Decisions

CAT File No. Q-1679-06
MoT File No. NAP6504-31223

CIVIL AVIATION TRIBUNAL

BETWEEN:

Aviation Roger Forgues Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2,s. 6.9
Canadian Aviation Regulations, SOR/96-433, s.105.01

Stay of Proceedings, Charter, Aerial Sightseeing, Adjournment


Review Determination
Michel G. Boulianne


Decision: February 26, 1999

TRANSLATION

I uphold the Minister's decision to suspend the air operator certificate for a period of thirty days. Said suspension shall come into force on the fifteenth day following service of this determination.

A Review Hearing on the above matter was held Thursday, October 15, 1998 at 9:00 hours at the Federal Court of Canada in Quebec City, Quebec.

BACKGROUND

The Applicant, Aviation Roger Forgues Inc., received, by registered mail, a Notice of Suspension dated August 17, 1998 and signed by Mr. Yves Gosselin for the Minister of Transport, suspending the company's air operator certificate, being a Canadian aviation document, for a period of 30 days, for an alleged contravention of subsection 105.01(2) of the Canadian Aviation Regulations (CARs) as per the following circumstances:

On or about July 21, 1998, between 14:10 and 14:50 hours, local time, you allowed aircraft model DHC-2, registered C-GBZS to conduct aerial sightseeing flights, or any portion thereof, in the control zone of the Québec/Jean Lesage International Airport from Lac St-Augustin.

On or about August 6, 1998, around 15:20 hours, local time, you allowed aircraft DHC-2, registered C-FOQW to conduct aerial sightseeing flights, or any portion thereof, in the control zone of the Québec/Jean Lesage International Airport from Lac St-Augustin.

Said suspension came into effect September 18, 1998 and was to terminate October 18, 1998.

The Applicant filed a request for review within the required time period and on September 11, 1998, the Civil Aviation Tribunal granted a stay of said 30-day suspension until the review determination could be rendered.

THE LAW

The statutory provision pursuant to which the air operator certificate of the Applicant was suspended for a period of 30 days reads as follows:

SUBPART 5 — AERIAL SIGHTSEEING FLIGHTS

105.01 (1) In this section, "aerial sightseeing flight" means a flight carried out as part of a sightseeing operation or any other commercial flight in an aircraft conducted for the purpose of sightseeing from the air.

(2) No person shall conduct an aerial sightseeing flight, or any portion of an aerial sightseeing flight, in the control zone of the Québec/Jean Lesage International Airport unless the flight commences at that airport.

coming into force

2. These Regulations come into force on January 1, 1998.

At the outset of the hearing, counsel for the Applicant presented an application for a stay, asking that the Tribunal Member adjourn the hearing in this matter, on the grounds that a legal action had been filed in Superior Court in the name of the Applicant and an operator, Aviation Portneuf Ltée., proceedings in which it was requesting to declare invalid the Regulation amending the Canadian Aviation Regulations (Part I)[1], adopted pursuant to the Aeronautics Act which amends said regulation by adding the following before Part II: "SUBPART 5 — AERIAL SIGHTSEEING FLIGHTS 105.01 (1) ...".

This legal action, a copy of which was filed under T-1 as it concerns Aviation Roger Forgues Inc. and under T-3 as it concerns Aviation Portneuf Ltée., was contested by a request for declinatory exception by the Attorney General of Canada and the Minister of Transport; and at the time of this hearing, judgement had not yet been rendered regarding this request.

In relation to this application for a stay, Counsel for the Applicant filed an additional request for adjournment to allow him to apply for a stay from the appropriate court, in case the first request is denied.

The Tribunal first denied the application for a stay. In fact, should it be contested, the hearing officer does not have such power and administrative tribunals do not usually decide on the constitutionality or validity of statutory provisions. Having said this, it is recommended that the hearing proceed with the facts to ensure sound administration of justice.

The additional request for adjournment to allow an application for a stay is refused for the following reasons:

  • the Applicant has not yet been found guilty because the evidence does not prove that the statutory provision was contravened at this stage;
  • the Applicant is not prejudiced in any way because this case involves a temporary suspension of an air operation that only operates during the summer;
  • should the Applicant be found guilty, the Applicant may always address the appropriate court in the following days or weeks to obtain a stay;
  • finally, under the same principle of ensuring sound administration of justice, an adjournment to apply for a stay from a higher level is not justified because the stay was refused by the member.

THE RESPONDENT'S EVIDENCE

The Respondent's representative filed a series of documents as per the following list:

  • M-1 notice of suspension;
  • M-2 regulations that serve as the basis for the imposed suspension;
  • M-3 documents from financial institutions regarding the corporate status of the Applicant;
  • M-4 certificate of registration for C-GBZS;
  • M-5 aircraft journey log for C-GBZS;
  • M-6 8-minute taped cassette;
  • M-7 video cassette;
  • M-8 certificate of registration for C-FOQW;
  • M-9 aircraft journey log for C-FOQW;
  • M-10 advertising of the Applicant;
  • M-11 Canada Flight Supplement of June 18, 1998;
  • M-12 air operator certificate of the Applicant;
  • M-13 description of the sightseeing route.

The Respondent's evidence was disclosed to the opposing party between October 1 and 8, as established by the Respondent's witnesses and admitted by the Applicant.

Denis Deroy is an inspector at Transport Canada. On the afternoon of July 21, 1998, he arrived at Aviation Roger Forgues Inc. He noted the arrival of a bus from which several people disembarked. He ascertained that two flights took place, one at 14:10 hours and the other at 14:50 hours, from Lac St-Augustin, the same afternoon with the passengers from the bus. He identified the aircraft by its registration (C-GBZS) without any hesitation. He confirmed that the letters LLBR inc. were on the bus and that two groups of seven passengers boarded the aeroplane; in addition, these are the same passengers that disembarked from the same aeroplane twenty minutes later in each case. As for the aircraft journey log produced as M-5, he made the photocopy himself and returned it to Mr. Forgues. It is to be noted that document M-5 confirms the witness' statements. In addition, he filmed the cassette provided as M-6 himself and when viewed during the hearing, it confirmed the witness' statements.

In the afternoon of August 6, 1998, he returned to the same location and between 15:00 and 15:30 hours, he noticed that people were boarding the aircraft registered as C-FOQW for which the aircraft journey log is produced as M-9. This witness states that the two aircraft left the control zone on the aforementioned dates as established in M-11; to the best of his knowledge, they were outside of the control zone for a period of approximately thirteen minutes.

In the case of the second event, he is not as specific about the people who boarded the aircraft. In his opinion, their nationality was French because of the accent he thought he recognized when he spoke with them. He also does not know if these are the same people he saw getting out of a car parked in the same location, but he does confirm that these people did get into said car when they returned.

Claude Renault has been an inspector at Transport Canada since July 1998. During the events of August 5 and 7, he was with Mr. Deroy. Specifically, on August 6 he noted that approximately four people boarded the aircraft and that the duration of the flight was about 25 minutes. He believed they were of French origin because of their accent.

Jacques Landry, bus driver for LPR of Shawinigan, later confirmed that he has been conducting local and sightseeing tours during the summer for about fifteen years. He had a tour planned for July 17, 1998 at Lac-à-la-Tortue in La Tuque and the tour was to include air travel. For various reasons, the trip was changed and they instead went to Aviation Roger Forgues Inc. on July 21, 1998; they were French tourists and the purpose of the trip was to take seaplane rides.

He arrived at about 2:00 p.m. and saw them all board the aeroplane in two groups. He was alone at Aviation Roger Forgues Inc. with his clients at that time of the day.

THE APPLICANT'S EVIDENCE

The Applicant called Mr. Yves Gosselin, Regional Director of Civil Aviation since June 1998, as a witness.

This witness confirmed that he had signed document M-1, the notice of suspension. He explained that the Applicant has the right to provide air transportation, from one point to another; the interpretation of the word "charter" leads him to conclude that in the case before us, the same passengers were returning to the point of departure and according to what was ascertained, the facts were consistent with what is usually called an "aerial sightseeing flight". He did not however see the evidence disclosed and based his statements on the reports made by Messrs. Deroy and Renault. In his assessment, he did not take into account the stop of several minutes at Lac Brûlé.

The Applicant's president was the second and final witness for the Applicant. Mr. Roger Forgues, residing at 2029, 15th Avenue, Lac St-Augustin, first identified document M-10 as the sightseeing route of the Applicant; this document was apparently prepared before the prohibition of aerial sightseeing flights established by the new amendments adopted at the start of 1998.

Having had more than 40 years in the field, the witness explained the difference between class 4 and class 7. In the first case, it is a straightforward charter service, and in the second, specialty flying according to the licences held. The Applicant regularly provides charter service and, in the majority of cases, these flights are to destinations in the woods and more or less remote locations. According to him, in the definition of charter service, it is not specified whether they are allowed to bring people back on the same flight or not. His company has never faced infractions regarding charter service flights. He stated that since the legislative amendment, "overflights" are no longer accepted by his company and all his company does now are "charters" where people pay based on the distance covered, regardless of the number of passengers. Formerly, before the prohibition, there was an authorized route over the river, the Montmorency Falls, the city of Lévis, Route 20 and the tip of Île d'Orléans. During cross-examination, he confirmed that the duration of each flight is about 25 to 30 minutes, that the clientele is not regular this year and that clients very often arrive on the site by bus. These buses are used to bring them to a lake where they board a seaplane and the purpose of the flight is to take them to a given location, in this case Lac Brûlé, and to return. It appears however that nobody disembarked at Lac Brûlé for any reason and it also appears that the same people were returned to the point of departure on every trip.

The balance of the Applicant's evidence will consist of cross-examination of the Respondent's witnesses.

DISCUSSION ON THE EVIDENCE AND THE LAW

The evidence reveals the following facts:

  1. the Applicant is the owner of the seaplanes registered as C-GBZS and C-FOQW which operate from Lac St-Augustin;
  2. the Applicant conducts charter operations according to the statements of the president, Roger Forgues;
  3. prior to the adoption of the new statutory provision, the Applicant was conducting aerial sightseeing flights over the Quebec region, as admitted by the Applicant;
  4. following the adoption of the law prohibiting aerial sightseeing flights, in accordance with the terms of the section, the Applicant changed its operations and maintains that it operates "charters";
  5. on July 21, 1998, a sightseeing bus arrived with a number of passengers and at least two groups of more or less 7 people from this bus boarded aircraft C-GBZS for a flight of approximately 25 minutes to a destination outside of the control zone;
  6. the people who had boarded each of the flights were the same people who disembarked to get back onto their bus;
  7. the aircraft journal log of the aforementioned aircraft confirms the duration of this flight;
  8. this flight brought the passengers to Lac Brûlé for a stop lasting 2 or 3 minutes before taking off again and returning to the seaplane base at Lac St-Augustin;
  9. the evidence does not show that the passengers disembarked or the specific reason for their visit to Lac Brûlé;
  10. on July 6, 1998, clients, approximately four people, arrived at the seaplane base, probably in a car; however, this is still in doubt;
  11. these clients boarded the seaplane on this date and disembarked some 30 minutes later after flying to Lac Brûlé, as confirmed in the aircraft journey log for aircraft C-FOQW.

THE APPLICANT'S SUBMISSIONS

The Applicant's primary position is based on the interpretation of charter service. Given the absence of an official definition of the words "charter service" and "chartered flight", the intent of the legislator must be determined; the Applicant also submits that the act of transporting travellers to a destination, in this case Lac Brûlé, and landing, is transporting clients from one location to another and therefore falls within the meaning of the term charter service. The Applicant also submits that since clients pay based on the distance covered, even though in this case it is always the same, the client is paying to go to a location, regardless of whether the client returns to the point of departure or not.

For the Applicant, a distinction must be made between this flight and an aerial sightseeing flight, as defined in section 105.01 of the CARs which refers in the definition provided to a flight carried out as part of a sightseeing operation or any other commercial flight made in an aircraft conducted for the purpose of sightseeing from the air.

Finally, the Applicant submits that this is a strict liability offence and that the prosecution must show that this is clearly an aerial sightseeing flight rather than another type of flight and that in case of doubt, this doubt regarding the existence of an offence must be interpreted in favour of the accused because the legislator must be clear.

THE RESPONDENT'S SUBMISSIONS

The Respondent submits that he has established that this was an aerial sightseeing flight as defined in section 105.01 of the CARs and that offences pursuant to the Aeronautics Act and its regulations are strict liability offences, meaning that a civil standard of proof is required rather than a standard of proof that would be applied for a criminal offence.

DISCUSSION

Based on the facts, the interpretation that we must determine, after closely examining the evidence presented to the Tribunal, is to know whether the flight made by the Applicant was an aerial sightseeing flight as defined in section 105.01 of the CARs.

Analysis of the various elements of the evidence:

  1. The point of departure and point of arrival are always the same.
  2. The route is always the same.
  3. The duration of the stop at Lac Brûlé is always the same and is not a stop for any specific reason.
  4. Most of the flight is within the control zone of the Québec/Jean Lesage International Airport.
  5. Other than the testimony given by Mr. Forgues, no evidence is provided to establish the specific rates based on the time of the flight. This could have supported the Applicant's submission that this is to reserve the aeroplane and that people pay for the distance flown.
  6. The evidence reveals a similarity in the way all flights are conducted and this emerges specifically in the case of the bus driver who states that the purpose of his visit to Lac St-Augustin was for a sightseeing tour in a seaplane.

All of these facts confirm that this was a flight carried out as part of a sightseeing operation rather than a charter service with the purpose of transporting a person from one location to another, for a specific purpose. The Applicant did not satisfy me that the clients who boarded the two seaplanes on the dates mentioned had any specific reason for travelling to Lac Brûlé. Rather, the Applicant seemed to want to show the Tribunal, through an interpretation of the word "chartered", that its clients wanted to go to Lac Brûlé for whatever reason and that it immediately brought them back to Quebec City.

After analysis, the legal authorities and jurisprudence provided by both parties do not appear to be at variance with the operative part of this determination. Due diligence has not been established and I believe that the factual description of flights made is more in keeping with the statutory provision which is the legal basis for the alleged offence.

DETERMINATION

For all the reasons mentioned above, I have concluded that there are no grounds to allow the review and that the Minister's decision to suspend the air operator certificate for a period of thirty days should be upheld.

Michel Boulianne
Member
Civil Aviation Tribunal


[1] SOR/98-20, Canada Gazette Part II, Vol. 132, No 2.