Decisions

CAT File No. Q-1662-13
MoT File No. NAX 5258-1-6788

CIVIL AVIATION TRIBUNAL

BETWEEN:

Régionnair Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, s. 3(1), 7.1(1) and (8)
Canadian Aviation Regulations, s. 302.01(2)(b), (3), 724.14 and 724.44(2)(a)(v)

Air Operator Certificate-Private Uncertified Aerodrome-Equivalent Level of Safety-Definitions: aerodrome and airport


Review Determination
Pierre Rivest


Decision: October 14, 1998

TRANSLATION

Based on subsection 7.1(8) of the Aeronautics Act, I refer the matter back to the Minister for reconsideration and ask that the Minister review his decision in light of my final comments and to find, in cooperation with the air carrier, a realistic solution that would enable Régionnair to continue to provide scheduled service to the location of La Tabatière, included on its air operator certificate since 1993.

A Review Hearing on the above matter was held Thursday, September 10, 1998, at 9:30 hours at the Court House in Sept-Îles, Quebec. The witnesses were sworn in.

BACKGROUND

Since 1993, the Applicant, Régionnair Inc., has had an air operator certificate authorizing it to provide scheduled air service along the Lower North Shore of the Saint Lawrence, in Quebec (Exhibit M-1).

On July 7, 1998, Transport Canada cancelled part of the Applicant's air operator certificate, namely, the location of La Tabatière (Exhibit M-2).

The reason given was the fact that the runway at La Tabatière is an uncertified private aerodrome which does not meet the standards of a level of safety that is equivalent to that of certified aerodromes (manual TP 312) (see the letter of June 29, 1998, and the attached Notice of Cancellation, among the documents compiled by the Tribunal).

To rectify the situation, Transport Canada asked the air carrier to do the necessary work to comply with the standards of aerodrome certification.

On August 6, 1998, the Applicant submitted an application for review to the Tribunal to have this decision overturned.

THE LAW

Several statutory provisions were cited at the Review Hearing. I will cite them at the appropriate time, but the entire matter is based on paragraph 7.1(1)(b) of the Aeronautics Act, which provides:

7.1 (1) Where the Minister decides

(...)

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(...)

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

An expression that is also disputed when referring to aerodromes, and found later in several texts, is "equivalent level of safety."

This expression is referred to, for example, in subsection 302.01(3) of the Canadian Aviation Regulations (CARs):

(3) The Minister shall issue an authorization referred to in paragraph (2)(b) where it is possible to specify conditions in the authorization that will ensure a level of safety in respect of the use of the aerodrome that is equivalent to the level of safety established by this Subpart, and, in any such authorization, the Minister shall specify those conditions.

[Note: in the following text, unless otherwise indicated, all underlining and highlighting (bold type) is by the undersigned.]

THE FACTS

For the Respondent (the Minister)

The first witness, Serge Ste-Marie, an inspector with the Commercial and Business Aviation division, confirmed that the Applicant has held an air operator certificate since 1993 for scheduled air service and that the points it serves, with a DHC-6 TWIN OTTER aircraft, include La Tabatière.

The runway at La Tabatière has never been certified, but at the air carrier's request, dated December 1, 1992 (Exhibit M-3), Transport Canada allowed this location to be included on the air operator certificate (Exhibit M-5), dated January 25, 1993.

It was not until July 1998 that this location was removed because the runway did not comply with the new regulatory standards and could not be certified as an aerodrome for the type of air service provided.

This decision was taken after consultation with the Aerodrome Safety division, based on the new policy of Transport Canada (Exhibit M-7).

Inspector Ste-Marie confirmed that he has never visited La Tabatière and is not familiar with the runway in question.

In 1993, Transport Canada went ahead and approved the inclusion of La Tabatière on the air operator certificate of Régionnair (M-5) on a recommendation of the inspector of the air carrier (M-3), Jean-Claude de Montigny.

As of October 1996, with the new regulations (CARs), everything had to be inspected again and air carriers had to comply with the new standards, according to the requirements of document TP 4711E (Exhibit M-6), "Air Carrier Certification Manual," and with the directives of the document entitled "Policy Letter" No. 121/AARM (M-7).

On page 4-8 of the first document (M-6), the reader is referred to section 4.21 with regard to the use of "Uncertified Aerodromes by Scheduled Commercial Air Services," which is the case here.

Section 4.21, page 4-49, refers to two sections of the CARs: paragraph 302.01(2)(b) and subsection 302.01(3) (Exhibit T-2).

Paragraph 302.01(2)(b) of the CARs:

302.01 (1) Subject to subsection (2), this Subpart applies in respect of

(a) an aerodrome that is located within the built-up area of a city or town;

(b) a land aerodrome that is used by an air operator for the purpose of a scheduled service for the transport of passengers; and

(c) any other aerodrome, other than an aerodrome referred to in subsection (2), in respect of which the Minister is of the opinion that meeting the requirements necessary for the issuance of an airport certificate would be in the public interest and would further the safe operation of the aerodrome.

(2) This Subpart does not apply in respect of

(a) a military aerodrome; or

(b) a land aerodrome referred to in paragraph (1)(b) where the Minister has issued a written authorization for each air operator using the aerodrome to land at and take-off from the aerodrome.

(3) The Minister shall issue an authorization referred to in paragraph (2)(b) where it is possible to specify conditions in the authorization that will ensure a level of safety in respect of the use of the aerodrome that is equivalent to the level of safety established by this Subpart, and, in any such authorization, the Minister shall specify those conditions.

Finally, Inspector Ste-Marie pointed out that all decisions concerning the issue or cancellation of a point at which scheduled service is provided, are taken after consultation and discussion between the relevant services of Transport Canada and the air carrier and air operator or owner of the aerodrome in question.

Thus, as a result of the reports received, Transport Canada concluded that the runway at La Tabatière did not, and never could, meet aerodrome certification standards.

In cross-examination, the Applicant's representative, Mr. Perez, raised the following points:

  • Before deciding whether to cancel a permit (or part of a permit), Transport Canada relies on the sections of the legislation relevant to the case, but also on a policy (M-7) which, the witness admits, does not have force of law;
  • on form 260045 (M-3), it can be seen that the air carrier requested an air operator certificate for La Tabatière, but that the runway and its status are unknown; nevertheless, in the part reserved for Transport Canada, it is acknowledged that the "information" provided by the Applicant is "correct" (signature of Diane Desmarais), but that the certification with regard to facilities (which are) suitable for the types of aircraft and operations stated in paragraphs 4 and 5 of the form is not signed;
  • the witness also acknowledged that he has no definition of the expression "equivalent level of safety."

Mr. Perez then cited section 724.14 of the CARs (Exhibit T-1, page 8):

724.14 Scheduled Air Service Requirements

The standard for scheduled operations into or out of an uncertified aerodrome is as follows:

The operation shall be conducted under conditions established by the Minister which require the air operator and aerodrome operator to ensure a level of safety in respect to the use of the aerodrome that is equivalent to the level of safety established by Subpart 302 of the Canadian Aviation Regulations.

As to whether the air operator and the aerodrome operator (who are one and the same here) complied with this section, the witness was vague and again stated that the runway at La Tabatière did not meet aerodrome certification standards, particularly with regard to the gradients to be respected where obstacles are concerned.

The second witness, Mr. Alain Charlebois, is an inspector with the Aerodrome Safety division.

With the help of Exhibits M-8, M-9 and M-10, he showed how the runway at La Tabatière does not comply with the standards of manual TP 312 for aerodrome authorization. However, as we already know, the air carrier has acknowledged this.

In cross-examination, Mr. Perez referred the witness to paragraph 302.01(2)(b) of the CARs cited above (T-2), and had him confirm that the Minister had already authorized the air carrier, in writing, to operate a scheduled service at La Tabatière. Document M-5 proves this, since an air operator certificate, on which La Tabatière was included, was issued in 1993. It seems that at that time, the aerodrome certification standards set out in manual TP 312 were the same as they are today.

As for the so-called new policy (M-7), the witness did not know whether Régionnair was aware of it. In any event, the "physical characteristics" stipulated therein notwithstanding (see the table in the appendix to M-7), a policy is not a legal document.

The witness also acknowledged that he has no experience regarding the DHC-6, but had consulted qualified colleagues on the subject (see M-7, page 5): "N.B. It is important to note that the CBA inspector and the Aerodrome Safety inspector shall draw upon their own practical experience and knowledge, and if necessary, may consult any specialist (internally or externally) required to establish an equivalent level of safety for the kind of operation being sought." The witness did this before recommending the removal of La Tabatière from Régionnair's air operator certificate; apparently, he even discussed it with the air carrier (Exhibit M-11, page 2, first paragraph). Therefore, it all comes down to the expression "equivalent level of safety" (pages 1 and 2 of M-11).

Finally, relying on Transport Canada policy (M-7, page 7), Mr. Perez points out—and he quotes: "If it is determined that it is not possible/practical to certify the aerodrome, then an equivalent level of safety shall be determined by both inspectors" (of the relevant divisions of Transport Canada). To this end, certain procedures must be followed. The witness confirms that, with the exception of two assessments of the situation, no attempts were made to find an equivalent level of safety.

The third witness was Mr. Pierre Cloutier, an inspector with the Commercial and Business Aviation division.

He confirmed that he was familiar with the situation of La Tabatière, that he had discussed it with his colleagues, and that before corroborating his colleagues' decision, he relied on three documents:

  • subparagraph 724.44(2)(a)(v) of the CARs (Exhibit M-12): "obstacle clearance shall not require an approach angle steeper than 3 degrees or threshold crossing height greater than 50 feet.";
  • Air Carrier Advisory Circular No. 0071 (Exhibit M-13), page 4, paragraph (c): "even when properly flown, a single-engine climb following a MPS lift-off resulted in a lateral deviation of between 15 and 30 degrees from centerline. At 0.5 NM, this resulted in lateral displacements of over 500 feet from the centerline. Altitude gain did not exceed 160 feet at 1 NM from the point of liftoff with takeoff weights from 10,800 pounds to 12,500 pounds"; it should be noted that this circular is dated September 28, 1994, before the new regulations;
  • Policy Letter No. 121/AARM (M-7), page 1, "PURPOSE": "To provide a policy that will outline the procedures to be followed by Aerodrome Safety and Commercial and Business Aviation inspectors when handling requests from air operators who wish to provide a scheduled passenger service using an uncertified aerodrome."

Inspector Cloutier's report (M-11) therefore seemed sufficient to say that the runway at La Tabatière cannot meet an equivalent level of safety. His proof is a hill on the north side of the runway with an elevation of 400¢ (Exhibit M-14: geographical map, and Exhibit M-14a: aerial photograph); should directional control of an aircraft such as the DHC-6 be lost on take-off, the hill represents a dangerous obstacle.

However, in cross-examination, he was forced to admit that this same situation existed before the new 1996 regulations and that Transport Canada had never recommended a special procedure for La Tabatière. To achieve an equivalent level of safety, the air carrier would have to establish the appropriate procedures.

Mr. Perez did, however, refer the witness to the second paragraph on page 2 of a letter from Transport Canada to the air carrier (Exhibit T-3), which refers to a "Level B training program" to be introduced by the air carrier. Nowhere does this letter mention the obstacle represented by the hill.

In re-examination, the witness again stated that the hill at La Tabatière did not comply with aerodrome certification standards, but at the same time acknowledged that the air operations carried out there were not dangerous.

This ended the Respondent's evidence.

For the Applicant (Régionnair)

The Applicant's representative did not have his client testify, but concentrated on showing the following:

  • According to section 724.14 of the CARs (T-1, page 8), it is up to the air operator and the aerodrome operator, not the Minister, to ensure an equivalent level of safety.
  • Policy 121/AARM, cited by the Respondent (M-7), does not have force of law. Moreover, it is not a policy having retroactive effect. Therefore, for Transport Canada to re-evaluate the situation at La Tabatière, the air carrier would have had to reapply, which was not the case.
  • In referring to page 7, paragraph 4 of document M-7 (the policy), we find that, in any event, an equivalent level of safety "shall" be determined by Transport Canada, which was not done.
  • The Minister, through paragraph 7.1(1)(b) of the Aeronautics Act (Exhibit T-6), does not have the authority to cancel the operator certificate (in whole or in part) of an air carrier in respect of an aerodrome, since the section in question refers to airport, not aerodrome. Mr. Perez relies on the definitions of airport and aerodrome in subsection 3(1) of the Aeronautics Act (Exhibit T-7) to prove his point:

"aerodrome" means any area of land, water (including the frozen surface thereof) or other supporting surface used, designed, prepared, equipped or set apart for use either in whole or in part for the arrival, departure, movement or servicing of aircraft and includes any buildings, installations and equipment situated thereon or associated therewith;

"airport" means an aerodrome in respect of which a Canadian aviation document is in force;

Mr. Perez added that the term "other facility" used in paragraph 7.1(1)(b) of the Aeronautics Act also does not apply in this case.

  • As for the requirement stipulated in the second paragraph of page 2 of document T-3, dated June 1997, it was met by the air carrier:

Given the kind of operation on a short, private runway which the Carrier provides as scheduled service, it seems to us that in order to achieve an equivalent level of safety as specified in the relevant procedure in the agreement respecting the use of uncertified aerodromes by scheduled commercial air services, the Carrier is required to introduce a Level B training program (simulator and aeroplane) in accordance with paragraph 724.115(8)(d) of the Canadian Aviation Regulations.

[Translation]

Now, one year later, Transport Canada is requiring the elimination of an obstacle never referred to previously, namely, the removal of a hill.

  • As evidence of the air carrier's serious-mindedness, Mr. Perez pointed out that even before Transport Canada made the request, at least two of the aerodromes used for scheduled air service, Chevery and La Tabatière, had been upgraded to some degree (Exhibit T-8).
  • Finally, Mr. Perez argued that owing to paragraph 302.01(2)(b) of the CARs (T-2), Transport Canada cannot remove La Tabatière from Régionnair's air operator certificate, as Régionnair had received from the Minister a "written authorization for each air operator using the aerodrome."

The Respondent had no rebuttal.

ARGUMENTS

For the Respondent, the main arguments may be summarized as follows:

  • While all was acceptable in 1993, the new regulations and directives give Transport Canada no choice but to re-evaluate everything, even the existing services.
  • The runway at La Tabatière does not meet the standards of manual TP 312 for aerodrome authorization.
  • As for paragraph 7.1(1)(b) of the Aeronautics Act, the Minister has full authority to cancel the operator certificate of both an air carrier and an airport. In any event, at issue here is a specific location included on the air carrier's operator certificate.
  • But this is not to say that the case of La Tabatière could not be reviewed.
  • Even though Régionnair's application to operate was made before 1998, its certificate is still active and subject to review.

For the Applicant, Mr. Perez made the following points:

  • Régionnair is not disputing the fact that the runway at La Tabatière does not meet the standards of manual TP 312; it contends, however, that it has made every effort to ensure an equivalent level of safety.
  • Even if Policy No. 121/AARM cited by Transport Canada does not have force of law (or regulation), it does not take effect retroactively.
  • The reasons behind the removal of La Tabatière from Régionnair's air operator certificate are too unclear for the situation to be rectified, if need be. Transport Canada has not actually proven that the major obstacle, the hill, caused a real danger; this is only an arbitrary allegation by just one inspector, and to want to eliminate an obstacle of this type (known for several years) is quite simply unrealistic.
  • Contrary to what Transport Canada contends, it was not part of the air operator certificate, but the aerodrome itself that was cancelled; in this regard, refer to the first paragraph of the Notice of Cancellation (Exhibit T-4). Paragraph 7.1(1)(b) of the Aeronautics Act does not allow the Minister to cancel an aerodrome, but only an airport. This is an administrative decision, not a regulatory one. Transport Canada cannot issue permits pursuant to regulations and then cancel them based on administrative decisions. It is assumed that on day one of the issuance of Régionnair's air operator certificate, safety was ensured and approved by Transport Canada. There has been no change in the situation since that day.

SUMMARY AND ANALYSIS

Of all the evidence presented, I note the following main elements:

  • All agree in acknowledging that the runway at La Tabatière does not meet the certification standards of manual TP 312.
  • Transport Canada inspectors acted pursuant to the directives of Policy No. 121/AARM, and the removal of La Tabatière from Régionnair's scheduled service is supported by paragraph 7.1(1)(b) of the Aeronautics Act.
  • It all comes down to the expression "equivalent level of safety." Transport Canada interprets this expression as an aerodrome's obligation to meet the standards of manual TP 312.
  • The Applicant maintains that a policy does not have force of law and that paragraph 7.1(1)(b) of the Aeronautics Act does not permit the Minister to remove an aerodrome from a certificate, since the subsection in question refers to airport. In any event, the runway at La Tabatière has neither a permit nor a certificate. Moreover, it is alleged that the cancellation by Transport Canada does not affect the operator certificate of the air carrier, but rather the aerodrome; this therefore becomes legally inadmissible.
  • Finally, the Applicant maintains that it is not up to the Minister to decide the equivalent level of safety, but to the air carrier and the aerodrome operator (who are one and the same here).

My response to the foregoing is as follows:

  • The Minister is fully authorized to establish the conditions in which a commercial air operation is to be carried out; section 724.14 of the CARs (T-1) provides: "The standard for scheduled operations into or out of an uncertified aerodrome is as follows: The operation shall be conducted under conditions established by the Minister which require the air operator and aerodrome operator to ensure a level of safety in respect to the use of the aerodrome that is equivalent to the level of safety established by Subpart 302 of the Canadian Aviation Regulations."

However, still according to the same section, air and aerodrome operators are obliged to ensure (by specifying in what way, how) the equivalent level of safety. The Minister's representatives (the inspectors) still have the authority to be satisfied or not with the conditions established by the Minister, and therefore to approve or reject them. In the context of La Tabatière, what are these conditions? To determine an equivalent level of safety, which I will address later on.

  • I maintain that the Minister, pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, also has the authority to suspend or cancel an aerodrome certificate. The definitions of airport and aerodrome (T-7) found in subsection 3(1) of the Aeronautics Act complement each other in the sense that the word aerodrome is a generic term that encompasses the word airport, just as the word aircraft, for example, encompasses the word aeroplane. I would add that the fact that the Minister initially issued a permit (certificate, licence or other documents) does not mean that the Minister cannot go back and amend, cancel or suspend it, as the Applicant maintained.
  • I agree, however, that it is not policy (or internal directives of Transport Canada) that determine, legally speaking, the standards to be met. As for the standards that apply to aerodromes, they are apparently the same as in 1993, when Régionnair's air operator certificate was issued.
  • It remains, then, to establish the meaning of the expression "equivalent level of safety." It is here, I believe, that Transport Canada errs, in referring to manual TP 312, in using the word equivalent to mean similar or identical. Equivalent, particularly in the context of interest to us, means comparable or of equal value, but not necessarily similar (or analogous, identical, alike, the same). I admit that the difference is minimal, but one must get to the spirit of this expression to understand it properly and consider the context in which it is to be applied.

In the context of La Tabatière, to require that the aerodrome operating conditions be the same (similar) as those of manual TP 312 (as Transport Canada does) is not only unrealistic but it seems to me to be in error.

What the regulations attempt to do, by means of this expression, is to find a way of ensuring the safety of aerodromes that are not, and cannot be, certified, by establishing (air and ground) operating conditions consistent with safety, but other than those stipulated in manual TP 312.

Otherwise, why mention so often, in the various documents we have seen, aerodromes that do not, or cannot, meet the standards of manual TP 312?

It is therefore my opinion that Transport Canada, in cooperation with operators, should look for more solutions for accepting airport and air operating conditions which, while being different from those in manual TP 312, meet safety criteria of an equivalent level. That is what Transport Canada Policy No. 121 attempts to do (M-7, page 7).

To this end, in addition to the aerodrome, it is necessary to consider the air carrier (its organization, operating procedures, employees, safety record and so on—which was not done in this case, at least to my satisfaction); the compatibility of the aircraft used in the existing conditions (the DHC-6, for example, was designed precisely to meet operating conditions such as are found at La Tabatière); and finally, the need to provide service to isolated or remote locations. Moreover, section 724.44 of the CARs (M-12) details the standard to be met in the case of air operations from unprepared surfaces. It would be wise for Transport Canada to take a closer look at it. The Applicant has already taken certain steps with regard to the air operations at La Tabatière (see, among others, T-5, paragraph 7.1.2. of its operations manual).

Obviously, to this end, it must be accepted, at the outset, that certain risks, unacceptable in other conditions, will have to be run. In short, that is what Transport Canada refused to do here, if we read the seventh paragraph of document M-11, which refers to Advisory Circular No. 0071, about the DHC-6. To my knowledge, scheduled air service can be provided using a single-engine plane (flying in daylight and in VFR mode). Has any thought been given to the risk run should the engine fail on take-off?

As for the context of application, to which I referred earlier, I consider La Tabatière to be an isolated location, particularly when we know that for nine months of the year, it can be reached only by plane (or helicopter). In summer, air service is supplemented by sporadic maritime service. It is for situations such as this that the legislator thought exceptions could be made to the standards that apply in other cases.

DETERMINATION

Based on subsection 7.1(8) of the Aeronautics Act, I ask the Minister to review his decision in light of my final comments and to find, in cooperation with the air carrier, a realistic solution that would enable Régionnair to continue to provide scheduled service to the location of La Tabatière, included on its air operator certificate since 1993.

Pierre Rivest
Member
Civil Aviation Tribunal