Decisions

CAT File No. P-2613-33
MoT File No. EMS 046721

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Ronn Palley, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)a)

Witness Credibility, Preliminary Motion, Low Flying, Helicopter, Defense of Officially Induced Error, Defense of Due Diligence, Built-up Area


Review Determination
Sandra Lloyd


Decision: April 15, 2003

The Respondent Mr. Palley admitted the factual elements constituting the offence alleged by the Minister. However, I find that the Respondent has proved, on a balance of probabilities, the due diligence or officially induced error defence. Therefore, the allegation is dismissed and the sanction cancelled.

A review hearing on the above matter was held Friday, January 17, 2003 at 10:00 hours at the Robson Square, in Vancouver, British Columbia.

BACKGROUND

The Minister alleged that the Respondent Ronn Palley violated paragraph 602.14(2)(a) of the Canadian Aviation Regulations (CARs) in that he operated a helicopter over a built-up area at an altitude that was lower than 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft. The Respondent admitted the factual elements underlying the offence. However, he raised two defences: due diligence, and officially-induced error.

THE LAW

Sections 602.14 and 602.15 of the CARs:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

(b) 2,000 feet from an aircraft other than a helicopter or balloon. [subsection repealed 2003-03-01]

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

602.15 (1) A person may operate an aircraft at altitudes and distances less than those specified in subsection 602.14(2) where the aircraft is operated at altitudes and distances that are no less than necessary for the purposes of the operation in which the aircraft is engaged, the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated

(a) for the purpose of a police operation that is conducted in the service of a police authority;

(b) for the purpose of saving human life;

(c) for fire-fighting or air ambulance operations;

(d) for the purpose of the administration of the Fisheries Act or the Coastal Fisheries Protection Act;

(e) for the purpose of the administration of the national or provincial parks; or

(f) for the purpose of flight inspection.

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

(a) paragraph 602.14(2)(a), where operation of the aircraft is authorized under Subpart 3 or section 702.22; or

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,

(ii) aerial photography conducted by the holder of an air operator certificate,

(iii) helicopter external load operations, or

(iv) flight training conducted by or under the supervision of a qualified flight instructor.

Section 702.22 of the CARs:

702.22 (1) For the purposes of subsection 602.13(1), a person may conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town at a place other than an airport or a military aerodrome, if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and

(b) complies with the Commercial Air Service Standards.

(2) For the purposes of paragraph 602.15(2)(a), a person may operate an aircraft over a built-up area at altitudes and distances less than those specified in paragraph 602.14(2)(a), if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and

(b) complies with the Commercial Air Service Standards.

(3) For the purposes of subsection 602.16(2), a person may operate a helicopter that is carrying a helicopter Class B, C or D external load over a built-up area or in an aerial work zone, if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and

(b) complies with the Commercial Air Service Standards.

Section 37 of the Aeronautics Act:

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

[...]

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

[...]

Section 8.5 of the Aeronautics Act:

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.

Brief of Authorities submitted by Counsel for the Respondent:

R. v. City of Sault Ste. Marie (1978), 85 D.L.R. (3d) 161 (S.C.C.).

R. v. Muise [2000] N.B.J. No. 229 (N.B.Q.B.).

R. v. Cancoil Thermal Corporation and Parkinson (1986), 27 C.C.C. (3d) 295 (Ont.C.A.).

R. v. Jorgenson (1995), 129 D.L.R. (4th) 510 (S.C.C.).

R. v. Beler [1997] B.C.J. No. 3067 (B.C. Prov. Ct.).

MOTION

Mr. Harris, counsel for the Respondent, requested that certain proposed Minister witnesses not be heard, as their evidence related only to the facts underlying the offence, which facts were already admitted by the Respondent. Mr. Harris also requested that he be permitted to call his witnesses first, as the facts had been admitted and the onus was now on the Respondent to prove one or more defences. After hearing both parties' arguments on this issue, I ruled that in the interest of expediting the hearing, in a fair manner, pursuant to subsection 37(1) of the Aeronautics Act, I would hear only those witnesses who could give evidence that was relevant to the defences raised by the Respondent. The Respondent had already admitted to the essential facts underlying the alleged offence so it would have been redundant to hear further evidence as to those facts.

EVIDENCE

The Respondent Mr. Palley gave evidence that he has been employed by Talon Helicopters ("Talon") for almost three years and has been flying for 13 years. He holds an airline transport pilot licence for helicopters and a commercial pilot licence—aeroplane [fixed-wing]. Talon is a general helicopter charter business that does work such as search and rescue, films, Telus jobs and firefighting. Currently Mr. Palley is chief pilot for Talon, although he attained this position only recently.

Mr. Palley stated his opinion that the CARs are not straightforward but are lengthy and confusing. He said if he needs help with interpreting the CARs, he will call Transport Canada Commercial and Business Aviation, for clarification. He said this is standard procedure. He explained that an individual from Transport Canada called an OPI is assigned to every commercial operator. Mr. Steve Crehgh is the OPI for Talon. Mr. Palley explained that he would call his OPI, or someone else from Transport Canada if his OPI was unavailable, if he needed a permit or needed to know which CARs applied to a specific job. For example, for film work, they would get low flying permits. Where permits were required, Talon would pass the cost of such permits on to its customer.

Mr. Palley testified that he has never done work without a permit when Transport Canada told him one was necessary.

The flying that Mr. Palley was doing over New Westminster on April 4, 2002 was for a Talon customer called Terra Remote Sensing ("Terra"). The job involved inspecting hydro lines from the Lower Mainland to Boston Bar. Mr. Palley testified that he discussed this potential job with his boss when Terra first inquired about hiring Talon for the work. His boss told him to call Transport Canada. Mr. Palley called his OPI but he was unavailable at the time. He then called another Transport Canada inspector, Mr. Jerry Cutler. Mr. Palley said he explained the job to Mr. Cutler. He said Mr. Cutler directed him to paragraph 602.15(2)(b) of the CARs and it was determined that Mr. Palley did not need a permit for the Terra job. Mr. Palley testified that Mr. Cutler stated that he did not need a permit because of the nature of the job, that is, an aerial inspection.

Mr. Palley said he then looked up the CARs on the Transport Canada Web site and read subparagraphs 602.15(2)(b)(i) and (ii) of the CARs. He said they appeared to be correct and applicable to his situation (that is, to the Terra job). Consequently he followed Mr. Cutler's advice.

Mr. Palley said he did not speak to anyone else at Transport Canada before April 2002 about this work.

Mr. Palley testified that Mr. Cutler administered and marked his written chief pilot exam, in March 2002. At that time Mr. Palley talked generally to Mr. Cutler about the CARs.

Mr. Palley said he admitted the facts underlying the low flying allegation. He said he stopped the work when contacted by Transport Canada officials. After that, he spoke to other Transport Canada inspectors about the regulations and discovered that paragraph 602.15(2)(b) did not apply to his situation.

Under cross-examination, Mr. Palley admitted that he attained knowledge of the CARs from ground school training, although he said much of his ground school was self-taught. He admitted there were questions about the CARs on his exams but stated that the questions tended to be general and did not involve breaking down regulations. He agreed that being a chief pilot entailed knowledge of the CARs, at least being able to look them up. He said he understood paragraph 602.15(2)(b) of the CARs and it was straightforward. He said he had done low flying for pipeline patrols before the Terra job, but that job was the first he had done that involved an urban area. He reiterated that he had called Transport Canada about the job in January 2002 but said he could not find his notes of the conversation with Mr. Cutler. He could not specifically recall any conversation with his OPI between January and April 2002. He agreed that the Terra job included work outside the city, over areas that were not built-up.

Under re-examination, Mr. Palley stated that he did not ask Mr. Crehgh about the Terra job until after April 4, 2002. Mr. Palley stated that he relied on the advice of Mr. Cutler with respect to the application of the CARs to the Terra job, and that he usually relied on Transport Canada for that kind of advice. He said he certainly would have applied for a permit if Mr. Cutler had said one was required — he had no reason not to apply for one.

Counsel for the Respondent next called Mr. Steve Crehgh. Prior to his employment with Transport Canada, Mr. Crehgh flew helicopters commercially and was a Vancouver police officer. He was testifying under summons. Mr. Crehgh testified that he is currently principal operations inspector ("POI") for Talon. He said if Talon was going to have involvement with Transport Canada, such as for inspections or check rides, it was usually through him. He has had various training courses about the Aeronautics Act and the CARs. His opinion was that the CARs are not necessarily straightforward but are complex. He said officials at Transport Canada sometimes disagree on the application of the regulations. He said he is often contacted by aeronautics companies for assistance in interpreting the regulations, that it was standard practice for most companies to contact him so, and that most companies in the Pacific Region have POIs. He explained his view that the CARs with respect to low level flying are complicated, in that the regulations refer to other subsets of regulations, then those refer to other subsections, so that one must follow a chain to get the correct interpretation of the regulations. He said he regularly deals with nine aeronautics companies. He regularly gets questions from them regarding the application of the regulations and expects that those companies will follow his advice concerning the CARs. He also said that Ronn Palley asks him questions about getting permits sometimes and that Mr. Palley calls him before doing the relevant work. Mr. Crehgh's evidence was that he had never had difficulty with Mr. Palley getting a permit when it was required, and that Talon and Mr. Palley usually follow his advice. He said that Talon has always been a good company to work with and they follow his suggestions. He was not aware of the steps Mr. Palley took with respect to the Terra job until after April 4, 2002. His opinion was that it is reasonable for an operator to rely on Transport Canada's advice with respect to the CARs.

Under cross-examination, Mr. Crehgh added that he had been Talon's POI for three years. He said he is familiar with paragraph 602.14(2)(a) of the CARs. He said it is complicated in its references and that a person could get confused when reading it. He said many people find it confusing, and he gets lots of inquiries about those sections.

The Minister called as its first witness Mr. Bailey. He has been with Transport Canada since June 1999 and has been a civil aviation inspector with Transport Canada Enforcement since April 2002. He is an experienced pilot, instructor and check pilot. He said he had instructed pilots on the CARs as part of ground school courses. He said he was familiar with paragraph 602.14(2)(a) of the CARs. He said low flying and the ability to land in case of an engine failure is something discussed from a pilot's first flying lessons. He said students are tested on the regulations on all licence exams and said that pilots should know the CARs. He gave a detailed opinion on his interpretation of paragraphs 602.15(2)(a) and 602.14(2)(a) of the CARs. His opinion is that paragraph 602.14(2)(a) is not complicated but is clear: one does not fly low over a built-up area unless one has a place to land. Mr. Bailey also gave evidence that Transport Canada inspectors are trained that if they are asked questions about the CARs, they must read the CARs word for word. Mr. Bailey's evidence was that sections 602.14 and 602.15 are taught to all pilots: if one has an engine failure, one must have a place to land. Mr. Bailey further said he has been a POI and that in a year and a half he got three calls with questions about the CARs, from private helicopter operators. However, he admitted it is reasonable for a company to ask Transport Canada if they need a permit or authorization and reasonable for an operator to follow Transport Canada's advice. Mr. Bailey explained that the words "flight inspection" contained in section 602.15 are defined in section 101.01 of the CARs. He said he always looks for definitions in other parts of the CARs when reading CARs sections, and assumes any chief pilot would do the same. He added that if he was unsure about a word he would go to the definition section. He noted that there is more than one definition section in the CARs.

The Minister's second witness was Mr. Henk van Erkelens. He is Transport Canada's superintendent for Rotary Wing Operations for the Pacific Region and an experienced helicopter pilot. He said he is usually responsible for issuing the authority for helicopters to do low flying over built-up areas. He has on occasion issued such permits to Talon. He said he is also familiar with paragraph 602.14(2)(a) of the CARs. He said it requires reading a few times if one is new to that regulation. He said permits are required under paragraph 602.15(2)(a). He said paragraph 602.15(2)(b) refers to non-built-up areas. He said some areas between New Westminster and Boston Bar are built-up and some are not. His opinion is that paragraph 602.14(2)(a) is not difficult to deal with and that the regulations are very straightforward. He said if a pilot has questions about the meaning of words in the CARs, there are references to look up. He said it may not be common for all pilots to do this but one would expect it to be. He said if a permit had been applied for in this case it would not have been given.

Under cross-examination, Mr. van Erkelens admitted it was reasonable for a pilot to ask for and follow the advice of Transport Canada with respect to the CARs and the Aeronautics Act. He answered a number of questions about his interpretation of Part VII of the CARs and sections 702.22, 602.14, 602.15 and 101.01. He said section 602.15 modifies the restrictions in section 602.14. He thought it would be wise for a pilot to find out which terms used in section 602.15 are defined elsewhere. He admitted, however, that some of those terms are fairly broad on their face.

The Minister also called witness Mr. Jerry Cutler. He is a civil aviation inspector for Transport Canada and an experienced helicopter pilot. He said he is familiar with paragraph 602.14(2)(a) of the CARs and does not find it misleading. His evidence was that he had never spoken to Ronn Palley about low flying over New Westminster, that is, about this particular case, although he had talked to him in general terms about low flying. He said he did not tell Mr. Palley that the flying done by Mr. Palley, as described in the allegation, could be done without authorization.

Under cross-examination, Mr. Cutler admitted he had had an inquiry from Mr. Palley about a power line patrol job and that in response to Mr. Palley's inquiries he gave the same answer he gives 100 times per year: that whether or not a permit is required depends on where the flight takes place. He said different airspace has different requirements. He said he could not remember exactly when the conversation with Mr. Palley took place. He recalled discussing low flying with Mr. Palley on two occasions. He said one was when he did a chief pilot interview with Mr. Palley prior to January 2002. He also recalled a telephone conversation with Mr. Palley about the power line job and said that he told Mr. Palley that the requirement for a permit depended on where the job took place. He said he told Mr. Palley that if he was not sure, he should talk to his POI, and if he was still unsure, he should talk to Henk van Erkelens. When it was put to him that the chief pilot interview with Mr. Palley took place in March 2002, not prior to January 2002 as he had first said, he said it could have been. He recalled discussing flying below 1,000 feet with Mr. Palley on two occasions, and recalled discussing the difference between built-up and non-built-up areas. He agreed that part of his Transport Canada role is to assist pilots and operators in interpreting the CARs. He agreed that the CARs are complex and that Transport Canada officials sometimes disagree on the application of the CARs. He said that in such a case, however, they request and receive guidance from Ottawa on the interpretation. He said they are actually quite limited in how they can interpret the CARs. When asked if he specifically recalled the telephone conversation with Mr. Palley, Mr. Cutler's evidence was that he normally limits his answers about Subpart 7 as follows: there are two vehicles whereby one can fly below 1,000 feet: one is given in the operator's operations specifications and the other is a permit given by Henk van Erkelens. He admitted, however, that occasionally if someone asks how Part VI applies, he will answer. He said he believed he did specifically discuss Part VI with Mr. Palley and agreed that sections 602.14 and 602.15 of the CARs are contained in Part VI. However, Mr. Cutler said that if a person raises the issue of Part VI it is incumbent upon them to obey Part VII and everything below it. He said he could not specifically remember saying that to Mr. Palley but said he could not imagine why he would not have. He further admitted that he did not recall specifics of his discussion with Mr. Palley about section 602.15 of the CARs. However, he thought they had discussed how other operators can do this kind of work, for example, a private operator. However, he said he could not guarantee they had discussed this. Mr. Cutler said Part VII applies to all commercial operators, not to private operators, and that he recalled talking to Mr. Palley about Part VII and Part VI. Mr. Cutler said he could not specifically recall talking to Mr. Palley about section 602.15. However, when it was put to him that he talked to Mr. Palley about section 602.15 and told Mr. Palley that he did not need a permit because of paragraph 602.15(2)(b) of the CARs, Mr. Cutler said he absolutely did not. Under re-examination, Mr. Cutler added that he has pretty clear guidance from Ottawa about how to interpret section 602.15.

SUBMISSIONS

Mr. Harris stated Mr. Palley's concern that if he was found to be in violation of the CARs as alleged, he would have a violation record for two years, which he did not want. Mr. Harris raised two defences: due diligence, as described in section 8.5 of the Aeronautics Act; and officially induced error.

Mr. Harris summarized Mr. Palley's evidence as it related to the due diligence defence. He submitted that Mr. Palley's evidence about the telephone conversation was not challenged in cross-examination. Mr. Harris also summarized the relevant evidence of the other witnesses. He submitted that the relevant CARs are confusing and that although some of the witnesses thought otherwise, in fact their testimony showed that the CARs are confusing. Mr. Harris submitted that the evidence clearly established that the CARs are unclear, confusing and complex.

Mr. Harris also submitted that the evidence of Mr. Cutler was confused, inconsistent and conflicting. He pointed out that under direct examination, Mr. Cutler said he only talked to Mr. Palley about the Terra job in general terms. However, under cross-examination, Mr. Harris said that Mr. Cutler got more specific but then was mixed up about when he talked to Mr. Palley by telephone and when he had a general discussion with Mr. Palley in person. He also pointed out that Mr. Cutler could not specifically recall a section 602.15 discussion with Mr. Palley, although Mr. Palley could recall such a discussion. Mr. Harris submitted that if the trier of fact is faced with one witness with a specific recollection, such as Mr. Palley, and another witness with a less specific recollection, then the trier must prefer the evidence of the more specific witness.

Mr. Harris also said there was no reason that Mr. Palley would not have got a permit if Mr. Cutler had told him he needed a permit. Mr. Harris said that the only reasonable interpretation of the evidence was that Mr. Palley got off the phone with Mr. Cutler and thought he did not need a permit. He said that Mr. Palley reasonably relied on what Mr. Cutler said about the CARs: in Mr. Harris' view, upon reading of section 602.15, the interpretation understood by Mr. Palley following the conversation appears on its face to be reasonable.

In summary, Mr. Harris submitted that it was reasonable for Mr. Palley to call Transport Canada to see if he needed a permit; that Transport Canada told him no permit was required; and it was reasonable for Mr. Palley to follow that advice and therefore not apply for a permit.

Mr. Harris also raised officially induced error as an alternate defence. He submitted that Mr. Palley's error was one of mixed law and fact. The error of law was whether or not the regulation applied; the error of fact was that Mr. Palley took certain factual steps (failed to apply for a permit) because he was told that a permit was not necessary. Mr. Harris submitted that the advice given by Mr. Cutler, as described by Mr. Palley, was on its face reasonable and submitted that the case is on all fours with Lamer J.'s leading judgment on the defence of officially induced error in the case of R. v. Jorgenson.

Mr. Phillips on behalf of the Minister of Transport pointed out that Mr. Palley is a chief pilot and as such assumes certain responsibilities and is knowledgeable and experienced. Transport Canada approval for someone to be a chief pilot is not easily given. He submitted that as chief pilot Mr. Palley should have known if he asked for a permit to do the flying as described in the allegation, he would not have received such permission. Mr. Phillips pointed out Mr. Cutler's evidence that he did not give permission for Mr. Palley to fly over a built-up area. Further, he said in order for a document holder to succeed in a defence of officially induced error, he must prove on a balance of probabilities that he relied on an official's advice and that the reliance was reasonable. He submitted that what is reasonable depends on several factors, including whether efforts were made to ascertain the proper law; whether the law is complex or obscure; and the definitiveness and reasonableness of the advice given. Mr. Phillips pointed out that Mr. Harris is not a pilot and would not have received the training and testing that Mr. Palley would have received with respect to the CARs. He said that it is incumbent on a pilot to understand the regulations, particularly one who is a chief pilot. He questioned whether the distinction between built-up and non-built-up areas was clear to Mr. Palley from the conversation, and pointed out that most of the job would have been legal but that it carried into a built-up area. He suggested that if Mr. Cutler had given permission for a pilot to fly in a built-up area, a prudent pilot would clarify that permission, and pointed out that Mr. Palley had four months to clarify the advice allegedly given. He also pointed out that Mr. Palley said in cross-examination that he was clear on the regulation.

In reply Mr. Harris submitted that there was no doubt, on the evidence, that Mr. Palley was told by Mr. Cutler that he did not need a permit. He said the evidence showed that it was reasonable for Mr. Palley to ask for advice in this matter and that it was reasonable for him to rely on such advice. He submitted that the evidence fulfills the requirements of a due diligence defence. He pointed out that only two witnesses thought the regulation was clear and that Mr. Cutler and Mr. Crehgh both thought the regulation was complex. He pointed out that there was no evidence before the tribunal as to when Mr. Palley became a chief pilot, that is, as to whether he was a chief pilot in April 2002. The only evidence on this point was that Mr. Palley took the exam in March.

SANCTION

Mr. Phillips submitted that the $250 fine was the appropriate penalty as Transport Canada's Aviation Enforcement Procedures Manual suggested that amount for a first offence. Mr. Harris argued that there should be no penalty in the circumstances and the alleged violation should not appear on Mr. Palley's record, that is, there should be the equivalent of an absolute discharge.

DISCUSSION/FINDINGS

Section 8.5 of the Aeronautics Act provides that:

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

In addition to the due diligence defence, counsel for the Respondent argued that the defence of officially induced error applies in this case. Mr. Harris provided a number of authorities relevant to these two defences, listed above under "THE LAW".

I found comments made by the N.B.Q.B. in R. v. Muise to be of interest. That court was of the opinion that due diligence in that case would have consisted of the accused calling a ranger's office to make an inquiry as to whether he needed a permit to do certain acts which constituted an offence under the Fish and Wildlife Act of New Brunswick. The elements of the defence of officially induced error are found in the case of R. v. Cancoil Thermal Corporation and Parkinson at page 8, and were referred to by Mr. Phillips in his submissions: an accused must show that he relied on the erroneous legal opinion of the official and his reliance must be reasonable; and the reasonableness will depend on several factors, including the efforts the accused made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.

Also in R. v. Cancoil at page 8, the Ontario Court of Appeal recognized that the defence of officially induced error may at times overlap with the defence of due diligence.

I conclude that Mr. Palley can make out either a defence of due diligence, or a defence of officially induced error, if the evidence proves the following on a balance of probabilities: that he received advice from a Transport Canada official that he did not need a permit to undertake the Terra job, that he relied on such advice in deciding not to apply for a permit before undertaking the flying described in the allegation, and that such reliance was reasonable in the circumstances.

The first issue I must therefore determine is whether or not Mr. Palley received advice from Transport Canada that he did not need a permit to do the Terra job. The evidence of Mr. Palley and Mr. Cutler on this point is outlined above in detail and is conflicting.

In Mr. Palley's favour, his recollection of his January 2002 conversation with Mr. Cutler is more specific and definite than Mr. Cutler's recollection of that conversation. This is not surprising, as Mr. Cutler's evidence was that he has something like 100 such conversations per year. Further, Mr. Palley's evidence was that there was no reason he would not have applied for a permit if he did need one. Mr. Crehgh testified that he had never had a problem with Mr. Palley getting a permit when one was required and that Talon and Mr. Palley were good to work with and usually followed his advice and suggestions.

On the other hand, when it was put to Mr. Cutler that he told Mr. Palley that he did not need a permit because of paragraph 602.15(2)(b), he said he absolutely did not.

Mr. Palley said he had made notes of the conversation between Mr. Cutler and him, but he had lost them. There was no evidence that Mr. Cutler had taken notes of their conversation, which may have been helpful.

Both these witnesses were sworn or affirmed and from my observations alone gave me no reason to believe they were not credible individuals.

However, I find in the circumstances I must favour the evidence of Mr. Palley, for the following reasons: his recollection was more specific; he believed he had no reason not to apply for a permit; and he has a good prior reputation with Transport Canada in these matters. Further, although there was some evidence from Mr. Cutler as to his standard practice in answering questions about the CARs, I find the evidence as to his standard practice insufficiently detailed to find, in the face of Mr. Palley's evidence about their conversation (that was largely unchallenged on cross-examination), that Mr. Cutler could be certain that he did not give the advice that Mr. Palley said he received.

Mr. Palley's evidence is clear that he relied on Mr. Cutler's advice when he chose not to apply for a permit before undertaking the flying described in the allegation. I believe that evidence, although it seems there was a misunderstanding about whether built-up areas were involved. Was that reliance reasonable? Witnesses gave conflicting views as to whether or not the relevant CARs are complex and confusing, or clear and straightforward. Having heard these conflicting views and much testimony as to how to interpret various sections of the CARs, and having reviewed the relevant sections, I have no difficulty in coming to the conclusion that the relevant CARs can be confusing and complex. Further, my view is that the standard of knowledge of regulatory experts, such as the Transport Canada witnesses Mr. Bailey and Mr. van Erkelens, is not fairly the standard of knowledge by which a reasonable commercial pilot's knowledge should be measured. Those witnesses ought to know - and indeed appeared to know - much more about the interpretation of the CARs than I would expect a reasonably competent commercial pilot to know. In fact, much evidence showed that it is part of their job to advise pilots and operators on CARs interpretations. The evidence also showed that it is reasonable for commercial pilots and operators to rely on their advice in such matters. Perhaps a chief pilot should be measured by a higher standard than other pilots, but there was no evidence that Mr. Palley was a chief pilot in April 2002, although he is now. Further, I conclude that even chief pilots would be expected to know less than Transport Canada officials about the CARs, since the evidence showed that it was reasonable for operators, not just pilots, to rely on Transport Canada for regulatory advice.

I am also unable to conclude on the evidence that Mr. Palley ought to have known that he would not have received a permit if he had applied for one. There was no evidence led as to the characteristics of the helicopter involved, that would have necessarily made it ineligible for a permit in the circumstances. Further, Mr. Palley's evidence was that he discussed this job with his boss before calling Mr. Cutler, and reported back to his boss that Transport Canada said he did not need a permit. I infer from this that Mr. Palley's boss also thought the advice reasonable. In addition, Mr. Palley reviewed the CARs after speaking with Mr. Cutler, and it appeared to him that Mr. Cutler's advice about not needing a permit was correct. Although it may have been obvious to Mr. van Erkelens that no permit would have been granted in this case, I find on the evidence that Mr. Palley reasonably believed the advice he thought he got from Mr. Cutler, that he did not need a permit to do the flying described in the allegation.

In summary, having considered all the evidence, the submissions of both the parties, the relevant CARs, and the authorities to which Mr. Harris referred me, I have come to the conclusion that Mr. Palley has proved, on a balance of probabilities, either a due diligence or the officially induced error defence. Mr. Palley took the steps a reasonable pilot would take by seeking advice from Transport Canada as to whether he needed a permit to undertake the flying described in the allegation; he received advice that he did not need a permit, although there may have been some confusion about whether built-up areas were involved; he took the further reasonable step of reviewing the CARs to confirm the advice received; and he reasonably relied on the advice in undertaking the flying described in the allegation without first obtaining a permit. He stopped the offending flying as soon as he became aware that CARs section 602.15(2)(b) did not apply to his situation.

DETERMINATION

The Respondent Mr. Palley admitted the factual elements constituting the offence alleged by the Minister. However, I find that the Respondent has proved, on a balance of probabilities, the due diligence or officially induced error defence. Therefore, the allegation is dismissed and the sanction cancelled.

Sandra K. Lloyd
Member
Civil Aviation Tribunal