Decisions

CAT File No. Q-1950-02
MoT File No. NAP-5504-040059

CIVIL AVIATION TRIBUNAL

BETWEEN:

Jean-françois Roch, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, ss. 602.01, 602.11

Wording of the Notice, Preliminary Motion, Negligent or Reckless Operation of an Aircraft, Ice on Critical Surfaces of an Aircraft, Motion to Quash, De-Icing


Review Determination
Suzanne Racine


Decision: May 9, 2003

TRANSLATION

I grant the preliminary motion to rule inadmissible the Notice of Suspension of Mr. Roch's commercial pilot licence, as the Minister's allegation, as worded, is not well founded in law.

A review hearing on the above matter was held May 5 and 6, 2003, at the Guy-Favreau Complex in Montréal, Québec.

MOTION TO QUASH THE NOTICE OF SUSPENSION

The Applicant's representative filed a motion to quash the Notice of Suspension of the commercial pilot licence of Jean-François Roch dated December 1, 1999, for a contravention of section 602.01 of the Canadian Aviation Regulations (CARs).

Section 602.01 of the CARs stipulates that no person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

The Minister in fact proceeded against Mr. Roch pursuant to 602.01 of the CARs for having conducted, on December 7, 1998, at about 11:09 hours local time, when he was pilot-in-command of the aircraft registered as C-FCVK, a take-off in a reckless manner from Baie-Comeau airport. The Minister explained more fully the alleged contravention by adding to the wording in its Notice of Suspension the reason for alleging that Mr. Roch, in the Minister's view, operated the aircraft in a reckless manner. The explanation reads as follows:

[...] in fact this aircraft was not de-iced before take-off, when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft. [our italics]

On reading the wording of the allegation, as drafted by the Minister, we learn that Mr. Roch's reckless conduct is linked, firstly, to the fact that he operated the aircraft without having first de-iced it before take-off.

Subsection 602.11(2) of the CARs stipulates that no person shall conduct or attempt to conduct a take-off in an aircraft that has frost, ice or snow adhering to any of its critical surfaces. It is therefore essential to de-ice before conducting a take-off or attempting to conduct a take-off if frost, ice or snow is actually adhering to any of the critical surfaces.

In the case before us, the Minister is not alleging that Mr. Roch conducted a take-off when frost, ice or snow was actually adhering to any of the critical surfaces of the aircraft. Rather, it is alleging that he was reckless in conducting a take-off without having de-iced the aircraft when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft.

In short, the wording of the Minister's Notice of Suspension takes up precisely the wording of subsection 602.11(4) of the CARs. This section concerns aircraft icing, and states as follows:

(4) Where conditions are such that frost, ice or snow may reasonably be expected to adhere to the aircraft, no person shall conduct or attempt to conduct a take-off in an aircraft... [our italics]

Subsection 602.11(4), however, is not so restrictive, as it permits a take-off if the aircraft has been inspected immediately prior to take-off. The section actually prohibits a take-off unless the aircraft has been inspected immediately prior to take-off to determine whether any frost, ice or snow is adhering to any of its critical surfaces.

In fact, subparagraph 602.11(4)(a)(i) of the CARs states that an inspection of the aircraft performed by one of the persons referred to in subsection 602.11(5) of the CARs may reveal whether in fact, in conditions that are such that frost, ice or snow may reasonably be expected to adhere to the aircraft, frost, ice or snow is adhering to the critical surfaces of the aircraft.

If the inspection prior to take-off reveals that none of these substances is adhering to the critical surfaces of the aircraft, even if it was reasonable to expect that they would, given the conditions existing at the time, the pilot may take off and his conduct will not be qualified as reckless.

If, however, the inspection prior to take-off reveals that frost, ice or snow is in fact adhering to the aircraft, the pilot is prohibited from conducting a take-off or attempting to do so without de-icing the surfaces. In these circumstances, a pilot who would decide to take off without de-icing would be negligent.

The duty to inspect the aircraft prior to take-off therefore becomes decisive, as it will determine whether or not a take-off can be conducted when the conditions are such that the risk of frost, ice or snow adhering to the aircraft may reasonably be expected.

In the case before us, the Minister alleges that Mr. Roch failed to de-ice the aircraft before take-off when it was reasonable to believe such a risk existed. Although the likelihood of frost, ice or snow adhering to the aircraft is high in the right conditions, the fact nevertheless remains that there is a possibility, though slight, that an inspection will reveal that none is present prior to take-off.

Reckless conduct lies much more in the fact of failing to inspect the aircraft prior to take-off where the conditions are highly favourable to the formation of frost, ice or snow, than in failing to de-ice the aircraft.

One cannot be required to de-ice if, above all, there is no frost, ice or snow adhering to the aircraft.

Failure to de-ice the aircraft before take-off is in itself reckless or negligent only if an inspection revealed the presence of frost, ice or snow adhering to the aircraft and the pilot conducted the take-off despite that fact.

In drafting the allegation in the Notice of Suspension, the Minister did not consider the possibility that the pilot may have performed an inspection prior to take-off when frost, ice or snow may reasonably be expected to adhere to the aircraft, and that this inspection may have determined that de-icing was not necessary.

I am therefore of the view that the Minister cannot proceed against Mr. Roch on the basis of the wording of the Notice of Suspension as drafted.

I grant the preliminary motion to rule inadmissible the Notice of Suspension of Mr. Roch's commercial pilot licence, as the Minister's allegation, as worded, is not well founded in law.

This being so, it becomes unnecessary for me to rule on the Applicant's second preliminary motion on the notion of res judicata in a previous determination of the Tribunal rendered by Ms. Soucy on June 21, 2002, in Minister of Transport v. Air Satellite Inc.[1]

Suzanne Racine
Member
Civil Aviation Tribunal


[1] CAT File No. Q-1955-37.


Appeal decision
Faye H. Smith, Michel G. Boulianne, Pierre J. Beauchamp


Decision: February 3, 2004

We refer the matter back to the Review Member to conduct a review hearing in accordance with subsection 6.9(7) of the Aeronautics Act.

An appeal hearing in the above matter was held Friday, October 31, 2003 at 10:00 hours, at the Court House in Montréal, Québec.

NOTICE OF SUSPENSION

Mr. Jean‑Francois Roch was served with a Notice of Suspension dated December 1, 1999 by the Minister of Transport which reads as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened: section 602.01 of the Canadian Aviation Regulations

On December 7, 1998, at about 11:09 hours local time, while acting as pilot‑in‑command of aircraft registered as C‑FCVK, you took off in a reckless manner from Baie‑Comeau, Québec airport: indeed this aircraft was not de‑iced before take‑off, when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft.

PRELIMINARY MOTION AT REVIEW

Following delays, the reasons for which are not pertinent to the issues which we must resolve, a review hearing was held at Montréal, Québec on May 5 and 6, 2003. At that time, the Applicant=s representative filed a request to quash the Notice of Suspension of the commercial pilot licence of Mr. Jean‑Francois Roch.

After hearing the arguments of the parties, the Tribunal Member granted the preliminary request to rule inadmissible the Notice of Suspension of the commercial pilot licence of Mr. Roch on the basis that the Minister=s allegation as worded was not well founded in law.

GROUNDS OF APPEAL

The Minister=s representative appealed the determination rendered by the Tribunal Member on the following grounds:

1. The Member erred in law in granting the Respondent=s motion to dismiss the charge alleged pursuant to Canadian Aviation Regulation section 602.01;

2. The Member erred in law in dismissing the above charge without hearing the evidence on the matter;

3. The member erred in law in finding that it was necessary to include in the charge the allegation that an inspection had not been done. This requirement obliges the Minister to cite in the charge that a defence does not exist

PRELIMINARY MOTION AT APPEAL

At the commencement of the appeal hearing, a further motion was made by counsel for the Respondent and written submissions were made on the matter subsequent to the appeal hearing. The motion was as follows: that as the Tribunal Member gave her decision verbally on May 6, 2003, the ten‑day appeal period started to run from that date and thus the appeal request was filed too late as it was filed on May 22, 2003. There was an additional argument by Respondent=s counsel that the Notice of Appeal itself stated that the determination had been received Aon or about@ May 12 and that the Notice of Appeal was filed on May 22, 2003. He stated that the words Aon or about@ were too imprecise that if the document was received prior to May 12, then the 10 days had run and hence the appeal was out of time.

The Minister=s representative by way of response interprets subsection 37(6) of the Aeronautics Act to mean that the Tribunal is not obliged to render its decisions in writing. She further relies upon subsection 33(3) of the Aeronautics Act which indicates that the Tribunal may make rules governing its activities and is master of its own procedure. She therefore pleads that the Tribunal may grant an extension of time to the Minister to file its appeal given that verbal service is good service and no prejudice results from the delay.

The Respondent=s counsel is content with the interpretation of the Minister=s representative but disagrees that the Tribunal has any power to extend the time for filing of the appeal.

LEGISLATION

Subsection 6.9(8) of the Aeronautics Act:

(8) On a review under this section of a decision of the Minister to suspend or cancel a Canadian aviation document, the member of the Tribunal conducting the review may determine the matter by confirming the suspension or cancellation or substituting the member=s decision for the decision of the Minister.

Subsection 7.2(1) of the Act:

7.2 (1) The Minister or any person affected by the determination of a member of the Tribunal under subsection 6.9(8) or 7(7) or any person, other than the Minister, affected by the determination of a member of the Tribunal under subsection 7.1(8) may, within ten days after the determination, appeal the determination to the Tribunal.

Subsection 33(3) of the Act:

(3) The Tribunal may, with the approval of the Governor in Council, make rules not inconsistent with this Act governing the carrying out of the affairs of the Tribunal and the practice and procedure in connection with matters dealt with by it.

Subsection 37(6) of the Act:

(6) The Tribunal or a member thereof shall, on request by a party to a proceeding before the Tribunal or member, furnish the party with the reasons in writing for the determination or decision of the Tribunal or member.

Section 2 of the Civil Aviation Tribunal Rules [now the Transportation Appeal Tribunal Rules]:

2. In these Rules,

[...]

Aproceeding means a review under section 6.71, 6.9, 7, 7.1 or 7.7 or an appeal under section 7.2 or 8.1 of the Aeronautics Act; a review under section 27.1, 31 or 32 or an appeal under section 27.5, 31.2 or 32.2 of the Railway Safety Act;

Sections 5 to 8 of the Rules:

5. Service of a document, other than a summons referred to in section 14, shall be effected by personal service or by registered mail.

6. Where service of a document is effected by registered mail, the date of service is the date of receipt of the document.

7. Where a party is required or authorized to file a document with the Tribunal, the document may be filed by depositing it in the registry personally, by mailing it or sending it by courier to the registry or by transmitting it to the registry by telex, facsimile or other electronic means of communication if the registry has the necessary facilities for accepting transmission in such manner.

8. The date of filing of a document with the Tribunal is the date of receipt of the document at the registry, as evidenced on the document by means of the filing stamp of the Tribunal.

Section 11 of the Rules:

11. The Tribunal may extend or abridge a time prescribed by or pursuant to these Rules for performing any act or doing any thing on such terms, if any, as seem just.

Section 18 of the Rules:

18. (1) An appeal to the Tribunal pursuant to section 7.2 or 8.1 of the Aeronautics Act, or section 27.5, 31.2 or 32.2 of the Railway Safety Act shall be commenced by filing in writing with the Tribunal a request for appeal.

(2) A request for appeal shall include a concise statement of the grounds on which the appeal is based.

(3) A copy of a request for appeal shall be served by the Tribunal on each other party within ten days after filing the request.

Section 20 of the Rules:

20. (1) The Tribunal shall render its determination in writing at the conclusion of a proceeding or as soon as is practicable after a proceeding.

(2) For the purpose of calculating the period within which a party may appeal a determination, the determination is deemed to be made on the day on which it is served on the party.

(3) The Tribunal shall serve on each party a copy of a determination forthwith after the determination has been rendered.

DECISION AS TO THE TIMELY FILING OF THE APPEAL

It may be helpful at this point to review the foregoing legislation to clarify procedures herein. Following the conduct of a review hearing the Tribunal Member renders a determination in accordance with the powers set out in subsection 6.9(8) of the Aeronautics Act. There are no provisions in the Act as to the form that this determination must take. Looking to the Tribunal Rules, we note that subsection 20(1) of the Rules provides that the Tribunal shall render its determination in writing at the conclusion of a proceeding.[1]

Pursuant to subsection 20(3) of the Rules the Tribunal must serve this determination on each party forthwith after the determination has been rendered. The method of service is set out in sections 5 and 6 of the Rules and subsection 20(2) of the Rules provides that for purposes of calculating the appeal period, the determination is deemed to be made on the day on which it is served on the party. The time within which one may file an appeal of a review determination is set out in subsection 7.2(1) of the Aeronautics Act. Procedures for the filing of an appeal are found in section 18 of the Rules, that is, it must be filed in writing with the Tribunal and the date of receipt of the document by the Tribunal is the date of filing as set out in sections 7 and 8 of the Rules.

The time frame of 10 days as set out in subsection 7.2(1) of the Act is strictly applied and the Tribunal has no jurisdiction to enlarge or extend the 10 days. This section of the Act does not contain words to empower the Tribunal to do so as one finds in subsection 6.9(3) or 7.1(3) in relation to the extension of time for the filing of a request for review. The time period for the filing of an appeal may not be extended or abridged by section 11 of the Tribunal=s Rules as this Rule applies only to those times prescribed by the Rules and could not be said to apply to abridge a time period specified in the Aeronautics Act.

This matter has been decided by the Federal Court of Appeal on October 23, 1991.[2] This was an application for judicial review of the decision of the Tribunal determining that it lacked authority to extend the ten‑day limitation period provided for in subsection 8.1(1) of the Aeronautics Act to appeal a decision of one of its members. The applicant contended that the combination of subsection 20(2) and section 11 of the Civil Aviation Tribunal Rules gave the Tribunal the authority to grant the extension sought. Stone J.A., in dismissing the application, stated that the scope of the Tribunal's rule‑making authority was limited by subsection 33(3) of the Act. There could be no rule adopted pursuant to that section which could be Ainconsistent with this Act@. Given that the wording of subsections 7.2(1) and 8.1(1) of the Act is the same, i.e.Amay, within ten days after the determination, appeal the determination to the Tribunal@, we accordingly adopt the reasoning in the Fry decision. We therefore conclude that the ten‑day limitation period cannot be extended by this Tribunal.

The remaining questions for discussion are these: Can a determination be served verbally, such that the verbal decision of Ms. Racine on May 6th would be good service? Or must the determination be served in writing and if so, what was the date of service of the written determination?

The Minister=s representative cites subsection 37(6) of the Act as authority for the proposition that the Tribunal does not have to provide written determinations unless asked to do so. We disagree with this interpretation as that subsection speaks only to the reasons for the determination and not to the determination itself. To summarize, subsection 20(1) of the Rules requires that the Tribunal shall render all determinations in writing at the conclusion of a proceeding, however, subsection 37(6) the Act provides that it shall furnish the party with the reasons in writing for the determination on request by a party to a proceeding. As a matter of practice the Tribunal provides written reasons with all of its determinations following review and decisions following appeal. The Transportation Appeal Tribunal of Canada Act (TATC Act) makes this practice a legal obligation.[3]

Given that the decision must be rendered in writing, and having regard to the method of service as contained in sections 5 and 6 of the Tribunal Rules, we find as follows: The Tribunal=s file indicates that this determination of Ms. Racine dated May 9, 2003 was served by registered mail on May 12, 2003 and signed for as received by the Department of Transport on that same date. This information was conveyed to the Minister=s representative prior to the filing of the Notice of Appeal on May 22, 2003[4] and the Tribunal file indicates that the same information was provided to the Respondent=s counsel prior to the conduct of this appeal hearing.

This panel therefore finds that the Notice of Appeal having been filed in a timely manner, the preliminary motion on this issue is dismissed.

DISCUSSION OF GROUNDS OF APPEAL

We would like to preface our discussions by stating that arguments are often put to the Tribunal that we should determine all cases in the same way as those in the courts of criminal jurisdiction. However, in 1982 Mr. Justice Charles Dubin[5] recommended that matters related to aviation are regulatory matters and are not criminal in nature and hence should be adjudicated before a specialized administrative tribunal. Following upon those recommendations, in June 1986, the Civil Aviation Tribunal[6] was created. Over the course of the years, this Tribunal as an administrative tribunal has conducted its hearings with a standard of proof on a balance of probabilities[7] and has employed a relaxed rather than a strict application of the rules of evidence.[8] It is in this light that we must consider all matters that come before this Tribunal which is intended to be a layman=s tribunal where pilots and others may appear on their own behalf or by a representative of their choice.[9]

This panel agrees with grounds for appeal numbers 1 and 2 for reasons given below and in our view, it is not then necessary to discuss the Minister=s ground for appeal number 3.

In reading the Tribunal Member=s Reasons for Determination, we are in agreement with the first paragraph on page 2 thereof, that is to say:

On reading the wording of the allegation, as drafted by the Minister, we learn that Mr. Roch's reckless conduct is linked, firstly, to the fact that he operated the aircraft without having first de‑iced it before take‑off.

All of the other paragraphs given in the Reasons for Review Determination relate to an alleged contravention of subsection 602.11(2) of the Canadian Aviation Regulations (CARs) although the Minister has not cited that subsection in the Notice of Suspension but rather has alleged contravention of section 602.01 of the CARs. Therefore in our view it is really not a question of a contravention of subsection 602.11(2) but rather of section 602.01 as cited in the Notice. It would appear that the Member in following upon the arguments of counsel for the Applicant (at review), has superimposed the elements of subsection 602.11(2) of the CARs regarding the requirement for de‑icing before take‑off into the case which was before her. In its Notice of Suspension, the Minister has alleged a contravention of section 602.01 which is that of having taken off in a reckless manner from Baie‑Comeau airport. The contravention cited is one regarding an allegation of recklessness and it falls to the Tribunal to determine whether the Minister=s evidence supports this allegation of reckless manner. The Minister has added the words: Aindeed this aircraft was not de‑iced before take‑off, when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft.@ The Minister in providing these further details of the alleged breach of section 602.01 has provided information to the document holder so that he may know the case he has to meet.

We have reviewed about thirty decisions relating to the prohibition of flying in a negligent or reckless manner (formerly section 520 of the Air Regulations). We have found cases where the Minister=s allegation contained only the words of section 520 of the Air Regulations, without further facts. One might suppose that there was a demand for particulars of facts after having received such a brief charge. But in no case did the Tribunal terminate the review hearing without having first heard the Minister=s evidence, while giving as its reason the assertion that the Minister had badly drafted the Notice or the speculation that the Minister would have difficulty with its evidence having regard to the words contained in the Notice of Suspension. In fact, we did find one case where the Minister did include too many facts in the Notice, some of which it did not prove. The Member in that case considered the lack of proof for some of the factual allegations and stated:

Most of these factual allegations are not in dispute. However, the evidence did not substantiate all of the particulars alleged. While I do not find the insufficiency of evidence in respect of some of the particulars to be fatal to the charge, I would comment that it is unusual if not inappropriate to plead facts in a >charge= unless they are essential to the averment itself. In some cases, >particulars= may be ordered but this would not have been the case here.[10]

The principal reason given by the Tribunal Member is that the words in the Notice of Suspension following C you have contravened section 602.01 of the Canadian Aviation Regulations Y in fact this aircraft was not de‑iced before take‑off, when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft C were not founded in law. It is our view that these words are the particulars of the facts giving rise to the allegation of reckless conduct contemplated in section 602.01. In our view, it is premature for the Tribunal Member or for us to speculate regarding the stated facts that the Minister has put forth as particulars of its allegation of recklessness contained in section 602.01.

On the matter of the wording of the allegation, we would refer to an earlier appeal decision of this Tribunal wherein a pilot had received a notice of suspension pursuant to section 6.9 of the Aeronautics Act, the first of two counts of an alleged breach of subsection 520(1) of the Air Regulations reads as follows:

COUNT #1:

Air Regulation 520(1), in that at approximately, 1310 local time on or about March 4th, at or near Fort Hope, Ontario, you did unlawfully operate a Beech 99 aircraft, Canadian Registration C‑GQAH in such a negligent or reckless manner as to endanger or likely to endanger the life or property of any person, by reason of the fact that you landed your aircraft on Runway 27 passing in close proximity to a Cessna 180 aircraft which occupied the runway, having landed shortly before and which was being taxied on the runway towards the taxi‑way leading to the ramp.[11]

Despite the fact that there is nothing in the regulations that precludes a pilot from landing over another aircraft[12] two witnesses at review gave testimony that AI know of no training course that involves practising flying over another aircraft@ and Aone aircraft landing over the top of another one that was on the runway, Y this is not something that they advocate@[13]. On the basis of this testimony the appeal panel dismissed the appeal and concluded that the conduct complained of in both counts, being landing an aircraft over the top of another one still on the runway and landing before a second aircraft had cleared the runway, falls below the standard expected of a reasonably prudent pilot so as to constitute negligence on the part of that pilot.[14]

Thus, it is our view that the Tribunal Member erred when she rejected the Minister=s case in holding that the Notice of Suspension did not allege an offence founded in law. Moreover, given the review of the jurisprudence mentioned above, it is clear that there indeed was enough information given in the Notice of Suspension on which to base the alleged infraction of recklessness. The only question before the Tribunal Member at that point was C Did the Applicant have enough facts to know the case that he had to meet? A flight on the said date alleged to have been made in a reckless manner by reason of having taken off without de‑icing. Without more, we believe that the Applicant has not been misinformed and has ample information to prepare his case in response to the alleged contravention of section 602.01 of the CARs.

DECISION

We refer that matter back to the Tribunal Member to conduct a review hearing in accordance with subsection 6.9(7) of the Aeronautics Act.

Reasons for Appeal Decision by: Faye Smith, Chairperson

Concurred: Pierre Beauchamp, Member

Michel Boulianne, Member



[1] As defined in section 2 of the Rules, Aproceeding@ means a review under section 6.9 of the Aeronautics Act.

[2] Fry v. Canada (Civil Aviation Tribunal) (F.C.A.).

[3] Section 17 of the Transportation Appeal Tribunal of Canada Act.

[4] As indicated in the Affidavit of Mr. Tamborriello filed with the Minister=s written submissions dated November 14, 2003.

[5] Report of the Commission of Inquiry on Aviation Safety, Ottawa (Dubin) (1982).

[6] The Tribunal became the Transportation Appeal Tribunal of Canada on June 30, 2003.

[7] Phillips v. The Minister of Transport (now found in subsection 15(5) of the TATC Act).

[8] Subsection 37(1) of the Aeronautics Act (now subsection 15(1) of the TATC Act).

[9] Subsection 37(2) of the Aeronautics Act (now subsection 15(3) of the TATC Act).

[10] Gordon Joseph Spurrell v. Minister of Transport, CAT File No. O‑0295‑02, Review Determination, p. 4.

[11] Francis Dominic Decicco v. Minister of Transport, CAT File No. C‑1316‑02, Appeal Decision, p. 2.

[12] John Arthur Cook v. Minister of Transport, CAT File No. C‑0128‑02, Review Determination, November 8, 1989, p. 4.

[13] Decicco appeal decision, supra, p. 7.

[14] Decicco, appeal decision, supra, p. 8.


Review Determination (2)
Suzanne Racine


Decision: November 3, 2004

The Minister has not proven, on the balance of probabilities, that the take-off of the Islander conducted by Mr. Roch on December 7, 1998, was reckless. The Minister has not established, according to his burden of proof, that contamination was adhering to the aircraft. Mr. Roch was therefore not reckless in either not de-icing the Islander registered as C-FCVK, as stated in the notice of suspension, or in conducting a take-off in conditions such that it was reasonable to believe that frost, ice or snow could adhere to the aircraft.

REASONS FOR REVIEW DETERMINATION

A review hearing on the above matter was held June 8, 9, 10 and 11, 2004, in room 4.47 of the Federal Court of Canada in Montreal, Quebec. This hearing is further to the decision of the appeal panel to refer the matter back to the review member assigned to the case, so that a review hearing could be conducted in accordance with subsection 6.9(7) of the Aeronautics Act.

The witnesses were excluded.

OBJECT OF THE REVIEW HEARING

The Minister of Transport served Mr. Jean-François Roch with a notice of suspension of his commercial pilot licence CA 386706 for a period of six (6) months. The notice of suspension, dated December 1, 1999, reads as follows:

"Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened section 602.01 of the Canadian Aviation Regulations.

On December 7, 1998, at about 11:09 hours local time, while acting as pilot-in-command of aircraft registered as C-FCVK, you took off in a reckless manner from Baie-Comeau, Quebec airport: indeed this aircraft was not de-iced before take-off, when the conditions were such that it was reasonable to believe that frost, ice or snow could adhere to the aircraft."

THE LAW

Section 602.01 of the Canadian Aviation Regulations (CARs) stipulates that:

"602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person."

PRELIMINARY MOTIONS

First motion

Mr. Doré filed a motion to stay the proceedings on two (2) separate grounds.

First, he pointed out to the Tribunal that the proceedings against his client were instituted in 1999, now nearly five (5) years ago, a delay he described as exceptionally long. This delay made it difficult for his client, Mr. Roch, to clearly recall the events. It deprived Mr. Roch of his right to a fair trial and thereby infringed on his constitutional rights. Mr. Doré also explained that Mr. Roch still experiences aftereffects from his permanent injuries and has not flown since December 1998. The suspension of his client's commercial pilot licence, imposed, he recalled, nearly one (1) year after the alleged offence to avoid the limitation period, serves neither the appearance of the administration of justice nor the public interest, since Mr. Roch was, in any event, in no physical or psychological condition to fly. According to Mr. Doré, the Minister was unduly hounding his client.

Secondly, Mr. Doré informed the Tribunal that Mr. Roch could not bear the financial costs of his representation, nor was he able psychologically to represent himself. This situation therefore prevents him from having recourse to a hearing in accordance with his constitutional rights and the general principles of natural justice. In such a case, Mr. Doré argued that the Tribunal must immediately declare a stay of proceedings when it is satisfied that the party to the proceedings cannot have a fair hearing owing to his financial incapacity. It must submit this matter to the prosecution in order to find a solution that can ease, to the satisfaction of the Tribunal, the financial burden of the person proceeded against. He cited in this regard the Robowthan decision.

At first, the Minister's representative replied that the delay that had lapsed since the notice of suspension was filed on December 1, 1999, was owing to the applicant's state of health, as the many notices of request for postponement and change of venue attest, all requested by Mr. Roch. Contrary to Mr. Doré's assertion, the notice of suspension of December 1, 1999, was not subject to any limitation period under the terms of section 6.9 of the Aeronautics Act in force at the time.

It was also incorrect to maintain that the Minister was hounding Mr. Roch. The purpose of this application for review is not to investigate and determine Mr. Roch's liability relating to the flight of December 7, 1998. The Minister is seeking suspension of a licence for reckless conduct related to the fact that the aircraft flown by Mr. Roch that day had not been de-iced when the conditions were such that contaminants could adhere to it. According to the Minister's representative, the suspension of a commercial pilot licence is not an insignificant event since it deprives the pilot in question of the revenues obtained through his work, an effective deterrent.

Questioned by the member, the Minister's representative said he had not been informed whether the Minister had reassessed the case regarding its proceeding. Mr. Doré maintained he had discussed the matter with the Minister's officials, but in vain.

Second motion

Subsidiarily, Mr. Doré reminded the Tribunal that the Minister had imposed a notice of assessment of monetary penalty against Air Satellite, Mr. Roch's employer. The Minister had charged the corporation with the same offence that gave rise to the notice of suspension of Mr. Roch's licence.

Asked to rule on the notice of monetary penalty assessed against Air Satellite, the Tribunal, presided by Ms. Soucy, had determined that it could not find Air Satellite guilty because the evidence filed before it had not established, on the balance of probabilities, the culpability of the pilot, a sine qua non condition for establishing that of the employer within the meaning of subsection 8.4(1) of the Aeronautics Act.

It was unfair and contrary to the policy of the law for the same debate on the same facts to be reopened before this Tribunal when Ms. Soucy had determined, in the Air Satellite case, that she did not have sufficient evidence to inculpate Mr. Roch.

DETERMINATION

Stay of proceedings / inordinate delay

For the first ground of his first motion, Mr. Doré pointed out that the delay between the filing of the notice of suspension of Mr. Roch's licence and this hearing was unreasonable and infringed on his client's constitutional rights. The right to be tried within a reasonable time is enshrined in section 11 of the Canadian Charter of Rights and Freedoms.

The section reads as follows:

"11. Any person charged with an offence has the right

[...]

(b) to be tried within a reasonable time;

[...]" [emphasis added]

The nine (9) distinct rules mentioned in this section are intended to benefit any person charged with an offence. They fall under a descriptive heading of the Charter entitled Proceedings in criminal and penal matters and have more to do with criminal law than with administrative proceedings. Mr. Doré attempted to broaden the scope of application of the Charter, given the negative nature of the sanction, to encompass an administrative proceeding. Admittedly, administrative justice, in using repressive sanctions that may affect an individual's career, means of livelihood or property, pursues an end similar to that of criminal law, but it is not criminal law. Moreover, the rules regarding the burden of proof before an administrative tribunal are not the same as those before courts of criminal jurisdiction.

In Blencoe,16 the Supreme Court cautioned against the direct application of criminal justice standards in the administrative law area and thereby blurring concepts which are clearly distinct. Section 11 of the Charter must be given a literal and restrictive interpretation. The rights guaranteed by this section do not apply in the case of administrative proceedings since these rights concern persons charged with a criminal offence and apply only in that instance.17

Furthermore, still in Blencoe, the Supreme Court established that the determination of whether a delay is inordinate, in administrative law, is not based on the length of the delay alone, but on contextual factors, including the nature of the case and its complexity, the purpose and nature of the proceedings, and whether the respondent contributed to the delay or waived the delay.18

A reading of the abundant correspondence on record shows that the five-year delay was owing solely to Mr. Roch's inability to face the proceedings because of his psychological condition. Mr. Doré admits this himself. His numerous requests for postponement and change of venue were all granted so that he could receive a fair hearing in accordance with the rules of the Tribunal. The delay does not on its own warrant a stay of proceedings, which should not appear as the sole or even the preferred form of redress. It should be limited to those situations that compromise the very fairness of the hearing and to those cases where the delay in the conduct of the process leading to the hearing would amount to a gross or shocking abuse of process.19

In light of the particular circumstances surrounding Mr. Roch's state of health, the Tribunal is of the view that not only is the five-year delay not an inordinate delay that may have prejudiced Mr. Roch to the point of being contrary to the interests of justice or of leading to a gross or shocking abuse of process, but that, quite the contrary, this delay served his interest and the interest of justice.

Stay of proceedings / Applicant's financial incapacity

Mr. Doré also argued Mr. Roch's constitutional rights to a fair trial in requesting, pursuant to paragraph 11(d) of the Charter, a stay of proceedings in view of Mr. Roch's financial incapacity to be represented or, failing that, to represent himself. Mr. Doré informed the Tribunal of a mechanism provided in an authority that he cited as the Robowthan decision. He did not provide the Tribunal with a copy of this decision. Lacking a better solution, the Tribunal believes it is a judgment rendered by an Ontario criminal court in a case involving the importation of drugs.

As with the first motion, the Tribunal refers the parties to the comments made earlier about the application of the Charter to administrative matters. Well before the adoption of the Charter, jurisprudence had shown that the administrative tribunal is, subject to the principles of natural justice and procedural fairness, in control of its proceedings. The Tribunal cannot be forced, as Mr. Doré would like, to adopt certain resolution mechanisms that are sometimes adopted or put forward by courts of law, just as they cannot impose on it their code of procedure.

Stay of proceedings / issue estoppel

Issue estoppel, or authority of res judicata, in civil law prevents an issue of fact previously decided in favour of the accused from being re-argued. In fact, any issue settled in favour of the accused for his acquittal is deemed irrevocably to have been finally decided in his favour.

The conditions of issue estoppel require20

(1) that the same question has been decided;

 

(2) that the judicial decision which is said to create the estoppel was final; and

 

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised [emphasis added]

Mr. Doré based his motion on the decision rendered June 21, 2002, by Ms. Soucy in Minister of Transport v. Air Satellite Inc.21 In that case, the Minister imposed a notice of assessment of monetary penalty against Air Satellite pursuant to section 7.7 of the Aeronautics Act for reckless operation within the meaning of section 602.01 of the CARs. The Minister worded the alleged offence by Air Satellite as follows:

"On December 7, 1998, at about 11:09 hours local time, the aircraft registered as C-FCVK took off from the Baie-Comeau airport in a reckless manner: this aircraft had not been de-iced on the ground prior to take-off, although the conditions were such that it was reasonable to believe that frost, ice or snow could adhere to the aircraft."

The wording in the notice of assessment of monetary penalty against Air Satellite is in every respect the same as the wording of the allegation in Mr. Roch's notice of suspension. The first is addressed to Mr. Roch's employer, the second to Mr. Roch as pilot-in-command.

This double notice of assessment is owing to the fact that subsection 8.4(1) of the Aeronautics Act allows the Minister to proceed against the owner of the aircraft (the owner may be proceeded against) in respect of and found to have committed an offence under this Part for which another person is subject to be proceeded against, in this case Mr. Roch, pilot-in-command. To avoid the penalty assessed by the Minister, Air Satellite may defend itself by alleging that the aircraft was in the possession of a person other than the owner without its consent. The employer's liability is implicated simply by that of its employee. The Minister therefore could proceed against Air Satellite for having allowed the reckless operation, since the person with whom the alleged reckless operation originated, Mr. Roch, was also proceeded against.

However, because of the captain's state of health, the Minister brought the case against Mr. Roch's employer to the Tribunal first, before its case against Mr. Roch. As the Minister had not discharged its burden of proving the liability of the employee, Mr. Roch, Ms. Soucy decided she could not consider that of his employer. Mr. Doré argued that, in so doing, Ms. Soucy had fully exonerated Mr. Roch.

Subsection 8.4(1) of the Aeronautics Act, by imposing the fiction of law of vicarious liability, makes it difficult to determine whether the parties are one and the same. In practice, it is to the prosecution's advantage to have the case against the pilot heard first, rather than the case against the employer. However, there is nothing to prevent the Minister from doing the reverse if the conditions of subsection 8.4(1) are met. A decision handed down against the principal affects only him and implicates de facto the liability of the employer. That liability should be easy to obtain since the liability of the principal implicates that of his employer. Further, had Ms. Soucy found the employer, in this case Air Satellite, liable for recklessness, this decision would not have implicated de facto the liability of the principal, since to do so, the Minister would have had to bring a separate action against the principal and obtain a decision to this effect. Thus, the employer cannot be held liable until there is a decision finding the employee liable, but the employer can be held liable without any proceeding being taken against the employee.

Arguing res judicata for Mr. Roch would go against the spirit of the Aeronautics Act, which allows the Minister precisely this duality of redress in order to protect and ensure aviation safety. In conclusion, there is a similarity with regard to subject: one is being charged for reckless conduct, and the other for having permitted or tacitly consented to it. As fine as the distinction may seem, the parties are not the same because of the very nature of the redress that subsection 8.4(1) of the Aeronautics Act allows the Minister. Issue estoppel, or authority of res judicata, therefore cannot be applied.

EVIDENCE OF THE MINISTER

The Minister's representative asked the Tribunal to qualify Mr. Kevin Horton, a test pilot and engineer employed at Transport Canada, as an expert witness to give an opinion on how contamination affects the performance of an aircraft and to comment on the possibility of icing in the weather conditions on December 7, 1998.

The examination of Mr. Horton revealed the following qualifications: he has training as a mechanical engineer and trained as a pilot with the Canadian Armed Forces. He was a test pilot for six years for the Canadian Armed Forces and for one year with France's Air Force. He has been a test pilot with Transport Canada since 1994. He took a five-day meteorology course on the effects of frost in flight. Mr. Horton has taken part in flight tests in simulated frost conditions on Bombardier's Global Express and in simulated and real conditions on the CRJ 700 of the same company.

Cross-examined about his qualifications, Mr. Horton acknowledged that during the five-day meteorology course he took, just 20% to 25% of the time was spent on conditions associated with frost. He has a total of some thirty hours of basic weather training. He has published no writings on flying in icing conditions and has not taught on the subject. The test flights in icing conditions in which Mr. Horton took part were conducted on aircraft that were larger and also heavier than the Britten Norman Islander. Mr. Horton has not flown an Islander aircraft and has not flown in the Baie-Comeau area. He has not previously served as an expert witness on the subject.

ARGUMENTS OF THE MINISTER

Mr. Horton's experience and qualifications as a test pilot qualify him to express a general opinion on the effects on take-off and flight caused by a contaminant adhering to the critical parts of an aircraft. Mr. Horton has the knowledge necessary to interpret the Islander operations manual and to formulate an opinion about the Islander's performance. According to the Minister, it matters little that Mr. Horton is not an expert on the Islander. His qualifications would be helpful in telling the Tribunal, in an approximate way, how the performance of an aircraft such as the Islander will be affected when there is contamination of the wings. Also, according to the Minister, Mr. Horton did not need to be a weather expert, since it was more a question of evaluating the performance of an aircraft under the effect of a contaminant than of weather. In any case, the basic weather training Mr. Horton received over the five-day course, though minimal, was sufficient to enable him to form an opinion.

ARGUMENTS OF THE APPLICANT

The witness has neither the qualifications nor the specific experience to allow him to formulate opinions about the matter at issue, namely, Mr. Roch's alleged recklessness in not de-icing prior to take-off (i.e., on the ground) when the conditions were such that it was reasonable to believe that frost, ice or snow could adhere. Mr. Horton could, at best, speak only in general terms of the effect of contamination on the upper surface of an aircraft's wings. He does not have the bases of specific expertise enabling him to express a very definite view about the aircraft in question. Mr. Horton's knowledge is not sufficient to enable him to formulate an opinion about weather. The Minister, who has considerable resources, did not choose, in his view, a suitable witness to be qualified as an expert in the case. Expert testimony is exceptional testimony that imposes an apt, discretionary and specific choice on the subject matter in dispute.

DECISION

There is no doubt that Mr. Horton is an experienced pilot. Does he, however, have specialized expertise qualifying him to testify as an expert about the possibility of icing in the conditions that existed the morning of December 7, 1998, in Baie-Comeau? In the member's view, Mr. Horton does not have sufficiently specialized knowledge and qualifications in meteorology to set him apart from his colleagues with basic training and make him an authority on the subject. One (1) out of five (5) course days devoted to the weather conditions associated with the effects of frost in flight is certainly worthwhile training, but does not qualify him as an expert.

However, though Mr. Horton has not done tests per se on the Islander and is not a specialist on that aircraft, his qualifications as a test pilot may be helpful in explaining approximately, as the Minister's representative indicates, the effects of contaminants on the critical surfaces of an aircraft. While unable to qualify him as an expert given the general nature of the testimony, the member nevertheless authorizes Mr. Horton to comment, within this narrow context, on the effects a contaminant might have on the wings of an aircraft during take-off.

The examination of Mr. Horton, within the above-mentioned parameters, revealed the following general notions:

  • The presence of contaminant on the wings of an aircraft increases the stall speed and reduces the rate of climb.
  • The amount of contaminant on the wings of an aircraft, together with its weight, may be enough to make take-off impossible.
  • The presence of contaminant on the runway increases the distance required for take-off.
  • It is nearly impossible for a pilot to tell whether snow falling at a temperature close to the freezing point will adhere to the aircraft, without making a tactile inspection.
  • When the temperature on the ground and the dewpoint are zero, there is usually a precipitation of snow containing moisture, or wet snow.

On cross-examination, Mr. Horton provided the following additional information:

  • The effects of the presence of contaminant on the wings of an aircraft on take-off depend on several factors: the type and weight of the aircraft, the shape of its wings, the particular composition of the contaminant, i.e., the size of the particles, the ambient temperature and the presence of contaminant on the take-off runway.
  • The presence of contaminant reduces the lift of an aircraft by 30% and increases drag by 40%.
  • The contaminant found on the critical surfaces of the aircraft must adhere to them in order to produce these effects.

The Minister's representative called Mr. Jean-Denis Haran, a Transport Canada inspector and the investigator assigned to the case, to testify. Mr. Haran met Mr. Roch in the course of his investigation and took his statement, which he wished to file in evidence.

Mr. Doré asked that a voir dire be held so that the Tribunal could assess whether the statement Mr. Roch gave to Mr. Haran was free and voluntary.

Questioned about this by the Minister's representative, Mr. Haran indicated that he read the warning contained in his inspection log to Mr. Roch and that the latter confirmed that he had understood it.

On cross-examination by Mr. Doré, Mr. Haran pointed out that he had been instructed by his manager to investigate Air Satellite and the pilot-in-command following the crash of the Air Satellite Islander on December 7, 1998. His job was to meet with the witnesses involved, take their statements and make a recommendation on the appropriateness of seeking redress against the pilot and the owner of the aircraft. Mr. Haran did not recall whether, during his investigation, sometime around mid-May 1999, the report of the coroner's inquest and that of the Transportation Safety Board were completed.

Mr. Doré then questioned his client, Mr. Roch, on the subject. Mr. Roch pointed out that Mr. Haran had issued him a warning but did not recall whether the investigator had told him he was being questioned about a specific offence. Rather, he had understood that he was taking part in a Transport Canada investigation to determine the causes of the accident of December 7, 1998. He said that had he known that Transport Canada was investigating his conduct as pilot-in-command of that flight in order to determine whether he had committed an offence, he would not have agreed to answer Mr. Haran's questions, at least not without asking that a lawyer be present.

On cross-examination by the Minister's representative, Mr. Roch indicated he had read and signed the statement in good faith, not suspecting it would be used against him in connection with an alleged offence the nature of which he was unaware.

On re-direct, Mr. Roch emphasized that he was taking medication at the time of his meeting with Mr. Haran. This medication made him less alert and less vigilant, so that he thought he was co-operating with Mr. Haran in determining the causes of the accident rather than incriminating himself.

ARGUMENTS

Position of the Minister

  • Mr. Roch was informed of the desire to question him about the accident of December 7, 1998. He was informed of his right to a lawyer. The warning read to Mr. Roch made implicit reference to the fact that this evidence could be used against him.
  • The guarantees enshrined in section 11 of the Charter do not apply to licence suspension or revocation proceedings. While the revocation or suspension of a licence in itself entails a punitive sanction, it is not a sanction resulting in penal consequences since the proceedings before the Tribunal are not criminal in nature.
  • Mr. Doré did not overturn the presumption that everyone is competent to make an informed statement, unless there is evidence to the contrary.

Position of the Applicant

  • Mr. Haran did not inform Mr. Roch that his statement was being taken in the context of an investigation aimed at sanctioning specific conduct. He passed himself off as someone who had come to investigate the accident of December 7, 1998, and no more.
  • Mr. Roch could not make a free, voluntary and informed statement if he did not know the exact circumstances of Mr. Haran's investigation.
  • The manner in which Mr. Haran obtained this statement was reprehensible. Moreover, the warning Mr. Haran read him was incomplete, useless, even deceitful.
  • It is plausible and reasonable to think that Mr. Roch believed he was providing, once again, information about the events related to the accident of December 7, 1998.
  • To allow this statement to be filed in evidence would be contrary to the principles of natural justice, procedural fairness and the constitutional rights of his client.

DECISION

Mr. Haran's testimony, on both examination and cross-examination, has not satisfied the member, according to the burden of the balance of probabilities, that Mr. Roch knew clearly and unequivocally that the avowed purpose of Mr. Haran's questioning of him was to obtain the information needed to build the case of the offence of reckless operation of the aircraft which ultimately led to the suspension of his licence. In view of the rules of natural justice and procedural fairness that guide the work of the Tribunal, the member rejects the filing of this statement in evidence.

The examination of Mr. Haran, suspended by the voir dire, resumed. He told the member that he had obtained statements from the witnesses called to testify in the case. He filed, as Exhibit M-2, the weather report from the Mont-Joli flight service station (FSS). This report indicates on page 1, at 16:00Z hours, calm winds at Baie-Comeau, visibility of ½ mile in snow, a temperature and dewpoint of zero and heavy snow intensity (SN 8). Mr. Haran also filed, as Exhibit M-3, two (2) pages extracted from the Air Satellite operations manual on the company's policy regarding the contamination of critical surfaces, and the written statement of Mr. Bérubé, a passenger on the Islander on December 7, 1998, entered as Exhibit M-4.

On cross-examination, Mr. Haran said he was not aware that the FSS had experienced problems with the facsimile transmission of weather maps or that it had committed weather errors that December 7, 1998. He did not believe that Mr. Roch could have had the information from that report of 16:00Z hours when he was at the end of the runway preparing for take-off.

Mr. Steve Lemieux, a Baie-Comeau businessman, was seated in the Islander flown by Mr. Roch on December 7, 1998. Every Monday, for nearly seven months, he had been travelling to his business in Rimouski. To do so, he usually took the Air Satellite Islander. The morning of December 7, he arrived at the airport at about 10:30 hours and sat in the terminal so he could watch the movements of the aircraft outside.

On the Baie-Comeau airport map taken from the Canada Air Pilot and filed as Exhibit M-5, Mr. Lemieux indicated the position of the two aircraft he had seen from his location inside the terminal. The Islander was identified by the letter A and the other aircraft, which he could not name, by the letter B. He nevertheless confirmed that the aeroplane identified as B was flown by one Yann, from Air Satellite. He then indicated the location of the refuelling point with the notation Tank. He saw aeroplane B head to the refuelling point, refuel and take off from runway one zero at about 10:35 / 10:40 hours. He also noticed the Islander go to refuel and return to the terminal at about 10:45 hours to take on passengers, according to him, about five minutes later. On map M-5, he identified by the notation A-1 the place to which, according to him, the Islander had moved and waited two or three minutes to allow three snow removal trucks to go by, the nose of the aircraft pointing east. Once the way was clear, the Islander proceeded to the threshold of runway two eight, where it waited two or three minutes before heading back toward runway one zero, from which it took off.

When he arrived at the airport at about 10:30 hours, a very heavy and wet snow was falling. At about 10:50 hours, while boarding was taking place, it was snowing, according to him, much more heavily; big flakes were falling. He also observed this precipitation from his seat directly behind the pilot-in-command, Mr. Roch.

Mr. Lemieux saw no one cleaning off the aeroplane, either before or during refuelling, before or during boarding, or in the period prior to take-off.

On cross-examination, Mr. Lemieux went on to say the following:

  • He could not say whether the Islander had gone right to the threshold of runways two eight and one zero.
  • Mr. Lemieux noticed nothing abnormal or unusual during take-off.
  • He saw no one inspect Yann's aircraft, or clean or de-ice it.
  • He knew that Yann's aircraft had low wings that must be stepped onto when boarding.
  • He knew that the Islander was fitted with high wings. In order to refuel, personnel must climb a stepladder and hold themselves over each wing to fill the tank.
  • From his seated position in the aircraft behind the pilot-in-command, Mr. Lemieux could see through the windscreen of the cockpit.

The re-examination of Mr. Lemieux confirmed that Mr. Roch refuelled the Islander the morning of December 7, 1998.

The morning of December 7, 1998, Mr. Serge Parent, manager of the Baie-Comeau airport, arrived at work at about 8:00 hours in freezing rain. His shift supervisors confirmed to him that snow removal and de-icing of the runways and manoeuvring areas had been done throughout the night. The 120 feet of runway had a corridor about 75 feet wide down to the tarmac and there were accumulations of about three inches on either side. Between 8:30 and 9:00 hours, Mr. Parent went to lend a hand to his snow removal crews. At that time, he said, ice pellets were falling, followed by an episode of freezing drizzle.

On the annotated map filed as Exhibit M-6, Mr. Parent traced the path taken by his snowplow truck. Mr. Parent's truck, identified as C-90, followed truck C 91 + 3. At the threshold of runway one zero, Mr. Parent pulled ahead in his truck and returned to the terminal alone, travelling along taxiway Delta to leave the way clear for the Islander. On the map filed as Exhibit M-6, he indicated that he had seen the Islander waiting at the intersection of taxiway Delta and the apron, engines running.

Asked what the weather was as he was returning along taxiway Delta, he stated it was wet snow that the snowplow easily compacted. As he was preoccupied with the snow removal operations, he did not note the presence of snow on the Islander. He then travelled in circular movements to clear the apron. Despite these movements, he saw the Islander head for runway two eight, then head for one zero, and finally saw it take off 2,000 feet from the intersection of taxiway Delta. He indicated on the map filed as Exhibit M-6, marked "departure ASJ 501," the place where, in his opinion, the wheels left the ground.

The cross-examination revealed the following facts:

  • The runway is 150 feet wide, not 120 feet.
  • Mr. Parent used his equipment to widen the runway by an additional 25 feet, creating an accumulation of about 20 inches to either side of the centre of the runway.
  • The witness did not remember whether the runway thresholds had been cleared so that the number on the tarmac was visible.
  • Mr. Parent could not say whether the Islander had actually reached the runway threshold before beginning its take-off run.
  • An aircraft flown by Mr. Yann Thibault left from two eight about 30 minutes before the Islander.
  • After the Islander took off, Mr. Parent, having finished clearing the threshold of two eight, saw for the first time, as he was coming back, an Air Satellite Cessna 335 on taxiway Hotel at the apron intersection. The aircraft was in front of the Transport Canada garage, the front of the aeroplane facing the apron. Mr. Caballero was at the controls.
  • The witness identified the Transport Canada garage by the notation TC on the map filed as Exhibit M-6.

Mr. Parent explained in re-examination that the Baie-Comeau runway measures 6,000 feet.

On December 7, 1998, Mr. Serge Proulx was employed by Transport Canada and was removing snow from the runways of Baie-Comeau airport using a runway sweeper. He arrived at the airport at 7:30 hours under a freezing rain and ice pellets. He noticed that the Islander had left the Air Satellite hangar. He later saw it go and refuel and head for the terminal. He did not recall what time it was, but did recall that it was beginning to snow more heavily.

He removed the snow from runway one zero toward two eight three (3) times. After these three (3) runs, he returned along taxiway Delta to leave the path clear and parked as usual near the Transport Canada garage. In so doing, he said he passed 30 or 35 feet from the Islander. On the annotated map filed as Exhibit M-7, Mr. Proulx indicated where he had been when he saw the Air Satellite Islander, engines running. The witness said that, sitting in his truck, he was about one (1) foot higher than the wings of the Islander. He saw snow on the wings, fuselage and tail of the aircraft. Parked near the Transport Canada garage, he saw the Islander head toward runway two eight, return toward runway one zero and take off. According to him, the wheels of the aircraft left the ground 600 to 800 feet before the intersection of taxiway Delta. He marked this spot as T.O. (for take-off) on map M-7. He also marked the letter D at the place where he estimated the Islander had begun its take-off run. At that time, he indicated that the snow was wet, very wet, and falling quickly.

Mr. Proulx saw no one busy at work around the Islander, or on the ramp or runway. He saw no one either de-icing or cleaning off the aircraft.

The cross-examination of Mr. Proulx revealed the following facts:

  • Mr. Proulx admitted that he had not been able to see the Islander at all times from 7:30 hours until the time of take-off because he was busy with his snow removal duties.
  • Freezing rain and ice pellets were falling at 9:00 hours on December 7, 1998.
  • The wings of the Islander are blue and white.
  • The witness did not notice the Cessna 335 parked and covered in snow at the intersection of taxiways Hotel and Delta, where he usually parks his truck.

Mr. Steve Tremblay is a cargo agent for Inter-Canadien. He also clears runways for Transport Canada when he has no Inter-Canadien flight to attend to. The morning of December 7, 1998, he cleared snow from the airport runways using a snow blower. He arrived at the Baie-Comeau airport that morning at about 7:30 / 8:00 hours. He said that a heavy wet snow was falling that day. He first saw the Islander at the corner of the ramp and taxiway Delta, but did not remember at what time that was. The aircraft was parked next to him, engines running. On the annotated map filed as Exhibit M-8, he marked two Xs: one to show the position of his snow blower, and the other, the position of the Islander.

Mr. Tremblay testified that, from his position in the snow blower, he was 2 to 3 feet higher than the wings of the Islander. He saw snow on the wings of the aircraft and on its fuselage. He saw no one on foot or around the aircraft. He did not know whether the aircraft had been de-iced. He did not recall what the visibility was at the time, or whether there was other snow removal equipment nearby.

On cross-examination Mr. Tremblay indicated the following:

  • In his statement to Mr. Haran, the witness acknowledged that he had said that of the two, it was more a wet snow than a dry snow.
  • He had worked at the Baie-Comeau airport for eight years and was quite familiar with Air Satellite's aircraft.
  • The Air Satellite Islander flown by Mr. Roch the morning of December 7, 1998, is beige in colour.
  • The witnesses maintained that the Air Satellite Cessna 335 had been parked a long time outside, between the Transport Canada garage and the Air Satellite hangar.
  • He admitted having little recollection of that day, of his movements, of which aircraft he saw refuel and take off and from which runway. He could not recall whether he went to the end of the runways to clean them with his snow blower, or whether any snowbanks had been created by his machinery.

Mr. Albert Gauthier is the ramp attendant for the airline Inter-Canadien at the Baie-Comeau airport. He also owns his own aircraft de-icing equipment and offers his services on contract to Inter-Canadien and other airlines. He said that when he arrived at work at about 6:00 hours on December 7, 1998, it was not yet snowing and the weather was mild. According to him, it did not begin to snow until about 9:00 hours. It was a moderate, wet snowfall. At about 9:30 hours, he de-iced an Inter-Canadien ATR 42.

He first saw the Islander flown by Mr. Roch at about 10:30 hours; it was parked ready for passenger boarding. It was still snowing at the time. He saw no one de-ice or clean off the aircraft. According to him, the passengers boarded at about 11:05 hours. On the map filed as Exhibit M-9, he illustrated the movement by the Islander on taxiway Delta. He observed the aircraft from the Inter-Canadien office inside the terminal.

The cross-examination of Mr. Gauthier revealed the following facts:

  • The morning of December 7, 1998, he saw two Inter-Canadien ATR aeroplanes land at Baie-Comeau and take off again. The first arrived from Sept-Îles at about 7:22 hours and departed again at about 7:42 hours for Quebec City. The second arrived at 9:04 hours and departed again at 9:36 hours for Sept-Îles. He was asked to de-ice the second.
  • It takes about seven or eight minutes to de-ice this type of aircraft.
  • The captain is the only person authorized to decide whether or not de-icing is necessary.
  • Mr. Gauthier did not remember whether there was freezing rain at about 7:30 hours the morning of December 7, 1998.
  • The witness saw Air Satellite's Cessna 310 at the fuel tanks. He saw no one de-ice or clean off the aircraft.
  • He first saw the Islander at about 10:30 hours parked facing the terminal. He saw the passengers board the aeroplane, saw it head down taxiway Delta but lost sight of it at about the halfway point.

EVIDENCE OF THE APPLICANT

On examination, Mr. Jean-François Roch related the chronology of events from the evening of December 6 until take-off on December 7, 1998.

Mr. Jean-François Roch is an employee of Air Satellite, an airline based in Baie-Comeau. He mostly flies, as pilot-in-command, a Britten Norman Islander BN2A 26, an aircraft with high wings spanning 50 feet all of whose surfaces are white. He has 500 pilot hours on the Islander, of a total of about 1,200 hours flight time.

The night of December 6, 1998, Mr. Roch passed by the airport. Freezing rain was falling and the Islander had been parked at the back of the Air Satellite hangar, along with a Cessna 310 and a Cessna 335 owned by the company. Mr. Roch had a scheduled flight to Rimouski for the next day, December 7, 1998, at 6:15 hours. Given the weather conditions, Mr. Roch asked that the passengers be called and told that the next day's flight would be postponed indefinitely, at least until further notice. Before leaving the airport, he touched the nose and wing of an Air Montréal Metroliner parked outside and noted there was contamination.

The next day, December 7, 1998, Mr. Roch got an initial weather report at about 3:50 hours from the NAV CANADA site that concluded freezing rain. After de-icing his automobile, he arrived at the Baie-Comeau airport at about 4:20 / 4:30 hours under light freezing rain. He went into the hangar to make all the usual inspections of his aircraft, including ensuring that the heated part of his windscreen, a small six-by-ten-inch window, was working properly. At 5:00 hours, he went back to the Air Satellite offices and ordered a second weather report from the Mont-Joli FSS. He did this regularly thereafter in order to decide on a possible take-off time, not only for his own information but also for that of pilots Yann Thibault and Roberto Caballero, assigned, respectively, to the Cessna 310 and the Cessna 335, who were also to make flights the morning of December 7, 1998.

At about 9:00 hours, the three pilots mutually agreed, after studying the recent weather reports, to consider the possibility of a departure at about 10:30 hours. They therefore had the hangar doors opened to cool off the three aeroplanes inside with a view to a possible take-off. Mr. Roch and the other two pilots continued to monitor the evolution of the weather conditions in order to file their respective flight plans.

At 10:15 hours, still by mutual agreement, the three pilots took the aeroplanes out of the hangar and advanced them along taxiway Hotel. It had stopped raining; a light snow was falling. The first two aircraft to leave were the Cessna 310 (Yann Thibault) and the Cessna 335 (Roberto Caballero). The pilots of these aircraft in turn did their run-up on the apron. Mr. Roch then headed for the apron, in the Islander, to warm up his engines. Mr. Thibault had already moved toward the fuel tanks, followed closely by Mr. Caballero. Mr. Roch in turn headed for the tanks. Mr. Caballero finished refuelling and Mr. Thibault was headed for the place where his aircraft would be loaded with mail.

To refuel an Islander, Mr. Roch explained that it is necessary to climb a stepladder to open the tank cap on top of each wing. The wing is then at waist level. Mr. Roch indicated that as he was refuelling on either side, he looked at all the horizontal surfaces of the aircraft and had ample time to examine them. He passed his hand over the surface next to each cap to check whether there was snow, a precaution he considers quite natural to take. According to him, there was no snow adhering to the surface. The surface of the caps was not contaminated, eliminating any risk of water falling into the tank.

As he was refuelling, Mr. Roch heard Mr. Thibault's Cessna 310 take off. When he finished refuelling, he took one last look at the surfaces of the aircraft and said: I don't even have to worry, ... to me, it's clear in my mind. I'll put the cap back on. I'll go get my passengers and get going...

As he was heading toward the terminal, Mr. Roch communicated with Mr. Thibault, who told him he had encountered hardly any freezing rain at an altitude of 4,000 feet, at 40 miles toward Quebec City. As he was loading the baggage by the door situated behind the main wing and in front of the tailplane, Mr. Roch said he could see the fuselage, the ailerons and the rounded back part of the wings and reiterated that he noticed no contamination adhering to these surfaces.

At 10:48 hours (15:48Z), as shown by the transcript of the exchanges between Mr. Roch and the Mont-Joli FSS, filed as Exhibit D-2, Mr. Roch again checked the weather conditions with the FSS. He was informed of a calm wind at Baie-Comeau, visibility of a mile and a quarter, light snow, a ceiling of 1,500 feet, overcast. The temperature on the hour and the dewpoint were zero. Also, the SIGMET 2 predicting freezing rain in the area was cancelled.

Mr. Roch then got on taxiway Delta and after a few exchanges with the FSS, he agreed to take off, not from runway two eight to which he was heading, but rather from runway one zero toward the MIWAK, to avoid waiting. On the way to runway one zero, he said he noticed no contamination on the nose of the aeroplane, on the unheated part of his windscreen or on the rear tailplane. He had to skirt the threshold of runway one zero to avoid an accumulation of snow left by the snow removal operations.

Mr. Roch took off at his usual speed and conducted a take-off he described as normal over a distance of about 1,650 feet of runway. According to him, the aircraft's performance on take-off was not unusual. At no time did he consider aborting take-off because of existing conditions, or entertain any doubt that the conditions called for de-icing or sweeping.

He pointed out that Mr. Thibault's aircraft, which had taken off 30 minutes before him, had not been de-iced or swept. He had been trained in de-icing techniques at Air Satellite. A few days before the flight of December 7, 1998, Mr. Roch had had to use a broom to clean off precipitation accumulating on the wings of his aircraft.

The cross-examination of Mr. Roch confirmed the following facts:

The Islander flown by Mr. Roch on December 7, 1998, is indeed registered as C-FCVK

  • There was neither loose snow nor clogging snow on the fuel tank caps at the time of refuelling. Had this been the case—and it was not—Mr. Roch would have swept it off.
  • Mr. Roch knew there were snow removal vehicles at work because he stayed back on the apron waiting for them to leave and for the tower to clear him to taxi. He paid no attention to the movements of these vehicles because he was busy preparing his flight.

ARGUMENTS OF THE MINISTER

The Minister believes he has proven each and every element of the offence on the balance of probabilities.

The date and time of the offence are not disputed, nor is the identity of either the aircraft, an Islander registered as C-FCVK, or the pilot-in-command, Mr. Jean-François Roch. The Minister has proven that Mr. Roch conducted a take-off in a reckless manner because the conditions present that day and reported by the witnesses were rapidly falling wet snow, the type of snow that would promote, with a ground temperature and dewpoint of zero, adherence to the critical surfaces of the aircraft, according to the witness Horton.

Disinterested eyewitnesses who were involved in snow removal at the airport saw snow on the wings of the Islander awaiting take-off when they were close to the aircraft. They made no distinction between the accumulation of snow on the wing and the accumulation behind the propeller, which may have appeared to have been blown by the wind from the propeller. Thus, the wings of the Islander were contaminated.

By not de-icing the Islander before take-off in such conditions, Mr. Roch showed reckless indifference to the consequences that the presence of contaminant adhering to the wings of an aircraft can have, consequences that any reasonable pilot would have foreseen in the circumstances.

The Minister's representative asked the Tribunal to bear in mind in particular, in assessing the evidence, the testimony of the disinterested witnesses.

ARGUMENTS OF THE APPLICANT

First, Mr. Doré reiterated to the Tribunal that the conduct of which Mr. Roch is accused in the Minister's notice of suspension is not sanctionable. According to Mr. Doré, there is no legal requirement to de-ice an aircraft prior to take-off merely on the basis of conditions such that one might believe that contaminants could be adhering. The regulations stipulate no requirement to de-ice but rather a basic prohibition: against taking off in circumstances such that it was reasonable to believe that frost, ice or snow could adhere to the aircraft. The operation of an aircraft on which contaminants are present is not necessarily reckless in itself; it becomes so, however, if the contaminants are adhering to the critical surfaces of the aircraft. There can therefore be a link between the requirement to de-ice and recklessness only if there is adherence.

For recklessness, according to Mr. Doré, the Minister should have charged Mr. Roch with having taken off when frost or another contaminant was actually adhering to the critical surfaces of the Islander, that is, with having failed to inspect his Islander to determine whether de-icing or sweeping was necessary when the conditions were such that it was reasonable to believe that contaminants could adhere to the aircraft. The decision of the appeal panel regarding the Tribunal's finding that the notice of suspension, as worded, was not founded in law, did not dispose of this important point of law which, in his view, leads to a demurrer.

Secondly, Mr. Doré maintains that there is res judicata (issue estoppel), also leading to a demurrer. Debating the present issue is unnecessary, since Ms. Soucy, in rendering a decision in favour of Air Satellite, Mr. Roch's employer, for the same offence with which its pilot was charged, decided the fate of his client at the same time.

Finally, Mr. Doré maintains that the Minister has not shown the presence of a contaminant on the Islander, much less that it was adhering to the Islander's critical surfaces when Mr. Roch took off that December 7, 1998. Mr. Roch took all the precautions that a prudent pilot should take in the circumstances. Mr. Roch's actions and conduct on December 6 and 7, 1998, bear this out. His decision to take off came about by mutual agreement with other pilots at the same departure point. Not only did the Minister's cross-examination fail in any way to cast doubt on his client's testimony, but important points such as the times, intensity and quality of the snow, and the manner in which the take-off was conducted were corroborated by very credible witnesses of the Minister, Messrs. Parent and Lemieux. The take-off was conducted normally, over a normal distance and at a normal speed.

REASONS

The appeal panel of the Tribunal found, on February 3, 2004, that it was premature for both the panel and the member to speculate regarding the stated facts that the Minister has put forth as particulars of the allegation of recklessness. The panel ruled that Mr. Roch had enough information for the allegation of recklessness to be sufficient in law and that the member should not have concluded the review hearing without first hearing the Minister's evidence. The appeal decision referred to the decision of May 9, 2003, which granted the preliminary motion of the applicant, Mr. Roch, that the notice of suspension of his licence as worded be found inadmissible, declaring it unfounded in law.

It is essential, now that the Minister has presented his evidence, to go back to the notice of suspension as worded by the Minister. The allegation, as drafted, provides a sanction for alleged reckless conduct pursuant to section 602.01 of the CARs. The recklessness is specified by the phrase beginning: indeed ... It is alleged that Mr. Roch, while acting as pilot-in-command, took off on December 7, 1998, at about 11:09 hours (local time) from the Baie-Comeau airport without first having de-iced the aircraft registered as C-FCVK when it was reasonable to believe that frost, ice or snow could adhere to the aircraft.

In order to formulate a charge clearly, one usually studies the wording of the applicable regulations. A few sections of the CARs are devoted to aircraft icing. In examining more closely the wording used by the Minister to specify the recklessness with which Mr. Roch is charged, one can see that it amounts to a juxtaposition of two sections: one requiring de-icing where there is frost, ice or snow adhering to the aircraft, as any attempt to take off in such conditions is prohibited (CARs 602.11(2)); and the other prohibiting take-off where conditions are such that frost, ice or snow may reasonably be expected to adhere to the aircraft (CARs 602.11(4)).

In circumstances such that it was reasonable to believe..., the mere fact of conducting a take-off in the aircraft is sufficient to constitute recklessness since subsection 602.11(4) of the CARs prohibits conducting, or attempting to conduct, a take-off in such circumstances unless the aircraft has first been inspected to determine whether any contaminants are adhering to it. De-icing is required only if an inspection reveals the presence of a contaminant actually adhering to the critical surfaces of the aircraft.

The appeal panel confirmed that the wording of the charge clearly indicates that the recklessness is linked to the fact that Mr. Roch operated the aircraft without first de-icing it prior to take-off. For there to be recklessness, there would have to be a requirement that Mr. Roch de-ice his aircraft. To be required to de-ice his aircraft, Mr. Roch would have had to find himself in conditions where frost, ice or snow actually were adhering to the aircraft, rather than in the conditions that were alleged, namely, conditions such that it was reasonable to believe that frost, ice or snow could adhere to the critical surfaces of the aircraft.

The Tribunal is of the view that the drafting of the notice of suspension specifying the recklessness is weak. However, the drafting of this explanation in itself does not prevent Mr. Roch from preparing his defence, since he knows that the action described by the Minister as reckless is that of not having de-iced his Islander prior to departure. The Minister's evidence must therefore necessarily show that there was indeed contamination on the critical surfaces of the Islander and, moreover, that the contamination was adhering. The Minister cannot discharge his burden of proof simply by showing that the circumstances were such that this contamination could adhere; otherwise the reading of the charge makes no sense.

When alleging reckless conduct, the Minister must prove that this conduct is contrary to what a reasonable and prudent pilot would do in the circumstances.22 The Minister's evidence is to the effect that there was snow on the wings of the Islander, that the snow was adhering, and that Mr. Roch, in not de-icing the aircraft when its critical surfaces were contaminated, committed a serious breach that translated into a disregard for the consequences in circumstances that endangered the life or safety of other persons. The Minister provided evidence concerning the presence of a contaminant and its adherence to the critical surfaces of C-FCVK. He thus corrected, if you will, without affecting the applicant's rights, the clumsy wording specifying the recklessness alleged in the notice of suspension.

Messrs. Proulx and Tremblay are the only two (2) witnesses who told the Tribunal they had seen snow adhering to the wings of C-FCVK the morning of December 7, 1998. Both these witnesses allegedly had time to note this from a distance, while busy with their snow removal operations on the taxiways and runway. Was it perhaps because of their positions inside their machinery, slightly higher than the surface of the Islander's wings? Their boss, Mr. Parent, who gave them a hand the morning of December 7, 1998, did not see whether there was snow on the Islander because he was busy driving his snow removal truck.

Mr. Proulx said that he was in his snow removal truck 30 or 35 feet from the aircraft when he noticed snow on the wings, fuselage and tail of the Islander. Its engines were running and it was waiting to taxi. He saw no distinction behind the propellers. This last element is intended to prove, according to the Minister, that the snow was adhering to the surface, since it was not being blown by the Islander's propellers, which were operating at the time. Regarding this last important point of evidence, the member asked Mr. Proulx to describe objectively what he had seen from his position. He said, "I saw snow on the wings, on the tail of the aeroplane and the cabin, I saw it with my own eyes" with the insistence of someone who asks only to be believed. He did not wish to add whether he had seen or noticed anything else, although he was invited to do so by the member. About the weather, Mr. Proulx indicated that freezing rain turned to wet snow at about 9:00-9:30 hours, whereas the witnesses Parent and Lemieux said it started at about 10:00 hours.

On cross-examination, Mr. Proulx was less assertive. Oddly, he said categorically that the Islander was out of the hangar when he arrived at the Baie-Comeau airport at about 7:30 hours the morning of December 7, 1998. He added that it may even have been out at 6:00 hours. He is the only witness who saw the Islander at 7:30 hours, whereas according to Mr. Roch, it was inside the hangar at that time. According to him, the Islander then went to the fuelling tanks at about 8:00 hours, about 30 minutes after his arrival at the airport, and was at the ramp already gassed up at about 9:00 hours. These facts are contradicted by the testimony of Messrs. Lemieux and Gauthier. Faced with questions identical to those asked on examination, on cross-examination Mr. Proulx gave vague or contradictory answers, as though he no longer remembered his answers to the Minister very well or the sequence of events that day.

He told Mr. Doré that the Islander, seen from above from his position in the truck, was blue and white, then eventually admitted that he did not know. He seemed a bit nervous, afraid to make a poor impression or to not be believed. The colour of the Islander is important because if the wings were covered in snow, their blue colour could not be seen, and if white, distinguishing the snow would be more difficult at a distance of 35 feet.

It must be understood that this case goes back more than five (5) years and that Mr. Proulx is testifying for the first time before the Tribunal. We do not doubt his good faith. However, his testimony contains several inconsistencies regarding facts acknowledged by other witnesses of the Minister. Mr. Proulx's testimony wavered on essential points, such as the weather and the colour of the Islander. We can only conclude that this witness has not shown the ability to recall the events well enough to satisfy us, on the balance of probabilities, that his testimony is reliable.

Mr. Tremblay is the second witness who said he saw snow on the Islander C-FCVK parked, engines running, at the corner of the ramp and taxiway Delta. The examination of Mr. Tremblay was relatively brief and contributed few details surrounding the circumstances, other than that he was sitting in his snow blower, about 2 or 3 feet higher when he observed that the aeroplane was white, evenly spread, that is, there was snow everywhere, and also behind the propellers. He expressed himself this way: "I was at the corner of the ramp and Delta, probably outside ... I imagine a bit outside ... the boundaries of that traffic."

He did not elaborate further on that point, as though implying he could have been nowhere else. He did not recall whether he was 30 or 50 feet outside those boundaries.

Asked about the condition of the Islander, he answered, "Well, I said I saw snow on the wings and fuselage." It is not known whether he answered this way to conceal uncertainty, or whether he wished to confirm unequivocally what he had told the investigator.

Overall, the cross-examination showed that the witness still had no answer to a number of questions, either about visibility conditions that morning, the aeroplanes he had seen that day, the take-off time of the Cessna 310, the departure time of the Islander, or whether the Islander had been de-iced. The cross-examination did reveal, however, one interesting detail on which the witness was, to say the least, categorical: The Islander was beige, the same colour as a file folder, not white, as Mr. Roch said. Mr. Tremblay in fact pointed out that at that time, he had been working at the Baie-Comeau airport for over eight years, he was familiar with a number of Air Satellite aeroplanes and there was no doubt in his mind that the Islander was beige.

If the Islander was beige, as he said, it is plausible that the witness thought the wings were covered in snow. It is also possible that, while believing he was telling the truth, the witness was mistaken on this particular point. We find the second hypothesis more likely. Mr. Roch, who was familiar with the Islander from having flown it a number of times and even de-iced it, mentioned that the surfaces of the C-FCVK—wings, fuselage and ailerons—were all white.

One forms an overall impression of uncertainty in Mr. Tremblay's testimony that gives us pause, not that it is in bad faith, but because he does not remember the events surrounding the flight of December 7, 1998, well enough to give reliable testimony.

Neither Mr. Parent nor Mr. Morin (Exhibit M-4) noticed the presence of snow on the wings or tail of the Islander. On the matter of adherence as such, the evidence only infers that the witnesses Proulx and Tremblay saw the Islander all white, even behind the operating propellers. The Minister argued that this was undeniable proof that snow was adhering to the surfaces of the Islander and that Mr. Roch should have de-iced. It is entirely plausible that, because the wings of the Islander were white, like snow, the witnesses Proulx and Tremblay believed the snow was adhering since it was not being blown by the air movement generated by the propellers. However, the fact that no distinction was seen behind the propellers may also be simply because there was no snow.

Mr. Horton, an experienced pilot and witness for the Minister, told us that when the temperature and dewpoint are zero, only a tactile inspection will determine whether there is adherence and whether de-icing is called for. There is no magic formula, according to him. It is necessary to touch, given the range of factors that may be considered, such as the temperature of the aeroplane on the ground, the consistency and quality of the particles. The pilot-in-command is the person best able to decide whether to take off. Moreover, full responsibility rests with him to undertake a flight or not in icing conditions. The Minister's witnesses Haran, Horton and Gauthier agree with this assertion. According to the Minister, Mr. Roch's inspection was not thorough. However, the only one who touched the surfaces of the Islander and who can attest to that is the pilot-in-command, Mr. Roch.

The Minister also attempted to show, with the testimony of Messrs. Lemieux, Proulx and Gauthier, that they had seen no one cleaning off the Islander before or during refuelling, before or during boarding or just prior to take-off. That does not mean, however, that no inspection was done to determine whether there was adherence of a contaminant.

He produced in evidence the location where his witnesses estimate they saw the Islander leave the ground. He related this evidence to the fact that the presence of contaminant on the wings of an aircraft increases the distance required for take-off, as the pilot Horton indicated. But is that detail indisputably related in this instance, as he suggested, to the presence of contaminant adhering to the wings of the Islander? We are not satisfied, on the balance of probabilities, that this evidence leads indisputably to the conclusion that there was contamination of the wings of the Islander, first, because the Minister did not produce evidence of the location where the Islander started its take-off run, and secondly, because there was no consensus among the witnesses as to where the Islander was when it left the ground. This evidence could, incidentally, have corroborated the presence of contaminant adhering to the critical surfaces of the Islander.

The events surrounding the flight of the Islander on December 7, 1998, were related by the principal, its pilot-in-command, Mr. Roch. He detailed for us, in chronological order, all his comings and goings, the actions he took, the decisions he made that day. From the outset, he said that the surfaces of the Islander C-FCVK were white. That morning, he and his two colleagues, Messrs. Thibault and Caballero, had scheduled flights. All, including their chief pilot Mr. Morin (Exhibit D-4), were monitoring the evolution of the weather. At about 9:00 hours, Messrs. Roch, Thibault and Caballero had the doors of the hangar where the Islander and the Cessna 310 and Cessna 335 were parked opened to cool the aeroplanes and bring them up to the outside temperature. This precaution keeps precipitation from melting on a hot aeroplane and then freezing when the temperature of the metal reaches freezing point. This is proper procedure, according to Mr. Horton, an experienced pilot.

Together, the three (3) pilots, including Mr. Roch, took the aeroplanes out of the hangar at about 10:15 hours as a light snow was falling; they then all in turn took their respective aeroplanes to the refuelling tanks; Mr. Roch was last. Mr. Thibault's Cessna was not de-iced and left 30 minutes before the Islander. While refuelling, Mr. Roch had a good look at the horizontal surfaces of the Islander and noted visually and tactilely, as recommended, that there was neither loose nor clogging snow on the fuel tank cap on top of the wings. Rather than being 35 to 50 feet from the Islander, as were the witnesses Proulx and Tremblay, who were busy with snow removal, Mr. Roch was directly above the surface of the wings and took the time to examine them. He was the only witness who touched the surfaces of the wings of the Islander. He was responsible, as pilot-in-command, for tactile inspection in order to make the necessary determinations. A second visual inspection, while baggage was being loaded, supplemented the tactile inspection during refuelling, not to mention the radio contact with the pilot Thibault of the Cessna 310 to find out the conditions in flight. Once on the runway, his heated windscreen was not contaminated, a fact corroborated by Mr. Lemieux who sat in the Islander behind Mr. Roch.

How do we explain two pilots-in-command, Messrs. Roch and Thibault, that same morning at the same location and at almost the same time, possibly deciding to take off without inspecting their respective aircraft for the presence of contaminant adhering to the surfaces when there were conditions of frost or snow? Why would Mr. Roch, after performing his tactile and visual inspections, decide to take off, to endanger the lives of his passengers and himself when snow, frost or ice were adhering to the wings of the Islander? We have no reason not to believe Mr. Roch. He has obviously kept a very vivid recollection of the events surrounding the flight of December 7, 1998, contrary to the statements of Mr. Doré in his motion to stay the proceedings because of inordinate delay. Obviously, he has had to recall more than once the sequence of events that day, for both personal and professional reasons. Mr. Roch's testimony was steady, reserved and always consistent on both examination and cross-examination. His credibility was not undermined on cross-examination. On the contrary, his testimony served to reiterate to the Tribunal that there was no contaminant of any kind adhering to the critical surfaces of the Islander.

The Tribunal must assess the evidence before it to determine whether Mr. Roch was reckless within the meaning of section 602.01 of the CARs in conducting a take-off in his Islander on December 7, 1998, without first de-icing it. After assessing the evidence on the record, we find that the Minister has not shown, on the balance of probabilities, that the take-off of the Islander conducted by Mr. Roch on December 7, 1998, was reckless. The Minister has not established, according to his burden of proof, that contamination was adhering to the aircraft. Mr. Roch was therefore not reckless in either not de-icing the Islander registered as C-FCVK, as stated in the notice of suspension, or in conducting a take-off in conditions such that it was reasonable to believe that frost, ice or snow could adhere to the aircraft.


1 CAT File No. Q-1955-37.

2 As defined in section 2 of the Rules, "proceeding" means a review under section 6.9 of the Aeronautics Act.

3 Fry v. Canada (Civil Aviation Tribunal) (F.C.A.).

4 Section 17 of the Transportation Appeal Tribunal of Canada Act.

5 As indicated in the Affidavit of Mr. Tamborriello filed with the Minister's written submissions dated November 14, 2003.

6 Report of the Commission of Inquiry on Aviation Safety, Ottawa (Dubin) (1982).

7 The Tribunal became the Transportation Appeal Tribunal of Canada on June 30, 2003.

8 Phillips v. The Minister of Transport (now found in subsection 15(5) of the TATC Act).

9 Subsection 37(1) of the Aeronautics Act (now subsection 15(1) of the TATC Act).

10 Subsection 37(2) of the Aeronautics Act (now subsection 15(3) of the TATC Act).

11 Gordon Joseph Spurrell v. Minister of Transport, CAT File No. O-0295-02, Review Determination, p. 4.

12 Francis Dominic Decicco v. Minister of Transport, CAT File No. C-1316-02, Appeal Decision, p. 2.

13 John Arthur Cook v. Minister of Transport, CAT File No. C-0128-02, Review Determination, November 8, 1989, p. 4.

14 Decicco appeal decision, supra, p. 7.

15 Decicco, appeal decision, supra, p. 8.

16 Blencoe v. British Columbia (Human Rights Commission), (2000) 2 S.C.R. 307.

17 R. v. Wigglesworth, (1987) 2 S.C.R. 541. See also La Charte canadienne et les tribunaux administratifs Y. Ouellette (1984) 18 R.J.T. 295 at 299 and L'application de la Charte canadienne des droits et libertés au pouvoir judiciaire, Christian Beaulieu, Éditions Thémis, 1995, at 77.

18 Supra, note 1 at page 311.

19 Supra, note 1 at page 312.

20 Angle v. Minister of National Revenue [1975] 2 S.C.R. 248, at page 249.

21 Minister of Transport v. Air Satellite Inc, CAT File No. Q-1955-37 (2002).

22 Francis Dominic Decicco v. Minister of Transport, C-1316-02, appeal decision.


Appeal decision (2)


Decision:

October 31, 2003
Montréal, Quebec

We refer the matter back to the Review Member to conduct a review hearing in accordance with subsection 6.9(7) of the Aeronautics Act.

REASONS FOR APPEAL DECISION

An appeal hearing in the above matter was held Friday, October 31, 2003 at 10:00 hours, at the Court House in Montréal, Québec.

NOTICE OF SUSPENSION

Mr. Jean-Francois Roch was served with a Notice of Suspension dated December 1, 1999 by the Minister of Transport which reads as follows:

"Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened: section 602.01 of the Canadian Aviation Regulations

On December 7, 1998, at about 11:09 hours local time, while acting as pilot-in-command of aircraft registered as C-FCVK, you took off in a reckless manner from Baie-Comeau, Québec airport: indeed this aircraft was not de-iced before take-off, when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft."

PRELIMINARY MOTION AT REVIEW

Following delays, the reasons for which are not pertinent to the issues which we must resolve, a review hearing was held at Montréal, Québec on May 5 and 6, 2003. At that time, the Applicant's representative filed a request to quash the Notice of Suspension of the commercial pilot licence of Mr. Jean-Francois Roch.

After hearing the arguments of the parties, the Tribunal Member granted the preliminary request to rule inadmissible the Notice of Suspension of the commercial pilot licence of Mr. Roch on the basis that the Minister's allegation as worded was not well founded in law.

GROUNDS OF APPEAL

The Minister's representative appealed the determination rendered by the Tribunal Member on the following grounds:

1. The Member erred in law in granting the Respondent's motion to dismiss the charge alleged pursuant to Canadian Aviation Regulation section 602.01;

2. The Member erred in law in dismissing the above charge without hearing the evidence on the matter;

3. The member erred in law in finding that it was necessary to include in the charge the allegation that an inspection had not been done. This requirement obliges the Minister to cite in the charge that a defence does not exist.

PRELIMINARY MOTION AT APPEAL

At the commencement of the appeal hearing, a further motion was made by counsel for the Respondent and written submissions were made on the matter subsequent to the appeal hearing. The motion was as follows: that as the Tribunal Member gave her decision verbally on May 6, 2003, the ten-day appeal period started to run from that date and thus the appeal request was filed too late as it was filed on May 22, 2003. There was an additional argument by Respondent's counsel that the Notice of Appeal itself stated that the determination had been received "on or about" May 12 and that the Notice of Appeal was filed on May 22, 2003. He stated that the words "on or about" were too imprecise that if the document was received prior to May 12, then the 10 days had run and hence the appeal was out of time.

The Minister's representative by way of response interprets subsection 37(6) of the Aeronautics Act to mean that the Tribunal is not obliged to render its decisions in writing. She further relies upon subsection 33(3) of the Aeronautics Act which indicates that the Tribunal may make rules governing its activities and is master of its own procedure. She therefore pleads that the Tribunal may grant an extension of time to the Minister to file its appeal given that verbal service is good service and no prejudice results from the delay.

The Respondent's counsel is content with the interpretation of the Minister's representative but disagrees that the Tribunal has any power to extend the time for filing of the appeal.

LEGISLATION

Subsection 6.9(8) of the Aeronautics Act:

"(8) On a review under this section of a decision of the Minister to suspend or cancel a Canadian aviation document, the member of the Tribunal conducting the review may determine the matter by confirming the suspension or cancellation or substituting the member's decision for the decision of the Minister."

Subsection 7.2(1) of the Act:

"7.2 (1) The Minister or any person affected by the determination of a member of the Tribunal under subsection 6.9(8) or 7(7) or any person, other than the Minister, affected by the determination of a member of the Tribunal under subsection 7.1(8) may, within ten days after the determination, appeal the determination to the Tribunal."

Subsection 33(3) of the Act:

"(3) The Tribunal may, with the approval of the Governor in Council, make rules not inconsistent with this Act governing the carrying out of the affairs of the Tribunal and the practice and procedure in connection with matters dealt with by it."

Subsection 37(6) of the Act:

"(6) The Tribunal or a member thereof shall, on request by a party to a proceeding before the Tribunal or member, furnish the party with the reasons in writing for the determination or decision of the Tribunal or member."

Section 2 of the Civil Aviation Tribunal Rules [now the Transportation Appeal Tribunal Rules]:

"2. In these Rules,

[...]

"proceeding" means a review under section 6.71, 6.9, 7, 7.1 or 7.7 or an appeal under section 7.2 or 8.1 of the Aeronautics Act; a review under section 27.1, 31 or 32 or an appeal under section 27.5, 31.2 or 32.2 of the Railway Safety Act;"

Sections 5 to 8 of the Rules:

"5. Service of a document, other than a summons referred to in section 14, shall be effected by personal service or by registered mail.

6. Where service of a document is effected by registered mail, the date of service is the date of receipt of the document.

7. Where a party is required or authorized to file a document with the Tribunal, the document may be filed by depositing it in the registry personally, by mailing it or sending it by courier to the registry or by transmitting it to the registry by telex, facsimile or other electronic means of communication if the registry has the necessary facilities for accepting transmission in such manner.

8. The date of filing of a document with the Tribunal is the date of receipt of the document at the registry, as evidenced on the document by means of the filing stamp of the Tribunal."

Section 11 of the Rules:

"11. The Tribunal may extend or abridge a time prescribed by or pursuant to these Rules for performing any act or doing any thing on such terms, if any, as seem just."

Section 18 of the Rules:

"18. (1) An appeal to the Tribunal pursuant to section 7.2 or 8.1 of the Aeronautics Act, or section 27.5, 31.2 or 32.2 of the Railway Safety Act shall be commenced by filing in writing with the Tribunal a request for appeal.

(2) A request for appeal shall include a concise statement of the grounds on which the appeal is based.

(3) A copy of a request for appeal shall be served by the Tribunal on each other party within ten days after filing the request."

Section 20 of the Rules:

"20. (1) The Tribunal shall render its determination in writing at the conclusion of a proceeding or as soon as is practicable after a proceeding.

(2) For the purpose of calculating the period within which a party may appeal a determination, the determination is deemed to be made on the day on which it is served on the party.

(3) The Tribunal shall serve on each party a copy of a determination forthwith after the determination has been rendered."

DECISION AS TO THE TIMELY FILING OF THE APPEAL

It may be helpful at this point to review the foregoing legislation to clarify procedures herein. Following the conduct of a review hearing the Tribunal Member renders a determination in accordance with the powers set out in subsection 6.9(8) of the Aeronautics Act. There are no provisions in the Act as to the form that this determination must take. Looking to the Tribunal Rules, we note that subsection 20(1) of the Rules provides that the Tribunal shall render its determination in writing at the conclusion of a proceeding.2

Pursuant to subsection 20(3) of the Rules the Tribunal must serve this determination on each party forthwith after the determination has been rendered. The method of service is set out in sections 5 and 6 of the Rules and subsection 20(2) of the Rules provides that for purposes of calculating the appeal period, the determination is deemed to be made on the day on which it is served on the party. The time within which one may file an appeal of a review determination is set out in subsection 7.2(1) of the Aeronautics Act. Procedures for the filing of an appeal are found in section 18 of the Rules, that is, it must be filed in writing with the Tribunal and the date of receipt of the document by the Tribunal is the date of filing as set out in sections 7 and 8 of the Rules.

The time frame of 10 days as set out in subsection 7.2(1) of the Act is strictly applied and the Tribunal has no jurisdiction to enlarge or extend the 10 days. This section of the Act does not contain words to empower the Tribunal to do so as one finds in subsection 6.9(3) or 7.1(3) in relation to the extension of time for the filing of a request for review. The time period for the filing of an appeal may not be extended or abridged by section 11 of the Tribunal's Rules as this Rule applies only to those times prescribed by the Rules and could not be said to apply to abridge a time period specified in the Aeronautics Act.

This matter has been decided by the Federal Court of Appeal on October 23, 1991.3 This was an application for judicial review of the decision of the Tribunal determining that it lacked authority to extend the ten-day limitation period provided for in subsection 8.1(1) of the Aeronautics Act to appeal a decision of one of its members. The applicant contended that the combination of subsection 20(2) and section 11 of the Civil Aviation Tribunal Rules gave the Tribunal the authority to grant the extension sought. Stone J.A., in dismissing the application, stated that the scope of the Tribunal's rule-making authority was limited by subsection 33(3) of the Act. There could be no rule adopted pursuant to that section which could be "inconsistent with this Act". Given that the wording of subsections 7.2(1) and 8.1(1) of the Act is the same, i.e. "may, within ten days after the determination, appeal the determination to the Tribunal", we accordingly adopt the reasoning in the Fry decision. We therefore conclude that the ten-day limitation period cannot be extended by this Tribunal.

The remaining questions for discussion are these: Can a determination be served verbally, such that the verbal decision of Ms. Racine on May 6th would be good service? Or must the determination be served in writing and if so, what was the date of service of the written determination?

The Minister's representative cites subsection 37(6) of the Act as authority for the proposition that the Tribunal does not have to provide written determinations unless asked to do so. We disagree with this interpretation as that subsection speaks only to the reasons for the determination and not to the determination itself. To summarize, subsection 20(1) of the Rules requires that the Tribunal shall render all determinations in writing at the conclusion of a proceeding, however, subsection 37(6) the Act provides that it shall furnish the party with the reasons in writing for the determination on request by a party to a proceeding. As a matter of practice the Tribunal provides written reasons with all of its determinations following review and decisions following appeal. The Transportation Appeal Tribunal of Canada Act (TATC Act) makes this practice a legal obligation.4

Given that the decision must be rendered in writing, and having regard to the method of service as contained in sections 5 and 6 of the Tribunal Rules, we find as follows: The Tribunal's file indicates that this determination of Ms. Racine dated May 9, 2003 was served by registered mail on May 12, 2003 and signed for as received by the Department of Transport on that same date. This information was conveyed to the Minister's representative prior to the filing of the Notice of Appeal on May 22, 20035 and the Tribunal file indicates that the same information was provided to the Respondent's counsel prior to the conduct of this appeal hearing.

This panel therefore finds that the Notice of Appeal having been filed in a timely manner, the preliminary motion on this issue is dismissed.

DISCUSSION OF GROUNDS OF APPEAL

We would like to preface our discussions by stating that arguments are often put to the Tribunal that we should determine all cases in the same way as those in the courts of criminal jurisdiction. However, in 1982 Mr. Justice Charles Dubin6 recommended that matters related to aviation are regulatory matters and are not criminal in nature and hence should be adjudicated before a specialized administrative tribunal. Following upon those recommendations, in June 1986, the Civil Aviation Tribunal7 was created. Over the course of the years, this Tribunal as an administrative tribunal has conducted its hearings with a standard of proof on a balance of probabilities8 and has employed a relaxed rather than a strict application of the rules of evidence.9 It is in this light that we must consider all matters that come before this Tribunal which is intended to be a layman's tribunal where pilots and others may appear on their own behalf or by a representative of their choice.10

This panel agrees with grounds for appeal numbers 1 and 2 for reasons given below and in our view, it is not then necessary to discuss the Minister's ground for appeal number 3.

In reading the Tribunal Member's Reasons for Determination, we are in agreement with the first paragraph on page 2 thereof, that is to say:

On reading the wording of the allegation, as drafted by the Minister, we learn that Mr. Roch's reckless conduct is linked, firstly, to the fact that he operated the aircraft without having first de-iced it before take-off.

All of the other paragraphs given in the Reasons for Review Determination relate to an alleged contravention of subsection 602.11(2) of the Canadian Aviation Regulations (CARs) although the Minister has not cited that subsection in the Notice of Suspension but rather has alleged contravention of section 602.01 of the CARs. Therefore in our view it is really not a question of a contravention of subsection 602.11(2) but rather of section 602.01 as cited in the Notice. It would appear that the Member in following upon the arguments of counsel for the Applicant (at review), has superimposed the elements of subsection 602.11(2) of the CARs regarding the requirement for de-icing before take-off into the case which was before her. In its Notice of Suspension, the Minister has alleged a contravention of section 602.01 which is that of having taken off in a reckless manner from Baie-Comeau airport. The contravention cited is one regarding an allegation of recklessness and it falls to the Tribunal to determine whether the Minister's evidence supports this allegation of reckless manner. The Minister has added the words: "indeed this aircraft was not de-iced before take-off, when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft." The Minister in providing these further details of the alleged breach of section 602.01 has provided information to the document holder so that he may know the case he has to meet.

We have reviewed about thirty decisions relating to the prohibition of flying in a negligent or reckless manner (formerly section 520 of the Air Regulations). We have found cases where the Minister's allegation contained only the words of section 520 of the Air Regulations, without further facts. One might suppose that there was a demand for particulars of facts after having received such a brief charge. But in no case did the Tribunal terminate the review hearing without having first heard the Minister's evidence, while giving as its reason the assertion that the Minister had badly drafted the Notice or the speculation that the Minister would have difficulty with its evidence having regard to the words contained in the Notice of Suspension. In fact, we did find one case where the Minister did include too many facts in the Notice, some of which it did not prove. The Member in that case considered the lack of proof for some of the factual allegations and stated:

Most of these factual allegations are not in dispute. However, the evidence did not substantiate all of the particulars alleged. While I do not find the insufficiency of evidence in respect of some of the particulars to be fatal to the charge, I would comment that it is unusual if not inappropriate to plead facts in a ‘charge' unless they are essential to the averment itself. In some cases, ‘particulars' may be ordered but this would not have been the case here.11

The principal reason given by the Tribunal Member is that the words in the Notice of Suspension following , you have contravened section 602.01 of the Canadian Aviation Regulations... in fact this aircraft was not de-iced before take-off, when the conditions were such that frost, ice or snow may reasonably be expected to adhere to the aircraft , were not founded in law. It is our view that these words are the particulars of the facts giving rise to the allegation of reckless conduct contemplated in section 602.01. In our view, it is premature for the Tribunal Member or for us to speculate regarding the stated facts that the Minister has put forth as particulars of its allegation of recklessness contained in section 602.01.

On the matter of the wording of the allegation, we would refer to an earlier appeal decision of this Tribunal wherein a pilot had received a notice of suspension pursuant to section 6.9 of the Aeronautics Act, the first of two counts of an alleged breach of subsection 520(1) of the Air Regulations reads as follows:

COUNT #1:

Air Regulation 520(1), in that at approximately, 1310 local time on or about March 4th, at or near Fort Hope, Ontario, you did unlawfully operate a Beech 99 aircraft, Canadian Registration C-GQAH in such a negligent or reckless manner as to endanger or likely to endanger the life or property of any person, by reason of the fact that you landed your aircraft on Runway 27 passing in close proximity to a Cessna 180 aircraft which occupied the runway, having landed shortly before and which was being taxied on the runway towards the taxi-way leading to the ramp.12

Despite the fact that there is nothing in the regulations that precludes a pilot from landing over another aircraft13 two witnesses at review gave testimony that "I know of no training course that involves practising flying over another aircraft" and "one aircraft landing over the top of another one that was on the runway, ... this is not something that they advocate"14. On the basis of this testimony the appeal panel dismissed the appeal and concluded that the conduct complained of in both counts, being landing an aircraft over the top of another one still on the runway and landing before a second aircraft had cleared the runway, falls below the standard expected of a reasonably prudent pilot so as to constitute negligence on the part of that pilot.15

Thus, it is our view that the Tribunal Member erred when she rejected the Minister's case in holding that the Notice of Suspension did not allege an offence founded in law. Moreover, given the review of the jurisprudence mentioned above, it is clear that there indeed was enough information given in the Notice of Suspension on which to base the alleged infraction of recklessness. The only question before the Tribunal Member at that point was , Did the Applicant have enough facts to know the case that he had to meet? A flight on the said date alleged to have been made in a reckless manner by reason of having taken off without de-icing. Without more, we believe that the Applicant has not been misinformed and has ample information to prepare his case in response to the alleged contravention of section 602.01 of the CARs.

DECISION

We refer that matter back to the Tribunal Member to conduct a review hearing in accordance with subsection 6.9(7) of the Aeronautics Act.