Decisions

CAT File No. Q-1687-41
MoT File No. 6504-C-5311-31854

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Air Transat A.T. Inc., Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.105(c)

Operations Hours, Noise Abatement Procedures


Review Determination
Pierre Rivest


Decision: January 22, 1999

TRANSLATION

At the start of the hearing the Respondent admitted committing the alleged offence, but asked that the assessed monetary penalty be reduced. After having considered the aggravating and mitigating factors, I reduce the amount of the monetary penalty from $5,000 to $4,000. This amount, payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held Thursday, January 14, 1999, at 10:00 hours at the Federal Court of Canada in Montreal, Quebec.

BACKGROUND

The Respondent was assessed a monetary penalty of $5,000 pursuant to section 7.7 of the Aeronautics Act, for having contravened paragraph 602.105(c) of the Canadian Aviation Regulations (CARs).

On or about May 6, 1998, at 6:47 local time, the Respondent as operator allowed one of its aircraft, a Boeing 757 registered as C-GTSN, to land at Montreal International Airport (Dorval) outside the permitted hours of operation according to the noise abatement procedures specified in the Canada Air Pilot (CAP).

THE LAW

Paragraph 602.105(c) of the CARs provides:

605.105 No person shall operate an aircraft at or in the vicinity of an aerodrome except in accordance with the applicable noise abatement procedures and noise control requirements specified by the Minister in the Canada Air Pilot or Canada Flight Supplement, including the procedures and requirements relating to

(a) preferential runways;

(b) minimum noise routes;

(c) hours when aircraft operations are prohibited or restricted;

THE FACTS

At the start of the hearing, the Applicant's representative, Mr. Tamborriello, submitted an agreement (Exhibit M-1), signed by both parties involved, in which the Respondent confirms the allegations in the notice of contravention.

What the Respondent objects to is the amount of the monetary penalty itself and not the fact of having contravened the regulations.

I have therefore asked the Applicant to explain the reasons for his assessment in the amount of $5,000. Mr. Tamborriello provided, by and large, the following explanations:

  • Section 103.08 of the CARs states:

103.08 (1) The provisions set out in column I of the schedule to this Subpart are hereby designated as provisions the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2 of the Act.

(2) The amounts set out in column II of the schedule are the maximum amounts payable in respect of a contravention of the provisions set out in column I.

The schedule mentioned in the foregoing section indicates that contravention of section 602.105 of the CARs provides for a maximum penalty of $25,000 for a corporation.

  • In its policy of assessing monetary penalties prescribed by the act (designated provisions), Transport Canada indicates that for a first offence, the monetary penalty will be $5,000 in a case such as this one (Exhibit M-2, page 11).
  • Finally, the Respondent did not have any operational constraints that day, and the CAP even provides that it is possible to request an exemption (M-2, page 4), which was not done.

For his part, the Respondent in his defence raises the following points:

  • After a discussion with a Transport Canada representative in Montreal, this representative was prepared to reduce the amount of the monetary penalty to $1,000, but the enforcement official decided to maintain the amount at $5,000 because it falls under Transport Canada policy, and he felt that not overstepping the policy was best.
  • Yet, following a similar incident in Toronto, the Respondent shows that in fact the monetary penalty was reduced to $1,000 and he does not see why it would not be the same in Montreal.
  • He adds that he is not happy with the way the Aéroports de Montréal authorities process requests from carriers concerning noise abatement and that the rules governing this matter do not always seem logical nor compatible with the practice and efficiency of commercial air operations. In any case, his company has taken measures to prevent any similar recurrence. (Exhibit T-1)

SUMMARY AND CONCLUSION

The Respondent has not denied the event. The Respondent is mainly concerned with the amount of the monetary penalty which, as in Toronto, should be reduced.

For their part, in Montreal, the enforcement authorities are only performing their duties in applying the Transport Canada policy in assessing monetary penalties. Also, if one considers that the Respondent was previously found guilty of the same offence (which, evidently, the Applicant did not know) and if we take another look at the Transport Canada policy regarding paragraph 602.105(c) of the CARs, $12,500 is the amount that should have been assessed (M-2, page 11).

The Tribunal has also now established its own jurisprudence in matters of increasing or reducing monetary penalties assessed by the Minister.

In its determination of Minister of Transport and David John Lynch[1], the Vice-Chairperson of the Tribunal Mr. Allister Ogilvie adopted the same determination as in another case that had gone to appeal (Minister of Transport and Wyer[2]), in which the aggravating or mitigating factors that must be taken into account before deciding to change the amount of an assessed monetary penalty are described.

That determination states in part the following:

Certainly there are a number of factors which exist in finding the proper balance within the principles of sentencing the assessment of a penalty or other sanction. These factors will be considered, some in aggrevation [sic] and others in mitigation.

Without attempting to limit what such factors may include, the following may be considered:

1. Aggrevating factors:

  • infractions involving dishonesty,
  • planned breaches,
  • premeditated breaches,
  • extent of harm to victims of the offence,
  • past record of similar offences,
  • prevalence of the offence.

2. Mitigating factors:

  • no previous offences,
  • time since last offence,
  • degree of remorse,
  • whether or not an admission of the offence,
  • degree of cooperation with authorities,
  • delay between the commission of the offence and the time of the sentence,
  • conduct (involvement) of any "victims",
  • restitution,
  • type of operation (commercial or private flight),
  • impact on aviation community,
  • special factual circumstances,
  • relevance of enforcement manual recommendations,
  • effect of a monetary v. suspension penalty on individual,
  • occurrence impact on aviation safety,
  • manner of proceeding by authorities.

Ultimately, the principles enunciated and the factors affecting the level of penalty must be considered on an individual basis in the context of the circumstances of the specific occurrence. The list noted above is not intended to be in any particular prioritized order nor is the list necessarily complete.

In the case before us, I can consider the following mitigating factors:

  • a certain degree of remorse because a directive was issued by the Respondent in order to avoid a second offence (T-1);
  • admitting to the offence;
  • the fact that there were only thirteen minutes left for the landing to be within permitted hours of operation; several factors (wind, air traffic control more expeditious than anticipated, etc.) can easily compromise planned time of arrival;
  • one could also add that Transport Canada does not seem to apply its own policy equitably everywhere; this automatically encourages those involved in air transport to take certain offences less seriously;
  • no unfortunate consequences to aviation safety;

However, I must take into account the following aggravating factors:

  • this is not the first offence of its kind for the Respondent and up to quite recently the Respondent had not seen fit to correct the situation;
  • it would have been easy to ask for an exemption;
  • matters of pollution (air and noise) are taken more and more seriously by governmental authorities;

Finally, as Mr. Tamborriello pointed out, there is a question of equity to be maintained between those involved in civil aviation. I add however that this equity must be the same throughout Canada.

I therefore conclude that there was a contravention of paragraph 602.105(c) of the CARs but that certain mitigating factors incite me to reduce the monetary penalty. However, considering the notion of recidivism (aggravating factor), I am reducing the monetary penalty by only one fifth, that is, from $5,000 to $4,000.

I may add that it would be advisable that Transport Canada apply its policy on sanctions more consistently.

DETERMINATION

At the start of the hearing the Respondent admitted committing the alleged offence, but asked that the assessed monetary penalty be reduced. After having considered the aggravating and the mitigating factors, I reduce the amount of the monetary penalty from $5,000 to $4,000.

Pierre Rivest
Member
Civil Aviation Tribunal


[1] CAT File No. A-1476-33.

[2] CAT File No. O-0075-33. 


Appeal decision
Carole Anne Soucy, Faye H. Smith, Michel Larose


Decision: June 17, 1999

TRANSLATION

The appeal is dismissed and the Review Determination is confirmed. The payment in the amount of $4,000 is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

In accordance with the Notice of Hearing which was duly served, a hearing on the above matter was held Friday, June 4, 1999 at 12:30 hours at the Federal Court of Canada at Montréal, Québec to hear the appeal by Air Transat A. T. Inc. regarding the Review Determination rendered by Pierre Rivest, Member of the Tribunal, on January 22, 1999.

The Respondent was represented by Mr. François-René Dussault. The Appellant, Air Transat, failed to appear.

A Notice of Appeal Hearing dated March 1, 1999 had been served on both parties setting out March 26, 1999 at 10:00 hours as the date and time of the appeal to be held at Montréal.

On March 22, 1999, Mr. Ménard, Vice-President of the Appellant, requested that the Tribunal postpone the Appeal Hearing in the case of Air Transat to a later date that would be convenient for both parties. In spite of the objections raised by the Respondent by fax on March 23rd, the Tribunal postponed the case to June 4, 1999 at 10:00 hours at Montréal.

On May 28, 1999, the Appellant's representative informed the Tribunal that he could not attend the hearing at the time indicated in the notice of hearing postponement served on both parties on March 24, 1999. Accordingly, the appeal was postponed from 10:00 hours to 12:30 hours to accommodate the schedule of the Appellant. The parties were informed of this fact on May 28, 1999.

After waiting until 13:05 hours and making sure that no message had been left by Air Transat with the Tribunal Registry in Ottawa, the Appeal Panel decided to proceed with the hearing.

Since the Appellant failed to appear and the Respondent had no argument to respond to, the Appeal Panel decided to dismiss the appeal and confirm the Review Determination.

The appeal is dismissed and the Review Determination is confirmed. The payment in the amount of $4,000 is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

Reasons for Appeal Determination:

Faye Smith, Chairperson

Concurred:

Dr. Michel Larose, Member
Carole Anne Soucy, Member