Decisions

CAT File No. Q-2150-37
MoT File No. N5504-42456

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Centre École de Parachtisme Para-nord Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7(2), 8.4(1)
Canadian Aviation Regulations, SOR/96-433, ss. 602.01, 605.94(1), 605.85(1), 605.03(1)(a)

Parachuting, Maintenance release, Negligent or reckless operation of an aircraft, Journey log entries, Flight authority, Adjournment, Cloud


Review Determination
Carole Anne Soucy


Decision: October 24, 2001

TRANSLATION

The Tribunal confirms the decision of the Minister of Transport and sentences the respondent Centre École de Parachutisme Para-Nord Inc. to pay the sum of $11,250.00. The penalty is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within 15 days of the receipt of this determination.

A review hearing on the above matters was held on Monday, August 27, 2001, at 10:00 hours in the RCM of Rouyn-Noranda, Quebec.

PRELIMINARY REMARKS

Two days had previously been set aside to hear this case, i.e., August 27 and 28, 2001. On July 26, 2001, the Civil Aviation Tribunal sent the notice of hearing by registered mail to the latest known address of the respondents, as required by subsection 7.7(2) of the Aeronautics Act.

On August 17, 2001, about 10 days after the date set for the hearing, the respondent Desrochers faxed the Tribunal a letter which read as follows:

If you please, the dates of August 27 and 28 are impossible for me; the only day I am available is Friday during the week (every Friday). If they need two days they can just take the Thursday and Friday. I would be present Friday, no harm done.

Following this request, civil aviation inspector Jean-Guy Carrier sent the Tribunal an objection to Louis Desrochers' request for adjournment on the following grounds:

  1. The Minister has assigned eight persons to appear for these cases.
  2. These individuals have already rearranged their obligations and personal timetables.
  3. The hotel, car and plane reservations have already been made.
  4. The offender gives no reasons for the very brief notice of the change.

For these reasons, we ask that Mr. Desrochers' request be denied and that the hearing be held August 27 and 28, 2001, as agreed.

In view of the Minister's objection, the Tribunal responded that, pursuant to the Guide to Tribunal Hearings, "in the interest of fairness and natural justice towards all parties..., the Tribunal expects all parties to abide by the scheduled hearing dates.... On occasion, when it is absolutely necessary to do so, the Tribunal will order the adjournment of a hearing. In the absence of a valid reason...".

In view of the foregoing:

  • considering the unjustified reasons given by the respondent,
  • considering the brief advance notice of the change,
  • considering the many witnesses assigned to appear,
  • considering that the respondent knew the date of the hearing for three weeks and it was only after that period of time that he notified the Tribunal,

for these reasons, the request for adjournment was denied, and the Tribunal ordered the parties to appear before it as stipulated in the notice of hearing and faxed its decision on August 22, 2001, to the respondents and to Transport Canada.

OBJECT OF THE REVIEW HEARING

A notice of assessment of monetary penalty was issued to Louis Desrochers, pursuant to section 7.7 of the Aeronautics Act.

In Appendix A of the notice of assessment, it reads as follows:

On July 16, 2000, between 15:25 Z and 21:25 Z, as pilot-in-command of the aircraft registered as C-FIHZ, you conducted flights near the Rouyn airport above a layer of clouds, constituting a ceiling for the dispatching of parachustists, these flights being conducted under visual flight rules and while IFR traffic was taking off and arriving at the same airport, thereby operating your aircraft in such a reckless manner as to endanger the life or property of a person, in contravention of section 602.01 of the Canadian Aviation Regulations.

PENALTY: $1,000.00

Between June 26, 2000, and July 31, 2000, as pilot-in-command of the aircraft registered as C-FIHZ, you did not record particulars in the journey log of this aircraft, in contravention of section 605.94(1) of the Canadian Aviation Regulations.

PENALTY: $500.00

On August 25, 2000, as pilot-in-command of the aircraft registered as C-FIHZ, you conducted a take-off in this aircraft where it had undergone maintenance, without the maintenance having been certified by the signing of a maintenance release pursuant to section 571.10, in contravention of section 605.85(1) of the Canadian Aviation Regulations.

PENALTY: $250.00

On August 25, 2000, as pilot-in-command of the aircraft registered as C-FIHZ, you conducted a take-off in this aircraft where no flight authority was in effect in respect of the aircraft, in contravention of section 605.03(1)(a) of the Canadian Aviation Regulations.

PENALTY: $500.00

The sum of $2,250.00 was to be paid in full by no later than October 9, 2000.

The respondent Centre école de parachutisme Para-Nord inc. [hereafter "Para-Nord"] also received a notice of assessment of monetary penalty pursuant to section 7.7 of the Aeronautics Act. Appendices A and B of the notice of assessment read as follows:

APPENDIX A

On July 16, 2000, between 15:25 Z and 21:25 Z, as the registered owner of the aircraft registered as C-FIHZ, you permitted this aircraft to conduct flights near the Rouyn airport above a layer of clouds, constituting a ceiling for the dispatching of parachutists, these flights being conducted under visual flight rules while IFR traffic was taking off and arriving at the same airport, thereby operating your aircraft in such a reckless manner as to endanger the life or property of a person, in contravention of section 602.01 of the Canadian Aviation Regulations.

PENALTY : $5,000.00

Between June 26, 2000, and July 31, 2000, as the registered owner of the aircraft registered as C-FIHZ, you permitted particulars not to be recorded in the journey log of this aircraft, thus contravening section 605.94(1) of the Canadian Aviation Regulations.

PENALTY : $2,500.00

On August 25, 2000, as the registered owner of the aircraft registered as C-FIHZ, you permitted the operation of this aircraft where there was no flight authority in effect in respect of this aircraft, in contravention of section 605.03(1)(a) of the Canadian Aviation Regulations.

PENALTY: $2,500.00

APPENDIX B

On August 25, 2000, as the registered owner of the aircraft registered as C-FIHZ, you permitted a take-off to be conducted in this aircraft where that aircraft had undergone maintenance, without the maintenance having been certified by the signing of a maintenance release pursuant to section 571.10, thus contravening section 605.85(1) of the Canadian Aviation Regulations.

PENALTY: $1,250.00

The sum of $11,250.00 was to be paid in full by no later than October 5, 2000.

It was decided to hear both these cases together since the evidence and facts are similar in both.

BACKGROUND

The respondent Para-Nord, of which Mr. Desrochers is president, has a special flight operations certificate for making parachute jumps in controlled airspace or over an air route. The certificate attests that the holder is properly equipped and able to conduct operations safely, subject to compliance with and application of the conditions stipulated in the certificate (Exhibit M-16).

Mr. Desrochers has his commercial pilot licence and is qualified to fly single-engine aircraft and seaplanes.

Para-Nord is the registered owner of the aircraft registered as C-FIHZ, of which Mr. Louis Desrochers was the pilot-in-command during the alleged incidents.

THE EVIDENCE

The Minister of Transport called eight witnesses to establish the alleged incidents, starting with its expert witness, Chantal Pharand.

The Minister first demonstrated the witness' expertise by asking her various questions concerning her qualifications, the whole to the satisfaction of the Tribunal. Ms. Pharand began her testimony by stating that the Rouyn-Noranda airport had a Class E airspace. With the help of diagram M-2, she explained what a controlled airspace is according to specified standards. She added that there is no radar at the Rouyn-Noranda airport and that pilots are advised to report to Montreal or to the Rouyn-Noranda flight service station (FSS). She ended her testimony by pointing out that 6/10 cloud coverage represents a ceiling.

The second witness, Jean-Denis Haran, a Transport Canada inspector, Aviation Enforcement division, was, along with Julien Laroche, one of two inspectors responsible for the investigation into the dispatching of parachutists. The two travelled to Saint-Bruno-de-Guigues to see Mr. Desrochers and investigate the alleged activities.

After having given the usual caution, he obtained a voluntary statement from Mr. Desrochers (M-11). Messrs. Laroche and Haran were present when this statement was given. Each page is initialled by the respondent Desrochers and the two investigators. Mr. Haran testified that he recognized the respondent's signature and initials as he had seen him sign and initial each page of the statement. He also recognized his own signature there.

To question 6 of the statement which reads: "On July 15 and 16, 2000, did you make drops through the clouds at Rouyn, the drops having been made at 10,000 feet, while the ceiling was broken at 3,000 and 4,000 feet?" Mr. Desrochers answered: "I had vertical contact through the breaks with the ground when making the drops."

Mr. Haran concluded from this that Mr. Desrochers was above the clouds. He continued his testimony, adding that on seeing the aeroplane, he saw something on it. On inspecting the aircraft, he noted that it was a foot step.

At question 9 of Mr. Desrochers' statement, the inspectors asked: "You attached to the right undercarriage of your aircraft a homemade foot step; do you have approval for this installation?"

Mr. Desrochers answered: "No, it has not been approved."

Mr. Haran went on to say that an examination of the journey log showed the entries to be incomplete (M-12).

To complete his investigation, Mr. Haran asked for a voice tape dated July 16 to obtain the communications between the Rouyn-Noranda FSS and flight C-FIHZ. He received the response to this request and the tapes on September 18, 2000. In the transcript of the recordings (M-14), one notes at paragraph 163 the phrase: "Je suis VFR au-dessus des nuages, VFR on top" which means above the clouds.

The next witness, Omer Lemaire, a Transport Canada inspector for the Quebec region, produced the special flight operations certificate of the Para-Nord company. He explained the specialty of this certificate which sanctions sporting activity, specifically parachuting, in a controlled airspace or [over an] air route. The certificate was issued May 18, 2000, and valid until November 1, 2000.

He referred to paragraph 7, which reads as follows:

7. No parachute jump may be made:

(a) without the authorization of the pilot-in-command of the dispatching aircraft;

(b) when any part of the descent, including the free fall, will be made through clouds;

(c) when another aircraft present in the area constitutes a danger.

He also referred to paragraph 9, which reads as follows:

9. Aircraft must be at least 500 feet above the base of the clouds and at a horizontal distance of at least 2,000 feet from the clouds, and the flight visibility must be at least 5 miles at the time of dispatching the parachutists.

He explained that it takes 5.7 seconds to go 1,000 feet in free fall, 64 seconds to go from 12,500 feet to 2,000 feet, and 48 seconds to go 1,000 feet when the chute is open. Parachutists must not be dispatched at an altitude of less than 2,200 feet AGL (above ground level), or at an altitude of over 10,000 feet ASL (above sea level).

He went on to explain the different conditions and the protocol set out in the special flight operations certificate for Para-Nord. He mentioned in particular paragraph 17, which governs the obligations of the pilot-in-command of the dispatching aircraft with regard to air traffic control procedures.

Mr. Lemaire explained that the request to dispatch is made by the pilot responsible, but must be cleared by the controller. Since there is no controller at Rouyn-Noranda, the flight service specialists of this airport pass on the instructions that come from Montreal.

The next witness was Martin Boucher, a Transport Canada site manager, building management. Mr. Boucher testified that he was present during the recording of the voices on the original tape containing the conversations of the Air Nova pilot who was preparing for take-off, the respondent Mr. Desrochers, and the flight service specialist, Mr. Scherer. He added that the tape (M-14) had been under lock and key at all times and that he alone had the key.

The next witness was Stéphane Scherer, a flight service specialist at Rouyn-Noranda at the time. Mr. Scherer was at the air-ground console during the dispatching activities.

During his testimony, the Minister's representative played for him the tape filed earlier (M-14). He identified his own voice and that of Mr. Desrochers and an Air Nova pilot.

He added that on the day of the incident he had to obtain his clearances from Dorval, and that Mr. Desrochers was to have contacted the control centre again but did not. Rather it was Mr. Scherer himself who contacted Montreal, seeking the clearances. He went on to say that Mr. Desrochers had not contacted him to check the weather. Subsidiarily, he submitted that he does not have the authority to forbid a pilot from taking off. He ended his testimony stating that after the events of July 16, he recorded the events in a report and informed his supervisor of them.

The sixth witness, Kevin Tuggey, a flight service specialist from Rouyn-Noranda, was at work on July 16, 2000. His duties are to provide flight information, and specifically aviation meteorology services for aircraft departures and arrivals.

To this end, a reference manual of observation procedures provides valuable information and definitions about the sky canopy, the determination and identification of cloud layers as well as their coverage and opacity, the altitude, the ceilings, the various types of clouds, and so on. The witness drew the Tribunal's attention to paragraph 1.7.2 of the said document, which contains the definition of the term "ceiling":

The ceiling is the lesser of the following values:

(a) The above ground altitude of the base of the layer at the lowest altitude, at which the summation opacity is 6/10 or more of the sky's surface;

(b) The vertical visibility in a layer with a base whose surface totally obscures the sky.

The witness continued his testimony, producing a record of movements provided by the FSS for July 16, 2000, which confirms the flight of aircraft C-FIHZ.

Mr. Tuggey was also an eye witness to the dispatching of parachutists between 15:00 and 16:00 hours at 10,000 feet through a broken ceiling at 3,000 feet. He sent a letter to this effect to Benoît Clément of the RCMP about the events of July 16, 2000, involving aircraft C-FIHZ (M-19).

In this letter, Mr. Tuggey described the situation as follows:

At 15:25 hours Z, dispatch at 10,000 feet: control observation: ceiling estimated broken at 3,000 feet, broken 28,000 feet, visibility 15 miles, wind 120 degrees true at 10 knots, clouds 8/10 stratocumulus and trace cirrus.

Comments: recessed cumulus.

At 21:22 hours Z, dispatch at 10,000 feet: control observation: some clouds at 4,000 feet, ceiling estimated broken at 7,000 feet, broken 12,000 feet, visibility 15 miles, showers nearby, wind 140 degrees true at 6 knots, clouds 3/10 cumulus, 6/10 altocumulus and trace altocumulus.

Comments: with towering cumulus.

At 21:03 hours Z, Mr. Desrochers, at the controls of C-FIHZ, calls in at 10,000 feet, ready to dispatch. My colleague Stéphane Scherer, who is at the air-ground console, asks him to wait, as there is a potential conflict with a Dash-8 that is taxiing for take-off. Mr. Desrochers, angry at having to wait, repeats aggressively 2 or 3 times that he would have had time to dispatch. At that point my colleague Stéphane, trying to find him in the sky, asks him if he is in visual (VFR) flight below the cloud layer. Mr. Desrochers answers: "I'm VFR ON TOP and it's not your business, OK?" ("VFR on top" is an expression meaning he is above the cloud layer, which is prohibited in VFR flight except when en route and in certain very limited conditions). He then switched to frequency 125.9 MHZ with the Montreal control centre, which made him wait for the arrival of another aircraft coming in from Val-d'Or before he could dispatch.

At 21:22 hours Z, when I went out to make a control observation, I noticed 3 parachutists emerging from the cloud layer in free fall directly over the runway. There was no break in the cloud layer directly over the airport. [...]

During his testimony, Mr. Tuggey stressed that he had witnessed and heard the conversation between Messrs. Scherer and Desrochers.

The next witness, Julien Laroche, an airworthiness inspector at Rouyn-Noranda for the past five years, was, as mentioned earlier, one of the two investigators in this case, the other being Mr. Haran.

During his visit to Mr. Desrochers, he noted in examining the journey log of aircraft C-FIHZ that no flying hours had been recorded between June 26 and July 31, 2000. He added that he himself had seen the aircraft flying on a number of occasions in that period. What is more, the record of flying hours provided by the Rouyn-Noranda FSS (M-21) shows numerous departures and arrivals of the aircraft in the period mentioned.

Mr. Laroche noticed other things, in particular the foot step on the aircraft. He added that Mr. Desrochers did not have in his possession the necessary approval for installation of the foot step ("supplemental type approval"). He referred to the questioning of Mr. Desrochers, at which he was present and at which Mr. Desrochers admitted not having obtained approval of the foot step. As a result of these irregularities, Mr. Laroche completed a notice of detection. On August 24, 2000, he completed a non-conformance report, which he sent to his superior, Raymond Roch.

The last Transport Canada witness, Raymond Roch, has been a superintendent at Transport Canada for 14 years.

After having been informed of the unauthorized installation of the foot step on the Cessna aircraft registered as C-FIHZ, Mr. Roch took steps to suspend the airworthiness certificate of Para-Nord. The notice of suspension dated August 25, 2000, states that the aircraft no longer fulfils the conditions of issuance of the document for the following reasons: "This aircraft is equipped with a "foot step" the installation of which has not been approved". Mr. Roch contacted Mr. Desrochers by telephone to inform him of this suspension. After this telephone conversation, Mr. Desrochers decided to go and see Mr. Roch with the Cessna C-FIHZ, and thus left Saint-Bruno-de-Guigues bound for Val-d'Or. There, Mr. Roch handed him the notice of suspension. The respondent Desrochers then flew to Rouyn-Noranda where a mechanic was available. Mr. Bazinet removed the foot step according to Transport Canada's recommendations and signed the request for reinstatement of the flight authority indicating that the defects had been corrected, the whole in accordance with Part V of the Canadian Aviation Regulations (CARs) and with chapter 571 of the Airworthiness Manual. Mr. Desrochers returned to Val-d'Or and had the certificate checked by Mr. Roch, who reinstated the certificate of airworthiness that very day, i.e., August 25, 2000.

THE LAW

The CARs stipulate that:

Reckless or Negligent Operation of Aircraft

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.

Journey Log Requirements

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

[...]

Flight Authority

605.03 (1) No person shall operate an aircraft in flight unless

(a) a flight authority is in effect in respect of the aircraft;

[...]

Maintenance Release and Elementary Work

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

[...]

Certification Requirements for Parachute Operations

603.37 For the purposes of section 602.26, a pilot-in-command may permit and a person may conduct a parachute descent under this Division if the person complies with the provisions of a special flight operations certificate—parachuting issued by the Minister pursuant to section 603.38.

ARGUMENTS

The argument of the Minister of Transport representative was very brief. He referred, first of all, to the voice tape on which the respondent Desrochers himself admits to being "on top," that is, above the clouds. He goes on to say that he made nearly all the flights according to VFR OTT (over-the-top) rules at 10,000 feet with a ceiling of between 3,000 and 4,000 feet, despite the ceiling information provided by the Rouyn-Noranda FSS. According to the Minister, the respondent Desrochers constitutes a real danger as he does not appear to know on what frequency he is to establish and maintain two-way radio communication to learn of the position of any aircraft within the control zone of the Rouyn-Noranda airport.

Subsidiarily, the Minister's representative added that the respondent Desrochers was hardly concerned about commercial air traffic, flouting the control tower directives, since movement records confirm the presence of commercial aircraft, specifically of Air Nova, a passenger carrier. According to the Minister, the respondent Desrochers does not fulfil the conditions stipulated in his certificate.

Secondly, the Rouyn-Noranda flight service specialist, Mr. Tuggey, was an eye witness to parachutists emerging through clouds from the aircraft operated by the respondent Desrochers.

Thirdly, the documents concerning the aircraft's movements provided by the FSS and the journey log of registered aircraft C-FIHZ show that not all flying hours had been entered.

Concerning the contravention of subsection 605.03(1) of the CARs, he referred to Mr. Roch's testimony that Mr. Desrochers was at the controls of the Cessna C-FIHZ while the airworthiness certificate of that aircraft was suspended, and again after that, when maintenance was done but not certified pursuant to section 571.10 of the CARs, in contravention of subsection 605.85(1) of the CARs.

The Minister's representative closed by asking the Tribunal to maintain the penalties assessed in view of the repeat offences, on several counts, within brief periods of time.

ANALYSIS OF THE EVIDENCE

With regard to the contravention of section 602.01 of the CARs concerning the operation of an aircraft in such a reckless manner, i.e., to dispatch parachutists above a cloud layer, as to endanger the life or property of a person, paragraph 3.7 of the Para-Nord operations manual states that "the aircraft cannot be operated in VFR above the cloud layer unless authorized to do so by the air operator certificate...". Para-Nord's air operator certificate is for special flight operations - parachuting in controlled airspace or over an air route. This exemption from paragraph 602.26(a) of the CARs was authorized May 23, 2000, by the Director General of Civil Aviation, as the document attached to the special flight operations certificate shows.

However, it applies subject to the following conditions set out in the certificate:

(1) [...]

(2) No parachute jump may be made, and no pilot-in-command shall permit a person to make a parachute jump in the following conditions:

(a) when the descent constitutes a danger to the other users of the airspace or to persons and property on the ground;

(b) [...]

(c) when any part of the descent, including the free fall, is made through clouds;

[...]

(6) No pilot-in-command shall permit a person to make a parachute jump in Class D or E controlled airspace, unless the pilot-in-command has first contacted the air traffic control unit which provides air traffic control services in that airspace.

Moreover, according to paragraph 5 of the special flight operations certificate, the holder of the certificate must ensure that the pilot-in-command of the dispatching aircraft and the person who is to make the parachute jump:

(a) have been informed of the terms of the certificate;

(b) have been informed of their duties and responsibilities with regard to parachute jumps;

(c) are capable of fulfilling their duties and responsibilities.

Also, paragraph 8, concerning the use of the parachutists' landing area, states:

The pilot-in-command of the dispatching aircraft cannot authorize a parachute jump in the following cases:

(a) if a potential traffic conflict may arise with any other aircraft present in the control area of the Rouyn-Noranda airport;

(b) when one or more parachutists in descent may be at an altitude of below 3,000 feet above the ground of the airport mentioned in (a), and an aircraft:

  • is in the final descent stage for a landing on runway 26 or 08 of the Rouyn-Noranda airport;
  • is making the take-off run from runway 08 or 26 of the Rouyn-Noranda airport;
  • is in ascent, following a take-off or a go-around procedure from runway 08 or 26 mentioned above, until that aircraft leaves the respective departure stage.

According to paragraph 17 concerning parachute jumps, from 4,000 feet ASL to 10,000 feet ASL, the pilot-in-command of the dispatching aircraft must comply with air traffic control procedures, specifically by telephoning the supervisor of operations at the Montreal area control centre at least one hour before the start of activities, in order to:

  • report the location concerned;
  • identify the aircraft call sign and type;
  • indicate the altitude;
  • establish the planned time of take-off and the duration of dispatching activities.

During the flight, the pilot-in-command of the dispatching aircraft must establish and maintain two-way radio communication with the Montreal area control centre on frequency 125.9 MHz immediately before the jumps in order to obtain dispatch clearance and information about possible traffic. The exception to this is that, with the approval of the Montreal area control centre, and when the centre confirms that no IFR traffic is expected and/or present in the area surrounding the drop zone and for the planned duration of the jumps, the communications contemplated by this certificate may be made with only the Rouyn-Noranda FSS on frequency 126.7 MHz.

In addition, the pilot of the dispatching aircraft must transmit his dispatching intentions on frequency 126.7 MHz.

When traffic is reported by the Rouyn-Noranda flight service specialist and this traffic seems to be in conflict with the aircraft dispatching parachutists, the pilot of the dispatching aircraft must establish two-way radio communication with this traffic on the proper frequency.

The pilot-in-command of the dispatching aircraft will be subject to, and must at all times comply with, any restriction regarding altitude and/or heading which the Montreal area control centre may impose on him.

Subsidiarily, according to paragraph 7 of the same certificate, no parachute jump may be made without the authorization of the pilot-in-command of the dispatching aircraft.

Mr. Desrochers acknowledged in his statement having dispatched his parachutists above a cloud layer. He acknowledged, firstly, being the pilot-in-command, and secondly, when asked whether he had made dispatches at 10,000 feet through clouds when the ceiling was broken at 3,000 and 4,000 feet, he answered that he had vertical contact, through the breaks, with the ground when dispatching.

Several witnesses have given the definition of "ceiling," i.e., a 6/10 or more layer of cloud described as "broken," as opposed to "scattered," a 5/10 or less cloud cover, which would not constitute a ceiling. The definition of "ceiling" is also found in the observation procedures of the reference manual used for making weather observations.

The relevant weather report provided by the FSS reports broken clouds at 3,000 and 4,000 feet, constituting a ceiling.

A tape recording of the conversation between Mr. Scherer, who was at the console during the drops, the Air Nova pilot who was preparing to land, and the respondent Desrochers, records the comments of the latter, who admits to being "VFR on top." This tape constitutes conclusive physical evidence. It was submitted by the witness Scherer, who recognized the voices of the communications between himself, the Air Nova pilot, and the respondent Desrochers at the controls of the Cessna C-FIHZ. Moreover, site manager Mr. Boucher has testified that he was present during the recording of the tape and that it was in his possession and/or control at all times.

Finally, Mr. Tuggey, a flight service specialist, was an eye witness to the dispatching of parachutists from aircraft C-FIHZ on July 16, 2000, between 15:00 hours and 16:00 hours. He even heard the conversation between his colleague Scherer and the respondent Desrochers.

In view of the conclusive testimonial and physical evidence, it is obvious that parachute jumps were made in weather conditions contrary to the requirements of the special flight operations certificate of the respondent Para-Nord and that a potential traffic conflict existed, specifically with the Air Nova aircraft. As the holder of a special flight operations certificate, the respondent Para-Nord must be held liable for failing to comply with the provisions of the certificate. As for the respondent Desrochers, who acted as pilot-in-command during the dispatching of the parachutists, he must be held liable on that count under paragraph 7 of the special flight operations certificate.

Regarding the contravention of subsection 605.94(1) of the CARs, various documentary evidence, such as the flight records of aircraft C-FIHZ contained in the record of movements provided by the FSS, the journey log of aircraft C-FIHZ, and Mr. Laroche's statements that he had seen the aircraft in flight several times in the period June 26 to July 31, are reliable evidence that help establish the wrongdoing of the respondents. The journey log is a record that must be kept pursuant to the Aeronautics Act. It can be used as evidence, as an exception to the hearsay rule, pursuant to section 28 of the Aeronautics Act which stipulates that an entry in a record is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or against the owner or operator. Here, the evidence is also conclusive.

The Tribunal will analyse the evidence in respect of the two other contraventions simultaneously.

Paragraph 605.03(1)(a) and subsection 605.85(1) of the CARs are here closely linked since, according to the evidence, following a visit to Mr. Desrochers, the Transport Canada investigators noticed a homemade foot step that did not meet the specific requirements of this type of aircraft. A notice of suspension of the certificate of airworthiness was sent to the owner Para-Nord, and the respondent Desrochers then flew his aircraft from Saint-Bruno-de-Guigues to Val-d'Or to meet with the investigator, then back to Rouyn-Noranda, still while the suspension was in effect.

Once again, the evidence is overwhelming. The physical evidence submitted, such as the aircraft's movements (M-26), describe the activities of aircraft C-FIHZ the day of August 25 and the exact times of these activities, most of which took place while the certificate of airworthiness was suspended. Furthermore, Mr. Roch has testified that he saw Mr. Desrochers with the Cessna C-FIHZ when he went to deliver the notice of suspension of the certificate to him.

In the circumstances, I am satisfied with the evidence placed before the Tribunal and must make a finding of recklessness, negligence, even bad faith on the part of the respondents. Let us recall that the respondent Para-Nord had already had its air operator certificate suspended on September 14, 2000, by the Minister of Transport, a decision confirmed by the Civil Aviation Tribunal. It seems unlikely, indeed implausible, that the respondents were ignorant of the law, given these facts.

The respondent Para-Nord is being proceeded against as the registered owner of aircraft C-FIHZ and as the holder of the certificate of airworthiness.

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.

In view of the status of the respondent Desrochers and his close ties to Para-Nord, this defence available to the registered owner does not apply.

The Minister's representative, in his argument, qualified offences of this type as "strict liability offences," that is, offences for which one need not establish wrongful intent but for which the defence of due diligence is admissible.

The Aeronautics Act stipulates in section 8.5 that:

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.

It is important to note that captain Desrochers, owner, director and administrator of the company that was the registered owner of the aircraft, is a separate legal entity from Para-Nord. The Civil Aviation Tribunal has already recognized that the notion of multiple conviction does not apply when invoked by a defendant legal entity on the ground that the person who is the executive head of the company has already been convicted for the same offence. I am referring here to the Lindbergh's Air Service[1] and Desrochers[2] cases.

Finally, regarding the penalties, given the respondents' failure to appear, the Tribunal has no choice but to confirm the penalties assessed by the Minister.

Accordingly, and in view of the evidence submitted, the Minister of Transport has discharged its burden of proof on the balance of probabilities.

CONCLUSION

For these reasons, the Tribunal confirms the decision of the Minister of Transport and sentences the respondent Para-Nord to pay the sum of $11,250.00 for the four offences, and the respondent Louis Desrochers to pay the sum of $2,250.00. The penalty is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within 15 days of the receipt of this determination.

Carole Anne Soucy
Member
Civil Aviation Tribunal


[1] Minister of Transport v. Lindbergh's Air Service, CAT File No. O-0025-10, 1987.

[2] Joseph Louis Desrochers v. Minister of Transport, CAT File No. Q-1881-33, 2000.