Date: 1999-06-08
Docket: T-2410-97
BETWEEN:
| MARK FRANK KILLEN |
Applicant
- and -
MINISTER OF TRANSPORT
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Civil Aviation Tribunal (the "Tribunal") dated the 24th of September, 1997 wherein the Tribunal set aside an earlier Review Determination made by a member of the Tribunal and reinstated a monetary penalty of $500 imposed against the applicant pursuant to section 7.7 of the Aeronautics Act (the "Act").1
[2] Section 7.7 of the Act provides a means by which the respondent, where he or she believes on reasonable grounds that a person has contravened a "designated provision", may notify the person of the allegation against him or her and impose a penalty. An elaborate procedure involving first, a member of the Tribunal and then a panel of at least three members of the Tribunal, is established to review impositions of such penalties where the person alleged to have contravened a "designated provision" wishes to dispute the imposition.
[3] The "designated provision" here at issue is section 534 of the Air Regulations (the"Regulations")2. The relevant portions of section 534 of the Regulations, at the relevant time, read as follows:
... "special purpose operation" means an operation in which
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534.(1) Dans cette section ... "travail aérien spécialisé" désigne une opération dans le cadre de laquelle, selon le cas:
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| ... (2) Except as provided in subsections (4), (5) and (6), unless he is taking off, landing or attempting to land, no person shall fly an aircraft ...
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... (2) Sauf dans les cas prévus aux paragraphes (4), (5) ou (6) et pour les besoins du décollage, de l"atterrissage ou des tentatives d"atterrissage, il est interdit à quiconque pilote un aéronef ...
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| ... (5) A person may fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where
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| ... (5) Une personne peut piloter un aéronef à une altitude inférieure à celle prévue à l"alinéa (2)(b ), si
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It was not in dispute before me that the applicant is a "qualified flight instructor", and that subsections 534(4) and (6) of the Regulations are not relevant for the purposes of this matter. Further, no authorization issued by the Minister was alleged.
[4] The background facts were also not in dispute. They may be briefly summarized as follows. On the 7th of February, 1996, the applicant was operating as a flight instructor with a pupil, Robert Bushey. The applicant and Mr. Bushey were flying in the "practice area" northeast of an airport. The purpose of the flight that day was to practice forced and precautionary landings as outlined in the Flight Training Manual prepared on behalf of the respondent. Knowledge in the area of conduct of forced and precautionary landings is a prerequisite to a pilot"s license examination.
[5] Both the applicant and Mr. Bushey were of the view that their flight was conducted without incident.
[6] While the flight was being conducted, a complaint was received by the respondent to the effect that the flight had been conducted at a very low altitude and in a manner that created a hazard to persons or property. The applicant was advised of the complaint. The assessment of the penalty against the applicant followed. The applicant sought review of the assessment before a member of the Tribunal.
[7] The Tribunal member determined that:
In view of the fact that there is no evidence that a hazard was created, subsection 534(5) of the Air Regulations approves the flight which was conducted. Accordingly paragraph 534(2)(b) is not applicable to this flight, and I therefore dismiss the allegations of the Minister.
[8] The Minister took the matter on appeal to a three member panel of the Tribunal. The essence of the decision here under review is reflected in the Tribunal"s reasons of appeal determination in the following terms:
It is therefore the task of this panel to determine whether Mr. Killen flew at an altitude of below 500 feet so as to bring the flight within that paragraph [paragraph 534(2)(b) of the Regulations]. We are satisfied on the evidence that Mr. Killen and Mr. Bushey were in the practice area ... doing precautionary and forced landings on February 7, 1996. Exhibit M-2 is a daily flight log for this date identifying Mr. Killen as pilot -in-command. In this regard we reject the suggestion that a second aircraft with similar markings conducted the flight in question. There was no confusion regarding the aircraft identification, and we are satisfied that Mrs. Matheson [the complainant] correctly identified the aircraft in her report to the airport immediately following the incident.
At pages 22 to 27 of the transcript is the evidence of Mrs. Matheson. Notably at pages 23 and 24 she indicates that at the relevant time she had watered some 2-year-old horses and had moved over to the pen beside the barn on the east side when she noticed a plane coming in over the hay field to the east, taking a look and then flying off. She went back to water the same horses, and they were in really close. She reported that all of a sudden the plane was over top of her. It had come in from the east. She looked up and there it was. She dropped the bucket and ran after the plane. It was flying west. She indicated that it flew over an old cattle barn which was about twenty feet high, and the plane was beside or just above it. It was headed for the trees; it dipped its wings and headed for a spot where the trees were a little bit thinner and lower. She reported that the plane made it just over the trees and went back west to St. Andrews Airport. ...
When the aircraft dipped its right wing, she could see the letters on the aircraft. She then called the airport to report the incident.
We find Mrs. Matheson"s evidence to be very credible, and we have no difficulty in making our determination that the flight path was directly as indicated... and that the flight was made in contravention of paragraph 534(2)(b) of the Air Regulations having been conducted at an altitude well below the 500-foot requirement.
Having determined that the Minister has made out a breach of paragraph 534(2)(b) of the Regulations on a balance of probabilities, it now falls to be decided whether this flight was exempted by subsection (5). We hold as did the Tribunal Member at review that this flight falls within the definition of "special purpose operation" and is granted the considerations of subsection (5) for lower flight than that required under paragraph 534 (2)(b) of the Regulations.
The exemption contained in subsection (5) is granted on the conditions set out, in that the flight must be conducted without creating a hazard to persons or property; and that aircraft is flown in a purpose operation of a nature that necessitate the flight at the aircraft at such lower altitude.
...
In the instant case, we have the evidence of Mrs. Matheson regarding the circumstances of the flight placing the aircraft in close physical propinquity to herself and the horses. The onus shifts to Mr. Killen to prove that the flight was conducted without hazard, and this he has not done. He has called no evidence respecting the training flight and in all probability has no specific recollection of it. He and his student pilot stated generally that they would always comply with the rules.
Additionally, in our view the second condition requires proof that, in carrying out the activity of precautionary and forced landing procedures, it is necessary to fly at lower altitudes than those set out in paragraph 534(2)(b). No evidence was adduced regarding the conduct of such training flights, and hence there is no evidence on record to satisfy this panel that flight below 500 feet was necessary for this training flight. [underlining regarding the credibility of Mrs. Matheson"s evidence only added by me for emphasis]
[9] Counsel for the respondent urged that, on a judicial review such as this, the standard of review is patently unreasonableness. He referred me to Canada (Attorney General) v. Public Service Alliance of Canada3 for this proposition. I find little on which to conclude that the Tribunal whose decision is here under review is the equivalent of the Board whose decision was under review in the PSAC case which was described by Mr. Justice Corey as a "...Board composed of experts in the field of labour-management relations." While subsection 29(2) of the Act requires the Governor in Council to appoint to the Tribunal "...persons who have knowledge and experience in aeronautics", I take judicial notice of the fact that "aeronautics" is a very broad field and find that the issues that were before the Tribunal in this matter were not matters requiring particular expertise or beyond the ken of a reviewing court.
[10] Subsection 37(9) of the Act is a privative clause in the following terms:
| (9) A decision of the Tribunal on an appeal under this Act is final and binding on the parties to the appeal. |
(9) La décision rendue en appel par le Tribunal est définitive. |
I am not satisfied that this is as strong a privative clause as was under consideration in the PSAC case.
[11] I find the standard of review in this matter to be towards the middle of the spectrum between "patently unreasonableness" and "correctness".
[12] Counsel for the applicant urged that the Tribunal made three reviewable errors as follows:
| - first, in making a finding of credibility regarding a witness that was not before it based solely on a transcript and without having had an opportunity of seeing, hearing and observing the demeanor of the witness; |
| - second, by making a finding that on a "balance of probabilities", the applicant had breached section 534 of the Regulations and, in particular, by not making a finding that, "on a balance of probabilities", the applicant had not breached that section; and |
| - third, by making an erroneous finding of fact without regard to the material before it when it concluded that the applicant had not provided evidence respecting the training flight and in all probability had no specific recollection of the training flight when, counsel alleged, the applicant had in fact given evidence respecting the training flight which was supported by the evidence of the student pilot. |
[13] The Tribunal was faced with a difficult task. The Tribunal member whose decision was before it had made few findings of fact, having considered them not to be required, and having not evaluated the testimony before him in any meaningful way. Under the scheme of the Act, the Tribunal did not have an option of referring the matter back for rehearing by a Tribunal member nor did it have the option of rehearing the evidence itself. By virtue of subsection 8.1(4) of the Act, the sole options available to the Tribunal were to dispose of the appeal before it by dismissing it or allowing it. If the Tribunal allowed the appeal, it was empowered to substitute its decision for the determination appealed against.
[14] I find that the only option available to the Tribunal in the circumstances was to evaluate the testimony given before the member of the Tribunal on the basis of the transcript of that testimony. In doing so, it is indeed unfortunate that it adopted the language of "credibility" with respect to the testimony of Mrs. Matheson. It was simply not in a position to determine credibility. That being said, I am satisfied that it was open to the Tribunal to evaluate the evidence on the basis of the transcript and in so doing to give greater weight to the specific and detailed testimony of Mrs. Matheson as against the necessarily more generalized testimony of the applicant and his student pilot. Against a standard of review that accords some deference to the Tribunal, I am not prepared to determine that the Tribunal"s unfortunate adoption of the term "credible" reflects a reviewable error.
[15] Further, I can find no error of law or finding of fact made without regard to the material before the Tribunal that would, on any other basis, justify an intervention by this Court.
[16] In the result, this application for judicial review will be dismissed with costs to the respondent if demanded.
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Judge
Ottawa, Ontario
June 8, 1999
__________________1 R.S.C. 1985, c. A-3, as amended.
2 C.R.C. 1978, c.2 s. 534; amended, SOR/83-627, 28 July, 1983; subsequently amended; SOR/84-305, 13 April, 1984 as to the French version of paragraph 534 (5)(b) which, as amended, then read as follows:
b) l"aéronef sert à des opérations spéciales dont la nature exige le vol à une telle altitute. ;
and further amended; SOR 89-383, 25 July, 1989 to revoke the definition "opération spéciale" in subsection 534(1) of the French version and substitute the following:
"travail aérien spécialisé" désigne une opération dans le cadre de laquelle, selon le cas:
a) un aéronef est utilisé pour l"épandage ou la dispersion de produits, l"ensemencement, la fertilisation des récoltes, l"inspection des récoltes ou du bétail, la surveillance des pipe-lines ou des lignes de transport d"énergie électrique, ou autre opération semblable, les opérations de transport à l"élingue par giravion, ou la formation des pilotes donnée ou supervisée par un instrusteur de pilotage qualifié,
b) un aéronef commercial est utilisé pour l"aérophotogrammétrie, la photographie aérienne ou une autre opération semblable effectuée par un transporteur aérien. (special purpose operation) ;
To revoke the definition "special purpose operation" in subsection 534(1) of the English version and substitute the following:
"special purpose operation" means an operation in which
a) an aircraft is flown for the purpose of spraying, dusting, seeding, crop fertilizing, inspection of crops or livestock, pipeline or powerline patrolling, or any operation of a similar nature, rotorcraft external load operations, pilot training conducted by or under the supervision of a qualified flight instructor, or b) a commercial aircraft is flown for the purposes of the execution, by an air carrier, of aerial photography, aerial survey, or any operation of a similar nature. (travail aérien spécialisé) ;
and to revoke paragraph 534(5)(b) by the French version and substitute the following:
b) l"aéronef sert à un travail aérien spécialisé dont la nature exige le vol à une telle altitute.
The Air Regulations were repealed and replaced by the Canadian Aviation Regulations, SOR/96-433, 10 September, 1996 which came into force the 10th October, 1996.