Decisions

CAT File No. Q-1861-10
MoT File No. 5258-1-6788

CIVIL AVIATION TRIBUNAL

BETWEEN:

Régionnair Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 7.1(1)(b), 37
Canadian Aviation Regulations, SOR/96-433, ss. 703.07(1)(f), 704.07(1)(f)

Suspension of air operator certificate, Incompetence, Hearsay, Double jeopardy, Air operator certificate


Review Determination
Carole Anne Soucy


Decision: January 13, 2000

TRANSLATION

The Minister has proven on a balance of probabilities that Régionnair was incompetent to conduct its operation safely and that the record shows that the operations manager did not know how to conduct the operation safely. The decision to suspend the carrier's air operator certificate was reasonable and fair.

I therefore confirm the suspension of air operator certificate No. 7954 from August 13, 1999 to August 18, 1999, the date on which the conditions for reinstatement were complied with.

A Review Hearing on the above matter was held October 19 and 20, 1999 at 9:00 hours at the Palais de Justice de Sept-Îles, at Sept-Îles, Québec.

PURPOSE OF THE REVIEW HEARING

Régionnair Inc. (Régionnair) is an air carrier that provides domestic air services from its main base in Chevery, and from several secondary bases. The company handles its own maintenance for its aircraft, primarily at its base in Lourdes-de-Blanc-Sablon.

Following several violations, incidents and, more specifically, two accidents, one on January 4, 1999 and a second on August 12, 1999, the Minister of Transport decided to suspend Régionnair's air operator certificate, pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, for the following reasons:

Régionnair is incompetent to conduct its operation safely. The record shows that the operations manager did not know how to conduct the operation safely (as provided in paragraph 703.07(1)(f) and paragraph 704.07(1)(f)).

The said suspension was maintained for five days, until August 18, 1999, the date on which the appointment of a new operations manager for the company came into effect, thereby complying with the conditions for reinstatement indicated in the appendix attached to the Notice of Suspension issued by the Minister:

Grounds for the Suspension or Cancellation

Raison de la suspension ou de l'annulation

Conditions for reinstatement

Conditions pour rétablissement

Régionnair is incompetent to conduct its operation safely.

The record shows that the operations manager does not have the control required to safely provide operational control.

Régionnair submits to Transport Canada for approval a qualified candidate for the operations manager position (qualified in accordance with the Commercial Air Service Standards) and demonstrates the ability to supervise the operations.

The corrective measures for non-compliance detected during the regulatory audit in March 1999 are approved by Transport Canada.

The Applicant contested the suspension of its operator's permit and wishes to have the suspension cancelled by way of this hearing.

THE FACTS

On January 4, 1999, one of Régionnair's aeroplanes, a Beech 1900C, registered as C-FGOI, was involved in an accident. The aeroplane crashed half a mile to the north of the runway, at Saint-Augustin; however, there were no deaths. Following this event, Transport Canada investigated and performed a regulatory audit, conducted interviews, visited the premises and planned two meetings with representatives of Régionnair on January 22 and May 25, 1999.

As a result of the investigation, on January 27, 1999, Transport Canada requested the revocation of Mr. Douglas Monger as chief pilot and Mr. Guy Marcoux, operations manager, because the latter allegedly failed to monitor operational safety and exercise operational control according to the operational standard for the aeroplanes used.

On January 28, 1999, Transport Canada sent a Notice of Suspension of Regionnair's air operator certificate (Exhibit M-5).

On February 26, Transport Canada agreed to postpone the date on which the suspension of the air operator certificate was to come into effect to March 23, 1999 (Exhibit M-6).

On March 23, the Notice of Suspension of the air operator certificate and the notice of revocation of the operations manager were cancelled (Exhibit M-7) because Mr. Guy Marcoux and Régionnair had complied with Transport Canada's requirements. Mr. Marcoux still holds his position.

On April 6, 1999, following the regulatory audit of Régionnair in March 1999, a copy of the audit report (Exhibit M-10) was sent to Mr. Guy Marcoux. On May 14, 1999, the carrier obtained an extension of 30 days to respond to the findings of the regulatory audit. On May 21, an additional 30-day extension was granted and the date for responding to the violations was extended to June 21, 1999.

On July 28, 1999, Transport Canada was still awaiting a response from the Applicant.

On August 12, 1999, at 23:58 hours, Regionnair's Beech Airliner 1900D B190 registered as C-FLIH crashed at Sept-Îles resulting in the death of the pilot.

On August 13, 1999, Transport Canada suspended the carrier's air operator certificate.

On August 18, 1999, Régionnair's air operator certificate was reinstated and the operations manager, Mr. Guy Marcoux, was replaced.

EVIDENCE

The minister's representative presented his evidence and called seven witnesses. After he finished presenting his evidence, Régionnair's representative presented his evidence and called an expert witness.

An order to exclude witnesses was issued at the start of the hearing to avoid distorting their testimony and to give them more credibility.

Mr. Yves Gosselin, Regional Director of Civil Aviation, Québec Region, in testifying for the Minister stated that following the Régionnair accident at Saint-Augustin on January 4, 1999, specific measures were taken, including a regulatory audit and a regulatory investigation. Inspector Jules Bourgoin was responsible for that investigation, following which notices of suspension were sent to Mr. Douglas Monger, chief pilot, and Mr. Guy Marcoux, operations manager.

Mr. Gosselin emphasized that he considered the accident on January 4 as the trigger that prompted Transport Canada to want to meet the personnel of all carriers in the lower North Shore region. He believed the accident was, to a certain extent, related to the fact that tremendous pressure is placed on pilots.

A meeting between managers of various air carriers on the North Shore and Transport Canada representatives took place at Sept-Îles on February 23, 1999. He testified that competition on the lower North Shore is fierce and even considered unhealthy.

The purpose of this meeting was to urge directors of airlines to operate by following the rules and to provide an adequate level of safety.

When the notice of revocation for the operations manager, dated January 27, 1999, and the Notice of Suspension of the air operator certificate, dated January 28, 1999, were cancelled on March 23, 1999, Régionnair had complied with Transport Canada's requirements.

Therefore, Mr. Gosselin admitted under cross-examination that wanting to find a new operations manager to replace Mr. Marcoux had nothing to do with his competence. The problem was with his position and responsibilities given the size of the company. He could not perform the functions of chief pilot and operations manager for a company the size of the Applicant. Transport Canada wanted someone who could focus primarily on managing the operations.

However, following discussions with Mr. Marcoux and, considering the fact that he could not find someone competent to replace him, and being confident of corrective actions, the Minister of Transport cancelled the notice of revocation and notice of suspension.

When asked which factors could prompt the Minister to request a suspension of the air operator certificate, Mr. Gosselin replied, on one hand, the company's safety record, recent events and information about the current situation, on the other hand, following an accident, the aeroplane's movements, the weather and finally the reports from the investigation.

During the night of August 12, 1999, many other carriers did not land or attempt a landing. Mr. Gosselin emphasized that the accidents in January and August 1999 occurred under similar conditions with aircraft of the same type, at night, in fog with a low ceiling and reduced visibility.

Under cross-examination, Mr. Gosselin argued that the suspension of the operations manager was an important factor. Transport Canada was no longer confident that Mr. Marcoux could operate the company safely. He added that although other companies are very safe, they are not necessarily accident free, but he explained that one must differentiate between an accident and an accident resulting from an operating culture that does not encourage a high level of safety.

Mr. Gosselin continued his testimony by explaining that many discussions were held before the decision to suspend was made since they were well aware of the major consequences of such a decision for both the company and the employees.

He ended his testimony by emphasizing that Régionnair's air operator certificate was reinstated after the appointment of a new operations manager approved by Transport Canada.

The second witness, Mr. Stéphane Gendron, air controller at the Sept-Îles tower, explained to the Tribunal the aircraft movement report, as supplied by NAV CANADA (Exhibit M-13).

From this report and, while the data is not free of errors, according to Mr. Gendron, it appears that in the minutes preceding and following the Régionnair accident, this was the only aircraft to land.

However, under cross-examination, Mr. Gendron admitted, on one hand, that Régionnair is one of the companies that most frequently uses the Sept-Îles airport and, on the other hand, that the weather conditions on the lower North Shore can change quickly.

He added that on the night of the accident, there was no controller on duty and that the airport's primary runway was closed. Flight information services were therefore provided by the flight service station (FSS).

The Minister's third witness, Mr. Roger Labelle, FSS specialist, was on duty from 18:10 hours UTC to 4:00 hours UTC during the night of August 12 to 13, 1999. He produced the relevant weather report (Exhibit M-14) and testified about the weather observations which are the responsibility of the FSS and alleged that there was fog, low visibility and that the ceiling was low.

Mr. Labelle also testified that conditions can be good on one side of the runway, but completely different on the other side. He further testified by indicating that the FSS is beside the control tower and that in order to measure the ceiling, a device called a ceilometer is used to record the presence of clouds and/or obscuring phenomenon, and a ceiling projector located a half mile away in the centre of the runway is used for visual observation. On the night of August 12, he could not see the ceiling projector.

The Minister then called Mr. Jules Bourgoin, investigator for Transport Canada, as a witness. Mr. Bourgoin explained that on the request of Mr. Justin Bourgault, the regional manager in charge of aviation enforcement, he was to investigate the accident of January 4. During the investigation, he took down three statements, from Mr. Douglas Monger, pilot flying on the flight involved in the accident, from Mr. Roland Landry, co-pilot on the flight and from Mr. Keith Collier, chief pilot. Two other people were also present when the statements were made. Mr. Bourgoin pointed out that before making the statements, their rights were explained to them including the possibility of obtaining the assistance of counsel. Mr. Desrosiers objected to the filing of the statements (Exhibit M-16).

In The Law of Evidence in Canada,[1] the concept of hearsay is defined as follows:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

The Civil Aviation Tribunal previously ruled on the issue and concluded that the exclusionary rule against hearsay is strictly applied in criminal proceedings, but less so in civil and administrative tribunals. In fact, these rules do not necessarily serve the purposes of an administrative tribunal.

Section 37 of the Aeronautics Act confirms this notion and provides a legal exemption regarding the strict application of legal or technical rules of evidence by stipulating:

37. (1) Subject to subsection (5), the Tribunal or a member thereof is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(...)

(5) The Tribunal or a member thereof may not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

While hearsay evidence can be used under some circumstances, it is certainly not as reliable as first-hand evidence.

Hearsay evidence is all the more valid if it is verified and corroborated by other evidence or if it corroborates other evidence.

The Minister did not provide a reason for the non-appearance of those who signed the statements. They could not be cross-examined.

Under the circumstances, I accepted the filing of these statements as part of the investigation, but declared them inadmissible as evidence of their contents.

The representative of the Minister of Transport called Mr. Réjean Leblanc, inspector with Transport Canada, to testify next. He was responsible for the regulatory audit conducted at Régionnair in March 1999. During his testimony, Mr. Leblanc mentioned many violations of the regulations in terms of operations manuals, training, weight and balance control and documents regarding aircraft. He alleged that the purpose of the audit was to gather information and implement corrective measures.

Under cross-examination, Mr. Leblanc admitted that regulatory audit reports always contain shortcomings. He also added that air carriers have, unless there is an exception, 30 days to correct irregularities in the audit report. All air carriers are subject to regulatory audits. This procedure is carried out as required and not necessarily as a result of an accident and/or an incident. Regulatory audits are part of the functions of Transport Canada inspectors and the primary purpose is to ensure safety.

It was also put into evidence that on July 28, 1999, Régionnair had still not responded to the findings of the regulatory audit which were to be provided on June 21, as indicated in the letter from Ms. Madeleine Deshaies, acting regional director, addressed to Mr. Guy Marcoux (Exhibit M-17).

Moreover, it was Ms. Deshaies who was on duty on the day of the accident in August. She was replacing Mr. Gosselin.

During her examination, she confirmed having received a call from Ottawa on August 13. She then contacted Mr. Jules Pilon, regional manager, Commercial and Business Aviation, to inform him of the accident. She then studied the weather conditions and aircraft movements. She added that when she received this information from NAV CANADA, she realized that there had been many missed approaches by different companies and that Régionnair was nevertheless still operating. She also testified that an inspector from Transport Canada was performing flight tests on the night of the accident at Sept-Îles and that he could not land due to adverse weather conditions.

Afterwards, she checked Régionnair's record and realized that the accident in January was, at first glance, similar to the one that had just occurred. However, she admitted that the Transportation Safety Board report was still not completed.

Mr. Jules Pilon, the final witness called by Transport Canada, is one of the three people who decided to suspend the air operator certificate and signed the notice for that purpose. The factors that prompted him to sign the Notice of Suspension are essentially the same as those of Ms. Deshaies.

Mr. Dussault completed the presentation of his evidence.

Mr. Desrosiers, representative of Régionnair, started his evidence by calling Mr. David André Perez, expert witness, aviation consultant and lecturer, to give evidence. Before providing his testimony, he described his qualifications. He did however admit that he was not familiar with the new regulations since he had left Transport Canada two and a half years before.

He stated that the criteria for suspending an air operator certificate are numerous and that many factors should be considered. He also added that disciplinary measures should match the offence, whether fault lies with a person or the company. In his years with Transport Canada, he never saw an air operator certificate suspended following an accident.

Regarding the regulatory audit, he indicated this is a recommendation from the International Civil Aviation Organization (ICAO) and a monitoring mechanism to ensure that companies meet the issuance standards for the air operator certificate. As for the notice of non-conformance following the regulatory audit, they invariably exist and are numerous, from 10 to 100, and this is true in all cases. He continued adding that anomalies are generally not urgent. They become urgent if they affect aviation safety and corrections are then made immediately.

Mr. Perez continued his testimony by indicating that most violations in a regulatory audit report are offences that do not necessarily indicate a danger and this is why there is a delay of 30 or 60 days to correct the situation.

Having been present for the testimony of various witnesses, Mr. Perez stated that based on the facts put into evidence, the offences could not be connected to the operations manager. According to him, there is no connection between the allegations and the operations manager. There are other measures to be taken to deal seriously with those who committed the offences. He characterized the suspension as a major penalty.

Under cross-examination, he admitted that safety is Transport Canada's primary mandate. He reiterated the fact that the administrative documents do not have a direct impact on safety. He stated that there are other methods to verify a pilot's record, for example, by conducting in-flight inspections and by checking reports.

To the Minister's question as to whether sections of the Act relating to administrative documents serve a purpose, Mr. Perez responded that a lack of training differs from missing entries. He admitted however that not signing a journey log is an offence.

He continued his testimony by indicating that after Régionnair's first incident, he would have acted in the same manner regarding Mr. Marcoux. Moreover, if he had had reasons to believe that Mr. Marcoux was urging pilots to fly under adverse conditions, he would have given a time limit to have him replaced.

THE LAW

The air operator certificate was suspended pursuant to subsection 7.1(1) of the Aeronautics Act which reads as follows:

7.1 (1) Where the Minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(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

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

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.

The Minister submits that Régionnair is incompetent to conduct its operation safely and that the record shows that the operations manager could not conduct the operation safely thereby contravening paragraph 703.07(1)(f) (Subpart 3—Air Taxi Operations) of the Canadian Aviation Regulations (CARs) which stipulates the following:

(1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to

(...)

(f) conduct the operation safely.

(2) For the purposes of subsection (1), an applicant shall have

(a) a management organization capable of exercising operational control;

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

(i) operations manager,

(ii) chief pilot, and

(iii) where the applicant does not hold an approved maintenance organization (AMO) certificate, maintenance manager;

(...)

and paragraph 704.07(1)(f) (Subpart 4—Commuter Operations) of the Canadian Aviation Regulations (CARs) which stipulates the following:

(1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to

(...)

(f) conduct the operation safely.

(2) For the purposes of subsection (1), an applicant shall have

(a) a management organization capable of exercising operational control;

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

(i) operations manager,

(ii) chief pilot, and

(iii) where the applicant does not hold an approved maintenance organization (AMO) certificate, maintenance manager;

(...)

Clause 724.07(2)(a)(i)(B) of the Commercial Air Service Standards (Aeroplanes) stipulates:

(2) Qualifications and Responsibilities of Operational Personnel

(a) Operations Manager

(i) Qualifications

(A) Hold or have held the appropriate licence and ratings for which a pilot-in-command is required to hold for one of the aeroplanes operated; or have acquired not less than 3 years related supervisory experience with an operator of a Commercial Air Service whose flight operations are similar in size and scope; and

(B) Demonstrate knowledge to the Minister with respect to the content of the operations manual, the air operator's certificate and operations specifications, the provision of the regulations and the standards necessary to carry out the duties and responsibilities to ensure safety.

(ii) Responsibilities (...)

RESPONDENT'S ARGUMENT

Transport Canada presented its argument in two parts. The first part referred to the burden of proof and the second referred to safety.

The Minister alleges that this offence is a strict liability offence and that he must show by a preponderance of evidence that Régionnair was incompetent to conduct its operation safely. Regarding the second part, he stressed that Transport Canada's mandate and primary role is safety. He referred to the reports of the Dubin Commission[2] and the Moshansky Commission[3] which are clear on this matter.

The Minister summarized the key points in his argument as follows:

  • the accident of January 4, 1999 which, in all probability, was not a consequence of mechanical failure;
  • a regulatory investigation from which the inspector in charge concluded that there were unacceptable practices threatening safety that led to notices of suspension for Messrs. Monger and Marcoux, chief pilot and operations manager of Régionnair respectively;
  • a meeting between representatives from Transport Canada and the directors of various air carriers on the North Shore where the Minister noted, more specifically with the Applicant, a lack of willingness to respect aviation regulations;
  • a regulatory audit report in which several offences and violations were noted;
  • the conditions under which the accident of August 12 occurred.

APPLICANT'S ARGUMENT

In its argument, the Applicant emphasized that the evidence did not show it was not competent to conduct its operation safely. On one hand, it specified that there was reference to only one incident on record, the accident of January 4, contrary to the Minister's submissions. It added that the Minister had to provide evidence that a situation was tolerated or encouraged by the manager and thereby connect the accident to the manager or to the company, not only to a pilot.

The Applicant raised another argument submitting that if a determination were made against its company, it would be penalized twice for the same offence since the chief pilot at the time had been suspended following the accident in January, contrary to the rules of natural justice and the Canadian Charter of Rights and Freedoms.

The Applicant continued its argument by raising three questions:

  1. does the fact that an air carrier had an accident constitute a reason for suspension?
  2. does the fact that an air carrier had an accident imply that the company was unable to conduct its operation safely?
  3. does the fact that there was an accident mean the manager must be replaced?

If the answer to these three questions is yes, the Applicant admits Transport Canada is right.

The Applicant raised another point regarding regulatory audits. The fact that Transport Canada gives numerous extensions to carriers to correct shortcomings is proof they are not urgent and proves the lack of seriousness of this audit.

In dealing with the issue of the aircraft movement report of August 12, the Applicant's representative mentioned that in adverse weather conditions it was normal for many aircraft to attempt approaches in order to land, that this occurred frequently and that there is no proof of an offence regarding the flight of Régionnair involved in the accident.

Finally, the Applicant explained to the Tribunal that the accident of August 12 was the trigger for the suspension. The Applicant added that there was no connection between Mr. Marcoux and the accident and that the decision made was unjustified and unjustifiable, that all of the testimony was based on impressions and that one cannot be condemned based on suspicions, or depend on government authorities.

THE ISSUES

Pursuant to air operator certificate no. 7954, the Minister of Transport may suspend or cancel the air operator certificate at any time where the air operator fails to comply with the provisions of the air operator certificate or to comply with the applicable provisions of the Aeronautics Act, the CARs or for such other grounds as are set out in the Aeronautics Act, the whole as evidenced in the certificate produced as Exhibit M-1. In the same document, we find the conditions that must be complied with for the issuance of the document and, as stated in the conditions, the air operator must conduct a safe operation.

Initially, the Tribunal must determine if the Minister has met the burden by showing by a preponderance of evidence that the operations manager, Mr. Marcoux, was incompetent to conduct the operation safely.

Therefore, there is no doubt that the credible, non-contradictory testimony provided by the Respondent's witnesses significantly contributed to enlightening the Tribunal on the operation and management of Régionnair during the periods in question. While it is not the Minister of Transport's responsibility to determine the cause of accidents, since the Transportation Safety Board of Canada (TSB) had not submitted its report, it was shown that both accidents in question occurred under similar conditions.

As far back as January 1999, the carrier's manager was suspended. Following meetings and conversations between the parties, the Notice of Suspension was revoked. There was an investigation and a regulatory audit.

The evidence shows that the air carrier often contravened aviation safety rules, and that pressure was exerted on pilots to make as many flights as possible to ensure the company could carry out its activities profitably. Unhealthy competition existed among carriers on the North Shore and the Applicant demonstrated significant aggressiveness that resulted in flying under adverse, even dangerous, weather conditions. It was put into evidence that on the night of August 12, many aircraft from various companies had attempted approaches without being able to land while it was not the same for the Applicant, with the consequences we now know.

Contrary to the Respondent's submissions, counsel for the Applicant only referred to a single past incident which was the accident in January. Unfortunately, I cannot endorse this argument because the evidence refers to many situations. The witnesses spoke of an unhealthy situation, an organizational structure that did not encourage safety, a culture within the company that did not respect the regulations and encouraged irresponsible flights. There was also the regulatory audit where numerous offences were noted. This is a factor which, while not a determining factor, is considered an aggravating factor under the circumstances.

The Applicant alleges that it was sanctioned following the first accident and that the chief pilot was suspended. The Applicant added that we cannot proceed in a cumulative manner and that the double punishment is prohibited under the Canadian Charter of Rights and Freedoms.

Paragraph 11(h) of the Charter reads as follows:

11. Any person charged with an offence has the right

[...]

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

In the decision R. v. Wigglesworth[4] the Supreme Court specifies that the term "charged with an offence" within the meaning of section 11 of the Charter must be given a narrow interpretation and should only apply to proceedings with penal consequences.

In the matter of R. v. Shubley,[5] the Supreme Court established that a licence suspension is not a criminal proceeding.

In the same case, the Supreme Court confirmed that a contravention comes under paragraph 11(h) of the Charter if the proceeding is, by nature, a criminal proceeding, or if the penalty provided implies true penal consequences.

These cases have already been analyzed in the case of Dykstra[6] where the Tribunal stated the following:

In those two cases true penal consequences were viewed as imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.

The Aeronautics Act was drafted for safety reasons and pursuant to this Act, the legislator intentionally provided sections leading to the suspension of documents and/or persons. It covers a very restricted area of activity.

This case is not about condemning Régionnair cumulatively for the same offences, but rather to suspend its certificate following various sanctionable and sanctioned safety-related incidents which may explain the inability to manage safely.

The Civil Aviation Tribunal is an administrative tribunal with administrative sanctions imposed by the Aeronautics Act. The principles of natural justice and procedural fairness are fundamental. These principles have been respected and the use of cumulative penalties does not apply in the case before us.

Was the manager incompetent in this case? Unfortunately, the term incompetent is not defined in the Aeronautics Act. I therefore rely on Tribunal determinations made on the subject. In the case of Lafayette[7], the Civil Aviation Tribunal made a determination on the issue and came to a conclusion on a definition and a non-restrictive meaning of the term incompetence. The Tribunal Member also analysed the case of Re Mason and Registered Nurses' Association of British Columbia.[8] In that decision, Anderson J. of the Supreme Court of British Columbia deals with the term as it is used in the Registered Nurses Act (R.S.B.C. 1960, c. 335) and concluded with the following principles:

  1. The particular definition placed upon the word 'incompetency' should be moulded by the object of the enactment in which the word appears.
  2. All the definitions of 'incompetency' focus on the lack of ability, capacity or fitness for a particular purpose.
  3. The want of capacity, ability or fitness may arise from a lack of physical or mental attributes. However, a person not lacking in physical or mental attributes may nonetheless be incompetent by reason of a deficiency of disposition to use his or her abilities and experience properly.
  4. Negligence and incompetence are not interchangeable terms. A competent person may sometimes be negligent without being incompetent. However, habitual negligence may amount to incompetence.
  5. A single act of negligence unaccompanied by circumstances tending to show incompetency will not of itself amount to incompetence.

This approach was also followed by the appeal panel in the Dykstra case mentioned earlier.

In this case, the allegations are sufficiently numerous to speak of inability and/or incompetence. There was sufficient lack of confidence to conduct an investigation, a regulatory audit and meetings with a clear purpose. Considering the nature and number of problems noted, they cannot be considered an isolated act of negligence. The manager's incompetence stems from a lack of time for accomplishing his tasks and a lack of organization.

It is true that the Minister had previously tried to remove Mr. Marcoux for the first time in January 1999, that replacing him had been impossible and that it was decided to leave him in his position.

The Dubin report drew the following conclusions:

The practice of reinstating an operating certificate solely on the basis of an undertaking to comply with safety standards in future is an inadequate method of ensuring future compliance with the safety standards.

In Swanson v. Canada,[9] while this is a proceeding of a tortious nature, the Federal Court of Appeal dismissed the appeal by the Crown following the trial judge's ruling that the negligence of the pilot, the air carrier and Transport Canada contributed to the fatal crash and he apportioned the responsibility equally. Linden J.A. ruled as follows:

While Transport Canada cannot prevent a pilot from flying negligently or from endangering the lives of passengers, if he or she so chooses, it can reduce the risk that this will occur. They can stop an airline from using shoddy equipment. They can minimize, through inspection and enforcement, the occasions when such negligence will occur. Transport Canada cannot prevent airlines from trying to run their businesses as cheaply and profitably as possible, but they can seek to enforce compliance with the safety rules. The desire to promote passenger safety led to legislation and regulations under which the Crown was given the duty to ensure that certain safety standards were established and maintained. The Aeronautics Act obviously presumes a connection between the fulfilment of these duties and the maintenance of safe air travel.

The Minister knew there were safety violations and waited several months before undertaking corrective measures. I believe the Minister should have acted with more diligence and should have proceeded with significant changes to the management of the Applicant and should have demanded responses to the irregularities discovered during the regulatory audit more quickly.

The Minister has an obligation to maintain safety and must do everything toward this goal.

Finally, considering the responsibilities the operations manager is faced with and more specifically: the control of operations and operating standards for all aircraft used, identifying the functions of coordinating operations, supervision, organization, verification of air operations, training programs and flight safety, and above all else, ensuring that the operations of the air carrier conform to the existing regulations and standards, it seems fair to say that the manager did not accomplish his task of ensuring operational safety as required by the CARs and the Commercial Air Services Standards.

The Minister therefore had to suspend Mr. Marcoux from his functions and consequently issue a Notice of Suspension of the air operator certificate to Régionnair until the conditions for reinstatement were complied with.

DETERMINATION

The Minister has proven on a balance of probabilities that Régionnair was incompetent to conduct its operation safely and that the record shows that the operations manager did not have the required controls to ensure a safe operation. The decision to suspend the carrier's air operator certificate until the conditions for reinstatement were complied with was reasonable and fair. I therefore confirm the suspension of air operator certificate No. 7954 from August 13, 1999 to August 18, 1999 and dismiss the Applicant's request.

Carole Anne Soucy
Member
Civil Aviation Tribunal


[1] J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) at 156.

[2] The Honourable Mr. Justice Charles L. Dubin, Report of the Commission of Inquiry on Aviation Safety, 1981.

[3] The Honourable Virgil P. Moshansky, Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario.

[4] R. v. Wigglesworth, [1987] 2 S.C.R. 541.

[5] R. v. Shubley, [1990] 1 S.C.R. 3.

[6] Jelle Dykstra v. Minister of Transport, CAT File No. W-0213-04, November 13, 1997.

[7] Daniel L. Lafayette v. Minister of Transport, CAT File No. C-0163-02, July 3, 1990.

[8] Re Mason and Registered Nurses' Association of British Columbia, 102 D.L.R. (3rd) 225.

[9] Swanson v. Canada, [1992] 1 F.C. 408.


Appeal decision
Faye H. Smith, Michel G. Boulianne, Michel Larose


Decision: December 14, 2000

TRANSLATION

The appeal is dismissed. The appeal panel confirms the suspension of air operator certificate no. 7954 imposed by the Minister of Transport.

An appeal hearing on the above matter was held Tuesday, May 2, 2000, at 10:00 hours at the Sept-Îles Court House, Room 2.01, 425 Laure Boulevard, Sept-Îles, Québec.

BACKGROUND

The Appellant is appealing the determination of Member Carole Anne Soucy, following a request for a review presented by the Appellant, Régionnair Inc. The Minister of Transport had decided to suspend the Appellant's air operator certificate pursuant to subsection 7.1(1) of the Aeronautics Act for the following reasons:

Régionnair is incompetent to conduct its operation safely. The record shows that the operations manager has been unable to conduct an operation safely (as stipulated in paragraphs 703.07(1)(f) and 704.07(1)(f)).

GROUNDS FOR APPEAL

Following the review, the Tribunal Member confirmed the decision of the Minister of Transport and confirmed the suspension of air operator certificate no. 7954 from August 13, 1999 to August 18, 1999, and denied the Applicant's request. The Appellant, through its representative, Mr. Charles-Henri Desrosiers, appealed Member Carole Anne Soucy's determination dated January 13, 2000 to the Civil Aviation Tribunal specifically citing the following reasons:

(1) the member erred in fact and in law in finding that the Minister of Transport had discharged its burden of proof by showing that Régionnair Inc. was incompetent to conduct its operation safely and that the record of its operations manager showed he did not have the required control to ensure a safe operation;

(2) the member erred in fact and in law in finding that it had been shown that the accidents of January 4, 1999, and August 12, 1999, occurred in similar conditions, even though no such proof was [provided];

(3) the member erred in fact and in law in finding and assuming that the above-mentioned accidents had been caused by violations of the air traffic rules, when the causes of the said accidents are not yet known;

(4) the member erred in fact and in law in finding that it emerged from the testimony that Régionnair often violated the flight safety rules;

(5) the member erred in fact and in law in finding that the irregularities noted during a regulatory audit constituted an aggravating factor, when the evidence showed that the irregularities were not serious and were not urgent from the standpoint of flight safety;

(6) the member erred in fact and in law in her interpretation of the notion of ability and inability to conduct an air operation safely within the meaning of the Aeronautics Act;

(7) the member erred in fact and in law in finding that the allegations were sufficiently numerous to speak of inability and incompetence;

(8) the member erred in fact and in law in failing to link the accident or accidents for which Régionnair Inc. is blamed to its manager's conduct;

(9) in this regard, the member erred in totally disregarding the testimony of the co-pilot, Serge Gagné, about the accident of August 12, 1999, whose testimony was given willingly during the hearing and confirmed that the manager, Guy Marcoux, had contacted the pilot-in-command the evening of the accident to invite him not to hesitate to stay over at Mont-Joli if the weather was not suitable for flight;

(10) in short, the member rendered a determination that is totally erroneous in fact and in law and not at all based on proven facts, but on impressions, assumptions and hypotheses advanced by the Minister of Transport;

(11) the determination being appealed is completely biased in favour of the Minister of Transport's theory, and this determination is all the more biased as the member completely dismissed or ignored all testimony favourable to the Appellant, including the testimony of the former director of civil aviation, Mr. André Pérez, who testified specifically about the patently unreasonable nature of the decision of the Minister of Transport;

(12) the member purely and simply endorsed the decision of the Minister of Transport without at all addressing the fact that the decision to suspend the operator certificate of an air carrier the very day of an accident without knowing its causes was a precedent in Canadian aviation history, and without at all addressing the arbitrary and patently unreasonable nature of the Minister's decision.

THE FACTS

On January 4, 1999, one of the Appellant's aeroplanes, namely, a Beech 1900C registered as C-FGOI, was involved in an accident; it crashed a half-mile north of the Saint-Augustin runway. There were no fatalities. Transport Canada subsequently investigated and conducted a regulatory audit, gathered testimony, visited the site and met twice with the Appellant's representatives, on January 22 and May 25, 1999.

On January 27, 1999, Transport Canada asked for the revocation of Mr. Douglas Monger as chief pilot, and of Mr. Guy Marcoux, the Appellant's operations manager, alleging that the latter failed to ensure the safety of air operations and control of the Appellant's aeroplane operations.

Accordingly, on January 28, 1999, Transport Canada sent a notice of suspension of the Appellant's air operator certificate (Exhibit M-5). On February 26 that same year, Transport Canada postponed the effective date of the suspension of the air operator certificate to March 23, 1999 (Exhibit M-6). On March 23, 1999, corrections had to be made, as the notice of suspension of the air operator certificate and the notice of the manager's revocation were cancelled (Exhibit M-7), Guy Marcoux and the Appellant having quite likely met the requirements of Transport Canada, and Mr. Marcoux remained in his job.

Meanwhile, Transport Canada had requested a regulatory audit of the Appellant as early as March 1999, as a copy of the report (Exhibit M-10) was sent to Mr. Guy Marcoux. On May 14, 1999, Mr. Marcoux obtained a thirty-day (30-day) extension to respond to certain findings of the regulatory audit, and on May 21 the time requested was granted, extending the correction period to June 21, 1999. On July 28, 1999, it seems the expectations of Transport Canada had not yet been fully met.

On August 12, 1999, at 23:58 hours, an aircraft of the Appellant, a Beech Airliner 1900D B190 registered as C-FLIH, crashed at Sept-Îles causing the death of the pilot.

The very next day Transport Canada suspended the carrier's air operator certificate, and on August 18, 1999, the air operator certificate of Régionnair was reinstated and Mr. Guy Marcoux was replaced as manager.

THE LAW

The Appellant's air operator certificate was suspended pursuant to subsection 7.1(1) of the Aeronautics Act:

7.1 (1) Where the Minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(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

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

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.

The Minister argued that Régionnair was incompetent to conduct its operation safely and that the record showed that the operations manager was unable to conduct the operation safely, in contravention of paragraph 703.07(1)(f) (Subpart 3—Air Taxi Operations) of the Canadian Aviation Regulations (CARs) which stipulates as follows:

703.07 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to:

[...]

(f) conduct the operation safely.

(2) For the purposes of subsection (1), the applicant shall have

(a) a management organization capable of exercising operational control;

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

(i) operations manager,

(ii) chief pilot, and

(iii) where the applicant does not hold an approved maintenance organization (AMO) certificate, maintenance manager;

[...]

and paragraph 704.07(1)(f) (Subpart 4—Commuter Operations) of the CARs stipulates as follows:

704.07 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to:

[...]

(f) conduct the operation safely.

(2) For the purposes of subsection (1), the applicant shall have

(a) a management organization capable of exercising operational control;

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

(i) operations manager,

(ii) chief pilot, and

(iii) where the applicant does not hold an approved maintenance organization (AMO) certificate, maintenance manager;

[...]

Clause 724.07(2)(a)(i)(B) of the Commercial Air Service Standards (Aeroplanes) stipulates:

(2) Qualifications and Responsibilities of Operational Personnel

(a) Operations Manager

(i) Qualifications

(A) Hold or have held the appropriate licence and ratings for which a pilot-in-command is required to hold for one of the aeroplanes operated; or have acquired not less than 3 years related supervisory experience with an operator of a Commercial Air Service whose flight operations are similar in size and scope; and

(B) Demonstrate knowledge to the Minister with respect to the content of the operations manual, the air operator's certificate and operations specifications, the provision of the regulations and the standards necessary to carry out the duties and responsibilities to ensure safety.

(ii) Responsibilities

[...]

REPRESENTATIONS OF THE APPELLANT

Counsel for the Appellant argued twelve (12) points in his notice of appeal. However, his written argument presented to us covers all these points but in a different order, grouping them under five main headings and one final point analysing the causal link:

  1. the Saint-Augustin accident of January 4, 1999;
  2. a regulatory investigation following the Saint-Augustin accident;
  3. meeting of the witness Gosselin at Sept-Îles with all carriers from the region;
  4. regulatory audit;
  5. accident of August 12, 1999, at Sept-Îles;
  6. causal link between these various points.

The Appellant's representative, Mr. Desrosiers, analysed each of the first five headings in turn, pointing out that the review Member had erroneously seen these five headings as a kind of escalation leading to the suspension of August 1999.

A clear distinction must be made between the interpretation the Member may have given the facts and the conclusions she drew from the intrinsic value of each of these points in strict law.

The Appellant argued mainly that the accident of January 1999 at Saint-Augustin is still under investigation and that no conclusion could be inferred about it until the investigation board has submitted its findings. It also argued that the accident of August 12, 1999, in Sept-Îles, in which there was a fatality, could not be taken into account because the results of the investigation are not known. This is the main point, all the others in fact being only secondary. Must the Minister of Transport await the results of all the investigations before taking administrative measures if it considers air safety to be compromised? The Appellant answered in the affirmative, because of the importance of the outcome of these investigations.

Counsel argued that one cannot assert, as the Member did, that an escalation culminated in the events of the suspension of August 13, 1999; for there to be an escalation, there would have had to be similar, cumulative facts which were not put right in time. According to him, there is no proof that the accident at Saint-Augustin and the accident at Sept-Îles had the same cause, since the reports of the Minister of Transport have not been issued, nor any conclusions drawn. To conclude there was an accident because of poor management is not a logical conclusion and cannot serve as the basis for an intervention of the Minister of Transport. In his view, the notice of suspension of August 13, 1999, was the result of the Appellant's record; according to the witness, Gosselin (page 330),[1] the only prior event in question, to the witness' understanding, was the accident of January 4, 1999, at Saint-Augustin.

Counsel therefore concluded that the two accidents that occurred within seven months of each other were the determining factor of the Member's determination, even though the direct causes of them are not known.

Mr. Desrosiers discussed the accident of January 4, 1999 in his argument. According to the investigation and the submissions of the Minister of Transport's representative, the only finding known at the time of the hearing was that the accident was not mechanical in origin, nothing more.

In his view, the Member went beyond the evidence when she said it had been shown that the two accidents occurred in similar conditions and at night, which is completely untrue. Regarding the investigation following the accident at Saint-Augustin, counsel challenged the decision of the Member who, having sustained, at the hearing, the objection to the filing of Jules Bourgoin's statement, allowed the witness Gosselin to testify and draw on his statements. According to counsel, this was an error of law, as the Member's negative comments were based on Mr. Bourgoin's testimony (page 170 to 180), which was ruled inadmissible, as shown at page 6 of the determination. As for the meeting of the witness Gosselin at Sept-Îles with all the carriers in the region and the regulatory audit that followed, counsel argued that this was a routine and customary practice carried out by Transport Canada in respect of all aviation companies, and the fact that some breaches were found at the Appellant's operation cannot, in itself, constitute an aggravating factor unless coming on top of similar facts of which the Appellant has been found guilty or at fault. There are as yet no findings about the accident of January 1999, and it cannot be alleged that an error has been committed.

Counsel concurred with Mr. Dussault's statements that the decision to suspend the operator certificate was not based on the spring inspection and that those who made this decision did not really have this audit report in mind at the time of the said suspension.

Finally, with regard to the accident of August 12, 1999, at Sept-Îles, counsel argued that there was no causal relationship and that it could not be alleged that the accident in question was owing to the manager's incompetence. Perhaps this conclusion may one day be drawn once the report of Transport Canada has been filed, but not before then.

Counsel reviewed one by one all the circumstances of this accident and found fault with the Member in some regards. She disregarded the testimony of Serge Gagné, she assumed that the offences had been committed, that the weather conditions were unfavourable and that the accident proved that the Appellant was not at all concerned about aviation safety, encouraging its personnel to take risks, although the witness Gosselin expressed reasonable doubt about reaching such a conclusion.

Counsel summarized its argument as follows:

  1. The prior incident of the accident at Saint-Augustin scarcely moves us forward, given that the causes are still not known;
  2. The investigation of Jules Bourgoin, which consisted in gathering statements from certain witnesses, also does not move us forward, given that the content of these statements was deemed inadmissible, as was the fanciful summary the witness attempted to make of them;
  3. The meeting at Sept-Îles was more of a briefing session aimed at everyone and not at Régionnair in particular;
  4. The regulatory audit was consistent with a routine procedure, and unfavourable conclusions about Régionnair cannot be drawn from it;
  5. As for the accident at Sept-Îles, at the time of the suspension virtually nothing was known about the causes of the accident: there were only doubts, as Gosselin testified at page 351 in fine.

The last point raised by counsel concerns the causal link, and this point was the backdrop to all the elements of his argument as related in the preceding paragraphs.

Accidents happen without necessarily calling into question the qualifications of a manager, especially when the real causes of these accidents or incidents are not known.

Counsel was critical of the Member mainly for reaching the conclusion that "the manager's incompetence derives from a lack of time to perform his duties and a lack of organization" [translation], since this conclusion is based on absolutely nothing in the evidence and no witness testified to this effect.

Action was quickly taken in August 1999, since in order to conclude that the accident was related to the manager's poor administration there would have had to be a link between several facts, rather than a series of prior facts that were remedied and others about which Transport Canada investigators had drawn no conclusions at the time of the suspension. In his view, if, in August 1999, the investigators were unable to determine the cause of the January 1999 accident, the Member cannot presume conclusions of this report to justify maintaining the manager's suspension.

REPRESENTATIONS OF THE MINISTER

The opening remarks of the Minister's representative concerned the powers of the Civil Aviation Tribunal with respect to appeals, and especially the power of the Appeal Tribunal with respect to findings of fact or credibility. According to him, the Member's review determination was based on findings of fact, and as a rule these findings are not to be revised at the appeal level unless they are unreasonable or the Member's review determination is based on a complete lack of evidence. This argument is based on the importance to be attributed to preserving the integrity of the appeal process.

Also, in the decision Thomas Ritchie Phillips v. Minister of Transport,[2] the Tribunal mentions at page 4:

The hearings officer is in the best position to be able to determine which evidence on the record he prefers; which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. Unless the findings of the hearings officer are patently unreasonable and cannot be supported by the testimony - under oath - the Appeal Tribunal should be reluctant to substitute its findings. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance.

The representative rebutted the 12 grounds for appeal set out by the Appellant, which grounds were, let us recall, reduced to five by the Appellant's counsel.

Finally, the representative summarized which of the five events, in his view, caused Transport Canada to conclude that the Appellant was incompetent to conduct its operation safely.

  1. The first accident of January 4, 1999, for which we are still awaiting the report of the Transportation Safety Board of Canada (TSB). According to Yves Gosselin, this accident was not caused by a mechanical failure and the weather conditions that prevailed at the time of this accident were similar to those of the second accident. Also, both accidents occurred while landing about a half-mile before the runway. (p. 60)
  2. A regulatory investigation begun after the accident of January 4, 1999, and undertaken by Inspector Jules Bourgoin. This investigation revealed to Yves Gosselin that a certain climate prevailed in the company and that practices that did not comply with the regulations had been established, mainly regarding weather minima for take-off and landing. (p. 20)
  3. A meeting of February 23, 1999, between Transport Canada and representatives of the Appellant, including Guy Marcoux. At this meeting, the Appellant showed aggressiveness from the standpoint of competitiveness and little interest in complying with the regulations. (p. 368)
  4. A regulatory audit report in which several instances of non-compliance were mentioned.
  5. The second accident of August 12, 1999, when the ceiling was very low and the Appellant was the only air carrier attempting to land in Sept-Îles (Exhibits M-13, M-14).

ANALYSIS OF THE REPRESENTATIONS OF THE PARTIES

It is always an extremely delicate matter whether to cross the boundary of analysis of the facts and the quality of the evidence given before the Member.

Obviously, if each element of proof is reviewed individually, it is possible to conclude that the Member may have given more consideration to one element than to another, that she may have accepted an element of evidence and attributed it importance that another Member would have analysed and weighed differently, that she may not have mentioned taking testimony into account, that she may have seen an escalation in the events that unfolded over a seven-month period, that she may even have spoken of "similar conditions" when describing the weather situation of the two accidents, that she may have stated that both accidents occurred at night, and so on.

What is important to consider is whether each element, in and of itself, warrants qualifying the determination handed down by the Member as "unreasonable." It is also possible that another Member would have reached a different conclusion; that is not the issue. Given the evidence before her, on the whole, did the Member reach an unreasonable conclusion, in view of all the circumstances? Our answer is in the negative.

This is a dilemma the Appeal Tribunal very often faces, and out of respect for the judicial process it is important to have some reserve and to respect the Member's discretion and his or her jurisdiction regarding analysis of the evidence.

While the points raised by Mr. Charles-Henri Desrosiers are very important and, on their own, taken out of context, might warrant certain questions, the Tribunal cannot conclude that, after analysing all the evidence and the Minister's safety considerations, it would not reasonably have found that the Minister's decision was warranted in the circumstances.

The Tribunal does not need to review in detail each point to determine whether it is consistent with the evidence, but it must satisfy itself that the decision based on the evidence as presented and related very extensively, can reasonably lead to the Member's conclusion.

This does not necessarily concern an escalation, but two accidents in seven months, the administrative inspection, admittedly routine and periodic, of all carriers, a non-observance of the finding of the regular inspection, one and even two time extensions to allow the Appellant to comply, may reasonably have prompted the Member to deduce that these delays and this reluctance to comply were the result of either negligence or an inadequate organization or even a manager unable to handle the situation. It is not Guy Marcoux's past experience that is in question, but his competence in the situation in the spring and summer of 1999. The Appellant's counsel stressed, moreover, Mr. Marcoux's unblemished past; he added that the carrier is expanding normally and holds a good share of the regional market. The organization and the administration may not have had the necessary follow-up and have created some weaknesses that the Minister and the Member consider a risk to safety.

The representatives of both parties presented clear arguments, but when all is said and done, it is a question of jurisdiction vis-à-vis the evidence.

CONCLUSION

The appeal is dismissed. The appeal panel confirms the suspension imposed by the Minister of Transport.

Reasons for the Appeal Determination:

Mr. Michel Boulianne, Member

Concurred:

Ms. Faye Smith, Chairperson
Dr. Michel Larose, Member


[1] Transcript of the review hearing.

[2] File No. C-0014-33, January 26, 1987 (Appeal) – TAB 2.