Decisions

CAT File No. A-1803-33
MoT File No. 6504-P-006397-032887

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

John Andrew Lockhart, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 103.03

Licence, Suspension, Failure to Surrender a Canadian Aviation Document, Aircraft Maintenance Engineer


Review Determination
Allister W. Ogilvie


Decision: June 16, 1999

I uphold the allegation of the Minister and reduce the penalty to $25.00. The payment shall be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Thursday, May 20, 1999 at 15:00 hours at the Court of Queen's Bench, in the city of Moncton, New Brunswick.

BACKGROUND

Dr. Lockhart resides and has practised medicine in Bath, New Brunswick. He also held a pilot licence and an aircraft maintenance engineer (AME) licence. In his spare time he enjoyed restoring and rebuilding aircraft.

Dr. Lockhart's AME licence was suspended pursuant to a Notice of Suspension dated June 5, 1998. The suspension was stayed until a review hearing could be concluded. A Civil Aviation Tribunal hearing was held to address the allegations on October 29, 1998. That suspension was based on alleged contraventions of certain provisions of the Canadian Aviation Regulations (CARs). The decision was rendered on January 11, 1999. It concluded that the Minister had not proven the allegations and they were dismissed.

Between the time that the hearing was held and when that decision was rendered Transport Canada issued another Notice of Suspension, dated November 30, 1998, to be effective on December 11, 1998.

That suspension was based on the alleged incompetence of Dr. Lockhart. The Notice included the following statement:

On the effective date of the suspension you must return your Licence by bringing it or mailing it to the Transport Canada Regional Office indicated above. Failure to return a Document is an offence contrary to the Canadian Aviation Regulations.

No stay of suspension could be granted under this provision. As Transport Canada did not receive the licence, it issued a Notice of Assessment of Monetary Penalty dated March 15, 1999 in the amount of $250.00 which states in part:

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

Canadian Aviation Regulations, s. 103.03, in that on or about December 11, 1998, at or near Bath, New Brunswick, you did fail to return to the Minister, a Canadian aviation document issued to you, namely your Aircraft Maintenance Engineer Licence M006397, when it was suspended.

As the monetary penalty was not paid, the Minister of Transport applied for a hearing of the matter. The Civil Aviation Tribunal scheduled a hearing for May 20, 1999, to be held in Moncton, New Brunswick, which is the matter currently before me.

EVIDENCE

Mr. Keith Whalen, Regional Manager of Aviation Enforcement, Atlantic Region, represented the Minister of Transport while Dr. Lockhart appeared on his own behalf.

The evidence establishes that the effective date of the suspension was December 11, 1998 and the licence was turned in to the RCMP on January 8, 1999. At the date of this hearing, the Minister has still not received the licence. It remains in the possession of the Florenceville RCMP and has been since January 8, 1999.

Dr. Lockhart had been advised by Mr. C. Daigle that he could surrender his licence to an officer of the RCMP as an alternative to sending it to the Transport Canada office.

LAW

Section 103.03 of the CARs:

103.03 Where a Canadian aviation document has been suspended or cancelled, the person to whom it was issued shall return it to the Minister immediately after the effective date of the suspension or cancellation.

DISCUSSION

In spite of attempts to obtain the licence, Transport Canada officials have yet to receive it. The problem seems to be whether the licence was "surrended" to the RCMP or given to them for safe keeping.

Dr. Lockhart was at first reluctant to turn it in because he was confident of success in the Tribunal hearing. He appears to have misunderstood why he had to return the licence. The requirement to return the licence to the Minister did not stem from the first suspension (October 29th hearing) but rather from the Notice dated November 30, 1998. As well he had been ill approaching Christmas and then the Christmas season overtook him. In the end result, his licence was given to an officer of the Florenceville, New Brunswick detachment on January 8, 1999.

Section 103.03 of the CARs stipulates that it shall be returned to the Minister immediately after the effective date of the suspension.

Since Mr. Daigle, the Transport Canada inspector who suspended the licence, advised him that turning the licence over to the RCMP was a satisfactory alternative to sending it to Mr. Daigle's office, I find that having done so is an effective return of the document. However, it was turned in some 28 days after the date of the suspension.

The fact that the Minister has not been able to get the document from the RCMP is very interesting but irrelevant for the purpose of this hearing. The issue is whether Dr. Lockhart returned the document immediately after the effective date of the suspension. The evidence proves that he did not. Twenty-eight days after the effective date cannot be construed as "immediate". Therefore, the Minister has proven his case.

The monetary penalty assessed was $250.00. This is the sanction recommended by Transport Canada. Section 103.03 of the CARs is a designated provision. In the schedule to that subpart the maximum penalty for a breach of section 103.03 for an individual is listed at $1,000.00. No minimum is listed. Regarding designated provisions a Tribunal member has the power to confirm Transport Canada's decision, dismiss the allegation or increase or decrease the penalty. Given that I have confirmed the Minister's decision, is the penalty appropriate?

The Civil Aviation Tribunal appeal determination of Minister of Transport and Kurt William M. Wyer[1] has often been used to provide guidance in assessing appropriate penalties. The Appeal panel enunciated the principles of determining an appropriate monetary penalty to include at least denunciation, deterrence, rehabilitation and enforcement. They considered the following factors which could be weighed in finding an appropriate balance of the principles of sentencing:

Without attempting to limit what such factors may include, the following may be considered:

1. Aggravating factors:

  • infractions involving dishonesty,
  • planned breaches,
  • premeditated breaches,
  • extent of harm to victims of the offence,
  • past record of similar offences,
  • prevalence of the offence.

2. Mitigating factors:

  • no previous offences,
  • time since last offence,
  • degree of remorse,
  • whether or not an admission of the offence,
  • degree of co-operation with authorities,
  • delay between the commission of the offence and the time of the sentence,
  • conduct (involvement) of any "victims"
  • restitution,
  • type of operation (commercial or private flight)
  • impact on aviation community,
  • special factual circumstances,
  • relevance of enforcement manual recommendations,
  • effect of a monetary v. suspension penalty on individual,
  • occurrence impact on aviation safety,
  • manner of proceeding by authorities.

Ultimately, the principles annunciated and the factors effecting the level of penalty must be considered on an individual basis in the context of the circumstances of the specific occurrence. The list noted above is not intended to be in any particular prioritized order nor is the list necessarily complete.

In this instance there does not appear to be any aggravating factors. As to mitigating factors, Dr. Lockhart admitted that he turned in the licence late. He was mistaken as to the requirement to do so, thinking that the requirement was pursuant to the first hearing. He works on his own aircraft as projects so has little if any impact on the aviation community. I do not see that the late return of his licence has any impact on aviation safety.

Regarding the principle to be considered in light of those factors, I do not believe that this is a case where denunciation is important and nor do I think that there is a need for personal deterrence as there is little likelihood of the recurrence of the circumstance leading to the requirement to return the licence. A penalty of $25.00 is sufficient to satisfy the principles of sanction in this case.

DETERMINATION

I uphold the allegation of the Minister and reduce the penalty to $25.00.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] CAT File No. O-0075-33.