Decisions

TATC File No. Q-2419-42
MoT File No. 5504-44518

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Air Canada, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.105(c)


Review Determination
Michel G. Boulianne


Decision: May 16, 2006

TRANSLATION

I uphold the Minister's decision and the monetary penalty of $25 000 assessed for flight 630. The said monetary penalty is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within fifteen days of service of this determination.

A review hearing on the above matter was held at the Federal Court of Canada in Montréal, Québec, on October 1, 2002, December 17, 2002, and at the Montréal Courthouse on February 18, 2003.

BACKGROUND

This is a review of a decision of the Minister to assess a monetary penalty against Air Canada pursuant to section 7.7 of the Aeronautics Act for having contravened paragraph 602.105(c) of the Canadian Aviation Regulations (CARs):

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;

[...]

Further to the filing of an application for review, the review was scheduled to be heard June 26, 27 and 28 in Montréal. However, independent of the request for postponement due to a conflict in the schedules of the witnesses who were to appear, Air Canada's counsel filed a motion seeking an interim ruling from the Tribunal to the effect that the burden of proof to be met by the Minister of Transport for proceedings pursuant to sections 7.6 and following of the Aeronautics Act, R.S. 1985, c. A-2, is one of proof beyond a reasonable doubt.

As the request for postponement was granted, there was no need to rule on the motion at that time.

At the hearing of October 1, 2002, in Montréal, Mr. Marc-André Fabien orally reintroduced his request. First, a list of admissions of fact was filed, but neither Air Canada's counsel nor the Minister's representative made any submissions or representations with regard to the facts. The hearing officer, therefore, had before him only the issue of law submitted in writing when the hearing was first requested and raised again orally, with supporting doctrine and case law, at the hearing. Air Canada's counsel objected to the hearing officer reserving the issue and was supported in this by the Minister's representative, since, according to both representatives, the quality of the evidence would depend on which solution the hearing officer chose. Through their representatives, the two parties therefore agreed to have the Tribunal rule first on Air Canada's preliminary motion. Then, as the undersigned was unable to render a detailed decision on the said preliminary objection within the agreed time frame, he made his decision on November 19, 2002, stating that the reasons for decision would precede the decision on the merits. The hearing was therefore rescheduled and held December 17, 2002, and February 18, 2003.

Representations on the Preliminary Motion of October 1, 2002

Air Canada' Arguments

1. The Minister of Transport sent the respondent a Notice of Assessment of Monetary Penalty pursuant to section 7.6 of the Aeronautics Act, which reads as follows:

7.6 (1) The Governor in Council may, by regulation,

(a) designate any regulation or order made under this Part, in this section and in sections 7.7 to 8.2 referred to as a "designated provision", as a regulation or order the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2; and

(b) prescribe, in respect of a designated provision, the maximum amount payable in respect of a contravention of that provision, which amount shall not exceed

(i) five thousand dollars, in the case of an individual, and

(ii) twenty-five thousand dollars, in the case of a corporation.

(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction.

2. Subsection 7.6(2), in reference to the sanctions set out in 7.7 to 8.2, gives rise to a sanction, i.e. a monetary penalty of up to $25 000.

3. The matter was brought before the Tribunal pursuant to section 7.9 of the Act.

4. The context of the application of sections 7.6 and following of the Aeronautics Act is undeniably penal and, therefore, gives rise to the application of sections of the Canadian Charter of Rights and Freedoms [hereinafter "the Charter"], the Constitution Act, 1981 and the principles established in case law.

5. Our penal law system comprises three regimes of liability, each requiring the prosecution to provide proof beyond a reasonable doubt of the essential elements of the offence (actus reus).

6. Under the regime of mens rea liability, the prosecution, in addition to proving the essential elements of the offence beyond doubt, must also prove, according to the same burden of proof, the wrongful intent of the defendant or respondent.

7. Under the regime of strict liability, the prosecution must also prove beyond a reasonable doubt the essential elements of the offence, but need not prove the defendant's wrongful intent.

8. Under the regime of strict liability, the defendant, in order to exculpate himself, may present a defence of due diligence, for which the burden of proof is on a balance of probabilities.

9. Under the regime of absolute liability, once again, the prosecution must prove each essential element of the offence beyond a reasonable doubt, but need not prove wrongful intent, and the defendant cannot invoke a defence of due diligence.

10. Under sections 7.9 to 8.5 of the Act, contraventions of a designated provision fall under the regime of strict liability, and the case law of this Tribunal confirms this.

11. Therefore, according to the principles of penal law that prevail in any court, the prosecution must prove beyond a reasonable doubt each essential element of the offence. This Tribunal, which has jurisdiction pursuant to section 7.9, the burden of conviction on the prosecution is less than that required under the case law that prevails in all penal proceedings in the country, contrary to the principles deriving from the Charter and the fundamental principles of penal law.

12. This failure to abide by the fundamental principles of penal law violates the respondent's right to the presumption of innocence, its right to a full answer and defence and its right to equal treatment before the law.

13. This Tribunal must determine the rules of evidence that apply in the present case which must be consistent with the basic rights and principles of natural justice.

14. This Tribunal must determine and declare that the burden of proof on the prosecution is proof beyond a reasonable doubt.

15. That is the position of Air Canada which asks this Tribunal to establish, prior to the review hearing on this matter, clear parameters for the burden of proof to be met by the prosecution.

In support of its contention, the respondent's counsel drew a comparison between proceedings by way of indictment or summary conviction such as arise from the application of section 7.3 as an offence, and procedures pertaining to certain contraventions of a designated provision pursuant to section 7.6.

First, he pointed out that there are sanctions against the person (punitive fine against a corporation or penalty without imprisonment) and administrative sanctions for a contravention (section 6.9). According to him, the procedures set out in the Aeronautics Act show the legislator's intention to require the Minister to prove beyond a reasonable doubt the elements of the contravention of a designated provision (actus reus).

In fact, every person who contravenes a designated provision is guilty of an offence pursuant to subsection 7.3(2).

Pursuant to subsection 7.9(5), the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister.

Pursuant to sections 7.6 and following, the member must provide the Minister and the person with a full opportunity consistent with procedural fairness and natural justice to present evidence before the member and make representations in relation to the alleged contravention.

Based on these principles, the respondent submits that, by comparison with the other existing laws and under the principles of natural justice, the standard of "beyond a reasonable doubt" must be applied, not the standard of balance of probabilities that usually applies before a tribunal such as the Civil Aviation Tribunal [since June 30, 2003, the Transportation Appeal Tribunal of Canada].

According to counsel, the possible contraventions of the Aeronautics Act have been divided in two. Reasonable doubt exists only if the burden of proof is beyond a reasonable doubt.

Sault Ste-Marie[1] establishes three categories of offences rather than the traditional two.

  1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
  2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.
  3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Air Canada's representative filed in a bundle, a series of authorities and decisions in support of these submissions.

In rebuttal, the Minister's representative submits that the burden of proof required before this Tribunal, exceptionally, since the offence was one of strict liability, is "on the balance of probabilities"; the standard of proof for such offences, whether the penalty is suspensive (i.e. suspension of a licence) or monetary, is not "beyond a reasonable doubt" since, in referring certain offences to the Tribunal, the Aeronautics Act has excluded these. In this regard, he refers us to a number of earlier decisions rendered by the Tribunal, since 1986, that have always recognized and confirmed that the burden of proof is not the same as in criminal law, where the standard to be met before the Court is proof beyond a reasonable doubt.

DISCUSSION

The Tribunal has considered numerous times, as have a number of other tribunals, this issue of the quality of evidence required and the burden of proof to be met.

Let us break the analysis down into various points.

1. Does the fact that we have a monetary penalty and not a licence suspension mean the charge is a criminal one that must be subject to application of the Charter, specifically section 11? This is the contention of the respondent's counsel, who makes much of the fact that the amount of the monetary penalty itself ($25 000) is such that it ceases to be merely a deterrent designed to protect society and becomes an infringement on the private rights of an individual or corporation. In reviewing the case law, I cannot support this argument since each case is an individual case and I am not convinced that the fact that a monetary penalty is $25 000 in any way alters the provisions established in Sault Ste-Marie and Wigglesworth.[2] If we were to pursue counsel's reasoning, we would have to look at every case to determine whether the amount of the monetary penalty was intended to protect society and act as a deterrent or rather to punish the individual. This has not been shown, but it seems to us that the monetary penalty, if upheld, has been fixed proportionate to the offence, and there is no inherent presumption that the Minister did not intend purely and simply to deter the offender from being a public nuisance in general and to prevent a repetition of the alleged events.

2. It has been determined in a number of decisions that the rights protected under section 11 of the Charter may be relied upon by those "charged" with a disciplinary offence since this term is broad enough to apply to any proceeding against a member of an independent professional order as well as to breaches of the code of discipline of certain groups such as police officers or members of the Armed Forces.[3]

At the same time, it is not whether or not the Charter can be relied upon that should determine the required burden of proof; in fact, nothing precludes Charter provisions from being relied upon in matters where the required burden of proof is on the preponderance of evidence. The scope of section 11 cannot be given a reasonably consistent application and the rights set out in section 11 may well vary according to the type of proceeding if a broader definition is given to the opening words of this section. It is beyond question that those rights are accorded to those charged with criminal offences, to those who face prosecution by the State and who may well suffer a deprivation of liberty as a result of the exercise of that power.

Moreover, it is not the harshness of the penalty that should determine application of the Charter, a sentence for an offence involving a parking ticket may be sufficiently harsh for the protected rights provision to apply. We must not automatically deduce that because the monetary penalty is in the amount of $25 000, the matter is of the same nature as those activities that fall under section 11. Those activities must be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity. Again, this does not mean that the latter does not benefit from the rights provided by section 11, not because they are the classic kind of matters intended to fall under this section, but because they entail true penal consequences. An example of a true penal consequence would be imprisonment or a monetary penalty so onerous that it would seem to have been imposed with the aim of redressing the wrong done to society in general rather than to maintain discipline.

In the present case, I am satisfied that the monetary penalty assessed was not intended to redress the wrong done to the public but rather to deter a major player in the field of aviation from repeating an act that is harmful to society. The aim was not to redress the wrong caused, but to deter.

The legislator has given the Minister the option of proceeding pursuant to the Aeronautics Act in the manner stipulated in sections 7.6 and following. The procedure for proceeding before the Tribunal is set out in section 7.9 and following.

Returning now to the respondent's contention that this provision, in comparison with an offence before a criminal court, should be dealt with in the same way in terms of the quality of the evidence adduced. This is where I disagree, because without attacking the constitutionality of the provisions of the Aeronautics Act, it is the legislator's choice to provide the Minister with a parallel control mechanism that follows different rules with different procedures and which are very clear rules specific to the aviation community, such as any professional body might have. This Tribunal has jurisdiction over aviation, just as the disciplinary rules of the legal profession govern the members of the Bar Association and the College of Physicians governs its members. If this procedure were to be questioned, it would have to be done by challenging the constitutionality of the provisions of the Aeronautics Act.

We are being asked to rule on the burden of proof to be met at an eventual hearing on the merits. This Tribunal has determined in the past, rightly and consistently, that the burden of proof to be met before the Tribunal is that on the preponderance of evidence. I will refer to several opinions expressed to this effect in a number of cases where it was necessary to consider the nature of the offence according to the criteria established in Sault Ste-Marie: mens rea, offences of strict and absolute liability. The Tribunal, citing the analysis in that ruling, stated as follows in Noël,[4] quoting the Honourable Mr. Justice Dickson:

We believe it necessary to quote certain passages taken from the Sault Ste-Marie decision in order to provide proper understanding of the doctrine of due diligence which applies to offences of strict liability under the Aeronautics Act. In qualifying offences of strict liability, Justice Dickson wrote:

... the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application.[5]

In dismissing the obligation of the prosecution to prove negligence in a case involving an offence of strict liability, Justice Dickson added:

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken ... While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.[6]

The Judge went on to define due diligence as follows:

This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused ... took all reasonable steps to avoid the particular event. (underlining by the undersigned)

Many subsequent decisions have provided clarification of the notions of "reasonable care" and "due diligence".

While the undersigned does not propose to undertake an exhaustive study of the jurisprudence since the 1978 Supreme Court decision, it is important to review several widely-known principles which have been applied since the decision and have been written up in the Code de procédure pénal annoté et jurisprudence.

  • Reasonable care must be considered in the context in which it must be exercised and take into account the agencies charged with ensuring regulatory compliance as well as their habits and customs; [translation]
  • Reasonable care, as it applies, is that which must be shown by a reasonably prudent person who practices the occupation in which reasonable care must be exercised; [translation]
  • It is however open to the defence to introduce evidence that shall be referred to as proof of reasonable care or good faith, that is to say that the accused has done all that a reasonable person would have done in similar circumstances and had no intention of committing the offence; [translation]
  • The test to determine whether the defendant assumed his obligations is not that of the care exercised by a reasonable person, but being in the automotive trade, the defendant should have taken the additional precautions that a garage owner would have taken; [translation]
  • It is the degree of reasonableness within a specialty where a special skill or knowledge or ability is involved;
  • Has the defence proved reasonable care with respect to taking all the necessary precautions in order to comply with the law?; [translation]

And further on, the Tribunal[7] echoes the Honourable Mr. Justice Houlden in Ellis-Don Ltd.[8] when it states:

More specifically, with respect to the burden of proof in the case of a due diligence defence, it is critical to quote certain extracts of the Honourable Judge Houlden's judgment in the decision R. v. Ellis Don Ltd [1990] 61 C.C.C. (3d) 423 (C.A. Ont.):

  • To avoid a conviction, the accused must prove on the balance of probabilities that he exercised due diligence. If, at the end of the case, the trier of fact has a reasonable doubt, but the accused has not proved on a balance of probabilities that he exercised due diligence, there must be a conviction.
  • An accused will be convicted unless he has taken as much care as a reasonable person would have taken in the circumstances.
  • The evidential burden will shift to the accused to adduce sufficient evidence to raise the issue that he was not negligent.
  • If he does adduce sufficient evidence to raise the issue, the persuasive burden will be on the prosecution to prove beyond a reasonable doubt that the accused was negligent. At the end of the case, if the trier of fact has a reasonable doubt on the issue, it will acquit.
  • In deciding whether or not it has a reasonable doubt, the trier of fact will be able to rely on common-sense inferences from the proven facts.

In the Supreme Court of Canada decision R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, Chief Justice Antonio Lamer wrote the following with respect to the burden of the prosecution:

  • .. conviction may follow merely on proof beyond a reasonable doubt of the prohibited act. However, it is open to the defendant to avoid liability by proving on a balance of probabilities that all due care was taken. This is the hallmark of the strict liability offence: the defence of due diligence;
  • While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.

The Appellant's arguments also include another defence, referenced in jurisprudence; namely, the defence of necessity. This defence is admissible only in the case of exceptional circumstances where the alleged offender is not at fault and can establish that he was obliged to commit the prohibited act to avoid serious injury or significant damage.

It is important to recall, in finalizing this analysis, that the standard of proof for the crown before the Civil Aviation Tribunal, is that of the balance of probabilities and that this standard applies as well to the evaluation of a defence introduced by the alleged offender.

DETERMINATION

Consequently, in the present case, the undersigned is convinced that the Minister of Transport has proven on the balance of probabilities that the Appellant committed the alleged offence. Accordingly, the burden of proof shifts to the alleged offender who must also prove, on the balance of probabilities, that he acted with reasonable care to avoid committing the alleged offence and that he was not negligent.

The due diligence defence and the absence of negligence on the part of the alleged offender consistent with the criteria of balance of probabilities must be evaluated on the sum of the evidence. We have before us evidence that the alleged offender did not intend to fly, that he checked the field and its surroundings prior to inflating the canopy, that the flight was caused by a series of unpredictable circumstances and that the flight lasted a few minutes because an immediate landing would have endangered the pilot's life. On the other hand, we have the opinion of an expert who has never seen the site and whose opinion is based solely on the alleged offender's testimony and his own personal experience.

On a balance of probabilities, where does the preponderance of evidence lie in this case with respect to negligence and due diligence?

The undersigned finds that preponderance of evidence lies with the alleged offender because it is based on a direct experience of the facts and circumstances.

The site where the flight occurred could add to the seriousness of the offence if it were established that the alleged offender had been negligent, but this does not change the standard of proof in a case of a due diligence defence; that is, the balance of probabilities.

For these reasons, the appeal is upheld and the complaint is dismissed.

3. Can the jurisdiction granted to the Tribunal be divided?

The legislator has given the Tribunal a very specific jurisdiction and the option to proceed either in the regular courts of law or pursuant to the provisions relating to the Tribunal. If one wishes to challenge this option made available in the legislation, this must be done by relying upon its unconstitutionality and not by asking the Tribunal to determine what burden of proof is required for the upcoming hearing on the facts, if need be.

The reasons set out above support the decision rendered November 19, 2002, in which the undersigned, ruling on the preliminary objection of the respondent's counsel, determined that the burden of proof required in a case heard before this proceeding is preponderance of evidence based on the balance of probabilities, and that proof need not be established "beyond a reasonable doubt". These are the specific reasons for that determination.

HEARING ON THE MERITS

At the hearing of December 17, 2002, and February 18, 2003, the dates reserved for the hearing on the merits, the representatives of both parties agreed to file a list of exhibits enumerated below, which include a series of admissions which we will look at in detail:

Minister' exhibits

M-1 List of admissions

  1. On December 23, 2000, at 03:41, Montréal time, an Air Canada Airbus 320 aircraft, flight 630, landed at Montréal International Airport (Dorval).
  2. The Airbus 320 aircraft is subject to noise operating restrictions.
  3. Air Canada flight 630 was to take off at 21:25 from Pearson International Airport for St. John's, Newfoundland, on December 22, 2000.
  4. Flight 630 was delayed due to weather conditions in the Maritimes and was finally able to take off at 00:10 on December 23, 2000, for St. John's, Newfoundland.
  5. The night of December 22-23, 2000, atmospheric conditions were extremely poor at St. John's, Newfoundland, and in all the Maritime provinces.
  6. Due to atmospheric conditions, the airport at St. John's, Newfoundland, was shut down, and flight 630 was diverted, on December 23, 2000, to Montréal International Airport (Dorval).
  7. The pilot's flight plan of Air Canada flight 630 showed Montréal International Airport (Dorval) as the alternate airport.
  8. Consistent with this flight plan, the Airbus 320 – flight 630 landed at 03:40 on December 23, 2000, at Montréal International Airport (Dorval).
  9. When flight 630 landed on December 23, 2000, there were over one hundred passengers on board.
  10. Mr. Serge Foncier, the manager assigned to Dorval Airport, was on duty from 19:00 on December 22 until 07:00 on December 23, 2000.

M-2 List of recordings of clearances and refusals for arrivals and departures between 23:00 and 07:00 from December 18-24, 2000

M-3 Canada Flight Supplement in effect from November 30, 2000, to January 15, 2001 (page B54)

M-4 Canada Air Pilot (CAP) in effect from November 30, 2000 to January 25, 2001 (pp. 185, 186, 187)

Respondent's Exhibits

AC-1 Exemption forms of the assigned manager: 1998, 1999, 2000, 2001

AC-2 Respondent's Route Manual

AC-3 Dorval Airport Noise Abatement Restrictions and Regulations in effect on the date of the alleged events

AC-4 Curriculum vitae of Mr. Donald Lloyd McLeay, Director, Personnel Security and Environmental Affairs, Air Canada

AC-5 Pamphlet on the environment

AC-6 Environmental Policy of Air Canada

AC-7 Excerpt from the Flight Operations Manual

AC-8 Excerpt from Air Canada's Route Manual, concerning noise abatement

AC-9 Classification of Airports (excerpt from Air Canada's Route Manual)

AC-10 In a bundle, correspondence exchanged between Aéroports de Montréal (ADM) and Air Canada between February 4, 2000 and November 5, 2001, regarding noise abatement

AC-11 Excerpt from the approach manual for SID vector Bianca 2.

THE MINISTER'S EVIDENCE

The Minister called as its witness, Mr. Serge Forcier, the manager assigned to Dorval Airport.

The following elements are taken from his testimony:

On December 22, 2000, he was on duty. At about 2:40 a.m., he received an exemption request for flight 630, which he refused for Dorval but granted for Mirabel, the airport chosen for all diversions. He refused the use of Dorval because there were regulations to the effect that during curfew hours, the designated airport for diversions was Mirabel Airport.

He had referred to Exhibit M-4 to determine which airport would become the alternate airport.

He had been sent the exemption request by an employee of the respondent at Dorval.

On cross-examination, the witness identified the documents filed in a bundle as exhibit AC-1: these documents show the exemption requests made to the airport in the years 1998, 1999, 2000 and 2001, how these requests were handled and, in each case, the reasons they were handled as they were.

He acknowledged that, of all these requests, those concerning the diversion of an aircraft to another airport were exceptional circumstances. He also said that when the curfew was not in effect, diversion requests were generally granted; counsel for the respondent extensively reviewed all the diversion requests to show that, as a rule, such requests were not refused. The witness added, however, that he could not tell from the documents whether the exemption requests were ultimately used and whether the alternate airport was accessible at the time.

Confronted with a number of requests that had been granted in the past, the witness went on to say that the criteria had been tightened and made more stringent since 1999, and that fewer exemptions were granted. In fact, since the year 2000, the environment committee has changed the policy and broadened the criteria, particularly with respect to mechanical failures and delay problems.

He acknowledged that some open-mindedness is required, that judgment comes into play and this judgment must be exercised in light of the information received. There may be important factors, such as a medical emergency, and it is important for the pilot to report this so that the appropriateness of granting the exemption can then be determined, since it is not possible to accept everything. There is a course of action to be followed and we attempt to adhere to it.

With the member's permission, after cross-examination, the case presenting officer for the Minister asked the witness specific questions. The latter explained that all exemption requests are made by Air Canada's operations department and it is Air Canada personnel who are to notify the pilot.

He also explained what is meant by a diversion: it is a flight departing from a point other than Montréal and going to a point other than Montréal and which, because of weather or other reasons, is diverted to Montréal. Such a flight which should normally go to Mirabel must, therefore, be granted or refused an exemption when diverted because of the curfew hours at Dorval.

This concluded Mr. Forcier's testimony and the evidence of the Minister.

RESPONDENT'S EVIDENCE

The first witness heard was Mr. Dave Reid, pilot-in-command for the respondent. First, he told us about his experience as a pilot and about his responsibility for the safe operation of the aircraft and the decisions he must make regarding the comfort and safety of his passengers and crew.

With nearly 8 000 pilot hours to his credit, he has been involved only three times in diversions. Flight 630, scheduled to take off from Toronto at about 21:30 on December 22, 2000, for Newfoundland, did not ultimately leave Toronto until three hours later. However, this delay had only been announced gradually.

Some time before departure, he, along with his crew, chose two alternate airports because of the very poor weather on the east coast. He therefore chose Gander; Dorval was his other choice, due to weather conditions. Also, he thought his chances of being able to land at Gander were quite slim. There were other alternate airports on the coast, but for all intents and purposes they were shut down that evening.

Due to the particular conditions that evening, the very large number of passengers, the heavy load of the aircraft, baggage and fuel, his intention was to conduct an approach at the destination and if the weather was below the minima, proceed to an alternate airport. However, in the particular circumstances, he had to make a decision mid-route, that is, he had to assess the weather and continue on to his destination if weather permitted or decide mid-route to return to Montréal. He definitely had to make this final decision mid-route and not later. He was at Charlottetown, the point of no return.

At the time of choosing his alternate airports, given the departure time assigned to him, he expected to meet the curfew restrictions even if he had to head back to Montréal. The flight proved to be extremely difficult for him and his crew; the group of pilots left Calgary that same morning and were forced to wait more than three hours in Toronto for the cabin crew to arrive from another destination. He had to check the weather regularly and once they were mid-route, when the final decision had to be made, they encountered an area of severe turbulence. This, along with the co-pilot's inexperience, the nervousness of the passengers, and the need to make a decision, made for a situation that was difficult to manage.

They, therefore, headed back to Montréal and encountered icing conditions. The pilot spoke to company personnel in Montréal for about 20 minutes before landing to find out where to park the aeroplane and which gate was to be used. He asked them to bring in additional personnel since he had several passengers he believed would have special needs upon arrival. He assumed that at that early morning hour, there could be limited personnel on hand which explains his request for additional personnel.

In making this request, he considered the likely state of the passengers and the reports he was getting from the flight crew while returning to Montréal; in the end, he thought it more prudent to have additional personnel on hand. He also summed up the state of mind of his first officer, being one of his first experiences of this type. In his own mind, Dorval had always been his first choice and it was his choice since he had landed there a number of times in his 25 years of experience. It was an airport with which he felt comfortable and one he knew, whereas he had flown to Mirabel only a few times over the past 25 years. This was his frame of mind at the time of requesting the exemption, although he was fully aware of the curfew rules and that he would be landing after hours. He knew from experience that when landing during a curfew, an exemption request absolutely had to be made. This request had to be made by his flight dispatcher in Toronto. Usually, the flight dispatcher who receives the request from the pilot contacts the authorities of the alternate airport and forwards the pilot's exemption request.

In his experience, it is the flight dispatcher who makes the arrangements for a landing after curfew and then notifies the crew. He therefore thought, while landing at Dorval, that the exemption had been granted. Otherwise, he would have been more insistent, given the particular circumstances of the flight, and would have been more explicit about the reasons he preferred to go to Dorval in this very specific instance.

There had been no indication, according to him, that the request had not been approved. It seems he did not learn that the request to land at Dorval had been refused until the meeting of October 2002 with his counsel.

On cross-examination by the case presenting officer for the Minister, he explained in greater detail the circumstances surrounding the decision he had to make during this flight and the calculations he had to make about the load of the aeroplane and the number of passengers he could take. He explained that he could not have flown to St. John's and back to Montréal with the amount of fuel he had on board. He did, however, have enough to go as far as where he made his decision and back to Montréal.

The case presenting officer showed the witness document M-3 which states that the main diversion airport for the Montréal region is Mirabel International Airport; according to the witness, that information is not included in the documentation provided by his employer.

He went on to say that this decision to return to Montréal was made about an hour before arriving in Montréal; he said, however, that he used about 20 minutes to change directions, reprogram the flight and check on the state of the passengers before making his request to the dispatcher which put this request at about 40 minutes before landing at Montréal. He only provided the dispatcher with his arrival time. When asked whether he had expressly asked his dispatcher for an exemption in order to be cleared to land at Dorval, he said that he had definitely informed the dispatcher that he intended to divert; he may or may not have requested clearance. He had no definite recollection of actually making such a request. At no time did company representatives inform him whether or not a request had been granted. He said it was possible that the first officer was informed over the data link system, since in normal circumstances, this was usually part of that officer's duties, but he could not say for sure. The first officer never informed him whether or not an exemption had been received.

The witness stated, in reply to specific questions from counsel, that he had needed an exemption in that particular instance, but that in most cases, the exemption would be granted. He said that he knew he needed an exemption in the circumstances and that this was the responsibility of the dispatcher in Toronto. He acknowledged that it was essentially his responsibility to request such an exemption, but he expected the dispatcher to look after it.

The turbulence decreased greatly and he acknowledged that in the final 30 or 40 minutes of flight, the situation was fairly normal and the passengers were informed that they would be landing in Montréal.

The next witness was Mr. McLeay, whose curriculum vitae was filed as Exhibit AC-4. He has worked for the respondent for nearly 23 years and has been its director of environmental affairs since 1993.

For a number of years, he sat and worked on the noise abatement committee, both with Transport Canada and ADM. He explained in his testimony all the measures the respondent has taken over the years to reduce noise. He described the whole evolution that had taken place, the ongoing improvements: it emerged from his testimony that there has been a collective effort on the part of the respondent and of all stakeholders in the aviation community. The various documents that were filed clearly show this desire on the part of the authorities to continually improve the situation.

During Mr. McLeay's testimony, discussion arose as to what evidence the respondent could present. Counsel for the respondent was about to produce evidence showing that the respondent went to great lengths to improve the quality of noise abatement and compliance with environmental standards. When the case presenting officer for the Minister objected, the undersigned allowed the objection and barred the evidence, even though counsel for the respondent affirmed it was part of its defence of due diligence.

When the hearings resumed February 18, 2003, the witness stated which documents pilots had in their possession and made the necessary distinctions between the flight operations manual and what he called the route manual; while the first contains all operations approved by Transport Canada under the CARs, the second contains adapted information, navigational charts, approach plates, information about departures for all airports and a lot of other air navigation information. He explained the various operations at both Montréal and Toronto and showed, for both locations, the various phases designed to improve noise abatement procedures. Trials are done on a simulator and from there, new procedures are developed and Air Canada is asked to publish them. As an example, he showed a change that had been made to an approach with the aim of improving noise reduction.

On cross-examination, he explained the differences that may exist between the documents of the Minister and those of the respondent and pointed out that in some cases, local employees, that is, those located in downtown Montréal, may be responsible for obtaining the proper exemptions. When asked why they had not done so in the present case, the witness said he did not know.

He did not know what support there had been at Mirabel that day, and assumed that if an exemption was not granted, it was necessary to contact the people at the Montréal station or call the local office of the vice-president, otherwise, it was necessary to proceed to Mirabel. Evidently that was only one scenario, since this was not done.

Rebuttal Evidence

The witness for the Minister, Serge Forcier, already heard in December 2002, was heard again in February 2003 to say that he receives the exemption requests. These requests generally come from Toronto because that is the rule, but he received none from Toronto that night; the request came instead from the Montréal control centre.

It should be explained, as the witness McLeay was to say, moreover, that these system operation control centres (SOCs) are local operation centres whose head office is in Toronto.

There is one in Calgary and one in Montréal, and they look after arrivals and departures on site and in some cases, they may handle the administrative processing of exemption requests. In any event, it is somewhat unclear what happened to the exemption request that night, why it was not forwarded according to procedure, why the crew of flight 630 received no follow-up. All these questions remain unanswered, for one thing is certain: the crew did not get confirmation of its request nor inquire about its status, regardless of whether it was the pilot or the co-pilot's responsibility.

SUBMISSIONS OF THE PARTIES

The Minister

The Minister alleges that all the elements of the offence are present in this case: An exemption request was made, it was refused, and no evidence of due diligence has been adduced to counter this offence.

The case law submitted by the Minister is to the effect that refusal of an exemption cannot justify disobeying the legal obligations contained in the aviation regulations. The decision in Minister of Transport v. Air Canada[9] is being cited, stating that any diversion of an aircraft far from its base is always a real inconvenience for the passengers and the air carrier.

Our attention was drawn to paragraphs 36 and 37 of the above-cited decision which is as follows:

However, this whole economic issue (with or without the Mirabel issue) deals with the "opportunity" aspect of noise restrictions, themselves a reflection of an institutional policy. The Tribunal has no jurisdiction here to review policies at the opportunity level. The regulations give ADM discretion to set the policy and, unless the setting up or execution of such policy is unfair from an administrative law standpoint, the recourse of Air Canada to seek a less restrictive policy is with ADM not with the Tribunal. Meanwhile, and until then, the noise restrictions and conditions as published in the CAP must be followed at any given time.

Albeit very restrictive, the fact that ADM has a somewhat "clear-cut" policy on predictability adds to the quality of this policy because consistency is better served when parameters are well defined. At least, Air Canada knows where ADM stands and the comment made by Mr. Poppe that "why ask an exemption when we know the answer will be Mirabel" shows the point. The entire scope of the matter is a function of the prime consideration given to noise management at ADM.

The Respondent

Mr. Fabien explained the nature of the offence, reviewed the evidence and considered all the principles of the case law and of the due diligence doctrine. According to subsection 6.2(2) of the Aeronautics Act:

No person shall be found to have contravened a regulation or order referred to in subsection (1) unless it is proved that at the date of the alleged contravention reasonable steps had been taken to bring the purport of the regulation or order to the notice of those persons likely to be affected by it.

There is no doubt in the member's mind, however, that this proof has been amply provided by the witnesses, and that the pilot-in-command and his employer were familiar with the regulations in force and the terms of their obligations.

According to Mr. Fabien, document M-4 sets out an exemption procedure which must be forwarded to the relevant authorities. All acknowledge that a request was made to this end, but that the outcome was not communicated to the pilot flying.

The respondent's counsel also bases his argument on section 8.5 of the Aeronautics Act, which states: "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".

He also filed to the attention of the Tribunal a voluminous series of decisions concerning mainly the concept of due diligence and its application in various fields. We will not deal with all of them, but will deal with them indirectly in our analysis of the evidence and the law a little later.

In short, the respondent alleges that exemption requests such as those that have been refused are quite rare, and that prior to December 2000, the few requests that were made were all granted. It is further alleged that the circumstances that prevailed that day, in December 2000, were equivalent to an act of God. The pilot was in a dangerous situation and because of the attention he had to devote to his passengers and to the operation of his aircraft, he did not have time to ascertain whether the Toronto dispatcher had in fact made the required exemption request.

The respondent has always been concerned with noise control and has always ensured that its personnel, and in particular its pilots, comply with all directives in force.

DISCUSSION AND ANALYSIS

Let us attempt first to bring this case back to a simple analysis based on facts. At Dorval airport, there are noise abatement regulations; these regulations are in place and state that deviation is possible in certain special circumstances.

That night of December 2000, the crew of flight 630 to Newfoundland was delayed about three hours. The crew knew its itinerary and was informed of certain weather conditions that could affect the flight along the way; it therefore prepared itself, it knew its alternate airports and reduced the number of passengers or at least found just the right balance between the maximum number of passengers and the amount of fuel. There is no doubt in my mind that it knew for certain that it might have to divert from its final destination if the weather deteriorated en route.

The pilot-in-command knew full well that he had to plan for a possible change in his timetable and his route. He is a man of experience and has certainly been in such situations before. He explained to us in full how he had calculated his fuel supply, the point of no return at which he had to make a final decision and return to Montréal, and the importance of his passengers' safety. One thing is certain, about an hour from Montréal, he decided to turn back, turned around, reprogrammed his aircraft, reassured his passengers and crew, and finally, prepared to return to Montréal and his landing.

The testimony of the pilot-in-command was rather unclear as to the events of the last 40 minutes of the flight; he did not in fact recall whether he had asked the dispatcher to forward his exemption request; he did acknowledge, however, that he was supposed to do so, but that this was also the co-pilot's responsibility. According to him, he had trouble remembering because he had been very busy with the passengers and the instructions to be given to the crew.

Yet he said that the flight was calm during the final half-hour; it seems to me that during that time, he could have checked with the dispatcher or even with his co-pilot about the outcome of his request. It would have been worthwhile to hear other crew members corroborate the pilot's statement or even provide us with missing explanations. Once he knew for certain that he had to land during curfew hours, he should have taken even greater care and been sure to comply with the regulations in force.

I am far from being convinced, at least in light of the evidence heard, that the situation was as alarming as we are meant to believe. In fact, no special request was made to ground personnel about special care to be given to some passengers after landing. The pilot's testimony is not corroborated by any circumstance that would warrant the possible state of confusion of the crew or its captain or, above all, an unauthorized landing.

It would be quite different if there were a considerable distance between Dorval and Mirabel; one could then understand the urgency of landing as soon as possible and could give some credibility to the facts provided by the main witness, even if most of them are uncorroborated.

I do not question the respondent's efforts and its part in resolving the noise problems in the Montréal area; the witness heard in this regard is credible but, unlike Mr. Fabien, I do not think this is sufficient to support a defence of due diligence. Let us not forget that the main witness was aware of the regulations and procedure; I would understand the need to demonstrate the respondent's efforts and positivity regarding noise if this case concerned a pilot who denied all his employer's efforts and did not acknowledge having been informed of the procedures in place.

That is why I allowed Mr. Tamborriello's objection since the evidence in question came after the pilot's testimony. What we are concerned with is the due diligence of the pilot and of all the respondent's personnel that night in December 2000. It is a matter of reviewing this conduct and determining whether it was warranted in the particular circumstances.

Let us refer to a number of principles that have already been set forth in Sault Ste-Marie and are applied in several decisions of the Tribunal. For example, the Honourable Mr. Justice Dickson, cited in Nöel,[10] states: "This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused... took all reasonable steps to avoid the particular event".

And he adds later:

  • Reasonable care must be considered in the context in which it must be exercised and take into account the agencies charged with ensuring regulatory compliance as well as their habits and customs; [translation]
  • Reasonable care, as it applies, is that which must be shown by a reasonably prudent person who practices the occupation in which reasonable care must be exercised; [translation]

I believe that we must look at the pilot's due diligence in his environment, such as in the aviation community, and is added later in another case:

  • It is however open to the defence to introduce evidence that shall be referred to as proof of reasonable care or good faith, that is to say that the accused has done all that a reasonable person would have done in similar circumstances and had no intention of committing the offence; [translation]

In the present case, beyond the knowledge of the respondent's pilot, I believe that he failed to find out what happened to the request, which he may or may not have made, or at least expected his employer to make. I believe that a reasonable man, once the turbulence (both real and figurative) had passed, would find out from his employer, while there was still ample time, the final details of his landing and the status of his exemption.

A pilot of his experience, once all was calm again in the final 30 or 40 minutes, who did not take the opportunity to find out and simply assumed that the exemption had been granted, does not meet the criteria of due diligence.

I tend to think, in light of the testimonies and the evidence reviewed and adduced before me, that more than anything, he found it easier to land at Dorval as this was less inconvenient. I do not think that Mirabel presented a risk, even if he had not landed there as often as at Dorval, given the class of this airport from the standpoint of instrumentation, the length of the runways, and finally, the ease of landing there. The urgency has not really been shown, no ambulance was requested and only the testimony of the pilot-in-command to this effect shows some desire that his passengers experience no problems. This factor alone cannot justify deviating from existing regulations.

In the case referred to earlier (page 17), heard before this Tribunal, it was stated that refusal of an exemption cannot justify disobeying the legal obligations contained in the aviation regulations, as the representative of the Minister has pointed out; the fact that the landing took place despite a refusal is a serious offence if the emergency was not clearly substantiated and if the procedure was not followed or adhered to.

As the member pointed out, while it seems restrictive, the standard imposed by the departmental policy governing noise operating restrictions must be met and sufficient evidence must be adduced in order to deviate from it.

In addition, I do not think the consistency of the regulations needs to be examined, since it has not been challenged and I have no authority to assess the text.

It was agreed at the conclusion of the hearing that the parties would be convened or notified so that they could submit any comments they had regarding the amount of the monetary penalty to be assessed, since when a decision of the Minister is upheld, the member has the authority to amend it.

We received submissions from the Minister of Transport through Mr. Tamborriello.

The respondent's representative saw fit to make no further submissions for reasons relating to contentions of a civil and commercial nature of which the undersigned is vaguely aware, but over which he has no jurisdiction.

After having considered the circumstances of the flight, the representations of the Minister about previous history involving the respondent, considering also, in my opinion, that there was an obvious refusal to obey the directive without the permission of the local authority, I see no reason to amend the decision of the Minister.

DETERMINATION

FOR THESE REASONS, I find that Air Canada contravened section 602.105 of the CARs and I uphold the monetary penalty of $25 000 for flight 630.

May 16, 2006

Michel Boulianne
Member
Transportation Appeal Tribunal of Canada


[1] R. v. Sault Ste-Marie, [1978] 2 S.C.R. 1299.

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

[3] Wigglesworth at p. 553.

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

[5] Sault Ste-Marie, at p. 1302.

[6] Sault Ste-Marie, at p. 1325.

[7] Richard Noël, at p. 4.

[8] R. v. Ellis-Don Ltd. (1990) 61 C.C.C. (3d) 423.

[9] CAT File No. Q-2205-41

[10] Supra note 4