Decisions

TATC File No. P-2945-02
MoT File No. EMS 048873

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Gregory Sean Messner, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.3(1)(c) and s. 6.9
Canadian Aviation Regulations, SOR/96-433, s. 405.23


Review Determination
William Thornton Tweed


Decision: December 7, 2004

Offence 1: In the circumstance I impose a total suspension for all ten counts of 60 days.

Offence 2: The charges are dismissed.

Offence 3: In the circumstances I reduce the sanction to a total suspension of 60 days for all counts.

The total 120-day suspension shall commence on the thirty-fifth day following the date of service of this determination.

A review hearing on the above matter was held March 10, 11 and 12 and July 28 and 29, 2004 at 10:00 hours at the Federal Court of Canada in Vancouver, British Columbia.

BACKGROUND

At the relevant times the applicant was the chief pilot, line pilot, and training pilot for Pacific Spirit Air. Pacific Spirit Air operated a scheduled float plane service between Vancouver and the Gulf Islands, a charter air service and float endorsement training.

Offence 1 - paragraph 7.3(1)(c) of the Aeronautics Act

The Minister alleged that the applicant, Mr. Gregory Sean Messner, did on ten occasions, with the intent to mislead, certify pilot training records for the purpose of obtaining a seaplane rating that were not true. In particular that he certified that ten different candidates had completed five take-offs and landings as the sole occupant of the aircraft, a requirement for a seaplane rating being applied for, when they had not. A suspension of 210 days was given as a penalty.

THE LAW

Section 401.08 of the Canadian Aviation Regulations (CARs):

401.08 (1) Every applicant for, and every holder of, a flight crew permit, licence or rating shall maintain a personal log in accordance with subsection (2) and with the personnel licensing standards for the documentation of

(a) experience accumulated in respect of the flight crew permit, licence or rating; and [version in force before 2001/03/01]

(b) recency.

(2) A personal log that is maintained for the purposes referred to in paragraphs (1)(a) and (b) shall contain the holder's name and the following information in respect of each flight:

(a) the date of the flight;

(b) the type of aircraft and its registration mark;

(c) the flight crew position in which the holder acted;

(d) the flight conditions with respect to day, night, VFR and IFR;

(e) in the case of a flight in an aeroplane or helicopter, the place of departure and the place of arrival;

(f) in the case of a flight in an aeroplane, all of the intermediate take-offs and landings;

(g) the flight time;

(h) in the case of a flight in a glider, the method of launch used for the flight; and

(i) in the case of a flight in a balloon, the method of inflation used for the flight.

(3) No person shall make an entry in a personal log unless the person

(a) is the holder of the log; or

(b) has been authorized to make the entry by the holder of the log.

Section 421.38 of the Personnel Licensing and Training Standards respecting Flight Crew Permits, Licences and Ratings:

DIVISION X—AEROPLANE CLASS RATINGS

421. 38 Requirements

(1) Seaplane Rating – Requirements

(a) Experience

(i) An applicant for a seaplane rating shall complete a total of 7 hours of seaplane training, including:

(A) a minimum of 5 hours dual instruction, and

(B) a minimum of 5 takeoffs and landings as sole occupant of the aeroplane, except for two crew aircraft, in which case the takeoffs and landings shall be done as pilot-in-command.

(ii) The following exercises shall be included in the seaplane training:

(A) taxiing,

(B) sailing,

(C) docking,

(D) takeoffs, and

(E) landings, and

(F) as conditions exist, operations on glassy water, rough water and in crosswind conditions.

(b) Skill

An applicant for a seaplane rating shall have reached the level of skill specified in the Flight Instructor Standard.

(c) Credits for DND Applicants

Active and retired personnel of the Canadian Forces who are qualified to the pilot aeroplane wings standard shall be deemed to have satisfied the seaplane training requirements specified above, provided that the applicant:

(i) has completed not less then 50 hours flight time as pilot-in-command in seaplanes during the 12 months preceding the date of application for the rating, or

(ii) has met the prescribed standard of the Canadian Forces to act as pilot-in-command of seaplanes during the 24 months preceding the date of application for the rating.

(d) Credits for Foreign Applicants

The holder of a pilot licence – aeroplane category, issued by a Contracting State, shall be deemed to have met the seaplane training requirements specified above, provided that the applicant:

(i) has completed a minimum of 50 hours flight time as pilot-in-command in seaplanes during the 12 months preceding the date of application for the rating, or

(ii) has met the prescribed standards of the State concerned, to act as pilot-in-command of seaplanes during the 12 months preceding the date of application for the rating.

EVIDENCE

On all ten counts the Minister proved on the balance of probabilities that the candidates were not alone on board the aircraft for the required five solo landings and take-offs. Eight of the ten pilots involved were called as witnesses and all stated that Mr. Messner was on board with them when they carried out the five "solo take-offs and landings." The Minister submitted written statements from the two pilots who were not available to testify that Mr. Messner was on board for their solo take-offs and landings. Although this evidence was hearsay, I find that it is admissible and reliable based on corroborating evidence. Mr. Messner admitted that he was on board the aircraft and that the candidates were not actually solo. He stated that in each case the take-offs and landings were completed as if the candidates were solo. He provided no verbal or physical assistance to the pilots during those flights.

In each case Mr. Messner certified the candidate's log book and with the exception of Mr. Fines signed an Application for Endorsement of a rating in which the applicant was recommended for a seaplane rating by Mr. Messner. The documents were submitted to the Minister and on the basis of the documents each candidate received their seaplane rating.

In his own defence Mr. Messner stated that the method he used was the industry practice; that there was often no suitable place for him to exit the aircraft; that his employer would not permit solo flights because there was no insurance. He also stated that he believed the method he employed was safer because in the event a student got into trouble he was there to assist. He further supported his position by asserting that what he was doing was essentially the same as was approved by the CARs for candidates for seaplane rating on two crew aircraft.

DETERMINATION

Mr. Messner knew his practice in regards to solo take-offs and landings was inconsistent with the requirements. Notwithstanding that fact, he signed documents stating that the requirements had been met intending the Minister to rely on his assertion and issue the pilot candidate the requested rating. Mr. Messner intended to mislead the Minister when he signed the pilots' personal log books and the application for endorsements of a seaplane rating.

SANCTION

There was no evidence that safety was compromised or that the students did not demonstrate the necessary skill. Mr. David Hamel, the expert witness introduced by the Minister, stated that the basic endorsement was a beginning and that the pilots would need considerably more training before they would be fully qualified on seaplane operations. Also, Mr. Messner's assertion that his method, the purported industry practice, was safer is on the face of it not without merit. All of which tends to mitigate the sanction.

Further, Mr. Messner was not the only participant or beneficiary of his actions. The air operator knew or should have known that the training was not consistent with the requirements, and the pilot candidates all knew the documents they were submitting were not accurate.

On the other hand the Minister must be able to rely on document holders to carry out the duties they are charged with, particularly document holders in supervisory positions. The evidence clearly demonstrates this was not a mistake or misunderstanding; there was intent.

In the circumstance I would impose a total suspension for all ten counts of 60 days.

Offence 2 - 7.3(1)(c) of the Aeronautics Act

The Minister alleged that the applicant Mr. Messner did on 62 occasions wilfully omit to make the required entry in the journey log book of aircraft he flew as pilot-in-command, for a total suspension of 1,302 days. Prior to the introduction of any evidence the Minister chose not to proceed on counts 1, 59 and 62.

THE LAW

Paragraph 7.3(1)(c) of the Aeronautics Act:

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;

Subsections 605.92(1) and 605.94(1) of the CARs:

605.92 (1) Every owner of an aircraft shall keep the following technical records in respect of the aircraft:

(a) a journey log;

(b) subject to subsections (2) and (3), a separate technical record for the airframe, each installed engine and each variable-pitch propeller; and

(c) except where otherwise provided under the terms of a fleet empty weight and balance program referred to in subsection 706.06(3), an empty weight and balance report that meets the applicable standards set out in Chapter 571 of the Airworthiness Manual.

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

EVIDENCE

The Minister on a count by count basis demonstrated that the entries in the journey log books of aircraft C-FMXR (MXR), C-FICK (ICK), C-FHRT (HRT), C-GGVK (GVK), and C-GPSA (PSA) and Mr. Messner's personal pilot log were inconsistent in each of the counts.

Mr. Messner in his own defence stated that his personal log was made after the fact and that he made entries for weeks or months of flying at one sitting. He admitted that his personal log was not accurate. In his own defence, Mr. Messner pointed out that in most cases his personal log incorrectly recorded the aircraft registration and that a corresponding time could be found in a different aircraft journey log. In an effort to support the journey log entries, Mr. Messner introduced a document — Pacific Spirit Air Reservation Record (Exhibit D-2) — and through calculation and cross-reference to the aircraft journey log books endeavoured to demonstrate that the journey log books were in fact accurate. Most of the cross-reference tended to support the journey log entries.

Mr. Messner also stated that he kept a record of the aircraft flight times at the time the flights were made and that those records were transposed into the aircraft journey log at the end of each day.

DISCUSSION

It was admitted and clearly demonstrated that Mr. Messner's personal log book is not a detailed record of his flying. The cross-reference to the other documents demonstrated that his personal log is an approximation of time he spent flying float planes during the time period. Mr. Messner's personal log is clearly not a precise reliable document. Although the keeping of a personal log book is mandated by subsections 401.08(1), (2) and (3) of the CARs, Mr. Messner has not been charged under that section.

It was also clearly demonstrated that the reservation record purportedly maintained by Pacific Spirit Air and also serving as a manifest and flight following record was not a reliable document. The keeping of such a record, although not Mr. Messner's responsibility, is likely mandated by the air operator's operations manual.

Both Mr. Messner's personal log and Pacific Spirit Air's reservation records should correspond with the times recorded in the aircraft journey log book; they do not. Clearly carelessness in record keeping on these two documents has been demonstrated. Intent has not been proven.

The only evidence relating to the actual journey log entries was Mr. Messner's testimony that flight times were recorded as they occurred and transposed onto the journey log at the end of each day.

Other than the two unreliable documents there was no evidence that Mr. Messner flew any of the subject aircraft and not recorded the flight in the appropriate journey log.

There was no evidence presented to show that Mr. Messner would in any way gain from wilfully omitting to make an entry in the particular aircraft journey log books.

DETERMINATION

The evidence has shown that Mr. Messner was careless in keeping his personal log book and less than forthright in his representations about his personal log to the Minister and others. The evidence does not prove, on the balance of probabilities, that the required journey log entries were not made. Even if I was prepared to draw an inference that because his personal log was inaccurate the journey log book entries he made must also be inaccurate (which I am not prepared to do) that would not prove that Mr. Messner wilfully omitted to make the required entries in the journey log books of the aircraft he flew.

The charges are therefore dismissed.

Offence 3 - CARs 405.23

The Minister alleged that on 33 occasions, each being a separate offence, Mr. Gregory Messner operated a training aircraft when it was not equipped with engine power controls and flight controls that are easily reached and that operate in a normal manner from both pilot stations, to conduct dual flight training. A suspension of 231 days was given as a penalty.

THE LAW

Section 405.23 and subsection 605.92(1) of the CARs:

405.23 No person shall operate a training aircraft unless the aircraft meets the personnel licensing standards.

605.92 (1) Every owner of an aircraft shall keep the following technical records in respect of the aircraft:

(a) a journey log;

(b) subject to subsections (2) and (3), a separate technical record for the airframe, each installed engine and each variable-pitch propeller; and

(c) except where otherwise provided under the terms of a fleet empty weight and balance program referred to in subsection 706.06(3), an empty weight and balance report that meets the applicable standards set out in Chapter 571 of the Airworthiness Manual.

Subsection 425.23(2) of the Personnel Licensing and Training Standards respecting Flight Training:

(2) An aircraft that is used for dual flight training, shall:

(a) be at least a two place aircraft;

(b) have engine power controls and flight controls that are easily reached and that operate in a normal manner from both pilot stations, unless in the case of an ultra-light aeroplane, the trainee has received sufficient ground training and is considered competent to operate the available appropriate controls; and

(c) in the case of a helicopter, be equipped with an intercom system

EVIDENCE

In each circumstance the aircraft in question was a DHC 2 Beaver equipped with centrally located engine and power controls, a vertical column in the centre for elevator control and a throw over yoke which could be positioned in front of either pilot on which the aileron controls were located. There were rudder pedals on the left side only. The configuration of the aircraft was not in dispute. The evidence also showed that this is the standard Beaver configuration. The Minister's witness indicated that he knew of only two Beaver aircraft operating on the west coast of Canada that had dual controls.

The Tribunal also heard from Mr. David Hamel, an expert on training float pilots, introduced by the Minister. Mr. Hamel described ab initio training as the training of a person with no flying experience. He went on to characterize a float rating as a check on type.

DISCUSSION

The Minister in his argument distinguishes between the training requirements of an air operator under subsections 703.98(1), (2), (3) of the CARs:

703.98 (1) Every air operator shall establish and maintain a ground and flight training program that is

(a) designed to ensure that each person who receives training acquires the competence to perform the person's assigned duties; and

(b) approved by the Minister in accordance with the Commercial Air Service Standards.

(2) An air operator's ground and flight training program shall include

(a) company indoctrination training;

(b) upgrading training;

(c) initial and annual training, including

(i) aircraft type training,

(ii) aircraft servicing and ground handling training,

(iii) emergency procedures training,

(iv) training for operational control personnel, and

(v) aircraft surface contamination training for pilots and other operations personnel; and

(d) any other training required to ensure a safe operation under this Subpart.

(3) An air operator shall

(a) include a detailed syllabus of its ground and flight training program in its company operations manual;

(b) ensure that qualified personnel are provided for its ground and flight training program, in accordance with the Commercial Air Service Standards; and

(c) establish and maintain a safety awareness program concerning the adverse effects of aircraft surface contamination and provide the program to all flight operations personnel who are not required to receive the training described in subparagraph (2)(c)(v).

and subsection 703.88(4) of the CARs:

(4) No air operator shall permit a person to act and no person shall act as the pilot-in-command of an aircraft with passengers on board unless the person has acquired, prior to designation as pilot-in-command, the following flight time on that type and basic model of aircraft and in the pilot-in-command position:

(a) in the case of a single-engined aeroplane or a helicopter, five hours; or

(b) in the case of a multi-engined aeroplane, 15 hours.

Mr. Hector, on behalf of the Minister, stated that this training is not characterized as dual instruction and therefore the requirement for dual controls does not apply. He stated that float endorsement training specifies dual instruction and that as a result subsection 425.23(2) of the Standards is applicable and dual controls are required.

Mr. Messner argues that given the configuration of the Beaver in question is standard, that the Beaver has been certified and operating in that configuration for over 50 years, and that it is industry practice to do type checks on the Beaver and other aircraft without dual controls, that subsection 425.23(2) of the Standards should not apply. He further argues that because the Beaver was listed on the air operator's operating certificate and that the operating certificate included flight training, that the legal principle of officially induced error applies.

The air operator's operating certificate was not introduced as evidence. In the absence of evidence that advice was sought by Mr. Messner or the air operator and relied upon, there can be no relief based on officially induced error.

DETERMINATION

I accept the Minister's argument. Logic dictates that notwithstanding Mr. Hamel's characterizing the float rating as a check on type, there is a significant difference between checking a licensed float pilot out on a new type and carrying out initial float training. Further, as argued by the Minister, the CARs referred to above do not characterize the training requirements of an air operator as dual. For the reasons set out I find that when an aircraft is used for the purpose of initial air training for a float rating, that aircraft is a training aircraft under section 405.23 of the CARs. Mr. Messner was therefore in violation of the CARs as charged on all 33 counts.

SANCTION

Mr. Messner argued that the applicant was one of several pilots carrying out training on Beaver aircraft. He further argued that the air operator for whom the applicant worked for had to have been aware of the practice, apparently sanctioned it and received revenue from it. Stating in essence that Mr. Messner is not the only one responsible for the activity and should not be the only document holder being sanctioned. The discretion as to whom is to be prosecuted is the Minister's.

In the circumstances I would reduce the sanction to a total suspension of 60 days for all counts. Considering the likely loss of income, this should be sufficient to discourage repeat offences and send the necessary message to other document holders.

William T. Tweed
Member
Transportation Appeal Tribunal of Canada


Appeal decision
Allister W. Ogilvie, Faye H. Smith, Sandra Lloyd


Decision: August 29, 2005

The appeal as to sanction on offences 1 and 3 is allowed. We reinstate a penalty of 21 days per count regarding offence 1, and 7 days per count in offence 3. The penalties shall run concurrently for a total of 231 days. Said suspension shall begin on the fifteenth day following service of this decision. The appeal as to offence 2 is dismissed.

An appeal hearing on this matter was held Thursday, June 16, 2005 at the Federal Court of Canada, in Vancouver, British Columbia at 10:00 hours.

BACKGROUND

Mr. Gregory Messner was the chief pilot and training pilot for an air operator, Pacific Spirit Air located in Vancouver, British Columbia. The company conducted scheduled float plane operations between Vancouver and the Gulf Islands as well as offering charter flights and float endorsement training.

Among the aircraft utilized for float endorsement training were several DHC-2 Beavers. These aircraft were equipped with centrally located engine and power controls, and a vertical column in the centre for elevator controls on which the aileron controls were located. The column could be positioned in front of either pilot. Rudder pedals were positioned on the left side only. That was the standard configuration for those aircraft.

The regulations governing float training require that a student perform five take-offs and landings as the sole occupant of the aircraft. Mr. Messner did not always adhere to that standard. Most often he remained in the aircraft for the "solo" portion of the float training. He did ensure that the student was able to do the five take-offs and landings without his assistance. On completion of each student's training, Mr. Messner endorsed their personal logbooks as being true and correct and that the student demonstrated the skill required to hold the rating.

An investigation of Pacific Spirit Air's float training activities was undertaken by Transport Canada. A comparison between the personal logbooks of the students, Mr. Messner's personal logbook and the journey logbooks of the aircraft flown in training revealed numerous discrepancies. The discrepancies lead Transport Canada to believe that violations of the regulations may have occurred. The Minister decided to suspend Mr. Messner's commercial pilot licence, pursuant to section 6.9 of the Aeronautics Act, on the grounds that he contravened the following provisions:

Offence 1

Paragraph 7.3(1)(c) of the Aeronautics Act, in that he made false entries in a record required to be kept under section 401.08 of the Canadian Aviation Regulations (CARs), with the intent to mislead, as he certified training record entries relating to a seaplane rating endorsement in students' personal logbooks as being true and accurate when they were not.

Ten counts, 21-day suspension per count, 210-day suspension.

Offence 2

Paragraph 7.3(1)(c) of the Aeronautics Act, in that he wilfully omitted to make an entry in a record required to be kept pursuant to CARs 605.92(1). Specifically he, as pilot-in-command, did not make entries in the journey logbooks of the aircraft with respect to certain training flights.

Sixty-two counts, 21-day suspension per count; 1,302-day suspension (three counts subsequently withdrawn).

Offence 3

CARs 405.23 in that he operated training aircraft when they did not meet the requirements of paragraph 425.23(2)(b) of the Personnel Licensing and Training Standards respecting Flight Training as the aircraft were not equipped with engine power controls and flight controls that are easily reached and that operate in a normal manner from both pilot stations, to conduct dual flight training.

Thirty-three counts, 7 days per count, 231-day suspension.

The suspension for the alleged offences totaled 1,743 days.

Mr. Messner wished to challenge Transport Canada's allegations and requested a review hearing of the matter. The hearing was held before a single member of the Tribunal in Vancouver, British Columbia on March 10, 11, and 12 and July 28 and 29, 2004.

THE REVIEW

As a preliminary matter, the Minister introduced a motion to amend the Notice of Suspension regarding the alleged dates of infractions for six of the counts of offence 2. The motion was denied.

For offence 1, the Member determined that for each of the 10 counts the Minister had proven that the candidates for float training were not alone on board the aircraft. The regulation stipulated that the student be the sole occupant of the aircraft for five take-offs and landings. He also found that Mr. Messner intended to commit the offences by deliberately signing the logbooks when he knew the information was not accurate. However, he determined that the circumstances warranted that the suspension be reduced from 210 days to 60 days.

Offence 2 was dismissed as he determined that the evidence did not prove that the required journey log entries were not made. Neither would he infer from the evidence that Mr. Messner wilfully omitted to make the required entries.

For offence 3, the Member held that when the aircraft was used for the purposes of initial air training for a float rating, the aircraft is a training aircraft, pursuant to CARs 405.23. Mr. Messner was then in violation of the regulation on all 33 occasions as the aircraft that he used for training were not equipped with engine and flight controls easily reached and that operated in a normal manner from both pilot stations. He reduced the penalty from 231 to 60 days.

The total 120-day suspension was to commence on the thirty-fifth day following the date of service of the determination.

GROUNDS OF APPEAL

The Minister was dissatisfied with the determination. An appeal was filed on the following grounds:

The Minister's Motion to Amend

1. The Member erred in law in dismissing the Minister's motion, made on January 5, 2004 prior to the commencement of hearing, to amend the Notice of Suspension.

Offence 1

2. The Member's finding that Mr. Hamel's statement, that the basic endorsement was a beginning and that the pilots would need considerably more training before they would be fully qualified on seaplane operations, and that this tended to mitigate sanction, is unreasonable.

3. The Member's finding, that Mr. Messner's assertion that his method, the purported industry practice, was safer is on the face of it not without merit, and that this tended to mitigate sanction, is unreasonable.

4. The Member erred in law by importing criteria into the establishment of sanction which were beyond his jurisdiction to consider.

5. The Member erred in law in that, having found that the offences were committed with intent, he reduced the sanction imposed by the Minister.

6. The Member's finding, that the total suspension for all ten counts of Offence 1 should be 60 days, is unreasonable.

Offence 2

7. The Member erred in law in failing to assess the credibility of Mr. Messner.

8. The Member's finding, that the personal log of Mr. Messner, was inaccurate, is unreasonable.

9. The Member's finding, that the cross-reference to the other documents demonstrated that Mr. Messner's personal log was an approximation of time he spent flying float planes during the time period, is unreasonable.

10. The Member's finding, that both Mr. Messner's personal log and Pacific Spirit Air's reservation records should correspond with the times recorded in the aircraft journey logbook, is unreasonable.

11. The Member's finding, that the only evidence relating to the actual journey log entries was Mr. Messner's testimony that flight times were recorded as they occurred and transposed onto the journey log at the end of each day, is unreasonable.

12. The Member's finding, that other than the two unreliable documents there was no evidence that Mr. Messner flew any of the subject aircraft and did not recorded (sic) the flight in the appropriate journey log, is unreasonable.

13. The Member's finding, that there was no evidence presented to show that Mr. Messner would in any way gain from wilfully omitting to make an entry in the particular aircraft journey logbooks, was unreasonable.

14. The Member erred in law by importing criteria into the offence which was beyond his jurisdiction to consider.

15. The Member's finding, that the evidence did not prove that the required journey log entries were not made, is unreasonable.

16. The Member erred in law by not applying section 28 of the Aeronautics Act to the facts of the case.

17. The Member erred in law in by applying the wrong standard of proof to the evaluation of the evidence submitted by Mr. Messner.

18. The Member erred in law in dismissing the counts set out under Offence 2.

Offence 3

19. The Member's finding, that Mr. Hamel characterized a float rating as a check on type, is unreasonable.

20. The Member erred in law by reducing the sanction to a total suspension of 60 days for all counts of Offence 3 and not giving reasons for the reduction.

21. The Member's finding, that the sanction for all counts of Offence 3 be reduced to 60 days, is unreasonable.

Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

Upon receipt of the grounds of appeal, the Tribunal arranged for the matter to be heard by a three-member panel on June 16, 2005 in Vancouver, British Columbia.

SUBMISSIONS OF THE PARTIES

Appellant

An oral presentation of the Minister's appeal was provided by Ms. Beverlie Caminsky. The Minister alleges that the Member made errors of fact and law. The errors of law relate to the denial of the request to amend the Notice of Suspension and to the reduction of the sanction in offences 1 and 3. The error of fact relates to the Member's findings of mitigation in offences 1 and 3 and the Member's finding of facts in offence 2.

Offence 1

The Minister alleges that it was an error of fact to find that there was no evidence that safety had been compromised and that the industry standard may have been safer on the face of it. Expert evidence had been led to the contrary.

Offence 2

It was submitted that a finding of fact should not be overturned unless it is unreasonable. A finding of credibility should not be overturned unless it is patently unreasonable.

The Member's finding that Mr. Messner's personal log was not a precise reliable document was unreasonable. It was also an error to find that other than the two unreliable documents there was no evidence that Mr. Messner flew any of the subject aircraft. The finding as to the wilful character of the act was also in error.

The key finding of credibility which was patently unreasonable was the finding which was implicitly made that Mr. Messner's evidence was more credible than that of the Minister's.

Offence 3

The Minister asserts that the Member's reduction in the length of suspension is an error as the penalty assessed for so many demonstrated errors could not seem to be appropriate in the aviation community and would be inadequate to deter others from similar activities.

Summary

Offences 1 and 3

The Minister requested that the appeal panel uphold the Member's decision as to violation but substitute the recommendations of the Minister regarding the sanction.

Offence 2

The Minister asked that the appeal panel reverse the Member's decision to dismiss the allegation and substitute the penalty recommendation of the Minister.

Respondent

Mr. P. Messner appeared on behalf of the respondent, Gregory S. Messner. No cross appeal was filed but a written brief and oral submissions were provided in response to the Minister's appeal.

Mr. Messner maintained that throughout, his actions did not endanger the lives or safety of anyone. He asserted that he had complied with the spirit of the law and gained nothing personally from the technical violations he was found to have committed. He said that there was no motive to violate the provisions.

It was argued that all counts should have been summarily dismissed on the grounds that they constituted an abuse of process. Section 26 of the Aeronautics Act specified a limitation period of 12 months for summary conviction proceedings and notices of monetary penalty. As the matters arose in 1999 and 2000, the Minister was attempting to avoid the limitation period by instituting proceedings by way of licence suspension.

Mr. Messner was not the sole participant but had been narrowed out. The air operator and students were the other participants but no action had been taken against them.

Mr. Messner urged the appeal panel to dismiss the Minister's appeal and argued that he should not suffer any greater penalty than that already imposed by the Member.

DECISION

Held

We allow the appeal as to penalty on offences 1 and 3 and reinstate the 21 days per count regarding offence 1 and the 7 days per count in offence 3. However, for the reasons set out below, we find that the penalty shall run concurrently for a total of 231 days.

We dismiss the appeal on offence 2. As the motion to amend concerned only offence 2, we need not address that issue.

Discussion

Offences 1 and 3 are amenable to being discussed together. The facts are not in issue. Regarding offence 1, Mr. Messner conceded that he was present in the aircraft during the "solo" portion of the training and there is no issue that he endorsed the applicants' personal logbooks. As to offence 3, it is common ground that the aircraft in question had a throw-over yoke configuration and that dual training was carried out utilizing that configuration.

Issue

The issue to be decided is whether the penalty imposed by the Member was appropriate in the circumstance.

The offences under section 7.3 of the Aeronautics Act require intent. An intention to mislead was found in this case. We see this as a serious offence because of the possible ramifications stemming from it. It required a substantial penalty. It is essential that students have the experience, confidence and decision-making capabilities that can only be gained when facing challenging situations alone, without the comfort of an accompanying instructor. We agree with the Minister that a 21-day penalty per count is appropriate as it is consistent with previous cases (Woods and Booth).[1]

Offence 3 is a strict liability offence. The Minister need not prove intent, but only that the act occurred. In this instance, 33 separate occurrences took place. The Member, in reducing the sanction, stated that many others were carrying on the same type of training. The air operator was aware of, sanctioned and profited from it. Although those observations reflect the evidence, we do not see them as mitigating circumstances. He also felt that the likely loss of income would suffice to discourage repeat offences and deter others.

The Member reduced the suspension from 231 to 60 days. Given 33 counts, that amounts to slightly less than 2 days for each count. We find that to be insufficient as a punishment and insufficient as both a specific and general deterrent.

The Minister has stated that the Enforcement Procedures Manual, Table of Sanctions, recommends 7 to 14 days for a first offence. We concur that a sanction of 7 days for an offence of this nature is appropriate. We allow the appeal and substitute a 7-day suspension for each count.

The Enforcement Procedures Manual was once but no longer is a publicly available document. It allowed members of the aviation community to know the recommended level of sanction for offences. Now document holders have no way of knowing the potential jeopardy that may accompany an action. We feel knowing the potential penalty for an impugned action would be preferable as it may of itself serve as a deterrent to possible violation.

Penalty

Although we have allowed the appeal and increased the time of suspension for each count, we do not find that justice would be served by imposing that quantum of suspension on Mr. Messner. We feel that there are mitigating circumstances that need to be considered.

In keeping with the criteria enunciated in the Wyer decision[2], we see the following as being mitigating; no previous convictions, admission of facts and the long delay between the commission of the offence and the sentencing. In the result, we find that sentences should run concurrently with the result that Mr. Messner will have a licence suspension of 231 days.

Discussion - Offence 2

In this offence, the Minister has relied upon the accuracy of personal pilot logbooks of Mr. Lathe with respect to count 2, Mr. Smith with respect to counts 3 and 4, and Mr. Messner with respect to counts 3 to 58, 60 and 61.

The Minister asserted that the Member made two errors in his finding of facts:

  1. It was unreasonable for the Member to find as a fact that Mr. Messner's log was not accurate;
  2. It was unreasonable to find that there was no other evidence that Mr. Messner flew the subject aircraft and did not record the flight in the journey log. The Member also made a patently unreasonable finding of credibility when he implicitly found Mr. Messner to be credible in that he accepted his evidence over that of the Minister's.

Issue

The issue to be decided is whether the Member's findings of fact were unreasonable and whether his implicit finding of credibility regarding Mr. Messner was patently unreasonable.

Held

We dismiss the Minister's appeal. We find that the member did not err on his findings of fact nor credibility for the reasons discussed below.

The Minister submitted that it was entitled to rely on the accuracy and reliability of the above documents for the following reasons:

1. The entries contained in these documents are legislatively deemed to be, in the absence of evidence to the contrary, proof of the matters stated therein;

2. The Aeronautics Act requires holders of logbooks to make entries in a timely and accurate fashion in order to ensure accuracy and reliability;

3. Mr. Messner certified on each page of his own pilot logbook that the entries in the logbook were true;

4. Mr. Messner certified in the logbooks of Mr. Lathe and Mr. Smith that the times flown in the referenced aircraft were true and correct;

5. Mr. Messner relied on the reliability and accuracy of his own pilot logbook in a previous judicial proceeding;

6. A comparison of Mr. Messner's own pilot logbook times with the times set out in the Flight Duty Time Sheet (Exhibit M-9) revealed that the pilot logbook accurately reflected the times set out in the Flight Duty Time sheet; and

7. A close examination of the "reservation record" of Pacific Spirits Air (Exhibit D-2), which was relied on by Mr. Messner to show that his logbook was inaccurate, was itself revealed to be full of inaccuracy during the cross-examination of Mr. Messner.

Counts 3 to 58, 60 and 61

We are not persuaded that the foregoing reasons entitle the Minister to rely on the accuracy of Mr. Messner's logbook.

1. We agree that section 28 of the Aeronautics Act states that entries in records required to be kept are, in absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry. As both personal logs and aircraft journey logs are records required to be kept, the provision applies to both. But the journey logs in question here do not match Mr. Messner's personal log. They are in themselves evidence to the contrary of what is found in Mr. Messner's personal log. Further evidence to the contrary was elicited from the Minister's witness, Mr. Sager, Mr. Messner's former employer. He testified that he found Mr. Messner's logbook to be concocted and contrived. Mr. Messner's own testimony impugns the accuracy of his personal logbook. As there is prima facie evidence to the contrary, we do not see section 28 as operable to prove the matters stated in Mr. Messner's logbook.

2. The Minister argued that the Aeronautics Act requires holders of logbooks to make entries in a timely and accurate fashion in order to ensure accuracy. Schedule I to the regulation regarding aircraft journey logbooks provides that certain information must be entered. The air time for each flight and cumulative total air time must be entered daily on completion of each flight (subsection 605.94(1)). The regulation regarding personal logbook entries provides that certain information must be entered as well (section 401.08 and Standard 421.08). Among the entries required is the flight time in respect of each flight. However, neither the regulation nor the standard imposes any time limit for the accomplishment of that entry. Therefore, if the Minister's argument that entries are to be made in "a timely and accurate fashion in order to ensure accuracy and reliability", it must be that journey logbook entries be taken as more accurate and reliable than the personal logbook as the regulation imposes a timeliness requirement on journey log entries which is lacking for personal logbook entries.

3. The Minister also relies upon the fact that Mr. Messner certified on each page of his personal logbook that the entries were true. The entries required by CARs 401.08 do not include a certification as to the truth of the contents. A comparison with the other personal logbooks in evidence shows that the certification line in Mr. Messner's is a unique feature of that particular type or brand of logbook. We do not think that Mr. Messner filling in the blank certification area of his log has any particular legal ramification beyond that already provided by the operation of section 28 of the Act, discussed above.

4. In contradistinction to point 3, the Minister asserts that he is not truthful when making required certifications in other persons' logbooks. It states that Mr. Messner certified in the logs of Mr. Lathe and Mr. Smith that the times flown in the referenced aircraft were true and correct. He made similar certifications in the logs of eight other students. The certifications were a requirement as the Application for Endorsement of a Seaplane Rating form requires, among other items, that the application be accompanied by a certified logbook. However, for these 10 certifications, the Minister alleges they were false entries, not being true and correct.

5. The Minister argues that it may rely upon the reliability and accuracy of Mr. Messner's log as he relied upon it in a previous judicial proceeding. Precedent was presented to support that proposition, Rex v. Famous Players.[3] In this circumstance we do not agree.

Mr. Messner was a party to a hearing before a Wage Recovery Appeal Referee, a matter taken under the Federal Mediation and Conciliation Service. Mr. Messner sought to recover money alleged to be owed to him by Pacific Spirit Air, including overtime wages. His personal log was among the items he presented in support of his claim (Exhibit M-7).

Mr. Messner was not successful with the overtime part of his claim. He commenced a judicial review of the Arbitrator's award before the Federal Court (Exhibit M-83). In that proceeding he had mistakenly named the Attorney General of Canada as the respondent. In the initial application, Mr. Messner did list his personal log as a document upon which he intended to rely.

Subsequent to correspondence from counsel from the Attorney General drawing his attention to the error, he sought and received an order of the court that the Attorney General was not a proper party and substituting Pacific Spirit Air as respondent.

A review of the applicant's Record with Pacific Spirit Air as respondent shows that Mr. Messner's personal log was no longer listed. In the applicant's Memorandum of Fact and Law, the personal log is only mentioned as having been an exhibit at the wage arbitration (para 6).

We are not persuaded that an appeal before a Wage Referee should be characterized as a "judicial proceeding". For instance, even proceedings before this Tribunal are characterized as being quasi-judicial only. The judicial review is a judicial hearing. However, the record shows that Mr. Messner did not rely upon his personal log in that matter.

For those reasons, we do not agree with the Minister's argument regarding his reliance on his personal logbook at prior judicial proceedings.

6. Reliance on Mr. Messner's log was asserted based on a comparison of it with the times set out in the Flight Duty Time Sheet. They accurately reflected one another. However, a review of the circumstances of the creation and presentation of that document shows why they correspond and why the fact that they correspond should not be used to declare its accuracy.

The Flight Duty Time Sheet (Exhibit M-9) was submitted to the Arbitrator by Mr. Messner in support of his overtime wage claim. The Minister's representative, in closing argument at review, quoted from page 4 of the arbitrators award, where Mr. Messner testified that he did not personally enter the duty times into the computer but stated that the company's dispatcher maintained the file, entering all duty times into the computer. The gist of the matter was that it was an independent document, created by a third party (appellant's submission, para 23.4).

That document was compared to Mr. Messner's personal log during cross-examination for each count in offence 2. The result was that the entries in the Flight Duty Time Sheet were the same as those in the log. Therefore, the Minister argued that as the independent document matched the log entries, one could conclude that the log was accurate.

However, that conclusion cannot be borne out in light of the arbitrator's finding regarding the Flight Duty Time Sheet. He spoke to it at page 6 of the award saying:

I cannot find as a fact that the "Flight Duty Time Sheet" placed into evidence by the appellant was produced from a company computer file into which he (the appellant) had no input. In my view, it is more likely, on the evidence and on the balance of probabilities, that the appellant was at least partially, if not wholly responsible, for entering the "alleged duty hours" into the computer file from which this document was produced. As such, the "Flight Duty Time Sheet" cannot be viewed as having significantly greater probative value than the appellant's handwritten record of hours.

In the judicial review of the arbitrator's decision, the Court stated that it could not find any serious errors or omissions in the arbitrator's analysis of the evidence (para 11).

Given the arbitrator's view of the probative value of the Flight Duty Time Sheet, we do not think that its correspondence to the log assists the Minister's assertion that the log is accurate and reliable.

7. The Minister's cross-examination of Mr. Messner on the "reservation record"

(Exhibit D-2) showed that it contained significant errors and omissions. It was argued that it did not prove that flights took place, whether certain aircraft were used, repositioned or cancelled.

We agree with those statements. That document may not be of assistance to Mr. Messner to prove his log inaccurate but neither is it of any assistance to the Minister to prove the log accurate.

Counts 2, 3, and 4 – Lathe and Smith

1. The Minister made a seven-point argument, listed earlier, regarding the reliability of the personal logs of Mr. Lathe with respect to count 2, Mr. Smith with respect to counts 3 and 4, and Mr. Messner with respect to the other counts of offence 2. If the arguments apply to each of the persons' personal log to show their accuracy, what happens when they conflict? That problem arises in counts 3 and 4.

2. Mr. Lathe's personal log shows a float training entry for March 9. Mr. Messner certified that entry to be true and correct. The journey logbook of aircraft MXR at first glance does not appear to have a flight entry for March 9 which leads to the allegation that Mr. Messner failed to make the March 9th entry in the journey logbook.

MXR's journey log does have a maintenance entry for March 9. The next entry in sequence appears to be March 6, which is out of chronological order. But the aircraft was still in maintenance on March 6. However, that March 6th entry can also be read as March 9. The other information for the flight of the 9th such as points of departure and destination correspond to Mr. Lathe's logbook. We find that the entry in question should be read as March 9. Therefore, Mr. Messner did not fail to make the required entry.

3. The journey logbook for aircraft ICK has an entry for March 2 of 2.8 hours showing a crew of Messner/Marcoux. Mr. Messner's personal log has an entry of 2.8 hours on ICK on March 2. However, Mr. Smith's log, certified by Mr. Messner as correct, shows one-hour float training on ICK on March 2 which leads to the allegation that Mr. Messner failed to make the one-hour entry in the journey logbook.

In this count, two logbooks coincide, a third does not. The one that does not coincide is the one that the Minister asserts to be correct. However, no further evidence was provided to establish that the non-matching log was the one that was correct. It is possible that the one hour of training may have been included in the 2.8 hours as is argued by the respondent, but no evidence was adduced to support that either. The certifications are not helpful as Mr. Messner had certified both his own and Mr. Smith's as correct. Here the Minister asserts that Mr. Smith's log is to be relied upon for the same reasons that it asserts Mr. Messner's should be relied upon for 57 other counts.

4. Mr. Smith's personal log shows a float training flight of one hour on March 3 in ICK with Mr. Messner as pilot-in-command. The journey logbook of ICK does not reflect that, but does have an entry for that date showing a McBain as pilot-in-command. Mr. Messner's log does not have an entry for March 3. He says that he did not fly that day. The Minister alleges that Mr. Messner made the flight but not the required journey log entry.

The same evidentiary dilemma presents itself here as above. Mr. Smith's log is at odds with the other two. Without more, it cannot be determined which is correct. The Minister did not meet the burden of proof.

We find that the Member did not err in dismissing these counts.

Conclusion - Offence 2

We find that the Member did not err in his finding that Mr. Messner's logbook was not a precise and accurate document. As can be seen from the foregoing discussion, our review of the evidence and argument shows that the Minister's reasons for reliance upon his personal log were not well- founded. The Member was entitled to find as he did.

We also find that he did not err in concluding that there was no evidence that Mr. Messner flew any of the aircraft other than the two unreliable documents. Both of those documents were shown to be less than reliable in the testimony. The reservation record was impugned on the Minister's cross-examination. The Flight Duty Time Sheet was found not to be accurate by the arbitrator.

The Minister has also argued that it was a patently unreasonable error to have implicitly found Mr. Messner's testimony to be more credible than that of the Minister's witnesses. It is unfortunate that the Member did not make an explicit finding of credibility and share his reasoning with us. However, as he found that Mr. Messner's log was not accurate in the face of the Minister's evidence and argument to the contrary, it must be that he found him credible as regards the inadequacies of his personal log keeping. Mr. Messner did admit to signing the students' logs regarding float training when he knew that they did not actually "solo". He was forthright in testimony concerning training on the aircraft with the throw-over yoke configuration.

As regards Mr. Messner's personal logbook, the Minister's allegation was that it should be found to be reliable and accurate, whereas Mr. Messner testified to the contrary. However, the Minister's representative at review presented argument which would support the finding of it being inaccurate.

In "Reply to the Respondent's Closing Statement", the case presenting officer utilized subsection 429(1) of the Criminal Code to help define "wilful". He found the definition to be helpful as it related to both real and personal property. A pilot's log was his personal property. Secondly, it spoke to causing an event by doing an act or omitting to do an act that "it is his duty to do". He stated that Mr. Messner had a duty to maintain his personal logbook in a certain fashion, pursuant to CARs 401.08. Thirdly, subsection 429(1) defined "wilful" as including "being reckless whether the event occurs or not". He then stated: "Mr. Messner clearly, and by his own testimony, was not concerned with the accuracy and quality of entries in his logbook."

We found it surprising that the representative said so as it flies in the face of the Minister's position regarding his personal logbook. However, we do not find it surprising as the evidence supports it and it is also the conclusion to which the Member came. Therefore, we cannot agree with the Minister's position that it was patently unreasonable for the Member to find Mr. Messner to be credible on that point.

CONCLUSION

The appeal as to sentence on offences 1 and 3 is allowed. We reinstate a penalty of 21 days per count regarding offence 1 and 7 days per count in offence 3. The penalties shall run concurrently for a total of 231 days.

The appeal as to offence 2 is dismissed.

August 29, 2005

Reasons for Appeal Decision by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Faye Smith, Chairperson
Sandra K. Lloyd, Member


[1] Milton James Woods v. Minister of Transport, review determination, [2000], P-1908-02.

Nicholas Anthony Booth v. Minister of Transport, review determination, [2003], O-2807-02.

[2] Minister of Transport v. Kurt William M .Wyer, appeal determination, [1988], O-0075-33.

[3] Rex v. Famous Players (1932) 58 C.C.C. 50 (Ontario S.C.).