Decisions

CAT File No. Q-1955-37
MoT File No. NAP-5504-040046

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Air Satellite Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.01
Canadian Aviation Regulations, SOR/96-433, s. 703.88(1)(d)


Review Determination
Carole Anne Soucy


Decision: June 21, 2002

TRANSLATION

The Minister has not discharged its burden of proving, on a balance of probabilities, the liability of the pilot-in-command. This element being essential to the application of subsection 8.4(1), the Tribunal cannot consider the liability of the company and therefore cannot find it guilty of having contravened section 602.01 of the Canadian Aviation Regulations. As for the second count, the second-in-command had received training and had the required qualifications pursuant to paragraph 703.88(1)(d) of the Canadian Aviation Regulations. The Tribunal dismisses the Minister's application in respect of the two contraventions and the rest is not applicable.

A review hearing on the above matter was held June 11, 12 and 13, 2001, at Hôtel Le Manoir in Baie-Comeau, Québec.

OBJECT OF THE REVIEW HEARING

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened section 602.01 and paragraph 703.88(1)(c) of the Canadian Aviation Regulations.

Schedule A reads:

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, in contravention of section 602.01 of the Canadian Aviation Regulations.

Penalty: $15,000

On December 7, 1998, at about 11:09 hours local time, the aircraft registered as C-FCVK took off from the Baie-Comeau airport although the second-in-command had not received the required training pursuant to the provisions of subsection 723.98(14) of the Commercial Air Service Standards, in contravention of paragraph 703.88(1)(c) of the Canadian Aviation Regulations.

Penalty: $1,000

Pursuant to subsection 8.4(1) of the Aeronautics Act, you are being proceeded against as the registered owner.

PRELIMINARY REMARKS

At the start of the hearing, Air Satellite's representative, Mr. Jenner, presented a motion to set aside pursuant to paragraph 11(b) and subsection 24(1) of the Canadian Charter of Rights and Freedoms (the Charter).

The Charter stipulates as follows:

11. Any person charged with an offence has the right
[...]
(b) to be tried within a reasonable time;
[...]

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Minister of Transport's representative objected to the motion, arguing that the Respondent had contributed to the delay of the review hearing.

Following is a summary of the facts and arguments of the motion:

The accident occurred December 7, 1998. Transport Canada sent a Notice of Assessment of Monetary Penalty to the Respondent on December 1, 1999. A review hearing was set for May 25 and 26, 2000. At that time, the Minister was proceeding against Air Satellite and Jean-François Roch, the captain of flight 501, whose aircraft had crashed. On April 5, 2000, Ms. Édith Fournier, general manager of Air Satellite, sent a letter to the Tribunal registry indicating the following:

[...] As discussed, our main witness Mr. Jean-François Roch has informed us that he is unable to testify next May. The events of December 7 have really affected him and he does not feel ready to face the situation. He should, moreover, be notifying you of the situation in writing.

Furthermore, after having spoken with him, would it be possible to consider holding the hearing in Québec City, which would enable our witness to have people, such as the psychologist and physician who support him, close by [...]

On May 2, 2000, Susanne Forgues, registrar of the Tribunal, sent the parties a notice of adjournment of the hearing stating: "has been adjourned at the Respondent's request."

Thereafter, several telephone conversations took place between the Minister of Transport and the Tribunal to schedule the hearing, as indicated in Mr. Tamborriello's correspondence dated November 7, 2000. Mr. Tamborriello then expressed concern if the case were to be heard against Air Satellite only. He suggested a joint hearing.

The Tribunal tried to schedule the case for December 12, 13 and 14, 2000. Once again, Mr. Roch could not attend. At that point, Mr. Jenner decided to no longer represent Mr. Roch.

On March 5, 2001, another notice of adjournment set the hearing for April 26 and 27, 2001, in Baie-Comeau.

On April 19, 2001, a further notice of adjournment, this time at the Applicant's request, postponed the hearing until June 11, 12 and 13, 2001, on which dates the matter was heard.

The motion to set aside was dismissed for the following reasons:

First, we would point out that pursuant to subsection 24(1) of the Charter, the Federal Court of Canada has ruled that the Civil Aviation Tribunal has jurisdiction to hear a case respecting a ground of defence raised under the terms of the Charter. The Tribunal is a "court of competent jurisdiction."

Let us now look at paragraph 11(b) of the Charter. I will analyze it with the aid of case law provided by the parties.

Stevenson J., in R. v. CIP Inc.,[1] identifies two issues to be resolved:

  1. Whether the Respondent has a right to be tried within a reasonable time pursuant to paragraph 11(b)?; and
  2. if so, whether there has been reasonable delay in the circumstances of this case?

In this case, on May 27, 1986, an employee of CIP Inc. was fatally injured in an industrial accident. A coroner's inquest was held in August and CIP Inc. was charged with committing an offence under the Occupational Health and Safety Act. Due to a shortage of court facilities, the carrying over of other trials and the priority of another case, 19 months had passed before the accused could be tried. Counsel objected to the last adjournment and petitioned for the proceedings to be set aside. The Provincial Court judge granted it. The Ontario District Court overturned the stay of proceedings, a decision upheld by the Court of Appeal, and the appeal to the Supreme Court was dismissed.

Stevenson J. stressed that there must be a contextual and purposive approach to Charter analysis. He added that "whether or not a corporate entity can invoke a Charter right will depend upon whether it can establish that it has an interest falling within the scope of the guarantee, and one which accords with the purpose of that provision."

For example, section 7 of the Charter could not apply to corporate entities, since they do not have the right to liberty and security within the meaning of the Charter.

Later, Stevenson J. echoed the comments of MacDonnell Prov. Div. J. in R. v. 741290 Ontario Inc., [1991] 2 O.R. (3d) 336, at pages 351 and 352: "Any accused, corporate or human, can be denied full answer and defence by reason of delay." We would add that according to the general provisions of the Interpretation Act, R.S. 1985, c. I-21, the term "person" includes a corporation.

In the Blencoe[2] decision, submitted by the Applicant, we read: "There is no constitutional right outside the criminal context to be 'tried' within a reasonable time."

In this case, the complaints of sexual harassment filed against the Respondent generated considerable media attention. The hearings were held before the Commission more than 30 months after the initial complaints were filed. Mr. Blencoe alleged that this delay had caused serious prejudice to him and his family, which amounted to an abuse of process and a denial of natural justice.

It should be noted that in this case, the Supreme Court was to consider human rights and section 7 of the Charter.

In this case, the issue to be examined is whether the Respondent is a "person charged with an offence" within the meaning of section 11.

A number of decisions have been rendered on this subject, including the Wigglesworth[3] decision, in which Wilson J. writes:

The breadth of the opening words of s. 11 'any person charged with an offence' suggests that the section may well apply to non-criminal proceedings. [...]

[...] The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, either federally or provincially enacted. [...]

I share this view.

Unlike the Blencoe case, where the object of proceedings relating to human rights is not to punish but to end discrimination, offenders in the aeronautical sector are liable for contravention, cancellation of a licence, suspension of a certificate and monetary penalty, sanctions that are closely related to criminal law.

In conclusion, these parameters being established, namely, that the Respondent is a person charged with an offence within the meaning of section 11 of the Charter and is entitled to be tried within a reasonable time, we must look at whether the delay in this case was reasonable. The various factors stated by the courts are:

  1. length of the delay;
  2. waiver by the accused to invoke the delay;
  3. reasons for the delay;
  4. prejudice suffered by the accused.

Length of Delay

In this case, the delay is 18 months. At first glance, this delay may seem excessive. However, delays attributable to the Applicant should be distinguished from those attributable to the Respondent.

Waiver by the Accused to Invoke the Delay

In this case, this factor does not apply given the Respondent's action.

Reasons for Delay

The examination must consider all reasons for the delay. The first postponements were granted due to the psychological state of the pilot, Jean-François Roch, which is understandable under the circumstances. The Minister of Transport wished to proceed against the pilot and the company jointly, which is legally well founded. Initially, the case was to take four days, which was difficult to coordinate with all the parties and witnesses. And finally, a fact that particularly drew my attention was the letter of April 5, 2000, from Ms. Fournier to the Tribunal which, according to Mr. Jenner, is not a request for adjournment. With all due respect, I cannot share this view. The Respondent's inaction with respect to the new adjournment dates constitutes implied acceptance of them. In the Blencoe case, we read "Inaction may be relevant in assessing the degree of prejudice that an accused has suffered as a result of delay."

The question of whether a delay is excessive depends not only on the length, but also on contextual factors such as the nature of the case, its complexity as well as the nature of the proceeding and whether the person being proceeded against has contributed to or waived the delay.

In view of the foregoing, I find that the delays are partly attributable to the Respondent.

Prejudice Suffered by the Respondent

In the case CIP Inc. cited above, Stevenson J. was convinced by the Respondent's argument that "in order to succeed on its s. 11(b) claim, the appellant must persuade the court that its ability to make full answer and defence has been impaired."

In the present case, the Respondent informed us rather of its loss of business and the emotional impact on the community of Baie-Comeau. It has not been shown that the delay deprived it of an important element of proof for its defence. I consider, as in the Blencoe case, that the largest measure of prejudice to the Respondent resulted not from any delay, but from the publicity surrounding the accident that took place on December 7. Air Satellite had already been a victim of prejudice and stigmatized by the crash of flight 501. It has not established a causal link between the procedural delay and the prejudice suffered.

The delays are due to a range of factors that convey, not the intention of the Minister of Transport to prejudice the Respondent, but rather the existence of problems directly related to the accident.

The motion to set aside having been decided, before proceeding with its evidence, the Minister wished to correct the section referred to with respect to the contravention, to 703.88(1)(d) rather than 703.88(1)(c). The Respondent did not object. The motion was granted.

THE FACTS

The Respondent, Air Satellite, is a Canadian air operator that conducts commercial air taxi flights and shuttle operations from its Baie-Comeau operating base.

The morning of December 7, 1998, weather conditions were such that flights scheduled to depart early in the morning had to be postponed. The Air Satellite aircraft, a Britten Norman (BN) Islander registered as C-FCVK, that was to be used for flight ASJ-501 was located in the airport hangar.

Two aircraft took off at about 10:30 hours as the weather conditions had improved. At about 11:09 hours, the Air Satellite aircraft C-FCVK in turn took off. Jean-François Roch, pilot-in-command, and Soledad Lauzon, second-in-command, were on board, as well as a few passengers. The aircraft allegedly spent about twenty minutes on the ground on the runway before taking off. The aeroplane had allegedly not been de-iced. The aircraft crashed a few minutes later.

A Notice of Assessment of Monetary Penalty in the amount of $16,000 was sent to the company, Air Satellite Inc.

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

THE LAW

The Canadian Aviation Regulations (CARs) provide as follows:

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.

703.88 (1) Subject to subsection (6), no air operator shall permit a person to act and no person shall act as a flight crew member in an aircraft unless the person
[...]
(d) has fulfilled the requirements of the air operator's ground and flight training program.

The Commercial Air Service Standards (CARs standards):

723 - AIR TAXI - AEROPLANES

The standards under this Subpart apply to every Canadian air operator engaged in commercial air services under Subpart 703 of the Canadian Aviation Regulations.

[...]

723.98 Training Programs

[...]

(14) Right Seat Conversion Training

For a left seat-qualified pilot to operate an aeroplane from the right seat, the following shall apply:

(a) be qualified and current on the aeroplane type for left seat duties;
(b) receive sufficient technical ground training on right seat duties; and
(c) annually receive sufficient flight or FFS training to enable a Company Check Pilot, air operator aeroplane type Chief Pilot or aeroplane type Training Pilot to certify the competency of the pilot to carry out pilot duties from the right seat.

Subsection 8.4(1) of the Aeronautics Act stipulates:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

THE EVIDENCE

To shorten the debate, and after reaching an agreement with the Respondent, the Minister's representative filed a document entitled, "Coroner's Extracts" (M-1) pertaining to the accident that took place December 7, 1998; a voluntary deposition of Mr. Jean-François Roch, captain of flight ASJ-501 (M-2); Mr. Manton's expert witness statement (M-3); as well as the voluntary statement of Mr. Steve Tremblay (M-4). The Respondent did not object to these documents being produced but did not admit to their content, leaving it to the Tribunal to assess their relevance and evidentiary weight given the variations between the summaries.

Transport Canada presented its first witness, Mr. Steve Morin. Before beginning his testimony, he asked for the protection of the law, which he was granted pursuant to section 5 of the Canada Evidence Act. Here is the summary of his testimony:

Mr. Morin was first employed by Air Satellite as chief pilot in the fall of 1998. This was his first experience in this capacity. At that time, he was a 30-year-old Cessna 402 captain and he held a Canadian airline transport pilot licence (ATPL).

As chief pilot, he was to develop standard operating procedures and implement all required training programs approved and intended for the air operator's flight crews, to issue guidelines and instructions to flight crews as required, to distribute incident, accident and aeronautical occurrence reports and to do follow-ups. He was also to supervise crews, and assume the responsibilities delegated to him by the operations manager, Ms. Fournier.

According to the witness, Air Satellite did not have a check pilot as the Department of Transport administered the pilot proficiency checks. He explained that the BN Islander requires two pilots and Air Satellite does not require a captain to have training in order to occupy the co-pilot's seat. He did, however, provide co-pilot training to Jean-François Roch but not to Soledad Lauzon, the co-pilot of flight 501.

Flight authorizations at Air Satellite were given by either the director of operations or the chief pilot, in accordance with the operations manual. This authorization, however, was more implicit and, as a rule, when the flight captain determined that the flight could be made, the authorization was given. There was no document to sign.

The morning of December 7, 1998, Mr. Morin was in the Baie-Comeau airport terminal from 6:30 to 8:30 hours, where he had several conversations with various pilots. Upon arrival at the airport at about 6:30 hours, there was freezing rain, and at about 11:00 hours, it was snowing. Constantly referring to his statement taken by Mr. Jean-Denis Haran, a Transport Canada inspector, there had been four departures scheduled, and all four were cancelled or delayed because of the weather. The communications were mostly with the pilot, Ian Thibault. At about 10:30 hours, Mr. Thibault telephoned Mr. Morin to tell him that because of a new weather report forecasting favourable conditions, he was preparing to leave, as were his fellow pilots. Following this call, Mr. Morin checked the weather and looked outside and then endorsed the pilots' decision. He did not see the aircraft of the pilot of flight 501 before take-off.

With respect to Air Satellite's de-icing policy, there were certain tools the pilot used to de-ice the aeroplane, including brooms and glycol tanks. The glycol tanks are aerosol devices operated with the aid of a small pump. The pilot takes the container and sprays the contents onto the surfaces to be decontaminated. The glycol is kept inside, in either the hangar or the Air Satellite office, usually near a radiator. The de-ice truck is rarely used because of the costs involved.

The pilot-in-command must check whether frost, ice or snow is adhering to the critical surfaces of the aeroplane. If so, he sweeps first, and then, if necessary, will use glycol. The company implemented the surface decontamination policies in accordance with the operations manual.

As for the content of the training program, it was divided into two sections, namely, ground training and flight instruction. He himself had provided flight instruction according to the training program standards contained in the operations manual.

In cross-examination, Mr. Jenner filed a document dated December 7, 1998, addressed and sent to Air Satellite at 15:50 hours universal time. This document states: "SIGMET A2 cancelled at 071525." This SIGMET originated from a flight information centre and indicated a change in the weather conditions.

The witness said that, to the best of his recollection, Jean-François Roch and Soledad Lauzon had been trained in de-icing techniques. The Respondent produced two documents to this effect entitled: "Aircraft Critical Surface Contamination - Exam." These were exams completed by Jean-François Roch, dated April 21, 1998, and Soledad Lauzon, dated October 3, 1998.

Mr. Jenner produced another document entitled "Schedule of the costs of a training program" regarding surface contamination. This document contains an attendance record, the contents of a specific training plan and minutes. In the attendance record, we find the names of Jean-François Roch and Soledad Lauzon, as employees, and that of Steve Morin, as trainer. The document indicates the hours spent in training, i.e., 2 hours on October 3, 1998. There are also training certificates for Mr. Roch and Ms. Lauzon with the signature of the trainer, Mr. Morin. Mr. Morin added that a document entitled "When in doubt" as well as a training videotape regarding aircraft critical surface contamination was used to supplement this training.

The morning of December 7, 1998, at least two aircraft took off before flight ASJ-501. The Air Satellite flight log system is a class D system commonly referred to as Self Dispatch. The pilot must ensure the management of his flight, that is, all decisions and preparations related to this flight. He is responsible for checking the amount of fuel, ensuring that no surface is contaminated, checking the weather and the loading and weight distribution of the aircraft. The chief pilot's responsibility is to supervise. An extract from the Respondent's operations manual states, at section 2.1.2, as follows:

2.1.2 Flight clearance is granted when the pilot-in-command has determined:

(a) that the flight can be undertaken in accordance with the air operator certificate, the company's operating instructions and in accordance with the Canadian Aviation Regulations and applicable standards;
(b) that the required licences, permits and certificates are valid;
(c) the aircraft has a sufficient number of flying hours available before any compulsory scheduled maintenance;
(d) that an operational flight plan, flight plan or flight itinerary, as the case may be, has been filed.

Paragraph 1.5.4(a) of the company's operations manual specifies: "Company pilots report to the chief pilot and must ensure the safety of the flights assigned to them."

Section 5.22.1(c) reads as follows:

5.22.1 For a left seat-qualified pilot to operate an aeroplane from the right seat, he must:

[...]
(c) receive sufficient flight or full flight simulator training to enable a Company Check Pilot, air operator aeroplane type Chief Pilot or aeroplane type Training Pilot to certify the competency of the pilot to carry out pilot duties from the right seat.

Mr. Morin testified that it is not always necessary to have additional training to be co-pilot when someone is already a qualified captain.

An audit was done in September 1998, and during that meeting, Mr. Morin discussed this subject with Mr. Pierre Doucet, a Transport Canada inspector. Ms. Lauzon was one of the captains who had not received special training to act as co-pilot. From his understanding of the conversations with Transport Canada, and given the fact that Ms. Lauzon was a class 3 instructor and had spent many hours in the right seat as a co-pilot, the witness understood that she had sufficient training to carry out the duties of and occupy the right seat.

Mr. Jenner produced section 5.27 of Air Satellite's operations manual, which states as follows:

In the case of flight[s] in IFR condition[s] requiring 2 pilots, Air Satellite may decide to put 2 pilots-in-command, one in the capacity of left-seat pilot-in-command and the other in the capacity of right-seat co-pilot. Both pilots are qualified pilots-in-command. This measure may be valid for Cessna 310-335-402 aircraft and the Islander.

Mr. Morin went on to testify that the company had adopted the policy that on the BN Islander, the pilot-in-command was sufficiently trained to act as co-pilot.

On redirect examination, he repeated that paragraph 5.22(c) of the operations manual became restrictive and less demanding following Mr. Doucet's explanations. In short, right-seat pilot training is provided to a pilot who wants to become an instructor. That is why Mr. Roch had been given this training, whereas Ms. Lauzon was already an instructor.

The next witness for the Department was Mr. Jean-Denis Haran, a civil aviation inspector for Transport Canada. He was in charge of the investigation of the incident involving flight ASJ-501.

During the investigation, he took numerous statements, including those of Ms. Fournier and Mr. Morin. He also checked the training records of both pilots. The statements were filed in evidence; as for the training record, the Respondent had admitted that Ms. Lauzon had not received additional right-seat training.

The next witness, Mr. Pierre Doucet, is a Transport Canada inspector. At the time of the occurrence, he was the audit manager at Air Satellite. He was therefore responsible for the prescribed audit and managed it with help from inspectors and arranged dates and schedules with the company.

Mr. Doucet recalled having met Mr. Morin during his audits and having spoken with him over four days. Without remembering the exact terms used with regard to flying with a co-pilot, he did not tell Mr. Morin that right-seat training was not necessary because he did not have the authority to grant an exemption from an aviation standard. According to the standards, training is required to act in the capacity of co-pilot. He added that when the operations manager of a company wants to obtain an exemption from a standard, he must apply to the director of air carriers, who forwards it to the director general with his recommendations. Once the exemption is granted, the company must amend its operator certificate and describe how it will proceed. Following this amendment, it must attach a copy of the exemption to the operations manual.

In cross-examination, Mr. Doucet testified that about ten people conducted the audit at Air Satellite in September 1998.

The witness admitted that it was possible that on that date, the company's operations manual had not yet been approved by Transport Canada, even though it had been submitted in accordance with the new legislation on October 10, 1996. The volume of work and the number of manuals to be approved were such that this was a possibility. This prompted Mr. Jenner to say that the document was in the draft stage from October 1996 to October 1998. It is not possible to amend a document that has not been approved. Paragraph 5.27 would have been inserted into the draft as the original page that would have been approved with the document as a whole on October 28, 1998.

The Minister's representative objected to this remark, since the letter of October 13, 1998, from Ms. Fournier to Transport Canada said nothing about an addition, but rather an amendment to the operations manual. Obviously, he added, if one speaks of an amendment, then there is an original.

The Applicant's evidence being concluded, Mr. Jenner called his witness, Ms. Fournier, who is general manager of Air Satellite. She explained that according to the company's administrative system, pilots are responsible for their aircraft and their flight. An internal control system allows for some supervision in all departments of the company. Spot checks enable it to check different locations at different times. For example, from her office, she has a view onto part of the fleet.

Regarding the operator certificate, Ms. Fournier submitted that during the audit in September 1998, the operations manual had not yet been approved. According to her, section 5.27 regarding IFR flight with two pilots-in-command under heading 703 formed an integral part of the operations manual. The purpose of this paragraph was to codify the fact that no additional training was required for a qualified captain to fly in the right seat. She recalled an agreement between Messrs. Morin and Doucet to this effect. After numerous discussions with Transport Canada inspectors, including Mr. Leblanc, the appointed Air Satellite auditor, she acted believing her operations manual complied with the standards and regulations approved by Transport Canada.

The morning of December 7, 1998, she was present at the airport. The weather varied from rain to snow to eventually turning fair. Several flights were delayed. She acknowledged that there were several de-icing methods, including the broom and glycol tanks. The glycol is usually kept inside and it can be heated in a double boiler. This method is rarely used, however, because the aircraft are almost always inside the hangar. If they cannot take off, they are brought back into the hangar and cleaned with hot water to make sure nothing remains on the aircraft critical surfaces.

Mr. Haran, a Transport Canada inspector, testified as an expert based on his experience of decontamination products. Mr. Haran told us of an Air Carrier Advisory Circular (ACAC) containing a table that explained the effective times of Type I fluids. This table is used especially when de-icing with a truck. Pilots and technicians must comply with the temperatures and times indicated on the table.

During cross-examination, the witness appeared confused when Mr. Jenner asked him to explain what the Type I fluid mixtures consist of that are indicated in the holdover time table with the following: "The Type I fluid mixture [...] is selected so that the FP [freezing point] of the mixture is at least 10°C (18°F) below the OAT [outside air temperature]".

Further down, we read: "Guideline for Holdover Times Anticipated for Type I Fluid Mixture."

The witness understood the table but could not explain the glycol application methods, as he has never de-iced an aircraft.

Back in the witness stand, Ms. Fournier continued her testimony indicating that Mr. Roch had about 1,200 to 1,300 hours of experience and 500 hours on the BN Islander.

The morning of December 7, everyone was on alert because of the temperature and the resulting delays. She could not see the aircraft which was to be used for flight 501 as it was located in one of the hangars. She did not see the aeroplane on the ramp or at the fuel pumps. She did, however, notice Jean-François Roch's aeroplane take off five to ten minutes after that of Yan Thibault.

Ms. Fournier explained that the glycol used by Air Satellite is pure and undiluted. She is familiar with the table found in the ACAC. It is helpful when leasing the de-ice truck to other airlines, such as Air Canada. To her knowledge, Air Satellite pilots have never used the truck for de-icing.

The morning of December 7, the pilots who took off before flight 501 cleaned their aircraft with a broom. She could see them from her office window. Unlike Mr. Roch's aircraft, both aircraft had spent the night outside, and therefore had to be swept off.

She could not say whether or not Mr. Roch used a decontamination method before take-off.

This concluded the Respondent's evidence.

ARGUMENTS

Mr. Tamborriello began his argument with a motion to produce extracts from the operations manual. First, the evidence being concluded, it was not permitted at this stage of the hearing to produce any document except case law to support the parties' arguments.

Secondly, contrary to the Applicant's submissions, the company's operations manual is a document that an airline is legally bound to keep, but it is not in itself a legal document and cannot be produced as such. It is among the documents that may be used as evidence. Its content can vary from company to company. It is therefore documentary evidence used to prove the veracity of the information it contains.

The motion was dismissed.

Arguments of the Applicant

Regarding the first count, the Applicant argues that all the essential elements of the offence have been proven.

It was established that pilot-in-command Roch and co-pilot Lauzon were on board flight 501. It has been admitted that the aircraft was not de-iced. Finally, given the weather reports and the statements of experts Manton and Mathieu, it was reasonable to believe that frost could adhere to the aircraft, thereby proving a take-off made in a reckless manner.

Mr. Tamborriello submitted the Decicco[4] decision regarding the definition of the term "reckless": "Lack of proper caution; careless of the consequences [...] even going so far as to imply willfulness." The Applicant submits that the conduct of pilot Jean-François Roch covers several elements of this definition.

Regarding the defence of due diligence presented by the company, this has not been proven. Also, he added, a proceeding against Air Satellite is contemplated only and solely if the Tribunal determines that Jean-François Roch's conduct was contrary to the regulations.

Assuming Mr. Roch committed an offence, one must ask oneself why the aeroplane took off in that condition. The persons responsible were present and aware of the weather.

Section 723.07 of the Standards stipulates the responsibilities of the operations manager who must, among other things, oversee flight safety. This standard, in particular divisions (C), (D), (H) and (M), had not been complied with.

As these responsibilities were not fulfilled, and in view of all these factors, the Minister's representative submitted that the Respondent has not succeeded in its defence of due diligence.

Regarding the second count, Mr. Tamborriello argued at length about the change made to the Air Satellite operations manual. An exemption from the standards cannot be granted merely by mail or notice. Standard 723.98 requires right-seat training.

As for being misled by a Transport Canada official, the Supreme Court set out in Jorgensen[5] the four criteria required for such a defence, namely:

  1. a regulatory statute must be involved;
  2. the advice given must be official;
  3. the regulatory statute must be complex and difficult to understand;
  4. the person must have relied on the official's advice.

In this case, the third criterion has not been met, and this defence therefore does not hold up, even allowing that Mr. Doucet gave such advice.

Sanction

The Applicant asked whether there was any constraint or urgency prompting the captain of flight 501 to take off on December 7, 1998. As nothing to this effect has been proven, it would be considered a voluntary action.

In assessing the penalty, Mr. Tamborriello reiterated the following aggravating factors taken from the Parachutisme Aventure[6] decision: planned, premeditated breaches, extent of harm to victims.

Pursuant to section 103.08 of the CARs, the maximum penalty provided is $25,000 for the first count, and the Minister assessed $15,000. The maximum for the second count is $15,000, and the assessed penalty was $1,000.

Arguments of the Respondent

Regarding the sanction, Mr. Jenner refuted all arguments relating to aggravating factors, except the harm caused to the victims and their families, adding that there is no evidence of cause and effect. He also asked the Tribunal to recall the following mitigating factors, namely, the lack of a prior offence, the degree of remorse and the exemplary degree of cooperation with the Department of Transport. He added that the prejudice already suffered by the company as a result of the accident as well as the 18-month delay should be taken into account in assessing the penalty, should there be a finding of guilt.

Regarding the first count, Mr. Jenner argued that if there was an offence, it was committed by a person, namely, the pilot-in-command. The Respondent presents a defence pursuant to section 8.5 of the Aeronautics Act, namely the defence of due diligence. It did everything it reasonably could do.

According to Mr. Jenner, the Minister must show that the owner did something which contributed to, or encouraged the author of, the offence. Contrary to the Applicant's submissions, the conduct of the Respondent's operations manager and chief pilot is beyond reproach. They complied with the standards regarding their responsibilities and obligations. Control of the conduct of flight operations is left, however, to the captain of the flight.

In September 1998, Transport Canada carried out an audit of one or two weeks at Air Satellite involving some ten inspectors. Nothing in the audit report refers to or is critical of the type "D" (dispatch) operational control system. The same system existed at the time of the accident.

The Respondent rarely uses glycol since, as a rule, the aircraft are inside. He added that Air Satellite uses pure glycol, and the table therefore does not apply since it refers to the use of glycol diluted with water.

It was admitted that no additional training was provided to the co-pilot Soledad Lauzon. Mr. Jenner argued that the standard gives the company some discretion regarding this training. Even allowing that Mr. Doucet did not give authorization to fly without additional training, Mr. Leblanc approved the Air Satellite operations manual with section 5.27, which gives the company the option. He added that this section is still in the Air Satellite training manual and therefore concluded that Soledad Lauzon's training complied with the Respondent's operations manual. Mr. Jenner concluded his argument by adding that both pilots of flight 501 had received training on wing contamination on two occasions in 1998.

Rebuttal

Mr. Jenner's analysis of subsection 8.4(1) of the Aeronautics Act is inaccurate. The registered owner does not have to be the co-offender in order to be found guilty. Subsection 8.4(1) imposes no additional burden. Mr. Tamborriello argued that establishing the offender's guilt is sufficient to render the company guilty.

As for the interpretation of section 703.88 of the CARs, Mr. Tamborriello argued that the preamble requires all criteria to be met and applied jointly, contrary to the Respondent's submissions.

ANALYSIS OF THE EVIDENCE

First Contravention

The essential elements of the offence are as follows:

  1. Air Satellite is the registered owner of aircraft C-FCVK;
  2. Jean-François Roch was the captain of flight 501 on December 7, 1998;
  3. he took off from the airport in a reckless manner as the aircraft had not been de-iced on the ground;
  4. the conditions were such that it was reasonable to believe that frost, ice or snow could adhere to the aircraft.

The Minister argues that the Tribunal must first consider the pilot liable pursuant to section 602.01 of the CARs before subsection 8.4(1) could apply.

The Respondent argues that to succeed in its action, the Applicant, in addition to proving the guilt of the pilot, must show that the registered owner contributed to, or encouraged the offence.

Let us examine the wording of subsection 8.4(1) of the Aeronautics Act:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

The legislator uses the verb "may", with respect to the person liable for the offence and to the registered owner. The interpretation of the verb "may" is not construed as having the same scope as the verb "must." It is clear that the legislator allows discretion in proceedings. However, since the legislator does not speak in order to say nothing, "in respect of an offence" requires proof of the commission of the offence. Proceedings against the registered owner are conditional on proving the pilot's liability. A different interpretation would be contrary to the legislator's intent.

Moreover, nothing leads to the conclusion, as the Respondent submits, that the evidence must show encouragement on the part of the company. The sole fact of being the registered owner of the aircraft related to the offence suffices. The only requirement of subsection 8.4(1) is that the culpability of the offender be established, as the Applicant pointed out.

The Minister therefore had the burden of proving the pilot's liability in order to succeed in his action. Did he discharge his burden?

Here are the elements of proof provided by the Applicant concerning the pilot's liability.

The parties reached an agreement about producing extracts from the coroner's report. This agreement is, at the least, confusing. On the one hand, the Respondent's representative does not object, to avoid interfering with the pilot's rights, while on the other hand, he does not admit the truth of the facts. The Minister, for its part, is asking the Tribunal to assess the relevance of the extracts.

The extracts from the coroner's report (M-1) consist of a 31-page typed document, unsigned, undated, with no seal or proof of conformity, whose origin is unknown to the Tribunal. It consists of various summaries of events relating to the preparations, boarding and take-off of flight 501. The summaries came from seven individuals who were present the morning of December 7, including Captain Roch. The other names appearing on the document were never mentioned during the proceeding, with the exception of Mr. Mathieu, who the Minister's representative qualified as an expert. As in the case of Mr. Manton's report (M-3), the Minister submitted no evidence of their qualifications, abilities and experience qualifying them as experts. No experts came to testify at this hearing to enlighten the Tribunal about their expertise and be cross-examined. No explanation was given for their absence.

As for Captain Roch's unsworn statement (M-2), it is difficult to critically evaluate it given that his neurophsychological condition was such that he could not attend the hearing to give his version of the facts and be duly represented.

The Applicant also produced the deposition of Mr. Steve Tremblay, also absent from the hearing.

All this evidence constitutes hearsay. While the Tribunal is not bound to strictly apply the rules of hearsay exclusion, this kind of evidence is less reliable since the author of the statement has not been sworn and cannot be cross-examined.

The Law of Evidence in Canada describes the notion of hearsay as follows:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.[7]

Subsection 37(1) of the Aeronautics Act stipulates as follows:

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

In Minister of Transport and James Jeffrey Rowan,[8] my colleague Allister Ogilvie analyzed the application of the rules of evidence in administrative tribunals. We read:

That is not to say that no rules apply regarding evidence. [...] Of course, the basic criterion is that it must be relevant. However, not all relevant evidence is of equal probative value. The hearing member must decide what weight to ascribe to relevant evidence.

[...]

Hearsay evidence can be of value, especially if verified or corroborated by other evidence or if it forms the corroboration of some other evidence.

That is not the case here. The authors of the reports and statements were not present to testify. No eyewitness came to corroborate the facts about the contamination of the wings. Exhibits M-1 to M-4 constitute hearsay. Certain statements are even contradictory as to the type of precipitation. While they may be admissible in law, their probative value is very weak. Intellectual rigour, always called for, becomes indispensable when a document constitutes the basis of evidence. This is also true for the Respondent who could not assume what importance the Tribunal would ascribe to it. In this case, the presumption of the pilot's guilt was the sine qua non condition to proceeding against the Respondent.

The Minister can present its evidence as it wants. However, in this case, the evidence presented regarding the essential element of the offence, the fourth, is uncorroborated hearsay. The presence at the proceeding of those who witnessed the take-off run of aircraft C-FCVK could admittedly have helped to prove this fourth element of the offence. All those who were present at the hearing, including the Minister's witnesses, stated that they did not see the aircraft before take-off and although they testified to the very variable weather conditions of that morning of December 7, the Tribunal cannot conclude from this that there was frost, ice or snow that could adhere to the aircraft. The Tribunal attributes very little weight to Exhibits M-1 to M-4 and my decision is based essentially on the oral testimony.

In view of the foregoing, and after having analyzed the documentary and testimonial evidence at length, the Tribunal determines that the Minister has not discharged its burden of proving, on the balance of probabilities, the liability of Captain Jean-François Roch. With this being an essential element to the application of subsection 8.4(1), the Tribunal cannot consider the liability of the company and thereby cannot find it guilty of having contravened section 602.01 of the CARs pursuant to subsection 8.4(1) of the Aeronautics Act.

Second Contravention

The very existence of section 5.27 of the Respondent's operations manual gives rise to the conflicting testimony of two witnesses for the Minister, namely, Messrs. Morin and Doucet. The first submits that the second authorized the company to fly with two pilots on certain aircraft types, while the second argues that he was not authorized to grant such an exemption.

On the other hand, Mr. Leblanc, the company's appointed inspector, approved the manual with section 5.27. At the time of the hearing, that section was still an integral part of the operations manual.

In his testimony, Mr. Morin pointed out that Transport Canada is responsible for pilot proficiency checks at Air Satellite. This testimony, rather incriminating for Transport Canada, has not at all been contradicted.

On October 13, 1998, Ms. Fournier sent correspondence to the attention of Mr. Doucet regarding an amendment to the operations manual with respect to IFR flight with two captains on board.

A letter from Ms. Fournier dated November 1, 1999, that is, more than one year after the first, mentions discussions between Messrs. Doucet and Morin, confirming that there was no need for training to occupy the co-pilot's seat.

The witness Doucet admits that it is possible that the original version of the manual was not approved before 1998. This would perhaps explain the confusion about the originality of section 5.27.

It was admitted that Ms. Lauzon had not received additional training to act as co-pilot. However, correspondence from Air Satellite shows, at the very least, that the company believed in good faith that two captains could be used on certain aircraft types.

While admitting that this authorization had not been granted and that the Respondent itself changed or added section 5.27, why, then, would Mr. Leblanc, the appointed inspector, not have acted to correct or prevent this change?

The letter of November 1, 1999, from Ms. Fournier was addressed to Mr. Haran. There were therefore three Transport Canada inspectors who knew the situation. Where are the replies to the correspondence of October 13, 1998, and November 1, 1999? The Tribunal considers the Applicant's attitude to be implied acceptance of the situation.

In view of all the foregoing, the Tribunal considers that the Minister has not discharged its burden of proof on the balance of probabilities, and considers that the second-in-command had received training and had the required qualifications pursuant to paragraph 703.88(1)(d) of the CARs. The Tribunal dismisses the Minister's application in respect of the two contraventions and the rest is not applicable.

Carole Anne Soucy
Member
Civil Aviation Tribunal


[1] R. v. CIP Inc., [1992] 1 S.C.R. 843.

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

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

[4] Francis Dominic Decicco v. Minister of Transport, CAT File No. C-1316-02, appeal.

[5] R. v. Jorgensen [1995] 4 S.C.R. 55.

[6] Minister of Transport v. Parachutisme Aventure inc./e.s.a. Aéro 3000, CAT File No. Q-1963-41.

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

[8] CAT File No. A-1500-33.