Decisions

CAT File No. A-1873-10
MoT File No. MA5260-8476

CIVIL AVIATION TRIBUNAL

BETWEEN:

Sky-Dive Unlimited Incorporated, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)b)
Canadian Aviation Regulations, SOR/96-433, s. 605.03, 605.22, 605.23, 700.01, 702.02, 702.09

Suspension, Statement against interest, Seat belts, Restraint system, Parachuting, Hearsay evidence, Air Operator Certificate


Review Determination
Allister W. Ogilvie


Decision: November 9, 1999

I confirm the Minister's decision to suspend the Air Operator Certificate of Sky-Dive Unlimited Incorporated.

A Review Hearing on the above matter was held Wednesday, October 20, 1999 at 10:30 hours at the Truro Justice Centre, in the city of Truro, Nova Scotia.

BACKGROUND

On August 21, 1999, two aviation enforcement inspectors from Moncton were conducting a routine surveillance mission near Middle Stewiacke Air Strip in Nova Scotia. There they observed a Cessna 182 aircraft drop five parachutists. Continuing the surveillance, they observed the same aircraft complete four more drops with four jumpers disembarking each time. The inspectors then proceeded to the air strip to have a closer look at the aircraft and to speak to the operator.

Their inspection of the aircraft and conversation with the operator caused them some concern. Upon returning to Moncton and reviewing the aircraft file, it was decided to suspend the Air Operator Certificate. The operator contests that suspension which brings about this proceeding.

EVIDENCE

Transport Canada Inspectors Miles and Thompson testified to having observed an aircraft doing parachute drops near the Middle Stewiacke Air Strip. Both gentlemen stated that they observed five jumpers exit the aircraft on the first flight and four jumpers exit the aircraft on each of four subsequent flights. From this they concluded that six occupants were on board the initial flight and five occupants were on board the four subsequent flights. As the number of persons on board caused them some concern, they drove over to the air strip to investigate further.

At the strip they checked the aircraft, spoke to the pilot and to Mr. Mowry, the operations manager of Sky-Dive Unlimited Incorporated (Sky-Dive). The aircraft was identified as a Cessna 182, CF-NXM. Mr. Miles inspected the aircraft. He testified that the only restraint system visible was that for the pilot. He also stated that when questioned, Mr. Mowry remarked that nobody used any restraint system.

Mr. Thompson also viewed the aircraft and declared that there was no restraint system, other than that provided for the pilot. As well Mr. Thompson asked to see documentation such as the weight and balance forms and manifests. From the documents he was shown he was unable to ascertain the number of occupants, for which the aircraft was certified. He pursued that question upon returning to Transport Canada's office in Moncton.

On cross-examination, Mr. Miles granted that he did not ask where the restraint system was. He acknowledged that the aircraft had padded flooring. When Mr. Mowry asked if it was possible that the jumpers may have stowed the restraints under the mat, Mr. Miles conceded that it was possible, but added that Mr. Mowry had already stated to him that he did not use a restraint system. Mr. Thompson also acknowledged that there was some sort of rug or mat on the floor and conceded that it was possible that belts could be under the mat.

Mr. John Ereaux is presently the Regional Manager, Aircraft Certification, Transport Canada Atlantic Region. Mr. Ereaux has an Engineering degree and has worked in the aircraft certification field in various capacities for many years. As such, he was qualified as an expert to give opinion on aircraft certification and safety implications.

Documentary evidence entered through Mr. Ereaux provides that Cessna 182, aircraft registration CF-NXM, serial number 33735, is registered to Sky-Dive for a commercial purpose. A Certificate of Airworthiness is in effect for that aircraft. An excerpt from Type Certificate Data Sheet number 3A13 applicable to aircraft serial number 33735 prescribes conditions and limitations under which the product meets the airworthiness requirements of the United States Federal Aviation Administration (FAA).

It was Mr. Ereaux's testimony that the Type Certificate Data Sheet is used to specify the details of the type design. In this case the Type Certificate Data Sheet is accepted in Canada as the Canadian airworthiness standard for the Cessna 182 aircraft. The limitation in the Type Certificate applicable in this instance was the number of occupants and number of seats—four. This number of occupants was then, the limitation applicable to C-182, CF-NXM.

However additional evidence was lead through Mr. Ereaux which proves that the certified seating limitation changed. Exhibit M-7 is a letter to Mr. Mowry granting him permission to utilize a Supplemental Type Certificate (S.T.C.) No. SA874CE issued by the United States Parachute Association. Attached to the letter are the installation instructions to complete a modification that creates a four-jumper, one-pilot configuration. The S.T.C. was issued to Mr. Mowry for C-182, #33735 CF-NXM, by letter dated July 19, 1994.

Exhibit M-8 is a Conformity Certificate. Mr. Ereaux's evidence was that this form is utilized to report to Transport Canada, a modification or repair to an aircraft stating that the work was accomplished in accordance with approved data.

The Conformity Certificate (Exhibit M-8) was submitted to Transport Canada in notification of the S.T.C. described in Exhibit M-7. Part of the description of the work carried out states that the existing seat belts were removed from the right side and rear passenger positions. The Conformity Certificate was dated August 27, 1999. Mr. Ereaux stated that was the date of the report, not the date of the modification.

The net effect of the modification to install the S.T.C., coupled with its report in the Conformity Certificate changed the Canadian certification from four to five occupants for parachute operations.

Mr. Ereaux was also asked his opinion on the safety effect of one not being restrained in an aircraft. He replied that the design standards of all aircraft incorporated a requirement for seats and seat belts for the safety of the occupants. For parachute operations, the need for the seat was waived but an aircraft still required a restraint system. Here the seat belts would be deemed the restraint system. It was his evidence that having no restraint system was unsafe, especially under certain conditions such as rapid deceleration and turbulence.

Cross-examination by Mr. Mowry centred on Mr. Ereaux's knowledge of other S.T.C.'s allowing other configurations and weights for C-182 aircraft as well as various technical requirements for restraint systems. Mr. Mowry questioned the effectiveness of a restraint system, when different seat patterns, such as aft-facing, were employed.

Mr. T. Vaillancourt is the Regional Manager of Commercial and Business Aviation, Transport Canada, Atlantic Region. It was his decision to suspend Sky-Dive's Air Operator Certificate on August 23, 1999. He testified that the decision was made on the basis of safety. He had been informed that Sky-Dives's aircraft did not have restraint systems and that it carried persons in excess of the number for which it was certified. This was not within the conditions of Sky-Dive's Air Operator Certificate. The certificate was reinstated on August 27, 1999 after Transport Canada was satisfied regarding the safety issue.

ARGUMENT—THE MINISTER

Mr. Brooks reviewed the evidence entered, reiterating that the inspectors observed five, then four people exit an aircraft which was then certified for only four occupants. This aircraft had been equipped with only one seat belt. As well Mr. Mowry had stated to Inspector Miles that he did not use a restraint system.

He acknowledged that the possibility of there being seat belts was raised in cross-examination of the inspectors and the Conformity Certificate which stated that existing seat belts were removed. However as seat belts must be readily accessible, if they were under the mat there would still not be compliance.

The modification did create a four place jump configuration but this was not so until August 27, 1999.

As Mr. Ereaux's testimony asserted that the lack of seat belts created an unsafe condition in some circumstances, Mr. Vaillancourt had acted correctly in suspending the Air Operator Certificate and I was urged to uphold that sanction.

ARGUMENT—SKY-DIVE

Mr. Mowry is the Operations Manager of Sky-Dive. He presented the argument on Sky-Dive's behalf.

He asserted that the Minister had not proven his case. Transport Canada's witnesses had said that they did not see seat belts, but it could have been that they were tucked under the mat to prevent a hazard.

As to his statement to Inspector Miles that he did not use any restraint system he proclaims that people are apt to broad statements. In any case had the inspectors asked he would have shown them the belts. As the Conformity Certificate stated that existing seat belts were removed, they must have been previously installed.

Mr. Mowry contests the Minister's assertion as to safety. He declared that there was no evidence of anything unsafe, no evidence that the aircraft was out of weight and balance. The number of occupants did not render the aircraft unsafe.

If anything Mr. Mowry says he or the aircraft maintenance engineer responsible for the modification may be guilty of failing to report it in a timely manner.

Mr. Mowry characterized the Minister's decision to suspend the Air Operator Certificate as an extreme action. There was no warning or discussion on the matter. Where, he wondered, was the latitude that should be given. In sum he urges that I find the Minister's decision to suspend to be unjustified.

THE LAW

Paragraph 7.1(1)(b) of the Aeronautics Act:

7.1 (1) Where the Minister decides

(...)

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(...)

Section 702.02 of the Canadian Aviation Regulations (CARs):

702.02 No air operator shall operate an aircraft under this Subpart unless the air operator complies with the conditions and operations specifications in an air operator certificate issued to that operator by the Minister pursuant to section 702.07.

Section 702.09 of the CARs:

702.09 An air operator certificate shall contain the following general conditions:

(...)

(e) the air operator shall maintain aircraft that are properly equipped for the area of operation and the type of operation;

(...)

(j) the air operator shall conduct a safe operation.

Subsection 605.22(1) of the CARs:

605.22 (1) Subject to subsection 605.23, no person shall operate an aircraft other than a balloon unless it is equipped with a seat and safety belt for each person on board the aircraft other than an infant.

Section 605.23 of the CARs:

605.23 An aircraft may be operated without being equipped in accordance with section 605.22 in respect of the following persons if a restraint system that is secured to the primary structure of the aircraft is provided for each person who is

(...)

(b) carried for the purpose of parachuting from the aircraft; or

Section 605.03 of the CARs:

605. 03 (1) No person shall operate an aircraft in flight unless

(a) a flight authority is in effect in respect of the aircraft;

(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and

(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.

Section 700.01 of the CARs:

700.01 In this Part,

"areas of operation" means areas in which operations are conducted between points in Canada, between points in Canada and points abroad, and between points abroad;

(...)

"types of operation" means VFR, VFR at night and IFR operations;

DISCUSSION

The issue to be decided is whether the Minister's decision to suspend the Air Operator Certificate of Sky-Dive was justified. The burden of proving that it was is upon the Minister.

The evidence adduced proves that on August 21, 1999, aircraft CF-NXM was certified for four occupants. On that day there is evidence to show that the aircraft completed five flights, the first with six occupants on board, the following four with five occupants on board.

Regarding the restraint system the testimony of Inspectors Miles and Thompson is consistent in that neither one saw a restraint system in the aircraft other than the pilot's when they checked the aircraft on August 21, 1999. There is no contradictory evidence, but Mr. Mowry raised doubt during cross-examination when he suggested the belts might have been tucked under the mat. Both inspectors conceded that was possible. As well the Conformity Certificate, when listing modifications carried out, addressed the removal of existing seat belts, which of course suggests their presence, at the time of modification.

Mr. Mowry also stated to Mr. Miles that nobody used any restraint system. That statement may be described as hearsay evidence. Hearsay evidence is evidence not proceeding from personal knowledge of the witness but from the mere repetition of what the witness has heard another say.

Here the statement was made to a Transport Canada inspector during the course of the inspector's duties. As the statement goes to prove a material fact in the allegation it can be characterized as an admission against interest. Under the technical rules of evidence that characterization of evidence forms an exception to the hearsay rule and is therefore admissible.

Section 37 of the Aeronautics Act provides that the Tribunal is not bound by any legal or technical rules of evidence. As such a statement is admissible under the technical rules of evidence, there is no reason to object to it under the more relaxed rules of the Tribunal.

In argument Mr. Mowry attempted to explain it by saying that people are apt to make broad statements. I find that argument to be singularly unhelpful. It neither denies nor affirms the statement. As a result I am left with taking Mr. Mowry's statement that nobody used any restraint system at face value.

The Conformity Certificate certifying that the S.T.C. was completed was dated on August 27, 1999 whereas Mr. Mowry was granted permission to utilize it by letter dated July 18, 1994, basically five years prior. No evidence was adduced as to the date of the actual modification. The Conformity Certificate does raise some doubt as to the presence of the seat belts, but is so lacking in certainty as to the time when the work was accomplished that I do not find it helpful as to establishing the existence of the belts on August 21, 1999.

Given the foregoing the Minister has proven on a balance of probability that there was no restraint system in the aircraft on August 21, 1999, other than the pilot's seat belt.

The fact that Sky-Dive carried more persons than the aircraft was then certified for and utilized an aircraft without the required restraint system, justifies the suspension of the Air Operator Certificate, but not quite in the manner by which the Minister proposes.

The Minister alleges that Sky-Dive failed to comply with two conditions of the Air Operator Certificate, General Conditions as specified in paragraphs 702.09(e) and (j). The Minister has not proven the failure to comply with (e) but has proven only that Sky-Dive failed to comply with the condition at (j). That is none the less sufficient to have suspended the Air Operator Certificate.

The Minister's allegation in Appendix A of the Notice of Suspension makes clear that the non-compliance with the General Conditions of Air Operator Certificate at (e) is that the aircraft does not have a restraint system as required in section 605.23 of the CARs.

Section 605.22 is the general provision requiring anyone operating an aircraft to equip it with a seat and safety belt for each person on board. Section 605.23 provides certain exceptions. Applicable here is the condition at (b) which allows an aircraft to be operated without being equipped in accordance with 605.22, if a restraint system that is secured to the primary structure of the aircraft is provided for each person who is carried for the purpose of parachuting from the aircraft.

The Minister concludes that Sky-Dive did not maintain an aircraft properly equipped for the area of operation and the type of operation because it lacked an appropriate restraint system.

I believe that the Minister's representatives have misconstrued the meaning of paragraph (e). As section 702.09 is found in Part VII-Commercial Air Services the interpretation section at 700.01 applies and provides guidance in this matter.

It states in part:

700.01 In this Part,

"areas of operation" means areas in which operations are conducted between points in Canada, between points in Canada and points abroad, and between points abroad;

"types of operation" means VFR, VFR at night and IFR operations;

This is then reflected in the actual Air Operator Certificate. Part I addresses, in part "Areas of Operations... Between points in Canada." Part II the types of operation...C182 Day VFR.

From this it can be seen that the lack of restraint system does not breach the requirement in (e) to maintain aircraft properly equipped for the area of operation, points in Canada and the type of operation, Day VFR. In regard to the latter, proper equipment for the "type" of operation would go to the communication and navigation equipment required, whether for VFR or IFR flight.

I believe the Minister has read Type of Operation to mean Type of Service. The Type of Service listed on the Air Operator Certificate is Aerial Work. The type of aerial work includes parachute jumping. Section 605.23 of the CARs does require a restraint system for each person carried for the purpose of parachute jumping but lacking that system does not breach the requirement at (e) for an air operator to maintain aircraft properly equipped for the Day VFR operation.

The Minister has proven his case condition (j). The evidence that I have accepted proves that on August 21, 1999 CF-NXM was certified for four occupants but carried more. As I have determined that no restraint system was in place, none of these occupants would have been restrained. Mr. Ereaux's expert opinion was that having no restraint system created an unsafe situation.

As well the evidence of Mr. Ereaux establishes that Type Certificate limitation for occupants was four on the day in question. The Type Certificate also required a restraint system for four. The Type Certificate is the basis of the certification. A configuration contrary to the Type Certificate has the effect of rendering the aircraft not airworthy as the Certificate of Airworthiness is predicated on conformance to the Type Certificate. The very definition of "airworthy" in section 101.01 of the CARs is: "in respect of an aeronautical product, means in a fit and safe state for flight and in conformity with its type design". (Emphasis added)

Paragraph (j) specifies that the air operator shall conduct a safe operation. The operation of this aircraft on August 21, 1999 did not fall within that parameter, as it carried more occupants than it was, at that date, certified for and the aircraft lacked a restraint system for those occupants.

The Air Operator Certificate itself in General Conditions states that the certificate is issued subject to the following conditions (a-j), and shall remain valid ... as long as these conditions are complied with. Not being in compliance with (j), conducting a safe operation, is sufficient for the Minister to invoke a suspension.

DETERMINATION

I confirm the Minister's decision to suspend the Air Operator Certificate of Sky-Dive Unlimited Incorporated.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Ronald E. McLeod, Pierre Beaudry


Decision: May 5, 2000

We confirm the Minister's decision to suspend Air Operator Certificate No. 008476 issued to Sky-Dive Unlimited Incorporated. Accordingly, the appeal is dismissed.

An Appeal Hearing in the above matter was held Thursday, January 27, 2000, at 10:00 hours at the Truro Justice Centre, in Truro, Nova Scotia.

BACKGROUND

The Minister of Transport issued a Notice of Suspension of Air Operator Certificate number 008476 of Sky-Dive Unlimited Incorporated (Sky-Dive), on August 23, 1999. This Notice, issued pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, sets out the following grounds of suspension and conditions for reinstatement of the certificate:

Grounds for the Suspension or Cancellation

Raison de la suspension ou de l'annulation

Conditions for reinstatement

Conditions pour rétablissement

The air operator is not in compliance with Air Operator Certificate General Conditions (as specified in CARs 702.09) which state in part

(e) the air operator shall maintain aircraft that are properly equipped for the area of operation and the type of operation;

in that the aircraft does not have a restraint system as required in CARs 605.23.

(j) the air operator shall conduct a safe operation;

in that more parachutists were on board than the flight authority allowed as per 605.03 (none of the parachutists had a restraint system as required by 605.23).

The aircraft must be equipped with a restraint system as required by CARs 605.23.

An audit is to be conducted by Transport Canada to verify that SKY-DIVE UNLIMITED INCORPORATED has met the requirements of CARs 702.07.

Failure to meet the conditions for reinstatement by October 23, 1999, will result in the Minister revisiting the matter, and may result in the issuance of a Notice of Cancellation.

The Notice of Suspension referred to above indicated that the suspension would be effective on August 23, 1999 and that the company, if it wished a review by the Civil Aviation Tribunal, should make application to the Tribunal by September 24, 1999. Subsequently, a Notice of Hearing was sent to the parties setting October 20, 1999 as the date for the review hearing. This appeal resulted from the determination made by Mr. Allister Ogilvie following the review hearing on October 20, 1999. That determination dated November 9, 1999 confirmed the Minister's decision to suspend the Air Operator Certificate of Sky-Dive Unlimited Inc.

GROUNDS FOR APPEAL

By letter dated November 24, 1999 Sky-Dive appealed the review determination on the following grounds:

The Minister did not prove that there was no restraint system in the aircraft CF-NXM on August 21, 1999 and the Tribunal has made an error in law, in that the onus has been placed on Sky-Dive to show that there was a restraint system in the aircraft CF-NXM on August 21, 1999.

THE LAW

Subsection 605.22(1) of the CARs:

605.22 (1) Subject to subsection 605.23, no person shall operate an aircraft other than a balloon unless it is equipped with a seat and safety belt for each person on board the aircraft other than an infant.

Section 605.23 of the CARs:

605.23 An aircraft may be operated without being equipped in accordance with section 605.22 in respect of the following persons if a restraint system that is secured to the primary structure of the aircraft is provided for each person who is

[...]

(b) carried for the purpose of parachuting from the aircraft; or

[...]

APPELLANT'S SUBMISSIONS

Mr. Mowry on behalf of the Appellant submitted that the Tribunal breached the rules of natural justice because the burden of proof in this case is that of a reasonable doubt. It is the conclusion a common person would come to on the evidence and that there was more evidence showing seat belts rather than the contrary. He submitted that the aircraft was fit and safe and that there was no evidence to show that it was not. The only evidence was the testimony of the inspectors who said they casually looked into the aircraft. The inspectors acknowledged that they did not see the seat belts and they conceded that they could have been under the mat. Exhibit M-8, the Conformity Certificate, indicates that there were seat belts in the aircraft on the date of the CCI report (Condition and Conformity Inspection) however the date of the report is the date of issue of the report rather than the date of the installation. Transport Canada did not introduce the aircraft technical records and the burden of proof is on them to show that the seat belts were not in the aircraft, thus the Appellant submits that the Tribunal has made an error.

At this point in his submission the Appellant's representative stated that at the review hearing he had not given evidence. All of the witnesses were called by Transport Canada and they were able to list their qualifications. He stated that he would like at this time to make statements regarding his qualifications so that the appeal panel would know of his experience. The panel declined to accept such statements as the company had not presented any evidence at the review and in the view of the appeal panel such statements would not be relevant to the issues to be decided at the appeal.

Mr. Mowry then stated that on August 23, 1999 the company received a notice of suspension and on the following Thursday, Transport Canada carried out an audit and on Friday the Air Operator Certificate was reinstated.

Mr. Mowry then reviewed the last paragraph on page 2 of the determination referencing Mr. Ereaux's evidence that the Type Certificate Data Sheet specified the details of the design and the number of seats and occupants being four, which was the aircraft in its original configuration. However, he stated that the aircraft was not in its original configuration.

Mr. Mowry stated that it was Transport Canada's evidence that the aircraft can be modified. He cited page 3 of the decision indicating that the Supplemental Type Certificate (S.T.C.) was issued to Mr. Mowry on July 19, 1994 and he also referred to Exhibit M-8 which is a Conformity Certificate. It was Mr. Ereaux's testimony that this form is utilized to report to Transport Canada on a modification or repair to an aircraft stating that the work was accomplished in accordance with approved data.

Mr. Mowry submitted that because the paperwork was not filed, it is alleged that the aircraft was not safe for flight. That is, that the S.T.C. was not filed with Transport Canada. The Appellant readily conceded the number of persons on board the aircraft and urged that there was nothing unsafe as the aircraft had seat belts and was in a fit and safe state for flight.

MINISTER'S REPRESENTATIONS

Mr. Hector for the Minister stated that the Appellant was arguing his case on the burden of proof applicable to criminal cases. The standard of proof applicable in this case is the civil standard which is that referred to at page 3 of the case of Selbstaedt v. Minister of Transport and also in the more recent case of Minister of Transport v. Sewell heard January 5, 1999.[1] He submitted that the Minister having proved his case on a balance of probabilities, the burden of proof shifts to the Appellant to establish its case on a balance of probabilities.[2]

Following discussions regarding the aircraft technical logs which Mr. Mowry indicated he had in his possession at both the review and appeal hearings, the issue arose as to whether these logs should be produced at the appeal. Mr. Hector stated that they were available but not presented at the review hearing and would thus be new evidence at the appeal. On the basis of their availability at the review and on the fact that their contents would not be relevant to the issues before it, the panel elected not to accept the technical logs for perusal. In reaching this decision, the appeal panel noted that the contents of the technical log would not allow for a greater number of occupants than that reflected in the Conformity Certificate of August 1999 in any event.

Mr. Hector urged that the review Member's determination was based upon several findings of fact and cited Tribunal case law[3] indicating that such findings should not be disturbed on appeal unless they are unreasonable. He stated that the Member found that on August 21, 1999 the aircraft CF-NXM was certified for four occupants. Mr. Hector asserted that the Member's finding was based on the evidence of the Type Certificate Data Sheet for the aircraft type, a Cessna 182, which showed that the number of seats certified for the aircraft was four. The Member's finding was also based on the testimony of John Ereaux, the Regional Manager, Aircraft Certification, Transport Canada, Atlantic Region who had worked in the aircraft certification field for many years and who was accepted by the Member as an expert witness.

Mr. Hector then summarized Mr. Ereaux's evidence found at pages 94, 101 and 102 of the transcript:

  1. that the Type Certificate Data Sheet refers to all models of Cessna 182 aircraft including CF-NXM;
  2. it is used to specify the details of the type design;
  3. it is accepted in Canada as the Canadian airworthiness standard for the Cessna 182 aircraft; and
  4. the limitation in the Type Certificate Data Sheet applicable in this instance was the number of occupants and the number of seats—four.

Additionally, Mr. Hector stated that at page 6 of the determination, the Member found that on August 21, 1999 the aircraft completed five flights, the first with six occupants on board, and the following four flights with five occupants on board. This finding was based on the evidence of the two Transport Canada inspectors Miles and Thompson who testified that they observed five jumpers exit the aircraft on the first flight and four jumpers on each of the four subsequent flights and from that concluded that six occupants were on board on the first flight and five occupants were on board on the four subsequent flights.

Mr. Hector asserted that the Member found, on the balance of probability, that there was no restraint system other than the pilot's seat belt in the aircraft on August 21, 1999. The Member based his finding on the consistent testimony of Inspectors Miles and Thompson that there was no restraint system in the aircraft, other than the pilot's seat belt, when they checked the aircraft on August 21, 1999. Inspector Miles also testified that he had asked Mr. Mowry what type of restraint system he was using and was told that nobody uses any restraint system. Mr. Hector reminded the panel that the Member at first instance found that the statement of Mr. Mowry, that nobody uses any restraint system, was an admission against interest admissible under the technical rules of evidence as an exception to the hearsay rule and was thus admissible under the more relaxed evidentiary rules of the Tribunal. Accordingly, he submits that the Member's finding that there was no restraint system on board the aircraft on August 21, 1999 was not unreasonable.

Finally, Mr. Hector submitted that the Member found that having no restraint system created an unsafe situation and that this finding was not unreasonable. He summarized that the Member based his findings on the fact that the aircraft was certified for four occupants on August 21, 1999, that the Type Certificate required a restraint system for four and that a configuration contrary to the Type Certificate had the effect of rendering the aircraft not airworthy. He stated that the Member also based his findings on the testimony of Mr. John Ereaux, the expert witness who testified that lack of a restraint system created an unsafe condition because a restraint system was required to protect occupants from the effects of rapid deceleration during an emergency landing or from the effects of turbulence.

ANALYSIS

In this matter the burden is on the Minister to prove its case not to the criminal standard of beyond reasonable doubt but rather to the civil standard of balance of probabilities. This civil standard of proof was established in the early case of Minister of Transport v. Thomas Ritchie Phillips[4] which has been upheld in all subsequent Tribunal jurisprudence.

The facts of the present case are not disputed. In fact the Appellant concedes that on August 21, 1999 five parachutists were dropped from the aircraft in question and a further four more drops were made with four jumpers disembarking each time. The testimony of the Transport Canada inspectors with respect to their observations as to the number of jumpers exiting the aircraft on the five flights was not challenged by the Appellant in cross-examination and was admitted by the Appellant at the appeal hearing. The two inspectors from Transport Canada who observed these drops during routine surveillance later viewed the parked aircraft and gave testimony that they did not view any restraint system installed to restrain the jumpers in the aircraft. The Appellant's Air Operator Certificate was suspended on August 23 and reinstated on August 27, 1999 following some modifications to the aircraft.

The evidence in this case shows that aircraft CF-NXM was certified for four occupants on August 21, 1999 the day on which the aircraft completed five flights, the first having six occupants and the other four with five occupants on board. The Tribunal Member found the testimony of Inspectors Miles and Thompson to be consistent in that neither one saw a restraint system on board that day other than that of the pilot. Additionally, on the date above stated Mr. Mowry stated to Inspector Miles that nobody used any restraint system, a statement which the Tribunal Member found admissible as an exception to the hearsay rule and one which he took at its face value.

The Conformity Certificate dated on August 27, 1999 certified that the S.T.C. was completed although Mr. Mowry was granted permission to utilize it by letter of July 18, 1994. While no evidence was adduced as to the actual date of the modification, it is clear from the evidence that the net effect of the modification to install the S.T.C., coupled with its report in the Conformity Certificate changed the Canadian certification from four to five occupants for parachute operations. On this basis it is clear that there were not sufficient restraint systems for the number of occupants on August 21, 1999. Accordingly, the Tribunal Member's finding that the Minister had proved on a balance of probability that there was no restraint system in the aircraft on August 21, 1999, other than the pilot's seat belt is not unreasonable.

We also agree that the Tribunal Member's conclusion that having no restraint system created an unsafe situation is not unreasonable having regard to the evidence of Mr. Ereaux. This evidence established that on the relevant date the Type Certificate limitation for occupants was four and that the Type Certificate required a restraint system for four. Accordingly, the aircraft configuration which was contrary to the Type Certificate had the effect of rendering the aircraft not airworthy as the Certificate of Airworthiness is predicated on conformance to the Type Certificate. We concur with the Tribunal Member's finding that the aircraft was unsafe and not in compliance with condition (j) of the General Conditions of its Air Operator Certificate as the aircraft was not airworthy which by definition "in respect of an aeronautical product, means in a fit and safe state for flight and in conformity with its type design".

DETERMINATION

We confirm the Minister's decision to suspend Air Operator Certificate No. 008476 issued to Sky-Dive Unlimited Incorporated. Accordingly, the appeal is dismissed.

Reasons for Appeal Determination:

Faye Smith, Chairperson

Concurred:

Dr. Ronald McLeod, Member
Pierre Beaudry, Member


[1] Norbert A. Selbstaedt v. Minister of Transport, CAT File No. C-0081-02. Minister of Transport v. Darrell Allen Sewell, CAT File No. A-1708-33.

[2] Richard Noël v. Minister of Transport, CAT File No. Q-0435-33. Stéphane Leblanc v. Minister of Transport, CAT File No. O-1233-37.

[3] Minister of Transport v. Trent Wade Moore, CAT File No. C-0138-33. Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33.

[4] CAT File No. C-0014-33, Appeal Determination, January 26, 1987.