Decisions

CAT File No. Q-1739-33
MoT File No. 6504-P329978-31717

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Mario Noël, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 401.30(3)

Sanction, Mitigating Factors, Daylight Flying-Only Restriction, Commercial Pilot Licence, Aggravating Factors


Review Determination
Carole Anne Soucy


Decision: March 29, 1999

TRANSLATION

The Minister of Transport has shown, on a balance of probabilities, that the Respondent, Mario Noël, contravened subsection 401.30(3) of the Canadian Aviation Regulations. The Tribunal therefore upholds the Minister's decision and increases the amount of the penalty to $1,500. The penalty must be paid to the Receiver General for Canada and received by the Civil Aviation Tribunal within 15 days following service of this determination.

A Review Hearing on the above matter was held Friday, February 26, 1999 at 10:00 hours at the Federal Court of Canada premises in Montréal, Québec.

BACKGROUND

The Respondent has a commercial pilot licence valid for daytime flights only. Several times during the month of May 1998, he conducted night time flights. Those flights resulted in the following allegations:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened subsection 401.30(3) of the Canadian Aviation Regulations.

On or about May 6, 14 and 15, 1998, as a crew member of aeroplane C-GAFG, you conducted several night time flights, contrary to this section.

A Notice of Assessment of Monetary Penalty was sent to the alleged offender. As the payment was not received, a notice of review hearing was issued, resulting in this hearing.

PRELIMINARY MOTION AND AGREEMENT

At the start of the hearing, Mr. Tamborriello, case presenting officer for the Minister of Transport, produced as Exhibit M-1 a document entitled "Agreement Between the Two Parties" which reads as follows:

On or about May 6, 14 and 15, 1998, as a crew member of aeroplane C-GAFG, you conducted several night time flights, as entered on pages 37 and 38 of the journey log for this aeroplane.

The document signed by the parties is dated January 14, 1999.

For his part, Mario Noël informed the Tribunal that he would have brought additional documents if he had been advised that Dr. François Dubé would be present. A few days before the hearing, the Respondent made a request to the Department of Transport asking that Dr. Dubé attend the hearing. His request was allegedly refused at that time. The Tribunal understands that Mr. Noël has been trying to obtain his licence for flying at night for some time. However, after failing the mandatory eye examinations required for this type of licence several times, this never happened.

Considering the Respondent's alleged offence in this case, the Tribunal was certainly not the appropriate forum for examining and/or reviewing his medical case. Furthermore, the Tribunal does not understand why Dr. Dubé was present.

Finally, after some explanation of the procedures and purpose of the hearing, Mr. Noël was willing to proceed.

THE EVIDENCE

The Minister of Transport's representative introduced three documents:

  • M-1 agreement between the two parties in a bundle with pages 37 and 38 of the journey log for aeroplane C-GAFG.
  • M-2 copy of Mario Noël's commercial pilot licence
  • M-3 relevant law in a bundle

He did not question any witnesses.

The Respondent, Mario Noël, who represented himself, did not produce any documents and did not have any witnesses.

Given the Respondent's admission to the facts, the Minister's evidence was very brief. He produced his exhibits and commented on them, specifically pages 37 and 38 of the journey log for C-GAFG. The name of Mario Noël appeared in the "crew" area on the following dates:

  • May 6, 1998 from YHU to Local, Up at 22:20 hours and Down at 22:40 hours
  • May 14, 1998 from YBG to YUL, Up at 23:15 hours and Down at 00:25 hours
  • May 15, 1998 from YUL to YJN, Up at 1:10 hours and Down at 1:25 hours

The Tribunal asked Mr. Noël to present his defence. The Respondent admitted he conducted several flights at night. However, he was always accompanied by a pilot with a licence for night time flights.

He testified that he has been doing this for 11 years and added that sitting in the left or right of the aircraft made no difference.

His licence does not allow him to fly as a crew member at night. He submits that having signed his name in the aircraft's journey log, in the section for crew names, is not a reference and does not mean anything.

Mr. Noël alleges that he did not conduct any commercial flights and that most of the flights he made were training flights.

Finally, he repeated that his mistake was in entering his name in the journey log under the crew heading.

In response, the Minister emphasized that the parameters for the commercial pilot licence are very important and when there is a restriction attached, it applies to all licences. One must be able to distinguish between the journey log report and the restriction regarding night time flights. These are two distinct obligations which the pilot must respect. Regarding training, no training dates correspond with the dates of the offence.

THE LAW

Subsection 401.30(3) of the Canadian Aviation Regulations (CARs) reads as follows:

401.30 (1) The holder of a commercial pilot licence—aeroplane may

(a) exercise the privileges of a private pilot licence—aeroplane;

(b) exercise the privileges of a VFR OTT rating; and

(c) while engaged in providing a commercial air service by means of an aeroplane of a class and type in respect of which the licence is endorsed with ratings, act as

(i) pilot-in-command of the aeroplane, where the minimum flight crew document for the aeroplane specifies a minimum flight crew of one pilot, and

(ii) co-pilot of the aeroplane.

(2) Where an applicant meets the requirements specified in the personnel licensing standards in respect of a commercial pilot licence—aeroplane except the night flight time requirements, the Minister shall issue to the applicant a commercial pilot licence—aeroplane endorsed for daylight flying only.

(3) No holder of a commercial pilot licence—aeroplane whose licence is endorsed with a daylight-flying-only restriction shall exercise the privileges set out in paragraphs (1)(a) to (c) by night.

ARGUMENT

In closing argument, the Minister summed up as follows:

  1. The Respondent's licence includes a restriction for night flying.
  2. An unequivocal admission to the offence was made in the agreement signed by the parties.
  3. The Notice of Assessment of Monetary Penalty was sent as required under section 7.6 of the Aeronautics Act.
  4. The Minister opted to follow the guidelines for the amount of the penalty, in accordance with the amounts specified in the table of sanctions of the enforcement document regarding designated provisions (M-3) and, even though there were three offences, he viewed them as a single offence. He assessed $500, the amount generally set for a first offence of this type.

The Minister raised additional factors. The Respondent is an experienced pilot who is aware of his situation and who refuses to comply. This is unacceptable behaviour.

As for Mario Noël, he insisted that his only mistake was in entering his name in the journey log and that without this entry, the Minister could not have found him at fault. He contends that he has the right to fly and that there is no way to determine whether he was a crew member or a passenger and that he will continue to fly at night as he has been doing for 11 years.

CONCLUSION

The Tribunal noted a lot of resentment and frustration in the Respondent's testimony. Mr. Noël wants to obtain his commercial pilot licence without restriction, something he has not been able to do to date. His comments are sarcastic, contradictory and provocative. He had no valid defence to present. He summoned no witnesses and the documents produced contradict all his allegations. At one point, he even called into question the agreement between the parties, submitting that he could sign anything at any time. The facts are clear. The Minister has proved the offence.

Safety is a priority for air navigation. There is no doubt in my mind that the Respondent does not respect the restrictions of his licence. He was acting as a crew member on the flights mentioned because not only is his name on the list of crew members, but his signature and licence number are also included in the "pilot or engineer making entry and licence number" section.

For these reasons, I conclude that the Minister has shown, on a balance of probabilities, that the Respondent contravened subsection 401.30(3) of the CARs.

Furthermore, the Minister assessed a penalty of $500. The maximum amount is set at $2,000 for an individual.

This penalty seems insufficient to me given the following aggravating factors:

  • The Respondent is an experienced commercial pilot who acted knowingly.
  • He has been flying at night for 11 years despite the restriction to that effect.
  • He feels no remorse.
  • He intends to reoffend and admits this before the Tribunal in the presence of the Minister of Transport.
  • He contends his mistake was in entering his name in the journey log.
  • On future flights, he will not make the required entries.

The Tribunal has determined in the past that the assessment of a penalty or suspension should have a deterrent effect. This requires an examination of the factors in each case. These factors will have an influence on the nature of the punishment based on the circumstances and context of the offence.

In Mr. Noël's case, while his actions have not, to date, resulted in any unfortunate incidents and/or accidents, the fact remains that such indifference and disrespect of the laws and regulations in the field of aviation could have tragic consequences for aviation safety. The aggravating factors, the attitude and comments made by the Respondent prompt me to increase the penalty. While a suspension was conceivable in this matter, I believe that a penalty of $1,500, or $500 per offence, will have a deterrent effect. Consequently, I set the penalty at $1,500.

DETERMINATION

The Minister of Transport has shown, on a balance of probabilities, that the Respondent, Mario Noël, contravened subsection 401.30(3) of the CARs. The Tribunal therefore upholds the Minister's decision and increases the amount of the penalty to $1,500.

Carole Anne Soucy
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Michel Larose, Pierre Rivest


Decision: July 14, 1999

TRANSLATION

The appeal is partially allowed. The appeal panel confirms that Mr. Noël contravened subsection 401.30(3) of the Canadian Aviation Regulations, but the panel reestablishes the $500 penalty assessed by the Minister of Transport on November 16, 1998. The penalty is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days following service of this determination.

An appeal hearing on the above matter was held Tuesday, June 22, 1999 at 10:00 hours, at the Federal Court of Canada premises, in Montréal, Québec.

BACKGROUND

The Appellant is appealing the determination of member Carole Anne Soucy, following a review hearing. The Minister of Transport had decided to assess a penalty of $500 for a contravention of subsection 401.30(3) of the Canadian Aviation Regulations (CARs) pursuant to section 7.7 of the Aeronautics Act.

GROUNDS FOR APPEAL

At the time of the review hearing, the Tribunal member confirmed the Minister of Transport's decision that, on a balance of probabilities, the Respondent had contravened subsection 401.30(3) of the CARs, but had increased the amount of the penalty from $500 to $1,500.

The Appellant requested that the determination be set aside on the following grounds which were part of his request for appeal filed with the Tribunal on April 16, 1999:

Subject: Request for appeal of CAT File No. Q-1739-33

MoT File No. 6504-P329978-31717

We are hereby requesting an appeal of the determination of Member Carole Anne Soucy on the following grounds:

The member was unnecessarily harsh considering the admission of the Respondent in M-1.

The Respondent acted to the best of his knowledge, consulted with a Transport Canada inspector about dual flight at night with another pilot.

The Respondent still believes he had the right to undertake dual flight on May 6, 14 and 15, 1998 and the allegations instead relate to flights made on June 15 and 19, 1998.

Contrary to what member Carole Anne Soucy thinks, the Respondent has great respect for aviation safety.

(...)

The power of the Tribunal's appeal panel to dismiss or allow the determination of the review member, or to substitute its decision for the determination appealed against, is prescribed in section 8.1 of the Aeronautics Act.

The Civil Aviation Tribunal has previously established the elements that could give rise to an appeal.

It is recognized that an error of law or fact meets the test as long as it is manifest and flagrant, unless it relates to a question of jurisdiction, to which the Tribunal adds that it must be a determining factor in deciding the appeal or amount to a denial of justice.

A breach of the rules of natural justice and the discovery of new evidence that existed at the time of the review hearing, but could not be provided by a party, and which would alter the determination rendered, are also grounds that could give rise to an appeal of a review determination.

Furthermore, the Civil Aviation Tribunal cannot allow reopening a matter that would lead it to substitute a new assessment of the same evidence, and it also cannot allow the parties to complete or remedy any shortcomings in the evidence if they had the opportunity to submit it at the review.

In this review hearing, the member manifestly exercised the discretionary power available to her in evaluating the evidence, and with several supporting reasons she opted not to accept the submissions of the Respondent.

The role devolved upon the Civil Aviation Tribunal's appeal panel is to determine if an obvious and material error was made and if the assessment of the evidence submitted was irrational and was contrary to common sense in such a manner as to result in a denial of justice.

The appeal Tribunal believes that the Appellant cannot manifestly reopen the matter on the same evidence and arguments of facts or law presented at the review hearing.

The Civil Aviation Tribunal's appeal panel is not permitted to substitute its assessment of the evidence for that of the first member, who had the advantage of hearing the Applicant and the Respondent, judge their respective credibility, analyse the documentary and testimonial evidence and thereby re-examine the case made out at the review hearing in an attempt to evaluate it in a different manner[1].

THE EVIDENCE

The parties admitted to the allegations in Exhibit M-1 which was filed at the review hearing: Agreement between the parties signed January 14, 1999 regarding three flights conducted at night on May 6, 14 and 15, 1998 with the Appellant on board aeroplane C-GAFG as a crew member, as confirmed on pages 37 and 38 of the journey log for the aeroplane mentioned above, contrary to subsection 401.30(3) of the CARs given that the Appellant's commercial pilot licence was only valid for daytime flights (Exhibit M-2).

As a result of these offences, the Appellant was assessed a penalty of $500 by the Minister of Transport on November 16, 1998 pursuant to section 7.7 of the Aeronautics Act.

Since the penalty was not paid by the due date (December 22, 1998), a review hearing was held in Montréal on February 26, 1999 and the Appellant was found guilty of the alleged offence and the penalty was increased from $500 to $1,500.

THE LAW

Subsection 7.7(1) of the Aeronautics Act:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

Section 401.30 of the CARs:

401.30 (1) The holder of a commercial pilot licence—aeroplane may

(a) exercise the privileges of a private pilot licence—aeroplane;

(b) exercise the privileges of a VFR OTT rating; and

(c) while engaged in providing a commercial air service by means of an aeroplane of a class and type in respect of which the licence is endorsed with ratings, act as

(i) pilot-in-command of the aeroplane, where the minimum flight crew document for the aeroplane specifies a minimum flight crew of one pilot, and

(ii) co-pilot of the aeroplane.

(2) Where an applicant meets the requirements specified in the personnel licensing standards in respect of a commercial pilot licence—aeroplane except the night flight time requirements, the Minister shall issue to the applicant a commercial pilot licence—aeroplane endorsed for daylight flying only.

(3) No holder of a commercial pilot licence—aeroplane whose licence is endorsed with a daylight-flying-only restriction shall exercise the privileges set out in paragraphs (1)(a) to (c) by night.

(The undersigned added the underlining.)

Section 103.08 of the CARs:

Designated Provisions

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.

(3) A notice issued to a person by the Minister pursuant to subsection 7.7(1) of the Act shall specify

(a) the designated provision that the Minister believes has been contravened;

(b) the particulars of the alleged contravention;

(c) that payment of the amount specified in the notice will be accepted by the Minister as and in complete satisfaction of the amount of penalty for the alleged contravention and that no further proceedings under Part I of the Act will be taken against the person in respect of that contravention;

(...)

SCHEDULE (continued)

Column I

Column II

Designated Provision

Maximum Amount of Penalty ($)

 

Individual

Corporation

(...)

   

Subsection 401.30(3)

2,000 10,000

(...)

   

SUBMISSIONS OF THE PARTIES AND DISCUSSION OF THE ISSUES:

1. The member was unnecessarily harsh considering the admission of the Respondent (the Appellant here) in M-1.

The Appellant pointed out that he essentially remembered having signed the agreement of January 14, 1999 for the flights of May 6, 14 and 15, 1998 (M-1) and that, as for him, the allegations should instead relate to the flights of June 15 and 19, 1998. (See pages 35, 36 and 52 of the transcript of the review hearing.)

Without any bearing on the issue to be decided, the Appellant informed the appeal panel that Transport Canada delayed the issuance of his operator certificate for Aéro 3000 which he obtained on June 12, 1998 and during that period, he had to conduct flights himself due to a lack of money. He has since hired other pilots.

In response to the Tribunal's questions, the Appellant confirmed the entries in the journey log for aeroplane C-GAFG on May 6, 14 and 15, 1998 (see M-1) and the fact that he entered his flying hours in his own flight log. (See page 51 of the transcript of the review hearing.)

At the review, the Appellant confirmed the flights, saying that he had been doing this for eleven years and that his mistake was in logging his flying hours. (See pages 51, 52 and 53 of the transcript of the review hearing.)

Regarding this agreement, the appeal panel ascertained that the agreement in M-1 of January 14, 1999 was merely a repetition of the Notice of Assessment of Penalty dated November 16, 1998 and that this document was more of an "allegation," while for the Minister of Transport, the objective of the agreement was "to obtain an admission" of the allegations.

The appeal panel confirmed the fact that the Appellant was not authorized to conduct three flights at night as a crew member since his commercial pilot licence prohibited him from doing so.

In addition, in this first ground for appeal, the appeal panel, despite the important distinction between agreement, allegation and admission, realized that the Appellant was hoping for a less harsh penalty considering "his admission." To that effect, the Tribunal referred to the six aggravating factors that the review member considered for increasing the penalty from $500 to $1,500: (see page 5 of the review determination).

(...)

  • The Respondent is an experienced commercial pilot who acted knowingly.
  • He has been flying at night for 11 years despite the restriction to that effect.
  • He feels no remorse.
  • He intends to reoffend and admits this before the Tribunal in the presence of the Minister of Transport.
  • He contends his mistake was in entering his name in the journey log.
  • On future flights, he will not make the required entries.

(...)

For the Respondent, the Minister of Transport, the position taken is described in the jurisprudence submitted below:

          (...)

In the case of Wyer v. Minister of Transport, CAT File No. O-0075-33 (Appeal), the member mentioned on pages 4 and 5 the principles that must guide the Tribunal in the evaluation of sanctions:

Arriving at an appropriate penalty, then, involves not only knowing the sentencing principles and the relevant facts and circumstances that give them meaning in an individual case; it may also involve the high art of balancing various policy considerations implicit in the principles and in the facts of the case.

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 aggr[a]vation and others in mitigation.

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

1. Aggr[a]vating 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 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.

(...)

Furthermore, the Minister of Transport added that if the entries had not been made in the journey log for aeroplane C-GAFG and in his own flight log, he might have received a notice for another contravention.

This being established, the fact of "admitting" the alleged offences, which the documentary evidence clearly shows on its own, is not a "mitigating" factor to the point of taking precedence. In fact, it is obvious that none of these factors are in themselves crucial, peremptory or determining, but rather an analysis of all of them would make it possible to come to a conclusion on this issue.

Moreover, the appeal panel recalls that the objective of all punishment is:

  1. to ensure aviation safety;
  2. to prevent repeat offences;
  3. to have a deterrent effect; and
  4. to allow for rehabilitation.

Returning to the aggravating factors considered by the review member, the appeal Tribunal while judging them appropriate concluded that the Appellant does "not" understand the very restrictive and strict implications of subsection 401.30(3) of the CARs at all.

Because the Minister of Transport charged the Appellant with only one count for three different offences and because it was his first offence, the appeal Tribunal restores the penalty of $500, in accordance with the Regulatory Compliance Procedures Manual[2].

Ground partially allowed

2. The Respondent (the Appellant here) acted to the best of his knowledge, consulted with a Transport Canada inspector about dual flight at night with another pilot.

The appeal panel cannot accept this ground because nothing in the evidence at the review supports this contention, and even if during the appeal the Appellant informed the Tribunal: "the inspector with whom he consulted was Mr. Omer Lemaire who allegedly told him that he could be a crew member in dual flight as long as the other member did not have restrictions on his licence," this is hearsay and is almost impossible for an informed inspector of Transport Canada.

Ground dismissed

3. The Respondent (the Appellant here) still believes he had the right to undertake dual flight on May 6, 14 and 15, 1998 and the allegations instead relate to flights made on June 15 and 19, 1998.

The appeal panel noted again that the Appellant could only be a passenger at night and that he could not be a crew member (captain or co-pilot) or even a student. Nothing in the evidence at the review or at the appeal proves that on May 6, 14 and 15, 1998 the Appellant was merely a passenger. On the contrary, he confessed that he was a crew member. As for the flights of June 15 and 19, 1998, they were not before the appeal panel.

Ground dismissed

4. Contrary to what member Carole Anne Soucy thinks, the Respondent (the Appellant here) has great respect for aviation safety.

The appeal panel believes, as did the review member, that the Appellant, by acting as a crew member with a restricted licence that did not allow him to fly at night, could have compromised aviation safety at any time, particularly if the other crew member had suffered from sudden incapacitation.

Ground dismissed

DETERMINATION

The appeal is partially allowed regarding the amount of the penalty, but the Appellant remains culpable for having conducted three flights at night as a crew member when his commercial pilot licence absolutely prohibited him from doing so.

Reasons for appeal determination:

Faye Smith, Chairperson

Concurred:

Dr. Michel Larose, Member
Pierre Rivest, Member


[1] Jurisprudence submitted by the Minister of Transport: Unless the findings of fact or credibility are unreasonable, they should not be overturned: Trent Wade Moore v. Minister of Transport, CAT File No. C-0138-33, February 14, 1991 (Appeal); Thomas Ritchie Phillips v. Minister of Transport, CAT File No. C-0014-33, January 26, 1987 (Appeal).

[2] First Edition, March 1995 (Transport Canada, Aviation) document TP4751E.