Administrative law – Pilots – Disciplinary proceedings – Due diligence – Evidence – Judicial review application – Administrative decisions – Standard of review – Reasonableness simpliciter
Veideman v. Canada (Minister of Transport),  F.C.J. No. 751, Federal Court of Canada – Trial Division, May 12, 2003, Snider J.
Veideman was a helicopter pilot transporting skiers in a heli-ski operation near Revelstoke, British Columbia. On March 29, 2000, while ascending into an area known as the Vortex, Veideman’s helicopter encountered some members of a group of skiers who had accessed the area by skiing in on the up track. The Vortex is the normal and safest route for the helicopter to fly up that slope. The skiers complained that the helicopter flew in close proximity to them on several occasions. On May 11, the Minister of Transport issued a Notice of Assessment to Veideman, alleging that he had breached paragraph 602.14(b) of the Canadian Aviation Regulations, SOR/96-433, by unlawfully operating an aircraft at a distance of less than 500 feet from a person. On October 13, 2000, a hearing was held in which the Review Member found that Veideman had passed within 500 feet of the skiers but that Veideman had exercised all due diligence to prevent the contravention. The Minister appealed this decision to the Tribunal. The Tribunal allowed the appeal, finding that the Review Member’s finding of fact was unreasonable as, although Veideman could not have known the skiers would be beneath him on the first ascent, on all subsequent ascents he knew or should have known that the skiers were accessing the Vortex via the up track situated under his proposed flight path. Veideman applied for judicial review of the Tribunal decision.
The court found that the appropriate standard of review in this type of case was reasonableness simpliciter, citing as authority the decision in Asselin v. Canada (Minister of Transport),  F.C.J. No. 256 (T.D.), aff’d  F.C.J. No. 43 (C.A.). The court then went on to consider whether the Tribunal erred in its interpretation of and application of the law of due diligence. The court noted that once the Ministry established, on a balance of probabilities, the constituent elements of paragraph 602.14(2)(b) of the Regulations, a strict liability offence, the onus shifted to Veideman to prove, on a balance of probabilities, that he exercised all due diligence to avoid the commission of the offence. The court agreed with the Tribunal’s finding that Veideman knew or should have known that skiers were present on the Vortex after having encountered them on his first flight. The court found that Veideman failed to take any steps to avoid over-flights of these skiers although alternatives, including taking his passengers to a different ski run, were available to Veideman. The court held that the Tribunal did not err in concluding that Veideman had not exercised due diligence and that this finding was supported by the evidence before the Tribunal. In the result, Veideman’s application for judicial review was dismissed.
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