Decisions

CAT File No. Q-2120-37
MoT File No. N5504-40464

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Régionnair Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 7.7, 8.4(1), 8.5
Canadian Aviation Regulations, SOR/96-433, ss. 103.08, 602.126(1)(c), 602.128(1)

Landing, Instrument Approach Procedures, Due Diligence, Below Minimum Visibility at Take-Off


Review Determination
Michel Larose


Decision: July 24, 2001

TRANSLATION

The Tribunal confirms the two monetary penalties assessed, increasing the amount for the second offence to bring the total sum to $3,750. The monetary penalty is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within fifteen days of the receipt of this determination.

A Review Hearing on the above matter was held March 27, 2001, at the courthouse in Sept-Îles, Quebec.

PRELIMINARY REMARKS

The procedure was explained to the two parties, no preliminary motions were submitted and no agreement was reached between the parties in pre-hearing.

A notice of motion was, however, submitted for the following correction:

An order allowing the Minister of Transport to amend the notices of assessment of monetary penalty dated July 28, 2000, to wit: Flight GIO 2509 – August 12, 1999 – 20:59 hours local time, not UTC, and flight GIO 2506 – August 12, 1999 – 21:36 hours local time, not UTC, was served on Mr. Charles Henri Desrosiers on February 28, 2001, under Rule 10 of the Civil Aviation Tribunal Rules with supporting case law, and Mr. Desrosiers agreed to this request.

OBJECT OF THE REVIEW HEARING

On July 28, 2000, Mr. Justin Bourgault, on behalf of the Minister of Transport, served Régionnair Inc./Guy Marcoux with a notice of assessment of monetary penalty pursuant to section 7.7 of the Aeronautics Act for having contravened paragraph 602.126(1)(c) and subsection 602.128(1) of the Canadian Aviation Regulations (CARs):

APPENDIX A (Mr. Guy Marcoux)

1. On August 12, 1999, at about 20:59 UTC, while you were pilot-in-command of flight GIO 2509, a DHC-6 aircraft, registered as C-FJCL, you conducted an instrument approach to Sept-Îles airport, runway 13, not in accordance with the minima specified in the Canada Air Pilot, contrary to section 602.128(1) of the Canadian Aviation Regulations.

PENALTY: $250.00

2. On August 13, 1999, at about 01:36 UTC, while you were pilot-in-command of flight GIO 2506, a DHC-6 aircraft, registered as C-FJCL, you took off from Sept-Îles airport, runway 31, when the visibility was below that specified in the Canada Air Pilot, contrary to section 602.126(1)(c) of the Canadian Aviation Regulations.

PENALTY: $250.00

The sum of $500.00 is to be paid in full by September 1, 2000, to the regional manager...

In the event the penalty is not paid by September 1, 2000, a copy of this notice will be sent to the Civil Aviation Tribunal.

APPENDIX A (Régionnair inc.)

[...]

On August 12 and 13, 1999, aircraft C-FJCL was registered in the name of Régionnair Inc. As the offences described in the said appendices were committed on those dates, you are therefore being proceeded against pursuant to section 8.4(1) of the Aeronautics Act as the registered owner.

The following provision(s) has/have been designated pursuant to section 103.08 of the Canadian Aviation Regulations, and the procedures relative to the monetary penalties established in sections 7.7 to 8.2 of the Aeronautics Act apply.

The sum of $2,500.00 is to be paid in full by September 1, to the regional manager...

The penalty was not paid by the specified date, that is, September 1, 2000; hence this review hearing.

THE LAW

Section 7.7 of the Aeronautics Act:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

Section 602.128 of the CARs:

602.128 (1) No pilot-in-command of an IFR aircraft shall conduct an instrument approach procedure except in accordance with the minima specified in the Canada Air Pilot or the route and approach inventory.

(2) No pilot-in-command of an IFR aircraft shall, unless the required visual reference necessary to continue the approach to land has been established,

(a) in the case of a CAT I or II precision approach, continue the final approach descent below the decision height; or

(b) in the case of a non-precision approach, descend below the minimum descent altitude.

(3) Where the pilot-in-command of an IFR aircraft conducting an instrument approach does not establish the required visual reference referred to in subsection (2), the pilot-in-command shall initiate a missed approach procedure

(a) in the case of a CAT I or II precision approach, at decision height; and

(b) in the case of a non-precision approach, at the missed approach point.

(4) Notwithstanding anything in this Division, no pilot-in-command of an IFR aircraft shall conduct a precision approach to CAT II or CAT III minima unless

(a) the flight crew has received the training specified in the Manual of All Weather Operations (Categories II and III); and

(b) the aircraft is operated in accordance with the procedures, the equipment requirements and the limitations specified in the manual referred to in paragraph (a).

Section 602.126 of the CARs:

602.126 (1) No pilot-in-command of an aircraft shall conduct a take-off if the take-off visibility, as determined in accordance with subsection (2), is below the minimum take-off visibility specified in

(a) the air operator certificate where the aircraft is operated in accordance with Part VII;

(b) the private operator certificate where the aircraft is operated in accordance with Subpart 4; or

(c) the Canada Air Pilot in any case other than a case described in paragraph (a) or (b).

(2) For the purposes of subsection (1), the take-off visibility is

(a) the RVR of the runway, if the RVR is reported to be at or above the minimum take-off visibility specified in a document or the manual referred to in subsection (1);

(b) the ground visibility of the aerodrome for the runway, if the RVR

(i) is reported to be less than the minimum take-off visibility specified in a document or the manual referred to in subsection (1),

(ii) is reported to be fluctuating above and below the minimum take-off visibility specified in a document or the manual referred to in subsection (1), or

(iii) is not reported; or

(c) the visibility for the runway as observed by the pilot-in-command, if

(i) the RVR is not reported, and

(ii) the ground visibility of the aerodrome is not reported.

Section 103.08 of the CARs:

103. 08 (1) The provisions set out in column I of the schedule to this Subpart are hereby designated as provisions the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2 of the Act.

(2) The amounts set out in column II of the schedule are the maximum amounts payable in respect of a contravention of the provisions set out in column I.

(3) A notice issued to a person by the Minister pursuant to subsection 7.7(1) of the Act shall specify

(a) the designated provision that the Minister believes has been contravened;

(b) the particulars of the alleged contravention;

(c) that payment of the amount specified in the notice will be accepted by the Minister as and in complete satisfaction of the amount of penalty for the alleged contravention and that no further proceedings under Part I of the Act will be taken against the person in respect of that contravention;

[...]

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.

BACKGROUND

On August 12, 1999, Mr. Guy Marcoux was the pilot-in-command of aircraft C-FJCL, accompanied by his co-pilot, Mr. Stéphane Blaney, and landed at Sept-Îles at 20:59 hours (local time), below the landing minima published in the Canada Air Pilot (CAP), thus contravening subsection 602.128(1) of the CARs (flight GIO 2509).

Later, that is, at 21:36 hours (local time), the same crew, still on board the same aircraft C-FJCL, took off from the Sept-Îles airport below the take-off minima published in the CAP, thus contravening subsection 602.126(1) of the CARs (flight GIO 2506).

A review hearing, held March 27, 2001, by the undersigned, confirmed the two monetary penalties assessed by the Minister of Transport against Mr. Guy Marcoux.

In arguments, the Minister of Transport alone broached the aspect of Régionnair being the owner of the aircraft involved and emphasized the fact that the respondent, Mr. Marcoux, was co-owner, president and manager of Régionnair Inc.

The Tribunal therefore refers the reader to determination No. Q-2119-33 (CAT)[1] to avoid going back over the evidence, arguments and conclusions reached by the Tribunal.

DISCUSSION

When there is a proceeding against an individual and the company, the Civil Aviation Tribunal has already ruled that the Minister of Transport could proceed against the individual and a company pursuant to section 7.3 of the Act (now section 8.4) for the same offences. As in this case, the individual also happened to be the owner, director and administrator of the company. The Tribunal ruled that an individual is not the same legal entity as a company. The notion of double jeopardy does not apply when invoked by a defendant legal person on the grounds that the person who is the executive head of the company has already been sentenced for the same offence or offences.

To this effect, the Tribunal stated: [2]

[...] that notwithstanding any proceedings taken against any other employee of the corporation, the corporation can by virtue of the vicarious liability section (7.3) of the Act be found in contravention thereof. The Minister rightly proceeded against the corporation on both allegations and the doctrine of 'double jeopardy' has no application.

This being the case, it has been shown that the certificate of registration of aircraft C-FJCL is the property of Régionnair Inc. (R-1) and the pilot-in-command, on August 12, 1999, was Mr. Guy Marcoux, president, co-owner and manager of that company.

Moreover, the air operator certificate of Régionnair Inc. (R-2) does not permit it to land and take-off below the minima published in the CAP.

On August 12, 1999, "the aircraft was therefore not in the possession of a third party without the owner's consent" [translation]. The offences committed are strict liability offences and are not mens rea or absolute liability offences.[3]

One line of defence for the respondent, Régionnair, which has the burden of proof (it no longer rests with the Minister of Transport), and for Mr. Guy Marcoux, is the defence of due diligence.

Section 8.5 of the Aeronautics Act stipulates:

8. 5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

The due diligence in question is that which must be shown by the reasonably prudent person who practises the profession where his diligence must be demonstrated. This due diligence will vary from case to case depending on the facts. The accused must prove, on the balance of probabilities, that he has exercised all due diligence to avoid committing an offence.[4]

In the case under review, the Tribunal, having found Mr. Guy Marcoux guilty of two offences within 37 minutes, considers that he was not a mere employee of Régionnair Inc., but its directing mind and a commercial pilot of considerable experience.

On that August 12, 1999, there was no major urgency forcing him to land and take-off in conditions below the minima, other than perhaps economic constraints, which must never take precedence over the safety of passengers.

The manager of an airline must see that his pilots are trained, make sure that they comply with the CARs, particularly the CAP minima for landings and take-offs, especially at Sept-Îles, which has special climatic conditions.

The manager can do so by means of reminder notices, letters containing formal directives, proper monitoring, further training and, above all, by himself setting the example.[5]

The Tribunal cannot overlook the fact that only three aircraft landed at Sept-Îles in the evening of August 12, 1999, between 18:00 and 22:00 hours (local time) and all belonged to the Régionnair Inc. company, including flight GIO 2509 flown by Mr. Guy Marcoux. Two of them did not have their Mode C switched on, and a fourth Régionnair aircraft, flight 347, also did not have its Mode C switched on after take-off.

As for take-off, only flight GIO 347 took off at 01:04 Z on August 13 and GIO 2509 at 01:36 Z on August 13, when the visibility was less than ½ mile. If these are the company's operating standards, the aeronautics community has reason to be concerned.

The twinning of Mr. Guy Marcoux and Régionnair Inc., a legal entity, has been well established and the culpability of Régionnair, on the balance of probabilities, is confirmed.

PENALTIES

The Tribunal will not go back over the analytical grid of the Wyer[6] case, but believes it is right, in the hopes of raising this company's operating standards, to impose, according to the table of penalties in Chapter 11, Aviation Enforcement Procedures Manual,[7] an initial penalty of $1,250 for the contravention of subsection 602.128(1) of the CARs, and for the contravention of subsection 602.126(1) of the CARs a sum of $2,500.

CONCLUSION

The Tribunal confirms the two monetary penalties assessed, increasing the amount for the second offence to bring the total sum to $3,750.

Michel Larose, MD
Member
Civil Aviation Tribunal


[1] Minister of Transport v. Guy Marcoux.

[2] Minister of Transport v. Lindbergh's Air Service, CAT File No. O-0025-10 (appeal).

[3] The Queen v. Sault Ste-Marie, [1978] 2 S.C.R. 1299.

[4] Minister of Transport v. Richard Noël, CAT File No. Q-0435-33.

[5] Douglas Monger v. Minister of Transport, CAT File No. Q-1974-02; Minister of Transport v. Régionnair inc., CAT File No. Q-1990-37.

[6] CAT File No. O-0075-33 (appeal).

[7] Second edition, November 1999, document TP 4751E.