Killen v. Canada ( Minister of Transport )
T-2410-97
Gibson J.
8/6/99
11 pp.
Judicial review of Civil Aviation Tribunal's decision setting aside review determination made by member of Tribunal, reinstating monetary penalty of $500 imposed pursuant to Aeronautics Act, s. 7.7-Under s. 7.7 respondent may impose penalty where believes on reasonable grounds person contravened designated provision-Designated provision herein Air Regulations, s. 534 prohibiting flying aircraft at altitude of less than 500 feet, unless flight conducted without creating hazard to persons, property, and aircraft flown in special purpose operation of nature necessitating flight at such lower altitude-On February 7, 1996 applicant, flight instructor, doing precautionary and forced landings with student pilot-Nearby resident complaining flight conducted at very low altitude, creating hazard-Applicant advised of complaint; penalty imposed-On review, member of Tribunal holding no evidence hazard created-On appeal, three-member panel holding complainant's evidence credible based solely on transcript-Application dismissed-Tribunal faced with difficult task-Tribunal member whose decision under appeal made few findings of fact, not evaluating testimony in any meaningful way-Under scheme of Act, Tribunal neither able to refer matter back for rehearing by Tribunal member nor to rehear evidence itself-Sole options available to tribunal under Act, s. 8.1(4) to either dismiss or allow appeal-If allowed appeal, Tribunal empowered to substitute its decision for determination appealed against-Unfortunate Tribunal adopting language of credibility with respect to complainant's testimony as not in position to determine credibility-Open to Tribunal to evaluate evidence on basis of transcript and to give greater weight to specific, detailed testimony of complainant as against necessarily more generalized testimony of applicant, student pilot-Against standard of review according some deference to tribunal, Court not prepared to determine Tribunal's unfortunate adoption of term "credible" reflecting reviewable error-Aeronautics Act, R.S.C., 1985, c. A-2, s. 7.7 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1; as am. by S.C., 1992, c. 4, s. 20), 8.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1; as am. by S.C. 1992, c. 4, s. 22)-Air Regulations, C.R.C., c. 2, s. 534 (as am. by SOR/83-627, s. 1; 84-305, s. 1; 89-383, s. 1).