Decisions

TATC File No. P-2794-37
MoT File No. EMS 47309

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

James Edgar Darwin, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 605.03, par. 605.84(1)(b) and (c) and sub. 605.86(1)


Review Determination
Allister W. Ogilvie


Decision: September 30, 2003

The Minister has proven each element of the offence relating to section 605.03 of the Canadian Aviation Regulations. Mr. Darwin has pleaded guilty to the other counts. I uphold the penalty of $2,500.00 imposed by the Minister. The payment shall be made payable to the Receiver General for Canada and received by the Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held Thursday, September 11, 2003 at 10:00 hours at the People Place Society, in Vernon, British Columbia.

BACKGROUND

On May 30, 2002, a Civil Aviation Daily Occurrence Report (CADORS) was filed at the Vernon, British Columbia airport. This report variously stated that a Stinson 108 3 aircraft had flipped over while departing Vernon or alternatively, during a landing at Vernon, the nose gear on its amphibious landing gear had collapsed causing the aircraft to overturn on the runway.

In any event the report was significant enough to come to the attention of Transport Canada. Transport Canada inspectors investigated the incident and enquired into the aircraft's maintenance history.

The ensuing investigation convinced the inspectors that certain maintenance / airworthiness deficiencies existed. Consequently the following allegations were made:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Canadian Aviation Regulation 605.03, in that on or about May 30, 2002, at or near Vernon, British Columbia, you conducted a takeoff in an aircraft registered as C-FRPJ when the flight authority was not in effect in respect of the aircraft, because the aircraft was equipped with amphibious floats of a type not approved for installation on said aircraft.

Penalty: $250.00

Canadian Aviation Regulation subsection 605.84(1)(b), in that you permitted a take-off to be conducted in an aircraft that was in your legal custody and control, when the aircraft did not meet the requirement of an airworthiness directive issued under section 593.02, to wit:

Aircraft C-FRPJ was permitted to take-off on or about May 30, 2002, at or near Vernon, British Columbia, when Airworthiness Directive CF 90-03R2 was overdue for compliance.

Penalty: $1000.00

Canadian Aviation Regulation subsection 605.84(1)(c), in that you permitted a take-off to be conducted in an aircraft that was in your legal custody and control, when the aircraft did not meet the requirements of a notice equivalent to an airworthiness directive issued by the competent authority of the foreign state that, at the time the notice was issued, was responsible for the type certification of the aircraft, engine, propeller or appliance, to wit:

Aircraft C-FRPJ was permitted to take-off on or about May 30, 2002, at or near Vernon, British Columbia, when Airworthiness Directive AD- 50-17-02 was overdue for compliance.

Penalty: $1000.00

Canadian Aviation Regulations subsection 605.86(1), in that on or about May 30, 2002, at or near Vernon, British Columbia, you permitted a take-off to be conducted in aircraft C-FRPJ, which was in your legal custody and control, when the aircraft was not maintained in accordance with a maintenance schedule that complied with the Aircraft Equipment and Maintenance Standards, specifically the following items in Appendix "C" of section 625 were overdue:

1) Item 7 - Annual Tachometer accuracy check

2) Item 9 - Annual Compass Swing

3) Item 11 - Annual Emergency Locator Transmitter (ELT) check

Penalty: $250.00

EVIDENCE

Each one of the four counts alleges that on May 30, 2002, Mr. Darwin, as the registered owner of aircraft C-FRPJ, conducted or permitted a take-off to be conducted in that aircraft when the aircraft's maintenance or airworthiness status was deficient in some manner.

The Minister provided extensive documentation to illustrate each of the alleged deficiencies such that I would have accepted each of the counts as proven. Mr. Darwin had come to the same conclusion at the end of the Minister's evidentiary presentation and conceded that he was guilty of the latter three charges, paragraphs 605.84(1)(b), 605.84(1)(c) and subsection 605.86(1) of the Canadian Aviation Regulations (CARs). However he still wished to contest the first charge, section 605.03.

Evidence — 605.03

The charge stipulates: "on or about May 30, 2002, at or near Vernon, British Columbia, you conducted a take-off in an aircraft registered as C-FRPJ when the flight authority was not in effect in respect of the aircraft, because the aircraft was equipped with amphibious floats of a type not approved for installation on said aircraft."

The time, date and location of the incident are not in question. The identity of the pilot is unknown but Mr. Darwin has been established as the registered owner, and he may be pursued under the Aeronautics Act in that capacity.

That the flight authority was not in effect was established by documentary evidence provided by the Minister's Exhibits M-5 and M-6. The aircraft specification sheet A-767 issued by the Department of Transportation of the Federal Aviation Administration (FAA) provides that the only approved floats for that aircraft were Edo Model 44-2425's. The pictorial evidence Exhibits M-7 to M-11 and the testimony of Inspector Rosa establish that the floats attached to the aircraft on the day of the incident were not Edo 2425's.

ISSUE

The outstanding issue is whether or not Mr. Darwin conducted a take-off in RPJ when the flight authority was not in effect.

Evidence of a take-off was tendered through an eyewitness, Mr. John Mitchell. He is an aircraft maintenance engineer (AME) who holds an approved maintenance organization (AMO) certificate and has his operation at the Vernon airport. As such he is interested in and knowledgeable about aircraft. He had returned home for lunch on that day. His home is located adjacent to the airport and provides a vantage point wherein he can see the entire airport. He observed a Stinson 108 fly away from the airport. He said that he took note of it because it was the only Stinson he had ever seen on amphibious landing gear. Mr. Mitchell had observed that the aircraft was blue and white. He was also able to witness the aircraft's return to the airport not too long after its departure. He observed it approach, land and subsequently flip over on its back on the runway. Mr. Mitchell called 911.

Mr. Darwin chose not to testify on his own behalf. Therefore, I have no evidence before me of his version of that day's events.

ARGUMENT

Mr. Darwin argued that a take-off was never accomplished, but rather at the time of the incident the aircraft was being subject to taxi tests. The aircraft was subjected to higher taxi speeds on the runway. It experienced a shimmy in the nose gear, which eventually broke off and the aircraft flipped over.

The Minister submits that all elements of the offence have been proven. An eyewitness attested to the fact of a take-off and the documentary evidence shows that the flight authority was not in effect.

DISCUSSION

I accept the Minister's versions of events. The sole evidence of the aircraft's movement comes from the Minister's witness, Mr. Mitchell. I accept his version of the flight sequence. His knowledge of aircraft and his unimpeded view of the flight activity leave me no doubt that he observed aircraft RPJ in flight that day. Therefore, the element of conducting a take-off has been established. For reasons stated earlier I accept that the flight authority was not in effect.

Mr. Darwin's argument is inconsistent with his plea of being guilty on the other counts. Each of those counts includes as an element, the conduct of a take-off or permission to conduct a take-off. Having said that he was guilty of these charges, he nevertheless argues that there was no take-off regarding the 605.03 charge. However, each of these charges is grounded by the same flight, ie. take-off. I must reject his argument, that the aircraft was doing a high speed taxi only, because his admission on the other charges has settled the fact of the flight and that is corroborated by the evidence of Mr. Mitchell.

HELD

The Minister has proven each element of the offence relating to section 605.03 of the CARs. Mr. Darwin has pleaded guilty to the other counts. I uphold the quantum of the fines imposed by the Minister.

Allister Ogilvie
Vice-Chairperson
Transportation Appeal Tribunal of Canada


Appeal decision
David S. Ahmed, Faye H. Smith, Herbert Lee


Decision: April 1, 2004

The appeal is dismissed and the review determination is confirmed. The payment in the amount of $2,500.00 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within fifteen days of service of this decision.

In accordance with the Notice of Hearing which was duly served, a hearing on the above matter was convened on Thursday, February 26, 2004 at 10:00 hours at the Kelowna Law Court, 1355 Water Street, Kelowna, B.C. to hear the appeal requested by James Edgar Darwin regarding the review determination of Allister Ogilvie, Vice-Chairperson of the Transportation Appeal Tribunal of Canada, on September 30, 2003.

The Respondent was represented by Mr. Neil E. Sandler. The Appellant, Mr. James Edgar Darwin, failed to appear.

A Notice of Hearing dated January 19, 2004 had been served on both parties setting out February 26, 2004 at 10:00 hours at the Kelowna Law Court, as the date, time and location of the appeal to be held at Kelowna, British Columbia. More specifically, the Chairperson's appeal book contained a copy of a document certifying that the said Notice of Hearing was personally served on Mr. James Edgar Darwin at the time and address indicated therein as signed by the person who effected service.

Upon Mr. Darwin's failure to appear, the Chairperson contacted the Tribunal Registrar who contacted Mr. Darwin on his cellular telephone and was informed that he was in Seattle, Washington and had forgotten about the appeal.

Upon being so informed, the Respondent's representative requested the opportunity to address the issue of costs on the basis that Mr. Darwin was absent and his reason was not sufficient, citing the Tribunal's authority for such award of costs being paragraph 19(1)(b) of the Transportation Appeal Tribunal of Canada Act (TATC Act). He further submitted that the Minister should be reimbursed for its expenses thrown away including costs related to travel, hotel, and preparation time, the latter being on the basis that the Federal Court has established that this is one of the grounds for costs.

The issue of the award of costs is a novel one for this Tribunal. The Civil Aviation Tribunal had no such power. The discretionary power to the Tribunal to award costs was added with the enactment of the TATC Act on June 30, 2003 establishing the Transportation Appeal Tribunal of Canada which replaced the Civil Aviation Tribunal established under Part IV of the Aeronautics Act.

Section 19 of the TATC Act reads as follows:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

In his submission, the Respondent's representative maintained that paragraph 19(1)(b) applies to the case at hand since the Act was in effect since June 2003 hence it would apply to this matter of Mr. Darwin's failure to appear. He also indicated that he would supply details of the transportation costs from Ottawa to Kelowna together with hotel expenses and other costs as requested.

The Notice of Assessment of Monetary Penalty which was sent to Mr. Darwin by the Minister to initiate this process was dated March 14, 2003, a date which is prior to June 30, 2003, the date of enactment of the TATC Act. The relevant date for payment of the monetary penalty as set out in the Notice of Assessment of Monetary Penalty was April 14, 2003. The Aeronautics Act, as it then was, provided that the Minister must, within 15 days of non-payment of the assessed penalty, notify the Tribunal of such non-payment and as the Act required, the Tribunal proceeded to schedule a review hearing.

These facts are relevant to our consideration of section 32 of the TATC Act which reads as follows:

32. (1) Proceedings relating to any matter before the former Tribunal on the coming into force of section 44, including any matter that is in the course of being heard by the former Tribunal, shall be continued by the new Tribunal.

(2) Unless the Governor in Council, by order, directs that proceedings continued under this section are to be dealt with in accordance with the provisions of this Act, the proceedings shall be dealt with and determined in accordance with the provisions of the Aeronautics Act as that Act read immediately before the coming into force of section 44.

(3) The Governor in Council may, by order, direct that proceedings in respect of any class of matter referred to in subsection (1) in respect of which no decision or order is made on the coming into force of section 44 shall be discontinued or continued by the new Tribunal, as the case may be, on the terms and conditions specified in the order for the protection and preservation of the rights and interests of the parties.

Respecting the facts before us, subsection (2) specifically mandates that the Darwin matter continued in the new Tribunal be dealt with in accordance with the provisions of the Aeronautics Act as it read immediately before the coming into force of section 44.[1] My reading of this section is that we are to conduct the matter as if Part IV were not repealed. If that were so, then subsection 37(7) of the Aeronautics Act would provide our direction as to costs rather than section 19 of the TATC Act.

Subsection 37(7) of the Aeronautics Act reads as follows:

(7) No costs may be awarded by the Tribunal or a member thereof on the disposition of any matter under this Act.

To finalize this issue of costs, this appeal panel is of the view that we are prevented from awarding costs as the matter was initiated before the Civil Aviation Tribunal and hence must be continued under the process which existed prior to the repeal of Part IV of the Aeronautics Act that is, according to subsection 37(7) which prohibits an award of costs.

CONCLUSION

In view of the Appellant's failure to appear, and in view of the fact that he was personally served with the Notice of Hearing in this matter, there was then no case for the Respondent to meet. The Tribunal has decided to dismiss the appeal and uphold the review determination. We are not inclined to make an order as to costs for reimbursement of expenses in this matter, and we note that each case must be judged on its own facts. However, we would not rule out an award of reasonable costs in a similar case in the future as the legislation was specifically drafted to cover the situation before us which has arisen only four times in the eighteen-year history of this Tribunal.

The appeal is dismissed and the review determination is confirmed.

Reasons for Appeal Decision by:

Faye Smith, Chairperson

Concurred:

Dr. David Ahmed, Member
Herbert Lee, Member


[1] Which repeals Part IV of the Aeronautics Act (which established the Civil Aviation Tribunal).