Decisions

CAT File No. Q-2145-37
MoT File No. 5504-41097

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Commercial Aviation Enterprises Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp) s. 7.7, 8.2
Canadian Aviation Regulations, SOR/96-433, ss. 602.105(c), 103.08

Noise Restrictions, Failure to Appear at Hearing


Review Determination
Carole Anne Soucy


Decision: September 4, 2001

TRANSLATION

The Minister has proven on a balance of probabilities that the Respondent, Commercial Aviation Enterprises Inc., contravened paragraph 602.105(c) of the Canadian Aviation Regulations. I consequently confirm the Minister of Transport's decision and the assessed penalty of $5,000. This amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen (15) days of service of this determination.

A review hearing on the above matter was held Wednesday, May 9, 2001 at 10:00 hours at the Federal Court of Canada premises in Montréal, Québec.

BACKGROUND

The Respondent., Commercial Aviation Enterprises Inc., hereinafter "Commercial", is a U.S. air operator with its head office at Delray Beach, Florida.

On September 10, 1999, at approximately 02:04 local time, as registered owner of aircraft N359WJ, the Respondent apparently permitted the aircraft to take off from Montréal International Airport (Dorval) during hours when aircraft operations are prohibited or restricted, without complying with the applicable noise abatement procedures and noise control requirements specified in the Canada Air Pilot (CAP).

On August 18, 2000, following this event, the Minister of Transport issued a notice of assessment of monetary penalty to the Respondent which reads:

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 the following provision(s): Section 602.105(c) of the Canadian Aviation Regulations.

On September 10th 1999 at approximately 02:04 local time, as a register[ed] owner you have permitted your company aircraft N359WJ to takeoff from Montréal International Airport (Dorval) during the curfew period as specified in the Canada Air Pilot. Penalty: $5,000.00

The foregoing provision(s) has/have been designated pursuant to Section 103.08 of the Canadian Aviation Regulations, and the procedures in Sections 7.7 to 8.2 of the Aeronautics Act respecting monetary penalties apply.

The penalty for this contravention is $5,000. Since the above penalty had not been paid within the specified time, a request for review was filed with the Tribunal, resulting in the hearing of May 9, 2001.

PRELIMINARY COMMENTS

Respondent Commercial was not represented. However, the company sent a letter dated October 12, 2000, written by its president, Mr. Gus Maestrales, to the Civil Aviation Tribunal registry which explained that this was a "Lifeguard flight for the transportation of a patient."

EVIDENCE

The Minister's representative called three witnesses.

The first witness, Mr. Jacques Savard, is assistant manager for sound environment at Aéroports de Montréal. He produced a document, the CAP (Exhibit M-3), that stipulated the regulations, standards and operating procedures at airports. This document was in effect from September 9, 1999 to November 4, 1999. It was therefore in force at the time of the alleged contraventions. It briefly described the contents of the CAP and, more specifically, the noise operating restrictions and noise abatement procedures.

The witness then described the aircraft involved, a Sabreliner turbo-jet.

He added that there are exemptions from noise restrictions and that they are granted by the airport duty manager. When an exemption is granted, an authorization is added to a registration form.

Mr. Savard went on and added that the registration form for authorizations granted for arrivals and departures between 23:00 and 07:00 during the night of September 10, 2000 (M-4) did not include a request for authorization from the Respondent.

According to the witness, pilots or airport authorities, more specifically, the airport duty manager, may have various reasons to override the requirement to respect noise restrictions. These may include unusual winds, uncontrollable circumstances, major mechanical problems, emergencies, MEDEVAC or operational restrictions.

Mr. Savard produced another document — the operations log for turbo-jet N359WJ (M-5). He explained that this log is filled out by the operations manager and includes several sources of information. All flight-related operations are included and, among others, it contains information from the control tower and information about arrivals and departures. In this case, the log indicated that the aircraft, originating from Buffalo, took off at 02:04 local time on runway 24 from the Dorval airport.

The Minister's second witness, Mrs. Johanne De Luca, operations specialist at the Dorval tower, works very closely with air traffic controllers. She enters all data and information received for every aircraft. For example, in a document entitled "aircraft movements" (M-6), controllers' records are included for each aircraft. The records indicate whether movement was a departure (D) or an arrival (A), provides a description of the aircraft, the type of aircraft, the origin or destination, the time of departure or arrival, specifies whether it was an IFR or VFR flight, which runway was used, the controller's initials, if applicable, the date and comments, if any. In case of a medical emergency, the witness explained that a note to this effect is included in the "Comments" box, usually using the term "MEDEVAC". However, in this case, no comments appear in this box. There is however a note about a take-off at 06:04 Zulu time and a request for customs service initialled by the controller on duty under the "Phone" heading.

The Minister's third witness was the duty manager at the Dorval airport. Mr. Larose explained that he was responsible for authorizations or refusals of arrivals and departures outside permitted hours. Referring to document M-4, the registration form for authorizations granted, Mr. Larose confirmed that there were no requests for authorization for the aircraft in this matter.

The Minister's representative concluded his evidence by producing a letter (M-7) dated November 1, 2000, in which Transport Canada asked the Respondent to provide additional information about the Lifeguard flight referred to in their letter of October 12, 2000.

In order to allow the Respondent to provide the required details, Transport Canada decided to delay the judicial process to December 11, 2000.

On November 29, 2000, Mr. Maestrales answered Transport Canada (M-8) as follows:

Dear Mr. Bourgault,

In response to your letter dated November 1, 2000 concerning the departure from the Montreal Airport after curfew for our aircraft, I would like to provide the following information.

The flight was performed for a Mr. Donald Provance, who was suffering from an aneurysm, from the Boca Raton, FL airport to the Titusville, FL airport. It was performed at low level and unpressurised due to his condition. The medical physician involved with the patient was Doctor Bruce Berenson, of Delray Beach, FL.

Enclosed please find a copy of the invoice for services rendered. Should you have any questions concerning this matter, please do not hesitate to call.

LAW

The Canadian Aviation Regulations (CARs) stipulate the following:

602.105 No person shall operate an aircraft at or in the vicinity of an aerodrome except in accordance with the applicable noise abatement procedures and noise control requirements specified by the Minister in the Canada Air Pilot or Canada Flight Supplement, including the procedures and requirements relating to

[...]

(c) hours when aircraft operations are prohibited or restricted;

Section 103.08 of the CARs refers to the designated provisions and reads as follows:

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.

In reference to provision 602.105 (column I) of the schedule, the maximum amount of penalty for an individual is $5,000 and $25,000 for a corporation (column II).

Section 7.7 of the Aeronautics Act, regarding notice of allegations of contravention, stipulates:

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

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

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

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

ARGUMENT

The argument of the Minister's representative was very short. He argued that the information provided by the Respondent in his letter of November 29, 2000 was clearly insufficient and did not allow us to conclude that it was the same aircraft as in this matter.

He added that Montréal and Buffalo are not in a direct line with Florida, making him doubt the information provided.

Finally, the Minister's representative argued that he had proven on a balance of probabilities that the Sabreliner aircraft registered N359WJ took off without authorization from Montréal International Airport (Dorval) at 02:04 local time, during a prohibited period. It was also put in as evidence that no request for exemption was made.

THE ISSUES

The Tribunal must determine if it confirms the Minister's assessment of a penalty of $5,000 against the Respondent for having authorized, as the registered owner of aircraft N359WJ, its take-off at 02:04 local time, outside permitted hours.

It was put in as evidence during the hearing that the noise operating restrictions apply to all turbo-jet and turbo-fan aircraft in accordance with the schedule in part B that specifies that departures of these aircraft are prohibited between 23:00 and 07:00.

As is evident, the facts are not disputed. In his letter of October 12, 2000, the Respondent's president wrote that the departure of N359WJ during the curfew was unavoidable, as it was a "Lifeguard flight".

The parties tried to settle the dispute before the hearing through an exchange of correspondence. Transport Canada followed up and asked the Respondent to provide additional information since there was nothing to indicate that it was an emergency flight.

On reading the letters from Commercial, however, it is very difficult to understand why, considering the nature of the flight, the pilot never requested authorization to take off. It seems to me that if doing so before the take-off was impossible for him, he should have informed the airport authorities afterwards. What about the flight plan? Unfortunately, many questions remain unanswered and, while the rules of evidence before the Civil Aviation Tribunal are not as rigid as in civil or penal cases, it remains that the Tribunal is not convinced of the merits of the Respondent's defence based on the preliminary evidence provided by the Respondent in writing. The documents provided do not allow us to verify or prove that the same aircraft was involved.

Far from wanting to refer to the mistake made by the Respondent as ill intent or negligence on the part of the pilot, the flight made by Commercial did take off outside permitted hours without authorization, thereby committing an infraction pursuant to paragraph 602.105(c) of the CARs.

As for the severity of the sanction, section 103.08 of the CARs refers to paragraph 602.105(c) in the schedule and sets the maximum amount of penalty at $25,000 for a corporation. The Minister set the penalty at $5,000 based on precedents that reflect the guidelines in the Aviation Enforcement Procedures Manual used by inspectors. The Tribunal is not however governed by these recommendations. Given that aviation safety is the key factor in determining the nature of penalties to be assessed and that this was never an issue, the Tribunal would be inclined to decrease the penalty assessed. However, since the Respondent did not appear at the hearing, I cannot change the penalty assessed by the Minister of Transport pursuant to paragraph 7.9(3)(b) of the Act.

DETERMINATION

The Minister has proven on a balance of probabilities that the Respondent, Commercial, contravened paragraph 602.105(c) of the CARs. I consequently confirm the Minister of Transport's decision and the assessed penalty of $5,000.

Carole Anne Soucy
Member
Civil Aviation Tribunal