Decisions

CAT File No. Q-1782-41
MoT File No. NAP6504-C010798-32835

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Excel Aviation Inc., E/s/a/ Excel Aviation, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7


Review Determination
Pierre J. Beauchamp


Decision: August 23, 1999

TRANSLATION

I uphold the Minister's decision to assess a monetary penalty and reduce the penalty in the case of Excel Aviation Inc., E/S/A/ Excel Aviation to $150.00. 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.

A review hearing on the above matter was held Tuesday, June 29, 1999 at 10:00 hours at the Federal Court of Canada premises in Montréal, Québec.

PRELIMINARY NOTES

The Minister of Transport proceeded against two corporate entities. Mr. Mario Noël is the principal of both and is identified as President in the correspondence submitted as evidence.

This case involves Excel Aviation Inc. under file Q-1781-41, holder of a certificate of approval as an approved maintenance organization[1] (AMO) and Excel Aviation Inc., E/S/A Excel Aviation, under file Q-1782-41, holder of a certificate of approval authorizing it to "DISTRIBUTE and CERTIFY previously approved aeronautical products."[2]

The documentary evidence provided in both files is identical, almost without exception. In file Q-1781-41 regarding AMO Excel Aviation Inc., the Minister's representative produced the document entitled "Application for approval of a maintenance organization"[3] which is not included in the bundle of documents for file Q-1782-41 regarding Excel Aviation Inc., E/S/A Excel Aviation.

Under the circumstances, since the two accused parties were represented by Mr. Mario Noël and since the evidence to be provided was essentially the same for both files, it was agreed by all parties before the hearing to proceed with both files simultaneously.

It is well established that the Tribunal carries out its affairs according to its own procedures, subject to the obligation of strictly observing the precept of fairness and natural justice, and to simplify the procedures in this instance, it has been decided to proceed jointly with both files.

BACKGROUND

On December 3, 1998, the Minister of Transport decided to suspend AMO approval certificate no. 31-97 issued to Excel Aviation Inc. (Exhibit M-1.6) and approval certificate no. 28-97 for an organization approved to distribute and certify previously certified aeronautical products issued to Excel Aviation Inc., E/S/A Excel Aviation (Exhibit M-2.5).

In each case, a notice[4] was sent by registered mail to the businesses in question, addressed to Mario Noël, their president.

These notices of suspension were contested and this will be discussed later, but in our opinion, that is not the subject of this case.

In each case, the notice included the following on page 2:

You must return your certificate immediately following this suspension by bringing or mailing it to the Transport Canada office at the following address:

TRANSPORT CANADA CIVIL AVIATION
St. Hubert Centre
4850 Avenue de l'Aviation, Suite 100
St. Hubert, Québec J3Z 1H5

Failure to return a suspended Canadian aviation document is a contravention of Canadian Aviation Regulation 103.03. (We emphasize)

On February 10, 1999, two notices of penalties were issued, in the amount of $1,250.00 each, for contravening the Act:

i) Regarding Excel Aviation Inc.

NOTICE OF ASSESSMENT OF MONETARY PENALTY

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 section 103.03 of the Canadian Aviation Regulations.

On or about December 3, 1998, you failed to return your suspended approved maintenance organization (AMO) certificate, number 31-97, issued July 28, 1997.[5]

ii) Regarding Excel Aviation Inc., E/S/A Excel Aviation

NOTICE OF ASSESSMENT OF MONETARY PENALTY

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 section 103.03 of the Canadian Aviation Regulations.

On or about December 3, 1998, you failed to return your suspended organization approval certificate, number 28-97, issued April 18, 1997.[6]

EVIDENCE

Minister's Evidence (Applicant)

The Minister of Transport's representative, Mr. Tamborriello, called only one witness, Mr. Bernard Laporte, inspector from the Civil Aviation Maintenance section of the Department of Transport.

He stated that Aéro 3000, an air carrier, Excel Aviation Inc. (hereinafter referred to as Excel Inc.), an organization authorized to perform maintenance on aircraft and Excel Aviation Inc., E/S/A Excel Aviation (hereinafter referred to as Excel E/S/A), a distributor of aeronautical products, are known to his office.

They have one president, Mr. Mario Noël, and the same address at the St. Jean municipal airport in St-Jean-sur-Richelieu, Québec[7] is registered in the Department's files.

This is why, when on August 31, 1998, a notice of change of address (Exhibits M-1.1 and M-2.1) was submitted for Aéro 3000, it was assumed by the Department that the same information was valid for Excel Inc. and Excel E/S/A. A telephone record (Exhibits M-1.2 and M-2.2) dated October 5, 1998 relates to a telephone conversation between Messrs. Laporte and Noël.

The inspector asked Mr. Noël at that time to submit separate documents for Excel Inc. and Excel E/S/A regarding this change of address and to provide a copy of the new lease at St. Hubert.

On October 19, 1998, since Mr. Mario Noël or the accused companies, Excel Inc. and Excel E/S/A, had not followed through on the request of the Department's representative, Mr. Laporte sent a registered letter (Exhibits M-1.3 and M-2.3) to each Respondent, asking them for a copy of the lease, and a copy of the Maintenance Policy Manual, in the case of Excel Inc., and a Product Control Manual, in the case of Excel E/S/A, within 15 days of receiving the letter.

The recipients were informed that if they did not comply, the Minister of Transport "could suspend their certificate...."

On December 3, 1998, Excel Inc. (Exhibit M-1.6) and Excel E/S/A (Exhibit M-2.5) were informed, by notice sent via registered mail, of the Minister of Transport's decision to suspend their approval certificate on the same date.

In the case of Excel Inc., page 2 of said notice stipulated:

You must return your AMO certificate number 31-97 immediately following this suspension by bringing or mailing it to the Transport Canada office at the following address:

TRANSPORT CANADA CIVIL AVIATION
St. Hubert Centre
4850 Avenue de l'Aviation, Suite 100
St. Hubert, Québec  J3Z 1H5

Failure to return a suspended Canadian aviation document is a contravention of Canadian Aviation Regulation 103.03.

A similar notice referring to "approval certificate no. 28-97 for an organization approved to distribute and certify previously certified aeronautical products" was also sent to Excel E/S/A.

These notices were duly received in both cases (Exhibits M-1.7 and M-2.6) on December 8, 1998, according to Mr. Laporte's testimony.

Evidence of the Respondents

Mr. Mario Noël, president of both companies mentioned above, Excel Inc. and Excel E/S/A, testified that he did in fact receive the notice to return the certificates, and that during a telephone conversation with Inspector Laporte, he indicated that he would check with the warehouse in order to comply with the request.

He indicated that the certificates in question had been laminated onto wooden frames and that, during the move from St. Jean to St. Hubert, they had been placed in boxes along with some 3,000 laminates (photos of aircraft) used for advertising purposes.

On reflection, he believed the certificates in question were inadvertently destroyed at the same time as the advertising material.

Regarding the delay before he started to look for said documents, he indicated that while he had received the notices on December 3, 1998, he contested them, and it was only after the Tribunal's determination on December 23, 1998[8], and his telephone conversation with Mr. Laporte in January 1999 (see Exhibits M-1.8 and M-2.7) that he conducted searches that turned out to be in vain.

He maintains that he never refused to return the documents in question, but it was impossible for him to return them because they had been lost. In any case both companies had ceased their operations as of December 3, 1998.

THE LAW

Section 103.03 of the Canadian Aviation Regulations (CARs):

Return of Canadian Aviation Documents

103.03 Where a Canadian aviation document has been suspended or cancelled, the person to whom it was issued shall return it to the Minister immediately after the effective date of the suspension or cancellation.

DISCUSSION

The burden of proving that Excel Inc. and Excel E/S/A. committed the alleged offences rests with the Minister of Transport.

We are satisfied that the Minister met the burden of proof, in other words, that the Applicant duly sent the notice of suspension which included the request (or the requirement) to return said approval certificates and that the Respondents did not return the required documents.

The offences regarding the designated provisions mentioned in sections 7.6 to 8.2 of the Aeronautics Act, including the offences allegedly committed by the Respondents in this case, are strict liability offences which means that the Minister is not required to prove wrongful intent on the part of the accused (mens rea), and that it is sufficient to establish the component parts of the alleged offence based on a balance of probabilities.

The burden then shifts to the accused, the Respondents in this case, who must demonstrate that they exercised all due diligence to avoid committing the acts of which they are accused.

In fact, the Aeronautics Act stipulates in section 8.5:

Defence

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

We are therefore satisfied that under the circumstances, the Minister met the burden of proof imposed by law.

The Respondents answered that it was impossible for them to comply with the Minister's request to return the documents because they had been misplaced or lost during the move of their companies.

It has however been proven that searching did not start until January 11, 1999, more than one month after receiving the notice requiring that the documents be returned. This delay alone is inexcusable.

As our colleague Mr. Allister Ogilvie, Vice-Chairperson of the Tribunal, mentioned in a recent determination, Minister of Transport and John Andrew Lockhart[9]:

Since Mr. Daigle, the Transport Canada inspector who suspended the licence, advised him that turning the licence over to the RCMP was a satisfactory alternative to sending it to Mr. Daigle's office, I find that having done so is an effective return of the document. However, it was turned in some 28 days after the date of the suspension.

...The issue is whether Dr. Lockhart returned the document immediately after the effective date of the suspension. The evidence proves that he did not. Twenty-eight days after the effective date cannot be construed as "immediate". Therefore, the Minister has proven his case.

A delay of 28 days, more than one month in this case, cannot be considered as an "immediate" action.

PENALTY

The penalty assessed in each case was $1,250.00, for a total of $2,500.00.

As mentioned earlier, section 103.03 of the CARs is a designated provision. In the schedule of Subpart 3, the maximum amount of a penalty stipulated for a contravention of section 103.03 is $1,000 for an individual and $5,000 for a corporation. There is no minimum stipulated.

In the case of a request for review for this type of offence, a member of the Tribunal has the power to confirm the Minister's decision or substitute the member's decision for that of the Minister, and regarding the penalty, the power to confirm, increase or decrease the amount.

We have already decided that the Minister proved his allegations.

The issue is to determine whether the penalty of $1,250.00 assessed in each case is appropriate under the circumstances.

In the case of Excel Inc., a corporation, whose principal is Mr. Mario Noël, the maximum amount mentioned in the schedule is $5,000.

The recent determination made by Mr. Ogilvie[10], refers to the case of Minister of Transport and Kurt William M. Wyer[11]. This was a determination in which the Tribunal, sitting on appeal, quoted the factors or criteria that must guide us in this case:

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

1. Aggravating 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 co-operation 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 annunciated and the factors effecting 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.

Having regard to the circumstances of this case, there are no aggravating factors for both Excel Inc. and Excel E/S/A.

Mr. Noël established that as soon as he became aware that he had to return the certificates in question, after his conversation with Mr. Laporte in January 1999, he tried to find his certificates, but without success according to explanations given.

The Minister of Transport's representative, Mr. Tamborriello, does see aggravating circumstances in these cases as this explanation proves that since the move of the companies in the summer of 1998, until the request in December 1998, Mr. Noël allegedly could not present the certificates when requested as required in subsection 103.02(2) of the CARs.

With all due respect to Mr. Tamborriello, I do not share his opinion.

No request to present the documents in question was made before December 1998.

Furthermore, as argued by Mr. Noël, he is not required to work with these documents and is not required to display them.

The fact that he did not think about looking for them before Mr. Laporte's insistent request in January 1999, in the context of a move, and the normal course of business of his companies, explains that he was not aware they were missing.

Furthermore, the Minister did not prove any aggravating facts (recidivism, refusal to comply, illegal use of said certificates, etc.).

In fact, we must remember that all the alleged events here regarding Mr. Noël and Respondents occurred between December 3, 1998 and January 12, 1999, the date on which Mr. Noël informed Mr. Laporte he was unable to find the certificates in question. We must remember that this was the holiday period and often the time of winter vacations.

Furthermore, Mr. Noël appeared very credible to us during his testimony. He confirmed that though he had seen the request to return in the notice of December 3, 1998, he did not think he was required to return the documents before his review hearing. While nobody should ignore the law, we believe that he acted in good faith in this case. He also displayed an obvious attitude of cooperation, explaining that there is only one full-time employee to run his company and that, under the circumstances, we should understand his mistake.

In the context of the criteria established in the case of Minister of Transport and Kurt William M. Wyer[12] mentioned in the recent aforesaid case of Minister of Transport and John Andrew Lockhart[13], we believe that, under the circumstances, the penalty of $1,250.00 in the case of Excel Aviation Inc. is clearly exaggerated and reduce it to $150.00.

The same comments apply to the penalty assessed against Excel E/S/A with the following variations.

The evidence in the case does not clearly show the nature of the Respondent's corporate status (Excel Aviation Inc., E/S/A Excel Aviation).

Mr. Noël testified that it is a separate company from Excel Aviation Inc. However, it is not clear if this is a business that is itself incorporated and therefore a corporate entity with a separate corporate status, from Excel Aviation Inc. (which enjoys a corporate status due to its incorporation) or from its representative in this case, Mr. Mario Noël, its "President."

If the second case is true, where Mr. Noël himself conducts business under the name of Excel E/S/A, we believe the maximum applicable penalty would be $1,000.00 which is the maximum applicable penalty for an individual as stipulated in the Schedule of Subpart 3[14], instead of the $5,000.00 maximum applicable to a corporation. If this were the case, the assessed penalty of $1,250.00 would be in excess of the maximum stipulated in the CARs.

In any event, since the Department's documentation with the name on approval certificate no. 28-97 refers to Excel Aviation Inc., E/S/A Excel Aviation, and mentions an incorporated entity, Excel Aviation Inc., we will not decide this issue since the evidence is not conclusive, either way.

However, we believe, as mentioned, that the penalty in this case also, and for the same reasons as with Excel Aviation Inc., is clearly exaggerated and reduce it to $150.00 as well.

DETERMINATION

I uphold the Minister's decision to assess a penalty and reduce the penalty

  • in the case of Excel Aviation Inc., to $150.00;
  • in the case of Excel Aviation Inc., E/S/A Excel Aviation to $150.00.

Pierre J. Beauchamp
Member
Civil Aviation Tribunal


[1] Exhibit M-1.0.

[2] Exhibit M-2.0.

[3] Exhibit M-2.5.

[4] Exhibits M-1.6 and M-2.5.

[5] Exhibit M-1.11.

[6] Exhibit M-2.10.

[7] See Exhibits M-1.0 and M-2.0.

[8] According to Tribunal's files, Excel Inc. had appealed to the Tribunal regarding the Minister's decision to suspend its AMO certificate, and on December 23, 1998, Mr. Pierre Rivest, Member of the Civil Aviation Tribunal, rendered his review determination that upheld the Minister's decision to suspend AMO certificate no. 31-97 (CAT File No. Q-1732-18).

Regarding Excel E/S/A, who also appealed the Minister's decision, it withdrew its request for review and the Tribunal file was closed on February 12, 1999 (CAT File No. Q-1731-18).

[9] Determination of the Civil Aviation Tribunal, File No. A-1803-33, dated June 16, 1999, see pg. 3.

[10] Minister of Transport and John Andrew Lockhart, supra note 2.

[11] File no. O-0075-33, cited in Lockhart, supra note 2 on pg. 4.

[12] Op. Cit. Note 11.

[13] Op. Cit. Note 9.

[14] Canadian Aviation Regulations, SUBPART 3 — ADMINISTRATION AND COMPLIANCE, Designated Provisions, SCHEDULE.