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Amendment 6 (1994)

CAT File No. C-0334-10

CIVIL AVIATION TRIBUNAL

BETWEEN:

Stewart Lake Airways Limited

- and -

Minister of Transport

Aircraft Marking and Registration Regulations (Air Regulations, Series II, No. 2), s. 17(2)
Aeronautics Act, R.S.C. 1985, c. A-2. s. 6.9(4), 7.1(1)(c), 7.2
Civil Aviation Tribunal Rules, SOR/86-594, Rule 10
Federal Court Act, R.S.C. 1985, c. F-7, ss. 18, 37(9), 50(1) (b)
Federal Courts Rules, S.O.R./98-106, Rules 419(1), 1620

Certificate of Registration - Air Carrier Operation with Non-Commercial Registered Aircraft - Damage Report - Certification of Airworthiness - Operating Certificate Conditions - Double Jeopardy - Vicarious Liability - Sanction Considerations - Stay of Proceedings

The applicant company was alleged to have committed the following offences: (1) operating an unregistered aircraft; (2) operating a commercial air service with a non- commercial registered aircraft; (3) failing to report damage to an aircraft; (4) operating an aircraft when the certificate of airworthiness was not in force, by virtue of float damage and an engine malfunction; and, (5) operating commercially an aircraft not set out in the company operating certificate. The Minister imposed a total suspension of 416 days (28 + 28 + 120 + 120 + 120).

On review, the Tribunal rendered a 3 part decision: Determination as to Contravention; Determination as to Sanction; and, Reasons for Determination as to Sanction. While counts (1), (3) and (4) were confirmed, the total suspension was reduced to 196 days (14 + 91 + 91). In addressing count (4), the Tribunal confirmed the validity of s. 8.4 of the Act. Count (5) was found to arise from identical facts to those of count (2) and was dismissed on the grounds of double jeopardy. Count (2) was dismissed based on the contradictory evidence given by DOT's witness.

The Tribunal upheld the Minister's suspension of SLA's operating certificate but reduced the suspension period to 196 days, expiring July 15, 1994. That decision was appealed by SLA to a three-member panel of the CAT by application to the tribunal on December 30, 1993, in accord with s. 7.2 of the Act.

Before the Federal Court, the applicant’s motions were for judicial review of the decision of the Minister to cancel the operating certificate of the applicant Stewart Lake Airways Ltd. (SLA) and the commercial pilot’s licence privileges of the applicant Krolyk, a principal officer of SLA. The applicant also sought to consolidate proceedings for three court files.

Orders were issued staying proceedings in all three files by the applicants pending disposition by the Tribunal of applications before it for review of the Minister’s cancellation decisions. The court did not strike the notices of motion, as it was not persuaded that the applicants had no prospect of success. The court declined to consolidate proceedings on the three court files, as the application was premature.

REVIEW DETERMINATION Rushford

December 14-15, 1993
Kenora, Ontario

By Notice of Suspension dated August 17, 1993 the Applicant's Operating Certificate was suspended for a total of 416 days for 5 alleged breaches of the Air Regulations and the Air Navigation Orders.

The Notices of Suspension are as follows:

"NOTICE OF SUSPENSION

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provisions(s):

Count #1:

Air Regulations, Series II, Number 2, Section 17(2) in that between 12 May 1993 and 07 June 1993 at or near Stewart Lake, Ontario you did unlawfully operate an aircraft in Canada, to wit a Noorduyn Norseman bearing Canadian Marks C-FGSR, when the said aircraft was not registered in Canada.

Count #2:

Further, on or about 12 June 1993 at or near Sioux Narrows, Ontario, being a Canadian Air Carrier and holder of a Certificate issued under Part VII of the Air Regulations, you did unlawfully operate an aircraft on a commercial air service, to wit a Noorduyn Norseman bearing Canadian Marks C-FGSR, that was not registered as a commercial aircraft in accordance with paragraph 22(1)(b) of the Aircraft Marking and Registration Regulations, a violation of Air Regulation 702.

Count #3:

Further, on or about 12 June 1993 at or near Black Lake, Ontario, being the owner of a Canadian aircraft, to wit a Noorduyn Norseman bearing Canadian Marks C-FGSR, that was damaged to such an extent that repairs or replacements other than ordinary running repairs were necessary, you did unlawfully fail to report such damage to the Minister forthwith and give full particulars of such damage, a violation of Air Regulation 220.

Count #4:

Further, on or about 17 June 1993 at or near Black Lake, Ontario, you did unlawfully fly an aircraft, to wit a Noorduyn Norseman bearing Canadian Marks C-FGSR, when the Certificate of Airworthiness issued under Part I of the Air Regulations was not in force by reason of the fact that (1) a float was damaged and replaced and the aircraft flown without certification or a flight permit; (b) subsequent to an engine malfunction, no maintenance was carried out on the said engine and no certification was made before the aircraft was flown from Black Lake, Ontario to Kenora, Ontario, a violation of Air Regulations 210(1)(a). (Procedure by way of vicarious liability, Section 8.4(2) of the Aeronautics Act.)

Count #5:

Further, on or about 12 June 1993 at or near Sioux Narrows, Ontario, being an air carrier, you did unlawfully fly an aircraft in a transportation operation in contravention of the Operations Specifications and Conditions forming part of your Operating Certificate and, more specifically, you operated a Noorduyn Norseman bearing Canadian Marks C-FGSR, an aircraft type not authorized in your Operations Specifications part III, a violation of Air Regulations (sic) Order Series VII, Number 3, Section 9."

The legislation applicable to each count is as follows:

"Count 1 - Air Regulations Series II, Number 2, Section 17(2)

(2) Except as otherwise authorized pursuant to subsection (3) or (4) or 36(3), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

Count 2 - Air Regulation s. 702

No Canadian air carrier that is the holder of a certificate issued under this Part shall operate an aircraft on a commercial air service in Canada unless

(a) the aircraft is registered as a commercial aircraft pursuant to paragraph 22(1)(b) of the Aircraft Marking and Registration Regulations; OR

(b) where the aircraft is registered in a contracting state, special permission has been granted by the Minister to use the aircraft on a commercial air service in Canada.

Count 3 - Air Regulation s. 220

Where any Canadian aircraft, other than a hang gilder, is damaged to such an extent that repairs other than ordinary running repairs or replacements are necessary, the owner or pilot-in-command thereof shall notify the Minister forthwith, giving full particulars of such damage.

Count 4 - Air Regulations s. 210(1)(a) and Section 8.4(2) of the Aeronautics Act

No person shall fly or attempt to fly an aircraft, other than a hang glider or an ultra-light aeroplane, unless there is in force in respect of that aircraft

(a) a certificate of airworthiness issued under this Part or under the laws of the country in which the aircraft is registered

AND

The operator of an aircraft may be proceed 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 operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

Count 5 - Air Navigation Orders, Series VII, Number 3, Section 9

No air carrier shall conduct an air transport operation in violation or contravention of the operations specifications and conditions forming part of his operating certificate.

All suspensions are consecutive and are as follows:

Count 1 - 28 days

Count 2 - 28 days

Count 3 - 120 days

Count 4 - 120 days

Count 5 - 120 days

Total - 416 days"

Prior to calling witnesses the Respondent moved to amend Count 1 by changing June 07, 1993 to June 01, 1993. Prior notice of this application was given to the Applicant and no objection to the amendment was taken by the Applicant. The application was granted and the amendment made accordingly.

Immediately following the Respondent's application, the Applicant moved as follows:

"(a) to strike Count 5 from the Notice of Suspension on the ground that the penalties for Counts 2 and 5 arise out of identical facts as a result thereof constitute "double jeopardy".

(b) (i) that Count 4 be struck on the ground that on the face of the Notice of Suspension no vicarious liability has been established to enable the Respondent to rely on Section 8.4 of Aeronautics Act

- and -

(ii) even if Section 8.4(2) gives rise to vicarious liability that Section 8.4 only applies if the Respondent has elected to proceed by way of prosecution rather than by way of administrative penalty."

The Applicant's motion in this regard involved a fairly sophisticated legal argument and I elected to defer my decision on this motion until I had heard the evidence and to deal with the motion as part of my overall decision.

Evidence was not introduced separately on each count but rather, by agreement, the evidence given applies to all counts.

The facts applicable to all five counts in this case are as follows:

On Thursday, June 10, 1993, Eric Brown, the owner of Totem Lodge at Sioux Narrows, Ontario called William Krolyk, the president of the Applicant, Stewart Lake Airways Limited, to arrange a charter flight which would transport guests of Totem Lodge to Lount Lake some 60 air miles from Totem Lodge.

Mr. Brown wanted the charter to be done on Friday, June 11th. Apparently it was intended that one of the aircraft to be used in the Charter was a Norseman C-FGSR because the charter was postponed until Saturday, June 12th because the Norseman was having a 50 hour inspection done.

In any event, on Saturday, June 11th, the Norseman C-FGSR along with a Cessna 185 and a Beaver owned by Kenora Air Service did pick up passengers at Totem Lodge.

The Cessna 185 and the Beaver took passengers to Lount Lake.

The Norseman C-FGSR encountered engine problems in route and landed on lake short of its destination.

The pilot of the Norseman was William Krolyk, the President of Stewart Lake Airways Limited.

Several hours after the Norseman departed Totem Lodge, Eric Brown, the Lodge owner, received a telephone call from Krolyk advising him that he had experienced a loss of power and had landed on a lake. Krolyk advised Brown that everything was okay but he had hit a reef and damaged one of the floats. Krolyk also told Brown that his guests would be picked up by Kenora Air Service and would be back at the regular time.

At the request of Krolyk, Harry Bueckert, the owner of an auto body shop near Winnipeg and a customer of Stewart Lake Airways Limited went to the lake on which the Norseman had landed. Bueckert found the aircraft sitting in the water with the engine facing the lake and the tail section facing the shore. The aircraft was tied up. It was not listing to one side or the other. Someone pumped one of the compartments on one of the floats and it was determined which float had been damaged. The aircraft was then turned parallel to the shore with the damaged float closest to the shore line.

Some logs were used and an attempt was made to pull the damaged float up onto the shore. In so doing, a jack-all was used and float was extensively damaged. The damage to the float which is apparent in the pictures of the aircraft (Exhibit M-10) was caused by the use of the jack-all and was not the result of hitting a reef on landing.

The approved maintenance organization for Stewart Lake Airways Limited is Kuby's Aircraft owned by Frank Kubiesewsky. Two apprentice AME's from Kuby's Air Service were dispatched to the scene. They arrived on the scene after the float had been extensively damaged by the use of the jack-alls. The aircraft was floated across the lake, raised with the use of a back hoe and the damaged float was replaced.

Prior to the float being replaced, Frank Kubisewsky, the owner of Kuby's Aircraft, and a licensed AME went to the lake on which the aircraft was located. Kubiewsky had previously been told by Krolyk that the Norseman had a power failure, had landed and had damaged a float. At this juncture, Kubisewsky was not aware that the float had been damaged after the landing by the use of a jack-all.

Kubisewsky ran the engine up. The engine indicated full power and he could not find anything wrong with the engine.

No journey log entry was made at the time although Kubisewsky did make entries on his work sheet. Kubisewsky told Krolyk at the time that the journey log should be signed.

Thereafter, Krolyk flew the aircraft to Kuby's Aircraft in Kenora. No flight permit for this flight was obtained.

The aircraft was again checked including fuel screens and oil screens and the aircraft went back into service.

The next day the horizontal blower was pulled and the cause of the engine problems discovered and rectified.

This describes the factual situation relating to all five counts. The issues in relation thereto differ.

Count No. 1 - The Applicant advised the Tribunal that this Count would only be addressed as to penalty.

Counts Nos. 2 and 5 - Counts 2 and 5 will be dealt with together in view of the Applicant's motion to strike one of the Counts on the basis of double jeopardy. Section 702 of the Air Regulations prohibits an air carrier holding a valid operating certificate from operating an aircraft unless the aircraft is registered as a commercial aircraft pursuant to paragraph 22(1)(b) of the Aircraft Marking and Registration Regulations

"22.(1) The Minister may register an aircraft

(a) as a state aircraft;

(b) subject to subsection (3), as a commercial aircraft; or

(c) as a private aircraft."

In this case the evidence is that on August 28, 1991, the Applicant held a valid Operators Certificate (Exhibit M-6) under which the Applicant had authority to carry passengers and cargo using a Cessna 185 and a DHC 2 Beaver. That operating certificate remained in effect until June 15, 1993 when the DHC 2 Beaver was removed. As of June 15, 1993, the Applicant's Operating Certificate (Exhibit M-7) permitted the use of only a Cessna 185 VFR for passengers and cargo. That Operating Certificate remained in effect until June 18, 1993 when the Applicant's Operating Certificate (Exhibit M-8) was changed by adding a Norseman 5 to the Certificate, VFR for passengers and cargo. It is not clear when the Applicant received the new Operating Certificate, however, on June 18, 1993 a temporary Certificate of Registration for Norseman C-FGSR for commercial purposes was sent by fax to the Applicant.

The evidence clearly establishes that on June 12th, 1993, the Applicant's Operating Certificate permitted the commercial use of only a Cessna 185 and a Beaver DHC2. The evidence is that the Norseman C-FGSR did in fact carry passengers from Totem Lodge on June 12, 1993. The question is whether this was a commercial operation. Was the Applicant, on the flight in question, operating a commercial air service with the Norseman when that aircraft was not one of the types endorsed on the company's Operating Certificate.

Commercial Air Service is defined in paragraph 3(1) of the Aeronautics Act as follows:

""commercial air service" means any use of aircraft for hire or reward

"hire or reward" means any payment, consideration, gratuity or benefit, directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft"

Count 5 - this count covers the identical facts applicable to Count 2. However, where Count 2 alleges an infraction of paragraph 702 of the Air Regulations, Count 5 alleges an infraction of the Air Navigation Orders, Series VII, No. 3, Section 7

"No air carrier shall conduct an air transport operation in violation or contravention of the operations specifications and conditions forming part of his operating certificate."

The Interpretation Section of ANO, Series VII, No. 3 defines Air Transport as:

""air transport" means the carriage by aeroplanes of persons or property or mail for hire or reward."

The evidence referred to in relation to Count 2 clearly establishes that on June 12, 1993 the Norseman C-GSR was not one of the types of aircraft shown on the Operations Specifications and Conditions forming part of the Applicant's Operating Certificate. Again it is clear that passengers were carried in the Norseman on June 12, 1993. The question again is whether such passengers were carried for hire or reward as the term is defined in paragraph 3(1) of the Aeronautics Act (supra).

I should at this juncture deal with the two motions made by the Applicant prior to evidence being presented. The first was to strick Count 5 from the Notice of Suspension on the ground that the penalties for Counts 2 and 5 arise out of identical facts and constitute "double jeopardy". The facts relating to Counts 2 and 5 are identical.

This motion involves a consideration of whether, on these facts, the principles relating to double jeopardy apply and if they do should these principles be applied by this Tribunal where administrative penalties are being dealt with.

The law relating to double jeopardy or multiple convictions has been codified in Section 11 of the Criminal Code

"Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence."

This is not a criminal case but involves alleged infractions of the Aeronautics Act, the Air Regulations and the Air Navigation Orders with the resulting suspension of the Applicant's Operating Certificate. The rule against multiple convictions for the same cause or matter was dealt with by the Supreme Court of Canada in R. v. Kienapple 15 C.C.C. (2d) 524. The Court decided on a five to four split that there existed in this country a rule that prevented concurrent convictions for offenses arising out of the same factual situation. Laskin J. (as he then was) delivered the Judgment of the majority and decided that this so-called rule against multiple convictions was based on the doctrine of "res judicata" in the criminal law and that it was in addition to the statutory provisions contained in the Criminal Code. It would appear that the rule in Kienapple is now entrenched in Canadian jurisprudence.

If this were a criminal case, the rule against multiple convictions would apply.

The suspensions of the Applicant's Operating Certificate for 28 days on Count 2 and 120 days on Count 5 is a serious penalty. In fact it is far more serious than many penalties for summary conviction offenses under the Criminal Code, to which the rule against multiple convictions apply.

As these proceedings are quasi criminal in nature, I can see no reason why a document holder under the Aeronautics Act should have less protection against multiple convictions than an accused in a summary conviction case.

I conclude therefore that the rule against multiple convictions as set out in the Kienapple case (supra) applies to administrative penalties imposed under the Aeronautics Act. Accordingly, I have concluded that the Applicant is in essence being punished twice for the same infraction. Count 5 is therefore quashed in accordance with the Kienapple principle.

I must, therefore, now determine whether in relation to Count 2, the Applicant was operating a commercial air service when the Norseman C-FGSR was not registered as a commercial aircraft. To answer that questions, I must determine whether it was operated for "hire or reward".

The evidence in this regard was obtained by Inspector Don Hiscock, an Aeronautical Enforcement Officer, Compliance Branch. The evidence is in the form of a statement given to Inspector Hiscock by Eric R. Brown, the owner of Totem Lodge at Sioux Narrows, Ontario. Inspector Hiscock was directed on June 14, 1993 to investigate an incident involving a Noorduyn Norseman C-FGSR owned by the Applicant which had occurred on June 12, 1993, two days earlier. Between June 14, 1993 and June 16, 1993, Inspector Hiscock perused the departments file on C-FGSR. On June 16, 1993, Inspector Hiscock proceeded to Sioux Narrows, Ontario to conduct an investigation. He was accompanied by Inspector Gagnon.

At Sioux Narrows, Inspector Hiscock took a statement from Eric R. Brown, the owner of Totem Lodge, a large fish camp at Sioux Narrows.

The statement is in Inspector Hiscock's handwriting and was initialled on the last page by Eric Brown.

Mr. Brown admitted in evidence that he gave the statement which was introduced in evidence as Exhibit M-14. The statement reads as follows:

"On Thursday, June 10, 1993, I called Bill Krolyk and asked him if he could do a charter on Friday. He said he couldn't because he had the Norseman in for a 50 hour inspection. I then arranged with him to move 15 guests from over here at Lake of the Woods to Lount Lount which is about 60 air miles north of our Lodge near Kenora. Bill has a camp there and they do day fishing there. On Saturday morning between 7:30 and 8:30, Bill Krolyk brought the Norseman and 2 C-185's and another aircraft that I believe was a single otter from Kenora Air Service. He took 3 people in each C-185, 5 in the Norseman and the rest were in the Otter. I got a call from Bill Krolyk on the phone about 11 AM or 3 hours after he left. He told me he had gone down with a loss of engine power. He had landed on a lake and would have been okay but he hit a reef. I asked him if he was heavy and he said he was 1,700 lbs under gross. The fishermen only had their rods and fishing boxes and some sandwiches. All the other equipment they need Krolyk had at the camp. We have used Krolyk for about 3 years. He has always been dependable. When he loads at the dock he is very careful about seats and belts and nets the loads. He always had seats and belts for everybody. I don't think the aircraft was overweight. Mr. Krolyk does not invoice me but I gave him a check for $1,125.00 based on 3 people in the C-185 and based $625.00 for the Norseman based on five people. I haven't paid him at all this year. He normally gives me a bill and I just give him a check. He doesn't receipt me, I just use the cancelled check as my receipt.

EB

12:30 Eric Brown approached me at the cafe in his lodge and advised client he had called Kenora Air Service."

Eric Brown was called as a witness by the Respondent. The evidence given by him varies in material aspects from the statement (Exhibit M-14) given to Inspector Hiscock. In fact, his evidence tends to confirm a letter which he wrote addressed to "To Whom It May Concern" undated, but by his evidence written in September or October of 1993, some 4 or 5 months after he gave the statement to Inspector Hiscock (Exhibit M-14). The letter was introduced in evidence as Exhibit D-1 by the Applicant during cross examination of this witness. The letter reads as follows:

"To Whom it may Concern,

This letter is to acknowledge that Totem Lodge has used Stewart Lake Airways Limited for the past 3 or 4 seasons now, and the service, reliability, and safety has always been excellent.

Our lodge is probably the largest in Northwestern Ontario, and we have to be able to rely and depend on a good Air service for our business, which Stewart Lake now has been for us.

I have asked Bill Krolyk now for a couple of years to look into getting a bigger plane, as our demands here have increased for fly-out fishing, and Bill finally told me this past spring that he had a bigger plane that would do a better job for us. On 2 or 3 different occasions, Bill brought the plane for us to see, and to show it off to our customers, but he never did use it for a chartered trip, because Bill told me that it had not yet been licensed. To the best of my knowledge that plane was not used for our guests prior to proper licensing.

On June 12th, the day this is in question, we had over 150 guests at our lodge at that time, of which several of them went on a fly out fishing trip.

When I was investigated here by the Ministry of Transportation, I made it very clear that as far as I could see, Stewart Lake Airways Limited followed every safety procedure properly, never over loaded planes, and ran a good quality operation.

I also made it clear to them that I am not in the air service business, and I do not know one airplane from another, as far as style, name, size, etc. I also told them that I have over five thousand guests go threw here per season, and there is no way that I knew who flew out in what plane on what day. That's just impossible for me to keep track of, and I always left that to the Air Service.

I did meet some of Bill Krolyk's friends that day, and to that best of my knowledge, they were the ones who rode in his Nordsman, not our guests. Bill hired Kenora Air to come with an Otter, and he had his Cessna here, which brings me to the conclusion that he would not have done this, if he were using his Nordsman. The records at Kenora Air should verify this fact. Again, I do not really know one plane from another, and I stated this to the M.O.T., and I never did state that I definitely said any of my guests chartered the Nordsman prior or on June the 12th. Its only stands to reason that he did not use it that day, since he chartered another air service to do his work for us.

Again, my business is running a fishing lodge, not an air service, and I do not want anyone from the M.O.T. to say that I ever directly stated that the Nordsman was used here on the day of question, June 12th, when I cannot say that myself.

I hope this letter helps to clear up this matter, at least from the Totem Lodge stand point."

Following Mr. Brown's cross examination, the Respondent asked for leave to cross examine Mr. Brown, the Respondent's own witness, on the ground that his testimony and the letter (Exhibit D-1) were inconsistent with the statement given to Inspector Hiscock (Exhibit M-14). The basis of this request is that the witness was a "hostile witness".

The applicable sections of the Canada Evidence Act in this regard are Sections 9 and 10:

"9.(1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, such party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness and he shall be asked whether or not he did make such statement.

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, or reduced to writing, inconsistent with his present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider such cross-examination in determining whether in the opinion of the court the witness is adverse. R.S., c.307, s.09; 1968-69, c.14, s.2

10.(1) Upon any trial a witness may be cross-examined as to previous statements made by him in writing, or reduced to writing, relative to the subject matter of the case without such writing being shown to him; but, if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing that are to use for the purpose of so contradicting him; the judge, at any time during the trial, may require the production of the writing for his inspection, and thereupon make such use of it for the purposes of the trial as he thinks fit.

(2) A deposition of the witness, purporting to have been taken before a justice on the investigation of a criminal charge and to be signed by the witness and the justice, returned to and produced from the custody of the proper officer, shall be presumed prima facie to have been signed by the witness. R.S., c.307, s.10"

At this point in the proceedings, I directed that Inspector Hiscock be allowed to be recalled to give evidence to prove the statement given to him (Exhibit M-14). Thereafter, Mr. Brown again took the stand and read both exhibits M-14 and D-1. Mr. Brown admitted to giving the statement (M-14) to Inspector Hiscock. At that point, I allowed the Respondent to cross-examine the witness.

In cross-examination, Mr. Brown admitted that the "to whom it may concern letter" (exhibit D-1) was written at the request of William Krolyk, the President of the Applicant, Stewart Lake Airways Limited. The witness says that Krolyk asked him to "write up a statement of what happened". The Notice of Suspension for all 5 counts is dated August 17, 1993 and was acknowledged to have been received by Stewart Lake Airways Limited on August 21, 1993. The request for Exhibit D-1 was therefore made after receipt of the Notice of Suspension. Exhibit D-1 was sent by this witness to William Krolyk.

When asked why he made up the statement, the witness replied that he was concerned about his first statement given to Inspector Hiscock. He said he was not comfortable with what he had said in that Exhibit M-14 wasn't really his statement. The witness says it was Inspector Hiscock who told him what had happened.

This witness now says, contrary to his statement in Exhibit D-1, that he can't absolutely say that passengers who boarded the Norseman at Totem Lodge were friends of Krolyk's and not lodge guests.

The statement given to Inspector Hiscock by Mr. Brown (Exhibit M-14) refers to 15 lodge guests being transported from Totem Lodge to Lount Lake. In this statement, Mr. Brown says 6 of the Lodge guests were carried on the Norseman. In the written statement (Exhibit D-1), the "To Whom it May Concern Letter" Mr. Brown says the Norseman was not used to transport lodge guests and in cross-examination by Mr. Pratt he again changes his story and says that he can't absolutely say that the people who got in the Norseman at Totem Lodge were friends of Bill Krolyk. Presumably, this means that they may have been guests of Totem Lodge.

The evidence in this regard becomes more confusing. Terry Johnson a representative of Kenora Air Services was called by the Applicant and swore that on June 12, 1993, 12 of the 15 Lodge guests were carried from Totem Lodge to Lount Lake in a Beaver Aircraft owned by Kenora Air Services and arranged for by Krolyk, the President of Stewart Lake Air Services Limited. The Beaver made two trips, carrying 6 passengers each trip. Mr. Johnson produced copies of the Kenora Air Services VFR manifest and load control forms (Exhibits D-5 and D-6) showing the passengers and their names. I am satisfied that 12 of the 15 passengers were so carried.

The evidence is not as clear on the other 3 passengers, however, I am satisfied that the other 3 were carried on a Cessna 185.

The evidence in this regard leaves me with more questions than answers.

When the Norseman developed engine trouble and landed short of its destination, why did Krolyk telephone Brown and tell him that one of his planes had gone down and that the guests would be picked up by Kenora Air and be back at the regular time? Also, why would the charter be re-scheduled from Friday when the Norseman was being serviced, to Saturday, when it was ready if that aircraft was not going to be used?

William Krolyk did not give evidence at this hearing. If this were a civil law suit, I might draw inferences from that fact.

If I could decide this matter on speculation and conjecture, I would conclude that more than 15 passengers were carried for hire or reward and that some of those were carried in the Norseman.

I must, however, decide this issue on the evidence presented.

I do not believe much of what was said by Eric Brown and he is Transport's witness.

I do not know from the evidence, who were carried in the Norseman, June 12, 1993 or whether they were carried for hire or reward.

William Krolyk knows but he didn't testify.

I must, therefore, and I say reluctantly, set aside the suspension on Count No. 2.

Count No. 3

The initial damage to the float on the Norseman was caused by hitting a reef on landing. The major damage was done by the use of the jack-all.

Section 220 of the Air Regulations (supra) requires damage other than ordinary running repairs or replacements to be reported "forthwith" by the owner or pilot in command.

Subsection (b)(i) of Section 507.337 of Chapter 507 of the Airworthiness Manual in describing an owner responsibility uses the word "immediately"

It is also the owner's responsibility to:

"(1) Report immediately to the Minister, giving full details, any damage to his aircraft to the extent that repairs, other than normal running repairs or replacement, are necessary;"

This count is under Section 220 of the Air Regulations.

The term "ordinary running repairs or replacements" is not defined in the legislation. It is conceded that the damage to the float on hitting the reef would fall within the definition. The extensive damage caused by the jack-all does not.

Nothing in the legislation restricts the obligation to report damage to an aircraft to damage caused while in motion.

Judicial interpretation of "forthwith" as used in most statues has been held to mean "without unreasonable delay" or "within a reasonable time: or "as soon as reasonable in the circumstances".

"Forthwith" as used in the Air Regulations must have a similar meaning. The purpose of such legislation is to enable the Minister to conduct whatever investigation is required.

In this case there is no evidence that this damage was ever reported by the owner, Stewart Lake Airways Limited, or the pilot, William Krolyk.

The Applicant's witness, Harry Buckert, was a member of the party who used the jack-all which cause the float damage. There is no evidence on whether or not Bueckert reported the damage done by the jack-all to Krolyk. The evidence of Brian L. Kennedy who was the Respondent's witness on airworthiness matters is that he checked Transport's files and queried each of Transport's inspectors to determine whether any accident had been reported involving the Norseman and that there was nothing in Transport's files which would indicate that the June 12th, 1993 incident had been reported. His inquiries from Transport's inspectors also revealed that the incident had not been reported to any of them.

On a balance of probabilities, I concluded that neither the owner nor the pilot reported the loss of power on the Norseman on June 12, 1993 or the subsequent float damage. I conclude that a breach of Section 220 of the Air Regulations occurred in relation to Count 3.

Count No. 4

The Applicant moved to strike Count 4 on the ground that on the face of the Notice of Suspension no vicarious liability has been established sufficient to rely on Section 8.4(2) of the Aeronautics Act. Secondly, the Applicant argues that even if Section 8.4(2) gives rise to vicarious liability, that the section only applies in the event Transport elected to proceed by way of prosecution rather than administrative penalty.

Section 8.4 (2) does not use the words "vicarious". Similarly it does not use words similar to many other statutes which create vicarious liability. The vicarious liability sections in the Vehicles Act of many provinces use the words "deemed to be the agent of the owner" and "deemed to be driving". That type of wording is missing in Section 8.4. The section does, however, specifically allow proceedings to be taken against an operator and allows for an operator to be found to have committed an offence in relation to the aircraft for which another person is subject to be proceeded against. In order to establish an infraction in relation to this Count, it is necessary to establish that the aircraft was flown. The other person who is subject to being proceeded against in most cases would be the pilot. In the event the Respondent can establish that the aircraft was flown while the Certificate of Airworthiness was not in force, the wording of the section is sufficient to establish vicarious liability on the owner unless the owner can establish that "the other person" referred to in the section had possession without the owner's consent.

The Applicant also argues that Transport can only avail itself of this section if Transport elects to proceed by way of prosecution rather than by way of administrative penalty. The section uses the words "committed an offence" which it is argued means "an offence" for which Transport have elected to proceed by way of prosecution. This Count is under section 210(1)(a) of the Air Regulations which is one of the "designated provisions" referred to in Section 7.6 of the Act. Section 7.6(2) provides:

"A person who contravenes a designated provision is guilty of an offence and is liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction."

The Act thereof creates an offence for a breach of a designated provision.

I concluded, therefore, that the use of the word "offence" in Section 8.4 of the Act does not restrict the application of that section to a prosecution but rather it is equally applicable to a breach of a "designated provision".

In relation to Count 4, the evidence establishes that the Norseman was flown from Black Lake to Kenora as alleged. The evidence also establishes that float was replaced and that there was no flight permit for the flight in question.

The sole question in this regard is whether it was flown "without certification".

Section 210(1) of the Air Regulations provides that an aircraft cannot be flown unless a Certificate of Airworthiness is in force.

Air Navigation Orders, Series II, No. 4 prescribe conditions for keeping a Certificate of Airworthiness in force, Section 3 provides:

"Conditions of Certificate of Airworthiness

3. Every Certificate of airworthiness issued in respect of an aircraft is issued on condition that

(a) the aircraft will be maintained in accordance with a maintenance program that meets the aircraft standards of airworthiness established by the Minister pursuant to section 211 of Air Regulations, and

(b) an entry will be made in the Aircraft Journey Log of the aircraft by an authorized person, certifying that the aircraft is

(i) airworthy, or

(ii) released for return to service,

whichever is applicable, at the times and in accordance with the procedures set out therefor in the Airworthiness Manual or in the Engineering and Inspection Manual."

Maintenance is defined in the Airworthiness Manual, Chapter 501 as follows:

""Maintenance" means the preservation of an aeronautical product to its approved design replacement of parts, but does not include servicing (maintenance)."

Chapter 575 of the Airworthiness Manual Section 575.103 provides:

"Maintenance Releases

(a) Except as provided in 575.109, where an aircraft had undergone maintenance, the certificate of airworthiness or flight permit of that aircraft is not in force until a maintenance release as been signed in respect of the work performed."

The allegation in subparagraph (a) of Count No. 4 is that the Certificate of Airworthiness was not in force because a float was damage and replaced and the aircraft flown without certification. The replacement of a float is the "replacement of a part" within the maintenance definition in Chapter 501 of the Airworthiness Manual.

Chapter 575 of the Airworthiness Manual Section 575.103 provides that where an aircraft has undergone maintenance, the Certificate of Airworthiness is not in force until a maintenance release has been signed.

When the aircraft was flown from Black Lake to Kenora no maintenance release or other certification of any kind had been made in the Journey Log although William Krolyk had been told by Frank Kubisewsky that the aircraft was serviceable.

Entries were made for the Norseman in a Kuby's Aircraft document entitled "Additional Work Sheet" on June 13, 1993 "engine inspected; all controls checked, engine ground tested, airworthy". In the same document under date of June 16, 1993 there is recorded "change RH Float #874".

In the Technical Log for the Norseman under date of June 17, 1993, there is a "maintenance certification" signed by an AME covering the installation of the new float. No entries were made in the Journey Log.

ANO, Series II, No. 4, Section 3 requires, as a condition of maintaining a Certificate of Airworthiness that such maintenance be recorded in the Journey Log certifying the aircraft is airworthy or released for return to service. No such entry was made.

The allegation in sub-paragraph (b) of Count 4 is that subsequent to an engine malfunction no maintenance was carried out on the engine and no certification was made before the aircraft was flown from Black Lake to Kenora.

Frank Kubisewsky, a licensed AME, had in fact inspected the aircraft and had done an engine run up. The inspection of the engine including the run up is an "inspection" within the definition of maintenance found in Chapter 501 of the Airworthiness Manual. I concluded therefore that maintenance was carried out and that as a result of the inspection and run up the AME found the aircraft airworthy in that respect. This was recorded in the same Kuby Aircraft Additional Work Sheet. This is the only certification in this respect. No Journey Log Entry was made as required by ANO II No. 4 Section 3.

The responsibility for ensuring that entries are properly made fall on the owner of the aircraft. William Krolyk, the President of Stewart Lake Airways Limited, was told by Frank Kubisewsky that the Journey Log had to be signed.

Chapter 507 Section 507.337 of the Airworthiness Manual provides:

"Responsibilities of Owners of Aircraft

(a) An owner of an aircraft for which a certificate of airworthiness or a flight permit has been issued shall, in order to ensure the continuing validity of his certificate of airworthiness or flight permit:

(1) Maintain his aircraft, as applicable, in accordance with Chapters 571, 573 and 575 of the Manual;

(2) Ensure that all entries in the aircraft journey log and the aircraft technical logs are current, and certified by appropriately authorized persons; "

I conclude, therefore, that a breach of Section 210(1)(a) of the Air Regulations occurred in relation to both sub-paragraph (a) and (b) of Count 4 and that the Applicant, Stewart Lake Airways Limited, is vicariously liable therefore under Section 8.4 of the Aeronautics Act.

By agreement of both the Applicant and the Respondent, I will fax this Judgment to each of them.

Thereafter a telephone conference call will be arranged to speak to sanction.

Following the teleconference, I will determine the sanctions to be imposed and fax my determination to each of the parties.

The time limit for an appeal will commence from the date I fax my determination as to sanctions to each of the parties.

DETERMINATION AS TO SANCTION    Rushford, Q.C.

December 24, 1993
Kenora, Ontario

On December 22, 1993, I rendered a Review Determination as to Contravention wherein I determined that:

"Stewart Lake Airways Limited did in fact contravene:

Air Regulation Series II, No. 2, Section 17(2) and Section 220 of the Air Regulations and Section 210(1)(a) of the Air Regulations."

As agreed by the parties a teleconference was held at 9:30 a.m. (Central Standard Time) on December 24, 1993, at which time Submissions were made by the Applicant and the Respondent as to Sanction.

I now impose the following sanctions:

Count 1: Air Regulation Series II, No. 2. section 17(2) 14 days

Count 3: Section 220 of the Air Regulations 91 days

Count 4: Section 210(1)(a) of the Air Regulations 91 days

These suspensions shall run consecutively for a total of 196 days, commencing at 24:00 o'clock on December 31, 1993, and ending at 24:00 o'clock on July 15, 1994.

By agreement between the application and the respondent, the time for appeal in this case shall commence on December 24, 1993. An application for appeal must be made in writing and received at the Civil Aviation Tribunal, 344 Slater Street, Room 405, Ottawa, Ontario, K1A 0N5, within ten (10) days of the date of this determination.

The Aeronautics Act does not provide for any extension for Appeals not received by the Tribunal on or before the tenth day.

Please note that subsection 18(2) of the Tribunal Rules requires that a request for appeal "shall include a concise statement of the grounds on which the appeal is based".

REASONS FOR DETERMINATION AS TO SANCTION   Rushford, Q.C.

January 12, 1994
Kenora, Ontario

I did not deal with the sanctions to be imposed in this case until I had rendered a decision.

The question of sanction was dealt with thereafter by way of teleconference.

After considering the representations made by both Mr. Fred Pratt, for the Respondent, and Mr. Campbell Wright, for the Applicant, I concluded that a reasonably lengthy period of suspension was warranted.

This Company has had some eighty-five infractions over the course of several years. I am cognizant of the fact that their record has improved in recent years; however, past sanctions do not appear to have been a sufficient deterrent.

During my seven years on the Tribunal, this Company has the worst record of any I have encountered.

The suspension imposed should be sufficient to ensure that, in future, the Company complies with the applicable legislation.

FEDERAL COURT OF CANADA - Trial Division    MacKay J.

Heard: January 30, 1995, Calgary, Alberta
Decision: March 7, 1995

¶ 1 MacKAY J. (Reasons for Orders):- These matters were set down for hearing, together, in Calgary on January 30, 1995. They concern similar applications on behalf of the respondent Minister, in each of three Court files in which the applicants seek judicial review in relation to decisions of the Minister arising in one general factual circumstance. Those decisions concern the cancellation of the operating certificate held by the applicant, Stewart Lake Airways Ltd. ("SLA"), and cancellation of the Commercial Pilot's Licence privileges of the applicant, William Charles Krolyk, a principal officer of the applicant corporation. The operating certificate and the licence are Canadian aviation documents issued by the Minister under the Aeronautics Act, R.S.C. 1985, c. A-2 ("the Act"), as amended, and cancellations were under that Act.

¶ 2 Before the Court are four similar applications by the respondent Minister, one in each of files T-773-94 and T- 797-94, and two in file T-1878-94, for an Order to strike the originating notice of motion pursuant to Rule 419(1) of the Court's Rules, or in the alternative an order to stay these Court proceedings, pursuant to s. 50(1)(b) of the Federal Court Act, R.S.C. 1985, c.F-7 as amended, pending determination by the Civil Aviation Tribunal of issues concerning validity of the Minister's decisions, or in the further alternative for directions pursuant to Rule 473(1). In addition to those four similar motions, there was before the Court, the applicants' motion, in relation to all three Court files, that these three applications for judicial review be consolidated pursuant to Rule 1620.

¶ 3 I trace briefly the circumstances which led to the applications filed by the applicants, SLA and Mr. Krolyk, for judicial review. In August 1993, following an incident involving an aircraft owned and operated by SLA, the company was advised by the Minister of his determination to suspend, under s. 6.9 of the Act, SLA's operating certificate for a total of 416 days, from September 24, 1993 to November 13, 1994. SLA applied to the Civil Aviation Tribunal ("CAT") for review of the Minister's decision and to stay operation of the suspension pending the hearing. CAT granted the stay requested, by decision made in August 1993, pursuant to s. 6.9(4) of the Act. The review of the Minister's suspension was undertaken by CAT, and that review, conducted by a member of the tribunal, resulted in a determination, in December 1994, upholding the Minister's suspension of SLA's operating certificate but reducing the suspension period to 196 days, expiring July 15, 1994. That decision was appealed by SLA to a three-member panel of the CAT by application to the tribunal on December 30, 1993, in accord with s. 7.2 of the Act. A hearing by a panel of CAT was scheduled for April 19, 1994, but was later deferred pending the resolution of issues concerning the cancellations which, by then, were also before the Board by requests of SLA and Mr. Krolyk for review of the cancellation decisions of the Minister. Thus the appeal by SLA of the decision suspending SLA's operating certificate for 196 days, has not yet been heard by a three-member panel of CAT.

¶ 4 On February 25, 1994 notice was given on behalf of the Minister of his determinations, respectively, (1) to cancel the commercial pilot's licence of William Charles Krolyk, and (2) to cancel SLA's operating certificate, both cancellations to be effective March 1, 1994. The decisions were made pursuant to s. 7.1(1)(c) of the Act, in the public interest. These two notices followed the decision, in late December 1993 upholding the Minister's suspension of SLA's operating certificate but reducing the term, and following the making of arrangements for a hearing in April 1994 by a panel of CAT of a review requested by SLA of the suspension imposed.

¶ 5 By the notices of cancellation SLA and Mr. Krolyk were advised that if a review of the Minister's decisions by the Civil Aviation Tribunal was desired a request in writing should be directed to the tribunal on or before March 31, 1994, and that a request for a review would not operate as a stay of the cancellation in either case. On March 15, 1994 SLA and Mr. Krolyk each requested a review by CAT of the Minister's decisions.

¶ 6 Thereafter two applications for judicial review in relation to the Minister's cancellation decisions were filed in this Court, on March 31, 1994, in file T-773-94 by SLA against the Minister as respondent seeking review and setting aside of the decision to cancel SLA's operating certificate, and on April 4, 1994 in file T-797-94 by Mr. Krolyk against the Minister seeking review and setting aside of the decision to cancel Mr. Krolyk's commercial pilot's licence privileges.

¶ 7 On May 12, 1994, application was made on behalf of SLA and Mr. Krolyk to the CAT requesting that the two cancellations be declared null and void on ground, that the cancellations are harsh, oppressive and unjust, and that they are an abuse of process, essentially because the cancellations were imposed in relation to the same circumstances that had already led to suspension of SLA's certificate. That application was treated by CAT as a motion pursuant to Rule 10 of the CAT Rules, SOR/86-594, as amended. It was dealt with by R. J. MacPherson, on behalf of CAT, who dismissed the application by decision dated July 7, 1994. By the same decision he noted that CAT had no jurisdiction to stay the cancellations pending a review hearing by CAT but he did note that the CAT was prepared to expedite hearings.

¶ 8 In mid-May, following the formal requests to CAT for review of the Minister's cancellation decisions, counsel for the applicants also requested the cancellations be declared null and void, presumably without a hearing, on the basis those were an abuse of process. CAT directed that the latter request be treated as a motion under rule 10 of CAT's Rules of Procedure, to be determined by one member of the tribunal. The member who heard argument on the motion, on July 7, 1994, denied the request that the cancellation decisions be declared null and void without a hearing on the merits of the decision. That decision also declined to grant a stay of the cancellation decisions pending review by CAT of the merits of those decisions, on the ground that CAT had no jurisdiction to stay the cancellations which were made under s. 7.1(1)(c) in the public interest. When the applicants, SLA and Mr. Krolyk, raised with CAT the possibility of appeal to a panel of the tribunal of the decision of July 7, CAT concluded, after submissions of both parties on the question, that it did not have jurisdiction to deal with an appeal from a decision made in relation to a preliminary or interlocutory motion. Those proceedings, in turn, gave rise to the third application for judicial review by the applicants.

¶ 9 Thereafter, two further applications were filed on behalf of the applicants herein in a third Court file, T-1878- 94. The original application is described as an originating notice and a notice of motion, both with a style of cause relating to three separate CAT (and Ministry of Transport) files, two in the names of SLA as appellant or as applicant, and one in the name of Bill Charles Krolyk as applicant, and the motions included are in relation to the Minister of Transport as respondent. Both applications are without separate supporting affidavits. The first, filed August 4, 1994, seeks a variety of orders, declaring the suspension, dated August 17, 1993 of SLA's operating certificate to be null and void, for similar declarations concerning decisions of the Minister to cancel SLA's certificate and Mr. Krolyk's commercial pilot's licence privileges and to stay further proceedings in regard to those cancellations, and for an interim stay pending determination of the application by this Court. In the alternative, if this Court refers matters to CAT pursuant to s-s. 18.1 of the Federal Court Act an order is sought to stay cancellation decisions of the Minister pending disposition of the matter by CAT and disposition of any appeals from the tribunal.

¶ 10 The second motion in file T-1878-94, filed October 6, 1994 on behalf of the applicants herein, SLA and Mr. Krolyk, seeks an order consolidating the applications for judicial review in all three Court files T-773-94, T-797-94 and T-1878- 94. That motion and four motions on behalf of the respondent Minister were before the Court in Calgary on January 30, 1995. As earlier noted, the respondent's motions in each of the three files were similar, seeking an order pursuant to Rule 419(1) that the applications of SLA and Mr. Krolyk be struck out and dismissed, or in the alternative an order issue pursuant to s. 50(1)(b) of the Federal Court Act and Rule 1620(1)(c) of the Court's Rules that the applications of SLA and Mr. Krolyk be stayed pending final determination concerning validity of the Minister's cancellation decisions by the CAT, or in the further alternative, for directions as to procedures to govern the course of applications for relief initiated by the applicants SLA and Krolyk.

¶ 11 After hearing from counsel for SLA and Mr. Krolyk and counsel for the Minister, and after exploring, without success, the possibilities of agreement between the parties on procedures that might be followed to expeditiously resolve the issues raised in the various applications, and after consideration of submissions made at the hearing, orders were issued staying proceedings in this Court in all three files by the applicants, SLA and Krolyk, seeking relief, pending disposition by the CAT of applications before the tribunal for review of the Minister's cancellation decisions. Three such Orders similar in nature were issued February 2, 1995, and a fourth Order with these Reasons on March 7, 1995, one on each of files T-773-94 and T-797-94 and two Orders on file T-1878- 94. Further, an Order on each of the three files dismisses the applications of the applicants SLA and Mr. Krolyk for consolidation of the three files, without prejudice to either party to bring forward such a motion following disposition by CAT of the applications for review of the cancellation decisions of the Minister.

¶ 12 For the record I note that at this stage the applications before the CAT to review the cancellation decisions of the Minister have not proceeded, pending consideration by this Court of the applications made in relation to judicial review, including the preliminary or interlocutory applications now dealt with. I note also that at the hearing of these preliminary applications, in exploring possible resolution of issues before the Court, counsel for the respondent Minister, after consultation with officers of CAT, assured the Court that if a stay of proceedings in this Court were granted the Minister would urge CAT to arrange expedited hearings, that officials of the Minister's department would cooperate fully to ensure that hearings before CAT proceed expeditiously, including presentation of the Minister's case by not more than six witnesses at hearings of CAT, that counsel believed Charter issues or any other relevant issues could be heard and determined by the CAT. Counsel indicated that a full disclosure package, with a list of witnesses, their positions, and matters each can be expected to testify upon, and certain documentary evidence relevant for proceedings before CAT, have already been provided to counsel for SLA and Mr. Krolyk.

¶ 13 Briefly, these are the reasons for disposition of the motions before the Court.

a) On the basis of affidavits filed in relation to two of the originating motions and accepting allegations of fact by the applicants, SLA and Mr. Krolyk, as proven for purposes of the motions in files T-773-94 and T-797-94, I was not persuaded that the applicants have no prospect of succeeding in their applications for judicial review. Rule 419(1) providing for motions to strike pleadings in an action requires such a standard by the jurisprudence of this Court. Assuming that the Court has inherent discretion to strike an originating motion, a similar standard to that required under Rule 419(1) has been held applicable where the Court is asked to strike or dismiss an application. (See Brière v. Lang and Murray and A. G. Canada, unreported, Court file T- 1830-94, September 21, 1994 (F.C.T.D.) per Noël J. [Please see [1994] A.C.F. no 1389]; David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al., unreported, Court file A-332-94, November 1, 1994 (F.C.A.) per Strayer J.A. [Please see [1994] F.C.J. No. 1629], pp. 3-10).

b) As noted, alternative relief requested by the respondent Minister was granted, to stay proceedings in this Court pending disposition of the proceedings already initiated before the CAT by SLA and Mr. Krolyk to review cancellation decisions of the Minister.

Stays of proceedings in this Court are consistent with the general principle that the Court will generally decline to intervene by extraordinary remedy where a tribunal subject to judicial review has jurisdiction, including remedies, to deal with the matter. (See: Brière v. Lang and Murray and Attorney General of Canada, unreported, Court file T- 1830-94, November 25, 1994, per Rouleau J. [Please see [1994] F.C.J. No. 1777] at pp. 7, 8 of English translation).

¶ 14 Counsel for SLA and Mr. Krolyk urges that CAT has authority to stay the cancellations or their proceedings on the basis that there has been an abuse of process, and in this case there has been such an abuse by reason of a number of factors. These include deprivation of the right of appeal on the suspension of SLA's operating certificate; the imposition of licence cancellations in addition to the suspension, results in punishment twice for the same matter; and it also results in a multiplicity of proceedings, wasteful of personnel and resources, and finally that the cancellation decisions affect the applicants' livelihood and will result in their being put out of business. Moreover, it was urged the applicants were entitled to have the issue of an abuse of process determined in this Court, expeditiously, and without the expense, in time and costs, of proceedings before CAT.

¶ 15 Despite the arguments of counsel for SLA and Mr. Krolyk, I concluded that in this case the Court should stay proceedings in the three applications for judicial review pending determination by CAT of the validity of the Minister's cancellation decisions and so ordered. That is consistent with the general principle noted earlier, in these circumstances, and with the practice of this Court. Moreover, it is consistent with the deference this Court owes to a highly specialized tribunal created by Parliament to review decisions made by the Minister under the Act and for which Parliament has provided by s. 37(9) of the Act that

"(9) A decision of the Tribunal on an appeal under this Act is final and binding on the parties to the appeal."

¶ 16 In my opinion, judicial review of CAT decisions should ordinarily not be undertaken except with regard to final decisions of the tribunal, unless there be extraordinary circumstances that would warrant intervention. No such circumstances are established here.

¶ 17 Finally, in my view, it is appropriate in this case to stay proceedings in this Court in the interests of justice pursuant to paragraph 50(1)(b) of the Federal Court Act. To do otherwise opens the door to judicial review of decisions by CAT in regard to interlocutory motions before proceedings before the tribunal are concluded. That, it seems to me would make more, rather than less, complex the proceedings now provided by Parliament for review of decisions in accord with the Act and under the Federal Court Act.

¶ 18 With regard to the application by SLA and Mr. Krolyk for consolidation of proceedings in the three Court files, I concluded that the application should be dismissed as premature, without prejudice to either party applying for consolidation if that appears desirable at a future stage following determinations by the CAT upon conclusion of its review of the Minister's cancellation decisions.

¶ 19 I direct that a copy of these Reasons be filed on each of the Court files T-773-94, T-797-94, and T-1878-94. I further direct that in the last of those files, on the Court's own initiative, the style of cause henceforth be, as it is set out in the Order issued herein on March 7, 1994.

MacKAY J.

UPON an application on behalf of the Minister of Transport, insofar as this application seeks relief for Bill Charles Krolyk, applicant, dealing with CAT File No. c-0366-03, for the following orders:

1. pursuant to Rule 419(1)(a), (b), (c) and (f) of the Federal Court Rules, that the application of Bill Charles Krolyk be struck out, dismissed and judgment entered accordingly;

2. pursuant to section 50(1)(b) of the Federal Court Act and Rule 1620(1)(c) of the Federal Court Rules that the application of Bill Charles Krolyk be stayed pending the final determination of the applicant's claims by the Civil Aviation Tribunal;

3. pursuant to Rule 473(1) of the Federal Court Rules for directions as to the procedure to govern the course of the application; and

4. costs.

UPON hearing counsel for the parties in Calgary on January 30, 1995, in relation to this and similar applications on behalf of the respondent in proceedings in Court files T-773-94 and T-797-94, and in this file in relation to an application by Stewart Lake Airways Limited, and in relation to the applications on behalf of the applicants for consolidation of proceedings in all three Court files, whereupon decision was reserved, and upon consideration of submissions then made; and

UPON issuing similar Orders in all three proceedings on February 2, 1995, and having then intended to deal with all matters dealt with at the hearing on January 30, 1995 but subsequently noting that an Order comparable to this, concerning the application of Bill Charles Krolyk, was at the time not issued, by inadvertence of this Court;

ORDER

IT IS ORDERED that as of February 2, 1995, proceedings in relation to an application of Bill Charles Krolyk, are stayed pending final determination, by the Civil Aviation Tribunal in accord with the Aeronautics Act, as to the validity of the decision on behalf of the Minister to cancel the Commercial Pilot's Licence privileges of the applicant.

Of its own motion this Court orders that henceforth the style of cause in this proceeding be as it is at the commencement of this Order.

Date modified:

2010-03-31

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