Decisions

CAT File No. Q-0439-37
MoT File No. NAP6504-Z-23717

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Richard Pizzardi and Donald Doyle, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985 , c. A-2, s. 7.7, 8, 4(1)
Air Regulations, C.R.C. 1978, c. 2, s. 534(2)(a), 826(1)

Vicarious Liability, Low flying, Journey Log Entries, Built-up Area


Review Determination
Pierre Rivest


Decision: November 3, 1995

TRANSLATION

I uphold the Minister's allegations to the effect that paragraph 534(2)(a) and subsection 826(1) of the Air Regulations have been violated, as well as the moneta...ry penalty of $650.00 assessed pursuant to subsection 8.4(1) of the Aeronautics Act on Messrs. Richard Pizzardi and Donald Doyle. This amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of the present determination.

The Review Hearing in the above matter was held October 24, 1995 at the Federal Court of Canada in Montreal, Quebec.

BACKGROUND

Messrs. Richard Pizzardi and Donald Doyle, Respondents, are accused under subsection 8.4(1) of the Aeronautics Act of contravening paragraph 534(2)(a) and subsection 826(1) of the Air Regulations on October 6, 1993 around 11:30 hours, as owners of the Cessna 172 aircraft registered as C-GBPR.

The said aircraft allegedly flew over the village of Saint-Blaise, Quebec at an altitude of less than 1,000 feet above the ground within a radius of 2,000 feet; in addition, the flight in question was not entered in the aircraft's journey log.

Since the assessed monetary penalties of $500.00 for the first contravention and $150.00 for the second had not been paid by the deadline of November 4, 1994, the case was referred to the Civil Aviation Tribunal for review.

THE FACTS

I. Introduction

The hearing was conducted in both official languages of Canada with simultaneous interpretation. The hearing began 1 hour 15 minutes late because the facilities for interpretation were not ready when we arrived.

The interpreters were Mrs. Margaret Heap, Mrs. Najet Glenza and Mr. Arnaud Varent. The stenotypist was Mr. M. Bérubé.

After the customary introductions, I summarized the allegations, explained the proceedings I intended to conduct and ensured that all parties were in agreement with these, including the issue of simultaneous interpretation.

The parties confirmed to me that except for the documents preceding the hearing and those related thereto, no other document or oral or written exchange was made by the parties. However, to release one witness whose sole purpose was to confirm the authenticity of one document (Exhibit M-4), the Respondents accepted the document in question, as they saw no interest in retaining the witness for this purpose.

The Minister's representative, Mr. Umberto Tamborriello, informed the Tribunal that in the notice of contravention, at page 2, the time of the offence was mistakenly omitted, but that it was around 11:30 hours. The Respondents raised no objection to this addition and the Tribunal accepted this supplementary information.

I also decided that we would hear arguments in two stages: first on paragraph 534(2)(a) and then on subsection 826(1) of the Air Regulations. However, the submissions as well as the testimony on the first offence could apply to the second; the arguments would cover both counts.

Given that the witnesses were together at the time of the incident and that they were likely to testify to similar observations, I requested exclusion of the second witness.

The witnesses chose to be sworn in.

II. Paragraph 534(2)(a) – Examination of the Applicant's first witness, Noël Richard

In his testimony, the witness related the following points:

  1. He confirmed the date, time and his location, at 786 Principale Street in Saint-Blaise, when the noise of an aircraft drew his attention.
  2. Looking out the window, he saw an aircraft flying low as if preparing to land in the field.
  3. The aircraft then began flying in a zigzag course, making "S" manoeuvres and two overflights (the witness used the term "passes"). The witness estimated the altitude of the aircraft at about 60 to 70 feet, based on the height of the trees at the end of the field; while over the field, the aircraft descended to about 15 to 20 feet: this time, he used the height of some poles, which stand 18 feet high: "just as if he wanted to land," the witness repeated.

    His brother Luc and his mother observed the same manoeuvres. There are windows on all sides of the house.
  4. In his statement to constable S. Veilleux of the Royal Canadian Mounted Police (see Exhibit M-1, pp. 2 and 3), the witness gave the same description of the manoeuvres in question. The manoeuvres allegedly lasted about thirty minutes.
  5. He was unable to read the aircraft's registration because he did not leave the house; it was his brother Luc who informed him of these registration markings about ten minutes later, once he had reached his work place.
  6. Since he did not consider this normal, around 14:00 hours that same day, the witness contacted the Saint-Jean airport, then he contacted the Sûreté du Québec, who referred him to the RCMP.

III. Cross-examination

Respondent Donald Doyle conducted the cross-examination. Mr. Doyle spoke to the witness in French.

Reviewing certain questions and answers from Exhibit M-1, Mr. Doyle highlighted the following points:

  1. To question no. 1, the witness specified that he had some knowledge of aviation and could identify Cessna aircraft, for example.
  2. The witness repeated that he had not seen the aircraft's identification and that it was his brother who gave it to him, about ten minutes later. This statement was repeated again in reply to question no. 7 in Exhibit M-1. However, he confirmed that this was a blue and white Cessna 182.
  3. In reply to question no. 5, the witness repeated that it was his impression the aircraft was attempting to land because the flaps were lowered halfway. Since there is no aerodrome in the immediate vicinity (question no. 6), if an aircraft wishes to land at Saint-Blaise, it would have to do so in a field.

    The witness explained that there are fields all around the village but that he did not see the aircraft fly over the other fields; instead, the aircraft was flying "S" manoeuvres on both sides of the village's main road.
  4. Using a sheet of paper (Exhibit D-1) on which figures and letters had been written, the Respondent then asked the witness if he knew how to read and write. The witness replied that he did and read what was written on the sheet.
  5. As a final question, the witness was asked whether he knew the distance from the U.S. border to Saint-Blaise; his answer was vague: "not far from Saint-Blaise." The Applicant's representative objected to this question as irrelevant, but I allowed it under reservation as to its later use.

IV. Second examination by the Applicant

The purpose of this examination was to have the witness explain the difference between a Cessna 182 and 172.

He answered that the first has a three-wheel landing gear (the expression "three-point" was used), with two main wheels and one nose wheel, while the second has two main wheels and one tail wheel.

What he saw was an aircraft with two main wheels and one nose wheel.

V. Second cross-examination

  1. The Respondent exhibited three photographs of aircraft (Exhibits D-2, D-3 and D-4) and asked the witness whether he could identify them and compare them with what he saw. He replied that the aircraft in D-2 did not resemble what he saw, that he did not know the one in D-3 and, after hesitating, that the aircraft in D-4 resembled the one he had seen, but which had different colours, white and blue instead of yellow and white as in the photograph.
  2. The Respondent then had the witness confirm that he did in fact say "number" to the RCMP constable when referring to the aircraft's registration markings (reference to Exhibit M-1), that he was alone with the constable while making his statement and that he did not subsequently discuss the case with his brother.

Note: Since he had no further questions for the moment, the Respondent asked the Tribunal to grant him the privilege of questioning the first witness again after hearing the second witness; despite an objection by the Applicant, I granted this privilege, and then requested exclusion of the first witness.

VI. The Applicant's second witness: Luc Richard

His testimony revealed the following points:

  1. At the same time and day and in the same location, the witness described the manoeuvres of the aircraft in a way comparable to that of his brother Noël (he indicated the location of the house on map M-2) and confirmed the aircraft's colours, white and blue.

    He spoke of a north-to-south trajectory crossing the village's main road.
  2. He estimated the lateral distance of the aircraft from the houses at about 200 feet.
  3. On the issue of the registration markings, he confirmed that he did not see these at his brother's home, but upon arriving at work about 20 minutes later: This was in fact the same blue and white aircraft: He then informed his brother of the registration letters: C-GBPR; he was very definite on this point.

VII. Cross-examination

The Respondent exhibited Exhibit D-5, a photocopy of the witness' statement to the RCMP constable on April 19, 1994. The witness recognized the document and his signature. Just as with the previous witness, the Respondent proceeded by using the numbers of the questions and answers in the document.

  1. End of question no. 7 and question no. 8: the Respondent pointed out to the witness that when referring to the aircraft registration markings, he used the term "number", although he gave the registration in letters. Since this was not a question, the witness did not respond to this observation.
  2. Question no. 9: the witness confirmed that he did say the aircraft was yellow and white.
  3. The witness then gave a more detailed description of the aircraft's manoeuvres than in his statement to the RCMP (Exhibit D-5, answers to questions nos. 3 and 7). It was particularly when he arrived at work, five or six kilometres from his brother's house (see location of work place on the map, Exhibit M-2), that the witness was able to better observe the aircraft's manoeuvres.
  4. The witness in turn was questioned on the distance from Saint-Blaise to the U.S. border and the Saint-Jean airport, but could not specify this.
  5. In this witness' opinion, the aircraft did not appear to be attempting to land, even though the village of Saint-Blaise, as well as his work place, is surrounded by fields; he insisted that this was just an overflight, and he again described what he had told the RCMP constable (Exhibit D-5).
  6. Using the same photographs of aircraft as with the previous witness (Exhibits D-2, D-3, D-4), the Respondent asked the witness whether he could find a resemblance between these aircraft and the one he had seen on October 6, 1993.

    The witness replied that he had no knowledge in aviation and that except for the colours, which were similar in photos D-2 and D-4, he could add nothing else.
  7. The Respondent then wanted to know why the witness' statement to the RCMP was made several months (in fact, six months) after the incident. The witness replied that it was the RCMP who called him.
  8. The Respondent then returned to the issue of the aircraft's colours.

    1. Why had the witness replied to the Minister's representative (see paragraph VI.1 above) that the aircraft's colours were blue and white when he had indicated yellow and white in his statement (Exhibit D-5)?
    2. The witness replied that there may have been some confusion about the colour, especially after six months; it was not his habit to make mistakes, but this was possible as with any human.
    3. Had the witness discussed the case with the Minister's representative? Yes, but the latter had never told him the colour of the aircraft.
  9. Finally, the witness confirmed with conviction that the aircraft he had seen at his brother's house the first time was the same as that he saw once he reached his work place: he was "very sure" of this.

VIII. Second examination by the Applicant

Mr. Tamborriello had the witness state that he had no knowledge of aviation and all he could say about the photographs (Exhibits D-2, D-3, D-4) was that the landing gear wheels were not in the same arrangement and that the colours were different.

IX. Second cross-examination

The Respondent returned to the witness' knowledge of writing and reading: the witness correctly read the numbers and letters written on the sheet of paper previously entered as Exhibit D-1.

X. Final remarks by the Applicant

The Applicant filed a copy of the Certificate of Registration (Exhibit M-3) which identifies Messrs. Pizzardi and Doyle as owners of the Cessna 172 C-GBPR.

Since the Applicant's evidence was complete, the Respondent indicated that he had no intention of recalling either of the two witnesses, who were released by the Tribunal.

Note: at this point in the hearing, the Respondents informed the Tribunal that they had no intention of appearing, had no witnesses to call, and no fact, document or other evidence to submit with respect to paragraph 534(2)(a) of the Air Regulations.

XI. Subsection 826(1) of the Air Regulations

  1. The Applicant, with the consent of the Respondents, produced document M-4, a photocopy of the journey log for the aircraft registered as C-GBPR.

    Mr. Tamborriello pointed out to the Tribunal that there was no entry made for October 6, 1993, contrary to the requirements of subsection 826(1) of the Air Regulations.

    Using Exhibit M-3, he again confirmed that on October 6, 1993 this aircraft was owned by Messrs. Richard Pizzardi and Donald Doyle, the Respondents.
  2. No cross-examination was conducted by the Respondents, and they did not wish to testify.

    This therefore concluded the submissions by both parties.

ARGUMENTS

I. The Applicant's Arguments

The Minister's representative, Mr. Tamborriello, stressed the following points:

  1. The two witnesses are not experts in aviation, although witness Noël Richard did say he was very interested in the subject.

    It therefore should come as no surprise that the first witness confused a Cessna 182 with a Cessna 172; in any event, the difference in terms of appearance is minimal. The most important point is that both witnesses confirmed that this was an aircraft with a "three-point" landing gear consisting of two main wheels and one nose wheel.
  2. The use of the term "number" by witness Luc Richard instead of "letters" when referring to the aircraft registration markings was simply an incorrect choice of terms; the witness still gave the letters for the aircraft and was convinced they were correct.
  3. The Notices of monetary penalty were sent to the owners of the aircraft pursuant to subsection 8.4(1) of the Aeronautics Act.
  4. With regard to paragraph 534(2)(a), the incident did in fact occur October 6, 1993 around 11:30 hours; although the time was not indicated on the notice of monetary penalties, it has not been contested by the Respondents.
  5. The flight over the village of Saint-Blaise was confirmed by both witnesses and was executed well below the limit of 1,000 feet within a radius of 2,000 feet, thus contravening paragraph 534(2)(a) of the Air Regulations.

    The key words in this paragraph are "... over the built-up area of any city ... such altitude shall not in any case be less than 1,000 feet above the highest obstacle within a radius of 2,000 feet ..."
  6. While there is no definition of "built-up area" in the Air Regulations, we can refer to several instances of jurisprudence such as Robert Maguire (Appellant) v. Her Majesty the Queen (Respondent), in Quebec Superior Court (Exhibit M-5).

    Section 534 is discussed at great length and the decision indicates in part:

    1. Page 4, fourth line from the bottom, reference to the Municipality of Sainte-Véronne (Pike River);
    2. Page 5, judge Louis-Philippe Galipeau describes what he means by built-up area; pages 6 and 7 (especially page 7, second and third paragraphs) give a clear definition of the term built-up area;
    3. Here, the Applicant's representative argues that there is no significant difference between the villages of Sainte-Véronne and Saint-Blaise, except that Saint-Blaise is slightly denser as a built-up area. The village of Sainte-Véronne is indicated on the map (M-2);
    4. In another decision by the Tribunal, Minister of Transport and Kelly Dean Dubé (CAT File No. W-0200-33) (Exhibit M-7, page 8, second column), during a review, several references to definitions of built-up areas are used (including that mentioned in (c)) and there is no doubt that all fit the description of the village of Saint-Blaise.
  7. In conclusion, we clearly are dealing here with a low-altitude flight over a built-up area, as prohibited by paragraph 534(2)(a).
  8. Finally, the Applicant cites the objectives of the regulations in terms of aviation safety, the grounds for the monetary penalty, half the maximum amount stipulated in the "designated provisions" pursuant to subsection 7.7(1) of the Aeronautics Act.
  9. On the second charge, the Applicant refers to subsection 826(1), the Air Navigation Order, Series VIII, No. 2, section 3, and its appendix, which describes all requirements and all information on entries that must be made in the aircraft journey log.

    This quite clearly was not done since there is no entry for October 6, 1993 in the aircraft journey log for C-GBPR.

    The monetary penalty of $150.00 was assessed under the same sections as for the preceding offence.

II. The Respondents' Arguments

Mr. Doyle presented the arguments, which focused on the following points:

  1. Referring to paragraph 534(2)(a) of the Air Regulations, he noted the clear indication that no person shall fly over a built-up area "... unless he is taking off, landing or attempting to land ..."

    It is therefore normal to fly over an area before landing. This occurs everywhere and is common, for example, in the North.
  2. Furthermore, witness Noël Richard confirmed that the aircraft was in a landing configuration. Exhibit M-2 shows that Saint-Blaise is surrounded by fields, as confirmed by both witnesses, that the same applies to the location where Luc Richard works, and that it is possible for an aircraft to attempt to land in one of these fields.

    Despite all this, given that the witnesses are not aviation experts, they cannot determine whether an aircraft is preparing to land or not.
  3. Witness Luc Richard indicated that the aircraft in photograph D-2 could be that flying over the area on the day of October 6, 1993, but that the colour was not the same. He was certain that it could not be the aircraft in photograph D-3.
  4. In turn, Mr. Doyle referred to the jurisprudence, exhibiting an excerpt from a determination (Exhibit D-6) and cited the case in which judges appear to make an exception for civil aviation, stating that the built-up area must be recognizable from the air.
  5. Both witnesses proved that they can read and write, yet both used the word "number" instead of "letters" when referring to the aircraft's registration.

    Moreover, witness Luc Richard replied to the Applicant's representative that the aircraft was blue and white, whereas he had told the RCMP constable that it was yellow and white.

    Thus, there was confusion between the two witnesses about the colours of the aircraft.
  6. Witness Luc Richard said he saw the aircraft for the second time about 20 minutes after the first. He also believes the U.S. border is not very far away.
  7. Both witnesses had discussed the case with the Minister's representative, and that explains why witness Luc Richard had changed his mind about the colours of the aircraft.
  8. Referring to the Certificate of Registration (Exhibit M-3), he pointed out that it does not indicate the colour of the aircraft.
  9. There is no entry in the aircraft journey log for October 6, 1993 because there was no flight.
  10. Finally, the journey log submitted was a photocopy of a temporary log. Examination of the permanent log would show that entries were always made; there was no obvious reason why one would suddenly be missing.

    Note: The permanent journey log was not in the Respondents' possession for a certain period of time because it was held by Transport Canada from June 16, 1993 until a later date than October 6, 1993, for another investigation. In any event, at the start of the hearing, the photocopy of the temporary journey log (Exhibit M-4) was accepted into evidence by the Respondents.
  11. Mr. Doyle closed by stating that all things considered, everything was based on the difficulty experienced by both witnesses in identifying the aircraft that flew over the village of Saint-Blaise on October 6, 1993.

This concluded the arguments.

ANALYSIS AND CONCLUSION

I. Analysis

The case can be summarized as follows:

There is no doubt in my mind, based on the witnesses heard and their written statements (Exhibits M-1 and D-5), that on October 6, 1993 an aircraft flew at a very low altitude over the village of Saint-Blaise.

We need only determine whether the flight falls within the exceptions in subsection 534(2) which prohibits low-altitude flights over a built-up area, as cited by the Applicant, which aircraft was involved, and who its owners are.

  1. We will first examine the consistencies

    1. Both witnesses give very similar descriptions of the same manoeuvres executed by the aircraft;
    2. These manoeuvres lasted 20 to 30 minutes and covered an area of about seven or eight square kilometres;
    3. This aircraft was equipped with a three-wheel landing gear (with a nose wheel);
    4. Both witnesses are by no means experts in aeronautics, although witness Noël Richard claimed an "avid interest" in aviation and had already logged one hour of flight (Exhibit M-1); this is why, for example, I place little importance on the fact that witness Luc Richard had difficulty identifying the aircraft in the photographs;
    5. Both witnesses proved that they know how to read; although they claimed they can write, this has not been proved and this last consideration has no impact on this case.
  2. We will now analyse the discrepancies

    1. Witness Luc Richard told the RCMP constable that the aircraft was yellow and white, while he said at the hearing that it was blue and white;
    2. Noël Richard maintains that his brother Luc called him 10 minutes after leaving the house, while Luc Richard says it was 20 minutes;
    3. Noël Richard identifies the aircraft as a Cessna 182, although it is actually a Cessna 172; however, in his statement to the RCMP, he refers to an aircraft of the Cessna 182 type (Exhibit M-4, question no. 4); yet the difference between the two, especially in flight, is not very clear, especially for the uninitiated; he also claims that a Cessna 172 is equipped with a tail wheel whereas it actually has a nose wheel; once again, this proves that he is not very knowledgeable in aviation.
  3. Other considerations

    1. Both witnesses used the term "number" rather than "letters" in reference to the aircraft registration. Yet the RCMP constable also used this expression (Exhibit M-1, question no. 4 and Exhibit D-5, question no. 8); I believe this is simply a popular expression, much as we talk about an "automobile licence number", when we should refer to a licence plate, which quite often contains numbers and letters.
    2. The first witness, Noël Richard, believed the aircraft appeared to be attempting to land, but his brother Luc did not. I will return to this point later.
    3. On the issue of the aircraft's colour, no attempt was made to determine whether witness Luc Richard, who confused the colours, is colour blind. Furthermore, the Applicant never asked the Respondents the colour of their aircraft. I place little importance on this fact because here again, it may be difficult to properly see the colours of an aircraft in flight, especially if it passes quickly due to low altitude; in addition, six months elapsed between the incident and witness Luc Richard's statement. The aircraft's identification is more important.
    4. On two occasions, the Respondents referred to the U.S.-Canada border and the Saint-Jean airport. Since they did not return to this point in their arguments, we can only speculate on the purpose of this line of questioning.
    5. On the issue of whether the village of Saint-Blaise constitutes a built-up area, the jurisprudence cited simply confirms this allegation, including the case cited by the Respondents (Exhibit D-6) which states that a built-up area must be "recognizable from the air". I therefore believe the flight executed over the village, as described by the witnesses and detailed in their statements to the RCMP (at very low altitude, loops in zigzag or "S" form, alternate dipping of wingtips, etc.), constitutes a violation of paragraph 534(2)(a) of the Air Regulations, thereby excluding all other paragraphs in the same section, including the intention to land. A pilot wanting to land in a field other than at an aerodrome must follow different procedures than those described at the hearing (fly rectangle around strip – "loop" – at much higher altitudes, take straight-line approach, climb again, fly over landing area, etc., but no zigzag or "S" manoeuvres); in addition to this, the Saint-Jean airport is only a few minutes' flight away.

      I take this opportunity to add that it would benefit everyone if Transport Canada Aviation provided a clear, practical and official definition of the expressions "built-up area" and "assembly of persons". This would avoid having a whole list of definitions that judges are forced to draw up each time the case arises, which runs the risk of creating even more confusion and even contradictions in the interpretation of these expressions.
    6. Finally, what I find most surprising is the fact that the Respondents did not wish to testify. If their aircraft did not fly on the day of October 6, 1993 or if it flew without their permission (subsection 8.4(1) of the Aeronautics Act), they would have had every interest in producing witnesses who could have confirmed, for example, that they had seen the aircraft on the ground at the time of the incident; the Respondents themselves could have reported their schedule of activities, etc. Their only defence was to say that the fact there was no entry in the aircraft's journey log proves that it did not fly, which is totally unacceptable.

      In turn, the Applicant had to prove, on a balance of probabilities, not beyond a reasonable doubt, that a violation of the regulations occurred; on this point, see the Civil Aviation Tribunal determination in an appeal of Minister of Transport and Gordon E. Boklaschuk, CAT File No. C-0141-33, September 10, 1990. At page 5 we read: "If Transport allege a contravention ... and establish on a balance of probabilities that a contravention has occurred, in absence of any other evidence, the case has been proven." Here, we have two witnesses who saw the same manoeuvres and one witness was able to identify the aircraft that executed these manoeuvres. No other evidence to the contrary has been submitted to the Tribunal.

II. Conclusion

I therefore conclude that an aircraft flew at low altitude over the village of Saint-Blaise, a built-up area, in contravention of paragraph 534(2)(a) of the Air Regulations.

Two witnesses for the Applicant described the manoeuvres. One of these witnesses identified the aircraft's registration. Since the witnesses are not aviation experts, it is normal for them to experience some hesitancy in answering specific questions such as identifying the various models they were shown in the photographs.

The discrepancies that emerged from the testimony of the two witnesses thus are not surprising and in no way mitigate the fact that an aircraft flew at very low altitude over the vicinity of the village of Saint-Blaise and that this aircraft's registration was C-GBPR.

Nor do I believe these incidents involved two different aircraft that may have flown over the same area during the same period of time.

I have heard no testimony that might convince me that the identification noted by witness Luc Richard was incorrect, even though he exhibited confusion over the colour of the aircraft.

I must also find that the flight did in fact take place but that this flight was not recorded in the aircraft journey log, in contravention of subsection 826(1) of the Air Regulations.

In both cases, subsection 8.4(1) of the Aeronautics Act applies, and the owners are found to have committed the aforementioned offences. The Certificate of Registration (Exhibit M-3) shows the owners of the aircraft to be Messrs. Richard Pizzardi and Donald Doyle.

I also find for the Applicant that such aerial manoeuvres constitute a hazard to persons or property on the surface of the earth.

DETERMINATION

I uphold the Minister's allegations that paragraph 534(2)(a) and subsection 826(1) of the Air Regulations have been violated, as well as the monetary penalties assessed pursuant to subsection 8.4(1) of the Aeronautics Act on Messrs. Richard Pizzardi and Donald Doyle.

Pierre Rivest
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Jacques Blouin, Suzanne Jobin


Decision: April 9, 1996

The Tribunal dismisses the Appeal and upholds the Tribunal's Review Determination. The monetary penalty of $650.00 is payable to the Receiver General of Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of the present Appeal Determination.

An Appeal Hearing on the above matter was held before the three designated Tribunal members, Tuesday, March 26, 1996, at 10:00 hours at the Federal Court of Canada, in the city of Montreal, Quebec.

BACKGROUND

Richard Pizzardi and Donald Doyle are appealing the Review Determination made by Pierre Rivest on November 3, 1995.

In the determination at first instance, the Tribunal upheld the Minister's allegations to the effect that paragraph 534(2)(a) and subsection 826(1) of the Air Regulations had been violated.

The grounds for the appeal can be summed up as follows:

  • The Tribunal member did not weigh properly the evidence presented at the Review Hearing.
  • The member did not consider all the evidence but solely the evidence supporting the Transport Canada case.
  • The member wrongfully applied the test of the balance of probabilities in assessing the Respondents' guilt.

ARGUMENT

The Appellants submitted in their arguments that, while he acknowledged some discrepancies in the testimony presented by the Respondent, the Tribunal member nevertheless did not take them into account in his determination. The whole appeal turns on the Appellants' contentions that the member's consideration of the evidence presented was inadequate and biased toward Transport Canada.

Based on those arguments and the grounds for appeal previously stated, the Appellants requested that the appeal be allowed and that the Minister's decision be overturned.

The Respondent argued that the member made no error justifying the intervention of the Appeal Panel. She underlined that the burden of proof required was adequately met and reminded the Appeal Panel that the standard to be applied in assessing the evidence is the balance of probabilities. Finally, the Respondent stated that the Minister has proven all the elements of the offence despite the presence of a few discrepancies in the testimony.

Consequently, the Minister requested that the Appeal be denied and the Review Determination be confirmed.

DISCUSSION

The Minister of Transport had to prove that the contraventions occurred, and the Appellants were not required to prove that they did not occur. They did not have to give any evidence or testimony.

Paragraphs 7.9(5)(a) and (b) of the Aeronautics Act provide the following:

(5) On a proceeding before a member of the Tribunal under subsection (4),

(a) the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister; and

(b) the person is not required and shall not be compelled to give any evidence or testimony in the matter.

The fact that the Appellants chose not to present evidence in this case did not change the burden of proof that the Minister of Transport had to meet. It is clear that the abstention from testifying or giving evidence is in no way an admission or an indication of guilt.

However, if the Minister is successful in proving a breach of the regulations, the Tribunal, in absence of any other evidence, has no choice but to find the Appellants in contravention of the regulations.

While the Aeronautics Act makes express provisions regarding the application of the rules of evidence, it is silent as to the criteria for assessing evidence. In previous determinations, notably:

  • Minister of Transport v. Thomas Ritchie Phillips
    CAT File No. C-0014-33
  • Stewart Lake Airways Ltd. v. Minister of Transport
    CAT File No. C-0093-10
  • Minister of Transport v. Norman A. Milne
    CAT File No. C-0090-33
  • Minister of Transport v. 123582 Canada Inc.
    CAT File No. Q-0274-41
  • Norbert A. Selbstaedt v. Minister of Transport
    CAT File No. C-0081-02
  • Springdale Aviation Ltd. v. Minister of Transport
    CAT File No. A-1048-10

the Tribunal adopted the test of the balance of probabilities. In the case between Selbstaedt v. Minister of Transport, the Tribunal stated the following:

The Tribunal in weighing the document holder's right to procedural fairness and natural justice and the Minister's obligation to maintain an adequate level of public safety have determined that the standard of proof to be imposed on the Minister is not the criminal standard of "proof beyond a reasonable doubt" but the civil standard of "proof on a balance of probabilities".

The Appeal Panel believes that Pierre Rivest opted rightfully for the balance of probabilities of the weight of evidence as the standard of proof required by the Tribunal.

The assumption that the Tribunal member has not properly weighed the evidence before him or did not consider all the evidence is not founded. Having reviewed the record and considered the representations of the parties, we believe that the member has made no error justifying the intervention of the Appeal Panel on that matter. Pierre Rivest has dealt in a satisfactory manner with all those issues and has properly weighed all the evidence before him.

The stated offences are offences of strict liability. Once the Minister has proven, on the balance of probabilities, that the contraventions occurred, the evidentiary burden shifted to the persons being prosecuted. The Appellants have not availed themselves of any exceptions or any defence available under the Aeronautics Act.

It is up to the Appellants to establish that they fall within one of the exceptions provided by the legislation. It is not up to the Minister to prove the exceptions.

For the above reasons, the Tribunal dismisses the Appeal and upholds the Tribunal's Review Determination.

Reasons for Appeal Determination by:

Suzanne Jobin, Member

Concurred:

Faye Smith, Chairperson
Jacques Blouin, Member