Decisions

CAT File No. Q-1901-37
MoT File No. NAP 5504 C2733-32817

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Air Satellite Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 5.9, 7.7, 8.5
Canadian Aviation Regulations, SOR/96-433, s. 605.33(2)(c)

Defences, Due diligence, Cockpit voice recorder, Air operator


Review Determination
Caroline Desbiens


Decision: March 27, 2000

TRANSLATION

I find that the Applicant has proven the material element of the offence stipulated in paragraph 605.33(2)(c) of the Canadian Aviation Regulations on the balance of probabilities. I find, however, that the Respondent Air Satellite Inc. has proven, on the balance of probabilities, that it exercised all due diligence to comply with the said regulations. The Notice of Assessment of Monetary Penalty of the Minister of Transport is therefore cancelled.

A review hearing on the above matter was held January 11, 2000, at 14:30 hours at the Municipal Court in Baie-Comeau, Québec. This review hearing continued February 22, 2000, at 9:00 hours in room 1.13 of the Court House in Baie-Comeau, Québec.

BACKGROUND

The Respondent Air Satellite Inc. is a Canadian air operator and holds an air operator certificate issued by the Minister under Part VII of the Canadian Aviation Regulations (hereinafter "CARs") for the commuter category (Subpart 4). The main base of this operator is located at Baie-Comeau.

The Respondent was alleged to have operated an Embraer 110 aeroplane registered under the Canadian call letters C-FEAS on a commercial air service, between August 17, 1998 and August 31, 1998, while this aircraft was not equipped with a cockpit voice recorder, in contravention of paragraph 605.33(2)(c) of the CARs.

Accordingly, the Minister of Transport sent the Respondent a Notice of Assessment of Monetary Penalty which reads in part as follows:

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 paragraph 605.33(2)(c) of the Canadian Aviation Regulations.

As the registered owner, Air Satellite Inc. operated, between August 17, 1998 and August 31, 1998, on a commercial air service under Subpart 4 of Part VII of the Canadian Aviation Regulations, an Embraer 110 aeroplane (Bandeirante), a multi-engined turbine-powered aircraft that has a passenger seating configuration, excluding any pilot seats, of six or more, registered as C-FEAS, whose maximum certificated take-off weight is 12,493 pounds (5 667 kg), that was not equipped with a cockpit voice recorder, in contravention of paragraph 605.33(2)(c) of the CARs.

This Notice of Assessment of Monetary Penalty specified a penalty of $2,500 to be paid on or before September 22, 1999.

As the penalty was not paid within the prescribed time, a review hearing before the Tribunal was held at the above-noted dates and places.

THE EVIDENCE

It is acknowledged that between August 17, 1998 and August 31, 1998, the Respondent Air Satellite Inc. conducted several flights, about forty, with the Embraer 110 aircraft registered under the call letters C-FEAS, which it owned at that time, although this aircraft was not equipped with a functional cockpit voice recorder.

It is further acknowledged that this aircraft has a passenger seating configuration, excluding any pilot seats, of six or more and that its maximum certificated take-off weight is 12,493 pounds. Finally, it is acknowledged that the Respondent operates a commercial air service under Subpart 4 of Part VII of the CARs, namely, an air service in the commuter category requiring two pilots for the aircraft referred to in the notice of monetary penalty.

The Respondent does not dispute the material element of the offence, but does dispute the application of paragraph 605.33(2)(c) because it allegedly exercised all due diligence to comply with this requirement and equip its aircraft with a voice recorder prior to the flights conducted between August 17, 1998 and August 31, 1998. Moreover, it believed that the Minister of Transport would grant it a further exemption from the application of paragraph 605.33(2)(c) of the CARs in the form of "tolerance" until the Respondent had the said voice recorder installed in its aircraft as soon as this became possible, given the shortage of parts and labour to complete the installation of this type of equipment at that time.

The requirement of installing a cockpit voice recorder on this type of aircraft was incorporated into the new CARs on October 10, 1996, specifically subsection 605.33(2). As this requirement did not exist before the adoption of the CARs and entailed the investment of large sums by small carriers, the Respondent indicated that a number of discussions were held between Transport Canada and various carriers' committees or associations to which it belonged. There was, in fact, talk of repealing this requirement or granting exemptions from its application to enable small carriers to come into compliance gradually, without financially jeopardizing their operation.

These discussions, which took place between the Minister of Transport (specifically Transport Canada, Québec Region, Civil Aviation) and a number of carriers, began before the said regulation was enacted and extended over a period of several months, even several years, until August 1, 1998. Owing to the various discussions and means of pressure exerted by the carriers regarding this new requirement, the Department of Transport did in fact grant exemptions from the application of the requirements of subsection 605.33(2) of the CARs until August 1, 1998.

Specifically, the Department of Transport granted the Respondent an exemption from the requirement to install a voice recorder on its Embraer 110 registered as C-FEAS on December 13, 1996 (Exhibit M-6) following a written request from the Respondent on November 7, 1996 (letter M-5). This first specific exemption was valid until whichever of the following occurred first:

  • August 1, 1997;
  • the date for changing the aircraft's registration.

Generally, the Department of Transport also granted all carriers affected by section 605.33 of the CARs the same exemption until August 1, 1998. This exemption was granted in the form of a publication of the Department of Transport (Exhibit M-9) dated March 14, 1997, in part to allow the execution of a take-off on board a multi-engined turbine-powered aircraft, under Subpart 4 of Part VII, that has a passenger seating configuration, excluding any pilot seats, of six or more, and for which two pilots are required by the type of certificate of the aircraft or the Subpart under which the aircraft is operated. According to the witness, Mr. Jean-Denis Haran of Transport Canada, this exemption also applied to the aircraft of the Respondent Air Satellite Inc., namely, the Embraer 110 registered as C-FEAS.

This exemption was in effect until whichever of the following occurred first:

  1. the date of the written cancellation of this exemption by the Minister;
  2. July 31, 1998.

The Respondent indicated that following the issuance of this general exemption on March 14, 1997, the talks or negotiations continued between the Civil Aviation Division of Transport Canada for the Québec Region (specifically, Mr. Marcel Devost and Mr. Bernard Henry of Transport Canada) and various air carrier groups or associations to which it still belonged.

The purpose of these talks or negotiations was always to repeal this requirement that carriers like Air Satellite Inc. operating this type of aircraft install a cockpit voice recorder, or to extend the exemption from this requirement in view of the considerable costs of installing such equipment. No witness for Transport Canada who took part in these talks with the Respondent came to testify at the hearing.

Because the negotiations were still going on, the only action the Respondent took between March 14, 1997 and mid-June 1998 was to find out who supplied this type of equipment and the cost of purchasing and installing the voice recorder. According to the Respondent, the cost came to about $50,000.

Toward the end of June 1998, the Respondent took steps to obtain two different bids for the installation of a voice recorder in its aircraft.

Thus, the Respondent obtained two different bids for the purchase and installation of a voice recorder: one bid from the company Centre de maintenance et de technologie aéronautique (hereinafter "CMTA"), a subsidiary or company connected with Air Alma Inc., and another from the company Dynamair Inc. to the same effect. The Respondent filed these bids in evidence as Exhibits D-1 and D-2. The bid of Dynamair Inc. is dated June 24, 1998 and indicates that if its offer were accepted before July 8, the work would extend over a period of three weeks beginning July 28, 1998.

As for the other bidder, it appears from CMTA's letter to the Respondent (Exhibit D-3) that work to install a voice recorder on the Embraer aircraft C-FEAS could not begin until August 19, 1998, and that it was estimated the installation would take about seven days. As CMTA's bid was for about half the amount of the bid of Dynamair Inc., the Respondent accepted CMTA's proposal.

The evidence therefore shows that neither of these two bidders could install the voice recorder before the exemption expired on July 31, 1998. These facts were corroborated by Inspector Réjean Leblanc who also indicated that at the time, several carriers (four or five) were faced with the same problem as the Respondent because of a shortage of parts and labour to install this type of equipment. In fact, the Respondent attributed this shortage of parts and labour to the fact that most of the carriers affected by the requirement of paragraph 605.33(2)(c) of the CARs had waited until the end of the time period to comply with this requirement in view of the negotiations that were still going on with Transport Canada.

To avoid further delays in ordering the parts needed to install the voice recorder, the Respondent even sent a cheque to CMTA in the amount of US$10,177.50 on about July 2, 1998, to cover the cost of the parts.

After receiving CMTA's letter informing it that work to install a voice recorder could not begin until August 19, 1998, the Respondent, on July 15, 1998, also sent Transport Canada a request for a further exemption until August 20, 1998, so it could go ahead and have this equipment installed on its aircraft (letter M-7). The Respondent enclosed with this letter a copy of CMTA's letter (Exhibit D-3) confirming that work to install a voice recorder could not begin before August 19, 1998, and would take about seven days. The Respondent also enclosed a copy of the cheque dated July 2, 1998, sent to Air Alma Inc. in the amount of US$10,177.50 to cover the cost of parts.

On July 20, 1998, the Applicant refused to extend the deadline of August 1, 1998, for installation of a voice recorder on the Respondent's aircraft. In his letter of July 20 (Exhibit M-8), Mr. Marcel Devost of Transport Canada explained that the Minister had to date received a number of requests for an exemption from section 605.33 of the CARs, and that further to these requests the deadline had already been extended by a year, i.e., to August 1, 1998. Transport Canada explained that the deadline for all carriers would remain August 1, 1998.

Following the Applicant's refusal to extend the Respondent's exemption, the latter contacted Inspector Réjean Leblanc of Transport Canada to find out what else it might do to obtain an extension of the exemption until CMTA could install the voice recorder.

President Edith Fournier and Mr. Daniel Lavallée, the Respondent's director of maintenance, indicated that the inspector suggested they begin the installation of this equipment before July 31, 1998, i.e., the electrical wiring, which could be installed by their mechanic, and have the voice recorder installed as soon as CMTA was available, to demonstrate their good faith. According to Ms. Fournier and her director of maintenance, they were allegedly given to understand by Mr. Réjean Leblanc that in so doing, it would be difficult to dispute their good faith and the Department of Transport would have no alternative but to grant a further exemption or tolerate the situation, given the physical impossibility of meeting the deadline of July 31, 1998, despite the Respondent's efforts to do so. The Respondent has acknowledged that Mr. Leblanc had no authority to extend the exemption.

Inspector Leblanc, for his part, indicated that he had always been under the impression the Department of Transport would extend the exemption again since it had already granted two extensions of about one year each and several carriers could not meet the deadline of July 31, 1998, because of the shortage of parts or labour.

In fact, even after the letter of July 20, 1998, from Transport Canada (M-8), and until the end of the deadline of July 31, 1998, Mr. Leblanc was under the impression that the considerable pressure brought to bear by the carriers on Transport Canada combined with the shortage of parts and labour for the voice recorder would prompt the Applicant to grant a further exemption or tolerate the situation.

In short, while he stressed that he never directly indicated to the Respondent that it could go against the directive of the Department of Transport allowing until July 31, 1998, he was under the impression that the Department of Transport would tolerate a further period of about 15 days to enable the Respondent to have the voice recorder installed on its aircraft, in view of its good faith and the efforts it had made to do so. Mr. Leblanc indicted that he never granted the Respondent such an extension since he did not have the authority to do so, and that the letter of refusal (M-8) was explicit. Mr. Leblanc did, however, confirm having indicated to the Respondent that its good faith and the steps taken to install a voice recorder might enable it to obtain an extension of the deadline or tolerance on the part of the Department.

Inspector Leblanc also confirmed the many discussions that took place between the Department of Transport and the carriers since the adoption of the new requirement, aimed at repealing this requirement or granting periods of exemption. He also confirmed that toward the end of the exemption period these negotiations did not appear to be concluded.

It should be noted that on August 4, 1998, that is, three days after the end of the exemption, Inspector Réjean Leblanc conducted flight tests on the Respondent's aircraft registered as C-FEAS, and following these tests he confirmed that all the equipment necessary for the flight tests was functional. In his check report (Ramp Check, Exhibit M-11), Mr. Leblanc did not mention the absence of the voice recorder, and indicated at the hearing that he had received no directive from the Department of Transport about checking whether the voice recorder was actually installed on August 4, 1998.

Furthermore, Mr. Leblanc indicated that in the week leading up to July 31, 1998, he attended a meeting of various Transport Canada representatives to determine how the inspectors should enforce the regulation requiring the installation of a voice recorder. At that meeting, no decision or concrete directive was adopted in this regard, although at the time the Department seemed to maintain its position that starting August 1, 1998, no exemptions would be granted.

Finally, the evidence shows that the Respondent could not have its voice recorder installed until September 1, 1998, because CMTA had to complete the installation of similar equipment for the company Aviation Québec Labrador Inc.

THE LAW

Section 7.7 of the Aeronautics Act stipulates as follows:

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).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Paragraph 605.33(2)(c) stipulates as follows:

(2) Subject to section 605.34, no person shall conduct a take-off in any of the following aircraft unless the aircraft is equipped with a cockpit voice recorder that meets the Aircraft Equipment and Maintenance Standards:

[...]

(c) after July 31, 1997 or, for an aircraft operated under Part VII, after February 28, 1997, any other multi-engined turbine-powered aircraft that has a passenger seating configuration, excluding any pilot seats, of six or more, and for which two pilots are required by the type of certificate of the aircraft or the Subpart under which the aircraft is operated.

Section 5.9 of the Aeronautics Act stipulates as follows:

5.9 (1) The Governor in Council may make regulations exempting, on such terms and conditions as may be specified in the regulations, any person, aircraft, aerodrome, facility or service from the application of any regulation or order made under this Part.

(2) The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person, aircraft, aerodrome, facility or service from the application of any regulation or order made under this Part if in the opinion of the Minister the exemption is in the public interest and is not likely to affect aviation safety.

Finally, section 8.5 of the Aeronautics Act stipulates as follows:

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.

ARGUMENTS

Applicant

The Applicant argued that all the material elements of the offence have been proven in view of the Respondent's admissions concerning the facts. We agree with this argument.

The Applicant further argued that the Respondent contravened subsection 605.33(2) of the CARs because it did not exercise all due diligence to comply with it.

According to the Applicant, the Respondent had known since March 14, 1997, that the general exemption from the application of section 605.33 of the CARs concerning the installation of a cockpit voice recorder expired July 31, 1998. The Minister alleged that the Respondent did not take concrete steps to obtain bids for the installation of a voice recorder at that time. In short, the Minister alleged that the Respondent waited until mid-June 1998 to obtain bids, even though it had known, since March 14, 1997, when the period would end. In so doing, the Respondent did not take all necessary steps to comply with the regulations to have this equipment installed.

The Applicant also added that the Minister of Transport never granted the Respondent a further exemption from the application of subsection 605.33(2) of the CARs beyond July 31, 1998, and that the Respondent was clearly aware of the Department's position since July 20, 1998. According to the Applicant, the letter from Mr. Marcel Devost of Transport Canada dated July 20, 1998, clearly explained that the Department would maintain the deadline for all carriers affected by section 605.33 of the CARs.

The Applicant also argued that Inspector Leblanc never granted the Respondent a further exemption, as he indicated in his testimony, and that he did not have the authority to do so. According to the Department, Inspector Leblanc clearly mentioned at the hearing that he had not indicated to the Respondent that it could go against the regulations after August 1, 1998. The Respondent also knew that Inspector Leblanc did not have the authority to change these regulations.

Regarding the sanction, the Applicant recommended payment of the amount of $2,500. The Applicant argued that it was justified in seeking the maximum penalty, i.e., $2,500, provided for each offence under paragraph 605.33(2)(c) of the CARs since the Respondent conducted 40 flights during the period in question, namely, the period when it should have had a functional cockpit voice recorder on its aircraft. Moreover, while the minimum amount recommended is $500 for each offence, the Department could have considered each flight to be a separate offence and assessed a penalty of $20,000 against the Respondent, rather than the lump sum of $2,500. The assessed amount of $2,500 is therefore more than reasonable in the circumstances.

Respondent

The Respondent invoked section 8.5 of the Aeronautics Act and argued that it exercised all due diligence to comply with the requirement of paragraph 605.33(2)(c) of the CARs, given the circumstances.

It argued, specifically, that from the time the requirement to install a cockpit voice recorder, namely, paragraph 605.33(2)(c) of the CARs, was adopted, until July 31, 1998, discussions and meetings took place with representatives of the Department of Transport about repealing this requirement or granting exemptions, in view of the considerable cost to small carriers of installing such equipment.

In addition, the voice recorder is equipment that does not affect the safety of flights or passengers. Rather, it is equipment designed to assist the Transportation Safety Board in its investigations of aviation accidents and thus promote or improve passenger safety following such accidents.

The Respondent acknowledges that the only action it took before mid-June 1998 was to find out who supplies such equipment and what it costs. However, no other concrete steps were taken before mid-June 1998 because the Respondent and several other carriers and carrier associations were still in talks with the Department of Transport about the repeal of this regulation.

The Respondent explained that the time period for taking concrete action to proceed with the installation of the equipment fell within a particular context in which the repeal of the regulation was a possibility and in which the Department had already granted two exemptions from the application of this requirement to install a voice recorder, for two periods of approximately one year.

The Respondent further argued that it took all necessary steps to comply with the regulation by obtaining two separate bids about 1½ months before the end of the second exemption and that, despite its efforts, the deadline for installing a voice recorder, i.e., July 31, 1998, could not be met by either company. The Respondent further added that it exercised due diligence in attempting to obtain a further exemption from Transport Canada when it was informed that the bidder CMTA would be unable to install the voice recorder before August 31, 1998. Although Transport Canada refused to extend the said period of exemption from the application of section 605.33 of the CARs, the Respondent argued that it had no alternative but to have its voice recorder installed after August 31, 1998, that is, a month after the expiry of the deadline granted by the Department of Transport. In fact, on checking, the Respondent found that there was a shortage of parts and labour to install this equipment.

The Respondent added that it exercised due diligence in sending a cheque in the amount of US$10,177.50 on July 2, 1998, to cover the cost of parts for the voice recorder, in order to avoid further delays.

Besides the due diligence it claimed to have exercised to comply with paragraph 605.33(2)(c) of the CARs, the Respondent argued that it believed the flights conducted with its aircraft between August 17 and August 31, 1998, without this aircraft being equipped with a functional cockpit voice recorder, would be tolerated by the Applicant in view of the representations of Inspector Leblanc of Sept-Îles in this regard.

The Respondent argued, specifically, that Inspector Leblanc acknowledged that he too thought the Department of Transport would be tolerant in view of the Respondent's good faith, its efforts to begin installation of a voice recorder before expiry of the deadline (electrical wiring), and the concrete steps taken to set aside a date to have this equipment installed before the deadline expired.

The Respondent added that Inspector Leblanc's visit of August 4, 1998 at the time of the flight tests confirmed the Department's tolerance regarding the impossibility of installing a voice recorder before July 31, 1998. In fact, Inspector Leblanc made no mention of the absence of a functional cockpit voice recorder in his check report. The Respondent submitted that if the Department of Transport had a mandate not to tolerate any exemption from section 605.33 of the CARs after August 1, 1998, it should have instructed Inspector Leblanc to ground the aircraft in question, or the inspector should have done so himself. As Inspector Leblanc did no such thing, the Respondent believed in good faith that the Department of Transport would tolerate its continuing to conduct flights with its aircraft without a voice recorder installed on that aircraft.

CONCLUSION

I agree with the Respondent's arguments and find that the Respondent has shown it took all necessary steps to comply with paragraph 605.33(2)(c) of the CARs, i.e., to install a cockpit voice recorder in its aircraft before the flights in question.

Paragraph 605.33(2)(c) of the CARs is a strict liability offence as defined by the Supreme Court of Canada in the case R. v. Sault Ste. Marie, [1]and the defendant is at liberty to prove that it took all necessary precautions to avoid the alleged event. The Respondent must only establish this defence of due diligence on a balance of probabilities.

Section 8.5 of the Aeronautics Act is a legislative provision that echoes the defence of due diligence set out in the Sault Ste. Marie decision. Based on the ruling in R. v. Gonder, [2] this Tribunal has already found (see Canadian Regional Airlines (1998) Ltd. v. Minister of Transport)3] that in order to assess the due diligence applicable, it is necessary to examine the general standard of reasonable care in the sphere of activity in question as well as the particular circumstances of the case that are apt to require a standard of care other than what is usual. As Stuart J. discussed in the Gonder decision, the element of proof concerning standard practice is just one of the important elements of this criterion. The ultimate test is the degree of due diligence required in the circumstances of each case.

According to this decision, the degree of care warranted in each case is principally governed by the following circumstances:

  1. gravity of potential harm;
  2. alternatives available to the accused;
  3. the likelihood of harm;
  4. degree of knowledge or skill expected of the accused;
  5. extent underlying causes of the offence are beyond the control of the accused (p. 332 of the Gonder decision).

In short, the requirement to take all necessary steps to comply with the regulations and install a voice recorder before conducting the flights in August 1998 must be assessed in light of the mitigating circumstances of the case.

The evidence has clearly shown that the requirement to install a cockpit voice recorder fell within a context in which, from the time the regulation came into force until the expiry of the last extension, the requirement might be repealed and a context in which, since coming into force, there had been an exemption from that regulation. This evidence has not been disputed by the Applicant. On the contrary, Inspector Leblanc confirmed the testimony of the Respondent's representatives that many discussions had taken place and were still going on between Transport Canada and several carriers or carriers' associations until July 31, 1998, that there was still hope that a further period of exemption would be granted or that this regulation would be repealed given the shortage of parts and labour and the significant cost to install this equipment. Mr. Leblanc also confirmed that the Respondent was not the only carrier faced with being unable to install a recorder by the end of the deadline, i.e., July 31, 1998.

The evidence also shows that the Respondent was not the only carrier to wait several months before taking concrete steps to install a voice recorder on its aircraft in view of the negotiations going on between the carriers and Transport Canada. The general standard of reasonable care in this case was to wait before installing the equipment, in view of the possibility that the regulation would be repealed. The Respondent therefore cannot be blamed for not taking concrete steps to obtain bids as early as March 14, 1997, or for waiting until mid-June 1998 to take these steps, given the circumstances.

In considering the degree of diligence required of the Respondent in this case, one must also take into account the fact that the lack of a cockpit voice recorder on the aircraft did not jeopardize the immediate safety of the passengers during the flights conducted by the Respondent in August 1998. The passengers were at no risk of harm during these flights because of the lack of a voice recorder.

Also to be considered is the fact that the Respondent could not meet the deadline of July 31, 1998, to install a voice recorder on its aircraft because of circumstances beyond its control. A month and a half before the end of the exemption, the Respondent nevertheless took steps to obtain two separate bids and neither bidder could install the equipment before the end of the exemption granted by Transport Canada. The Respondent exercised due diligence in:

  1. quickly retaining the services of CMTA to install a voice recorder after receiving the bids;
  2. sending CMTA a cheque on July 2, 1998, to cover the cost of parts, in order to avoid any further delay and confirm its order;
  3. writing to Transport Canada to explain the problem and attempt to have the exemption extended.

Finally, in assessing the Respondent's due diligence, it is necessary to take into account the fact that the Respondent sincerely believed the Applicant would tolerate the absence of the cockpit voice recorder on its aircraft since the Department's inspector for this region believed this as well.

Specifically, Mr. Leblanc clearly indicated that despite Transport Canada's letter of July 20, 1998 to the Respondent confirming that it would maintain the deadline of August 1, 1998, he still believed that the Department of Transport would grant a further exemption or tolerate the situation in view of the Respondent's good faith and the fact that other carriers were faced with the same problem as the Respondent. While Mr. Leblanc did not directly indicate to the Respondent that it could go against the regulations, in my opinion his optimistic behaviour and his recommendations to begin the wiring for the installation of the voice recorder before July 31, 1998, and to have the equipment installed as soon as CMTA was available to do so, led the Respondent to believe that the Department of Transport would tolerate the lack of this equipment on its aircraft, since these actions would demonstrate its good faith.

Moreover, the report of the flight tests of August 4, 1998, makes no reference to the lack of this equipment and could be construed as a certain tolerance in this regard, especially since the Respondent was not prohibited from flying its aircraft at the time, i.e., at the time the requirement of paragraph 605.33(2)(c) was in force.

It is therefore because of this impression of tolerance and of the impossibility of having its equipment installed before the end of the exemption that the Respondent conducted the flights in question in August 1998.

In any event, regardless of the behaviour or the recommendations that Inspector Leblanc might have made to the Respondent; in my opinion, the Respondent had already taken all necessary steps to comply with the regulations, in view of the mitigating circumstances set out above.

The Notice of Assessment of Monetary Penalty of the Department of Transport dated August 17, 1999, is therefore cancelled.

Caroline Desbiens
Member
Civil Aviation Tribunal


[1] [1978] 2 S.C.R. 1299.

[2] (1981) 62 C.C.C. (2d) 326.

[3] (1993) CAT File No. C-0225-50 and (1998) CAT File No. W-1536-50.