Decisions

TATC File No. P-3203-33
MoT File No. EMS 057037

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Eugene Drader, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.01

Endanger a property, Operate an aircraft in a reckless or negligent manner, Flying in front of a moving vehicle, Endanger the life of a person


Review Determination
Hilery T. Hargrove


Decision: February 21, 2007

Citation: Drader v. Canada (Minister of Transport), 2007 TATCE 7 (review)

Heard at Abbotsford, British Columbia, on January 15 and 16, 2007

Held: The Minister of Transport has not established on the balance of probabilities that the applicant acted in a negligent or reckless manner. Therefore, the applicant did not contravene section 602.01 of the Canadian Aviation Regulations, SOR/96-433. The monetary penalty of $1 000 assessed by the Minister of Transport is cancelled.

I. BACKGROUND

[1]     This matter arises out of a notice of assessment of monetary penalty dated September 23, 2005 in the amount of $1 000 issued by the Minister of Transport, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2, as am. by R.S., c. A-3, for contravention of section 602.01 of the Canadian Aviation Regulations, SOR/96-433 (CARs), as alleged by the Minister. The notice reads as follows:

On or about June 12, 2005, at or near Kenyon Lake, B.C., at approximately 17:00 hours local time, you, as pilot-in-command, operated a Hiller helicopter, registration C-GWRY, in a reckless or negligent manner when you flew in front of a moving vehicle in such a manner as to endanger or likely to endanger the life or property of the vehicle operator, thereby contravening section 602.01 of the Canadian Aviation Regulations. Monetary Penalty Assessed: $1000.00

A. Preliminary Matter

[2]     On January 2, 2007, the Minister filed a motion with this Tribunal to quash two summons issued by the applicant, namely Simon Mears and Wendy Boyes. After reviewing the Minister's motion as well as written submissions by counsel for the applicant, and after conducting conference calls between this Tribunal member, counsel for the applicant and the case presenting officer for the Minister on January 3 and 4, 2007, and hearing representations made on behalf of the parties in the course thereof, the Tribunal issued a ruling dated January 8, 2007, dismissing the motion to quash the summons issued to Mr. Mears and reserving its decision with respect to the summons of Ms. Boyes. In light of the decision of the Tribunal herein, it is not necessary to deal further with the summons to Ms. Boyes.

II. LAW

[3]     Section 7.7 of the Aeronautics Act reads:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

[4]     Section 602.01 of the CARs reads:

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

III. EVIDENCE

A. Minister of Transport

(1) Greg Ostafiew

[5]     The Minister's first witness was Greg Ostafiew who is employed by Transport Canada, as Superintendent of Enforcement Programs, Civil Aviation. Mr. Ostafiew's evidence was that on June 13, 2005, he received a call from Michael Bergan who indicated that, while driving his pickup truck, a helicopter approached his vehicle at a close distance which Mr. Bergan felt was unsafe. The substance of this telephone conversation was documented in a Telephone or Visit Record prepared by Mr. Ostafiew and dated June 13, 2005 at 12:10 p.m. (exhibit M-5).

[6]     According to this telephone record, Mr. Bergan advised Mr. Ostafiew that on June 12, 2005 at 5:00 p.m., while driving on Lost Creek Road to the lookout over Stave Lake, a helicopter bearing registration C-GWRY flew 40 to 50 feet in front of the truck being driven by Mr. Bergan at an altitude of about 30 feet above the road where it hovered. There were two people in the helicopter and it parked on the road and was waiting for Mr. Bergan when he approached in his truck. The record further indicates that Mr. Bergan advised that his common-law wife, Annerita Chan, was with him in his vehicle at the time.

[7]     The Minister entered into evidence through Mr. Ostafiew's testimony a certificate issued, pursuant to section 27 of the Aeronautics Act, by the Acting Secretary, Department of Transport, dated March 7, 2006, wherein it is certified that on February 4, 2005, a certificate of registration of aircraft was issued to D.K. Heli-Cropper Int'l Ltd. in respect of aircraft C-GWRY, and that as of June 12, 2005, aircraft C-GWRY was registered to D.K. Heli-Cropper Int'l Ltd. (exhibit M-1). The Minister further entered into evidence through Mr. Ostafiew's testimony a certificate of the Acting Secretary, Department of Transport, dated March 7, 2006, wherein it is certified that on June 12, 2005, Eugene Harold Drader was the holder of commercial helicopter pilot licence no. 269973 (exhibit M-2).

[8]     By letter dated August 11, 2005 from Mr. Ostafiew (exhibit M-3), the applicant was advised that he was being investigated for a possible violation of section 602.01 of the CARs and the particulars thereof.

[9]     In a letter dated September 9, 2005 to Mr. Ostafiew (exhibit M-4), Mr. Drader responded to Mr. Ostafiew's letter of August 11, 2005. In his letter, Mr. Drader denies that he operated the aircraft in an endangerment of persons or property or that he hovered the aircraft in the path of a vehicle as alleged in Mr. Ostafiew's letter.

[10]     Mr. Drader's position, as explained in his letter, is that he was flying over his timber sale licence area A76472 on the date and at the time suggested as he had been having problems with theft of shake blocks on the property. On approaching his helicopter shake block landing, his son Shane, who was with him, pointed out some activity around the shake blocks. He saw a shake block being thrown from a truck and the driver quickly getting into the truck and leaving. This led Mr. Drader to suspect that the occupants of the truck, or some of them, were attempting to steal his shake blocks. He advises in his letter that he then attempted to get close to the truck in an effort to get the licence plate number.

[11]     In his testimony, Mr. Drader indicated that at that time his son Shane, who was accompanying him in the helicopter, obtained the licence plate number of Mr. Bergan's vehicle after which he flew ahead about half a mile and landed at the service landing and waited for the truck to arrive. When the truck arrived, he approached it, confirmed no shakes were in the truck and told the occupants of the truck to leave.

[12]     Mr. Ostafiew prepared an aviation enforcement case report which was entered into evidence as exhibit M-6 which ultimately found the applicant had contravened section 602.01 of the CARs. On September 21, 2005, he recommended a monetary penalty of $1 000 which was approved by the Regional Manager/Chief, Aviation Enforcement, on September 23, 2005. On reviewing the aviation enforcement case report, it would appear that Mr. Ostafiew accepted the evidence of Mr. Bergan and Ms. Chan without reservation.

(2) Michael Bergan

[13]     The next witness for the Minister was Mr. Bergan who testified that he was in the area in question on June 12, 2005, at about 5:00 p.m. and was heading up to the Lake with his common-law wife, Ms. Chan, and his dog in his vehicle which was a 1998 Toyota Tacoma 4WD pickup truck. He described the day as cloudy but with good visibility and a high ceiling. He parked his vehicle when he encountered a washout on the road. He testified that the shake blocks were too large to lift alone. He said that a helicopter came out of nowhere and he had to stop his truck as the helicopter was hovering two to three metres in front of him blocking his way for about 15 to 20 seconds. He testified that the helicopter was close enough so he and the pilot "could see each other eye-to-eye". He recorded the registration particulars of the helicopter which then flew out of his view.

[14]     He then testified that he proceeded south on the logging road for another 200 to 400 metres and came around a bend to find that the helicopter had landed on the side of the road. He said that there were trees and growth on both sides of the road but they were not high. He testified that he stopped the vehicle about 50 metres from the helicopter. According to Mr. Bergan, one of the occupants of the helicopter got out and came to his truck and told him that someone was stealing his wood and he was checking on it. He indicated that he took the licence plate of the truck down to which Mr. Bergan responded that he would have to report him. Mr. Bergan testified that he advised this person he was not there to steal shake blocks. He then tried to report the incident to the police, and ultimately was referred to Mr. Ostafiew to whom he reported the incident.

[15]     On cross-examination, Mr. Bergan testified that the helicopter was at a distance of 10 to 15 metres when it was hovering. He further testified that the trees along the road were 20 feet tall or between five to six metres. He also said that after the helicopter left he heard firearms being discharged in the distance. On being asked whether he saw the sign "Danger - Active Helicopter Logging" on entering the road, Mr. Bergan testified that he did not see the sign.

(3) Annerita Chan

[16]     Ms. Chan then testified that the helicopter stopped and hovered about 10 metres in front of the truck she was in which was stopped at the time. She said that the helicopter then left and they continued on and encountered the helicopter a bit further along, at which time it had landed.

[17]     On cross-examination, Ms. Chan testified that the helicopter was around 10 metres from them when it was hovering but could have been 15 metres. She testified that she could not be sure how low the helicopter was when it was hovering but was "not that high". She indicated that she did not see the logging sign on entering the road.

(4) Ross William Bertram

[18]     The next witness to testify on behalf of the Minister was Ross William Bertram who is employed as a civil aviation inspector with Transport Canada. He testified that he had approximately 5 000 hours of flight time in helicopters. Mr. Bertram indicated, in essence, that circumstances can govern what would be safe hovering and that 10 metres could be a safe distance in certain circumstances if it was off to the side. He testified he had never flown a Hillier helicopter like the one here in question nor has he ever worked in a heli-logging operation.

[19]     I should perhaps add that Mr. Bertram was called by the Minister as an expert witness; however, he was also involved in the investigation of this incident. As such, he did not, in the Tribunal's opinion, meet the criteria of an independent expert, and the Tribunal advised the Minister's representative of this concern at the hearing. Thus, the testimony of Mr. Bertram has not been given the weight by the Tribunal which would have perhaps been given to an independent expert.

B. Applicant

(1) Jeffrey David Mortimer

[20]     The first witness for the applicant was Jeffrey David Mortimer who is employed by the British Columbia (BC) Forest Service as a compliance and enforcement officer. Mr. Mortimer testified that he was aware of the occurrence of thefts of shake blocks which were being stolen for sale on illegal shake sales.

[21]     In an email to Marie Zubryckyj, Regional Manager of Enforcement, Pacific Region, Transport Canada, Mr. Mortimer raised the issue of whether Mr. Bergan was being entirely truthful in the facts which he relayed in his complaint (exhibit M-8). Mr. Mortimer's concern regarding the veracity of the facts as told by Mr. Bergan is clear from the following excerpt from that email:

I am trying to confirm whether Mike Bergan is telling me the truth or not and would like to know if he has filed a complaint with your office (as he has claimed). I do not need any details I am only trying to confirm whether Mike Bergan is giving me the whole story.

I have been in contact with Mr. Drader's crew out in the field and will be in contact with Mr. Drader as well. Some of the allegations made against Mr. Drader were not found on site but some were.

[22]     In his testimony before the Tribunal, Mr. Mortimer indicated that his examination of the site did not reveal any evidence to support Mr. Bergan's allegations of open gas and oil cans posing a possible environmental hazard, nor did he find any garbage on the site as alleged by Mr. Bergan. While the presence, or lack thereof, of garbage or possible environmental hazards is beyond the scope of this review, the questions raised by Mr. Mortimer, who was found to be highly credible, does raise concerns with respect to the credibility of Mr. Bergan's evidence in this matter.

[23]     On cross-examination, Mr. Mortimer confirmed that the applicant had the right to harvest timber in the area where the incident in question took place. He also testified that the public could not be excluded from the area. He also testified that on June 13, 2005, he received a call from Mr. Bergan and conducted an inspection of the area from 9:00 a.m. to 3:00 p.m. on June 14, 2005, to investigate Mr. Bergan's allegations regarding possible environmental infringements.

[24]     On redirect examination, Mr. Mortimer testified that the shakes would have weighed in the order of 30 to 50 pounds each.

(2) Simon Richard Mears

[25]     The next witness for the applicant was Simon Richard Mears who is employed as a Transport Canada Civil Aviation Safety Inspector at Abbotsford, British Columbia. He testified on direct examination that he did know the applicant and had dealt with him on previous matters. Counsel for the applicant examined Mr. Mears extensively with respect to problems which had occurred in the past, and apparently concurrent with the investigation of this matter, regarding the maintenance manual which the applicant was required to use and comply with.

[26]     The matter and issues surrounding the maintenance manual used or required to be used by the applicant do not, in the opinion of the Tribunal, have any relevance with respect to this case and fall outside the scope of this review. Thus, the Tribunal did not take into consideration evidence presented at the hearing relating to the issues surrounding the maintenance manual dispute between the applicant and Transport Canada.

(3) Eugene Drader

[27]     The next witness to testify was the applicant himself, Eugene Drader. The evidence of Mr. Drader was that he was 59 years old and had extensive experience as a helicopter pilot, having accumulated over 13 500 hours of flying time. This included conducting work and functions which clearly require a very high degree of skill, including cone picking and heli-logging. He is also certified both in Canada and the United States to operate helicopters in situations requiring both a high degree of skill and judgment. Indeed, the evidence indicates that Mr. Drader has a rather distinguished career as a helicopter pilot which includes a commendation for taking the initiative to carry out water bombing on a potentially dangerous forest fire which, it appears, would most certainly have gone out of control were it not for Mr. Drader's efforts.

[28]     He testified that he has flown in British Columbia, Alberta, Saskatchewan, Northwest Territories, Montana, Oregon, New Mexico and Wyoming. He has in the course of his career as a commercial helicopter pilot participated in or been involved in search and rescue and fire fighting, to name just a couple of his endeavours. During his career which spans over approximately 30 years, Mr. Drader has never before been the subject of any disciplinary action or investigation by Transport Canada.

[29]     Mr. Drader testified that the shake block pile where he encountered Mr. Bergan and Ms. Chan would have contained 25 to 30 cords which he estimated as having a sale value of $30 000. He further testified to the fact that numerous thefts of shake blocks had occurred with respect to his wood, which usually occurred at night. Indeed, he testified that they had suffered a theft from his shake block pile the weekend previous to the incident under review. When he encountered Mr. Bergan's vehicle at one of his shake block piles, he became very suspicious. When he passed over the shake block pile, he saw a shake block being thrown and indicated that he was 100 feet from the ground at this time. He then moved to the front and off to the side of the vehicle so his son Shane could get the licence number of the vehicle.

[30]     He further testified that he hovered there about 80 feet from the ground. When the driver got in the truck and left the scene, Mr. Drader proceeded down to the landing site (702 metres) where he landed on the right side of the road. He approached the vehicle and told Mr. Bergan he was checking on stolen shake blocks. He noted the smell of alcohol on approaching the vehicle and numerous beer cans in the back. He told Mr. Bergan he was trespassing.

[31]     The applicant entered into evidence a video tape of the area covering the approximately 0.75 kilometre distance between the shake block pile where he first sited Mr. Bergan and the landing/fuel site where he landed the helicopter and exited the aircraft to talk to Mr. Bergan (tab 19 of exhibit A-1). This video was taken in October 2006 by the applicant with the assistance of his son, Shane Drader. The applicant testified that the conditions on and surrounding the shake pile site were substantially unchanged from the date the incident under review occurred. I accept the applicant's evidence on this point.

[32]     The video was viewed by the Tribunal at the hearing as well as a second time in the course of preparing this review determination. This video evidence clearly casts considerable doubt on critical parts of the evidence presented by Mr. Bergan on behalf of the Minister. Specifically, Mr. Bergan's evidence is that the applicant hovered the helicopter with the landing skis of the helicopter about two to three metres from the ground.

[33]     In viewing the video of the entire stretch of road, I find it difficult to accept the evidence of Mr. Bergan on this point. Indeed, given the height and close proximity of the growth and obstacles on both sides of the road, and the very narrow width of the road, it would appear impossible for anyone to bring a helicopter within such close proximity to the road anywhere along the road, other than the landing site. It should also be added that much of this stretch of road is at moderate to extreme incline, further adding to the challenges posed in landing a helicopter or bringing it to within dangerously close proximity to the surface of the road.

(4) Nicholas Drader

[34]     The next witness for the applicant was Nicholas Drader, son of the applicant, who testified that he was the Ground Operations Manager for the applicant's wood harvesting operations. He said that he and his ex-girlfriend were tenting in the area at the time of the incident in question so as to keep an eye on the area due to the recent thefts. He indicated that they were tenting approximately two kilometres from the site of the shake block pile where the incident in question occurred. Although he could see the only road leading into the site from where he and his ex-girlfriend were located, he testified that he did not see any vehicle enter the site along this road, although he further testified that he was not observing the road at all times.

[35]     In the course of his testimony, Nicholas Drader identified photographs which he personally took of the shake block site, road and area surrounding this site. These photographs are contained in tab 18 of exhibit A-1 entered into evidence by the applicant.

[36]     Nicholas Drader further testified at the hearing that on June 14, 2005, he met with Mr. Mortimer of BC Forest Service to discuss the allegations of environmental hazards on the site as alleged by Mr. Bergan. Nicholas Drader's testimony corroborates the earlier testimony of Mr. Mortimer that no environmental hazards were present nor was any action taken by BC Forest Service.

(5) Shane Drader

[37]     The next witness was Shane Drader, the 19-year old son of the applicant, who was with the applicant in the helicopter at the time the incident under review occurred. He testified he had worked for his father since he was 13 or 14 years old and had flown with him hundreds of times. In 2005, he had been doing a lot of work for his father on shake blocks. On the day in question, he and his father were travelling over the site due to concerns with thefts of shake blocks. He testified that when he spotted someone at the pile of shake blocks and pointed it out to the applicant, the latter went in front of the vehicle and off to the side of the road and hovered 50 feet from the ground to try to get the licence number of the truck.

[38]     When the truck took off, he testified that his father, the applicant, took the helicopter and landed at the fueling site where the encounter between the applicant and Mr. Bergan occurred. He testified that the applicant was in control of the aircraft at all times and at no time did he feel he was not safe. In a visual test on Shane, he was able to make out the licence plate numbers on vehicles in the parking lot at a distance of 55 metres.

[39]     On cross-examination, Shane Drader testified that he got the licence plate number of Mr. Bergan's truck while his father hovered in front of the vehicle. On redirect, he estimated that the closest the helicopter got to the shake block pile was 100 feet.

(6) Jason Lee Drader

[40]     Jason Lee Drader, the 35-year old son of the applicant, was the next witness to testify for the applicant. Much of his testimony revolved around the dispute between the applicant and Transport Canada concerning the maintenance manual to be used by the applicant. For reasons already set out above in ¶ [26], the Tribunal is not going to deal with this evidence. He testified that he is a commercial helicopter pilot and has been licensed since 1992 and has flown commercially for seven years. He testified that he had been around the applicant when he was flying since he was eight years old and gave the opinion that for a pilot with the applicant's ability, hovering in the manner and at the distance he was at the time of this incident was completely safe.

IV. ANALYSIS

[41]     The issue of the meaning of "reckless" and "negligent" was dealt with by the Tribunal in Dalziel v. Canada (Minister of Transport), [2001], review determination, CAT file no. P-2254-02, [2001] C.A.T.D. no. 36 (QL). At ¶ 32 of that case, the review member relied on Decicco v. Canada (Minister of Transport), [1998], appeal determination, CAT file no. C-1316-02, [1998] C.A.T.D. no. 22 (QL), which adopted the following definition of negligence from Selbstaedt v. Canada (Minister of Transport), [1988], appeal determination, CAT file no. C-0081-02, [1988] C.A.T.D. no. 81 (QL):

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person or ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

[42]     At ¶ 34 of Dalziel, the review member summarized the conclusions of the Tribunal in Decicco as follows:

The Tribunal concluded that the operation complained of fell below the standard of a reasonably prudent pilot so as to constitute negligence. The unnecessary risk of collision with the other aircraft and occupants was sufficient to meet the second facet, that is to endanger or likely to endanger the life or property of any person.

[43]     Applying the principles in Decicco to the case before him, the review member in Dalziel, in finding the applicant had contravened section 602.01 of the CARs, noted the following in his reasons for determination:

¶ 35 . . . What is obvious from his [Mr. Dalziel's] evidence is that there was ample room to either side or forward of the boat in which to accomplish a landing. No evidence was lead to suggest that these areas were unsuitable for landing, perhaps because of rocks or reefs. No evidence suggested that the other areas were in any way restricted, such as would be the case for a bathing or swimming area. Since the weather was fair, with light winds there was no meteorological reason, such as strong crosswinds, to preclude using other area for landing. There was no evidence adduced nor argument presented that would suggest that he was compelled to approach in close proximity to the boat for any exigent purpose.

¶ 36 If not compelled to approach in close proximity to the boat on the water, would a reasonable and prudent pilot choose that approach? Choosing that path reduced any margin of safety, given an unforeseen mechanical malfunction or an unpredictable course of action by the boat. Would a reasonable and prudent pilot have chosen that approach? I think not.

¶ 37 I find the reasoning and determination in the Decicco case to be compelling and can apply it in this circumstance. Mr. Dalziel chose to fly in close proximity to a vessel on the surface for no discernable reason. Doing so reduced the margin of safety, when there was no good reason to do so. He failed to use such care as a reasonably prudent and careful pilot would use under similar circumstances so as to constitute negligence. The close proximity of his aircraft to the boat is sufficient to establish an unnecessary risk of collision so as to establish that he endangered or was likely to endanger the life or property of persons.

[44]     The onus is on the Minister to establish through the preponderance of evidence that, on the balance of probabilities, the applicant contravened section 602.01 of the CARs. To meet this onus, the Minister must establish on the balance of probabilities that the applicant was negligent or reckless in his conduct on June 12, 2005 and that, in so doing, he endangered the life or property of one or more persons. The Tribunal is not satisfied that the Minister has met this onus on the balance of probabilities.

[45]     I must say that, while I am satisfied that an incident did occur which more or less conformed to the evidence and statement of Mr. Bergan, I also believe that Mr. Bergan was inclined to embellish the facts in his favour. On the other hand, I find that the applicant and his sons who gave testimony in this matter to be highly credible and less inclined to embellish but rather stick to the facts.

[46]     The critical factor in determining whether the conduct of the applicant was negligent necessitates a consideration of whether a diligent and prudent pilot, exercising reasonable caution in a similar situation, would follow the course of conduct which the applicant followed in the present case.

[47]     The applicant had been having difficulty with wood theft of his shake blocks and Mr. Bergan and his common-law wife, Ms. Chan, were at one of the piles of shake blocks when the applicant, accompanied by his son, came upon them in a helicopter being piloted by the applicant. The latter believed he saw the driver of the truck, Mr. Bergan, throw a shake block from the back of the truck after which, according to the evidence of the applicant and his son, Shane Drader, the driver of the vehicle hurried to get into the driver's side of the truck and leave the scene.

[48]     Thus, it would appear, based on Mr. Bergan's conduct, that the applicant at least had reason to be suspicious of Mr. Bergan and his companion. Certainly, the applicant left no doubt in his evidence that he was very suspicious of Mr. Bergan's presence and conduct at the pile of shake blocks which belonged to the applicant.

[49]     The applicant further estimated the volume of shake blocks at the site to be something in the order of 25 to 30 cords with a sale value of approximately $30 000. It is this high value which makes the shake blocks the target of numerous thefts. The evidence presented at the hearing on behalf of the applicant was that there had been a theft of shake blocks owned by the applicant as recently as the weekend immediately preceding the incident under review. Indeed, the evidence establishes to the satisfaction of the Tribunal that Nicholas Drader was tenting with his ex-girlfriend in the area on the date in question as a result of the recent thefts. Further, the testimony of the applicant, which the Tribunal accepts, is that the purpose of his helicopter flight giving rise to this review hearing was to check on his property due to the recent thefts.

[50]     Upon seeing Mr. Bergan's vehicle at the pile of shake blocks, and his apparent attempt to leave the site, the applicant became suspicious and positioned his helicopter ahead and off to the side of Mr. Bergan's vehicle. He hovered in that position to give his son, Shane, an opportunity to get the licence number of the vehicle, which he was successful in doing, according to the testimony of Shane Drader.

[51]     There seems to be a rather wide discrepancy between the evidence of the Minister as presented by Mr. Bergan and the testimonies of the applicant and his son, Shane, who was with him in the helicopter regarding the proximity of the helicopter to Mr. Bergan's vehicle as well as the distance between the aircraft and the ground when the applicant was hovering. Mr. Bergan testified that the aircraft was hovering two to three metres from the ground. His passenger, Ms. Chan, did not estimate the distance of the helicopter from the ground, only saying it seemed very low. The applicant, as well as his son Shane, testified that the aircraft was 50 feet (or approximately 15 metres from the ground). The contents of the video tape (tab 19 of exhibit A-1) would seem to support the evidence of the applicant on this point.

[52]     It is difficult to imagine the applicant being able to bring his helicopter within two to three metres of the surface of the road due to the growth and steep banks extending upward in the order of 40 feet or more in very close proximity to the side of the road between the site and where the applicant ultimately landed. It should be noted that in hovering his helicopter in front of Mr. Bergan's vehicle to obtain the licence number, the steep bank on the left side of the road made it impossible for him to hover directly over the road and vehicle, thus forcing the applicant to hover off to the side as already indicated.

[53]     I might add here that it was actually the applicant's son, Shane, who was accompanying him, who was trying to get the licence number of Mr. Bergan's vehicle. In a demonstration outside in the parking lot, Shane Drader exhibited extraordinarily keen eye sight being able to accurately read licence plate numbers at a distance of 55 metres. Thus, it would not be necessary for the applicant to be as close to the ground or Mr. Bergan's vehicle as Mr. Bergan testified in order for Shane Drader to see the licence number of Mr. Bergan's vehicle.

[54]     I note here that the applicant is an extremely experienced and highly capable pilot with over 13 500 hours of flying time and experience in a number of different helicopters and in carrying out a number of highly delicate and difficult tasks as a helicopter pilot. As well, he had his son with him. The Tribunal finds it difficult to accept, on the evidence, that the applicant with his years of experience would endanger both himself and his son unnecessarily, and the Tribunal is not convinced that the balance of probabilities favours such a finding.

V. DETERMINATION

[55]     In summary, the Tribunal finds that the Minister has not established on the balance of probabilities that the applicant acted in a manner that meets the criteria for a finding of negligence or recklessness, based on a preponderance of the evidence. As such, it is not necessary to deal with the issue of whether he endangered life or property, although if forced to do so, the Tribunal would be forced to conclude he did not. The monetary penalty of $1 000 assessed by the Minister against the applicant is therefore null and void.

VI. ISSUE OF COSTS

[56]     One final matter must be addressed concerning the issue of costs claimed by the applicant in this matter. The applicant is asking that he be reimbursed "in full for his legal costs" which I understand to mean that he is claiming costs on a solicitor and client basis.

[57]     The authority of the Tribunal to award costs is contained in section 19(1) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, which provides 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 and 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.

[58]     In Butterfield v. Canada (Minister of Transport), [2004], appeal decision, TATC file no. P-2933-02, [2004] C.T.A.T.D. no. 47 (QL), the appeal panel had occasion to review extensively subsection 19(1). The appellant, Aidan Phillip Butterfield, appealed the review determination of the Tribunal, however, he did not appear at the appeal hearing. The following comments on section 19(1) by the appeal panel are noteworthy:

¶ 7 . . . in this subsection, it is not the success of the party but the absence of the applicant without justification which may trigger an award. We find that this is not analogous to court costs. That the "costs" are not analogous to court costs is also revealed by a perusal of the other subsections.

¶ 8 Under paragraph 19(a) the Tribunal may award costs if it becomes seized of a matter that is frivolous or vexatious. Again this section does not contemplate an indemnification of a successful party but rather the penalization of a party for the institution of a matter for an improper purpose. Paragraph (c) does not address the indemnification of a successful party. It contemplates the reimbursement of expenses thrown away when a party is granted an adjournment but without adequate notice to the Tribunal.

¶ 9 We are aware that jurisprudence most often equates "costs" to court costs, which follow the success of the event, even when applied in a Tribunal setting. However, having regard to the particular wording of this legislation, we find that the term "costs" as used in section 19 is not the same as court costs. We do not consider a tariff pursuant to court rules to be helpful in the establishment of a quantum. The term "costs" is used but the section really acts to dissuade a party from inappropriate behavior. It is the amount that will discourage improper behavior that has to be decided rather than the sum that would indemnify the other party.

¶ 10 After discussing the circumstances, we are presently of the view that it is only the Minister's conduct that could trigger an award under paragraph (a). This type of clause may be found in various rules of civil procedure in courts where most often suits are brought between two civil parties. However, here it is always the Minister who institutes the matters by way of Notice under one of the sections of the Aeronautics Act. A document holder then has a statutory right to request a hearing in response. Under the sections regarding contravention (6.9 and 7.7), an alleged offender is not even obliged to give evidence or testimony. Again the resort to appeal is by way of statutory right. It is difficult to imagine how exercising a right to a hearing in response to an allegation by the Minister could be construed as frivolous or vexatious.

[59]     In Butterfield, the appeal panel denied the Minister's request for costs even though "the circumstances fit the criteria of paragraph (b)". The appeal panel in so holding noted that the absence of the appellant was not a surprise to the Minister in this case as the appellant had made it clear that he would not attend.

[60]     In the present case, it is clear that for the applicant to be entitled to costs, it is necessary for him to establish that the conduct of the Minister falls within the scope of section 19(1)(a) as being "frivolous and vexatious".

[61]     In International Express Aircharter Ltd. v. Canada (Minister of Transport), [2006], review determination, TATC file no. P-3247-10, [2006] C.T.A.T.D. no. 35 (QL), the review member discussed the criteria to be met under section 19(1)(a):

¶ 114 The question for the Tribunal is whether the revocation and suspension actions taken by the Minister were "frivolous or vexatious". Black's Law Dictionary (8th ed., edited by Bryan A. Garner, St. Paul, Minn.: Thomson/West, 2004) defines "frivolous" as "lacking a legal basis or legal merit; not serious; not reasonably purposeful". It defines "vexatious" as "without reasonable or probable cause or excuse; harassing; annoying" and "vexatious suit" as "a lawsuit instituted maliciously and without good cause".

¶ 115 It seems clear that paragraph 19(1)(a) should operate only in the rarest of circumstances, where there was serious or egregious action, perhaps even malice on the part of the Minister's officials. The question here is whether there was any ill intent on the part of Transport Canada in taking the action it did against Mr. Chapman and IEL.

[62]     There are two matters which are of particular concern to the Tribunal in the present case regarding the manner in which the Minister conducted the investigation. The first is the failure by the Minister to interview the applicant or Shane Drader to obtain their position prior to deciding to bring the charges and take punitive action. While the applicant was given an opportunity to write a letter to the Minister's investigator, Mr. Ostafiew, giving his side of the story, which in fact he did do, it should have been obvious to the investigator that there was considerable discrepancy between Mr. Bergan's and Ms. Chan's versions and that of the applicant. It appears, however, that the Minister accepted the version presented by Mr. Bergan and Ms. Chan without giving due consideration to the applicant's position. The second concern is that the applicant was asked to give his version without having the benefit of reading the statements given by Mr. Bergan and Ms. Chan, thus violating the principle of audi alteram partem. These are significant oversights in the conduct of the investigation into this matter. Further, to get the necessary information to present his case, the applicant was forced to proceed by way of an application under the Access to Information Act, R.S.C., 1985, c. A-1.

[63]     While the foregoing are matters of concern to the Tribunal member in the Minister's handling of this case, the Tribunal does not believe there was anything malicious or which would constitute bad faith on the part of the Minister. At most, these errors were simply errors in judgment and do not bring the conduct of the Minister within the scope of "frivolous and vexatious" as contemplated by section 19(1)(a) of the Transportation Appeal Tribunal of Canada Act. Accordingly, there will be no order made for costs.

February 21, 2007

Hilery T. Hargrove
Member