Government of Canada navigation bar

Symbol of the Government of Canada

Primary site navigation bar

Amendment 4 (1992)

CAT and TATC Decision Amendments

Aeronautics Indexes

Services

CAT File No. Q-0274-41

CIVIL AVIATION TRIBUNAL

BETWEEN:

123582 Canada Inc.

- and -

Minister of Transport

Aeronautics Act R.S., c. A-2, s. 8.4(1)
Classification of Canadian Airspace Order (Air Navigation Order, Series V, No. 23), s. 14(1)

VFR Flight - Controlled Airspace - Standard of Proof - Admissibility of Evidence

An airplane entered class "C" airspace without obtaining ATC clearance. The Minister proceeded vicariously against the owner and assessed a $250.00 monetary penalty.

On Review, the Tribunal determined that the Minister had established the contravention on a balance of probabilities and that the vicarious liability provisions of the Act made the company liable.

The Tribunal dismissed the company's appeal, rejecting the proposition that the Charter and natural justice obliged it to apply the criminal standard of proof of "beyond a reasonable doubt", and to adhere to strict rules of evidence.

Note: See Minister of Transport v. 123582 Canada Inc. (CAT File No. Q-0275-41), reported in this volume, as these two cases were heard together.

REVIEW DETERMINATION Jobin

April 24, 1992
Montreal, Quebec

The penalty of $250 assessed against the Respondent is therefore confirmed.

REASONS FOR DETERMINATION

PREAMBLE

For practical reasons, it was agreed between the Tribunal and the parties that two cases involving the parties, to wit:

CAT File No. Q-0274-41

DOT File No. NARB 6504-2-16989; and

CAT File No. Q-0275-41

DOT File No. NARB 6504-2-18541

would be combined. In this regard, it was agreed that, while the alleged offences were to be disposed of separately, they would be determined on the total evidence presented by the parties at the hearings held into the two cases.

BACKGROUND

The Notice of Assessment of Monetary Penalty declares that, pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty because the Respondent had contravened the Classification of Canadian Airspace Order, SOR 84-207 (ANO, Series V, No. 23).

More particularly the Notice states that:

(translation)

"On October 20, 1990, at or about 19:24 hours, universal time, the aircraft registered as C-GTSM entered the Montreal/Mirabel Class C controlled airspace without obtaining a clearance to enter from the air traffic control unit."

The Notice also states that, pursuant to subsection 8.4(1) of the Aeronautics Act, the Respondent is being proceeded against as the registered owner of the aircraft registered as C-GTSM.

THE LAW

Subsection 14(1) of the Classification of Canadian Airspace Order (ANO, Series V, No. 23) states:

"No person operating an aircraft in VFR flight shall enter Class C controlled airspace unless a clearance to enter is obtained from the appropriate air traffic control unit."

Subsection 8.4(1) of the Aeronautics Act states:

"The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor."

THE FACTS

On October 20, 1990, Mr. Rhéal Clouet, a director of 123582 Canada Inc., the owner of a Cessna aircraft bearing the nationality and registration markings C-GTSM, was the pilot of this aircraft when, according to Transport Canada, it entered Class C controlled airspace without prior clearance.

An Air France B-747 was in the same area at the same time, seeking clearance to land. Despite a sustained effort by Mirabel Control Tower to establish radio contact with the aircraft flown by the Respondent, to advise him of the situation, contact could not be successfully established until there was no further risk of danger.

THE ISSUES

Transport Canada argues, firstly, that the Respondent should have obtained a clearance prior to entering the Class C airspace and, secondly, that the evidence presented at the Hearing should be assessed by the Tribunal on the "balance of probabilities".

The Respondent's representative argues that Transport Canada did not produce conclusive proof in this case. He further asserts that, to meet the burden of proof adequately, the Applicant has to prove his client's guilt "beyond a reasonable doubt".

The nature of the offence and the attendant penalties, according to him, would require that the Tribunal apply this standard of proof.

DISCUSSION

In order to respond to the parties' arguments, the Tribunal must first determine the standard of proof applicable and then decide whether Transport Canada has adequately met the burden of proof laid upon it.

The legislation is silent on the standard of proof that the Civil Aviation Tribunal is to apply. However, the Tribunal has shed light on this matter in its decisions. In previous decisions, notably:

Minister of Transport v. Thomas Ritchie Phillips
 (CAT FILE NO. C-0014-33)

Stewart Lake Airways [Arrivages] 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. Clifton W. Armstrong
 (CAT FILE NO. P-0094-33)

the Tribunal has come to the conclusion that the standard of proof should be the "balance of probabilities". While we are not bound by these decisions, we share their global rationale on this point and consequently determine that the standard of proof to be adopted is the "balance of probabilities".

Regarding the evidence submitted by Transport Canada, the Respondent's representative objected repeatedly to the filing of certain pieces of evidence, pleading the inadmissibility of several documents, questions or assertions introduced in the context of this Hearing.

As we have noted, the Civil Aviation Tribunal is an administrative tribunal whose procedures leave room for substantial flexibility in the application of the "rules of natural justice" or the "principles of fairness".

In these circumstances, it would be inappropriate for the Tribunal to apply the rules of evidence as strictly or as rigidly as they would be in a criminal proceeding.

It should also be stressed that, failing statutory provisions to the contrary, administrative tribunals are not compelled to apply the rules of evidence.

Nonetheless, the weight given to the evidence admitted in this context is a function of the recognized major legal principles of fairness and natural justice.

In this connection, and in view of the foregoing observations, we believe it is incumbent upon the Tribunal to determine not only the admissibility of the evidence but also the weight which should be attributed to it within the overall process of assessment, based on the rules of fairness and natural justice.

For these reasons, we reject the objections raised by the Respondent's representative as to the admissibility of the evidence submitted in this context.

Having examined the evidence and considered the arguments of the parties, the Tribunal concludes that, by the standard of proof adopted, Transport Canada has succeeded in proving its allegations.

The chairperson of 123582 Canada Inc. should have complied with the provisions of the Classification of Canadian Airspace Order, which require that clearance be obtained prior to entering Class C controlled airspace. In our view, the arguments presented by the Respondent's representative regarding the lack of clarity of the provisions contained in the "Designated Airspace Handbook, Issue No. 124, section 4.5 4.1", describing the Class C airspace applicable to Montreal, are not well-founded and do not justify dismissing the allegation.

The penalty of $250 assessed against the respondent is, therefore, confirmed. This sum is payable by cheque to the order of the Receiver General for Canada and shall be received by the Civil Aviation Tribunal at the above address within fifteen (15) days of receipt of this Determination

APPEAL DETERMINATION Larose, Richard, Rouleau

June 30, 1993
Written Submissions

REASONS FOR APPEAL DETERMINATION

123582 Canada Inc. is appealing the Review Determination that, on the balance of probabilities, the Minister of Transport had succeeded in proving his allegations, and that the penalty of $250 be upheld. The Appeal is based on the following grounds:

(a) The member erred in law by failing to apply the presumption of the Respondent's innocence under the Canadian Charter of Rights and Freedoms;

(b) The member erred in law by applying the test of the balance of probabilities in assessing the Respondent's guilt;

(c) The member erred in law by not specifically ruling on objections to the evidence;

(d) The member erred in law by ruling that she could use flexibility in applying the principles of fairness and/or natural justice;

(e) The member erred in law by ruling that the rigid application of the rules of evidence was inappropriate;

(f) The member erred in law by failing to recognize that her mandate was of a criminal nature, which required protection of the fundamental freedoms under the Canadian Charter of Rights and Freedoms;

(g) The member erred in law by ruling that she was not required to apply the rules of evidence;

(h) The member erred in law by ruling that it behoved her to determine the admissibility of the evidence by relying solely on the principles of natural justice and/or fairness, without taking into consideration the fundamental constitutional rights provided for in the Canadian Charter of Rights and Freedoms.

In conclusion, the Appellant requests that the Review Determination be set aside.

THE ISSUES

Essentially the Appeal turns on a legal question. According to the Appellant, the member erred in law by failing to recognize that her mandate was of a criminal nature, which required protection of the fundamental freedoms provided for in section 11 of the Canadian Charter of Rights and Freedoms.

Section 11 of the Charter reads as follows:

"11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment."

As a "person charged with an offence" within the meaning of section 11 of the Charter, the Appellant must be presumed innocent under paragraph 11(d). The necessary implication of this is that the Respondent bears the burden of proving the misconduct beyond a reasonable doubt. Since the member chose to assess the evidence on the basis of the balance of probabilities or of the weight of the evidence, the Appellant was deprived of its constitutional guarantees. The Review Determination must, therefore, be set aside and the Minister's application dismissed. The Respondent disputes this position.

DISCUSSION

The Appellant relies to a great extent on the case of R. v. Wigglesworth, [1987] 2 S.C.R. In particular, it cites the observations of Judge Linden, which were confirmed by Judge Wilson, on parking offences and the relative seriousness of their consequences. According to the Appellant, these comments also apply to the present case.

We do not agree.

TheCharter refers to an "offence" and not to a "criminal offence" in order to extend the application of section 11 "to summary conviction and provincial offence prosecutions under quasi-criminal public welfare statutes" (Wigglesworth, p. 556). Parking offences are summary conviction offences.

The Aeronautics Act maintains the system of summary conviction, but creates a parallel system of protection. The Minister may in certain situations opt for one or the other. The jurisdiction of the Civil Aviation Tribunal is activated only by the system of protection. Moreover, Wigglesworth excludes such proceedings from the application of section 11 of the Charter, as follows:

"Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of "offence" proceedings to which s. 11 is applicable. But all prosecutions for criminal offences under the Criminal Code and for quasi-criminal offences under provincial legislation are automatically subject to s. 11. They are the very kind of offences to which s. 11 was intended to apply. " (Wigglesworth, p. 560)

The particular system of protection established under the Aeronautics Act itself endorses the presumption of innocence of a document holder affected by an administrative measure taken by the Minister.

Thus, the Act first provides that, where the Minister chooses to proceed by way of monetary penalty, he must automatically refer the matter to the Tribunal (subsection 7.8(2) of the Aeronautics Act). The imposition of a penalty takes effect only subsequent to a Determination of the Tribunal confirming the measure taken by the Minister (subsection 7.9(3) of the Aeronautics Act).

The Act then provides that a person affected by the imposition of a monetary penalty is not required to testify at the Review Hearing (paragraph 7.9(5)(b) of the Aeronautics Act).

Finally, the Act provides that the burden of proof is on the Minister (paragraph 7.9(5)(a) of the Aeronautics Act).

However, this presumption of innocence does not automatically require strict application of the rules of evidence. Section 37 of the Aeronautics Act clearly provides to the contrary:

"37. (1) Subject to subsection (5), the Tribunal or a member thereof is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(...)

(5) The Tribunal or a member thereof may not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence."

It should be noted that the Tribunal is not free of all constraints where evidence is concerned merely because it is not bound by any legal or technical rules of evidence in its hearings. The member must rule on the admissibility of evidence, and the weight it should be accorded, in line with the principles of procedural fairness and natural justice, and depending on the specific circumstances of each case.

In this respect, the Review Determination is consistent with the Act as, firstly, it recognizes that:

"...the Civil Aviation Tribunal is an administrative tribunal whose procedures leave room for substantial flexibility in the application of the "rules of natural justice" or the "principles of fairness"."

Furthermore, it adds that:

"Nonetheless, the weight given to the evidence admitted in this context is a function of the recognized major legal principles of fairness and natural justice."

Furthermore, as noted in the Review Determination, although the Act makes express provision regarding the application of the rules of evidence, it is silent as to the criteria for assessing evidence. The member, in adopting reasons given in previous Tribunal Determinations, opts for the balance of probabilities, or the weight of evidence. She refers, inter alia, to the case between the Minister of Transport and Thomas Ritchie Phillips (CAT. File No. C-0014-33), which includes the following passage:

"The Respondent would have us apply the more rigorous test on the basis that the Civil Aviation Tribunal is dealing with matters which directly impacts [sic] upon the rights (licencing [sic]) of individuals. He stressed that monetary penalties, loss of a licence, downgrading and other sanctions are akin to those offences managed by penal statutes (i.e. Criminal Code) andProvincial Highway Traffic Acts) [sic] and accordingly the "criminal" proof beyond a reasonable doubt principal [sic] should apply. It is argued that a change of statute giving jurisdiction in Aviation infractions to the Civil Aviation Tribunal should not change the onus of proof of test [sic].

The Act is silent on the issue. While the burden of proof is enunciated (Act: S.6.9(5)), the onus test or standard of proof is not. Section 6.6(2) is relevant in this consideration to the extent that infractions alleged and delt [sic] with in accordance with Sections 6.7 to 7.2 of the Act, prohibit further action against a party in a Court of Law by way of summary conviction. It would appear that the Legislation is an attempt to de-criminalize allegations of this nature and attributes to them the earmarks of a safety-based "regulatory" or "administrative" characterization.

We believe the statute clearly implies an intention to treat the regulatory proceeding in the Act in a manner similar to other well known administrative creatures of statute and the civil test. The test applied in other administrative tribunals suggests that the appropriate onus is on the balance of probabilities (Canadian Human Rights Reporter 2161 (N.S.); 12520 (B.C.)[sic].

(...)

Accordingly, we find that the preferred test for these proceedings is the civil (administrative) test for proof on the balance of probability. We stress that this finding in no way displaces the burden which at all times (except where specifically excepted such as (Act: S.6.1(7)) is on the Minister."

CONCLUSION

Having reviewed the record and considered the representations of the parties, we are of the opinion that the member correctly determined the nature of her mandate, dealt with the rules of evidence applicable to the present case and defined the criteria for assessing the evidence.

We consider unfounded the allegation that the member erred in law by not specifically ruling on objections to the evidence raised at the hearing. As the Respondent points out in his representations, every one of the Appellant's objections relates to the admissibility of evidence. The position taken by the member in this respect, both at the hearing and in her Determination, is consistent with the requirements of the Aeronautics Act.

We therefore uphold the Review Determination and dismiss the Appeal. The penalty of $250 imposed on the appellant is upheld. This amount, payable by cheque to the order of the Receiver General of Canada, is to be received by the Civil Aviation Tribunal within fifteen (15) days of receipt of this Determination.

Date modified:
2010-03-31