs, he must establish:

  1. the identity of the pilot-in-command of the aircraft;
  2. that the pilot-in-command received and accepted an air traffic control (ATC) clearance; and
  3. that the pilot-in-command failed to comply with the clearance received and accepted.

The evidence accepted has proved that Captain Lapointe was the pilot-in-command of the flight in question and that the clearance was received and accepted by him. Thus, the first two elements of the offence have been proven.

ISSUE

The issue to be determined is whether Captain Lapointe failed to comply with the clearance.

The clearance was for an ILS Approach on runway 25. The evidence shows that this was not accomplished, as the procedure was truncated and the approach was flown visually. However Captain Lapointe's evidence is that he did comply with the clearance until encountering visual meteorological conditions at which point he cancelled IFR. It is inferred that, once the IFR is cancelled, there is no obligation to follow the IFR clearance.

Neither pilot could attest to having received an acknowledgement of their original cancellation. They called for a second cancellation when on final approach because of the "doubt or surprise" that they heard in the specialist's voice. The Deer Lake FSS compressed tape contains no communication of a cancellation by Air Canada 4600.

Mr. Fenn vigorously attacked the admissibility of the tape, as the tape is a copy and thus is not the "best evidence." As well it contains an additional unexplained communication, and Mr. Fenn also impugns it on that basis.

The "best evidence" rule as well as the "hearsay" rule are examples of the many legal or technical rules of evidence developed for courts to help them accomplish their mandates. However, these rules do not necessarily serve the purpose of an administrative tribunal.

This has been recognized by providing a legislated exemption from the strict adherence to the legal and technical rules, in the form of section 37 of the Aeronautics Act where it states:

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

(...)

(5) The Tribunal or a member thereof may not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

The exemption from the legal and technical rules of evidence is because of the characterization of evidentiary rules as procedural. It is clear from subsection 33(3) of the Aeronautics Act that the Civil Aviation Tribunal is the author of its own procedure.

(3) The Tribunal may, with the approval of the Governor in Council, make rules not inconsistent with this Act governing the carrying out of the affairs of the Tribunal and the practice and procedure in connection with matters dealt with by it. (Emphasis added)

That evidence is to be considered a procedural matter is illustrated in the text of Hearings Before Administrative Tribunals:[1]

"Evidence" is considered, on the whole, to be a matter of procedure. It is an aspect of how one enforces or goes about bringing into effect one's rights rather than being a substantive right itself.1.2

As I have noted repeatedly in this text, administrative decision-makers are masters of their own procedure. They do not have to do things the way a court would do them. Subject to the dictates of statute law and natural justice, an agency has the authority to determine its own procedure. It follows, then, that because evidence is a matter of procedure an agency's mastery over its procedure means that it is not bound by the legal rules of evidence.

1.2Wildman v. R. (1984), 14 C.C.C. (3d) 321 (S.C.C.); R. v. Bickford (1990) 51 C.C.C. (3d) 181 (C.A.).

That tribunals are not normally bound by rules of evidence is also expressed in Administrative Law in Canada, where it is stated:

Unless expressly prescribed, the rules of evidence applied in court proceedings do not apply to proceedings before an administrative tribunal. This is, in part, because tribunal members, being lay people, are not schooled in the rules of evidence and are expected to apply common sense to their consideration of evidence. It also reflects the public interest mandate of many tribunals.

That is not to say that no rules apply regarding evidence. The constraints on evidence found in the Act, are that it must be fair and within the bounds of natural justice. The Tribunal cannot accept evidence that is inadmissible in a court by reason of any privilege under the law of evidence. However, not all evidence is of equal probative value. The hearing member must decide what weight to ascribe to relevant evidence.

It is of interest to note the modern treatment of the "best evidence" rule in the text The Law of Evidence in Canada[3] where the authors, in addressing the modern rule, state:

The modern common law, statutory provisions, rules of practice and modern technology, have rendered the rule obsolete in most cases and the question is one of weight and not admissibility.

Being guided by that conclusion, I find that the tape is admissible. The question is what weight to attribute to it.

The further communication on the tape is a reiteration of a former portion, not something new, nor something contradictory. It is an unexplained anomaly, but in and of itself that anomaly does not vitiate the contents of the tape. The tape is relevant as it exposes the lack of communication of the cancellation of the clearance.

It is also of interest to note that both pilots testified to having heard surprise or doubt in the specialist's voice when they contacted him while on final approach. The clear inference from that testimony is that the specialist did not receive the first officer's communication. That inference then corroborates the tape. The tape can then be afforded considerable weight as to the proof of the allegation.

From the evidence adduced, I must conclude that Air Canada 4600 did not cancel its clearance with Deer Lake FSS. As there was no effective cancellation of the IFR, the pilot-in-command was still bound to comply with the clearance. He did not. The third essential element of the offence has been made out. Therefore, all the constituent elements of the case have been proven on a balance of probabilities.

In argument Mr. Fenn asserted that the defence of due diligence applied. The Aeronautics Act specifically provides such at section 8.5 where it states:

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

The operation of due diligence, once the elements of the offence are proven, was addressed in Harry Edward Joseph Shermet v. Minister of Transport:[4]

Once the party alleging contravention has proved the constituent elements of a strict liability offence on a balance of probabilities, the onus then shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid commission of the offence. This assertion respecting a defence to strict liability offences was set out in the case of R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, and is also codified in section 8.5 of the Aeronautics Act.

The question then is did Captain Lapointe prove on a balance of probabilities that he exercised all due diligence in the circumstances of this case.

The definition of due diligence is addressed in Marsh v. Minister of Transport:[5]

Diligence is defined as "the attention and care legally expected or required of a person." The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.

What then were the attention and care legally expected of the pilot-in-command?

Captain Lapointe indicated in his letter (Exhibit D-2) that, as they arrived two miles from the junction beacon, they picked up the airport in visual meteorological condition, and then cancelled IFR with Deer Lake FSS.

Upon cross-examination, relating to the cancellation of an IFR flight plan, Mr. Tataryn stated that a pilot so cancelling needs to get confirmation of the cancellation. To deviate from the procedure was permissible if the cancellation was acknowledged.

Guidance material in this regard is provided in the Aeronautical Information Publication (A.I.P. Canada):[6]

A pilot may elect to conduct a flight in accordance with IFR during VFR weather conditions. Flights operating in accordance with IFR shall continue in accordance with IFR, regardless of weather conditions. A pilot may, however, cancel the IFR flight plan provided that the pilot is operating in VFR weather conditions, is outside of Class A or B airspace and it is expected that the flight will not return to IFR conditions.

Once ATC has acknowledged the cancellation of IFR and conditions require the filing of a VFR flight plan (CAR 602.73 and RAC 3.8.1), a pilot must contact an FSS to file a new flight plan. (Emphasis added)

The passage clearly shows that ATC needs to acknowledge the cancellation of IFR.

In the circumstances of this case all due diligence would have required the pilot-in-command to have received an acknowledgement of the cancellation of the IFR clearance before deviating from the clearance. Therefore, the defence of all due diligence has not been proven.

Mr. Fenn also argued that the disclosure provided was improper. The preliminary motion ruling allowed him to review all the Minister's file minus the investigator's notes. However, Mr. Fenn declared that late disclosure was tantamount to no disclosure. He asserted that not giving full timely disclosure would amount to violation of Captain Lapointe's rights under the Canadian Charter of Rights and Freedoms.

Jurisprudence regarding disclosure indicates that the general principle is that all relevant information must be disclosed. The material must include that which the Minister intends to introduce into evidence as well as that which he does not. There should be no distinction between inculpatory and exculpatory evidence.

The jurisprudence also states that the Minister is not obliged to provide irrelevant material. All evidence adduced by the Minister at the Review Hearing was of the nature that Mr. Miles described during argument of the preliminary motion. If Mr. Fenn found something else in the file that was relevant, he did not make a point of it. I am left with the assumption that what he read was irrelevant. The Minister is not obligated to disclose irrelevant material. As it need not have been disclosed, its late disclosure cannot have the effect that Mr. Fenn contends.

DETERMINATION

The Minister has proven, on a balance of probabilities, that Captain Lapointe did not comply with the clearance received and accepted by him. The defence of due diligence has not been proven. Captain Lapointe did not suffer any violation of his rights under the Charter.

Both parties spoke to sanction. Counsel for the Respondent urged that it be reduced. However, the failure to comply with a clearance received and accepted can have serious consequences as is illustrated by the facts of this case.

In the result, I uphold the Minister's decision to assess a $250 monetary penalty.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] R.W. Macaulay & J.L.H. Sprague, Hearings Before Administrative Tribunals, (Scarborough: Carswell, 1995) at 17-2.

[2] S. Blake, Administrative Law in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1997) at 50.

[3] J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) at 940.

[4] Harry Edward Joseph Shermet v. Minister of Transport, (CAT File No. C-1021-02 Appeal) at 4.

[5]  Marsh v. Minister of Transport, (CAT File No. C-1095-02 Appeal) at 8.

[6] Aeronautical Information Publication (A.I.P. Canada), Rules of the Air and Air Traffic Services, Part 6.0, Instrument Flight Rules – General, section 6.2 IFR Flights in VFR Weather, at RAC 6-1.


Appeal decision
Faye H. Smith, Philip D. Jardim, Samuel J. Birenbaum


Decision: June 1, 1998

The Appeal is allowed. The Appeal panel finds that the Minister has failed to prove contravention of the said paragraph 602.31(1)(b) as set out in the Notice of assessment and dismisses the assessed penalty of $250.

An Appeal Hearing on the above matter was held Monday, March 30, 1998 at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

BACKGROUND

Captain Lapointe is appealing the review determination handed down on November 20, 1997 by Mr. Allister Ogilvie, Vice-Chairperson of the Tribunal, following a request for review by the Minister of Transport. The Appellant was assessed a monetary penalty of $250 pursuant to section 7.7 of the Aeronautics Act, for an alleged contravention of paragraph 602.31(1)(b) of the Canadian Aviation Regulations.

The Notice of Assessment of Monetary Penalty alleges contravention of the following provision:

Canadian Aviation Regulations section 602.31(1)(b) in that, at approximately 1556 U.T.C. hours on January 27, 1997 at or near Deer Lake, Newfoundland, being the pilot-in-command of a DC9-32 aircraft bearing Canadian registration Marks CF-TML, operated as ACA4600 you did fail to comply with an air traffic control clearance received and accepted by you by reason of the fact that you failed to cross the Junction Beacon (FK) outbound for one minute prior to commencing an ILS approach to runway 25 as cleared and did thereby commit an offence contrary to section 7.6(2) of the Aeronautics Act, R.S.C., c. A-3, s.1.

The events giving rise to this appeal occurred on January 27, 1997 at which time Air Canada Flight 4600 between Halifax, Nova Scotia and Deer Lake, Newfoundland was cleared to do an ILS approach on runway 25 at Deer Lake. Another aircraft Speedair 8828 was holding on the runway as advised until Flight 4600 reported over the junction beacon outbound being the restriction given with its ILS clearance. Flight 4600 did not proceed to the beacon but turned left base on final doing a VFR approach, a procedure which the Minister alleges failed to comply with the required clearance. The contravention and assessed penalty were confirmed at review.

GROUNDS OF APPEAL

Counsel for the Appellant appealed the review determination on the following grounds:

  1. The Hearings Officer erred in relying on the purported air traffic control tape recording of the flight service radio communications produced by the Flight Service Specialist when such tape was shown to be unreliable.
  2. The Hearings Officer erred in finding that the air traffic control tape exposes lack of communication of cancelling IFR.
  3. The Hearings Officer erred in finding that the Flight Service Specialist had not acknowledged the cancellation of IFR.
  4. The Hearings Officer erred in failing to find that the Flight Service Specialist had a duty to advise the Area Control Centre that the flight crew cancelled IFR or that the flight crew were conducting a visual approach when there was a positive duty for the Flight Service Specialist to do so.
  5. The Hearings Officer erred in permitting the Minister's Investigator, Mr. Tataryn, to be called as an expert witness without proper notice to and over the objections of the Appellant.
  6. The Hearings Officer failed to properly consider that the Minister failed to provide full and complete disclosure and that such disclosure was given to the Appellant at the commencement of the hearing, contrary to the Appellant's rights to make full answer and defence, as prescribed by Section 7 of the Canadian Charter of Rights and Freedoms.
  7. The Hearings Officer upheld the Minister's decision based on Improper principles of law and contrary to the evidence.
  8. The Hearings Officer misapplied the law with respect to the evidence and the burden of proof on the Minister.
  9. The Hearings Officer based his determination on improper evidence in that the Hearings Officer relied on evidence that was not called or tendered at the hearing for the purpose of the determination.
  10. The Hearings Officer erred in failing to find that Captain LaPointe exercised all due diligence.
  11. Such further and other grounds as Counsel may advise.

RELIABILITY OF AIR TRAFFIC CONTROL (ATC) TAPE

Appellant's counsel submits that the Tribunal Member erred in relying on the ATC tape which counsel states was flawed and unreliable.

It was the evidence of the witness Mr. Jeff Vey of the Deer Lake Flight Service Station that he made the compressed copy of the original tape as requested by a Transport Canada official. He identified the tape which was proffered to the Tribunal at review as the one he had made and indicated that it was made from a clean tape and that prior to making the copy from the master reel he would have erased even a new tape as this was his habit. Counsel for the Appellant submits that there is a second transcription on the tape which begins at some point after the apparent end of the recorded material. This second transcription is a repeat of some of the material contained on an earlier portion of the tape.

The Minister's Representative indicated that she agreed with the finding of the Tribunal Member that the tape was not unreliable and that the extra information on the tape was a re-recording. She reviewed pages 69 and 73 of the transcript where Mr. Vey under cross-examination explained that perhaps he did not switch one of the buttons quick enough and there was an extra recording. While Mr. Vey stated that he could not offer any reasonable explanation for this, he did offer his reasonable personal guarantee that he was the one that did record that extra communication.

We agree that this is a curious occurrence but we do not find it sufficient justification for this panel to reject the taped transmission as duplicated by Mr. Vey. We accordingly concur with the conclusion of the Tribunal Member at review regarding the best evidence rule and the admissibility of the tape. Section 37 of the Aeronautics Act provides relief from the application of strict legal and technical rules of evidence to proceedings before this Tribunal and where evidence is relevant to the proceeding, we find it to be admissible subject only to the appropriate weight to be determined by the panel. We further agree with the finding by the Tribunal Member that the further communication on the tape is a reiteration of a former portion and being neither new nor contradictory material does not vitiate the contents of the tape simply by its inclusion on it. Appellant's counsel suggested and we concur that it may have been helpful had the parties had the opportunity to avail themselves of the real time as well as the compressed time tape. When both tapes are submitted, suggestions of anomalies or contradictions can be avoided.

DISCLOSURE

At the outset of the Review Hearing Mr. Fenn asserted that he should have been provided with a copy of the Minister's entire file. Mr. Miles for the Minister declared that he had previously disclosed a brief outlining who would be called as witnesses and what the witnesses can say, what evidence will be presented as well as an investigator's summary. Mr. Miles objected to producing the investigator's own notes made during the investigation and he further protested that Mr. Fenn should not have waited until the hearing to ask to see the file.

The determination of what constitutes proper disclosure in matters arising before this Tribunal was reviewed in the recent case of Leslie G. Marsh v. Minister of Transport[1]. The Appeal panel in that case suggested that the Tribunal Member should review the Minister's file and determine whether any material contained in it should be ordered disclosed. In the case before us, the Tribunal Member ordered the file produced to Mr. Fenn to peruse and to copy as desired save for the investigator's notes which he asked the Minister's representative to remove. The transcript reveals that Mr. Fenn advised the Tribunal Member that he did copy some material but did not confide what the nature of that material was nor, as the Respondent submits, did he ask for an adjournment.

The recent case of Dixon v. Her Majesty the Queen[2] provides the Supreme Court's view of the degree of diligence required of defence counsel in pursuing disclosure from the crown:

As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive.

Where, as here, defence counsel chose not to pursue disclosure 'as a result of a tactical decision or lack of due diligence,' it became difficult to accept the argument that non-disclosure affected a trial's fairness.

The Tribunal Member at review correctly stated that the Minister is not obliged to provide irrelevant material. As Mr. Fenn did not share the contents of the copies which he made from the Minister's file we must conclude that he did not consider them relevant, otherwise he would have requested an adjournment for preparation of his case occasioned by the late disclosure or alternatively sought to have this panel consider new evidence by way of response. We thus concur with the Member at review that all relevant material had been disclosed by Mr. Miles. There is no evidence before us that would lead us to conclude that anything obtained by Mr. Fenn from the Minister's file at the outset of the review has in any way hindered the Appellant's right to make full answer and defence.

TRIBUNAL MEMBER'S REFERENCE TO AERONAUTICAL INFORMATION PUBLICATION (A.I.P.)

The Appellant alleges that the Tribunal Member based his determination on improper evidence in that he relied on evidence that was not called or tendered at the hearing.

In assessing the deviation from the IFR flight plan, the Tribunal Member sought confirmation of the evidence of the witness Tataryn that such deviation was permissible if the cancellation of the IFR clearance was acknowledged. He found such reference in the A.I.P. Canada[3] in a passage which indicated that the cancellation had to be acknowledged by Air Traffic Control.

In Exhibit D-2, Captain Lapointe does make reference to the A.I.P. RAC 9.13, and specifically to the option afforded a pilot operating aircraft under IFR when the weather conditions at the aerodrome could permit VFR circuit operations.

Relying on the authority of Canadian Aero Accessories Ltd. v. Minister of Transport[4] the Respondent submits that the A.I.P. is a standing public document known in the aviation industry and to which reference may be made without it having to be submitted in evidence. In the Canadian Aero case, application to introduce new evidence at the appeal level was made regarding a Notice to Aircraft Maintenance Engineers and Aircraft Owners N-AME-AO 01/87. This evidence had not been referred to at the Review Hearing. The Appeal panel permitted the introduction of the document on the basis that it was not new evidence in that it was part of a standing public document to which reference could be made. At the Appeal Hearing, it was open to both parties to address the applicability of the N-AME-AO 01/87.

The issue of whether the Tribunal Member may refer to the A.I.P. passage which had not been introduced at the review hearing must be reviewed in the light of the question of whether the parties will be afforded the opportunity to address the contents of the passage quoted so that an alternate interpretation can be aired should one exist. In the case before us the Appellant objected to the Tribunal Member's use of a passage from the A.I.P. although he did not seek at the appeal level to put forth an alternate or contradictory interpretation nor did he at all suggest that the Tribunal Member had misinterpreted the A.I.P. The Appellant could have availed himself of the opportunity to do so as part of this Appeal just as the parties were afforded the same avenue in the above-cited Canadian Aero case. Since he did not seize the opportunity to contradict the Tribunal Member's reading of the passage, we may conclude that the interpretation given is not in dispute. Consequently, any allegation of a denial of natural justice related to a failure of opportunity to address the passage quoted from the A.I.P. in the review determination has now been cured through the opportunities afforded at this Appeal.

INVESTIGATOR AS EXPERT WITNESS

Mr. Tataryn was the Investigator on behalf of the Minister in this matter. Apparently the material set out in the can say statement for this witness is entirely factual with no indication that he would be called as an expert witness. It would also appear that the objections raised by Mr. Fenn relate not to Mr. Tataryn's expert qualifications but rather to the lack of notice that such expert will be called. The evidence of Mr. Tataryn was essentially that excerpted by the Tribunal Member from RAC 6-1 of the Aeronautical Information Publication[5] referred to above. Essentially the evidence is consistent from each source and its validity was not contested at Review nor at Appeal nor was contradictory evidence called to refute it. The issue before us is not one of validity but rather whether we ought to accept the evidence as expert evidence when the witness was also the investigator.

At page 113 of the transcript the Tribunal Member indicated that had he known, at the time when Mr. Tataryn was qualified as an expert witness that he was also the Case Investigation Officer, he probably would not have qualified him as he believed that the expert and the investigator should be two different people.

It is the view of this panel that the issue central to the presentation and acceptance of a person as an expert witness is the determination by the trier of fact of whether the case is one where the assistance of an expert witness is required. If the answer is in the affirmative, that is, that the issues are sufficiently technical to welcome the assistance of one who is expert in the field, then the next question becomes whether the person presented as an expert has sufficient qualifications to place him in that expert category. If this question is answered in the affirmative, then the person tendered as an expert must be accepted by the trier of fact. We do not believe that we have the option of rejecting that expert on the grounds that he also wears the hat of the investigator in the case and thereby may be biased or liable to bolster his own case.

Rather the better view is that the Tribunal Member, when weighing the evidence of that expert, must be cognizant of the personal involvement of the expert in the preparation and pursuit of the case in its totality. In other words in considering the quality of the evidence the trier of fact must look to the ability of the witness to be objective in the circumstances of the case. We conclude as has the Member at review that it might be in the Minister's best interests to seek an independent expert witness but we do not believe that this factor is sufficient to disqualify an otherwise qualified expert. It is of course open to the Tribunal Member to query whether the person proffered as an expert has qualifications or special status that truly sets him apart from other reasonably competent members of his profession.

Regarding the issue of lack of notice, we are of the view that the Minister of Transport should have given proper notice. We conclude that any allegation of a denial of natural justice related to such failure has been cured through detailed cross-examination of Mr. Tataryn during the Review as well as the opportunities afforded at this Appeal.

COMMUNICATION OF CANCELLATION OF IFR CLEARANCE

The Appellant's counsel submits that the Tribunal Member erred in finding that the tape as admitted exposes a lack of communication of cancelling IFR and further that he erred in finding that Flight Service Station had not acknowledged the cancellation of IFR, and in failing to find a positive duty on Flight Service Station to advise Area Control Centre of the cancellation of the IFR flight or that the flight crew of Flight 4600 was doing a visual approach.

The Tribunal is of the view that it would have been useful had the Minister introduced the tape from Gander Area Control Centre since Gander had issued the clearance. While the Minister's representative sought to introduce the tape, it was rejected by the Tribunal Member at review as the Minister was not able to produce the relevant witness to testify as to this tape.

The evidence of Captain Lapointe and the Flight Service Specialist confirms that the flight was given an approach clearance for an ILS on runway 25 at Deer Lake with the restriction to go one minute past the outer beacon before commencing the procedure turn. There was some suggestion that this restriction had not been communicated to Flight 4600 and that Flight Service Station was attempting to do this when Flight 4600 indicated its visual approach when it was turning left base. We are satisfied on a review of Exhibit D-2 that Captain Lapointe received his restriction when he got his approach clearance for an ILS runway 25 as the following excerpt from Exhibit D-2 indicates:

From my recollection, we received the approach clearance for an ILS RWY 25 while approximately 25 miles out of YDF, and we were handed over to the YDF frequency at that time. The clearance was to cross the Junction (FK) beacon outbound for one minute before commencing the procedure turn. However, as we arrived two miles from FK beacon we picked up the airport in VMC conditions, and then canceled IFR with YDF FSS.

Additionally, it was the testimony of Captain Lapointe that southwest of the beacon he encountered visual meteorological conditions and thus asked the First Officer to cancel the IFR approach. He recalls hearing the First Officer cancel the clearance but did not recall hearing the acknowledgment of the cancellation. The First Officer's evidence was to the effect that he had called and cancelled the flight's IFR clearance though did not recall the acknowledgment.

The evidence of witness Tataryn and the A.I.P. confirm that this IFR clearance given and accepted was mandatory and compliance with it was required unless cancelled. Regarding cancellation, we have the evidence of the crew of AC 4600 that the First Officer had communicated cancellation of the clearance. We have no recording of such on the tape and additionally the Flight Service Station operator testified that he had not received cancellation nor had Air Traffic Control as evidenced from the transcript of the tape.

Further, it was the evidence of both pilots that they asked Flight Service Station to cancel the IFR flight plan again when they were two miles on final and did so this second time only because they detected surprise in the Flight Service Specialist's voice when they contacted him on their final approach.

Appellant's counsel urges the panel to consider that the tape is deficient in that it did not record the first communication of the cancellation by the First Officer. He added that the cancellation of the IFR clearance does appear on the tape in a later portion at the point where Flight 4600 called turning base, doing a visual approach on runway 25 to which Flight Service Station responded "check that" which is an acknowledgment and as such a communication to Flight Service Station is a communication to Area Control Centre.

The Minister's Representative argues that there was no acknowledgment of cancellation of the IFR clearance and asserts that the Tribunal Member's finding that "The tape is relevant as it exposes the lack of communication of the cancellation of the clearance" is reasonable. She urges this panel to consider that possibly when the First Officer called, maybe he was on the wrong frequency. She stated that there needs to be an acknowledgment and since neither the pilot-in-command nor the First Officer could remember the acknowledgment, the tape is evidence that there was a lack of communication of the cancellation.

It is the opinion of this panel that whether the cancellation of the IFR clearance was communicated by the First Officer to Flight Service Station and thereby to Air Traffic Control is not known with certainty. We do know that there is no evidence of the acknowledgment of this communication on the tape as recorded. We also know from the testimony of the Flight Service Station operator Mr. Reid that such communication was not received or acknowledged by him.

Moreover, when Air Canada 4600 turned left base on final the pilot did communicate with the Flight Service Station Specialist and we consider it relevant to reproduce a number of lines of communication between Flight Service Station and Flight 4600 as follows:

FSS And Air Canada 4600, Deer Lake, Gander requests you proceed outbound for at least one minute please
4600 Okay Air Canada 4600 sir, we're doing a visual approach uh we're turning left base at this time with the airport in sight
FSS Air Canada 4600, Deer Lake, uh check that ... Speedair 880, correction, 8828, you check that?
8828 Roger, we check that sir, we can depart immediately
FSS Roger
8828 And check we are in position on runway 25 this time for all traffic
FSS Line clear?
4600 And Air Canada 4600 is two miles final runway 25 Deer Lake and would you please cancel our IFR flight plan?
FSS Air Canada 4600, Deer Lake, roger
FSS Okay, Air Canada did a visual approach

We must conclude that en route to the beacon outbound, the point at which Air Canada Flight 4600 deviated from its clearance to go visual and although it was entitled to do this, it was in breach for whatever fraction of time that deviation entailed, and it continued to be so until it communicated the cancellation of the clearance and it was acknowledged by Flight Service Station.

Although the wording "Air Canada 4600, Deer Lake, uh check that ... Speedair 880, correction, 8828, you check that?" is not crystal clear, we think it capable of being interpreted as an acknowledgment by Flight Service Station of Flight 4600's cancellation of its IFR clearance at which point the pilot is no longer required to follow his IFR clearance or comply with the restriction. That is, the flight was no longer operating in breach having legitimately cancelled the IFR clearance and no longer was required to cross the junction beacon (FK) outbound for one minute. Accordingly, the allegation as worded in the Notice of assessment of monetary penalty at page 1 above cannot be upheld.

DETERMINATION

The Appeal is allowed. The Appeal panel finds that the Minister has failed to prove contravention of the said paragraph 602.31(1)(b) as set out in the Notice of assessment and dismisses the assessed penalty of $250.

Reasons for Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Dr. Samuel Birenbaum, Member
Philip D. Jardim, Member

Comment by Member Jardim

I agree with the above determination and add my reasons as follows: I accept the evidence of the pilots that they cancelled IFR. The absence of the real time tape, the Gander Area Control Centre tape and the questionable compressed time tape given and accepted as evidence, do not support the Minister's allegation against Captain Lapointe.


[1] CAT File No. C-1095-02

[2] Decision rendered on February 19, 1998, S.C.C.

[3] Aeronautical Information Publication (A.I.P. Canada), Rules of the Air and Air Traffic Services, Part 6.0, Instrument Flight Rules — General, section 6.2 IFR Flights in VFR Weather, at RAC 6-1.

[4] CAT File No. W-1218-41

[5] Aeronautical Information Publication (A.I.P. Canada) Air Traffic Control Clearance