Decisions

CAT File No. Q-2097-05
MoT File No. N5504-40628

CIVIL AVIATION TRIBUNAL

BETWEEN:

Laurentide Aviation (2737-5633 Québec Inc.), Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 6.9
Canadian Aviation Regulations, SOR/96-433, ss. 571.10(1), 605.94(1), SOR/00-389, s. 605.84(1)

Suspension of operator certificate


Review Determination
Caroline Desbiens


Decision: March 12, 2002

TRANSLATION

I dismiss the notice of suspensions of operator certificate No. 008008 issued on July 18, 2000, since under the terms of subsection 8.4(1) of the Aeronautics Act the Minister had neither the power nor the authority to suspend the operator certificate of the Applicant as the owner of aircraft C-GZLZ for the specified periods.

A review hearing on the above matter was held January 8 and 9, 2001, and on May 7 and 8, 2001 at 10:00 hours at the Federal Court of Canada in Montréal, Quebec.

BACKGROUND

This case was heard at the same time as the review matter between the same parties bearing No. Q-2095-19 concerning the approved maintenance organization (AMO) certificate of Laurentide Aviation (2737-5633 Québec inc.) (hereafter "Laurentide Aviation") and also along with the review matter between Gordon Leitch and the Minister of Transport, Civil Aviation Tribunal file No. Q-2081-04 heard January 8 and 9 and May 7 and 8, 2001.

The parties made their submissions in writing, the last submission having been received November 13, 2001.

NOTICE OF SUSPENSION

In this case, the Respondent Minister decided to suspend the Applicant's operator certificate No. 008008 on July 18, 2000. The notice of suspension of this operator certificate states 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 the following provision(s): subsections 605.84(1)a), 571.10(1), 605.94(1) and 605.96(1) of the Canadian Aviation Regulations.

See Schedule 1

Schedule 1 of the said Notice provides the following details:

Subsection 605.84(1)a)

On July 18th, 1998, at approximately 8:50 hours local time, the aircraft Cessna 152 registered as
C-GZLZ, carried out a flight from Montreal/Les Cèdres Aerodrome while the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft.

PENALTY: 30 days suspension

Subsection 571.10(1)

On or about July 17th, 1998, the aircraft Cessna 152 registered C-GZLZ was released after maintenance, contrary to Chapter 571 of the Airworthiness Manual whereby the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft.

PENALTY: 14 days suspension

Subsection 605.94(1)

On or about July 17th, 1998, the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft was not recorded in the journey log of the aircraft Cessna 152 registered C-GZLZ.

PENALTY: 3 days suspension

Subsection 605.96(1)

On or about July 17th, 1998, the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft was not recorded in the appropriate technical record of the aircraft Cessna 152 registered C-GZLZ.

PENALTY: 7 days suspension

Section 6.9 of the Aeronautics Act provides as follows:

6.9 (1) Where the Minister decides to suspend or cancel a Canadian aviation document on the grounds that the holder of the document or the owner or operator of any aircraft, airport or other facility in respect of which the document was issued has contravened any provision of this Part or any regulation or order made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at his latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

[...]

(3) Where the holder of a Canadian aviation document or the owner or operator of any aircraft, airport or other facility in respect of which a Canadian aviation document is issued who is affected by a decision of the Minister referred to in subsection (1) wishes to have the decision reviewed, he shall, on or before the date that is thirty days after the notice is served on or sent to him under that subsection or within such further time as the Tribunal, on application by the holder, owner or operator, may allow, in writing file with the Tribunal at the address set out in the notice a request for a review of the decision.

[...]

(7) At the time and place appointed under subsection (6) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner or operator affected by the decision, as the case may be, with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension or cancellation under review.

(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.

PRELIMINARY REMARKS

At the hearing, the Respondent Minister withdrew the suspension in respect of subsection 605.96(1) of the Canadian Aviation Regulations (CARs) and therefore the review hearing concerned only the first two offences.

It should also be pointed out that on August 11, 2000, the chairperson of this Tribunal, Faye Smith, stayed the periods of suspension of the operator certificate issued by the Minister in this case until this Tribunal has ruled on this suspension at the conclusion of these proceedings.

Finally, the parties agreed to enter into this record the evidence submitted in file No. Q-2081-04 between Mr. Gordon Leitch and the Minister of Transport and file No. Q-2095-19 between Laurentide Aviation and the Minister of Transport.

EVIDENCE OF THE MINISTER

In addition to the evidence entered by consent into this record, the Minister filed the following exhibits: Exhibit M-14 (certificate of registration of aircraft C-GZLZ) and Exhibit M-15 (operator certificate of Laurentide Aviation). This completed the Minister's evidence.

EVIDENCE OF THE APPLICANT

The Applicant filed no evidence in addition to that filed in the two aforementioned files.

THE ISSUES

It appears from the notice of suspension issued by the Respondent Minister in this case that the second and third offences alleged against the Applicant Laurentide Aviation for which its operator certificate was suspended, are the same as those alleged against Mr. Gordon Leitch in file No. Q-2081-04 and for which the Applicant's AMO certificate was suspended in file No. Q-2095-19. These are in fact the offences alleging that on July 17, 1998 the maintenance release did not meet the standards of airworthiness specified in Chapter 571 of the Airworthiness Manual because the aircraft was returned to service when the return spring of the main pedal controls of the rudder and its attachment bracket were removed from aircraft C-GZLZ (subsection 571.10(1) of the CARs).

The other identical offence concerns the fact that the defects relating to the abovementioned parts were not entered in the journey log of aircraft C-GZLZ on July 17, 1998 (subsection 605.94(1) of the CARs).

For both these offences, the Respondent proceeded against the Applicant as the owner of aircraft C-GZLZ, based on the principle of vicarious liability provided in subsection 8.4(1) of the Aeronautics Act.

In addition to these two offences, the Respondent Minister submits that under the terms of subsection 8.4(1) of the Aeronautics Act, it can also proceed against the registered owner of aircraft C-GZLZ, in this case the Applicant, for an offence under subsection 605.84(1) of the CARs, and suspend its operator certificate.

This subsection provides as follows:

605.84 (1) Subject to subsections (3) and (4), no person shall conduct a take-off, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, unless the aircraft is maintained in accordance with
(a) any airworthiness limitations applicable to the aircraft type design;
[...]

In short, this was the provision in effect on July 17, 1998.

The issue is therefore whether, as in Laurentide Aviation v. Minister of Transport, file No. Q-2095-19, the Minister was authorized to suspend the operator certificate of Laurentide Aviation as the owner of aircraft C-GZLZ pursuant to subsection 8.4(1) of the Aeronautics Act because of the fact that another person is subject to be proceeded against for having contravened paragraph 605.84(1)(a) (in this case the pilot) on July 18, 1998, and subsections 571.10(1) and 605.94(1) on July 17, 1998 (in this case the aircraft maintenance engineer Gordon Leitch).

ARGUMENTS OF THE PARTIES

The arguments of the Respondent Minister in this case are identical to those submitted in file No. Q-2095-19 between the Applicant and the Minister of Transport.

The Minister did not elaborate on the offence relating to paragraph 605.84(1)(a) which is not dealt with in the other file, so we must presume its submission. As it has been concluded that maintenance of the aircraft was not performed in accordance with the standards of airworthiness such that an offence relating to subsection 571.10(1) of the CARs was committed by Gordon Leitch, we presume that the Minister's submission is that the pilot contravened subsection 605.84(1) of the CARs on July 18, 1998, when he conducted a take-off in the aircraft in question, namely, the aircraft Cessna 152 C-GZLZ which had not been maintained in accordance with the standards of airworthiness. As it is not disputed that the aircraft C-GZLZ was flown on July 18, 1998, ending unfortunately in the crash of the aircraft at Lac St-François, the Minister submits that the elements of this offence and those of the offence relating to subsections 571.10(1) and 605.94(1) of the CARs have been proven.

In short, we presume that the Respondent's arguments are that the standards of airworthiness applicable to the aircraft type design that were contravened with respect to the maintenance of aircraft C-GZLZ in the Gordon Leitch case (file No. Q-2081-04) constitute an airworthiness limitation applicable to the aircraft type design in accordance with paragraph 605.84(1)(a) of the CARs in force at the time of the offence.

Counsel for the Applicant submitted the same arguments as those submitted in Laurentide Aviation v. Minister of Transport, file No. Q-2095-19.

ANALYSIS AND DISCUSSION

In this file, as in file No. Q-2095-19 between Laurentide Aviation and the Minister of Transport, the Respondent Minister invokes subsection 8.4(1) of the Aeronautics Act to conclude that the owner of the aircraft contravened paragraph 605.84(1)(a) and subsections 571.10(1) and 605.94(1) of the CARs and to justify the suspension of its operator certificate.

As we concluded in our determination rendered on this day in the Laurentide Aviation case, file No. Q-2095-19, the Respondent Minister was not authorized to suspend the Applicant's operator certificate under the terms of subsection 8.4(1) of the Aeronautics Act since only a monetary penalty could be assessed by the Respondent against the owner of the aircraft for the offences cited in the notice of suspension of July 18, 2000.

CONCLUSIONS

Consequently, and for the reasons set out in the case between Laurentide Aviation and the Minister of Transport bearing No. Q-2095-19, I dismiss the notice of suspensions issued by the Respondent on July 18, 2000, for the three offences contemplated in Schedule 1 of this notice of suspension, since under subsection 8.4(1) of the Aeronautics Act the Minister had neither the power nor the authority to suspend the operator certificate of the Applicant as the owner of aircraft C-GZLZ for the specified periods.

Caroline Desbiens
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Michel G. Boulianne, Suzanne Racine


Decision: April 1, 2003

We uphold the 30-day suspension of the operator certificate as imposed by the Minister in July, 2000 for the contravention of paragraph 605.84(1)(a) of the Canadian Aviation Regulations. We dismiss the 14-day suspension for the alleged contravention of subsection 571.10(1). We uphold the 3-day suspension for the contravention of subsection 605.94(1) of the CARs. The 33-day suspension shall come into force on the fifteenth day following service of this determination.

An appeal hearing respecting the above-noted matter was held on Thursday, June 20, 2002 at 10:00 hours at the Courthouse, 1 Notre Dame East, Room 11.11, Montréal, Quebec.

This case concerning the suspension of the operator certificate held by Laurentide Aviation (2737-5633 Québec inc.) hereinafter referred to as "Laurentide Aviation" was heard together with the appeal bearing file number Q-2095-19 filed by the same Appellant respecting the suspension of Laurentide Aviation's approved maintenance organization (AMO) certificate.

BACKGROUND

The Respondent holds operator certificate No. 008008 for the purposes of operating a flight training unit and its base of operation is Montreal/Les Cèdres. The Respondent also holds an AMO certificate No. 254-92 for the maintenance of aeronautical products and to this end it holds Aircraft and Structures ratings. The aircraft used for this operation are the Piper PA34, PA31, the Cessna 152 and 172, as well as the Piper PA28 and PA32.

Mr. John Scholefield has been the President of Laurentide Aviation, a family company, since 1946. He is this company's sole administrator. Mr. Scholefield in his evidence at the review hearing stated that since 1984, the company had been able to fly an average of 10,000 to 12,000 hours a year for the purposes of its flight training school.

Following an accident involving a Cessna 152 aircraft bearing Canadian registration letters C-GZLZ which occurred on July 17, 1998, inspectors from the Department of Transport carried out an investigation of Laurentide Aviation and of Mr. Gordon Leitch who, at the material times, was the aircraft maintenance engineer (AME) for Laurentide Aviation's aircraft.

The Minister of Transport pursuant to provisions of the Aeronautics Act issued three notices of suspension as follows:

Mr. Gordon Leitch received a Notice of Suspension dated July 6, 2000, pursuant to section 6.9 of the Aeronautics Act, suspending his AME licence for a total of 135 days for alleged contraventions of subsections 571.10(1), 605.94(1) and 605.96(1) of the Canadian Aviation Regulations (CARs).

Laurentide Aviation received a Notice of Suspension dated July 18, 2000, pursuant to section 6.9 of the Aeronautics Act, suspending its operator certificate No. 008008 for a total of 47 days for alleged breaches of paragraph 605.84(1)(a) and subsections 571.10(1), 605.94(1) and 605.96(1) of the CARs. This suspension was effected against Laurentide Aviation as the aircraft owner by invoking the vicarious liability provision in subsection 8.4(1) of the Aeronautics Act.

Laurentide Aviation received a Notice of Suspension dated July 14, 2000, pursuant to section 6.9 of the Aeronautics Act, suspending its AMO certificate No. 254-92 which it holds for the maintenance of aeronautical products, said suspension for a total of 24 days for the same offences as those for which Mr. Gordon Leitch was pursued as set out in the above paragraph.

Combined review hearings on the three above-mentioned Notices of Suspension were heard by Tribunal Member Caroline Desbiens, on January 8 and 9, 2001 and continued on May 7 and 8, 2001 followed by the filing of written submissions all of which produced the following results:

The Minister of Transport withdrew the allegations in respect of subsection 605.96(1) of the CARs for all three Notices of Suspension at the review hearing.

For reasons set out with her determination of March 12, 2002, the Tribunal Member at review found that on July 17, 1998, Mr. Gordon Leitch contravened subsection 571.10(1) of the CARs and the standards of airworthiness specified in Chapter 571 of the Airworthiness Manual when he signed the maintenance release in respect of the Cessna 152 aircraft C-GZLZ when the right rudder bar return spring and the spring attachment bracket were removed from the aircraft.

The Tribunal Member also found that Mr. Gordon Leitch contravened subsection 605.94(1) of the CARs by failing to enter in the journey log of the Cessna 152 aircraft C-GZLZ the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft. The Tribunal Member confirmed the suspension of Mr. Leitch's AME licence for a total of 60 days for the two offences. Mr. Leitch did not appeal this determination.

For reasons set out with her determination of March 12, 2002 the Tribunal Member dismissed the suspension of the operator certificate of Laurentide Aviation imposed by the Minister on July 18, 2000 for the three offences contemplated in Schedule 1 of the Notice of Suspension, stating that under subsection 8.4(1) of the Aeronautics Act the Minister had neither the power nor the authority to suspend the operator certificate of Laurentide Aviation as owner of aircraft C-GZLZ for the specified periods.

GROUNDS FOR APPEAL

The Minister of Transport appeals the determination of the Tribunal Member regarding Laurentide Aviation's operator certificate on the following grounds:

  1. The Member erred in fact and in law in dismissing the Notice of Suspension of operator certificate No.008008 on the grounds that the Minister had neither the power nor the authority under subsection 8.4(1) of the Aeronautics Act to suspend Laurentide Aviation's (Respondent's) air operator certificate, as the owner of aircraft C-GZLZ.
  2. The Member erred in law in interpreting subsection 8.4(1) of the Aeronautics Act by deciding that it does not apply to suspensions of Canadian aviation documents.

NOTICE OF SUSPENSION

The Notice of Suspension of the operator certificate states:

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 the following provision(s): subsections 605.84(1)a), 571.10(1), 605.94(1) and 605.96(1) of the Canadian Aviation Regulations.

See Schedule 1

To facilitate reference, we will reproduce the relevant details of Schedule l of the notice except for the reference to subsection 605.96(1) which was withdrawn by the Minister at the review hearing.

Subsection 605.84(1)a)

On July 18th, 1998, at approximately 8:50 hours local time, the aircraft Cessna 152 registered as
C-GZLZ, carried out a flight from Montreal/Les Cèdres Aerodrome while the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft.

PENALTY: 30 days suspension

Subsection 571.10(1)

On or about July 17th, 1998, the aircraft Cessna 152 registered C-GZLZ was released after maintenance, contrary to Chapter 571 of the Airworthiness Manual whereby the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft.

PENALTY: 14 days suspension

Subsection 605.94(1)

On or about July 17th, 1998, the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft was not recorded in the journey log of the aircraft Cessna 152 registered C-GZLZ.

PENALTY: 3 days suspension

MINISTER'S ARGUMENTS

The Minister's representative submits that the principles of modern interpretation demand that the reader determine the true sense of the statute by reading the words of the Act in their global context using the ordinary and grammatical sense which agrees with the spirit of the law, the object of the law and the intention of the legislator.

He quotes section 12 of the Interpretation Act:

12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

Additionally, the Minister cites two authorities[1] for his concluding submission on statutory interpretation:

It is presumed that the legislator is a rational and logical being and that the law is deemed to create a system: each element contributes to the sense of the whole and the whole to the sense of each of the elements.

In reading the text of an Act, the interpreter must presume that each term, each sentence, each section, each subsection has been deliberately drafted with a view to achieving an end. The legislator does not waste words; and does not talk for nothing.

Interpretation of subsection 8.4(1) of the Aeronautics Act

The Minister submits that the Member has erred in deciding that the Minister does not have the power to impose a suspension of Laurentide Aviations's operator certificate as owner of aircraft C-GZLZ under the terms of subsection 8.4(1) of the Aeronautics Act.

He submits that the Member has erred in deciding that subsection 8.4(1) of the Aeronautics Act applies only to monetary penalties.

This subsection reads:

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.

Interpretation of the Word "Penalty"

The Member erred in deciding that the word "penalty" referred only to a monetary penalty.

"Penalty" is not defined in the Aeronautics Act.

Le Petit Robert defines the word "penalty" as follows: "Sanction applied by way of punishment or retribution for an action that is judged reprehensible".

The dictionary of Québec and Canadian law defines "penalty" as being: "Sanction decreed by the law and applied as a penalty or a retribution for an act carrying legal penalties to maintain social order." [translated from: Dictionnaire de droit québécois et canadien]

The Minister submits that the word "penalty" must receive a large and liberal interpretation taking into account the object of the Aeronautics Act.

He states that the Member has based her decision in part on section 8.3 of the Act. The Member wrote at page 10 of her determination (Q-2095-19) that in section 8.3, the legislator clearly distinguishes between "a suspension of a Canadian aviation document" and "a penalty imposed in accordance with sections 7.6 to 8.2". The Member stated that if the legislator had wanted to include the suspensions of certificates with "penalties" it would not have used these two expressions in section 8.3.

Further on, the Member wrote that the intention of the legislator of referring to a monetary penalty when it referred to the expression "penalty" appears also in subsections 7.3(4) and (5) of the Act. According to the Member, these paragraphs refer to monetary penalties.

The Minister submits that subsection 7.3(4) refers to a term of imprisonment of one year and to a maximum penalty of $5,000 or to one of these penalties. It is clear that the word "penalty" is not limited to a monetary penalty. Further, subsection 7.3(7.1) of the Act stipulates that where a person is proceeded against under section 8.4 and is convicted of an offence, no imprisonment may be imposed as punishment for this offence.

If the intention of the legislator was that the word "penalty" referred only to a monetary penalty, it would not have been necessary to include subsection 7.3(7.1). The legislator does not "talk for nothing". The Minister submits that the legislator wished to limit the word "penalty" in section 8.3 to mean a monetary penalty "imposed in accordance with sections 7.6 to 8.2". The legislator wished to make it clear that the Minister of Transport could not remove the record of a penalty of imprisonment or a fine imposed by a criminal court.

The legislator uses the same terms for the word "proceedings" in section 26 of the Aeronautics Act. In the case of Loewen v. Minister of Transport[2], the Tribunal discussed section 26 of the Aeronautics Act. The Tribunal decided that the proceedings under section 6.9 of the Act were excluded from section 26. The word "proceedings" is limited to proceedings pursuant to sections 7.6 to 8.2 or those by way of summary conviction.

A reading of the Aeronautics Act discloses that when the legislator wished to be limited to a monetary penalty, it was clearly indicated. If the legislator wished to limit the word "penalty" in subsection 8.4(1) to a monetary penalty, it would have done so just as in sections 8.3 and 26 of the Aeronautics Act.

The Minister argues that the word penalty must not be interpreted in a restrictive way, that is that only monetary penalties are penalties. Such interpretation goes against the object of the Act and the regulations which is to promote aviation safety.

In certain cases, a monetary penalty is not sufficient and a suspension of a Canadian aviation document is necessary to assure aviation safety. A restrictive interpretation of the word "penalty" in subsection 8.4(1) would result in the Minister not having all the means (suspensions and penalties) at his disposition to assure aviation safety and the enforcement of the Aeronautics Act and the regulations.

The Minister submits that taking into account the principles of interpretation cited above and the object of the Act which is to assure aviation safety, the word "penalty" in section 8.4 means all the penalties available by virtue of the Aeronautics Act.

He submits that the Minister can suspend a Canadian aviation document of an owner for the acts of another by virtue of subsection 8.4(1). The Minister has proceeded against Laurentide Aviation by virtue of subsection 8.4(1) for the contraventions of paragraph 605.84(1)(a) and subsections 571.10(1) and 605.94(1) of the CARs.

Paragraph 605.84(1)(a) of the CARs

The evidence demonstrates that aircraft C-GZLZ effected a take-off. The evidence also demonstrates that the maintenance of the aircraft was not done in accordance with the applicable standards of airworthiness for this type of aircraft (see Leitch file).

Once the contravention was established, Laurentide Aviation can exculpate itself if it shows that the aircraft was in the possession of a person other than the owner without its consent (subsection 8.4(1) of the Act and/or that it had exercised due diligence (section 8.5 of the Act).

There is no evidence in the file that the aircraft was in the possession of a person other than the owner without the consent of Laurentide Aviation, and the Minister argues that Laurentide Aviation did not exercise due diligence. According to section 8.5 of the Act, Laurentide Aviation must show that it had taken all measures necessary to avoid the contravention.

In this case, the evidence has demonstrated that Mr. Leitch, an officer on behalf of the company, did not carry out the maintenance according to the applicable standards of airworthiness and did not enter a defect in the log book. The Minister argues that a company can only act through its agents. The evidence shows that Mr. Leitch was the person responsible for Laurentide Aviation's maintenance. He was in charge of the maintenance control system for the repair of aircraft operating under the operator certificate as well as being responsible for the maintenance for the AMO.

The Minister repeats the same arguments put forth in File No. Q-2095-05 and relies upon the case of R. v. Canadian Dredge & Dock Co.[3] where the Supreme Court cited a decision of the Ontario Court of Appeal, R. v. St. Lawrence Corp.[4] to support the assertion that a company can be held responsible when an officer of the company commits an offence. The Minister submits that, in view of Mr. Leitch's responsibilities, his acts are sufficient to render the company liable for the commission of the offence.

The Minister quotes an earlier determination of the Tribunal, Minister of Transport v. 641296 Ontario Inc. (North East Air Services)[5]:

The concept of due diligence is that one takes all the necessary steps to prevent the commission of an offence. The evidence shows that the principal of N.E.A.S., Mr. Parchewsky, precipitated the contraventions. In such circumstances, the defence of due diligence is not available.

The Minister argues that it has established on a balance of probabilities that Laurentide Aviation has contravened paragraph 605.84(1)(a) of the CARs and that Laurentide Aviation has not established a due diligence defence.

Subsection 571.10(1) of the CARs

The Minister states that the Member decided in the Leitch decision that Mr. Leitch had contravened subsection 571.10(1) of the CARs.

In view of the arguments above relating to sections 8.4 and 8.5 of the Aeronautics Act, the Minister submits that Laurentide Aviation has not established a defence of due diligence.

Subsection 605.94(1) of the CARs

The Tribunal Member decided in the Leitch determination that Mr. Leitch contravened subsection 605.94(1) of the CARs.

The Minister relies upon its arguments in the foregoing paragraphs to hold Laurentide Aviation responsible for the acts of Mr. Leitch for breach of this regulation as well. the Minister submits that Laurentide Aviation has not established a defence of due diligence.

In summation, the Minister requests that the panel allow the appeal and restore the suspensions as set out by the Minister in its notice of suspension.

ARGUMENTS OF LAURENTIDE AVIATION

In countering the Minister's arguments, counsel for Laurentide Aviation carefully outlined his concerns regarding the situation of having the same set of facts ground all three notices of suspension.

Counsel submitted that the investigation carried out by the Minister's officials demonstrated that the Respondent, in accordance with the provisions of its operator certificate and its AMO certificate, was required to and did appoint Mr. Leitch as the person responsible for the maintenance control system for the purposes of the AMO certificate. According to the Respondent, it has been demonstrated that Mr. Leitch has an impeccable and faultless record with Transport Canada. Moreover, his appointments were reviewed and approved by the department. Otherwise, Transport Canada would not have issued any of the certificates.

Laurentide Aviation's counsel reviewed the facts as disclosed at review indicating that Mr. Scholefield looked after the day to day operation of the company and that Mr. Leitch was responsible for the maintenance. It was Mr. Scholefield's evidence that he did not get involved in the operation of the AMO and that Mr. Leitch made all final decisions respecting maintenance at the AMO. It was Mr. Scholefield's evidence as well that he had the utmost confidence in Mr. Leitch. Counsel also stated that the evidence showed that Mr. Leitch had carte blanche and the full support of the company to ground any aircraft as he saw fit. In counsel's opinion, the evidence demonstrated that the company, through its president John Scholefield, regularly monitored Mr. Leitch's activities and co-operated fully. Accordingly, counsel concluded that Laurentide Aviation had exercised all due diligence in the circumstances of this case and that there was nothing more that it could have done.

Counsel stated that the legislation must be interpreted more narrowly and strictly and that the interpretation in favour of his client should be followed. He also urged the appeal panel to consider the issue of double jeopardy or multiple convictions for the same allegations.

DISCUSSION

This panel agrees with the Minister's submission that the Tribunal Member erred in law in interpreting subsection 8.4(1) of the Aeronautics Act by deciding that it does not apply to suspensions of Canadian aviation documents and in deciding that the word "penalty" in that subsection referred only to a monetary penalty.

We accept the Minister's arguments regarding the interpretation of the word "penalty". We agree that it would have been easy to add the words "imposed in accordance with sections 7.6 to 8.2" immediately after the word "penalty" in the last portion of subsection 8.4(1) if that had been the intent of the legislator as in sections 8.3 and 26 of the Aeronautics Act.

Further, in considering a supposed scenario involving an alleged contravention of the flight rules, it is easy to imagine a complaint being lodged including identification of the aircraft through its registration or call letters. Let us also suppose that an investigation by Transport Canada results in failure to identify the pilot-in-command, such information not being volunteered and further that the flight has not been recorded in the aircraft journey log. The Minister has at its command the use of section 8.4 of the Aeronautics Act to pursue the owner/operator in such a scenario. It is possible that the Minister may suspend the company's operator certificate upon proof of the contravention of the flight rule even in the absence of the pilot being proceeded against. Hence, where the Minister has options as to penalty being either an assessment of a monetary penalty or a suspension, it is solely the choice of the Minister. This was the decision of the Federal Court in La Ronge Aviation Services Ltd. v. Minister of Transport[6].

In the La Ronge matter, the company was alleged to have operated its commercial air service in breach of a number of Air Regulations and Air Navigation Orders resulting in the suspension of the company's operating certificate for a period of 7 days. At review, the Tribunal held that to suspend the operating certificate of the company would create a hardship to many innocent people and employees. A monetary penalty of $3,000 was imposed in lieu of the suspension. At the appeal level, the Tribunal held that the suspension imposed for breaches of sections 218(c) and 544 of the Air Regulations was beyond the power of the Minister as these sections of the Regulations were designated provisions under the Designated Provisions Regulations.

A further appeal by the Minister of Transport resulted in the decision of the Federal Court of Appeal to allow the application, set aside the decision of the Civil Aviation Tribunal and refer the matter back to the Tribunal for redetermination on the basis that the Minister has the power to suspend a Canadian aviation document for the contravention of a designated provision. On the redetermination, prior to assessing an appropriate suspension, the appeal panel stated the following:

On the contravention of section 218(c) the pilot in question had previously paid a monetary penalty of $300. The infraction of 218(c) by the Respondent was therefore by way of section 7.3(1)[7] of the Act which allows the Minister to proceed against the registered owner of an aircraft for an infraction committed by another person (in this case the pilot). The Minister has exacted two penalties for the same contravention, one against the pilot, and one against the Respondent. In the case of the pilot, the Minister chose to proceed by way of monetary penalty. In the case of the Respondent, the Minister proceeded by way of suspension.

The La Ronge case is relevant to the case before us as the Minister in both cases pursued the company by way of suspension through the authority found in subsection 8.4(1) of the Act.

On the basis that the Federal Court of Appeal concluded in its judgment that the Minister has the authority to suspend a Canadian aviation document for a breach of a designated provision and that the Tribunal must dispose of an appeal within the context of the Minister's initial choice, we find that the Tribunal Member erred in law in interpreting subsection 8.4(1) of the Aeronautics Act by deciding that it does not apply to suspensions of Canadian aviation documents and in deciding that the word "penalty" in that subsection referred only to a monetary penalty. We conclude that the word "penalty" as found in section 8.4 of the Aeronautics Act is used in the general application of that word to mean "punishment" which includes section 6.9 suspensions and section 7.7 monetary penalties.

Paragraph 605.84(1)(a) of the CARs/subsection 8.4(1) of the Aeronautics Act

The notice of suspension of Laurentide Aviation's operator certificate clearly indicates that Laurentide Aviation is being proceeded against by reason of the principle of vicarious liability in subsection 8.4(1) of the Aeronautics Act. This subsection states that the registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under Part I 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 notice of suspension is based on paragraph 605.84(1)(a) of the CARs and directed specifically towards the company, Laurentide Aviation, for an infraction committed by its AME. This paragraph states that no person shall conduct a take-off, OR permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, unless the aircraft is maintained in accordance with any airworthiness limitations applicable to that aircraft type design.

The first prohibition is that of conducting a take-off, an infraction which would be committed by the pilot who conducts the take-off, and the second prohibition targets the company for allegedly permitting the pilot to conduct a take-off under the conditions set out.

In our view, the Minister cannot proceed against Laurentide Aviation on the basis of the first prohibition of paragraph 605.84(1)(a) of the CARs for a wrongful act or omission of the AME by attributing it to the pilot. It is true that the pilot conducted this take-off on July 18, 1998, but he is not responsible by virtue of paragraph 605.84(1)(a) of the CARs because he could not have known that the right rudder bar return spring and the spring attachment bracket were removed from the aircraft because Mr. Leitch did not make this entry in the aircraft journey log.

However, the Minister could, through the use of the second prohibition cited, hold the company responsible or liable for a wrongful act or omission of the AME which rests with the company for permitting its pilot to conduct a take-off. Thus, Laurentide Aviation is responsible for having permitted the pilot on the 18th of July, 1998 to take off with a Cessna C-GZLZ when there had been no notation in the aircraft journey log book by its AME to the effect that the right rudder bar return spring and the spring attachment bracket were removed from the aircraft. The company is responsible for the acts of its AME.

Accordingly, we uphold the suspension of 30 days.

Section 571.10 of the CARs/subsection 8.4(1) of the Aeronautics Act

In file Q-2097-05, the Minister has suspended the operator certificate of Laurentide Aviation as registered owner by virtue of subsection 8.4(1) of the Aeronautics Act for an infraction committed by its AME pursuant to subsection 571.10(1) of the CARs, for having signed a maintenance release contrary to the standards of airworthiness.

In the related file Q-2095-19, the Minister suspended Laurentide Aviation's AMO certificate pursuant to the same subsection 571.10(1) of the CARs, for having permitted a person under its supervision to sign a maintenance release contrary to the standards of airworthiness.

In short, the Minister has accused Laurentide Aviation of being responsible for the acts of its AME who signed this maintenance release after non conforming maintenance thereby imposing upon him two separate punishments for the same act, on the one hand a suspension of Laurentide Aviation's operator certificate and on the other hand, the suspension of Laurentide Aviation's AMO certificate.

The panel must answer the following question: Can the Minister suspend Laurentide Aviation's operator certificate and AMO certificate on the basis of the same contravention by its AME? That is, are we presented with double jeopardy?

A review of the Tribunal's jurisprudence permits us to affirm that the common law principle prohibiting multiple convictions (developed in the framework of criminal cases) applies to the Tribunal when there are sufficiently strong connections between the facts and the infractions.[8] The requirement for a factual connection is satisfied by an affirmative response to the following question: Is each of the accusations founded on the same act of the accused?

In the case before us, Laurentide Aviation has been proceed against and punished twice (suspension of its operator certificate and its AMO certificate) for the same infraction based on the fact that aircraft C-GZLZ has been released after maintenance when the right rudder bar return spring and the spring attachment bracket were removed from the said aircraft contrary to the standards of airworthiness set out in Chapter 571 of the Airworthiness Manual.

Over the past months a number of cases have come before the Tribunal which fall under the rubric of "double jeopardy" in its broad sense. While arguments may be made in attempts to justify such actions or to bring them outside the strictest application of double jeopardy, it is clear that these procedures are straying from the original concept of subsection 8.4(1) and really do fall into the realm of abuse of process or multiple convictions for the same act.

The concept of vicarious liability was we submit never intended as a tool to double up on penalties or to seek multiple penalties for the same act. Rather, vicarious liability was intended to enable the Minister to punish the "owner" or "operator" or others mentioned in subsection 8.4(1) for acts involving a compromise to aviation safety that might otherwise go unpunished. It is the same principle of responsibility of ownership to which motor vehicle owners are subject pursuant to relevant provincial motor vehicle legislation.

That said, and despite the assertions of the Minister's representative to the contrary, we do not believe that it is simply an option of the Crown to determine how many Canadian aviation documents the Minister may suspend when the facts giving rise to the offence stem from the same alleged wrongful act. If we understand the Minister's response correctly, he indicated that it was solely the discretion of the Crown and that in fact the Minister had the option of suspending any or all Canadian aviation documents held by Laurentide Aviation which presumably for an operation of this nature would have included certificates of registration of aircraft, and certificates of airworthiness, in addition to the operator certificate and the AMO certificate which latter two documents are the subject of these appeals. We reject this line of argument and consider such multiplicity of actions to be within the ambit of double jeopardy and an abuse of the process and outside the intention of the drafters of section 8.4(1) of the Aeronautics Act.

The issues in this case become somewhat blurred in that Laurentide Aviation is the holder of both the AMO certificate and the operator certificate. We have carefully considered the fact that Laurentide Aviation was pursued under subsection 571.10(1) as having "permitted" the act of the AME rather than as pursuant to subsection 8.4(1). On the other hand, the suspension relating to the operator certificate was by way of vicarious liability, and we do feel that the punishment pursuant to subsection 8.4(1) is grounded on the same factual situation and the fact that both suspensions of the AMO certificate and the operator certificate are punitive in nature. And while we do not have to consider the matter, had the suspensions been levied for different objects, such as a suspension for lack of competence or failure to meet conditions of issue (per section 7.1 of the Act) on the one hand and a suspension for punitive reasons (per section 6.9 of the Act) on the other, then in such case, arguments of double jeopardy and abuse of process would not succeed.

We reject the suspension of 14 days, finding that it was double jeopardy and abuse of the process.

Section 605.94 of the CARs/subsection 8.4(1) of the Aeronautics Act

The suspension of Laurentide Aviation's operator certificate by the Minister is fully justified in this file since it is coupled with subsection 8.4(1) of the Aeronautics Act. This section permits the Minister to proceed against Laurentide Aviation for an infraction committed by its AME (the person who has contravened the applicable sections of the Act). The company is clearly culpable for the acts of its AME on whom it has conferred the responsibility for the maintenance control system for its aircraft. The Tribunal has earlier acknowledged that the AME has committed an error in failing to make a notation in the aircraft journey logbook of C-GZLZ that the right rudder bar return spring and the spring attachment bracket were removed from the aircraft. We are of the view that the liability of Laurentide Aviation vis a vis third parties prevents it from invoking the defence of due diligence.

CONCLUSION

For the reasons stated, we uphold the 30-day suspension of the operator certificate as imposed by the Minister in July, 2000 for the contravention of paragraph 605.84(1)(a) of the CARs and we dismiss the 14-day suspension for the alleged contravention of subsection 571.10(1) of the CARs and we uphold the 3-day suspension for the contravention of subsection 605.94(1) of the CARs.

Reasons for Appeal Determination:

Faye Smith, Chairperson
Suzanne Racine, Member

Concurred:

Michel Boulianne, Member


[1] Pierre-André Côté, Interprétation des lois, 3rd edition, Les Éditions Thémis, p. 389 and 350.

Ruth Sullivan, Driedger on the Construction of Statutes, 3rd edition, Butterworths, p. 159.

[2] CAT File No. C-1028-04.

[3] [1985] 1 S.C.R. 662.

[4] [1969] 2 O.R. 305.

[5] CAT File No. O-1342-37.

[6] Federal Court Decision, November 3, 1988, Ottawa: Hugessen, MacGuigan, Urie.

[7] Now subsection 8.4(1) of the Act.

[8] Desrochers v. Minister of Transport, CAT File No. Q-1881-33 appeal; Minister of Transport v. Mirabel Aero Service, CAT File No. O-1860-11; Delco Aviation Ltd. v. Minister of Transport, CAT File No. O-1918-41 appeal; Stewart Lake Airways Ltd. v. Minister of Transport, CAT File No. C-0334-10.