TATC Decisions

Heard: Thunder Bay, Ontario, November 27, 1990

For the reasons attached, the appeal is denied and the monetary penalty is confirmed. A cheque in the amount of $400 shall be made payable to the Receiver General for Canada, and mailed to the Civil Aviation Tribunal, 4711 Yonge Street, Suite 702, North York, Ontario M2N 6K8, on or before March 28th, 1991.

The Appeal Hearing began at 09:00 hours at the Fort William Post Office Building, 221 North Archibald Street, 2nd Floor Boardroom, in the city of Thunder Bay, Ontario, on the 27th of November 1990.

THE APPEAL HEARING

This appeal was held at the request of Mr. Trent Wade Moore. He appealed a decision by Tribunal Member Robert J. MacPherson who, at a Review Hearing held in Winnipeg on March 29, 1990, confirmed the Minister's conclusion that Mr. Moore had contravened the low-flying regulations by overflying a boat on Miles Bay in Lake of the Woods, Ontario, in August of 1989. The hearing officer also upheld the Minister's decision to impose a $400 fine.

Transport Canada in Winnipeg sent Mr. Moore a Notice of Assessment of a Monetary Penalty dated September 20, 1989. It reads, 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: Air Regulation 534(2)(b) in that at or about 15:45 hours local time on August 15, 1989, at Miles Bay with a DHC-3 De Havilland Otter, bearing Canadian registration C-GYYS, elsewhere than over a built-up area at an altitude of less than 500 feet above the highest obstacle, to wit, a boat and occupants, within a radius of 500 feet of the aircraft.

The appropriate sections of the regulations read:

Section 534(2)

Except as provided in subsections (4), (5) and (6), or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft ...

Section 534(2)(b)

(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

At the Review Hearing, the Minister presented two witnesses, Mr. and Mrs. Hempel, who described a low flying aircraft over their boat. Mr. Moore did not appear, nor was he represented.

THE EVIDENCE

Central to the case is the Minister's contention that Mr. Moore was the pilot of Otter C-GYYS between 15:00 and 16:00 hours, the time witnesses stated the low flying event occurred. Exhibit M-5, a journey log sheet for Otter C-GYYS indicated that, indeed, Mr. Moore was flying the aircraft in the area at the time in question. However, Exhibit M-4, a journey log sheet for Beaver CF-OCD also shows Mr. Moore to be the pilot of that aircraft at essentially the same time. Both these entries are properly made and signed by Mr. Moore.

Mr. Moore submitted a letter to the Review Hearing which was read into the record. In it he argued that the entry in the log for Otter C-GYYS was wrong and that he made an error when making the entry. The times entered should have been for one hour later. And, at the time the low flying incident took place, he was back at the base on a test flight in Beaver CF-OCD. To support this argument, he referred to Exhibit D-5, a copy of a portion of the company dispatch sheet, and Exhibit D-2, a letter from Mr. Jack Pope, owner and dispatcher of Northwest Flying Inc. The dispatch sheet shows a booking for a flight to pick up passengers at Arrow Lake in Otter C-GYYS after 16:30 hours, somewhat later than low flying incident took place. Mr. Pope's letter supports Mr. Moore's contention that because C-GYYS was scheduled to pick up passengers at Arrow Lake at 16:45 hours, it would not have been over Miles Bay at the time witnesses stated the incident occurred.

In his letter, Mr. Moore also argued that although the track between Nestor Falls and Arrow Lake passes very near Miles Bay, where the incident took place, a procedure used by Northwest Flying when departing Nestor Falls causes the track to pass somewhat north of Miles Bay. The procedure results from the nature of the terrain and the size of the lake. To take advantage of the longest water run when departing Nestor Falls, they almost always take off to the northeast and follow the valley to Lower Twin Lake before setting heading. This moves the track to Arrow Lake North.

THE WITNESSES

Ms. Lynne Rhéaume referred to the testimony of the Minister's witnesses at the Review Hearing. On page 6 of the transcript, Mrs. Hempel identified the aircraft involved in the low flying incident as being a white plane with yellow trim. On page 18, Mr. Hempel testified that the aircraft involved in the incident was mostly white with yellow trim.

On page 6 of the transcript of the Review Hearing, Mrs. Hempel identified three of the five registration letters of C-GYYS and on page 20 Mr. Hempel identified four of the five letters.

Mr. Moore supplied two pictures to the Review Hearing that were entered as Exhibit D-7. One picture was of an Otter aircraft and the other of a Beaver aircraft. During reexamination of Mr. Hempel, he was shown these pictures and asked if either photo showed the type of aircraft involved in the low flying incident. And if so, would he pick it out. Mr. Hempel replied that "he couldn't say for sure, but this one looks more like it." Mr. Hempel had selected the picture of the Otter aircraft.

Lynne Rhéaume stated that the original hearing officer is in the best position to assess the testimony of the witnesses, particularly with respect to identification of the aircraft.

Lynne Rhéaume also pointed out that Mr. Moore writes in the last paragraph of his letter submitted to the Review Hearing that the Minister has not proven "beyond a reasonable doubt" that he contravened Air Regulation 534(2)(b). In fact, the Minister is required only to bring forth sufficient evidence to show that "on a balance of probabilities" an offence has occurred.

REASONS FOR DECISION

It is obvious that one of the journey log entries for the same time of day, either in the log for C-GYYS or in the log for Beaver CF-OCD, is wrong. As to which is wrong, we have on the one hand, the letter submitted by Mr. Moore, a portion of the dispatch sheet and the letter from Mr. Pope supporting that the entry for C-GYYS is in error. On the other hand, we have the sworn evidence from the Minister's witnesses that C-GYYS was over Miles Bay at the time in question and the log entry for C-GYYS was the correct one.

Exhibit D-5, because it was only a portion of the dispatch sheet, left some doubts about what was on the rest of the sheet. Mr. Pope's letter, while outlining that investigation as it involved him, basically supports the information on the already questioned portion of the dispatch sheet.

Mr. Moore's contention that because of a company procedure the aircraft's track from Nestor Falls to Arrow Lake would normally be north of Miles Bay, while in itself accurate, did not convince the Tribunal members that C-GYYS was not over Miles Bay at the times indicated in the testimony of the Minister's witnesses.

Mr. Moore's arguments, while compelling at times, were not sufficient to counteract the sworn evidence given by the witnesses for the Minister.

On page 31 of the transcript of the Review Hearing, Mr. Moore stated that Otter C-GYYS is painted predominantly white with a thin yellow stripe down the side. Both witnesses for the Minister, Mrs. Hempel and Mr. Hempel, identified the aircraft involved in the incident as being white and yellow.

Mrs. Hempel was able to identify three of the five registration letters of aircraft C-GYYS and Mr. Hempel identified four of the five letters.

Mr. Hempel, when shown a picture of a Beaver aircraft and picture of an Otter aircraft, selected the picture of the Otter as the type involved in the incident. C-GYYS is an Otter.

Mrs. Hempel testified she could see the pilot in the aircraft and that he was wearing sunglasses. Mr. Hempel testified that during the incident, the aircraft was no more than 30 to 40 feet above the surface and less than 100 feet horizontally from their boat. Mr. Hempel also said he could see the pilot, and he was wearing sunglasses and earphones. Neither Mr. nor Mrs. Hempel could identify Mr. Moore as the pilot; however, the detail they could see is convincing evidence that the aircraft was lower than 500 feet.

For the above reasons, the Tribunal members determined that on a balance of probabilities, Mr. Moore was the pilot of C-GYYS and did contravene section 534(2)(b) of the Air Regulations. The appeal is therefore denied and the monetary penalty of $400 is confirmed.

A cheque in the amount of $400 shall be made payable to the Receiver General for Canada and mailed to the Civil Aviation Tribunal, Room 702, 4711 Yonge Street, North York, Ontario M2N 6K8, on or before March 28th, 1991.

CONCURRING REASONS FOR DECISION

The case turns on the identification of an aircraft bearing Canadian registration C-GYYS. I have read the reasons for decision by my colleague, Mr. Pultz, and agree with the conclusion reached. I would add only the following.

The two eyewitnesses established to the satisfaction of the hearing officer that all of the elements of the infraction were proven except the identity of the pilot at the time of the occurrence. It is the identity of Trent Wade Moore as the offender which provoked the most determined of the arguments urged upon the Tribunal by Mr. Moore. Mr. Moore did not testify at the hearing but argued the matter on his own behalf on appeal.

Circumstantial evidence satisfied the member that the aircraft flown by Mr. Moore was in the area of the occurrence during the time frame in which the complaint arose.

There is no direct evidence from other witnesses, passengers or Transport Canada officials as to who was piloting the aircraft at the time of the occurrence. However, section 24 of the Aeronautics Act assists by providing a "deeming clause", which reads as follows:

In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matter stated therein as against the person who made the entry or was required to keep the record.

There is no admissible evidence to the contrary and accordingly Mr. MacPherson was correct in relying upon the logbook entries to satisfy him of the name of the pilot at the time of the occurrence.

I have no difficulty therefore in finding that the member took into account evidence which was properly considered by him, and his decision in this regard should not be reviewed by the Appeal Tribunal. Were it otherwise, that is, if the member took into account improper material and therefore does not act judicially (re: Swan and Tavrydas, Ex parte SYME (1979), 48 C.C.C. (2nd) 501), his decision would be reviewable by an Appeal Tribunal and the member could be compelled to exercise his discretion according to proper principles.

I am satisfied that a finding of fact by the hearing officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is nonetheless unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal hearing an appeal on the record should not interfere with the fact findings of the hearing officer.

This distinction may be subtle, but it is vital both to the preservation of the integrity of the appeal process and to the safeguarding of the fundamental rights of the individual.

While the writer may have come to a different impression on the facts as recorded in the transcript of the proceeding, I cannot say that Mr. MacPherson's findings are so unreasonable that a trier of fact, acting judicially, could not possibly have come to the same conclusion.

Accordingly, I would uphold the decision of the member for the reasons stated above.