Decisions

CAT File No. P-1844-41
MoT File No. EMIS 32821

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

NAV CANADA, Respondent

LEGISLATION:
Aeronautics Act, R.S. c.33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR96/433, s. 801.08(a)

Vehicle control service, Motions, ATS site manual, FSS


Review Determination
Allister W. Ogilvie


Decision: January 13, 2000

The Minister has proven, on a balance of probabilities, that NAV CANADA did contravene paragraph 801.08(a) of the Canadian Aviation Regulations. The defence of due diligence has not been proven. I uphold the Minister's decision to assess a monetary penalty of $10,000 against NAV CANADA. That 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 Friday, October 15, 1999 in Ottawa, Ontario, Monday, November 1, 1999 in Vancouver, British Columbia and Thursday, November 25, 1999 in Ottawa, Ontario.

BACKGROUND

On December 17, 1998 a NAV CANADA aircraft was performing a routine flight inspection of the navigational and approach facilities at the Terrace airport in British Columbia. While overhead the field and manoeuvring for landing, the pilots noticed a patch of mist on the north half of the active runway. Accomplishing their circuit, they then landed on the runway and rolled into the mist. During the roll out they noticed a white pickup in close proximity to the runway.

The report of that incident prompted an investigation by Transport Canada, which lead to the Minister issuing a Notice of Assessment of Monetary Penalty against NAV CANADA, which is the subject matter of this hearing.

PRELIMINARY MATTERS

The hearing commenced in Ottawa on October 15, 1999. At that time I received the evidence of a witness who resided in the Ottawa area. The hearing reconvened on November 1, 1999 in Vancouver, British Columbia to take the evidence of witnesses residing in that province and to hear argument. At that time as a preliminary matter, Mr. Floyd, representative of NAV CANADA, wished to introduce six motions. After the fourth motion it became apparent that time constraints would prevent the taking of witness testimony if all the motions were heard first.

With agreement of both parties the remaining motions were postponed and the witnesses' testimony was received. The hearing reconvened in Ottawa on November 25, 1999 to address the remaining motions and to hear final arguments.

All the motions are presented at the beginning of this determination although motions 5 and 6 were heard after witness testimony.

Mr. Floyd presented his motions, Mr. Hector provided a response, with Mr. Floyd then giving a reply. The decisions were reserved until the case determination was rendered.

Motion 1

To dismiss, strike out all or part of the decision of June 14, 1999 as being flawed and contrary to fairness and natural justice as NAV CANADA could not know the case it had to meet. The allegation cited one incident but alleged 5 counts, any one of which could have been the case to meet.

Held—motion dismissed.

What Mr. Floyd characterizes as the "decision" of June 14, 1999 is the decision of the Minister to issue a Notice of Assessment of Monetary Penalty to NAV CANADA in the following form:

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 801.08(a)

On or about December 17, 1998, at approximately 1919Z, at or near Terrace B.C., NAV CANADA, as holder of an ATS operations certificate, did not provide Air Traffic Services at the Terrace airport in accordance with the site manual, which requires the use of procedures from the FSS Manual of Operations (FSS Manops), more particularly:

Count 1

NAV CANADA did not instruct ground traffic, Staff 61, to leave the intended runway before an aircraft, Nav Can 200, landed, contrary to section 911.5 FSS Manops;

Count 2

NAV CANADA failed to advise an aircraft, Nav Can 200, that ground traffic, Staff 61, had not reported off the intended runway, contrary to section 816.2 (B) FSS Manops;

Count 3

NAV CANADA did not include a summary of ground traffic, Staff 61, that was not expected to be off the intended runway prior to an aircraft's, Nav Can 200, estimated time of landing, contrary to section 816.1 FSS Manops;

Count 4

NAV CANADA did not hold ground traffic, Staff 61, 200 feet from the runway edge, contrary to section 911.8 (A) FSS Manops;

Count 5

NAV CANADA did not hold ground traffic, Staff 61, at a sufficient distance from the runway edge to ensure that no hazard was created to the arriving aircraft, Nav Can 200, contrary to section 911.8 (B).

The Notice of Assessment of Monetary Penalty is the notice of allegation in the form prescribed by regulation. A review of the Notice does not reveal the deficiencies alleged. It is clear as to date, place and time. The provision alleged to have been breached is stated. NAV CANADA, the alleged offender is identified.

Each of the 5 counts has detail that is sufficient to recognize the act or lack of action that is alleged to have occurred. Each count provides reference to the section of the Manops to which that act or lack of action refers. The Notice of Assessment of Monetary Penalty is sufficient for NAV CANADA to know the case it has to meet.

Motion 2—Res judicata

To dismiss or strike counts 2 to 5.

Held—Motion dismissed.

Mr. Floyd submits that counts 2 through 5 have been previously dealt with and cannot be retried.

Background

A Notice of Assessment of Monetary Penalty dated February 15, 1999 had been issued to NAV CANADA. That Notice contained the same allegation against NAV CANADA as is found in Count 1 of the Notice currently at issue, but was worded slightly differently. The difference in wording is of no significance.

The Minister of Transport made an application to the Tribunal to amend that first Notice. The amendment would have added four additional counts to the allegation. The wording of the Notice was altered so as to be identical to the current Notice. NAV CANADA opposed the application to amend. Having received and considered the submission of the parties, the Tribunal denied the Minister's request to amend the Notice.

As a consequence of that ruling the Minister, by letter of June 7, 1999, withdrew the Notice (CAT File No. P-1780-41, MoT File No. EMIS 32821) dated February 15, 1999 and advised that a new Notice would be issued. On the same day the Tribunal issued to both parties a Notice of Cancellation of Review Hearing, stating that the file was then closed.

The new Notice that the Minister had advised would be issued is the Notice now at issue dated June 14, 1999.

It is Mr. Floyd's submission that as counts 2 through 5 were dealt with by the Tribunal in the Application to Amend they cannot now form the substance of this hearing and should be dismissed. I cannot concur with the proposition put forth by Mr. Floyd.

Estoppel by res judicata has been found to apply to administrative tribunals.[1] Included in the requirement for the application of resjudicata is that there has been a decision on the merits.[2] In this circumstance, the decision previously made was to deny an application to amend the Notice of Assessment of Monetary Penalty. No hearing was held so no decision on the merits could be made. The Minister withdrew the Notice in its entirety.

As the application of res judicata requires there to have been a decision on the merits, it cannot apply here.

Motion 3—Functus Officio

To dismiss, the Minister's first decision makes him functus. The Tribunal lacks jurisdiction to hear it.

Held—Motion dismissed.

Mr. Floyd stated that the Minister issued a Notice of Assessment of Monetary Penalty on February 15, 1999 and then issued another one on June 14, 1999. He argues that as the Minister's decision is functus as of June 14, 1999, the Tribunal lacks the jurisdiction to hear it.

The case of Communications & Electrical Workers of Canada v. Canada (Attorney General)[3] was offered in support of the motion. Mr. Floyd quoted a definition of functus officio, found in that case and went on to quote Judge Denault as saying that "where the authority to act is given by a statute or other instrument, it is a matter of interpretation whether the power may be exercised only once or more than once." Mr. Floyd's interpretation is that the Minister was only authorized to act once.

He submits that the fact the Minister is only allowed to act once is shown in the Aeronautics Act at sections 7 and 7.1. He says that under those sections the language allows the Minister a reconsideration but that wording is absent under section 7.7, the section in issue here. Mr. Floyd has misinterpreted those sections. Allegations against a document holder may be made pursuant to sections 6.9, 7, 7.1 and 7.7. Each section addresses the powers that a Tribunal member may exercise in coming to a determination. Regarding allegations made pursuant to section 7.1, the member's powers are found at subsection 7.1(8). The member may confirm the suspension, cancellation or refusal to renew or refer the matter back to the Minister for reconsideration. Thus it is the statutory power of the member to force the Minister to reconsider not authority given by statute to allow the Minister to exercise a power more than once as was contemplated by Judge Denault above.

Mr. Floyd has offered the Chandler[4] and Grillas[5] cases in support of his view. It is of interest to note that both cases address the rehearing of decisions of some type of board or panel.

I take Mr. Floyd's assertion that the Minister is functus to be based upon his "decision" as an administrative function. The concept of functus officio establishes that a tribunal or agency having reached a final decision cannot revisit that decision. The concept does not apply to the Minister of Transport in regard to his "decision" to make an allegation against an alleged offender.

Motion 4

To dismiss, lack of jurisdiction of both the Minister and the Tribunal as the regulation in its effect is inconsistent with statute as it relates to vehicle control services and air traffic advisory services.

Mr. Floyd's arguments in support of this motion encompass several different points, which I will endeavour to address.

The offence as alleged is a breach of section 801.08 of the Canadian Aviation Regulations (CARs) in that NAV CANADA did not provide air traffic services in accordance with the site manual. Mr. Floyd maintains that the counts to that alleged breach address vehicle control at counts 1, 4 and 5 whereas counts 2 and 3 relate to air traffic advisory.

He addresses what he terms to be inconsistencies between regulation and statute. This inconsistency goes to both vehicle control service and air traffic advisory services.

The inconsistency that he finds is between the definitions in Part VIII of the CARs and those found in section 2 of the Civil Air Navigation Services Commercialization Act (Bill C-20).[6] The CARs are regulations made pursuant to the Aeronautics Act, which is the legislation that provides the safety related rules and regulations for aeronautics. Bill C-20 is the enactment providing the authority for the commercialization of civil air navigation services that were formerly provided by the Minister of Transport.

The essence of Mr. Floyd's position is that the requirement to provide vehicle control service and air traffic advisory services, as related to uncontrolled airports was not one that was transferred to NAV CANADA through Bill C-20. He comes to this conclusion because of the inconsistency in the definitions. Bill C-20's purpose was to provide the authority for the commercialization of civil air navigation services. That term is defined in the Act at section 2. The Aeronautics Act adopts the same meaning.

"air navigation services" means

(a) aeronautical communication services,

(b) aeronautical information services,

(c) aeronautical radio navigation services,

(d) air traffic control services,

(e) aviation weather services,

(f) emergency assistance services, and

(g) flight information services,

Under the Aeronautics Act, Part VIII of the CARs is the section that addresses air navigation services. Air traffic services is defined at subsection 800.01(1):

"air traffic services" or "ATS" includes air traffic control services, air traffic advisory services and flight information services;

It can be seen that two of these services are included in the definition of air navigation services (d) and (g).

Mr. Floyd notes that "air traffic advisory services" is not included in the definition of "air navigation services" in Bill C-20 so there can be no obligation to provide the service. It must be remembered that Bill C-20's objective was the commercialization of civil air navigation services whereas the obligation to provide the service stems from the Aeronautics Act, pursuant to which air traffic advisory service is found.

He argues that regarding vehicle control, only air traffic control services by definition imposes an obligation on NAV CANADA to prevent collisions between vehicles and aircraft. Therefore, since this case deals with flight information services, which by definition is excluded from air traffic control service, that obligation is absent. He asserts that if there is no regulatory obligation, I have no jurisdiction to address it.

Mr. Floyd states that these inconsistencies result in ultra vires or lack of jurisdiction. Although that proposition was argued, I did not receive any authority for it. In search of some authority I consulted a treatise on the interpretation of legislation.[7] The text addressed the concept of inconsistency between statutes[8] and of inconsistent regulations[9] and mention was made of inconsistency between statute and regulation.[10]

On close scrutiny I do not believe that what Mr. Floyd characterizes as inconsistency falls within the ambit of the above concepts.

The "inconsistency" that he addresses is between a definition found in a regulation under one statute and the definition of another term found in a different statute. The comparison is not even between the same terms. He compares "air traffic services" in the definitions of Part VIII of the CARs with the definition of "air navigation services" in Bill C-20. As previously illustrated air traffic services includes three terminologies whereas air navigation services includes seven.

"Inconsistencies" as dealt with in the text were substantive law differences. As an example, a law declaring pensions exempt from seizure and another permitting their seizure in part[11] was found to be inconsistent.

Definitions in and of themselves do not create obligations or grant powers. They are merely words that are to be found in the body of an enactment. The differences in the definitions of different terms found in different enactments do not have the effect of rendering the enactment ultra vires. One must compare the context of the acts within which the words are found.

Counsel also submits that section 4 of Bill C-20 only deals with aircraft and airspace, so NAV CANADA has no jurisdiction over vehicles.

That section states:

This Act applies in respect of every aircraft in Canadian airspace or any other airspace in respect of which Canada has responsibility for the provision of air traffic control services.

I do not think that Mr. Floyd meant for his argument to be taken seriously as he had just pointed out that in the definition of air traffic services in Bill C-20, prevention of collisions between aircraft and vehicles was addressed. To read section 4 of the Act to restrict its application to aircraft and airspace only is to ignore the rest of the Act which goes on to address the transfer of employees to NAV CANADA, the continuance of certain collective agreements, the introduction of user fees as well as a half dozen other matters, none of which fit comfortably into the cockpit of an aircraft into the sphere of airspace.

Motion 5

To dismiss the matter and exclude the site manual due to lack of jurisdiction of the Tribunal.

The site manual is either regulatory material which is unenforceable due to deficiencies of notice and gazetting or it is a legal agreement over which the Civil Aviation Tribunal has no jurisdiction and Her Majesty is estopped from bringing it forward.

Held—Motion dismissed.

The Governor in Council pursuant to authority of the Aeronautics Act created the CARs.

In the case at hand the allegation is of an alleged breach of paragraph 801.08(a) of the CARs. There is no doubt that it is a "regulation" and Mr. Floyd did not question its authenticity or question whether or not it was "gazetted."

That regulation requires the holder of an ATS operations certificate to provide air traffic services at an operational location in accordance with the ATS site manual.

It is this site manual that Mr. Floyd says is "regulatory material" which he asserts is unenforceable due to lack of notice and gazetting. This is so he argues because of the requirement found at subsection 11(2) of the Statutory Instruments Act which states:

(2) No regulation is invalid by reason only that it was not published in the Canada Gazette, but no person shall be convicted of an offence consisting of a contravention of any regulation that at the time of the alleged contravention was not published in the Canada Gazette unless

(a) the regulation was exempted from the application of subsection (1) pursuant to paragraph 20(c), or the regulation expressly provides that it shall apply according to its terms before it is published in the Canada Gazette; and

(b) it is proved that at the date of the alleged contravention reasonable steps had been taken to bring the purport of the regulation to the notice of those persons likely to be affected by it.

That section addresses a regulation.

A regulation is in turn defined in that Act as:

"regulation" means a statutory instrument

(a) made in the exercise of a legislative power conferred by or under an Act of Parliament, or

(b) for the contravention of which a penalty, fine or imprisonment is prescribed by or under an Act of Parliament,

and includes a rule, order or regulation governing the practice or procedure in any proceedings before a judicial or quasi-judicial body established by or under an Act of Parliament, and any instrument described as a regulation in any other Act of Parliament;

"statutory instrument"

(a) means any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established

(i) in the execution of a power conferred by or under an Act of Parliament, by or under which that instrument is expressly authorized to be issued, made or established otherwise than by the conferring on any person or body of powers or functions in relation to a matter to which that instrument relates, or

(ii) by or under the authority of the Governor in Council, otherwise than in the execution of a power conferred by or under an Act of Parliament,

but

(b) does not include

(i) any instrument referred to in paragraph (a) and issued, made or established by a corporation incorporated by or under an Act of Parliament unless

(A) the instrument is a regulation and the corporation by which it is made is one that is ultimately accountable, through a Minister, to Parliament for the conduct of its affairs, or

(B) the instrument is one for the contravention of which a penalty, fine or imprisonment is prescribed by or under an Act of Parliament,

(ii) any instrument referred to in paragraph (a) and issued, made or established by a judicial or quasi-judicial body, unless the instrument is a rule, order or regulation governing the practice or procedure in proceedings before a judicial or quasi-judicial body established by or under an Act of Parliament,

(iii) any instrument referred to in paragraph (a) and in respect of which, or in respect of the production or other disclosure of which, any privilege exists by law or whose contents are limited to advice or information intended only for use or assistance in the making of a decision or the determination of policy, or in the ascertainment of any matter necessarily incidental thereto, or

(iv) an ordinance of the Yukon Territory or the Northwest Territories or any instrument issued, made or established thereunder.

(2) In applying the definition "regulation" in subsection (1) for the purpose of determining whether an instrument described in subparagraph (b)(i) of the definition "statutory instrument" in that subsection is a regulation, that instrument shall be deemed to be a statutory instrument, and any instrument accordingly determined to be a regulation shall be deemed to be a regulation for all purposes of this Act.

The NAV CANADA ATS site manual does not fall within the foregoing definitions. The manual is prepared by NAV CANADA itself to fulfill its obligation as the holder of an ATS operations certificate. It is not made in the exercise of a legislative power conferred by an Act of Parliament. The contents of the manual are described in section 801.07 of the CARs. They include information relating to the administration of the air traffic control unit, information relating to the operation of a unit and descriptions of procedures for providing various types of services. The manual itself states, in the foreword, that it sets out the types of services that are provided by the Terrace flight service station (FSS).

This scheme is utilized in other areas of the legislation. For instance an applicant for an approved maintenance organization (AMO) must submit to the Minister along with the application a copy of its maintenance policy manual (MPM) (subsection 573.01(2) of the CARs). That MPM must contain information to ensure the efficiency of the AMO's maintenance policies dealing with subjects in Chapter 573 of the Airworthiness Manual.

An air operator must comply with the conditions and operations specifications in an air operator certificate (section 705.02 of the CARs). The general conditions of the air operator certificate include the requirement to conduct flight operations in accordance with its company operations manual (paragraph 705.09(a)). The contents of the manual shall include the instructions and information necessary to enable the personnel concerned to perform their duties safely (subsection 705.135(1)).

It can be seen by the brief description of the various manuals that they contain information aimed at the specific personnel of the holder of the certificate. The site manual is incorporated by reference in the regulation, but is not itself a statutory instrument.

Jurisprudence has recognized that this type of material can be so incorporated. In R. v. Perimeter Airlines[12] the corporate defendant made a motion similar to the one at hand challenging the validity of charges laid under the Aeronautics Act. The issue was the status of the Engineering and Inspection Manual. That manual provided airworthiness standards. It was held the manual was not a regulation within the meaning of the Statutory Instruments Act. The manual was a guide to owners of aircraft to assist them in maintaining their aircraft and equipment but was not a "rule, order or regulation, or direction".

Mr. Floyd's reference to the site manual as "regulatory material," does not have the effect of making it a regulation. The site manual is not a "regulation" pursuant to the Statutory Instruments Act and thus the attendant circumstances do not apply.

Regarding the site manual itself, a NAV CANADA document, Mr. Floyd also argues that the persons who signed it lacked the authority to do so. As appropriate signatures are required in a site manual as a requirement to hold an ATS operations certificate, Mr. Floyd's argument, if correct, should pique the further interest of Transport Canada Enforcement. However having decided the motion on a different basis, I make no comment on his secondary argument.

Motion 6

To dismiss and exclude the April 1995 Vehicle Control Memorandum of Understanding (MOU), as it has no validity.

Held—Motion Dismissed.

Mr. Floyd contends that certain documents in this case, the April 1995 vehicle control MOU, were obliged to be disclosed to NAV CANADA prior to the transfer of services to NAV CANADA. In this case he says the MOU was not disclosed but even if it was it would now be cancelled by the Aviation Services & Facilities Agreement (ASFA). Mr. Floyd therefore maintains that it is not valid.

The impugned MOU is the third item in Attachment C to NAV CANADA's Terrace site manual. As opposed to Mr. Floyd's argument, the evidence of Mr. Cook establishes that NAV CANADA itself has accepted the MOU and incorporated it into its own manual. If Mr. Floyd's analysis is correct why did he not, as counsel for NAV CANADA, just instruct that it be removed? NAV CANADA has chosen not to delete it. It stands as an integral part of the manual by reference.

EVIDENCE

Evidence of the physical circumstances of the occurrence was elicited from the pilot of the aircraft and from the vehicle operator. Captain Schmidt was the pilot-in-command of a flight designated as Nav Can 200, on December 17, 1998, doing a flight inspection of the navigational and approach facilities at the Terrace airport in British Columbia. He testified that on completion of the inspection, he was to land at Terrace to refuel and pick up a technician. While flying overhead the field he noticed a mist on the north half of the runway which he attributed to a departing aircraft. The approach area and airport were both clear. The standard downwind and final approach calls were made. He landed the aircraft applying braking and reverse thrust. On entering the mist about halfway down the runway the crew noticed a white pickup truck right beside the runway. Captain Schmidt stated that they had not been advised of a vehicle on the runway. Nav Can 200 had announced its landing intentions while overhead and that the flight service specialist had responded on each call. On cross-examination he reiterated that he did not hear a vehicle on the mandatory frequency.

The operator of the truck was Mr. Lane Mitchell an employee of Terrace-Kitimat Airport Society. On December 17, 1998 Mr. Mitchell was in the truck (Staff 61) on the manoeuvring area of the runway 15/33, removing clumps of snow from the runway that snow clearing equipment had left behind. He moved the truck to the mid-point of the runway to remove more snow. While out of the truck he heard a roar of engines at the south end of the runway.

Mr. Mitchell testified that he hurried back into the truck and quickly backed up to the edge of the runway. As he was going off the runway, a Challenger Jet went by. He stated that during this time there was a heavy ground fog restricting visibility to about 300 ft.

The truck radio was tuned to the FSS ground frequency. It was his custom when out of the vehicle, to leave it running with the door open and to turn the volume of the radio up. He had heard no radio transmissions during this occurrence.

Upon cross-examination it was revealed that the truck could not monitor the mandatory frequency at the same time as monitoring the FSS ground frequency.

The site manager for the Terrace FSS at the time was Mr. Monty Cook. He has been employed by NAV CANADA since its inception and was previously employed by Transport Canada in various capacities of a flight service specialist including duty as a site manager as well as having served as a flight service specialist instructor in Cornwall.

Mr. Cook stated that on December 17, 1998 at the time of the occurrence he was in the operational area of the FSS and became aware that an operational irregularity had occurred. In response to that he removed the flight service specialist from duty and seized the logs and tapes and other data and spoke to the aircraft crew.

He then wrote and submitted to NAV CANADA an Aviation Occurrence Report of the operating irregularity (vehicle incursion) dated December 17, 1998 (Exhibit M-2 Tab 6).

Subsequent to the report a request for information was received from Transport Canada, which included a request for the preservation/impounding of tapes and associated evidence (Tab 3). Mr. Cook responded with the required materials by Memo dated December 29, 1998 (Exhibit M-2 Tab 4).

Mr. Cook was questioned extensively about FSS operations and requirements. Numerous pieces of documentary evidence were entered through him. Exhibit M-2 Tab 9 contains excerpts from various publications and agreements which generally indicate that among the services provided by the Terrace FSS is vehicle control. For instance Tab 9 contains a document purported to be an agreement between NAV CANADA Terrace FSS and Terrace airport manager effective April 1, 1995 wherein under FSS responsibility is found:

2. The FSS is responsible for:

a) provision of vehicle control service by Flight Service Specialists to control the movement of vehicle traffic on manoeuvring areas;

Exhibit M-2 Tab 10 contains a NAV CANADA ATS site manual for the Terrace FSS, which Mr. Cook testified to having prepared. The manual sets out the services that are provided by the Terrace FSS within the Terrace control zone. Section 2.0 is Types of Services Provided and a chart at 2.1 includes Vehicle Control.

At 3.4.6 Vehicle Control Service (VCS) it states:

The control of vehicles operating on the manoeuvring areas of an airport. These services are provided in accordance with the procedures in:

  • FSS MANOPS
  • SIM [Station Information Manual]

This document was amended to March 25, 1998 and was in effect at the time of the occurrence.

A photocopy of the ATS Operations Certificate No. 1 issued to NAV CANADA, effective November 1, 1996 was entered into evidence at Tab 12. This certificate includes the Terrace FSS.

In cross-examination Mr. Floyd posed various questions regarding Exhibit D-1, Aviation Services & Facilities Agreement, Terrace airport, effective November 1, 1996. Mr. Cook acknowledged that it was an important document and that, to his knowledge, the NAV CANADA ATS site manual, was not referred to in the Agreement. He was asked to read into the record and comment upon Articles 15, 17 and MOU 26. He allowed that Article 15 was very important. However he also stated that he had not previously read the document.

Mr. Cook testified that Staff 61 would not have monitored the mandatory frequency. Although it may be possible to monitor both frequencies it was not allowed.

Mr. Cook testified on re-direct that the site manual for Terrace (Tab 10) was prepared for issuance pursuant to the ATS operations certificate.

Mr. Carol Verreault was called to provide evidence regarding the history of vehicle control service with the FSS. He has extensive background at Transport Canada in various roles that are germane to the topic and as such was qualified as an expert on the subject. His Curriculum Vitae forms Exhibit M-4.

Mr. Verreault's testimony traced the history of the provision of vehicle control service by FSS, from a recommendation of the Dubin Commission[13] that flight service specialists should have the authority to control ground vehicular traffic on the manoeuvring area of an airport, to the present day standard where the flight service specialists do provide that control. The latter, he states is at least partly embodied in a document entitled FSS Job Analysis of January 1, 1998.[14] The purpose of the document is to identify all the principal areas of responsibility activities and sub-activities with FSS operations. Under Area of Responsibility the activity described at 1.1 is: "provide vehicle control." In tracing that history reference was made to numerous documents found in Exhibit M-2.[15]

In his expert view the provision of vehicle control by the FSS at uncontrolled airports was no different now than it was before the transfer of regime from Transport Canada to NAV CANADA. If Transport Canada was aware that NAV CANADA ceased to provide that function it would be considered a reduction in the level of service requiring Ministerial Approval.

Mr. Floyd challenged that view during cross-examination, in part, by reference to a Canadian Aviation Safety Board (CASB) (as it then was) report addressing collision risk of aircraft at or near the ground at Canadian airports.[16]

He referred to the conclusions and recommendations section, pages 152 and 153. At page 153 paragraph c it states as a recommendation:

c. formally granting flight service specialists the authority to exercise positive control over all vehicles operating on the manoeuvring areas...

However, Mr. Verrault replied that the report did not convince him that the FSS did not have the power already. He would not agree that the CASB had found in 1987 that the power had not been delegated to the flight service specialist.

In answer to Mr. Floyd, he asserted that the flight service specialists exercise delegated authority per the regulations and also by contract.

ARGUMENT—MINISTER

Mr. Hector reviewed the evidence of all the witnesses and matched what he considered to be the pertinent points to the elements of the allegation. He argued that the material provided proved on a balance of probabilities all counts of the allegation.

He also submitted his views on other points that were raised during the course of the motions and cross-examination such as the appropriate frequency for vehicular traffic, implementation of positive vehicle advisory services and the comparison/interpretation of legislation and agreements which were addressed by Mr. Floyd.

NAV CANADA

Mr. Floyd stated that the Minister's decision had the effect of finding NAV CANADA vicariously liable for a flight service specialist not providing air traffic services in accordance with the site manual, which incorporated FSS Manops specifications. However, if providing that service was a requirement, it was not a regulatory requirement over which the Tribunal had jurisdiction. To paraphrase Mr. Floyd, he states that the issue is not whether NAV CANADA provides vehicle control but whether it does so by regulation, contract or pro bono.

It is also his position that prior to the transfer of the air navigation services to NAV CANADA, the flight service specialist had, among other duties, informal delegation for vehicle control as an employee of the airport operation, since Transport Canada then owned and operated the airports.

The defence of due diligence was argued. Counsel argues that the evidence of Transport Canada shows that the flight service specialist was trained, evaluated, audited and disciplined which shows the Corporation was duly diligent.

THE LAW

Provision of Air Traffic Services in accordance with ATS Site Manual

801.08 No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(a) the ATS site manual;

DISCUSSION

Under the general regulatory powers of section 4.9 of the Aeronautics Act, the Governor in Council may make regulations respecting aeronautics. Pursuant to this power the Governor in Council enacted the CARs.

On November 1, 1996, the air navigation services in Canada that had been provided by Transport Canada prior to that date were transferred to a corporate body, NAV CANADA.

The regulations that are pertinent to the provider of air navigation services are found in Part VIII of the CARs, which is entitled "Air Navigation Services". The term "air navigation services" as addressed in subsection 3(1)of the Aeronautics Act has the same meaning as in subsection 2(1) of the Civil Air Navigation Services Commercialization Act (Bill C-20). It includes both air traffic control services and flight information services.

Those two terms are included in the definition of air traffic services at section 800.01 of the CARs where it states:

"air traffic services" or "ATS" includes air traffic control services, air traffic advisory services and flight information services"

Air traffic control services are provided by an air traffic control unit as can be seen by its definition in subsection 800.01(1) of the CARs. Air traffic advisory services can be provided by an air traffic control unit or by FSS as can be seen by its definition in section 101.01 of the CARs. Flight information services are provided by a FSS (section 101.01).

The CARs provide that no person shall operate an air traffic control unit or a FSS unless the person holds and complies with the provisions of an ATS operations certificate that authorizes the person to operate the air traffic control unit or flight service station.[17] In applying for an ATS operations certificate the person must submit the application for the operations certificate and a copy of a proposed ATS site manual for each operational location to be listed on the certificate.[18]

The ATS operations certificate shall be issued if the applicant meets certain criteria. Among other things, is the requirement for an ATS site manual for the operational location, approved by the Minister.[19] The content of the site manual is prescribed in the CARs: [20]

(2) An ATS site manual shall contain

(...)

(b) any information relating to the administration of the air traffic control unit or flight service station, including

(...)

(v) a statement, signed by the holder of the ATS operations certificate, certifying that the manual is complete and accurate, and

(vi) a statement, signed by the Minister, indicating that the Minister has approved the manual;

(c) any information relating to the operation of the air traffic control unit or flight service station, including

(...)

(ii) where applicable, a description of the manoeuvring area and the movement area of the airport, and

(...)

(d) in the case where air traffic advisory services or flight information services are provided, a description of the procedures for providing those services;

(...)

(f) a copy of any agreements or memoranda of understanding relating to the operation of the air traffic control unit or flight service station;

The site manual shall set out the types of air traffic services that are provided at each operational location. Operational location is defined as the physical location of an operational air traffic control unit or flight service station.[21]

That is the statutory regime that brings about the site manual.

In this case the evidence reveals that NAV CANADA is the holder of ATS Operations Certificate No. 1.[22] On its face it states that it is issued under the authority of the Minister pursuant to the Aeronautics Act and authorizes the holder to provide air traffic services as specified in the Annex to the certificate. It further states that the Annex contains a list of the operational locations for which an ATS site manual has been approved by the Minister, and specifies the type of air traffic services the holder is authorized to provide at each of the operational locations.

In the Annex is found a list of control towers, area control centres, and terminal control units which are all, by definition, air traffic control units. As well, the Annex includes a list of flight service stations. Terrace is listed under that later group.

We are then brought to the site manual for the FSS for the operational location of Terrace.[23]

This site manual was certified as being complete and accurate by the Terrace FSS Manager, the Director, Air Traffic Services and the Regional Director, Air Traffic Services of NAV CANADA. The manual was approved under a signature for the Minister of Transport.

In the manual under section 1.5 entitled "Responsibilities" is found the following:

1.5.3 Flight Service Specialist

Flight Service Specialists are responsible for assisting in the safe and expeditious flow of air traffic through the provision of Air Traffic Advisory and Flight Information, Emergency Assistance and Supplementary services.

Specific duties performed by a Flight Service Specialist are contained in: FSS MANOPS, FSS STANDARDS, SIM, Pacific Region Flight Service Procedure Bulletins and Unit Directives.

It can be seen that the FSS Manops, FSS Standards and SIM are incorporated by reference. In keeping with the requirement of subsection 801.07(1) of the CARs and the obligation pursuant to the certificate, the site manual at section 2.0 has a table listing services provided. Airport Advisory and Vehicle Control are included at section 2.1.

Section 3 of the manual addresses operations. Subsection 3.2.1 provides that runways 15/33 are part of the manoeuvring area of the Terrace airport. Several subsections are pertinent in this instance. They include:

3.4 PROVISION OF AIR TRAFFIC ADVISORY and FLIGHT INFORMATION SERVICES

Air Traffic Advisory and Flight Information Services are provided in accordance with the following documents:

(...)

3.4.3 Flight Information Service Enroute (FISE)

Information provided to flights operating outside a control zone or a Mandatory Frequency (MF) area.

These services are provided in accordance with the procedures contained in:

  • FSS MANOPS
  • SIM

3.4.4 Airport Advisory Services (AAS)

Information and advice provided to pilots for the safe arrival and departure of aircraft.

These services are provided in accordance with the procedures contained in:

  • FSS MANOPS
  • SIM

(...)

3.4.6 Vehicle Control Service (VCS)

The control of vehicles operating on the manoeuvring areas of an airport. These services are provided in accordance with the procedures contained in:

  • FSS MANOPS
  • SIM

It can be seen that the site manual prescribes that the service be provided, but the procedure for providing the service is found in the FSS Manops and SIM. The salient points for consideration regarding airport advisory and vehicle control are found in Chapters 8 and 9[24] of the FSS Manops.

CHAPTER 8AIRPORT ADVISORY SERVICE

816.1

Include a summary of all ground traffic that is not expected to be off the intended runway and/or taxiway prior to the aircraft's departure or estimated time of landing or departing to:

A. aircraft; and

B. helicopters, when applicable.

816.2

Advise aircraft when:

(...)

B. ground traffic has not or cannot report off the intended runway(s)/taxiway(s).

CHAPTER 9VEHICLE CONTROL SERVICE

901.1

The objective of the vehicle control service is to control the movement of ground traffic on the airport manoeuvring area at designated uncontrolled airports.

911.5

Instruct ground traffic to leave the intended runway/taxiway before an aircraft lands or departs by:

(...)

911.8

Hold ground traffic as follows:

A. 60 meters (200 feet) from the runway edge unless other holding positions are established by markings or signs; or

B. at a sufficient distance [i.e., less than 60 metres (200 feet)] from the runway edge to ensure that no hazard is created to arriving or departing aircraft, if it is not possible to comply with A.

The foregoing analysis of the legislation and the incorporated references shows that NAV CANADA has a regulatory duty that stems from the provisions of the Aeronautics Act.

Mr. Floyd's main contention was whether NAV CANADA provided the service pursuant to regulation or another basis, such as by contract.

Because of the discursive nature of the arguments presented on the various motions, I had been of the view that he was contesting whether such services were actually being provided and whether or not what was being provided was actual control or merely advisory. However by final argument it became clear that he questioned the basis for providing the service.

That became clear at the termination of the motions when I made reference to the aeronautical information publications A.I.P. Canada[25] and the Canada Flight Supplement.[26] Both of these documents enjoy widespread publication and dissemination among the aviation population in Canada. I suggested to the parties that I would take judicial notice of the Canada Flight Supplement. The A.I.P. Canada was in evidence in Exhibit M-2, Tab I regarding the provision of flight information services.

Both documents advise that the FSS provides Airport Advisory Service and Vehicle Control Service.[27] The Canada Flight Supplement is a joint civil/military publication issued every 56 days. It is published on behalf of NAV CANADA and the Department of National Defence.[28]

Regarding those documents Mr. Floyd replied that the question was not so much vehicle control but on what basis it was provided.

Mr. Floyd chose not to call witnesses or evidence on NAV CANADA's behalf, but did present material in support of his arguments on the various motions and on the case itself. Mr. Hector did not object to these documents, some of which are law e.g. Bill C-20, others being contractual documents between the crown and NAV CANADA and other internal NAV CANADA documents. In order to have a complete understanding of the issues Mr. Floyd raised, a review of what I understand to be the basis for his presentation is in order, although it necessarily entails repetition of some points raised in the motions.

His arguments emanate from the change of the civil air navigation services from Transport Canada to NAV CANADA. An Order in Council authorized the Minister of Transport, on behalf of Her Majesty to enter into an agreement with NAV CANADA (the agreement to transfer) relating to the transfer of the civil air navigation system to NAV CANADA for one billion five hundred million dollars.

The agreement to transfer is an extensive document with numerous appendices, the object of which was to accomplish the transfer of air navigation system assets and management, operation, maintenance and services to NAV CANADA. The parties were Her Majesty and NAV CANADA.

The Act of Parliament which provided authority for the commercialization of civil air navigation services was entitled, Civil Air Navigation Services Commercialization Act (Bill C-20). Key components of the Act include the transfer of air navigation services to NAV CANADA, the transfer of employees to NAV CANADA, the continuation of collective agreements, with successor bargaining rights, and the introduction by NAV CANADA of user fees.

It can be seen that the nature and purpose of these documents were the transfer of the system from the crown to the Corporation. Once transferred the obligation to provide a service in a specified manner is found in the Aeronautics Act and the CARs not in the various documents of transfer.

Mr. Floyd made issue with what he considered to be inconsistencies between the two regimes as noted in his motions.

He also impugned the site manual on two levels. One, he argued that it was a document not disclosed during the transfer and two that it did not bear the official signatures that are required by NAV CANADA's by-laws.

However the evidence shows that it is a NAV CANADA document, not one that was transferred from Transport Canada to NAV CANADA. The official signatures for NAV CANADA, as provided in its by-laws were found under Article XIII Execution of Contracts. That is, it refers to persons who could bind the Corporation vis-à-vis another party. The site manual is an internal document, required pursuant to the CARs and its operations certificate. The signatures affixed were required to attest to its being complete and accurate as a requirement of subparagraph 801.07(2)(b)(v) of the CARs. A review of the manual shows those signatures below such a statement.

At one point I believed Mr. Floyd's point to be that upon the transfer a gap was created as certain terms (airport advisory and vehicle control) were not to be found in either the Agreement to Transfer or Bill C-20. However I also understood him to say that there was not a gap. Having understood him to say both, it would normally be difficult to address the issue, but that is accomplished in Bill C-20.

During his argument he stated that the documents to complete the transfer filled twenty-one banker boxes, the price was 1.5 billion dollars. That something might be overlooked in so large a transaction is conceivable. However the drafters of the legislation had that in mind when it was stated at section 9 of Bill C-20:

Subject to this Act, the Corporation shall, on and after the transfer date, provide all users with the civil air navigation services that the Department of Transport provided immediately before the transfer date and shall do so to the same extent as the services were provided by the Department of Transport.

The extent of the services provided prior to the transfer date was the subject of the testimony of Mr. Verrault. Both advisory service and vehicle control were addressed. He had examined many exhibits that addressed vehicle control services from the recommendation of the Dubin Commission to the present day document of NAV CANADA. In summary this expert's view was that vehicle control services provided by flight service specialists was no different now than it was before the transfer.

Although Mr. Floyd argued that the services were not listed in the documents upon which he relied, the evidence shows that the services were being provided before the transfer and the operation of section 9 of Bill C-20 would oblige NAV CANADA to continue to provide them.

As noted earlier the term "air traffic advisory services" was included in the term air traffic services. As air traffic advisory services is an air traffic service and NAV CANADA holds the certificate to provide air traffic services, it must follow that NAV CANADA provides it. NAV CANADA has included the provision of those services in its own manuals. Mr. Floyd's assertion that it was not an obligation that was transferred to NAV CANADA flies in the face of such inclusion.

Other issues were raised in the course of the hearing but which did not bear on the issue. Whether the power of the flight service specialist was to "control" or "advise" vehicles seems to have bedevilled the industry from the time of the Dubin Commission. This may have stemmed from the use of terms such as vehicle advisory service and positive vehicle advisory. The evidence shows that service specialists render control rather than advisory. The change in nomenclature was reviewed by Mr. Verreault at Tab 23.

The issue of the delegation of authority to a flight service specialist was raised. Prior to their integration into the air traffic services branch of Transport Canada from the telecommunication branch, that was very much an issue. In terms of this case it is not. Delegation of authority[29] allowed the Minister to authorize another person to exercise or perform duties or functions of the Minister. Since the commercialization (Bill C-20) the Minister no longer performs the air navigation services. The flight service specialists are not exercising a delegated power.

Mr. Floyd's reliance upon the various documents of transfer and his argument are ill founded. As the earlier analysis reveals, once the transfer was complete the obligation to provide the air navigation services flowed from the Aeronautics Act, the CARs and the auxiliary documentation. In answer to his question, NAV CANADA's obligation is regulatory not contractual or pro bono.

ISSUE

Having come to that conclusion the issue to be resolved is whether or not NAV CANADA contravened paragraph 801.08(a) of CARs by not providing services in accordance with the FSS site manual.

Held—NAV CANADA was in contravention of paragraph 801.08(a) of the CARs on December 17, 1998 at the Terrace site.

The basis for the provision of Vehicle Control Service and Advisory Services at the Terrace location is the obligation of the ATS operations certificate holder as provided for in the Act.

NAV CANADA had undertaken the obligation to provide those services in the manner prescribed in its site manual. In this case, NAV CANADA fell short of its obligation to provide that service in the following ways:

Count 1:

NAV CANADA did not instruct ground traffic, Staff 61, to leave the intended runway before an aircraft, Nav Can 200, landed, contrary to section 911.5 FSS Manops;

FSS Manops 911.5 states: "Instruct ground traffic to leave the intended runway/taxiway before an aircraft lands or departs".

The evidence proves that the staff vehicle was on the manoeuvring area which included Runway 15/33. The vehicle operator, Mr. Mitchell, testified that he did not receive an instruction to leave the runway before the aircraft landed. This was confirmed by the tape and transcript.

Count 2:

NAV CANADA failed to advise an aircraft, Nav Can 200, that ground traffic, Staff 61, had not reported off the intended runway, contrary to section 816.2 (B) FSS Manops;

FSS Manops 816.2 B. states: "Advise aircraft when: (...) B. ground traffic has not or cannot report off the intended runway(s)/taxiway(s)."

Greg Schmidt, the pilot-in-command of Nav Can 200, testified that he had not been advised of any vehicles on the runway. That was confirmed by the tape and transcript. It can then be inferred that there was no advice that ground traffic was not or could not report off the intended runway.

Count 3:

NAV CANADA did not include a summary of ground traffic, Staff 61, that was not expected to be off the intended runway prior to an aircraft's, Nav Can 200, estimated time of landing, contrary to section 816.1 FSS Manops;

FSS Manops 816.1 states: "Include a summary of all ground traffic that is not expected to be off the intended runway and/or taxiway prior to the aircraft's departure or estimated time of landing or departing to: ..."

Captain Schmidt stated that Nav Can 200 had made all the appropriate calls including downwind and final approach. Therefore, the flight service specialist knew the estimated time of landing. As Nav Can 200 had not been advised of any ground traffic on the intended runway, there could be no summary of ground traffic not expected to be off the intended runway prior to the estimated time of landing.

Count 4:

NAV CANADA did not hold ground traffic, Staff 61, 200 feet from the runway edge, contrary to section 911.8 (A) FSS Manops;

FSS Manops 911.8 A. states: "Hold ground traffic as follows: A. 60 meters (200 feet) from the runway edge unless other holding positions are established by markings or signs;"

Both Captain Schmidt and Mr. Mitchell testified as to the truck being at the edge of the runway as the aircraft went by. Mr. Mitchell stated that once cleared onto the runway he had no further communication from the FSS until after the aircraft went by. No evidence was introduced as to other holding positions established by markings or signs. Therefore, NAV CANADA did not hold ground traffic 200 feet from the runway edge.

Count 5:

NAV CANADA did not hold ground traffic, Staff 61, at a sufficient distance from the runway edge to ensure that no hazard was created to the arriving aircraft, Nav Can 200, contrary to section 911.8 (B).

FSS Manops 911.8(b) states: "Hold ground traffic as follows: (...) B. at a sufficient distance [i.e., less than 60 metres (200 feet)] from the runway edge to ensure that no hazard is created to arriving or departing aircraft, if it is not possible to comply with A."

Mr. Mitchell has testified that once he had been cleared onto the runway he had no further communication with the FSS until after the aircraft went by. He only moved the truck from the runway when he heard the aircraft land, but succeeded in reaching the runway edge as the aircraft went by. That is sufficient proximity to constitute a hazard. The FSS not holding the Staff 61 back at all can be seen to have created the hazard envisioned by 911.8 B.

An objection was raised regarding the tape and transcript. Mr. Floyd contended that it was misleading because the tape came from more than one track on more than one frequency. It was misleading as there was a perception that everybody was listening to everybody else which was not the case. The objection was noted. Having understood how the tape was compiled, the result is not misleading, so the tape and its transcript stand in evidence. Even if one found it to be misleading there is still sufficient evidence to make out the count in their absence.

The evidence adduced proves that NAV CANADA was the holder of ATS Operations Certificate No. 1. On December 17, 1998, at the operation location of Terrace, British Columbia, it did not provide Air Traffic Services in accordance with the site manual as it did not use procedures specified in the FSS Manual of Operations. Therefore, it has breached paragraph 801.08(a) of the CARs.

DUE DILIGENCE

In Mr. Floyd's closing statement he also argued that NAV CANADA should not be found in contravention because of the application of the defence of due diligence. The Aeronautics Act specifically provides for such defence 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 Supreme Court of Canada in R. v. Sault Ste. Marie[30] addressed the concept. Specifically addressing strict liability offences Mr. Justice Dickson stated:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.

The application of due diligence has been followed by the Civil Aviation Tribunal. The concept was addressed in the appeal determination of Shermet v. Minister of Transport.[31] The appeal panel stated at page 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 cases indicate that the onus to prove due diligence is on the party seeking to invoke it. Justice Dickson stated in part: "leaving it open to the accused to avoid liability by proving that he took all reasonable care."

The panel in Shermet stated that once the constituent elements were proven, the onus shifted to the alleged offender to prove he exercised all due diligence.

I have found that the Minister proved, on a balance of probability, all the constituent elements of the offence. The onus then shifts to NAV CANADA to adduce proof of its due diligence. Mr. Floyd did not call any witness and thus provided no proof of due diligence. Therefore, NAV CANADA cannot avail itself of the defence. In argument he stated that Transport Canada's evidence raised the issue of due diligence. He paraphrased Transport's evidence that the flight service specialists were trained, evaluated and audited. He stated that the specialist on duty had been subjected to discipline. As well NAV CANADA was dealing with vehicle incursions, which showed it was duly diligent.

If I am incorrect in finding that NAV CANADA has the onus to furnish the evidence to prove its due diligence, the evidence of Transport Canada upon which Mr. Floyd relies is still insufficient to provide the defence. The evidence must relate to the due diligence that was taken to avoid the commission of the offence. Here the offence is a breach of paragraph 801.08(a) of the CARs. Transport Canada's evidence did not relate specifically to a breach of the section but was related to FSS operations in general. This falls short of proving the Corporation to have exercised all due diligence.

SANCTION

Mr. Hector argued that a breach of any one of the counts would attract the full $10,000 penalty. Given the serious nature of the alleged infraction as evidenced by the near collision of a vehicle and an aircraft, the penalty was entirely appropriate.

Mr. Floyd submitted that the sanction was inappropriate in that he felt the Corporation had acted in a duly diligent manner and in addition there was another person responsible.

If Mr. Floyd was correct regarding due diligence there would be no sanction at all as due diligence would have prevented the finding of contravention. I assume that the reference to there being another person responsible is to the flight service specialist on duty that day. NAV CANADA can be found to have contravened a provision for the act of an employee as a corporation can only act through persons.

The sanction is within the guidelines found in section 103.08 of the CARs. The infraction could have had a drastic result. No mitigating or ameliorating circumstances were proven or argued. In the result I see no reason to alter the sanction of $10,000.

CONCLUSION

The Minister has proven, on a balance of probabilities, that NAV CANADA did contravene paragraph 801.08(a) of the CARs. The defence of due diligence has not been proven. I uphold the Minister's decision to assess a monetary penalty of $10,000 against NAV CANADA.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) at 990-997.

[2] Ibid. at 994.

[3] [1988] F.C.J. No. 655, Court File No. T-320-88.

[4] Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848.

[5] Grillas v. Canada (Minister of Manpower and Immigration) [1972] S.C.R. 577.

[6] S.C. 1996, c. 20.

[7] Pierre A. Coté, The Interpretation of Legislation in Canada (Cowansville, Que.: Les Éditions Yvon Blais Inc., 1984).

[8] Ibid. at 275.

[9] Ibid. at 286.

[10] Ibid. at 287.

[11] Ibid. at 277.

[12] R. v. Perimeter Airlines (Inland) Ltd. [1986] W.W.R. 110 (Manitoba Provincial Court).

[13] Report of the Commission of Inquiry on Aviation Safety, February 1982.

[14] Exhibit M-2, Tab A.

[15] Exhibit M-2, Tabs 13, 14, 16, 17, 19, 20, 22, 23, 24, 25, 26, Tabs A, B, C, D.

[16] Report on a Special Investigation into the Risk of Collisions Involving Aircraft on or near the Ground at Canadian Civil Airports. Report No. 87-SP001. Adopted June 23, 1987.

[17] CARs, section 801.03.

[18] Ibid., section 801.04.

[19] Ibid., paragraph 801.05(1)(b).

[20] Ibid., section 801.07.

[21] Ibid., section 800.01.

[22] Exhibit M-2, Tab 12.

[23] Ibid., Tab 10.

[24] Ibid. Tab E, Chapters 8 and 9.

[25] A.I.P. Canada, RAC 1-3, section 1.1.3 (Exhibit M-2, Tab I).

[26] Canada Flight Supplement, General A1 Flight Information Service.

[27] Supra notes 25 and 26.

[28] Supra note 26 at PA4.

[29] Aeronautics Act, subsection 4.3(1).

[30] [1978] 2 S.C.R. 1299.

[31] CAT File No. C-1021-02.