Decisions

CAT File No. P-1908-02
MoT File No. EMIS 32262

CIVIL AVIATION TRIBUNAL

BETWEEN:

Milton James Woods, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33(1st Supp.) s. 6.9, s. 7.3(1)(c)
Canadian Aviation Regulations, SOR/96-433, ss. 602.01, 602.07

Suspension, Negligent or reckless operation of an aircraft, Sanction, Operating limitations, Jurisdiction of tribunal, False entries with intent to mislead, Fuel on board, Failure to enter defects


Review Determination
Allister W. Ogilvie


Decision: January 5, 2001

September 25 to 29, 2000
Vancouver, British Columbia

Offence 1: The Minister has not proven the essential elements on a balance of probabilities. The offence is dismissed.

Offence 2: Conceded by the Minister.

Offence 3: Admitted by Mr. Woods. The 30-day suspension is upheld.

Offence 4: Withdrawn.

Offences 5 and 6: For the reasons which I have endeavoured to express I find that the Civil Aviation Tribunal does not have jurisdiction to hear these offences. Should I have been in error in coming to that conclusion I would have imposed the 90-day suspension for the admission at Offence 5. Offence 6 would have been dismissed.

Offence 7: Withdrawn.

Offence 8: The Minister has not proven the essential elements on a balance of probabilities. The offence is dismissed.

Mr. Woods's licence is suspended for a period of thirty days. Said suspension will begin on the fifteenth day following service of this determination.

BACKGROUND

Mr. Woods is a pilot with extensive experience having flown a variety of aircraft to diverse locations throughout the world. In about 1996 he became the director of flight operations and chief pilot for Northwest International Jet (NWI) which was based in Vancouver, British Columbia. The company possessed two Citation II aircraft that were offered for charter services.

In late February of 1999 inspectors from the Minister of Transport went to NWI offices. There they spent several hours inspecting documents. On a return visit of March 5 a variety of documents were seized pursuant to a search warrant.

An investigation and the perusal of the documents lead to a variety of offences being alleged against Mr. Woods as follows:

"Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

[Note: Originally eight offences were alleged. During the course of the hearing and argument some allegations were withdrawn or conceded. They have not been included in this decision.]

Offence 1

Canadian Aviation Regulations PART VI, Subpart 2 Section 602.07, in that from about October 18th, 1998 to about February 1st, 1999, in Canada, The United States of America and Mexico, on approximately 49 occasions, while pilot in command of aircraft Cessna Citation 550 aircraft, serial # 550-0100, bearing Canadian registration marks C-GLMK and Cessna Citation 550 aircraft, serial # 550-0410, bearing Canadian registration marks C-GNWM, you failed to operate the aircraft in accordance with the operating limitations set out in the aircraft flight manuals, namely that you exceeded the N1 engine fan over-speed limitations.

Penalty: 30 Day Suspension

Offence 2 [Conceded by the Minister]

Offence 3

Canadian Aviation Regulations PART VI, Subpart 2 Section 602.07, in that on or about December 5th and 11th, 1998, in Canada and The United States of America, while pilot in command of Cessna Citation 550 aircraft, serial # 550-0100, bearing Canadian registration marks C-GNWM, you failed to operate the aircraft in accordance with the operating limitations, set out in the aircraft flight manuals, namely that you exceeded the maximum design landing weight limitations.

Penalty: 30 Day Suspension

Offence 4 [Withdrawn]

Offence 5

Aeronautics Act section 7.3(1)(c), in that on or about December 5th and 6th, 1998, in Canada and The United States of America, you [made] a false entry in a record required to be kept with intent to mislead, namely that you operated aircraft Cessna Citation 550 aircraft, serial # 550-0100, bearing Canadian registration marks C-GNWM with only one pilot and then entered a name of a pilot in the journey log book when that pilot had not acted as a crew member.

Penalty: 90 Day Suspension

Offence 6

Aeronautics Act section 7.3(1)(c), in that between February 25th, 1999 and March 4th, 1999, at or near Richmond, British Columbia, you did make false entries in a record required under this Part to be kept with intent to mislead, namely that, you erased entries from company operational flight plans.

Penalty: 90 Day Suspension

Offence 7 [Withdrawn]

Offence 8

Canadian Aviation Regulations PART VI, Subpart 2 Section 602.01, in that on or about January 15th, 1999 at or near Richmond, British Columbia, while pilot in command of Cessna Citation 550 aircraft, serial # 550-0100, bearing Canadian registration marks C-GLMK, you operated the aircraft in a reckless or negligent manner, namely that you departed Prince George, British Columbia with insufficient fuel to meet the requirements of the Canadian Aviation Regulations and subsequently landed at the Vancouver International Airport with approximately 80 pounds of fuel remaining in the fuel tanks.

Penalty: 30 Day Suspension

Total Penalty: [270] Day Suspension"

PRELIMINARY MATTERS

The Notice: Mr. Haig on behalf of the Minister of Transport wished to correct the Notice of Suspension as it was in error. The Notice dated October 1, 1999 stipulated a suspension period of November 2, 1999 to November 25, 1999 for a total of 23 days whereas the allegations, if proven, would have resulted in a suspension of 360 days.

Mr. Stewart representing Mr. Woods consented to the revision. The amended Notice stipulates a suspension period from November 2, 1999 to October 26, 2000. The Minister withdrew Offence 7 which had carried a 30-day suspension. The amended Notice reflects that reduction in time.

Offence 2: Mr. Stewart took issue with the sufficiency of the particulars of Offence 2. The offence stipulates flights on four dates and refers only to an aircraft NWM. He submitted that the allegation could only be heard regarding aircraft NWM.

Mr. Haig asked for an amendment to insert into the offence aircraft LMK for the particular dates, submitting that disclosure had provided sufficient detail for Mr. Woods to know the case to meet. Mr. Stewart's motion was granted.

This was not a case of lack of sufficiency of particulars but rather an entire absence of an allegation as it relates to the second aircraft. In Offence 2 the Minister identified a particular aircraft, even to identifying its serial number. To add another aircraft would not be an amendment to the offence but an addition. I do not believe that the Minister is prejudiced by the ruling as I would hear evidence of exactly what he has alleged at Offence 2.

Additional Disclosure: Mr. Stewart requested that I order the Minister to produce the flight logs of aircraft LMK and NWM for certain dates and for the Minister to produce Mr. Woods's personnel file. He submitted that the Stinchcombe1 decision provided authority for full disclosure of all documents from the Crown.

Mr. Haig replied that Mr. Stewart had access to all documents in the Minister's possession and everything relevant that he would rely on in the case had been disclosed. Some documents that were seized by warrant had already been returned to the company. He did not know if Mr. Woods's personnel file had ever been in his possession.

The motion was denied. This hearing was originally scheduled for June 26, 2000. Disclosure of documents and any requests for additional or other materials should have been addressed by that date. A postponement of that hearing was granted at Mr. Stewart's request. Thus he had an additional two and one half months in which to request disclosure from the Minister or to request the Tribunal to order it had the Minister not been forthcoming. I acknowledge that principle enunciated in Stinchcombe provides for full disclosure and may be applicable to administrative tribunals. However in R. v. Dixon2 the Supreme Court of Canada has also stated that counsel must diligently pursue the disclosure, not remain passive. Additionally I do not see the relevance of Mr. Woods's personnel file nor has it been established that it was ever in the Minister's possession.

EVIDENCE

Offence 1 — The Minister

Mr. Kerry McKenzie was a first officer (FO) on the Citation II aircraft for NWI at the salient times. Through him it was established that for both the aircraft in question the N1 fan RPM for maximum continuous operation was 104%. That setting may be exceeded for a short time in what may be termed a transient fashion. RPM above that limit will necessitate an engine log book entry or if in excess for a longer period it may require a reference to the engine maintenance manual and engine log entry3.

Mr. McKenzie acted as FO for Mr. Woods during the period of time between October 18, 1998 and February 19994. Although not remembering each specific trip itself he testified that as a rule the N1 fan RPM limitation would be exceeded on these flights. Not to have exceeded the N1 Redline limitation would have been the exception. Mr. Woods would set the engine fan speed at 104.5. The overspeed would occur anytime the aircraft went to cruise altitude.

He was questioned on log entries that addressed engine fan synchronization (SYNC) problems5 and conceded that aircraft LMK had fan SYNC problems. Mr. McKenzie had not made log entries regarding N1 overspeeds as he had been verbally instructed by Mr. Woods not to do so.

Mr. David Van Doorn is both a pilot and an aircraft maintenance engineer (AME). At the time of the flights in question he was an FO for NWI and helped with maintenance but was not then qualified as an AME. He had done numerous trips with Mr. Woods6 and stated that he noticed Mr. Woods consistently setting N1 fan speed in excess of the limitations, approximately in 104 to 105 area. This would be set at the start of cruise.

Mr. Van Doorn discussed the situation with Mr. Woods who related that Mr. Woods's son had performed certain calculations regarding fan speed which had reassured him it was not a problem. Mr. Van Doorn was also told not to make any entries regarding fan speed, nor for fuel recordings. Other entries were to be made in pencil.

It was elicited on cross-examination that Mr. Woods did not intentionally set N1 at a higher level but that it would creep up and when noticed the fan speed would be reduced.

The director of maintenance at NWI from February 1997 to January 1999 was Mr. Gordon Barker. In September of 1998 he had a conversation with Mr. Woods regarding the N1 fan speed situation. The issue had been drawn to his attention by one of the pilots, a Mr. Bonare. It is Mr. Barker's testimony that Mr. Woods told him that he did set N1 above 104, as his son had done some calculations that had assured him that it was OK. Mr. Woods insisted that it was an operational issue, not a maintenance one. Mr. Woods had stated to Mr. Barker that he set the speed higher on a regular basis. The aircraft would not stay in the air without it.

Mr. Barker had concerns about the engines because of the possible N1 fan overspeeds. The manufacturer had set limitations for a reason and in his view operating above a limit might invalidate a certificate of airworthiness (C of A). Mr. Barker had never made any log entries regarding N1 fan overspeeds as that was a function of the crew of the flight on which an overspeed occurred.

A review of some technical documents showed that there had been some fan speed indicator problems7. At a Phase II inspection both the N1 gauges and their tach generators were removed and tested, and there were no problems with them then in July of 1998.

Mr. Barker participated in a staff meeting convened by Mr. Woods. Initially Mr. Woods wished to discuss engine temperature operating limits. He had concerns that some crews were operating the engines too hot. That was not in excess of engine manufacturers limits, but hotter than the standard that Mr. Woods wished to utilize (i.e. 600°C). The N1 speed issue was also raised.

The pilot witnesses revealed an undercurrent of animosity and ill will with Mr. Woods. Mr. McKenzie had been denied an expected raise as Mr. Woods did not find his progress as an FO to be satisfactory. Mr. Van Doorn thought nepotism played a significant role in advancement at the company. The company had placed pressure upon him to complete the examinations to qualify for his AME licence.

Offence 1 — Mr. Woods

Mr. Woods maintained that when flying the aircraft and reaching about the 30,000-foot level he would retard the power to stay below the 104% limitation. He explained that due to temperature and density variables a fan speed setting may rise above that level, but he would retard the power to stay within the limit. He denied having set the fan speed higher as was described by the FOs.

Aircraft LMK, he submits, has an engine anomaly. To synchronize the engines N1 speeds would be set at 104 and 104.4 respectively. However the right engine would still read .4% when shut down.

Engine usage had been the subject of a staff meeting. Mr. Woods preferred a self imposed operational restriction of 600° inter-turbine temperature (ITT) rather than the manual limitation of 700° and wanted the other pilots to utilize that limitation as well. The N1 overspeed issue was also addressed. He related in evidence, that his son had done calculations regarding the centrifugal force of the fan in that mode and considered it minimal.

He denied the FOs' testimony regarding restrictions being placed on their making various entries. He personally preferred using pencils. The clipboard held pencils better and pens tended to mark up the upholstery.

Offence 2 — Conceded by the Minister

Offence 3 — Admitted by Mr. Woods

Offence 4 — Withdrawn

Offence 5

Mr. Woods admitted to elements of the offence but contests the Tribunal's jurisdiction to hear it.

Offence 6 — The Minister

The Minister, with Mr. Stewarts concurrence, read into the record statements from personnel at NWI that bear upon the issue of erasures of the flight logs. Both a secretary and the director of maintenance, a Mr. D. Venus, gave statements stipulating that they witnessed Mr. Woods making erasures on documents. They stated that Mr. Woods had made a comment to the effect that he did not want Transport Canada to get any more information than they already had.

Offence 6 — Mr. Woods

Mr. Woods admits to making erasures on NWI flight logs. The portion of one of the flight logs in question is reproduced below (Exhibit M-5: NWI 10/09/98 (CYVR to CZML)):

OPNWT bow 8057 V1 107 Vref 106
  pax 835 Vr 107  
  + other 20 V2 114  
  zfw 8912 Venr 149  
 

FUEL

  fuel cost
  1300 b.r.    
    tapes gps
    start 4200
    end 3278
  total 13,112 burn 922
togw 13,000    
fuel burn (-) 950    
lgw 12,050    

He states that the erasures made were restricted to entries under the column "TAPES." This is a reference to the fuel quantity tapes, i.e. gauges that measure fuel quantity in the aircraft. START, END, BURN refer to the quantities of fuel that were indicated on the tape at each of these junctures in the flight. The column to its right is entitled GPS. It too reflects the START, END and BURN fuel figures but the source is the global positioning system (GPS).

The fuel quantity indications measured by each system did not coincide. It was determined that the GPS could not get an accurate reading. Mr. Woods related that he had made the erasures so that Transport Canada would not have both figures to compare, which may have resulted in more problems.

Mr. Woods asserts that the erasures were not of information required to be kept. The fuel figures erased also appear in the weight and balance column, that is they were duplicated. He also submitted that a flight log need not have those particular entries. A flight log that had formerly been in use was entered8 into evidence. That log did not contain the tapes or GPS information entries, but had been used by NWI.

Offence 7 — Withdrawn

Offence 8 — The Minister

Mr. Woods and Mr. McKenzie crewed aircraft LMK on a charter over the course of three days which took them from Vancouver to Prince George, British Columbia, Winnipeg, Manitoba, Ottawa, Ontario returning through Winnipeg to Prince George and back to Vancouver. It is this last leg that is the subject of the allegation but evidence was lead regarding those other flight legs in order to help establish an understanding of the situation9.

According to Mr. McKenzie the aircraft had recorded fuel on arrival at Prince George on the return trip of 1,650 lbs. This figure was recorded immediately after turning off the active runway so the aircraft would have consumed about an additional 50 lbs during the 3 to 4 minute taxi to the Northward Hangar where the passengers were deplaned.

After deplaning the crew resumed the journey with Mr. McKenzie in the left seat. He related that on the taxi out he attempted to turn into the fuelling facility but was physically overridden on the controls by Mr. Woods who steered the aircraft back onto the taxiway and who stated that additional fuel was not required. Mr. McKenzie stated that he thought the fuel to be inadequate but Mr. Woods declared it to be sufficient.

According to Mr. McKenzie, Mr. Woods accomplished the take-off, but gave control back to Mr. McKenzie shortly after take-off at a low altitude. He states that Mr. Woods urged him to expedite the climb to altitude to conserve fuel.

The leg was flown at flight level 370. Mr. McKenzie's concern over the fuel caused him to suggest stopping at a closer destination such as Williams Lake or alternatively, declaring a fuel emergency. As he was contemplating keying the microphone to declare the fuel emergency his hand was brushed away by Mr. Woods.

Descent was commenced at about 40 miles out from Vancouver. Mr. McKenzie recalls that the fuel low warning light illuminated then and stayed on steadily. They received radar vectors to land on runway 26 Vancouver. After touchdown, the taxi was accomplished on one engine. Mr. McKenzie wondered about cross-feeding fuel to that engine to keep it going during taxi. The flight plan alternate selected had been Abbotsford.

The veracity of almost every facet of Mr. McKenzie's testimony, even as to who took off and on which runway the aircraft landed, was strongly challenged on cross-examination. His account of the descent from flight level 370, from 40 miles back was queried, with doubt expressed as to the ability to achieve the altitude crossing restrictions of the arrival. Mr. McKenzie did concede that the automatic terminal information service (ATIS) information favoured a landing on runway 08 rather than 26, but he remained adamant as to the rest of his testimony.

Ms. Suzanne Baumeler, a Transport Canada inspector, was introduced as an expert witness for the Minister. Her qualification which included Citation II aircraft experience is outlined in her Curriculum Vitae10. She was introduced as an expert on the Citation II aircraft who could render an opinion on the fuel requirement for the flight. Mr. Stewart had no objection as to her stated qualifications.

Ms. Baumeler submitted her expert report11. It addressed the hypothetical fuel requirements for the flight legs Ottawa to Winnipeg, Winnipeg to Prince George and Prince George to Vancouver. The report stated the fuel reserve requirement for that last leg and it drew a conclusion as to total fuel requirement for the Prince George to Vancouver flight.

The last two legs, alternate fuel and conclusion are reproduced as follows:

WINNIPEG TO PRINCE GEORGE (966NM) (time – 3.4 hours air time)**
(calculations based on average mean upper head wind of 50 knots) – 60 kt

Taxi / Take-off

200 lbs.

   

Climb to FL350

503 lbs

61NM

.3 hrs.

Cruise

3024 lbs.

837NM

2.8 hrs.

Descent

175 lbs.

68NM

.3 hrs.

 

3902 lbs.

966NM

3.4 hrs.

       

**Fuel taken on in Winnipeg

PRINCE GEORGE TO VANCOUVER (282NM) (time – 1.1 hours air time)***
(calculations based on average mean upper head wind of 30 knots) >50 kt

Taxi / Take-off

200 lbs.

   

Climb to FL370

380 lbs.

41NM

.2 hrs.

Cruise

695 lbs.

184 NM

.7 hrs.

Descent

127 lbs.

57 NM

.2 hrs.

 

1402 lbs.

282NM

1.1 hrs.

       

***No fuel taken on in Prince George

FUEL RESERVES REQUIRED FOR PRINCE GEORGE TO VANCOUVER

Missed approach (Vancouver) 200 lbs
Fuel to alternate (Abbotsford) 200 lbs. (35NM) (.2 hrs.)
Approach (Abbotsford) 200 lbs.
Flight for 30 minutes at cruise power 600 lbs. (based on FL 310)
   
Required Reserve as per Canadian Aviation Regulations s. 602.88 1200 lbs.
   

******************************************************************************

Total fuel required for trip from Prince George to Vancouver

Trip fuel – approximately 1400 lbs.
Reserve fuel – approximately 1200 lbs.
TOTAL – approximately 2600 lbs.

These are the final calculations of Ms. Baumeler, her expert report having been amended from her original. The various figures for taxi, take-off climb, cruise and decent were derived from the Citation II Operating Handbook page excerpts attached to M-8.

The various assumptions made were queried during the cross-examination. The report on the first leg utilized flight level 350 whereas the aircraft log had shown climb to 370 and later 390, it being pointed out that a higher altitude would result in reduced fuel burn. Hypothetical winds were used rather than duplicating those on the flight logs.

Offence 8 — Mr. Woods

The testimony of Mr. Woods and exhibits entered on his behalf would indicate that the impugned flight did have sufficient fuel. The last fuel actually known (i.e. in level unaccelerated flight) was 2,850 lbs, a reading made in the aircraft on the Winnipeg/Prince George flight one hour and 21 minutes before touch down. To achieve a fuel figure at Prince George12 the calculation works back from touch down, utilizing an average pound per hour (pph) burn calculated on that leg and figures from the appropriate Citation operating manual charts.

The calculations presented follow:

Fuel Remaining at 00:00 Zulu 2850 lbs. 2850 lbs. TAB A
Fuel burnt during remaining Cruise 1.05 hours * 783 lbs./hour –848 lbs. TAB B
Fuel burnt during descent 11 minutes * 500 PPH –92 lbs. TAB C
Fuel burnt during approach 5 minutes * 800 PPH –67 lbs. TAB D
Fuel remaining at Prince George   1843 lbs.  

Mr. Woods suggests that 1,843 lbs is an accurate measurement of the fuel at Prince George. An inaccurate reading on the gauges could have been the result of the aircraft not being on level ground.

The fuel that Mr. Woods submits would be needed for the flight was also tabulated.

Flight Plan Fuel Calculations: YXS – YVR/YXX

  Defense Calculation
Taxi/Take-off: 100
Climb to FL 370: 380
Cruise: 497
Descent: 127
Approach YVR: 67
Missed Approach: 45
Cruise to YXX: 200
Approach YXX: not required
30 min hold: 379
   
TOTAL: 1,795 lbs

Mr. Woods presented a view of the flight contrary to that of Mr. McKenzie. He contended that the FO had asked him to taxi the aircraft on an icy stretch of taxiway between parked aircraft. He returned control to Mr. McKenzie at the extension of taxiway 01. Mr. McKenzie accomplished the take-off but utilized a flatter climb than normal so was late getting to altitude, which meant that the cruise portion of the flight was about 30–35 minutes prior to commencing the descent. He denies having brushed the FO's hand from the microphone button. Mr. Woods asserted that the flight started to descend too early which put the aircraft into icing and turbulence. The fuel low level light flickering was caused by the turbulence. The ATIS information received indicated runway 08 in use. They were cleared a Keinn Arrival13 and then radar vectors for runway 08 Vancouver. Mr. McKenzie flew the instrument landing system (ILS) approach and landing. The taxi in was on one engine, a standard procedure to save the brakes.

Mr. Woods states that they discussed Mr. McKenzie's performance. He pointed out various errors in handling the aircraft that he observed. It was his function as chief pilot to allow the FOs to fly the aircraft so that he could observe their performance and assess their current ability and potential.

ARGUMENT

Offence 1 — The Minister

The Minister relies upon the testimony of the FOs, Kerry McKenzie and David Van Doorn to establish that Mr. Woods purposely set the N1 fan speed over 104%. He maintains that this is supported by the evidence of Mr. Barker who had a discussion with Mr. Woods wherein Mr. Woods had stated that doing so was an operational not a maintenance issue. Mr. Woods was established as the pilot-in-command for the flights on both aircraft during the pertinent time frame. Mr. Haig asserts that Mr. Woods purposely ignored the fan limitation and instructed the FOs to do likewise, even to instructing them not to make log entries regarding any occurrences when the fan limitation speed had been exceeded.

Offence 1 — Mr. Woods

Mr. Stewart stipulated six defences for Offence 1 with considerable argument and references for each. In this decision I only referred to those portions which I found relevant and helpful.

He argued that the N1 engine for overspeed limitations were not exceeded. Alternatively if the engine was operated above 104%, the limitation in the flight manual permits operation between 104% and 106% on a continuous basis with the caveat that an engine log book entry is required. However, not making a log book entry is not the subject of the charge. Mr. Stewart also asserts that the aircraft flight manuals are too ambiguous to support the offence and further that the Minister has failed to meet the burden of proof.

As well Mr. Stewart contended that FO Van Doorn confirmed that the N1 was only up to 105% momentarily and that when it was brought to Mr. Woods's attention the power would be reduced.

He submits that Mr. Woods denied operating aircraft NWM with fan speeds over 104% but admitted to operating LMK's right engine at an indicated speed of 104.4%. Mr. Woods's explanation was that the right hand indicator had a residual error of about 0.4%. Mr. Woods testified that when the left engine was operated at 104% the right engine could be manually synched by adopting a setting of 104.4%.

Regarding having had Mark Woods calculate the N1 engine for centrifugal forces for a setting of 104.4%, it was Mr. Woods's belief that the fan was turning at 104% but if it was 0.4% higher, the calculation indicated to him that the forces developed were not harmful.

Offence 2 — Conceded by the Minister

Offence 3 — Admitted by Mr. Woods

Offence 4 — Withdrawn

Offences 5 and 6

At Offences 5 and 6 the Minister purports to suspend Mr. Woods's pilot licence pursuant to section 6.9 of the Aeronautics Act (Act) for alleged violations of paragraph 7.3(1)(c) of the Act.

I raised the issue of the Civil Aviation Tribunal's jurisdiction to review allegations pursued under section 7.3 of the Act at the commencement of the hearing. My doubt regarding jurisdiction stems from my understanding of the rationale behind the Act coupled with the wording and structure of the sections.

The Tribunal has heard numerous cases alleging violations of section 7.3.14 However a perusal of them indicates that the issue of jurisdiction was not raised. In this instance I have the advantage of putting the issue to two experienced counsel. Mr. Haig contends that the Tribunal does have the jurisdiction to hear the issue whereas Mr. Stewart submits that it does not.

Mr. Haig states that the Minister exercised his authority under subsection 6.9(1) to suspend Mr. Woods's document on the grounds that he contravened, a "provision ... made under this Part."

"This Part" referenced in subsection 6.9(1) refers to Part I of the Act, sections 4 to 9, which then includes the prohibitions set out in 7.3(1). Thus he argues that the Minister had the option of proceeding in one of two ways, either by suspending Mr. Woods's licence under 6.9 or laying criminal charges under the authority of 7.3(2) and (3).

He submits that this is confirmed by the opening words of subsection 7.3(3) which states, "Except as otherwise provided by this Part." That means that every person contravening a provision of Part I is guilty of an offence punishable on summary conviction except where the Minister has proceeded under 6.9. That is, the legislation provides the flexibility to pursue administrative action or criminal charges.

Mr. Haig is of the view that the clarification of the interplay between 6.9 and 7.3(1), (2) and (3) is assisted by the statutory interpretation principle which calls for a presumption against internal conflict.15

In Driedger on the Construction of Statutes under the heading "Presumed Coherence: Avoiding Internal Conflict" a quote from the decision of McLauglin J. (as she then was) in the case of J.A. MacKeigan v. Royal Commn. (Marshall Inquiry) is set out as follows:

"I start from the fundamental principle of construction that provisions of a statute dealing with the same subject should be read together, where possible, so as to avoid conflict.... In this way, the true intention of the Legislature is more likely to be ascertained.16"

With that principle in mind he concludes that an interpretation of section 7.3 as requiring the Minister to proceed in the criminal courts would be in conflict with the express and unlimited wording of section 6.9 which states that the Minister may suspend or cancel a licence for violation of "any provision of this Part." Additionally such an interpretation would be in direct conflict with the express opening words of subsection 7.3(3).

Mr. Stewart maintains that the language of section 7.3 is the crucial distinction in that it alleges criminal intent which makes it different from a regulatory or "public welfare offence." He refers to the Supreme Court of Canada decision in Sault Ste. Marie17 wherein Justice Dickson recognized three categories of offences, mens rea offences with some positive state of mind such as intent, offences of strict liability and those of absolute liability.

Paragraph 7.3(1)(c) places the offence in the mens rea category according to Mr. Stewart. In support of this view he cites a Federal Court reference by the Civil Aviation Tribunal (Dobbins case)18. In the decision Mr. Justice Noël provided a legislative overview which states in part:

"Part I of the Act sets out powers of enforcement which are conferred upon the Minister. It now provides for two distinct sets of administrative procedures to deal with contraventions. A third mode of dealing with offenders is provided in sections 7.3 to 7.5 [as enacted idem, s. 1] under the heading ‘Prohibitions, Offences and Punishments' in the form of indictment proceedings and summary conviction proceedings for a breach of provisions enacted under Part I of the Act and specified regulations or orders made thereunder."

Mr. Stewart also cites the Dubin report as drawing a distinction between administrative penalties and judicial penalties.19 He submits that the Act provides for only two administrative sanctions:

  • Suspension of aviation documents pursuant to 6.9
  • Administrative monetary penalties pursuant to 7.6 to 8.2 of the Act

Mr. Stewart argues that proceeding under 7.3 should not be considered administrative proceedings but rather a criminal proceeding.

The problem he sees with proceedings under 7.3 is that with the full mens rea wording of the section, a conviction confers a stigma to the applicant beyond that conferred by public welfare offences without having the procedural and evidentiary protectors which would otherwise be available to him in summary conviction court. That the Tribunal rules do not adopt the strict rules of evidence applied in court confirms his view on the matter.

In reply to Mr. Stewart's argument the Minister acknowledges that section 7.3 does require intent but argues that does not make it a criminal offence. It merely requires the prosecution to prove intent as a component of the offence. Justice Dickson's division of offences into three categories relates only to the degree of proof required by the prosecution. It does not say that offences requiring mens rea are offences of criminal intent requiring proof in court.

The Minister contends that the Tribunal is competent to assess mens rea, as is evidenced by adjudicating charges under section 602.01 of the Canadian Aviation Regulations (CARs), reckless or negligent operation, where a finding of recklessness requires a finding of mens rea.

The Minister maintains that it is important to differentiate between a "charging provision" and an "offending provision." The former commences the administrative process whereas the latter describes the nature of the offence. Here the process started by way of Notice under section 6.9 alleging an offence under section 7.3. In so doing it was ensured that Mr. Woods would be subject to a less onerous process, one that would not result in greater penalties such as a fine or imprisonment. As there would be no criminal stigma attached, the strict evidentiary and procedural protection of the Criminal Code are not required. An interpretation of the statute that does not expose Mr. Woods to criminal sanction should be preferred, according to the Minister.

I concur with Mr. Stewart's view and find that the Tribunal does not have jurisdiction to hear a 7.3 offence. Having made that finding, it is appropriate to set out my reasoning fully.

The substantive amendment to the Act in 1985 stemmed in part from the recommendation of the Commission of Inquiry on Aviation Safety by Mr. Justice Charles Dubin.20 In dealing with aviation enforcement matters many recommendations were made.

Among the recommendations, was that the enabling legislation should provide for the imposition of administrative penalties such as the cancellation or suspension of documents issued by the Minister and the levying of a fine by administrative action.21

The Commission recommended the creation of a Civil Aviation Appeal Tribunal to hear and review all appeals with respect to any administrative enforcement action taken.22 It was also recommended that penalties for the breach of the laws governing aviation safety should be substantially increased, and the more serious offences should be punishable by either summary conviction or by indictment at the option of the Crown.23

When the Act was amended in 1985, Part IV provided for the creation of the Civil Aviation Tribunal. The Act was drafted to reflect the recommendations regarding the imposition of administrative penalties and those punishable by way of summary conviction or indictment.

The overview of the legislative scheme provided by Justice Noël in the Dobbins case recognizes that fact. He found that Part I of the Act provided for two distinct sets of administrative procedures to deal with contraventions. The first set of administrative procedures was to be found at sections 6.6 to 7.2, under the heading "Measures relating to Canadian Aviation Documents." The second set of administrative procedures was set out in sections 7.6 to 8.2 under the heading "Procedure pertaining to certain Contraventions." He stated that a third mode of dealing with offenders was provided in sections 7.3 to 7.5 under the heading "Prohibitions, Offences and Punishment" in the form of indictment and summary conviction proceedings for a breach of provisions under Part I.

The Civil Aviation Tribunal was created to address the administrative sanctions imposed by the Minister. It is those sections of the Act for which the Civil Aviation Tribunal has jurisdiction.

As Justice Noël noted, the Act also created a third mode of dealing with offenders. He did not include sections 7.3 to 7.5 in his analysis of administrative procedures.

The Minister has argued that the categorization of offences as enunciated by Justice Dickson in Sault Ste. Marie does not necessarily create a criminal offence, with the usage of terms such as knowingly or wilfully. Rather he contends that it merely requires the prosecution to prove intent as a component of the offence.

That may be a correct general analysis of the Sault Ste. Marie decision, but in this instance the Act itself specifies how the offences under 7.3 are to be regarded. That 7.3 offences were intended to be criminal in nature is evidenced by the language of 7.3(2) which states:

"(2) Every person who contravenes subsection (1) is guilty of

(a) an indictable offence; or

(b) an offence punishable on summary conviction."

Subsection 7.3(3) provides:

"(3) Except as otherwise provided by this Part, every person who contravenes a provision of this Part or any regulation or order made under this Part is guilty of an offence punishable on summary conviction."

It can be seen that the contravention of any provision of Part I can lead to a summary conviction offence, except as otherwise provided. It is otherwise provided in only two sections, at 7.3(2)(a) where the contravention could be an indictable offence and at 7.6(2) where it is stipulated that a person who contravenes a designated provision is guilty of an offence but no proceedings shall be taken by summary conviction.

The administrative penalty sections fall into the second category of offence as described by Justice Dickson and are subject to the exercise of due diligence. That concept is codified at section 8.5 of the Act where it is stated that no person shall be found to have contravened a provision of Part I... if the person exercised all due diligence to prevent the contravention.

Although this regime initially appears clear, the issue is clouded by the wording of some of the sections. The wording has, I believe, lead the Minister to suspend documents pursuant to section 6.9 for the contravention of section 7.3 offences when that was not intended. The problem has its roots in the scope of Part I of the Act coupled with the unlimiting wording of some sections.

Part I of the Act encompasses section 4 through 9 and thus includes the administrative penalty sections as well as the mens rea section 7.3.

At 6.9 the Act allows the Minister to decide to suspend or cancel a Canadian aviation document on grounds that the holder... has contravened any provision of Part I or any regulation or order made under Part I. This seems to confer explicit jurisdiction to suspend a document under section 6.9 for the breach of a 7.3 provision.

If that action is followed to its logical conclusion, you can see that its application is in doubt. If a contravention of 7.3(1) offence is found, the punishment is the suspension or cancellation of the document. But 7.3(2) provides that a person who contravenes subsection 7.3(1) is guilty of either an indictable offence or one punishable on summary conviction. Thus to utilize 6.9 to suspend a document for the contravention of 7.3(1) it is necessary to disassociate 7.3(1) from 7.3(2). How can that be accomplished? The Minister's argument does not address that point.

Although the wording of 6.9 seems broad enough to encompass 7.3, a comparison to another section with alike wording shows that it may not apply. Section 8.5, due diligence, also purports to apply to a contravention of "a provision of this Part or of any regulation or order made under this Part."

An analysis of the application of 8.5 shows that however broad the wording it cannot apply to every provision of the Part. In the second category of offences where no mens rea is required it is open to the accused to avoid liability by proving he took all reasonable care. The defence of due diligence would apply to all offences in that second category, but it cannot apply to offences in the first category, where mens rea is required.

It has been recognized in jurisprudence, that the defence of due diligence is incompatible with specific intent. In R. v. Jensen,24 a decision of the Northwest Territories Supreme Court the issue to be decided was whether Jensen had been unlawfully operating a commercial air service, using aircraft contrary to paragraphs 7.3(1)(f) and (g). In addressing the issue the court had to decide whether defendant Jensen had the requisite mens rea to do the act.

The court considered the Sault Ste. Marie decision in its deliberation and noted the anomaly of section 8.5 where Vertes J. stated:

"This section applies to all provisions of Part I of the Act (including the offences in s. 7.3(1) of the Act). This would seem to place the offence in the second category outlined by Dickson J. above. In such cases, while the prosecution must prove beyond a reasonable doubt that the defendants committed the prohibited act, the defendants may avoid liability by establishing on a balance of probabilities that they exercised reasonable care to avoid the particular result.

What s. 8.5 does is to legislate the defence of due diligence, a defence that is always available to strict liability offences. Part I of the Aeronautics Act creates a wide range of offences for violations of the Act, or any regulation or order made under the Act. The vast majority undoubtedly come within the strict liability category. Perhaps, therefore, it is merely an oversight in having this section apply to the full mens rea offences created by s. 7.1(1)(f) and (g) of the Act. It seems to me that a defence of due diligence is incompatible with the requirement to prove specific intent. Proof of the latter surely negates the former."

Although the wording of section 8.5 seems broad enough to encompass all sections of Part I it is incompatible with 7.3 offences. The wording of section 6.9 seems broad enough to encompass all sections of Part I but its application to section 7.3 offences is confounded by subsection (2) which declares a contravention to be either an indictable or a summary conviction offence.

Further to this theme are the sections under the heading "Prohibitions, Offences and Punishment" which encompass section 7.3 through 7.5. A reading of these sections reinforces the concept that they were meant to apply to court proceedings. Section 7.4 allows a court to order an aircraft be forfeited where a person is convicted on indictment under 7.3(1)(f) or (g). A person other than the one convicted claiming an interest in the forfeited aircraft may apply to a judge of the superior court of the province where the aircraft is situated for an order declaring that the applicant's interest is not affected by the forfeiture. Section 7.5 allows a court to make a prohibition order against a person in addition to other punishment. In short each section under that heading which includes 7.3 deals with powers of courts.

If section 7.3 offences were intended to be pursued in a court as 7.3(2) indicated then proceeding by way of suspension under 6.9 distorts the proceeding. As Mr. Stewart had argued some procedural safe guards are not available. In a summary conviction court the burden of proof would be beyond a reasonable doubt whereas in Tribunal proceedings it is on a balance of probabilities. While the courts impose strict evidentiary rules, the Tribunal is not bound by any legal or technical rules of evidence.25 Was it Parliament's intention to lower the bar of proof by pursuing mens rea offences under section 6.9?

The application of 6.9 to 7.3 offences also raises a series of anomalies. Section 6.9 cannot have a universal application to 7.3 as under 6.9 a document is suspended, in this instance, a pilot licence. However if the same act were done by anyone other than a document holder 6.9 could not be applied. Using this case as an example, if it had been the support staff (i.e. non-document holder) who had made the erasures, the Minister would not have been able to proceed under 6.9.

Another anomaly arises in the application of the limitation period. Section 26 provides that no proceedings under the designated provisions or by way of summary conviction may be instituted after twelve months from the time the subject-matter arose. The Minister can circumvent the intent of section 26 by proceeding under 6.9 which is not caught by the limitation. He can do so only against a document holder.

Arguably paragraphs 7.3(1)(a) to (g), the hybrid offences, address the most serious allegations in the Act and subordinate legislation. Subsection 7.3(2) provides that a person contravening subsection (1) is guilty of an indictable or summary conviction offence. The type of offence, as indicated by the mens rea requirement, is in the first category of offences as enunciated in Sault Ste. Marie. The intent of legislation revealed from a review of the recommendations of the Dubin inquiry was to have the most serious offences established as criminal. The application of section 6.9 to 7.3 offences leads to a series of anomalies which I find could not have been intended. In the result I find that the Civil Aviation Tribunal does not have jurisdiction to hear proceedings of offences alleged under 7.3.

However, should I be in error in this conclusion it is pertinent to set out the parties' arguments and make a finding as to Offences 5 and 6.

Offence 5 — Admitted by Mr. Woods

Offence 6 — The Minister

Mr. Haig's argument laid out what he considers to be the legislative scheme which provides that the operational flight plan is a record required to be kept. He lists the following provisions:

Section 4.9 of the Act stipulates that the Governor in Council may make regulations regarding "the keeping and preservation of records."

CARs 704.09 states that an air operator shall conduct flight operations in accordance with its company operations manual.

CARs 704.32 provides that an aircraft shall be operated in conformity with the weight and balance limitations in the aircraft flight manual. Such weight and balance system must meet the Commercial Air Service Standards. The company operations manual shall specify the air operator's weight and balance system and shall give instructions regarding the preparation and accuracy of forms.

CARs 704.121 states that the company operations manual shall include instructions and information to enable the duties to be performed and provide the information required by the Commercial Air Service Standards.

Section 724.32 of the Commercial Air Service Standards regarding weight and balance control states:

"The weight and balance system required by section 704.30 of the Canadian Aviation Regulations shall specify for each flight how the air operator will establish and be responsible for the accuracy of: [a listing (1) to (9)].

The weight and balance computation may be incorporated in the operational flight plan or be a separate form."

[Note: I believe the reference to 704.30 in the Standards should be reference to 704.32]

Mr. Haig asserts that the "separate form" indicated would be the flight log document that we are dealing with.

On March 2, 1999, Mr. Woods entered a secretary's office and took a folder containing original copies of flight logs. He selected some of them and made erasures under the heading "TAPES." Mr. Haig argues that Mr. Woods would not have done so unless he felt that they could be used as evidence against him. Mr. Woods methodically set out to alter the documents with intent to mislead.

Offence 6 — Mr. Woods

Mr. Stewart contends that the information erased was for entries entitled "START," "END" and "BURN". The information entered beside these headings is repeated in the column relating to weight and balance calculations. Although the information entered at "END" does not appear in the weight and balance column, the end burn quantity is still calculable.

Given that the only information erased is the END burn, Mr. Stewart submits that the Minister has a legal burden of proving that information is required by the Act and CARs to be kept. To determine whether this information is required, he was of the view that the following provisions were germane:

(a) Pursuant to CAR 704.09(a) An air operator certificate shall contain a condition that "the air operator shall conduct flight operations in accordance with its company operations manual;

"(b) Pursuant to CAR 724.01(1)(f) — relating to the Issuance of Amendment of Air Operator Certificates — an application for an Air Operator Certificate includes a copy of the Company Operations Manual.26

(a) Pursuant to CAR 724.121 — relating to the Contents of Company Operations Manual — the Company Operations Manual shall contain at least the following, as applicable to operation:

(g) description of operational control system including:

(i) preparation of operational flight plan and other flight documents;

(ii) weight and balance systems;

(xi) retention period of operational flight plans;

(h) sample of operational flight plan, weight and balance form and retention period;"

Mr. Stewart maintains that the Minister did not prove any of that information and so did not meet his burden. That is the Minister failed to introduce just what was particularized by NWI and approved by the Minister pursuant to 724.121(g). Without that evidence the Tribunal cannot make a determination of what information was required.

It was further submitted that the Minister failed to prove that Mr. Woods had an intent to mislead. Since Mr. Woods did not consider the information that he erased to be required information his action could best be described as an act of protest.

Offence 7 — Withdrawn

Offence 8 — The Minister

Mr. Haig reminded me that considerable evidence had been offered by the parties providing an after-the-fact reconstruction of relevant facts regarding the fuel situation. He submitted that one must appreciate the inherent limitations of such analysis. For instance he submits that a margin of error of plus or minus 100 lbs could exist in Mr. Woods's figures which, if applied, could make the fuel consumption calculation as high as 916 pph. He submits that is reason enough not to utilize in-flight fuel consumption figures when planning the next flight. A prudent pilot would not use calculations from the last flight to successive flights because conditions can change.

The Minister argues that Mr. Woods was the pilot-in-command as was shown by the testimony that he (Woods) was performing an evaluation on Mr. McKenzie to assess his potential as a captain. Mr. Haig contends that the descent into Vancouver, as described by Mr. McKenzie, was plausible in that if a ground speed of 300 kts was used, a decent rate of about 4,625 feet per minute would accomplish the let-down from 37,000 feet. Mr. McKenzie related that the descent was between 5,000 and 6,000 feet per minute. Variables such as a head wind, lower airspeed or a non-direct approach could further lower the descent rate.

Regarding the crossing restriction at the AQUIN intersection there was no definitive testimony by either side. It was Mr. Woods who had decided that there was fuel enough to get to Vancouver.

Mr. Haig contends that it was necessary to assess Mr. Woods's attitudes towards the rules and urges that it shows a disturbing pattern of conduct in that Mr. Woods seemed to feel that he could ignore the rules that he felt were unnecessary.

Offence 8 — Mr. Woods

The case turns on two figures, according to Mr. Stewart; how much fuel was on board in Prince George; how much fuel was required for the flight to Vancouver.

With respect to the former he submits that Mr. Woods diligently recorded detailed information to determine the exact burn, resulting in a figure of 1,841 pounds. This, says Mr. Stewart, is the best evidence available.

Regarding the second figure, fuel required to Vancouver, Mr. McKenzie's figures are impossible. He would have the fuel burn at 1,650 pounds, but the same trip in the opposite direction of January 13 used only 1,200 pounds.

Additionally on return from the Prince George flight the aircraft was considerably lighter, which would mean the aircraft would have consumed even less fuel.

Mr. Stewart maintains that Ms. Baumeler's calculations are of no real assistance. The burns she calculated were at odds with the actual burns. In preparing her report, she did not use the actual flight conditions that were recorded in the flight logs. Generally speaking she was not provided appropriate flight data that would have enabled her to perform competent calculations, for instance she utilized flight altitudes other than those available on the flight logs.

Mr. Woods's position is that the aircraft had the legally required fuel to fly from Prince George to Vancouver while holding Abbotsford as an alternative. His calculations showed about 1,840 pounds on the ground at Prince George and the end value on the flight log is recorded as 600 pounds. It must be concluded that the aircraft had sufficient fuel, according to Mr. Stewart.

DISCUSSION

The alleged offences are set out earlier in the decision. For each one it is incumbent upon the Minister to prove each essential element of the offence. In that regard it is helpful to review the offence creating section and identify those essential elements, which must be proven by evidence lead by the Minister.

Offence 1

"Aircraft Operating Limitations

602.07 No person shall operate an aircraft unless it is operated in accordance with the operating limitations

(a) set out in the aircraft flight manual, where an aircraft flight manual is required by the applicable standards of airworthiness;

[...]"

The Minister must prove the identity of the person operating the aircraft; that the aircraft was not operated within the operating limits set out in the aircraft flight manual, and that the flight manual is required by the standards of airworthiness.

Addressing the last element Mr. Haig offered no evidence or argument as to the flight manual being required by the applicable standards of airworthiness nor did Mr. Stewart contest that point. I find that the flight manual is required by the standards of airworthiness through the operation of the following provisions.

The Airworthiness Manual Chapter 511, regarding Approval of Type Design of Aeronautical Product Standards, specifies standards for the issuance of a type certificate for an aeronautical product.27 An aeronautical product includes an aircraft.28 A type certificate for an aeronautical product which is designed in a foreign state can be issued when certain criteria are met.29 The Citation II aircraft is an aeronautical product designed in a foreign state as is evidenced by the flight manual.30 Amongst the criteria in the Airworthiness Manual is the requirement to provide to the Minister copies of documents as specified in 511.31.

At 511.31 of the Airworthiness Manual an aircraft flight manual is one of the documents specified. It can be concluded, through the operation of the Act, CARs and Airworthiness Manual that the flight manual is required by the applicable standards of airworthiness.

That the aircraft has been accepted in Canada as complying with the criteria is indicated by the issuance of a C of A to both aircraft in question. The C of A document certifies that the aircraft to which it is issued conforms to the type certificate.31 This finding is applicable to the allegations of breaches of 602.07 at Offences 1 to 4.

The verbal testimony of the FOs, Mr. Woods and the documentary material establishes that Mr. Woods operated the aircraft on dates as alleged.32 Although evidence was adduced by Mr. Stewart as to which pilot occupied which seat, and what the attendant responsibilities were, the point was not pursued in argument. The testimony did demonstrate that Mr. Woods was the pilot-in-command. The definition of that term provides that, in relation to an aircraft, the pilot-in-command is the person having the responsibility and authority for its operation.33

The operating limits are found in the aircraft flight manuals.34 At page 2-5, figure 2-2 the maximum continuous N1 fan RPM % is 104. At page 2-7, figure 2-4, engine overspeed limits, the figure of 104% (from figure 2-2) can be exceeded up to a limit of 106% for a duration of up to 20 seconds with no action required. If 106% is exceeded or if the fan is operated between 104% and 106% for more than 20 seconds an engine log book entry is required.

Issue

The issue is whether or not the limitation was exceeded. Mr. McKenzie testified that the fan setting was routinely, deliberately set above 104. He remained adamant during cross-examination. FO Van Doorn had given similar testimony but varied it on cross-examination. During cross he stated that the setting above 104 by Mr. Woods was not deliberate, but that the fan RPM would rise above 104%. When alerted to the situation Mr. Woods retarded the power.

That testimony is consistent with Mr. Woods's who declared that he did not set fan speeds higher than 104%. He did relate that when the aircraft entered colder or denser air that the fan speed could creep up, but when noticed, it would be reduced. He admitted operating the fan speed on the right engine on LMK at 104.4% but given that the gauge had a residual reading of 0.4% he was satisfied that the fan RPM had not been exceeded. The calculation done by his son was to address the stresses, if any, had he been wrong.

I do not give any weight to Mr. Barker's testimony as it was based, in large part on second-hand information from the FOs and I have their direct testimony.

Throughout this proceeding the testimony of Mr. McKenzie and Mr. Woods is starkly contradictory. In this instance Mr. Van Doorn's testimony on cross coincides with Mr. Woods's. Mr. Woods's testimony of increasing fan RPM in different air conditions is a credible explanation. There is no evidence contradicting his assertion that the right engine fan speed indicator on LMK had a residual reading of 0.4%, which would then infer that the fan speed had not been exceeded.

Regarding the essential elements the Minister has proven that Mr. Woods operated the aircraft. The operating limits, fan limitation speeds were proven by documentary evidence. The flight manual is required by the standards of airworthiness, as the analysis shows. The first and last elements were established but the Minister did not meet the burden of proving the operating limits were exceeded.

On this basis I find that the Minister did not prove Offence 1. The allegation is dismissed.

Offence 2 — Conceded by the Minister

Offence 3 — Admitted by Mr. Woods

Offence 4 — Withdrawn

Offences 5 and 6

I find that the Tribunal does not have jurisdiction to hear allegations brought under s. 7.3, Prohibitions, Offences and Punishment for the reasons set out earlier in this decision. However should that be in error I would address the allegations as follows:

Offence 5

As Mr. Woods admits to the offence, he would be found in contravention. The 90-day suspension is upheld.

Offence 6

At Offence 6 the Minister alleged a breach of paragraph 7.3(1)(c):

"7.3 (1) No person shall

[...]

(c) make or cause to be made any false entry in a record required under this Part to be kept with intent to mislead or wilfully omit to make any entry in any such record;"

The Minister must prove the identity of the person alleged to have breached the section; that the person made or caused to be made a false entry in a record; that the record was one which is required under Part I of the Act to be kept; that making or causing the entry to be made was done with intent to mislead.

Mr. Woods has admitted to being the person who made erasures on flight documents on March 2, 1999. Thus, the first two elements are established. He disputes that the record was one that is required to be kept and that causing a false entry was done with intent to mislead.

Issue

In the offence the Minister has particularized the document as the company operational flight plans. The first issue to be decided is if that document is one required to be kept under Part I. The second issue is whether causing a false entry was done with intent to mislead.

Under Part I at 4.9 of the Act it is provided that the Governor in Council may make regulations respecting aeronautics and may make regulations respecting, amongst many other things — (a) to (w) — (s) the keeping and preservation of records and documents relating to aerodromes, to activities, with respect to aeronautics, of persons who hold Canadian aviation documents and to aeronautical products and equipment and facilities used to provide services relating to aeronautics.

The regulations made pursuant to 4.9 are found in the (CARs). Commuter Operations are addressed at Subpart 4 of Part VII beginning at 704.01. Although not specifically addressed by the parties their evidence and arguments would indicated that NWI was an air operator governed under this section.

Both counsel provided argument and what they considered to be the relevant provisions but I fear they missed their mark. The Minister stipulated in the offence that the document in question was the company operational flight plan. Neither counsel addressed that issue directly as both went instead to weight and balance. CARs 704.17 addresses operational flight plans.

"Operational Flight Plan

704.17 (1) No air operator shall permit a person to commence a flight unless an operational flight plan that meets the Commercial Air Service Standards has been prepared in accordance with the procedures specified in the air operator's company operations manual.

(2) The pilot-in-command of an aircraft shall ensure that one copy of the operational flight plan is left at a point of departure, in accordance with the procedures specified in the company operations manual, and that another copy is carried on board the aircraft until the aircraft reaches the final destination of the flight.

(3) An air operator shall retain a copy of the operational flight plan, including any amendments to that plan, for the period specified in the company operations manual."

At subsection (3) it is provided that an air operator must retain a copy of the operational flight plan. That satisfies the requirement of 7.3 that it is a record required to be kept under Part I.

It is common in aeronautics that certain records are required to be kept for specified periods. For instance CARs 605.94(3) requires an owner of an aircraft to retain an aircraft journey log for a period of not less than one or three years, depending on circumstances. Here the period of time that the record is required to be kept is that specified in the company operations manual. As that document is not in evidence there is no way to determine the length of the specified period. In absence of that knowledge it cannot be established if, at the time of the erasures, the operational flight plan was still a document required to be kept.

I dismiss Offence 6 on that ground and therefore need not deal with the second issue.

Offence 7 — Withdrawn

Offence 8

At Offence 8 the Minister alleged a breach of CARs 602.01 which reads:

"Reckless or Negligent Operation of Aircraft

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person."

The Minister must prove the identity of the person operating the aircraft; that the aircraft was operated in a reckless or negligent manner; that the manner would endanger or be likely to endanger the life or property of any person.

The testimony and documentary evidence establishes that Mr. Woods was the pilot-in-command of aircraft LMK on January 15, 1999. Although not flying the aircraft he was as chief pilot evaluating the performance of Mr. McKenzie. The pilot-in-command is responsible for the aircraft's operation.35 The first element is established.

The operation alleged to have been conducted in a reckless or negligent manner was departing Prince George with insufficient fuel to meet the requirement of the CARs and landing in Vancouver with approximately 80 lbs of fuel remaining. Therefore the fuel requirement of the CARs must be ascertained and compared to fuel at departure. The landing fuel is to be compared to the 80 lbs.

Fuel sufficient to meet the CARs is stipulated at 602.88(2) and (4)(b)(i) where it states:

"Fuel Requirements

602.88 [...]

(2) No pilot-in-command of an aircraft shall commence a flight or, during flight, change the destination aerodrome set out in the flight plan or flight itinerary, unless the aircraft carries sufficient fuel to ensure compliance with subsections (3) to (5).

[...]

(4) An aircraft operated in IFR flight shall carry an amount of fuel that is sufficient to allow the aircraft

[...]

(b) in the case of a turbo-jet-powered aeroplane or a helicopter,

(i) where an alternate aerodrome is specified in the flight plan or flight itinerary, to fly to and execute an approach and a missed approach at the destination aerodrome, to fly to and land at the alternate aerodrome and then to fly for a period of 30 minutes, or

[...]"

Evidence accepted establishes that the aircraft was operated in IFR flight, the Citation II aircraft LMK is a turbo-jet-powered aircraft and Abbotsford was specified as the alternate aerodrome in the flight plan.

The subsection provides a breakdown of a flight into segments to the destination and alternate. The aircraft must carry an amount of fuel sufficient to allow the aircraft:

destination:

a) to fly to destination,

b) execute an approach at destination,

c) execute a missed approach there;

and then alternate:

d) to fly to alternate,

e) to land at alternate,

f) and then to fly for a period of 30 minutes.

The total fuel quantity required for the segments would constitute the fuel required by the regulations.

This facet of evidence was provided in the expert report reproduced earlier (pages 9 and 10). The report does not satisfy me that it establishes the quantity of fuel required by the regulation.

Ms. Baumeler had acknowledged in cross-examination that where a taxi time was known a figure of 10 lbs per minute could be used instead of a universal figure from flight planning charts yet she utilizes a rounded figure of 200 lbs when the evidence indicated a very short taxi time at Prince George.

Throughout the calculations average or mean winds were used instead of those indicated on the flight logs. Altitudes other than the ones the aircraft flew were used. Both of these assumptions change the fuel required.

CARs 602.88 stipulates a requirement for fuel sufficient to fly to destination. The expert report for the last leg includes fuel for taxi/take-off, climb, cruise and descent (1,402 lbs) which fulfills the requirement for fuel to destination. The regulation next requires fuel to execute an approach at destination. The expert report does not provide fuel for that segment. The regulation next requires fuel to execute a missed approach there. That figure is provided (200 lbs). Fuel to fly to the alternate is next required and was addressed in the report (200 lbs). The regulation does not stipulate fuel for an approach at the alternate but the report does provide for it.

The final regulatory requirement is to carry an amount of fuel sufficient to fly for a period of 30 minutes. The expert report stipulates flight for 30 minutes at cruising power at flight level 310 and provides a 600 lb figure. Where did the cruise power requirement come from? Clearly it is not stipulated in the regulation. Would one climb to Fl 310 when holding at the alternate?

In coming to an understanding of this issue I looked for other Tribunal cases on the issue, finding only one.36 In that case it was alleged that a Mr. Hermann had violated section 551 of the Air Regulations (the predecessor legislation to CARs 602.88) in that he commenced an IFR flight without sufficient fuel. The fuel requirement was at that time provided by section 551 which states:

"551. Except as authorized by the Minister, no IFR flight shall be commenced unless sufficient fuel and oil are carried, taking into account wind and other anticipated meteorological conditions, to fly to the airport of intended landing, thence to an alternate airport and thereafter for 45 minutes at normal cruising speed."

As can be seen the language of the section is substantially different, from the current regulation but of note is the requirement to have sufficient fuel to fly to the alternate airport and "thereafter for 45 minutes at normal cruising speed." The requirement for normal cruising speed is conspicuous by its absence in 602.88. As there is no statutory requirement for it, on what basis does the Minister assert it in this instance? The fuel requirement for the 30 minutes is significantly different if a different power setting and altitude is used as shown by the figure used by Mr. Woods.

The Minister's expert report contains enough vagaries which are unexplained to make me doubt that the final figure accurately reflects the fuel required by 602.88. Approach fuel is missing where required (at destination) and found where not required (at alternate) although it is trite to say that some sort of approach needs to be made in order to land. The assertion that one is required to use cruise power figure at FL310 for the fuel calculation is unexplained. I would have expected an expert report to address and clarify those issues. On the basis of the above analysis I cannot ascertain from the Minister's evidence what quantity of fuel is sufficient to meet the CARs.

All members of the Tribunal have knowledge and experience in aviation. It is tempting to draw on that experience to delve into the various exhibits in an attempt to come to the "correct" figure through my own calculations. I resist that temptation as it is not my function to create the evidence but rather judge the adequacy of the evidence presented. Here it is inadequate. Even if I did reach what I thought to be the right answer, there is no opportunity at this stage for the parties to contest or contradict my calculations.

That leaves an analytical dilemma, for now I do not have the basis with which to compare the evidence of the fuel load in the aircraft. Therefore a determination of the issue of the sufficiency of the fuel on board cannot be made and the offence is dismissed. Given the seriousness of the offence I am reluctant to come to that conclusion, but I am obliged to on the weakness of the Minister's evidence.

Having come to that conclusion, it is not necessary to address the issue of reckless or negligent conduct likely to endanger the life or property of any person. However I note with considerable surprise that neither counsel provided evidence, argument nor authority on that issue, although it is the actual offence alleged. What is the standard required of a reasonably prudent pilot? Would a mere breach of the fuel requirement of 602.88 constitute negligent or reckless conduct or would the insufficiency have to be egregious?

The second prong of 602.01 is that the operation be such as to endanger or likely to endanger the life or property of any person. Was the conduct of this flight likely to have done so? Perhaps counsels thought that these issues were just too obvious to mention. Were I able to come to a different conclusion on the evidence than I have, I would have had to proceed on those issues without the benefit of their input and expertise, and perhaps to their chagrin.

Offence 8 is dismissed.

CONCLUSION

Offence 1: The Minister has not proven the essential elements on a balance of probabilities. The offence is dismissed.

Offence 2: Conceded by the Minister

Offence 3: Admitted by Mr. Woods. The 30-day suspension is upheld.

Offence 4: Withdrawn

Offences 5 and 6: For the reasons which I have endeavoured to express I find that the Civil Aviation Tribunal does not have jurisdiction to hear these offences. Should I have been in error in coming to that conclusion I would have imposed the 90-day suspension for the admission at Offence 5. Offence 6 would have been dismissed.

Offence 7: Withdrawn

Offence 8: The Minister has not proven the essential elements on a balance of probabilities. The offence is dismissed.

DETERMINATION

Mr. Woods's licence is suspended for a period of 30 days.


1 R. v. Stinchcombe [1991] 3 S.C.R. 326.

2 R. v. Dixon [1998] 1 S.C.R. 244.

3 Exhibit M-1, Tabs 46 and 47 Cessna Citation II Airplane Flight Manual at 2-5, 2-7.

4 M-1, Part 2, Tabs 1-24.

5 Exhibit D-1, Tab 1 - Tab 2.

6 M-1, Part 2, Tabs 25 - 42.

7 D-1, Tabs 1 and 2.

8 Exhibit D-19.

9 M-1, Part 2, Tabs 14 - 19.

10 Exhibit M-7.

11 Exhibit M-8.

12 Exhibit D-14, Tab 1.

13 Exhibit D-6, Jeppesen Chart, Keinn Three Arrival.

14 Approximately 30.

15 Ruth Sullivan, Driedger on the Construction of Statutes, 3d ed. (Toronto and Vancouver: Butterworths, 1994) at 176.

16 (1989), 61 D.L.R. (4th) 688, at 716 (S.C.C.).

17 R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299.

18 In the Matter of a Reference by the Civil Aviation Tribunal of a Question of Jurisdiction to this Honourable Court Pursuant to Section 18.3 of the Federal Court Act, R.S.C. 1985, as Amended.

19 Report of the Commission of Inquiry on Aviation Safety, Justice Charles L. Dubin, October 1981.

20 Ibid.

21 Ibid. Volume 2 Recommendation 20 at page 504.

22 Ibid. Recommendation 23 Vol 2 at page 504.

23 Ibid. Recommendation 30 Vol 2 at page 505.

24 R. v. Jensen [1998] N.W.T.J. No. 57.

25 Aeronautics Act, s. 37.

26 Mr. Stewart lists CARs 724.01(1)(f). I am unable to find such a section in the Standards, I believe he is referring to 724.07(1)(f).

27 CARs, s. 511.02, Application.

28 CARs, s. 511.01, Interpretation.

29 CARs, s. 511.21, Issuance of a Type Certificate.

30 M-1, Tab 40.

31 M-1, Tabs 46, 47, C of A for LMK and NWM.

32 M-1, Tabs 1 - 43.

33 Supra at note 25, s. 3(1).

34 M-1, Tabs 46 and 47.

35 Supra at note 25, s. 3(1).

36 Karl Douglas Hermann v. Minister of Transport, Civil Aviation Tribunal Review and Appeal Determination O-0505-02.

37Currently found in section 103.08 of the Canadian Aviation Regulations.

38[1988] F.C.A.D. 370-02, [1988] F.C.J. No. 1007.


Appeal decision
David S. Ahmed, E. David Dover, Faye H. Smith


Decision: May 29, 2001

April 19, 2001
Vancouver, British Columbia

The tribunal dismisses the appeal and maintains the decision of the tribunal at review that the civil aviation tribunal does not have jurisdiction to hear offences 5 and 6 as set out in the within notice of suspension.

BACKGROUND

By Notice of Suspension dated October 1, 1999, the Minister of Transport suspended the Canadian aviation document (pilot licence) of Mr. Milton James Woods pursuant to section 6.9 of the Aeronautics Act for allegations relating to eight offences set out in the Notice of Suspension. Offences 5 and 6 listed in the Notice of Suspension were alleged violations of paragraph 7.3(1)(c) of the Aeronautics Act.

ISSUE ON APPEAL

The only issue before the appeal panel related to the rejection of counts 5 and 6 by the Tribunal Member on the basis that the Civil Aviation Tribunal had no jurisdiction to hear matters alleged to be contrary to subsection 7.3(1) of the Aeronautics Act for the reasons set out in the review determination dated January 5, 2001 following the review hearing held on September 25–29, 2000.

GROUNDS FOR APPEAL

The Minister appealed the aforementioned portion of the review determination on grounds set out in the Notice of Appeal as follows:

"1. The Member erred in law in interpreting subsection 6.9(1) and section 7.3 of the Aeronautics Act;

2. The Member erred in law in finding that the Civil Aviation Tribunal does not have jurisdiction to review allegations pursued under section 7.3 of the Aeronautics Act."

PRELIMINARY MOTION

At the outset of the hearing, the respondent objected to the filing of written argument and case law by the Minister's representative indicating that such would prejudice the case for the defence. The appellant stated that the written guidelines contained the same information as would be presented verbally. Upon deliberation, the panel agreed to accept the material on the basis that written guidelines and copies of jurisprudence are routinely accepted by this Tribunal when produced by either or both parties on appeal. Such is not the case however with the filing of new evidence at the appeal level unless an application is made in accordance with subsection 7.2(3) of the Aeronautics Act and the Tribunal is of the opinion that the evidence was not previously available and is necessary for the purposes of the appeal.

MINISTER'S REPRESENTATIONS

The Minister's arguments in support of its assertion that the Tribunal Member erred in law in finding that the Civil Aviation Tribunal had no jurisdiction to hear contraventions of subsection 7.3(1) are based on the following points:

I. Section 7.3(1) offences are criminal in nature;

The Minister submits that the Member's analysis does not assist in determining whether the 7.3 offences are public welfare offences or criminal offences. It was submitted that the appropriate test is that contained in R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154 where Mr. Justice Cory provided a helpful resume of the distinction between public welfare offences and offences that are criminal in nature [in the Quicklaw version at page 33].

Additionally the Minister's representative stated that it has been held in Civil Aviation cases that the purpose of the Aeronautics legislation is to protect the public by ensuring aviation safety. And she argues that a close perusal of the offences in section 7.3 will reveal that their purpose is not to punish inherently wrongful conduct but to ensure that the goals of aviation safety in the public interest are met.

The Minister refers to the classic case of R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299 wherein we find the categorization of the three types of offences, mens rea, strict liability and absolute liability citing: "Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as ‘wilfully,' ‘with intent,' ‘knowingly,' or ‘intentionally' are contained in the statutory provision creating the offence."

The Minister concludes this submission with the statement that the mere use of the mens rea words does not brand the 7.3 offences as criminal. They may in fact be strict liability offences with a mens rea requirement, or an offence requiring the prosecution to prove mens rea.

II. The phrase, ‘Except as otherwise provided by this Part...', refers to only two sections: section 7.3(2) which provides that every person who contravenes subsection (1) is guilty of an indictable or summary conviction offence, and section 7.6(2) which provides that designated offences may not be dealt with by summary conviction; and

The Minister argues that the Member's statement in II above renders subsection 6.9(1) a nullity. Since subsection 7.3(3) makes all offences, except as otherwise provided for, to be summary conviction offences, and since the Member allows only 7.3 offences and designated provisions to be excepted, the application of section 6.9 is rendered impossible not only to section 7.3 offences but to all designated and non-designated provisions as well.

III. Section 8.5, due diligence, does not apply to mens rea offences.

It was submitted by the Minister that the Member erred in finding that section 8.5 is incompatible with mens rea offences. The Member's reliance on the Jensen case (R. v. Jensen [1998] N.W.T.J. No. 57) is in error, as is the finding in the Jensen case on this issue, as both the Member and the judge in Jensen did not consider the components of due diligence or the defence of mistake of fact to criminal offences enunciated in the case of R. v. Pappajohn [1980] 2 S.C.R. 120.

RESPONDENT'S REPRESENTATIONS

The respondent submits that there is a difference between mens rea in a regulatory context and that in a criminal context. He further asserts that section 7.3 offences can only go to the courts and thus the Minister should not have proceeded pursuant to section 7.3 but rather should have used a section 6.9 suspension for a breach of one of the Canadian Aviation Regulations relevant to the facts of the case.

He submitted that the legislation states that the offences in section 7.3 indicate moral blameworthiness and he implores the panel to reject the Minister's submissions relating to the application of due diligence to mens rea and further states that the R. v. Wholesale Travel Group Inc. and other cases cited are not relevant to this situation. He further adds that the wording of the legislation is clear and unambiguous and thus does not require the assistance of the case law and legal texts on statutory interpretation as were proffered by the Minister.

DISCUSSION

Prior to the 1985 amendments to the Aeronautics Act, most enforcement actions proceeded in criminal courts by way of summary conviction. Few administrative measures existed at that time save for suspension of pilot licences under section 407 of the former Air Regulations and suspension of air carrier operating certificates pursuant to section 704 of the former Air Regulations neither of which had an independent review mechanism.

All of this protracted and cumbersome enforcement procedure changed with the 1985 amendments so that a large number of cases would now be dealt with administratively through suspension or cancellation and also through the imposition of a new mechanism called the administrative monetary penalty. Fewer cases would proceed before the courts thereby ensuring a more effective and efficient enforcement system which would enhance aviation safety. However, judicial remedies would still be available and the most serious offences were set out in section 7.3 of the Act which reserved the discretion to the Crown to proceed by way of summary conviction or by way of indictment as warranted.

When the legislation was drafted following the 1985 amendments, the Designated Provisions Regulations listed a number of offences and these were enforced through assessed monetary penalties. At that point, in addition to the array of administrative remedies including suspensions set out in sections 6.9 to 7.1 and the system of assessed monetary penalties (fines) levied under section 7.6, there remained the judicial remedies, the hybrid or dual procedure offences cited in subsection 7.3(1) as well as the catch-all found in subsection 7.3(3) which essentially states that all of those regulations and orders which are offence creating and which are not included in the Designated Provisions Regulations will fall into the summary conviction group of offences.

We do not accept the aspect of the Minister's argument which asserts that the interpretation by the Member would render subsection 6.9(1) a nullity. We concur with the Member that the exceptions referred to in subsection 7.3(3) are intended to refer to subsection 7.3(2) (the hybrid offences) and to subsection 7.6(2) (the designated provisions). As well, subsection 7.6(2) states that the designated provisions must not be pursued in the courts as summary conviction offences.

Hence our review of the scheme of the legislation leads us to conclude that there are section 7.3 offences which must go to the courts and the 7.6 designated provisions offences which must not go to the courts and all the rest, according to the wording of subsection 7.3(3), will be classed as summary conviction offences.

As a practical matter, however, as more and more offences came to be listed in the Designated Provisions Regulations37 over the course of the next fifteen years, the majority of offences are now proceeded with administratively, that is by way of an assessed monetary penalty under section 7.6 or by way of suspension under section 6.9 because nowhere in the legislation is the Minister deterred from using a section 6.9 suspension for breach of a designated provision. In fact this issue has been pronounced upon judicially in the case of Canada (Attorney General) v. La Ronge Aviation Services Ltd._(F.C.A.)38.

It was clear from a review of the legislation by the Federal Court of Canada that nothing prevented the Minister from suspending a Canadian aviation document pursuant to section 6.9 of the Act for a breach of the Designated Provisions Regulations as that was the more severe penalty which the Minister reserved for more serious breaches of the designated provisions.

We do not find that the Minister can suspend a Canadian aviation document for breach of one of the offences listed in subsection 7.3(1) since that section provides to the Minister the option to use the indictable procedure where the prosecutor on the Minister's behalf decides that the case is a more serious matter than that warranted by a summary conviction offence. That is to say that the less serious and the more serious avenues are contained in section 7.3 itself. This interpretation is reinforced through the restrictive wording found in subsection 7.3(2). It is the view of this panel that any general application of the section 6.9 administrative suspension is cut down by the restrictive wording of subsection (2) as it applies to the offences listed in subsection (1) of section 7.3.

We are in agreement with the Tribunal Member at review that for all practical purposes the defence of due diligence will not apply to mens rea offences. Due diligence may have application for the defence in strict liability offences as stated in Sault Ste. Marie and though it has been codified in section 8.5 of the Act, it would apply to the strict liability category of offence whether or not it had been specifically included in the Act.

The panel is of the view that it does not apply to mens rea offences as a practical interpretation of that category of offence since to prove that the alleged offender believed in a mistaken set of facts which if true would negate the commission of the offence, would thereby negate the mens rea or intentional element of that offence. The same is true if the alleged offender were to prove that he took all reasonable steps to avoid commission of the offence, then in that event his state of mind would tend to avoid commission of the offence and hence he could not be said to have intended its commission.

The appeal panel does not concur with the submission of the Minister requiring a reversal of the onus of proving the mens rea component of the alleged offence. Rather we state that in determining the category of offence we look to the Sault Ste. Marie case where the Supreme Court of Canada indicated that the category of offence is to be determined by the wording of the offence-creating section, the type of legislation and the penalty provided. For example, if the words "wilfully," "with intent," "recklessly" or "knowingly" are used then the offences are categorized as mens rea offences and call for proof of the requisite mens rea as indicated by the included word, be it wilfulness, intention, recklessness, negligence or knowledge as appropriate.

CONCLUSION

We the panel concur with the analysis set out in the review determination and see no reason to vary the decision at review. It is the view of the panel that the words of subsection 7.3(2) of the Act are clear and unambiguous and lend themselves to one interpretation only, that being to restrict the avenue of procedure available to the Minister in its pursuit of offences found in subsection (1) to be by way indictment or summary conviction. That much is clear. It is the view of the appeal panel that the offences found in subsection (1) cannot be pursued administratively under section 6.9 of the Act because that general administrative power is cut down or limited by the definite restriction contained in subsection 7.3(2) respecting offences contained in subsection 7.3(1).

DETERMINATION

The Tribunal dismisses the appeal and maintains the decision of the Tribunal at review that the Civil Aviation Tribunal does not have jurisdiction to hear offences 5 and 6 as set out in the within Notice of Suspension.


Federal Court of Canada (T)


Decision: August 14, 2002

August 14, 2002
Vancouver, British Columbia

REASONS FOR ORDER AND ORDER

DAWSON J.:— A narrow issue is raised in this application for judicial review:

Does the Civil Aviation Tribunal have jurisdiction to review matters alleged to be contrary to subsection 7.3 of the Aeronautics Act, R.S.C. 1985, c. A-2 ("Act") when the Minister of Transport ("Minister") purports to suspend or cancel an aviation document on the ground that a person has acted contrary to subsection 7.3(1) of the Act?

The Attorney General of Canada brings this application from the May 30, 2001 decision of the Appeal Panel of the Civil Aviation Tribunal ("Appeal Panel") which upheld the decision of the Civil Aviation Tribunal (sometimes the "Tribunal") that it does not have jurisdiction in that circumstance.

THE FACTS

By notice of suspension dated October 1, 1999, the Minister suspended the pilot's licence of the respondent, Mr. Woods, pursuant to section 6.9 of the Act. The Minister alleged that Mr. Woods had committed eight offences under the Canadian Aviation Regulations and the Act. The two offences relevant to this proceeding are offences 5 and 6 contained in the notice of suspension. They are as follows:

"Offence 5

Aeronautics Act section 7.3(1)(c), in that on or about December 5th and 6th, 1998, in Canada and The United States of America, you make [sic] a false entry in a record required to be kept with intent to mislead, namely that you operated aircraft Cessna Citation 550 aircraft, serial No. 550-0100, bearing Canadian registration marks C-GNWM with only one pilot and then entered a name of a pilot in the journey log book when that pilot had not acted as a crew member.

Penalty: 90 Day Suspension

Offence 6

Aeronautics Act section 7.3(1)(c), in that between February 25th, 1999 and March 4th, 1999, at or near Richmond, British Columbia, you did make false entries in a record required under this Part to be kept with intent to mislead, namely that, you erased entries from company operational flight plans.

Penalty: 90 Day Suspension"

Mr. Woods applied to the Civil Aviation Tribunal for a review determination of his suspension. The review hearing of the Minister's decision was held in September before the vice-chair of the Civil Aviation Tribunal.

The Tribunal rendered its decision in January 2001 deciding, among other things, that the Tribunal did not have jurisdiction to hear offences 5 and 6 because those offences were based upon allegations that Mr. Woods had acted contrary to paragraph 7.3(1)(c) of the Act. The Civil Aviation Tribunal found, in the alternative, that if it had erred with respect to the question of jurisdiction it would impose a 90-day suspension for offence 5 and dismiss offence 6.

The Minister brought an appeal from the Civil Aviation Tribunal's decision to the three-member Appeal Panel, which heard the appeal in April 2001. The Appeal Panel dismissed the appeal, affirming the decision of the Civil Aviation Tribunal that the Tribunal did not have jurisdiction to hear offences under section 7.3 of the Act.

Prior to the appeal hearing, the Appeal Panel denied the Attorney General's written requests and applications for an adjournment, and for the transcript of the review hearing before the Civil Aviation Tribunal to be provided to the Minister. The Appeal Panel also denied the Minister's application to provide it with written, rather than oral, submissions. The Appeal Panel did accept a written summary of oral argument at the hearing.

THE RELEVANT LEGISLATION

The following provisions of the Aeronautics Act are relevant to this application:

"6.8 In addition to any ground of suspension, cancellation or refusal of renewal referred to in sections 6.9 to 7.1, the Minister may suspend, cancel or refuse to renew a Canadian aviation document in such circumstances and on such grounds as the Governor in Council may by regulation prescribe.

6.9 (1) Where the Minister decides to suspend or cancel a Canadian aviation document on the grounds that the holder of the document or the owner or operator of any aircraft, airport or other facility in respect of which the document was issued has contravened any provision of this Part or any regulation or order made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at his latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

[...]

(3) Where the holder of a Canadian aviation document or the owner or operator of any aircraft, airport or other facility in respect of which a Canadian aviation document is issued who is affected by a decision of the Minister referred to in subsection (1) wishes to have the decision reviewed, he shall, on or before the date that is thirty days after the notice is served on or sent to him under that subsection or within such further time as the Tribunal, on application by the holder, owner or operator, may allow, in writing file with the Tribunal at the address set out in the notice a request for a review of the decision.

(7) At the time and place appointed under subsection (6) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner or operator affected by the decision, as the case may be, with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension or cancellation under review.

Prohibitions, Offences and Punishment

7.3 (1) No person shall

(a) knowingly make any false representation for the purpose of obtaining a Canadian aviation document or any privilege accorded thereby;

(b) wilfully destroy any document required under this Part to be kept;

(c) make or cause to be made any false entry in a record required under this Part to be kept with intent to mislead or wilfully omit to make any entry in any such record;

(d) wilfully obstruct any person who is performing duties under this Part;

(e) except as authorized under this Part, wilfully operate or otherwise deal with an aircraft that has been detained under this Part;

(f) wilfully do any act or thing in respect of which a Canadian aviation document is required except under and in accordance with the required document; or

(g) wilfully do any act or thing in respect of which a Canadian aviation document is required where

(i) the document that has been issued in respect of that act or thing is suspended, or

(ii) an order referred to in subsection 7.5(1) prohibits the person from doing that act or thing.

(2) Every person who contravenes subsection (1) is guilty of

(a) an indictable offence; or

(b) an offence punishable on summary conviction.

(3) Except as otherwise provided by this Part, every person who contravenes a provision of this Part or any regulation or order made under this Part is guilty of an offence punishable on summary conviction.

(4) An individual who is convicted of an offence under this Part punishable on summary conviction is liable to a fine not exceeding five thousand dollars and, in the case of an offence referred to in subsection (1), to imprisonment for a term not exceeding one year or to both fine and imprisonment.

7.4 (1) Where a person is convicted on indictment of an offence referred to in paragraph 7.3(1) (f) or (g) in relation to the operation of a commercial air service, the court may, in addition to any other punishment it may impose, order that any aircraft used in the commercial air service be forfeited and, on the making of such an order, the aircraft is forfeited to Her Majesty in right of Canada.

7.5 (1) Where a person is convicted of an offence under this Part, the court may, in addition to any other punishment it may impose, make an order

(a) where the person is the holder of a Canadian aviation document or is the owner or operator of any aircraft, airport or other facility in respect of which a Canadian aviation document was issued, prohibiting the person from doing any act or thing authorized by the document at all times while the document is in force or for such period or at such times and places as may be specified in the order; or

(b) prohibiting the person from operating an aircraft or providing services essential to the operation of an aircraft for such period or at such times and places as may be specified in the order.

Procedure pertaining to certain Contraventions

7.6 (1) The Governor in Council may, by regulation,

(a) designate any regulation or order made under this Part, in this section and in sections 7.7 to 8.2 referred to as a "designated provision", as a regulation or order the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2; and

(b) prescribe, in respect of a designated provision, the maximum amount payable in respect of a contravention of that provision, which amount shall not exceed

(i) five thousand dollars, in the case of an individual, and

(ii) twenty-five thousand dollars, in the case of a corporation.

(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction.

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.

* * *

6.8 En sus des motifs de suspension, d'annulation ou de refus de renouveler mentionnés aux articles 6.9 à 7.1, le ministre peut suspendre, annuler ou refuser de renouveler un document d'aviation canadien dans les circonstances et pour les motifs que le gouverneur en conseil peut fixer par règlement.

6.9 (1) Lorsqu'il décide de suspendre ou d'annuler un document d'aviation canadien parce que l'intéressé - titulaire du document ou propriétaire, exploitant ou utilisateur d'aéronefs, d'aéroports ou d'autres installations que vise le document - a contrevenu à la présente partie ou à ses textes d'application, le ministre expédie par courrier recommandé ou certifié à la dernière adresse connue de l'intéressé, ou par signification à personne, avis de la mesure et de la date de sa prise d'effet, laquelle ne peut survenir moins de trente jours après l'expédition ou la signification de l'avis.

[...]

(3) L'intéressé qui désire faire réviser la décision du ministre dépose une requête à cet effet auprès du Tribunal à l'adresse et pour la date limite indiquées dans l'avis, ou dans le délai supérieur éventuellement octroyé à sa demande par le Tribunal.

(7) À l'audition, le conseiller accorde au ministre et à l'intéressé toute possibilité de présenter leurs éléments de preuve et leurs observations sur la mesure attaquée conformément aux principes de l'équité procédurale et de la justice naturelle.

Interdiction, infractions et peines

7.3 (1) Il est interdit :

a) de faire sciemment une fausse déclaration pour obtenir un document d'aviation canadien ou tout avantage qu'il octroie;

b) de détruire délibérément un document dont la tenue est exigée sous le régime de la présente partie;

c) de faire, ou faire faire, de fausses inscriptions dans les registres dont la tenue est exigée sous le régime de la présente partie, dans le dessein d'induire en erreur, ou d'omettre délibérément d'y faire une inscription;

d) d'entraver délibérément l'action d'une personne exerçant ses fonctions sous le régime de la présente partie;

e) sauf autorisation donnée en application de la présente partie, d'utiliser délibérément un aéronef retenu sous le régime de celle-ci, ou d'effectuer quelque opération se rapportant à cet aéronef;

f) d'accomplir délibérément un acte ou chose pour lequel il faut un document d'aviation canadien sans en être titulaire ou en violation de ses termes;

g) d'accomplir délibérément un acte ou chose pour lequel il faut un document d'aviation canadien :

(i) alors que le document est frappé de suspension,

(ii) alors qu'une ordonnance rendue en vertu du paragraphe 7.5(1) l'interdit.

(2) Quiconque contrevient au paragraphe (1) est coupable d'une infraction punissable sur déclaration de culpabilité :

a) soit par mise en accusation;

b) soit par procédure sommaire.

(3) Sauf disposition contraire de la présente partie, quiconque contrevient à celle-ci ou à ses textes d'application est coupable d'une infraction punissable sur déclaration de culpabilité par procédure sommaire.

(4) La personne physique déclarée coupable d'une infraction à la présente partie ou à ses textes d'application punissable sur déclaration de culpabilité par procédure sommaire encourt une amende maximale de cinq mille dollars, et dans le cas d'une infraction visée au paragraphe (1), un emprisonnement maximal de un an et une amende maximale de cinq mille dollars, ou l'une de ces peines.

7.4 (1) Le tribunal qui a prononcé un verdict de culpabilité sur mise en accusation pour une infraction aux alinéas 7.3(1)f) ou g) relative à l'exploitation d'un service aérien commercial peut, en sus de toute autre sanction, ordonner la confiscation immédiate, au profit de Sa Majesté du chef du Canada, de tout aéronef affecté à cette exploitation.

7.5 (1) Quiconque est déclaré coupable d'une infraction à la présente partie ou à ses textes d'application peut, en sus de la sanction, se voir interdire, par ordonnance du tribunal saisi de la poursuite :

a) s'il s'agit d'un titulaire de document d'aviation canadien, ou du propriétaire, de l'exploitant, de l'utilisateur d'un aéronef, d'un aéroport ou d'autres installations visés par un tel document, d'accomplir tout acte ou chose autorisé par le document pendant la durée de validité de celui-ci ou sous réserve des conditions de temps ou de lieu précisées;

b) d'utiliser un aéronef ou de fournir des services essentiels à son utilisation sous réserve des conditions de temps ou de lieu précisées.

Procédure relative à certaines contraventions

7.6 (1) Le gouverneur en conseil peut, par règlement :

a) désigner tout texte d'application de la présente partie, ci-après appelé au présent article et aux articles 7.7 à 8.2 "texte désigné", dont la transgression est traitée conformément à la procédure prévue à ces articles;

b) fixer le montant maximal - plafonné, dans le cas des personnes physiques, à cinq mille dollars et, dans le cas des personnes morales, à vingt-cinq mille dollars - à payer au titre d'une contravention à un texte désigné.

(2) Quiconque contrevient à un texte désigné commet une infraction et encourt la sanction prévue aux articles 7.7 à 8.2. Aucune poursuite ne peut être intentée contre lui par procédure sommaire.

8.5 Nul ne peut être reconnu coupable d'avoir contrevenu à la présente partie ou à ses textes d'application s'il a pris toutes les mesures nécessaires pour s'y conformer."

THE APPEAL PANEL'S DECISION

After setting out the submissions of the parties and reviewing the effect of amendments to the Act made in 1995, in material part, the Appeal Panel wrote as follows:

"We do not accept the aspect of the Minister's argument which asserts that the interpretation by the Member would render subsection 6.9(1) a nullity. We concur with the Member that the exceptions referred to in subsection 7.3(3) are intended to refer to subsection 7.3(2) (the hybrid offences) and to subsection 7.6(2) (the designated provisions). As well, subsection 7.6(2) states that the designated provisions must not be pursued in the courts as summary conviction offences.

Hence our review of the scheme of the legislation leads us to conclude that there are section 7.3 offences which must go to the courts and the 7.6 designated provisions offences which must not go to the courts and all the rest, according to the wording of subsection 7.3(3), will be classed as summary conviction offences.

As a practical matter, however, as more and more offences came to be listed in the Designated Provisions Regulations over the course of the next fifteen years, the majority of offences are now proceeded with administratively, that is by way of an assessed monetary penalty under section 7.6 or by way of suspension under section 6.9 because nowhere in the legislation is the Minister deterred from using a section 6.9 suspension for breach of a designated provision. In fact this issue has been pronounced upon judicially in the case of Canada (Attorney General) v. La Ronge Aviation Services Ltd. (F.C.A.).

It was clear from a review of the legislation by the Federal Court of Canada that nothing prevented the Minister from suspending a Canadian aviation document pursuant to section 6.9 of the Act for a breach of the Designated Provisions Regulations as that was the more severe penalty which the Minister reserved for more serious breaches of the designated provisions.

We do not find that the Minister can suspend a Canadian aviation document for breach of one of the offences listed in subsection 7.3(1) since that section provides to the Minister the option to use the indictable procedure where the prosecutor on the Minister's behalf decides that the case is a more serious matter than that warranted by a summary conviction offence. That is to say that the less serious and the more serious avenues are contained in section 7.3 itself. This interpretation is reinforced through the restrictive wording found in subsection 7.3(2). It is the view of this panel that any general application of the section 6.9 administrative suspension is cut down by the restrictive wording of subsection (2) as it applies to the offences listed in subsection (1) of section 7.3.

[...]

CONCLUSION

We the panel concur with the analysis set out in the review determination and see no reason to vary the decision at review. It is the view of the panel that the words of subsection 7.3(2) of the Act are clear and unambiguous and lend themselves to one interpretation only, that being to restrict the avenue of procedure available to the Minister in its pursuit of offences found in subsection (1) to be by way indictment or summary conviction. That much is clear. It is the view of the appeal panel that the offences found in subsection (1) cannot be pursued administratively under section 6.9 of the Act because that general administrative power is cut down or limited by the definite restriction contained in subsection 7.3(2) respecting offences contained in subsection 7.3(1). [footnotes omitted]"

STANDARD OF REVIEW

Relying upon the decision of Justice Tremblay-Lamer in Air Nunavut v. Canada (Minister of Transport), [2001] 1 F.C. 138 (T.D.) and upon the pragmatic and functional approach, the Minister says that the standard of review to be applied to the Appeal Panel's decision on the jurisdiction of the Civil Aviation Tribunal to hear these offences is correctness. Counsel for Mr. Woods agrees.

I am satisfied that by application of the factors articulated in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the standard of review is correctness. In particular, I have considered the importance of the question and its applicability to numerous future cases, and the relative lack of expertise of the Appeal Panel on questions of statutory interpretation.

The Tribunal must make a correct interpretation of the Act on this issue and so, in this sense, the question goes to the jurisdiction of the Civil Aviation Tribunal. Therefore, the question must be answered correctly in order for the Tribunal to be acting intra vires. See: Pushpanathan, supra, at paragraph 28.

ANALYSIS

(a) The Question of Jurisdiction

The Act confers on the Minister responsibility for the regulation of aeronautics and for supervision of all matters connected with aeronautics. With respect to the suspension, cancellation or refusal to renew aviation documents, section 6.8 of the Act provides:

"In addition to any ground of suspension, cancellation or refusal of renewal referred to in sections 6.9 to 7.1, the Minister may suspend [...]"

Subsection 6.9(1) of the Act in turn speaks to the Minister deciding to suspend an aviation document on the ground that the holder of the document "has contravened any provision of this Part [...]". The reference to "this Part" is a reference to Part I of the Act.

Subsection 7.3(1) of the Act is a provision falling within Part I of the Act. Prima facie, therefore, the combined effect of section 6.8, subsection 6.9(1) and subsection 7.3(1) of the Act is that the Minister may suspend a document for contravention of a matter proscribed in subsection 7.3(1) of the Act. It further follows that the Civil Aviation Tribunal has jurisdiction to review such decision.

In order to conclude that there is no such jurisdiction, in the words of Justice Hugessen in Canada (Attorney General) v. La Ronge Aviation Services Ltd. (1998), 93 N.R. 234 (F.C.A.), "the question then becomes whether there is anything in the remainder of the statute to take [jurisdiction] away".

The Civil Aviation Tribunal and the Appeal Panel found that apparent jurisdiction to be taken away by subsection 7.3(2) of the Act. For ease of reference that subsection is as follows:

"(2) Every person who contravenes subsection (1) is guilty of

(a) an indictable offence; or

(b) an offence punishable on summary conviction."

[underlining added]

It was the view of the Appeal Panel and the Civil Aviation Tribunal that the effect of this provision was to mandate that section 7.3 offences must go to the courts either by indictment or summarily. In the words of the Appeal Panel, again repeated for ease of reference:

"Hence our review of the scheme of the legislation leads us to conclude that there are section 7.3 offences which must go to the courts and the 7.6 designated provisions offences which must not go to the courts and all the rest, according to the wording of subsection 7.3(3), will be classed as summary conviction offences."

With respect, I cannot agree with that interpretation.

While the parties each argued a purposive interpretation of the Act, I begin from the premise that the preferred approach to statutory interpretation is that set out by E.A. Driedger in Construction of Statutes (2nd ed. 1983), at page 87:

"Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

See, for example, Chieu v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 1, 2002 SCC 3 at paragraph 27 and the authorities cited therein.

In looking at the provisions of Part I as a whole, I find the following of assistance.

First, the combined effect of subsection 7.3(2), subsection 7.3(3) and subsection 7.6(2) is that every contravention of a provision of Part I is an offence. Contravention of a designated provision cannot lead to criminal prosecution either by indictment or by way of summary conviction. However, contravention of any provision other than a designated provision is punishable on summary conviction, except where subsection 7.3(1) is contravened and a decision is made to proceed by indictment.

From this, I take that the mere fact that contravention of a provision may lead to judicial proceedings, either by indictment or by summary conviction, is not sufficient to take away from the wording of section 6.8 and section 6.9, and the plain meaning of those provisions that contravention of any provision of Part I may lead the Minister to decide to suspend a document. This in turn may lead to a review of that decision before the Civil Aviation Tribunal. To conclude otherwise would render the power of suspension all but nugatory, existing only in respect of contravention of a designated provision.

The use of the word "or" in subsection 7.3(2) and the whole wording of the provision reflects that, where this conduct leads to judicial proceedings, there is an option as to whether the judicial proceedings are by indictment or summary conviction.

Second, I find some assistance in subsection 7.6(2) which, again for ease of reference, is as follows:

"(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction."

From this, I take that where it is Parliament's intent to confine the Minister to one mode of proceeding, in that case administrative but not judicial proceedings for a summary conviction offence, Parliament uses express wording. I infer from the absence of such limitation elsewhere in Part I that it was not Parliament's intent to restrict the options open to the Minister.

Thus, on the plain and ordinary meaning of the words in subsection 6.9(1) which refers to suspension for contravention of any provision under Part I, the scheme of Part I and the broad responsibility and authority which Parliament conferred on the Minister in section 4 of the Act, I conclude that the Minister may suspend an aviation document for conduct which contravenes subsection 7.3(1) of the Act. It follows that the Tribunal may review that decision.

Much argument was advanced, both in this Court and below, to the effect that if the "Minister decides to proceed criminally against a licence holder" the Minister must rely upon subsection 7.3 of the Act and proceed either by indictment or summarily in respect of offences listed in subsection 7.3(1). It was said that a proceeding under section 7.3 is not an administrative proceeding and that the wording of paragraph 7.3(1)(c) here in issue places this offence into the "full mens rea category".

But, with respect, what that, in my view, fails to address is that the proceeding commenced by the Minister was not criminal. It was administrative, and so there was no requirement to commence proceedings in Court. The Minister imposed an administrative suspension under section 6.8 and section 6.9 of the Act, based upon a contravention of a provision of Part I of the Act, specifically paragraph 7.3(1)(c) which requires that a person not make or cause to be made with intent to mislead any false entry in a record required to be kept.

The fact that it is an element of the proscribed conduct that it be done with intent to mislead is insufficient to make the conduct only reviewable in judicial proceeding commenced either summarily or by indictment. The existence of the requirement of mens rea, while present in offences which are criminal, does not by itself make conduct criminal in this sense that it is only reviewable in court proceedings.

It was also argued that serious conduct of the type enumerated in subsection 7.3(1) should only be tried in a criminal court where specific procedural protections exist. However, those procedural protections are contextual and commensurate with the fact that prosecution, whether by indictment or summary proceeding, carries with it the potential for conviction, a fine and imprisonment in the case of contraventions of subsection 7.3(1). In comparison, the procedural protections before the Civil Aviation Tribunal are commensurate with the fact that they are administrative proceedings to cancel, suspend or not renew an aviation document.

Mr. Woods also relied upon subsection 7.5(1) of the Act to argue that where the Minister proceeds with an offence under subsection 7.3(1) of the Act, it is subsection 7.5(1) and not section 6.9 which is, or should be, used to prohibit further use of a pilot's licence. However, the application of subsection 7.5(1) is not limited to an offence under subsection 7.3(1). In contrast to subsection 7.4(1) which confers upon a court the ability to order an aircraft to be forfeited where a person is "convicted on indictment of an offence", subsection 7.5(1) applies simply where a person is "convicted of an offence under this Part". Subsection 7.3(3) of the Act makes, subject to subsection 7.3(2) and subsection 7.6(2), any contravention of a provision under Part I an offence punishable on summary conviction. Thus, a court may impose a prohibition in connection with an offence punishable on summary conviction.

Finally, the Civil Aviation Tribunal relied upon section 8.5 of the Act. For ease of reference that provision is:

"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 Civil Aviation Tribunal in its comprehensive analysis wrote:

"Although the wording of 6.9 seems broad enough to encompass 7.3, a comparison to another section with alike wording shows that it may not apply. Section 8.5, due diligence, also purports to apply to a contravention of "a provision of this Part or of any regulation or order made under this Part."

An analysis of the application of 8.5 shows that however broad the wording it cannot apply to every provision of the Part. In the second category of offences where no mens rea is required it is open to the accused to avoid liability by proving he took all reasonable care. The defence of due diligence would apply to all offences in that second category, but it cannot apply to offences in the first category, where mens rea is required."

However, in my view, section 8.5 is not inconsistent with the interpretation that subsection 7.3(1) lists provisions the contravention of which may result in suspension under section 6.8 and subsection 6.9(1). If willful conduct of the nature captured in subsection 7.3(1) is made out there will be no question of due diligence. For example, knowingly making false entries with intent to mislead is wholly inconsistent with due diligence to prevent that contravention. Conversely, if due diligence to prevent any contravention was established, it is difficult to see how the required mens rea could be found.

For these reasons, the decision of the Appeal Panel that the Civil Aviation Tribunal does not have jurisdiction to hear offences 5 and 6 set out in the notice of suspension is set aside.

(b) Procedural Fairness and Natural Justice

The Attorney General on behalf of the Minister of Transport argues that his right to participate before the Civil Aviation Tribunal was breached when the Registrar of the Civil Aviation Tribunal set the date for the hearing before the Appeal Panel on a date not convenient to the Minister's representative, and by refusing to produce the transcript of proceedings before the Civil Aviation Tribunal.

It was conceded, however, that no actual prejudice was suffered by the Minister and no specific relief is sought as a result of this conduct.

As no prejudice was suffered, no relief is claimed on this ground, and the decision is being set aside, it is not necessary for me to consider whether the conduct complained of reached the level of a breach of procedural fairness or natural justice.

It is sufficient to note that it is surprising that, in the absence of aggravating factors such as prior delay (which factors are not present here), a date would be set with knowledge that one of the parties is unavailable on that date. This is particularly so where the Minister's representative stated that he was available for the hearing on April 26 and April 27, 2001, and the hearing was set for April 19, 2001, because the panel was not available during the week of April 26. There is no evidence to explain why the matter was so urgent that it could not have been dealt with in May 2001, particularly where Mr. Woods was agreeable to accommodating the Minister's representative.

CONCLUSION AND COSTS

The decision of the Appeal Panel of the Civil Aviation Tribunal dated May 30, 2001, is set aside. In that circumstance, Mr. Woods sought an order that the Tribunal be directed not to impose the suspension ordered with respect to offence 5. This was said to be appropriate in view of the length of time that has elapsed since the suspension was reviewed.

Even if the Court has jurisdiction to make such order, which is by no means clear to me, I am not satisfied that such order is appropriate. The matter will therefore be remitted to the Tribunal for disposition in accordance with these reasons.

The Minister seeks the costs of this proceeding.

The evidence that Mr. Woods sought to admit offences 5 and 6 is unchallenged, but the Minister rejected that offer. It was the vice-chairman of the Civil Aviation Tribunal who raised the issue of the Tribunal's jurisdiction.

While the Minister undoubtedly has a broader interest which necessitated the bringing of this application, in all of the circumstances in the exercise of my discretion, I do not consider it appropriate to award the costs of this proceeding against Mr. Woods. In coming to this decision, I have considered the result of this application, the settlement correspondence, and the public interest in having the proceeding litigated. Therefore, each side will bear their own costs.

ORDER

It is hereby ordered that:

1. The application for judicial review is allowed and the decision of the Appeal Panel of the Civil Aviation Tribunal dated May 30, 2001, is hereby set aside. The matter is remitted to the Civil Aviation Tribunal for disposition in accordance with these reasons.

2. No costs are awarded to either party.


Review Determination (2)


Decision: September 13, 2002

September 13, 2002

The Federal Court of Canada Trial Division, by Order dated September 3, 2002 allowed the Attorney General of Canada's application for judicial review in the above related matter. The decision of the Appeal Panel of the Civil Aviation Tribunal dated May 29, 2001 was set aside.

The Court ordered that the matter be remitted to the Civil Aviation Tribunal for disposition in accordance with its reasons.

Having heard the matter at the review level from September 25 to 29, 2000, I then concluded that Mr. Woods's pilot licence should be suspended for a period of 90 days for his admission to the offence at count 5.

Count 6 is to be dismissed as the Minister did not prove each element of the offence.

Reasons for these determinations are set out in the Review Determination dated January 5, 2001.

MR. WOODS'S LICENCE SHALL BE SUSPENDED FOR 90 DAYS COMMENCING ON THE FIFTEENTH DAY FOLLOWING SERVICE OF THE PRESENT DETERMINATION.


Appeal decision (2)


Decision: January 23, 2003

December 4, 2002
Vancouver, British Columbia

We confirm the 90 days suspension for offence number 5 being the decision of the reviewing member rendered on September 13, 2002. Mr. Woods's licence shall be suspended for 90 days commencing on the fifteenth day following service of this determination.

REASONS FOR APPEAL DETERMINATION

An appeal hearing respecting the above-noted matter was held Wednesday, December 4, 2002 at 10:00 hours at the Federal Court of Canada, in the City of Vancouver, British Columbia.

BACKGROUND

The matters herein arose following a number of successive proceedings following upon the issuance by the Minister of Transport of a Notice of Suspension dated October 1, 1999, which suspended the pilot licence of Mr. Milton James Woods for a total of 270 days for a series of alleged contraventions of the Canadian Aviation Regulations made pursuant to the Aeronautics Act. Following a review hearing on September 25 to 29, 2000 of the matters hereinbefore alluded to, Tribunal Vice-Chairperson Allister Ogilvie made findings on the eight alleged offences. Relevant to this proceeding are the findings on offences numbered 5 and 6 which were as follows:

"Offences 5 and 6: For the reasons which I have endeavoured to express I find that the Civil Aviation Tribunal does not have jurisdiction to hear these offences. Should I have been in error in coming to that conclusion I would have imposed the 90-day suspension for the admission at Offence 5. Offence 6 would have been dismissed."

The Minister of Transport appealed these two findings to the Appeal Panel of the Civil Aviation Tribunal which heard the matter in April 2001. The Attorney General of Canada brought application to the Trial Division of the Federal Court of Canada from the May 29, 2001 decision of the Appeal Panel of the Civil Aviation Tribunal, which upheld the Review Determination of the Tribunal that it does not have jurisdiction to review matters alleged to be contrary to section 7.3 of the Aeronautics Act.

The Federal Court allowed the application for judicial review and ordered that:

"[...] the decision of the Appeal Panel of the Civil Aviation Tribunal dated May [29], 2001, is hereby set aside. The matter is remitted to the Civil Aviation Tribunal for disposition in accordance with these reasons."

By document entitled "Reconsideration of Review Determination" dated September 13, 2002, the reviewing member of the Tribunal reiterated his earlier findings regarding counts 5 and 6 in the following words:

"Having heard the matter at the review level from September 25 to 29, 2000, I then concluded that Mr. Woods's pilot licence should be suspended for a period of 90 days for his admission to the offence at count 5.

Count 6 is to be dismissed as the Minister did not prove each element of the offence."

GROUNDS FOR APPEAL

Counsel for Mr. Woods appealed the determination of Mr. Ogilvie dated September 13, 2002 on the following grounds:

"1. The only reason for this matter to be remitted to the Civil Aviation Tribunal was to afford Mr. Woods the opportunity to raise the issues in relation to penalty that were raised before the Federal Court of Canada, but were considered beyond the jurisdiction of that Court to consider.

2. The Member breached the rules of Natural Justice in rendering a decision without hearing from the parties, without notice to the parties, and without affording an opportunity for Mr. Woods to address the issues raised before the Federal Court of Canada which are detailed at paragraph 3 below.

3. The Member erred in fact and law in failing to consider the following facts and issues which were before the Federal Court of Canada, both in the Respondent's submissions and the Affidavit of Pearl Pinili sworn October 16th, 2001 which was included in the Respondent's Record, as follows:

i. that Mr. Woods had offered to admit the offences in question prior to the original hearing. The relevant portions of the correspondence from Mr. Stewart – counsel to Mr. Woods which was sent to Mr. Haig – Counsel for the Minister – dated September 22nd, 2000 – are repeated below:

I confirm at this time that for the purposes of resolving this matter without having to proceed with the hearing and the attending costs which Mr. Woods will bear – he would be prepared to admit offences 1, 2, 3, 4, 5, and 6.

In terms of a suspension we can either agree to 9 months now or we can proceed with the hearing with an admission to offences 1, 2, 3, 4, 5, and 6 and have the length of suspension determined by the Tribunal with the upper range limited to 11 months.

Flowing from our discussion last night, I confirm at this time that if Mr. Woods is forced to proceed with a hearing we will make an application for costs. At such time we will rely on this correspondence confirming this offer and our earlier discussions regarding settlement as a form of Calderbank letter.

As you know it is our position that while Mr. Woods has a defence to all but two of these offences – he alone faces the considerable legal costs of funding this application – a burden your client does not share. There must be consequences to your client if it refuses to accept a resolution of this matter on what we submit are more than reasonable terms.

ii. Despite his offer to admit every offence but Offence 8, Mr. Woods has been forced to bear the costs of his original hearing before the Civil Aviation Tribunal, the appeal to the Civil Aviation Tribunal Appeal Panel, and the appeal to the Federal Court of Canada. These costs in themselves constitute an onerous and unfair punishment in the circumstances.

iii. that Mr. Woods has already served the first 30 days of his suspension prior to the time which has passed as a result of the Minister's two appeals;

4. As a result, the penalty imposed in the circumstances is unfair, unfit, and constitutes a marked departure from the law.

5. Had Mr. Woods been afforded an opportunity to be heard when the matter was remitted to the Civil Aviation Tribunal, it was his intention to make an application for costs of the original proceeding."

At the outset of the proceeding, Counsel for Mr. Woods was advised that the record in these proceedings for the purposes of the appeal pursuant to section 7.2 of the Aeronautics Act consisted of the Review Determination of Mr. Ogilvie dated January 5, 2001, the decision of the Federal Court, Trial Division, dated September 3, 2002, the Reconsideration of Review Determination dated September 13, 2002 and the Notice of Appeal filed by Mr. Woods' counsel. The Chair of the Appeal Panel indicated that the Tribunal file has no record of the Federal Court proceedings other than the decision rendered on September 3, 2002.

THE APPELLANT'S SUBMISSIONS

The Appellant's counsel indicated that he was not contending that Mr. Ogilvie's determination was wrong on the material he had before him. He was aware that by reason of subsection 37(7) of the Aeronautics Act, the Tribunal had no jurisdiction as to the award of costs. He felt that Mr. Woods had already served a penalty of 30 days levied in respect of one of the other offences and it would be unfair to have him serve the 90 days of suspension now. He argued that by forcing Mr. Woods to proceed to the Federal Court resulted in a penalty and that costs should be repaid to him. He further stated that penalties should not start and stop, but should be continuous. It interferes with the work of the commercial pilot.

He submitted that Mr. Woods should be relieved as he agreed to plead guilty to number 5, i.e., numbers 1 to 6. He never disputed facts of the offence. It was inappropriate to involve Mr. Woods in the appeals. The costs and uncertainty and stress amount to a considerable penalty and that 90 days suspension now is excessive. He further argued that Mr. Ogilvie should have heard arguments on these issues before rendering his determination of September 13, 2002.

He then argued that notwithstanding that the Tribunal cannot make an order as to costs, it should make an order to avoid the penalty. In the worst case scenario, Mr. Woods faced penalties of 11 months. He agreed to 9 months and up to 11 months if the Tribunal said so. In the end result, he will admit numbers 1 to 6 and make himself available for 11 months suspension. Mr. Ogilvie made a determination of 30 days and 90 days which is 4 months. The whole issue stopping settlement was number 8, and the outcome was that notwithstanding experts called by the Minister for the proof of number 8, it was in fact dismissed.

THE MINISTER'S SUBMISSIONS

The Minister submits that civil aviation is governed by a licensing regime and a person operating in the system must have a licence to do so. If someone wants to participate, they know the legislation and the qualifications they must meet. Transport Canada is mandated to deal with persons in accordance with the Aeronautics Act. Transport Canada can do one of several things - suspension, cancellation or assessment of a monetary penalty. That is not the end, persons have recourse to the Tribunal. The Minister is not being abusive when they choose to follow the process. When the Minister is wrong, the Tribunal will review that. Settlement discussions took place, but at the end of the day the Minister said "see you in court." As a result, the Tribunal found that the Minister had not proved the offence in many of the cases. Mr. Woods would have been happy to take the 9 months' suspension as he was an American resident and he flew in the United States and the Department of Transport did not affect his pilot licence in the United States. While counsel for Mr. Woods states that the only reason to go back to the Tribunal from the Federal Court was to raise issues in relation to the penalty, this is not the case. The Federal Court said the issue was jurisdiction and when that Court said to remit the matter to the Tribunal for disposition in relation to this case, it spoke only of the issue of jurisdiction that the Civil Aviation Tribunal had jurisdiction. Mr. Ogilvie in his reconsideration deals with the jurisdiction question and he confirms his former determination. He confirms that 90 days suspension.

Mr. Hector on behalf of the Minister stated that counsel for Mr. Woods said that he had no reason to dispute the 90 days as all discussions arise after that. He takes issue with the requirement of Mr. Woods to appear at the Federal Court. The Minister states that it had to appeal to the Federal Court because it was an issue that had to be resolved. Mr. Stewart on Mr. Wood's behalf provided assistance to the Appeal Panel and to the court but he was not required to be there.

Hence the Minister argues that what occurred after the decision is irrelevant and the 90 days suspension is imposed in relation to the offence and that Mr. Woods was aware of the 90 days suspension which was requested by the Minister and that if Mr. Woods admitted the offence then the 90 days suspension was what he should bear.

Regarding costs, the Minister states that the Federal Court which had the ability to award costs ordered that each side bear their own costs. The Minister in this case was in no way abusive. The Minister has an onerous duty and tries to exercise this duty and is sometimes wrong but that does not mean that it is abusive or acting in a way that is not conducive to its mandate. Finally, the issue of jurisdiction was not raised by the Minister but rather by the Tribunal Member and it had to be appealed by the Minister but Mr. Woods did not have to go to the court.

In reply, Mr. Stewart, Counsel for Mr. Woods, stated that his client was flying in Las Vegas in the United States because he got a job there. He further reiterated that the Minister cannot say we will see you in court when Mr. Woods would have agreed to a suspension of 11 months. To this line of argument the Minister countered that he was entitled to proceed on offence number 8 alone without reference to the others.

DISCUSSION

The Appellant was not appealing the 90 days suspension but the fact that he did not get a further chance to address it given the statements made in the Federal Court.

It is appropriate at this juncture to include the wording of the Federal Court's conclusion in this regard:

"[41] The decision of the Appeal Panel of the Civil Aviation Tribunal dated May [29], 2001, is set aside. In that circumstance, Mr. Woods sought an order that the Tribunal be directed not to impose the suspension ordered with respect to offence 5. This was said to be appropriate in view of the length of time that has elapsed since the suspension was reviewed.

[42] Even if the Court has jurisdiction to make such order, which is by no means clear to me, I am not satisfied that such order is appropriate. The matter will therefore be remitted to the Tribunal for disposition in accordance with these reasons."

The Appellant agreed to a 9-month suspension but settlement talks failed, the Minister held out on offence number 8. At the hearing, offence number 8 was dismissed, and the 30 days suspension was served and after protracted proceedings, there is a remaining suspension of 90 days to be served now by reason of the stay of this suspension pending the determination of the issue of jurisdiction of the Tribunal in relation to contraventions of subsection 7.3(1) of the Act.

The Appellant's counsel suggests that the issue is fairness to Mr. Woods, and the Tribunal should relieve him of the suspension at this late date.

It is the view of the Appeal Panel that the issue before it is whether the 90 days suspension is appropriate for the finding of contravention of paragraph 7.3(1)(c) of the Aeronautics Act:

"[making] a false entry in a record required to be kept with intent to mislead, namely that you operated aircraft Cessna Citation 550 aircraft, serial #550-0100, bearing Canadian registration marks C-GNWM with only one pilot and then entered a name of a pilot in the journey log book when that pilot had not acted as a crew member."

The Appellant admitted the elements of the alleged offence at the review hearing. At this appeal hearing, counsel for the Appellant did not assert that the penalty is excessive on the given facts. Hence, in the circumstances we are not moved to give relief from the 90 days suspension from a deterrence viewpoint nor were we asked to do so.

From the aspect of fairness, we are not moved to alter the penalty to provide some relief in the way of costs. We are not empowered to award costs per subsection 37(7) of the Aeronautics Act and in any event, since costs usually follow the event of success, even if the Tribunal had power to award costs, it would not be appropriate to award costs to the losing party despite the protracted proceedings.

CONCLUSION

Accordingly, we confirm the 90 days suspension for offence number 5 being the decision of the reviewing member rendered on September 13, 2002.