IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20160407

Docket: S105434

Registry: Vancouver

Between:

Workers’
Compensation Board of British Columbia

Plaintiff

And:

Flanagan Enterprises
(Nevada) Inc., Bill Dause, Attorney General of Canada, Gary Wendell Johnson

Defendants

And:

Pacific
Skydivers Ltd., Flanagan Enterprises (Nevada) Inc., Ian Flanagan, Bill Dause,
Attorney General of Canada, Pratt & Whitney Canada Corp., Hamilton
Sundstrand Corporation, Ashe Aircraft Enterprises Ltd. dba Rocky Mountain
Aircraft Ltd., ABC Corporation and Gary Wendell Johnson

Third
Parties

Before: The Honourable Mr. Justice
Grauer

Oral Reasons for Judgment

Expert
Report

[1]           
The defendant Canada, representing Transport Canada, objects to
the admissibility of an expert report tendered by the plaintiff from Mr. Clifford
Neudorf, the recently retired Superintendent of Transport Canada’s Aircraft
Evaluation Group, National Aircraft Certification and Maintenance &
Manufacturing.  Canada’s objections relate to both to qualifications and to
deficiencies in the report itself.

[2]           
The report is tendered in the context of a personal injury claim arising
out of the crash in 2008 of a Beech A90 aircraft registered in Nevada and
operating in Canada under a NAFTA air operating certificate issued to the
defendant Dause.  I will refer to that aircraft as N17.

[3]           
By NAFTA rules, the aircraft was subject to the regulations and
oversight of its home aviation authority, the United States FAA, and the
Federal Aviation Regulations (FARs) rather than Transport Canada and the
Canadian Aviation Regulations (CARs).  These rules, the plaintiff intends to
establish, were premised on the existence of an equivalent level of safety
between the two regimes, a premise that, the plaintiff says, was false.  The
plaintiff will contend that Transport Canada ought to have realized the error
of this premise once safety concerns came to its attention in or about the year
2000 in relation to another aircraft operated by Dause on the same basis as the
aircraft in question.  I will refer to this earlier aircraft as N256.

[4]           
In these circumstances, the plaintiff seeks to establish that Transport
Canada knowingly approved an unsafe aircraft for operation in Canada, and I
will be asked to assess, among other things, whether Transport Canada acted
reasonably in granting the operating certificate for N17, and whether there was
an equivalency between the American and Canadian regulations.  There are, of
course, many other issues, but these are the ones that are important for the
purpose of assessing the admissibility of Mr. Neudorf’s expert report.

[5]           
As the plaintiff submits, in answering these questions I will be asked
to assess:

(a)          
what actual safety issues existed with this aircraft;

(b)          
what Transport Canada knew or ought to have known about the safety of
the aircraft;

(c)          
what indicia of control over an aircraft operation were relevant;

(d)          
what Transport Canada knew or ought to have known about the degree of
control being exercised by the defendant Dause;

(e)          
what Canada concluded or ought to have concluded about the effect of the
applicable FARs

(f)            
what standard of care should apply.

[6]           
It is trite law that opinion evidence, per se, is inadmissible. 
An exception is made in relation to the evidence of a qualified expert where
the subject matter of the testimony is such that ordinary people are unlikely
to form a correct judgment about it, if unassisted by persons with special
knowledge.  That is the element of necessity in assisting the trier of fact. 
In addition, the expert must be properly qualified as having gained his or her
special knowledge by a course of study or previous habit that secures his or
her habitual familiarity with the matter in hand, and of course the evidence
must be relevant.  Moreover, its admissibility depends further on the absence
of any exclusionary rule.  These criteria are discussed fully in cases such as Kelliher
(Village) v Smith, [1931] SCR 672 at 684, and R v Mohan, [1994]
2 SCR 9 at 20.

[7]           
Turning to the question of qualifications, Mr. Neudorf has been
tendered as an expert in five areas:

1.            
aviation maintenance;

2.            
civil aviation safety inspection;

3.            
the development and oversight of aviation maintenance programs;

4.            
the assessment of the comparative safety impact of relevant maintenance
regulations and programs under the FARs (Part 91) and the CARs (part 702);

5.            
aircraft leasing, custody and control from a regulatory perspective.

[8]           
Canada raises a number of objections concerning Mr. Neudorf’s
qualifications, particularly relating to his ability to provide a comparative
analysis of Canadian and American aviation regulations.

[9]           
Generally, I find that Mr. Neudorf is qualified in the first three
areas in which he has been tendered by reason of his long experience as a civil
aviation safety Inspector-airworthiness, as the chair of maintenance review
boards, and as superintendent of the Aircraft Evaluation Group, National
Aircraft Certification Maintenance & Manufacturing.

[10]       
In relation to the fourth area of expertise, Canada argues strenuously
that Mr. Neudorf is not qualified to offer an opinion on the correct
interpretation of the American regulations.  He is not trained in law, has
never worked for the FAA, and has not been called upon to apply those
regulations.

[11]       
I agree that it would not be proper for Mr. Neudorf to be tendered
as an expert on the correct legal interpretation of part 91 of the FARs. 
But he is not being tendered as that kind of expert.  Rather, the plaintiff tenders
him as an expert in the assessment of the comparative safety impact of relevant
maintenance regulations and programs under the FARs (Part 91) and the CARs
(part 702).

[12]       
Although Mr. Neudorf is not a lawyer, and never worked with the FAA
in applying the FARs, it was, I find, part of his job to be familiar with them
and to consider their effect.  As such, I find that he was in a position to
come to an informed understanding of the effect of those regulations,
particularly given his experience with the NAFTA Phase I working group and his
experience as an inspector in the Foreign Inspection Division of the Commercial
and Business Aviation Branch of Transport Canada.  The correctness of that
understanding can of course be challenged on cross examination.

[13]       
I conclude that while the limitations on his experience and training may
go to the weight to be attributed to his opinion, it cannot be said that he is
not qualified through his special knowledge gained from his experience to offer
an opinion in the area that the plaintiff has delineated.

[14]       
Turning to the fifth area, aircraft leasing, custody and control, I am
satisfied that Mr. Neudorf can express an opinion as to whether, for
instance, safety inspectors customarily consider questions of custody and
control in the context of evaluating safety, and if so, what aspects would or
should give rise to concern.  Otherwise, Mr. Neudorf has established no
particular expertise in dealing with matters of leasing, custody and control.

[15]       
Part of the difficulty here is that the areas in which I have found Mr. Neudorf
to be qualified to give expert evidence are not necessarily the areas addressed
in his report.  As I see it, there are two reasons for this difficulty.

[16]       
First, Mr. Neudorf has never acted as an expert witness before.  By
no means does that disqualify him.  But it may help to explain why his report
is so far removed from what is normally admitted into evidence in these courts
as a statement of expert opinion.  He does not, for instance, set out his
opinion as to the accepted standards in the industry, against which I can
measure the facts as I find them from the evidence.  While he does speak of
standards to a certain extent, it is not always possible to discern when he is
speaking about standards, and when he is speaking about his own personal
views.  Moreover, he repeatedly invades the province of the trial judge by
going on to pass judgment on the (in)adequacy of conduct.  No doubt this is due
to a lack of understanding of the appropriate delineation between expert
opinion evidence and conclusions of fact and law.  Regardless of the reason,
the fact remains that  Mr. Neudorf is entitled to tell me all about what
standards are accepted and routinely applied; he is not entitled to tell me how
to judge the conduct of those purporting to apply them.  In this respect, his
personal judgment is irrelevant and inadmissible.

[17]       
Counsel for the plaintiffs suggests that defects of this nature can be
cured when Mr. Neudorf is examined in chief.  But that is not within the
permissible scope of examination of an expert witness in chief.  Examination in
chief is a limited to what is necessary to explain technical aspects of the
opinion.  It is not an opportunity to attempt to render what is inadmissible in
a report admissible from the witness box.

[18]       
Second, Mr. Neudorf was an employee of Transport Canada throughout
the time in question, by all accounts a valued one.  The fact remains that he
had a particular point of view that he advocated at that time, and continues to
advocate today, in relation to matters in issue in this action.  In this sense,
he has (to quote counsel for Canada) a pony in the race.  Apart from issues of
independence and objectivity, which I will discuss shortly, this appears to
have led Mr. Neudorf to express views that go well beyond the questions
asked, and beyond the areas of expertise for which he has been qualified.

[19]       
From this state of affairs, two questions arise.  First, should I
exercise my discretion to disqualify him by reason of bias, as submitted by
Canada?  Second, if I do not so disqualify him, are the defects in his report,
as Mr. Flanagan asserts, so pervasive as to render the report as a whole
inadmissible?

[20]       
As to bias, I consider it important to understand that we are talking
here not of favouring one party over another, but of pre-conceived ideas that
happen to match the interests of the plaintiff.  In other words, there is no
doubt in my mind that Mr. Neudorf’s opinions are sincerely held, and would
not change regardless of who retained him.  What may be missing is an
acceptable degree of objectivity, but it is difficult for me to assess that
without having had his opinions tested by cross-examination.

[21]       
In my view, the fact that Mr. Neudorf holds strong opinions and has
held them for some time does not disqualify him from expressing those opinions
as an expert witness.  It does not follow that he is unable to comply with his
duty to assist the court.  While comments in his report do give rise to
concerns about his objectivity, I do not consider the problem to be a
disqualifying one in the circumstances of this case.  Rather, it goes to
weight.  In this regard, see the discussions in White Burgess Langille Inman
v Abbott and Haliburton Co, 2015 SCC 23 at paras 48-49, and Conseil
scolaire francophone de la Colombie-Britannique v British Columbia (Education),
2014 BCSC 851 at para 23.

[22]       
This discussion applies to the question of the admissibility of the
report as a whole.  To the extent that Mr. Neudorf’s views lead him to
stray outside of his areas of expertise and the questions he has been asked to
address, those aspects of his opinion will be inadmissible.

[23]       
I now turn to the question of whether, notwithstanding the deficiencies
I have discussed and am about to explore, portions of the report remain
salvageable.

[24]       
I conclude that while much of the report ought not to be admitted into
evidence, there are portions that in fairness are within the realm of
admissibility, and on which, subject to weight, the plaintiff ought to be
permitted to rely.  I will now review the report in detail.

[25]       
Mr. Neudorf frames his report as a discussion of and answer to a
number of questions, as follows:

1. What issues in
2000 were Safety Concerns?

In your opinion, what issues identified by Transport
Canada in 2000 regarding the operation of N256 were Safety Concerns?

2. Were the above concerns addressed prior to issuance of
the 2001 operating certificate?

Were these concerns resolved before the issuance of an
operating certificate to Mr. Dause in 2001?  In answering this question,
please consider whether the letter of conformity dated May 4, 2001,
addressed all safety concerns that had not already been resolved.

3. Custody
and control of N256

Did you have concerns in 2000 about the relationship
between Mr. Dause, Mr. Flanagan, and the custody and control or
operational control of N256?  If so:

a.       What were your concerns?

b.       If you had been involved in
certification or oversight in relation to NAFTA certificates issued to Mr. Dause
between 2001 and 2008, what steps would you have recommended to determine
whether Mr. Dause had custody and control or exercised operational control
over aircraft in Canada?

c.        What certificate or
enforcement action would you have recommended if you were not satisfied with Mr. Dause’s
control of the operation?

4. Safety
Concerns of N 17 Operation in 2008

Based on your review of documents, please identify any
safety concerns you have regarding the operation of N17 in 2008.

5. Does the inspection program that was being used for N17
and N256 between 2000 and 2008 provide an equivalent level of safety to the
maintenance that would be required if the aircraft were operated pursuant to a
CAR 702 operating certificate?  In particular please discuss differences in
overhaul requirements.

[26]       
I begin with Question 1.

[27]       
The first problem is that the phrase “Safety Concerns” is not defined. 
It should have been defined clearly in the report.  It is evident that it is
used as a term of art, but that is all the more reason why the term should have
been described in the report.  It is not like the use of a scientific term that
an expert witness is asked to explain in chief.  The definition of such a term
can be found in an appropriate reference work.  As I understand it, there is no
manual that sets out this phrase as a defined term.

[28]       
Notwithstanding this shortcoming, I would not exclude the opinion on
that basis alone.  Canada does not seem to have laboured under any
misapprehension because of the absence of a definition.  The term can be
explained, as it was in argument, and the explanation can be subjected to
cross-examination.

[29]       
Mr. Neudorf can, of course, testify as a factual witness as to what
issues were identified by Transport Canada in 2000 regarding the operation of
N256, and he is certainly qualified to offer opinion evidence as to whether
these issues constituted “Safety Concerns” as that term was customarily
employed or understood by civil aviation safety inspectors.  Once again, that
understanding should have been specified.  But in any event, Mr. Neudorf
goes well beyond answering that question, and undertakes factual analyses
within my province as the trier of fact.  He also expresses his views in a
manner that lacks objectivity and leads him to stray outside of his areas of
expertise.

[30]       
In relation to the question of the equivalence of the American and
Canadian regulations (Safety Concern 7), he concludes with statements such as:

There was a parallel regulatory issue uncovered, which in my
opinion is a significant safety concern and a root cause of the events that
would eventually place the American registered accident aircraft N17SA in
Canada.

In my opinion, this is an open safety concern.  These
representations need to be revisited in order to truly establish how much lower
these FAA regulations are in respect of the level of safety achieved by the
Canadian regulations and what mitigation needs to be imposed by TCCA to offset
these details.  In the meantime, it is my opinion that TCCA must exercise due
diligence and impose additional safety requirements as applicable on every “N”
registered SAS aircraft that apply to operate in Canada pursuant to this NAFTA
agreement.

It is my opinion that, on a
systemic level, the NAFTA Tri-National Regulatory Authorities heard badly when
they accepted under NAFTA that the FAR Part 91 & 43, private aircraft
maintenance, certification and inspection requirements were sufficiently
equivalent to the Canadian Commercial CAR 702 requirements and that the
operation of American registered private aircraft in Canadian domestic
commercial services could be implemented with little concern.

[31]       
With respect, while I have no doubt that Mr. Neudorf’s views are
sincerely held, what he thinks Transport Canada ought to be doing is irrelevant
and of no assistance to me, his opinion as to causation is not one he is
qualified to provide, and his views as to whether the Tri-National Regulatory
Authorities erred badly go beyond both his expertise and the proper scope of
his opinion.  This is a far cry from setting out a straightforward comparison,
from the perspective of a person with expertise in aircraft maintenance,
inspection, safety issues and maintenance programs, of the effect of the two
regulatory regimes.  That is something he does in a later section.

[32]       
One safety concern he describes in this first section relates to the
issue of custody and control:

This is an issue and a safety
concern in that Bill Dause, the Operator and holder of the NAFTA air operator
certificate Number 9957, appears not to have custody and control of the
aircraft N256.  In terms of aircraft custody, Bill Dause is absent when the
aircraft is in Canada, as he remains in the United States.  In terms of
aircraft control, the aircraft has been leased to Pacific skydivers Ltd and
flown by Ian Flanagan….  When the issue was raised it was acknowledged by the
acting Chief – Foreign inspection division but it remains an unaddressed safety
concern.

[33]       
This is not admissible opinion evidence.  Mr. Neudorf would be
entitled to provide evidence about why custody and control might be a safety
concern, and what issues would typically be considered, but it is not his job
to analyse the facts and come to a conclusion of this sort.  That is my job.

[34]       
The question is whether any part of the answer to Question 1 is
salvageable.  I conclude that the portions on page 7 and 8 relating to Safety
Concerns 1 through 5 constitute admissible opinion evidence, subject to the
definition of “Safety Concerns”.  As indicated, I will permit Mr. Neudorf
to be asked to explain that term in his evidence in chief.  The remaining portions,
relating to Safety Concerns 6 and 7 are not, in my view, admissible for the
reasons I have discussed.

[35]       
Turning to Question 2, I am satisfied that Mr. Neudorf may well be
in a position to give evidence about whether Safety Concerns identified by Transport
Canada in 2000 were addressed prior to the issuance of the NAFTA operating
certificate to N256 in 2001.  But in his answer to the question, he again
strays well beyond it.  He purports to interpret a letter of conformity issued
by the United States FAA.  He states, in part:

The FAA reviewed the aircraft
records to determine if they would “…meet the conformity requirements of
applicable Federal Aviation Regulations.”  I note that the recordkeeping
requirements for US operators are found in their regulations at FAR 91.417 and
43.11.  It is my opinion that this conformity inspection of the records was
conducted simply to assure that the record entries were compliant or in
conformity with the recordkeeping requirements.  In my opinion, to infer that
the safety concerns of question one or any other concerns held in 2000 about
this operator were somehow addressed by this conformity inspection is simply
wrong.

[36]       
I say, again with respect because I do not doubt Mr. Neudorf’s
sincerity, that this is not an admissible opinion.  I am in as good a position
to interpret the document as he is, and I do not require his assistance.  In
any event, nothing in his report or curriculum vitae suggests he has any
particular expertise in interpreting such a document, and his personal views
are quite irrelevant.

[37]       
Under the heading “Status of TCCA communication with FAA” on page 12, Mr. Neudorf
states:

It is a matter of concern that
after December 14, 2000, there is no evidence of any further correspondence
between TCCA and the FAA leading to the resolution of this matter and the
reissuance of the NAFTA operating certificate to Bill Dause, yet the operating
certificate was re-issued.  It is also a matter of concern that the
communications with the FAA on this matter were not sufficiently open that this
matter could have been resolved working directly with the FAA.  As it was left,
the safety concerns were not dealt with and TCCA missed an opportunity to
understand and learn how the FAA handled the concerns raised in the conditions
of reinstatement.

[38]       
I consider that this again intrudes into the role of the trial judge,
comments on the evidence, comes to factual conclusions (“not sufficiently
open”) and opines on matters not within his expertise (the quality of
correspondence).

[39]       
Under the heading “SC#2 N256TA engine TBO exceedances” on page 13 of his
report, Mr. Neudorf describes what in his opinion was a major safety
concern, the fact that aircraft N256, operating under the authority of the
NAFTA air operator certificate, was being operated with engines that had been
operated for lengthy periods since their last overhaul, and well beyond the
manufacturer’s recommended time before overhaul (TBO).

[40]       
I have no doubt that Mr. Neudorf is qualified to provide an opinion
about the extent to which operating engines in the manner described gives rise
to a safety concern in the circumstances that were identified.  But he then
parlays this into an opinion that the rules of the United States FARs:

…are by application more un-safe
than the regulatory requirements for parachute operations in Canada.  As an
example of how unsafe the US operations are and the risk involved, see the NTSB
report noted below.  This report cites 32 fatal parachute dropping accidents
achieved by the US operators since 1980.

[41]       
The NTSB report in question, the admissibility of which is challenged,
was issued in September 2008, months after the accident at issue in this case,
and years after the issue of safety concerns arose in relation to N256.  Mr. Neudorf
goes on to say:

This sector of aviation in the
United States is a high risk sector.  It seems that this risk is off-set by the
significant financial advantages accrued to the US operator.

No basis is provided for this statement, but if it is
based upon the NTSB report, it is not an appropriate expression of the opinion
of this witness.

[42]       
In discussing safety concern #6 (custody and control), we find the
following conclusion at page 18:

It is evident that the NAFTA
agreement enabled a circuitous route to circumvent Canadian regulations in
order to operate N256 a Beech King Air A90 in parachute operations in Canada. 
The safety implications and the rationale for doing this are quite concerning.

[43]       
In my view, this sort of conclusory statement goes well beyond the
proper scope of expert evidence, and beyond the scope of Mr. Neudorf’s
expertise.

[44]       
Are any parts of Mr. Neudorf’s answers to this question
salvageable?  I consider that the comments on page 13 in relation to Safety
Concern #1 are admissible, as are the first two paragraphs of the comments in
relation to Safety Concern #2.  The balance of that section is inadmissible. 
The comments in relation to Safety Concerns #3a and 3b on pages 14 through 16
are admissible, subject to any submissions concerning the relevance.  The
comments in relation to Safety Concern #6 are not admissible

[45]       
I now turn to Question 3.  If Mr. Neudorf had concerns about the
custody and control of N256 at the time in question, and communicated them, he
can certainly give that evidence.  That is not, however, a matter for inclusion
in an expert report.  It must come from the witness box.

[46]       
Mr. Neudorf is then asked to describe what he would have done had
he been involved in certification or oversight at the time in relation to the
issue of whether Mr. Dause had custody and control.  I have accepted that
he is qualified to give opinion evidence about why issues of custody and
control are considered by safety inspectors to be a safety issue.  Otherwise,
what he personally would have done is not relevant unless it is linked to
industry standards.  As it is, his answers consist mainly of factual analysis,
personal judgment, and argument, stating, for instance, at p. 18:

The Dause operation can be viewed as being a transfer or
interchange arrangement that permitted Ian Flanagan as the owner of N256 to
operate N256 in revenue service in Canada without meeting Canadian aviation
requirements.  It did not present the normal feel of a bona fide US specialty
air service providing a straight-up revenue generating service.  With this perspective,
many flags went up….

In 2000 upon review it was
apparent that Ian Flanagan through Flanagan Enterprises (Nevada) Inc. and as
the registered owner of N256 was simply utilizing the Bill Dause FAA
authorization as a convenience to enable Ian Flanagan to fly N256, a US
registered private aircraft, into Canada for revenue generating commercial
parachute operations.  It seems that this whole exercise was a subterfuge in an
effort to avoid having to meet the higher Canadian design requirements otherwise
applicable….

[47]       
While, as I have indicated, it would be open to Mr. Neudorf to
explain what safety concerns arise in connection with issues of custody and
control, it is not his job to offer conclusions about the motives and
intentions of Mr. Dause and Mr. Flanagan, which he does repeatedly. 
Again, if it is a question of what concerns he had and expressed at the time,
that evidence should come from the witness box and has no place in an expert
report where it would constitute a prior consistent statement.

[48]       
In my view, the section of the report responding to Question 3 is
inadmissible except for the limited portion on page 19 that appears to be
evidence of an applicable standard, beginning with the words, “Normally in an
international aircraft interchange arrangement…’ and ending with the excerpt
quoted from CAR 202.35(1).

[49]       
I turn next to Question 4.  Mr. Neudorf again employs some
phraseology that gives rise to concern about his impartiality and objectivity. 
But these, in this context, will go to weight.  I have an additional concern
about the extent to which this part of the opinion is relevant and
appropriate.  It appears to be aimed at the issue of whether the engine in
question had been safely maintained, the first part being headed with the title
“Opportunities to identify the impending Failure of the Fuel Pump”.  It is,
however, again framed in terms of “safety concerns”, as opposed to standards of
practice applicable to those charged with the care and installation of the
engine.

[50]       
 The thrust of the opinion seems to be that an inspection should have
been carried out, and if so, would have detected the deterioration.  Yet the
opinion provided is that “it is a safety concern that the owner, the operator
and the installer would not have performed this inspection as part of a health
check when installing this used engine on N17.  It is an even bigger safety
concern that opportunities were there to detect the impending failure of the
fuel pump and they did not do so.”

[51]       
Though I have concerns about the manner in which this opinion is
expressed, I allow this portion of the opinion into evidence, subject to
weight.  I do so because Mr. Neudorf sets out the basis of his opinion
clearly, specifying what he considers to be the appropriate inspection regime
and the relevant provisions of the Pratt and Whitney Canada maintenance manual
that support his conclusion.

[52]       
The next section, relating to the “Installation of TBO expired Engine
for Revenue Service” is confusing.  It begins with three paragraphs reviewing
the facts, and then concludes that it is a safety concern not that such an
engine was installed, but that the FAA permitted such a thing to occur.  No
proper basis is provided for this conclusion, which again seems to be moulded
by Mr. Neudorf’s personal views about FAA regulation, rather than the
dangers of using a TBO expired engine, or concerns arising from the record
keeping performed in relation to it.  If it is intended to indicate that, at
the time Transport Canada issued the operating certificate to N17, it ought to
have been alerted to deficiencies in the FAA regulations by the fact that this
engine had been installed, that proposition, to the extent it is not argument,
must be articulated and supported in a manner that provides for proper notice. 
This is not it.  In these circumstances, I do not see how the concluding two
paragraphs at the top of page 28 constitute proper opinion evidence.

[53]       
The next section, headed “LH engine N17 – on condition or fly to
failure” is also troubling, because Mr. Neudorf seems to spend most of it
weighing evidence.  He then comes to another argumentative conclusion:

Of concern is that the on-condition maintenance program
allegedly adopted by the owner and the operator for maintenance of the engines
is apparently not sufficiently robust to find the degradation that is occurring
in the engines in a timely manner

It remains a very large safety concern that this carte
blanche acceptance by TCCA of aircraft engine on-condition maintenance programs
under NAFTA continues unabated.

…It is a matter of concern and
it is unclear how Dause could select 91.409 (f)(3) and then operate the engines
in on-condition maintenance when at the time the manufacturer’s current
inspection program was not supporting on-condition maintenance for the engines.

[54]       
This goes well beyond the proper scope of opinion evidence.  Mr. Neudorf
does not simply provide the court with the benefit of his technical
understanding, or his conclusion concerning the safety consequences of
different maintenance programs.  Rather, he provides value judgments that go
beyond his expertise.

[55]       
What kind of a maintenance program Mr. Dause selected will be a
question of fact.  For Mr. Neudorf to tell me that it is not clear whether
the program Mr. Dause selected was consistent with the manner in which the
engines were operated is not helpful.  I do not need Mr. Neudorf to
highlight issues for me, and he does not state whether this should have raised
an issue at the time.  His opinion as to whether the manufacturer’s current
inspection program supported on condition maintenance may be of assistance, but
is so bound up with problematic statements that I am unable to sever it.

[56]       
I conclude, with some hesitation, that of the first three paragraphs
under this section are admissible.  The final three paragraphs are not.

[57]       
I find the balance of this section, relating to Safety Briefing of
Jumpers and Installation of Bench Style Seating Blocks also to be
inadmissible.  Mr. Neudorf’s comments are conclusory, frequently lacking
in factual support, argumentative and apparently beyond the scope of his
expertise.  He states, for instance,

The Specialty Air Services
Parachute Jumping culture of not wearing safety belts during takeoff and during
other times when necessitated is not acceptable.  It is evident that this is
negligence at its finest and an example of the complete absence of the pilot’s
duty of care with respect to his passengers.

[58]       
The reference to the “culture of not wearing safety belts during
takeoff” is footnoted to the Statement of Assumed Facts that accompanies the
report but there is no connection between the two.  That there is such a
culture is purely conclusory.  That it is unacceptable is stated without
reference to any standards, and it is not Mr. Neudorf’s job to determine
whether the situation constitutes “negligence at its finest”.

[59]       
I turn to what, perhaps, is the crux of the report, being Question 5,
concerning the equivalence in the level of safety between the inspection
program used in relation to the aircraft, and what maintenance would have been
required if the aircraft were operated in accordance with the Canadian
regulations.  A set of assumptions is given to Mr. Neudorf for the purpose
of answering this question.

[60]       
Similar matters were discussed in part by Mr. Neudorf in answer to
other questions, some of which answers I have ruled inadmissible.  It does not
necessarily follow that this discussion is inadmissible.

[61]       
Canada argues that I do not need his opinion on this subject because the
question of equivalency was canvassed in great depth by the NAFTA Special Air
Services Phase II Report produced by Transport Canada, the FAA, and the Mexican
Direccíon General de
Aeronáutica Civil.  Mr. Neudorf’s
view, of course, as noted above, is that the conclusion of the Phase II report
was wrong.

[62]       
I have already ruled Inadmissible Mr. Neudorf’s comments on the
actions and conclusions of the Tri-National Regulatory Authorities.  But within
the scope of his expertise, as I have found him to be qualified, it seems to me
that it may be of assistance for him to identify what he sees as differences in
requirements between the two regimes, leaving it to the plaintiff to argue that
Transport Canada ought to have determined, and I should find, that the
Tri-National Regulatory Authorities erred in concluding that there was an
equivalent level of safety.

[63]       
Accordingly, lack of necessity is not a basis on which I would rule this
part of the opinion to be inadmissible at this juncture.

[64]       
Turning to the particulars of Mr. Neudorf’s response, there is one
section that I find is, like many earlier portions of his report, inadmissible
as straying well beyond the question, and the proper scope of expert opinion. 
This is the section on pages 37 and 38 headed “Safety for US Aviation Operators
within the United States set at different levels of Risk”.  In this section, Mr. Neudorf
discusses the significance of an FAA advisory circular dated November 15,
2012.  He then offers opinions as to how Transport Canada should proceed in the
future, given this “clarification” by the FAA and the experience gained by
Transport Canada in relation to this accident.  Those opinions are irrelevant
and inadmissible, and that section must be omitted.

[65]       
In conclusion, Mr. Neudorf’s report may be admitted into evidence
once the portions I have ruled inadmissible have been redacted.  Mr. Neudorf
may proceed to testify.

“GRAUER, J.”