Decisions

CAT File No. Q-2531-33
MoT File No. N5504-45249

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Denis Vincent, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, s. 602.13(1)

Take off, Policy Letter, Landing, Helicopter, Expert Witness, Built up area


Review Determination
Carole Anne Soucy


Decision: March 25, 2003

TRANSLATION

The Tribunal considers that the Minister has discharged its burden of proof, on a balance of probabilities. The Tribunal therefore upholds the Minister's decision and orders the Respondent Denis Vincent to pay the monetary penalty of $250.00. The said penalty is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A review hearing on the above matter was held Friday, November 8, 2002, at 10:00 hours, at Hôtel Gouverneur, Trois-Rivières, Québec.

OBJECT OF THE REVIEW HEARING

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport issued a Notice of Assessment of Monetary Penalty in respect of Denis Vincent on the grounds that he contravened subsection 602.13(1) of the Canadian Aviation Regulations (CARs).

Schedule A of the Notice of Assessment of Monetary Penalty reads as follows:

Contravention of subsection 602.13(1) of the Canadian Aviation Regulations.

Between on or about August 21, 2001, 20:00 hours, and August 22, 2001, 03:00 hours, you conducted an approach, take-off and landing in Bell 206 aircraft bearing markings N2110P within a built-up area at or near 1230 Ste-Marguerite, Pointe-du-Lac, Québec, when the approach, landing and take-off were not conducted at an airport or a military aerodrome.

Penalty: $250.00

The penalty of $250.00 was to be paid on or before June 17, 2002, and was not, giving rise to the review hearing.

PRELIMINARY REMARKS

At the start of the hearing, the Minister's representative filed as M-1 an agreement reached by the parties. The admissions agreed to read as follows:

SUBJECT: Admissions in the case of Transport Canada vs Denis Vincent

Mr. Jenner:

As agreed during our telephone conversation of last November 5, you will find below the admissions in respect of the above-captioned matter (CAT File No. Q-2531-33).

Mr. Denis Vincent was the pilot-in-command of Bell 206 helicopter, American registration N2110P during the following two flights:

  • On or about August 21, 2001, from Lac Mékinac to the parking lot behind Le Sportif bar, situated at 1230 Ste-Marguerite, Pointe-du-Lac, Québec.
  • On or about August 22, 2001, on take-off, in the parking lot behind Le Sportif bar, situated at 1230 Ste-Marguerite, Pointe-du-Lac, Québec, bound for Lac à la Tortue, Québec.

The document was signed by Brian Jenner, representing the Respondent Denis Vincent, and by Denis Paré, representing Transport Canada.

THE EVIDENCE

The Minister's representative called three witnesses, including Mr. Guy Héneault, whom he wished to examine as an expert.

Mr. Paré filed Mr. Héneault's curriculum vitae as Exhibit M-2 and proceeded to examine him to establish his qualifications as an expert.

From this testimony, the Tribunal accepts the following, namely, that Mr. Héneault has worked for Transport Canada since 1989. In 1992, he became responsible for the certification of heliport standards, and in this capacity he managed the implementation of the standards and regulations pertaining to certified heliports. He has about 6,500 flying hours on board various aircraft, including helicopters.

In a constantly changing environment, Mr. Héneault has seen numerous revisions of the standards and regulations and has a good knowledge of helicopter facilities. He went on to testify that he is an adviser to the International Civil Aviation Organization (ICAO) Visual Aids Panel (VAP), specifically in the area of lighting and marking.

He also represents Canada internationally and is an ICAO adviser. He is called on, as an expert, to assess certain sites and gives training courses for inspectors in aerodrome and heliport safety.

Nationally, inspectors call on him when there are divergent interpretations of a regulation or standard.

The Respondent's representative objected to his being declared an expert, particularly since he was not a manager at Transport Canada and had no mastery of Transport Canada policy. Moreover, according to Mr. Jenner, the knowledge of the witness Héneault seemed to be limited to Part III of the CARs, whereas the offence pertains to Part VI.

The Tribunal dismissed from the bench Mr. Jenner's objection, mainly because it believes that the witness, specialized in this particular area of expertise, can enlighten the Tribunal regarding the facts to be analysed.

As expert witnesses are often called to appear before our Tribunal, I will elaborate further on the matter.

Let us stress, first of all, that the knowledge, standpoint and particular experience of the expert must be analysed. Theoretical training is important; however, the courts favour practical experience. Also, the expert witness must be objective. Whether an employee or a client of the party calling him as a witness, whether known to the party or not, he must remain impartial and give objective testimony. The credibility, reliability and probative force of his testimony are directly related to the impartiality he demonstrates in his testimony.

It should be borne in mind that the questions asked of an expert about his understanding of an enactment, about the scope he gives it or how he applies the enactment are admissible, even though it is ultimately the Tribunal that will rule on this point.

The expert witness must exercise proper judgment and be entirely honest and objective in answering the questions, the only purpose being to enlighten the Tribunal, not defend a viewpoint or even a cause.

Finally, we might point out that the Tribunal is not bound by the opinions of experts. The Tribunal Member, by virtue of his appointment, has expertise in the field of aeronautics.

Mr. Paré continued his evidence by mentioning that the point at issue in this case is the interpretation to be given to the expression "built-up area," since neither the Regulations nor the Act define this term. It is therefore necessary to determine the spirit of the law and the intent of the legislator.

He therefore asked various questions of Mr. Héneault to that end. He reviewed with him the definitions found in the Act and Regulations. For example, the term "aerodrome" is defined in the Act and not in the Regulations, whereas the word "airport" is defined in both the Act and the Regulations.

In the Act, the word "airport" is defined as follows: "an aerodrome in respect of which a Canadian aviation document is in force".

In Part I — General Provisions of the CARs, the definition of "airport" is as follows: "an aerodrome in respect of which an airport certificate issued under Subpart 2 of Part III is in force".

It also defines "heliport" as follows: "an aerodrome used or intended to be used for the arrival, landing, take-off or departure of aircraft capable of vertical take-off and landing".

Document M-5 contains the exemptions to the heliport standards. The words and expressions used in these Standards have the same meaning as in the CARs with some additions, including: "emergency landing area. An area where an unavoidable landing or ditching may take place with a reasonable expectancy of no injuries to persons or damage to property on the surface." (aire d'atterrissage d'urgence)

In Part III of the CARs, the legislator describes the certification standards and determines whether or not an aerodrome must be certified (302.01), for example, an aerodrome that is located within a built-up area.

Part VI (602.12, 602.13, 602.14) sets out the guidelines with respect to certification, the basis of certification of an aerodrome (heliport or airport).

For example, Mr. Héneault explained that when referring to a "built-up area," the aerodrome must obtain certification in order to carry on its activities, and at that point it becomes an airport or a heliport.

In any event, the Respondent's representative has never denied that this was an aerodrome; on the contrary, he acknowledges that it is neither an airport nor a heliport. Mr. Jenner also objected to the Act and/or Regulations being interpreted by a Transport Canada inspector for the reason that there is only one legislator, and that legislator was not present to explain its Act. The objection was dismissed from the bench as it is obviously impossible to receive the legislator's testimony, and the parties must prove their case with the means at their disposal, in this particular instance someone who is at the heart of the evolution of these standards. Furthermore, as mentioned earlier, a person's testimony about the provisions of the Act is not inadmissible, even though it is the Tribunal that ultimately decides.

Mr. Héneault continued his testimony, stressing the fact that the main purpose of this certification is to protect property and persons. For the purposes of certification, certain criteria are used to determine whether the aerodrome is within a built-up area. The first criterion concerns the proximity of dwellings, houses, buildings, businesses, factories and plants. In fact, anything to do with a manmade structure. The second criterion concerns the ease of access, namely, whether access to the site is controlled or whether the site can be easily reached.

In cross-examination, Mr. Héneault reiterated the purpose of the certification and mentioned that the criteria described above do not constitute an official document but are an integral part of the content of the instruction given in specialty courses about airports.

Mr. Héneault, who is responsible for these courses, went on to say that these guidelines are illustrated using examples, photographs. Policy letters from airport managers may also serve as a guide.

In cross-examination, Mr. Héneault mentioned one method that may help the pilot, namely, the 9-to-3 o'clock, or the "Alain Alex" principle.

In answer to Mr. Jenner's question as to whether this was the opinion of the Minister of Transport, Mr. Héneault said it was common practice, a recognized policy and, with some hesitation, the Minister's opinion.

The second witness for the Minister of Transport was Mr. Claude Durocher, who is a police officer and firefighter in the region. While patrolling on August 1, 2001, at about 21:30 hours, he noticed the helicopter registered as N2110P parked behind Le Sportif bar and notified his superior. An investigation report was subsequently completed, and has been filed as Exhibit M-6.

At about 4:05 hours the same morning, Mr. Durocher again passed by the same bar and noticed that the helicopter was no longer there.

The zoning plan for the municipality of Pointe-du-Lac (today merged with the city of Trois-Rivières) was filed as Exhibit M-7. The sector where the helicopter landed and took off is in a zone described as commercial and industrial (Ic-01).

Mr. Durocher also filed a series of photos that he took, in CD format (M-8). The photos were viewed at the hearing, with a description provided by the witness to situate and visualize the detail of the whole sector. One can see, among other things, the entrance to Le Sportif bar (MVC055), the bar's parking lot (MV0145), part of the elevator (MVC0165), a building housing a company located behind the bar (YVES9), and so on.

The Applicant's last witness was Mr. Yves Thibodeau. He is a civil aviation inspector, Aviation Enforcement, for Transport Canada. He was the investigator responsible for this file. Through Mr. Thibodeau, the Minister's representative filed an e-mail from Mr. Huynh Luan of Transport Canada. In this e-mail, Mr. Huynh gave an opinion concerning the space constituting the site where the helicopter was located. Mr. Jenner objected to the production of the e-mail, as it was impossible for the Respondent to cross-examine Mr. Huynh. The Tribunal allowed the objection and could not accept the content of document M-9. In order for it to do so, Mr. Huynh himself would have had to come and produce this letter so that he could be examined and cross-examined as to its content.

The Minister's representative then filed, through its witness, a letter (M-10) dated November 6, 2002, describing the zoning plan produced as Exhibit M-7. The letter is from Mrs. Dupont, a building inspector for the city of Trois-Rivières, of which Pointe-du-Lac is now a part. It reads as follows:

Mr. Yves Thibodeau, Investigator

Transport Canada

Fax: (514) 633-3666

Sir,

As discussed, I am sending you confirmation that the building at 1171 Chemin Ste-Marguerite in the Pointe-du-Lac sector (former municipality, merged, in January 2002, to become part of the new city of Trois-Rivières) is situated within the urban perimeter of Pointe-du-Lac.

The property is situated in an industrial and commercial zone, namely, zone IC-01, as it appears in the zoning plan (zoning extract #130, map 7B).

The said property is situated alongside the railway line and adjacent to commercial, residential zones as well as a small portion of the agricultural zone.

Trusting this answers your query, I remain,

Yours truly,

Mr. Thibodeau was also asked to describe the environment where the helicopter was located based on the photos (M-8) and the viewing of an aerial video (M-11), taken from a Transport Canada helicopter in the vicinity of the take-off and landing site of Mr. Vincent's helicopter. He described the ease of access to the site where the said helicopter took off and landed. More specifically, right behind Le Sportif bar.

Back on the witness stand, Mr. Héneault, the expert witness for Transport Canada, produced a policy letter issued by the government of Canada, Commercial and Business Aviation division, dated April 24, 2002 (M-13). The document deals with helicopter landings and take-offs within a built-up area, a city or a town.

The purpose of this policy letter is to provide commercial and business aviation inspectors with guidance when issuing authorities for landings and take-offs of helicopters under sections 702.22 and 703.36 of the CARs. Unfortunately Mr. Héneault was unable to explain them, as he is not familiar with the said sections. However, under the heading Letter Policy Number 145 in question, the following is stated:

[...]

In general, "built-up area" means a group of structures that are erected or built by man and includes private dwelling residences, schools, elevators, service stations [...] a dock could be considered such a structure, particularly if it can be shown that there is a risk of damage to property or injury to persons. [...] The word "within" in this context has been interpreted to mean substantially surrounded by the built-up area. In practical terms this would mean that a landing site would have to be surrounded on all four sides or at least to the point that a landing aircraft would overfly a structure at some point, or fly close enough to create a hazard.

[...]

Mr. Héneault ended his testimony by pointing out that a telephone pole constitutes a structure erected by man, and concluded that if it was one of a group of structures, it would or could be part of a built-up area. He testified that, according to the photos taken on the site of the bar's parking lot, the helicopter would have landed and taken off within a built-up area, given the power lines on one side and the buildings on the other.

THE LAW

The CARs provide as follows:

602.13 (1) Except if otherwise permitted under this section, section 603.66 or Part VII, no person shall conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town, unless that take-off, approach or landing is conducted at an airport or a military aerodrome.

[...]

603.66 No person shall conduct a flight operation referred to in section 603.65 unless the person complies with the provisions of a special flight operations certificate issued by the Minister pursuant to section 603.67.

603.65 This Division applies in respect of the following flight operations when not conducted under Part VII:

(a) the operation of an aircraft, other than a balloon, for the purpose of conducting a take-off or landing within a built-up area of a city or town at a place other than an airport or military aerodrome;

[...]

The following definitions are found in section 3 of the Aeronautics Act:

"aerodrome" means any area of land, water (including the frozen surface thereof) or other supporting surface used, designed, prepared, equipped or set apart for use either in whole or in part for the arrival, departure, movement or servicing of aircraft and includes any buildings, installations and equipment situated thereon or associated therewith;

"airport" means an aerodrome in respect of which a Canadian aviation document is in force;

ARGUMENTS

Before beginning the arguments, the Respondent's representative presented a motion that the case be dismissed given the lack of evidence respecting the notion of city or town.

In response to Mr. Jenner's motion, Mr. Paré argued that the intent of the law is to be given a broad and free interpretation, not a narrow one, as the Respondent's representative would have it. He pointed out that Pointe-du-Lac today is part of the city of Trois-Rivières, and that before that, it was a regional county municipality. He explained that a municipality meets the criteria of a city or town and is similar to them by virtue of its structure, its services to the citizens, the presence of its mayor and the mayor's deputies.

The Tribunal dismissed the motion, which it considered untimely since obviously it did not have time to consider all the exhibits filed and study each closely. The Tribunal bases its decision on the testimonial, documentary and/or circumstantial evidence presented at the hearing. It accords it the weight, relevance and credibility it merits after study and analysis. The Tribunal was not able, at this stage of the hearing, to render an informed decision on the merits.

In argument, Mr. Paré submitted that the following points had been proven:

  1. the pilot Denis Vincent took off within a built-up area of Pointe-du-Lac;
  2. it had been given in evidence that the term "built-up area" implies the need to ensure the safety of persons and property on the ground;
  3. the video (M-11) shows that we are in a commercial space and it is clear that safety was not ensured;
  4. the photos (M-8) show that the site where the helicopter was located is within a built-up area, an area described as commercial and industrial, surrounded by buildings, obstacles erected by man.

Finally, Mr. Paré referred to the case Delco Aviation Limited[1] for the definitions found therein. He added that there is no evidence of an authorization to land in the present case, and that Mr. Vincent did not exercise due diligence. He then pointed out that the Minister has a mandate to ensure aviation safety in Canada, and referred to the case Foxair Heliservice Inc.[2] regarding the matter of a built-up area.

The Respondent's representative again referred to Delco, stating that the facts in that case were very different from those here. The facts in the present case are acknowledged, and danger is not a consideration here. He went on to add that the term "recklessness" does not pertain, and that if it did, a different charge ought to have been brought by the Applicant.

Mr. Jenner confirmed the importance of establishing the definition of "built-up area" and argued that the word "built-up" is associated with "person," whereas "water tank" is not. He believes a distinction exists between the application of the words "structure" and "built-up area." The section of concern to us does not say "structure," he argued, but rather "built-up area." He argued that the structures ought not to widen the built-up area, and the power lines located there, the oil and/or water tank therefore do not constitute a widening of the built-up area, and concluded that the helicopter was not in this location described as a built-up area. He admitted that there was a built-up area, but that it was not at the place where the Respondent landed and took off.

He rejected the 9-to-3 o'clock principle. Finally, he referred to the Policy Letter (M-13), which in his view is very clear that if the landing site is not completely surrounded on all sides by buildings, it is not considered a built-up area and a landing can therefore be made there. He went on to say that in the Foxair case, the Tribunal could be less indulgent in the interpretation since it concerned a previously granted authorization.

Mr. Paré summarized his argument, reiterating the application of the "Alain Alex" principle set out in the Foxair case. He stated that the Act also mentions structures, not just buildings.

DETERMINATION

In view of the admissions made by the Respondent, the only element that the Minister must prove, on a balance of probabilities, is that the aircraft made its approach, landing and take-off within a built-up area of a city or town. As no definition of the term "built-up area" is found in the Act or Regulations, we must refer to the definitions in dictionaries of general usage.

In Le Petit Robert, the word "zone" [area] is defined thus: "surface quelconque; partie importante (d'une surface ou d'un volume); région, portion de territoire" [translation: a surface; significant part (of a surface or volume); region, portion of a territory].

The word "bâti" [built-up] is defined thus: "sur lequel est construit un bâtiment" [translation: on which a building is erected].

The definition of "intérieur" [within] is: "qui est au-dedans, dans l'espace compris entre les limites d'une chose" [translation: which is inside, in the space included between the limits of a thing].

In the Delco case, although the facts differ, the Tribunal had to examine the notion of built-up area. In that matter, the member scrupulously examined the various definitions proposed both in French and English. It contains, inter alia, an excerpt from the decision R. v. Stoesz[3] which was referred to the Tribunal. It reads:

Oxford Shorter Dictionary defines 'build' as to erect, construct, to erect a building or buildings. Webster's New Twentieth Century Edition defines 'build' as to construct or erect as a home, ship or wall; to unite into a structure... Synthesizing this information, built up suggests to me structures that are, especially those that are not abandoned, erected or built by man and includes such structures as private dwelling residences, schools, elevators, service stations and so forth.

All these definitions, as well as those found in Policy Letter Number 145, concur in that they refer to constructions, structures, buildings erected and built by man.

With all due respect, and in view of the foregoing, I cannot share the Respondent's opinion on the distinctions he makes between the application of the words "structure" and "built-up area." It is also my view that a water or oil tank as well as telephone poles are structures erected by man and form part of an environment constituting a built-up area.

I will not, however, accept the argument of the Minister's representative concerning the "Alain Alex" principle, even if some pilots apply it. I cannot attribute any legal merit to it as it is not regulated and is not mentioned anywhere in the documentary evidence filed.

Finally, it is said that photos speak for themselves. The photos, supported by aerial videos, clearly show that the parking lot of Le Sportif bar is situated in an environment surrounded by structures erected by man.

One should certainly not describe a built-up area as being the inner courtyard of a circular building. The obscurity and inadequacy of the Act compel us to make an analysis and an interpretation that extend beyond the section itself. It must be given a broad and liberal interpretation that lend it its true meaning and ensure the accomplishment of its purpose. In aeronautics, safety is paramount. Mr. Héneault's testimony bears this out completely. The certification criteria are the proximity of buildings and the ease of access to the site.

Lastly, I will analyse the definition of the term "municipality," since Pointe-du-Lac (now merged with the city of Trois-Rivières) was a municipality at the time of the alleged offences. According to the Office de la langue française 1999, "municipalité" is defined as:

Territoire sur lequel s'exerce un gouvernement local conformément aux lois municipales. Note(s) :  Dans l'usage courant, le générique " municipalité " est utilisé pour désigner tantôt le territoire ou l'entité administrative, tant le corps municipal qui comprend le maire, la mairesse et les conseillers et conseillères, ou l'administration municipale qui incluent aussi les fonctionnaires de la municipalité. Ainsi, la municipalité peut être définie comme une personne morale de droit public, formée de ses habitants et des contribuables de son territoire, dont les droits sont exercés et les devoirs sont remplis par son conseil et ses fonctionnaires.

The municipality of Pointe-du-Lac, which is listed in the Répertoire des municipalités du Québec 2001, had its own mayor and six councillors. Its municipal structure, very similar to a city or village, included an administrative head, an office of the secretary-treasurer, a fire department, a recreation department, a municipal inspection station, public works and emergency services departments, and an advisory planning committee.

Given its structure, I wholly concur with the Minister's representative that the Act should be given a broad and unrestrictive interpretation and, considering the similarity between the structure of this municipality and that of cities and towns, there is no doubt in my mind that the notions of city and town encompass that of municipality.

As to the monetary penalty, no representation was made in this regard.

In view of the foregoing, the Tribunal considers that the Minister has discharged its burden of proof, on a balance of probabilities. The Tribunal therefore upholds the Minister's decision and orders the Respondent Denis Vincent to pay the monetary penalty of $250.00.

Carole Anne Soucy
Member
Civil Aviation Tribunal


[1] Minister of Transport v. Delco Aviation Limited, CAT File No. O-1918-41, September 19, 2000.

[2] Minister of Transport v. Foxair Heliservice Inc., CAT File No. Q-2427-37, September 4, 2002.

[3] Manitoba Provincial Court, T. Lismer, J., February 4, 1983.


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


Decision: September 24, 2003

TRANSLATION

The Appeal Panel upholds the review determination. Mr. Vincent was not authorized to conduct an approach, landing or take-off within the built-up area of this settlement since this built-up area comes within the prohibition in the English version of subsection 602.13(1) of the Canadian Aviation Regulations. The monetary penalty of $250.00 is payable to the Receiver General for Canada and must be received by the Tribunal within fifteen days of service of this decision.

An appeal hearing on the above matter was held before three members of the Tribunal on Tuesday, June 10, 2003, at the Federal Court of Canada in Quebec City, Quebec.

BACKGROUND

The Minister of Transport alleged that Mr. Denis Vincent contravened subsection 602.13(1) of the Canadian Aviation Regulations (CARs) by conducting, on August 21, 2001, at about 20:00 hours (local time), and on August 22, 2001, at about 03:00 hours (local time), an approach, landing and take-off on board the Bell 206 aircraft bearing registration marks N2110P. These manoeuvres were executed within a built-up area at or near 1230 Ste-Marguerite, Pointe-du-Lac, Quebec, and not at an airport or a military aerodrome.

On May 13, 2002, the Minister assessed a monetary penalty of $250 against Mr. Vincent.

As the penalty was not paid within the prescribed time limit (on or before June 17, 2002), a Review Hearing was held on November 8, 2002, at Trois-Rivières before hearing officer Ms. Carole Anne Soucy.

The Appellant, Mr. Vincent, is appealing Ms. Soucy's determination of March 25, 2003, which confirmed the Minister's decision and the monetary penalty of $250.

GROUNDS OF APPEAL

The Appellant maintains that the Member erred in law in her interpretation of subsection 602.13(1) of the CARs in concluding that the manoeuvres conducted on August 21 and 22, 2001, were executed within a built-up area of a city or town.

ARGUMENTS OF THE APPELLANT

1. The Minister adduced no evidence to the effect that the approach, landing and take-off of the aircraft flown by the Appellant were conducted in a "city or town" within the meaning of subsection 602.13(1) of the CARs, other than a document indicating that Pointe-du-Lac is within a regional county municipality (MRC).

2. The Member erred in law in likening the notion of "municipality" to the city or town parameters referred to in subsection 602.13(1) of the CARs.

3. Paragraph 534(2)(a) of the Air Regulations, replaced in 1996 by subsection 602.13(1) of the CARs, prohibited any person operating an aircraft from taking off, landing or attempting to land over a city, town or other settlements (agglomérations urbaines, villageoises ou autres), except in the cases set out in subsections (4), (5) and (6) or pursuant to an authorization issued by the Minister. The Appellant submits that the expression "other settlements" in paragraph 534(2)(a) referred to any built-up area, regardless of the form of municipal structure in question. Paragraph 534(2)(a) was therefore broader and more general in scope than the "city or town" parameters referred to in subsection 602.13(1) of the CARs.

The legislator's present intent, according to the Appellant, is far more specific, since subsection 602.13(1) refers only to a prohibition of conducting an approach, take-off or landing within a built-up area of a city (ville) or town (village). The legislator thus wanted to restrict the application of this subsection to settlements larger than that of Pointe-du-Lac where the Appellant conducted his approach, landing and take-off.

The Member erroneously interpreted the present intent of the legislator in likening the term municipality to the city or town parameters of subsection 602.13(1).

4. The notion of city or town referred to in subsection 602.13(1) of the CARs is to be given the interpretation that is most fair, while being compatible with the attainment of its purpose, namely, to ensure aviation safety.[1]

5. The wording of subsection 602.13(1) of the CARs is clear and does not give rise to interpretation. The prohibition of conducting an approach, landing or take-off within a built-up area refers to the built-up area of a city or town. To submit that all cities and towns are municipalities is an aberration since, according to the Appellant, 90% of Quebec's territory is municipalized, and therefore it would virtually be prohibited for anyone to land or take off elsewhere than at a certified airport or a military aerodrome. According to the Appellant, this does not express the obvious intent of the legislator behind the present subsection 602.13(1) of the CARs.

ARGUMENTS OF THE MINISTER

1. The Minister's representative argues that the findings of fact and credibility that enabled the Member to determine that the region where the incidents of August 21 and 22, 2001 occurred is within the city or town parameters of subsection 603.12(1) of the CARs, are reasonable. They are set out in the following evidentiary elements filed in the case, namely:

  • Testimony of Mr. Thibodeau, p. 124 of the transcript;
  • Exhibit M-7 , zoning document of the Municipality of Pointe-du-Lac, p. 105 of the transcript;
  • Exhibit M-10 , letter of Ms. Dupont, pp.124-125 of the transcript;
  • Exhibit M-12 , map of the Trois-Rivières region, p. 150 of the transcript;

2. Findings of fact and credibility must not be overturned unless they are unreasonable.[2]

3. Every enactment must be given a large and liberal interpretation[3] and its words are to be read in their entire context and in their grammatical and ordinary sense and harmonious with the scheme and the purpose of the Act, and the intention of the legislator.[4] The purpose of the Aeronautics Act and of the CARs is to protect travellers and ensure that pilots and air carriers operate safely.[5] The Member's proposed interpretation of the term "town" in subsection 602.13(1) of the CARs is along these lines.

GROUNDS

It is important, first and foremost, to say that the sole ground of appeal concerns the interpretation of the notions of "city or town" contained in the expression "within a built-up area of a city or town" in subsection 602.13(1) of the CARs. The interpretation of the notion of "built-up area," referring to constructions, structures, buildings erected or built by man, on which the Member based her determination in first instance, is not the subject of a ground of appeal.

The Panel must therefore rule on the following matter:

In conducting his approach, landing and take-off within a built-up area at or near 1230 Ste-Marguerite, Pointe-du-Lac, Quebec, on August 21 and 22, 2001, did Mr. Vincent execute these manoeuvres within a city or town within the meaning of subsection 602.13(1) of the CARs? Did the Member at first instance err in law in finding that the city and town parameters stipulated in subsection 602.13(1) of the CARs encompassed that of municipality given their similar structures?

First of all, a verification of a listing of municipalities confirms that, at the time of the alleged offence, Pointe-du-Lac bore the designation "Municipalité de Pointe-du-Lac." Since January 1, 2002, the present jurisdiction of the former municipality of Pointe-du-Lac has become part of the City of Trois-Rivières[6] in the context of the municipal restructuring instituted by Quebec's ministre des Affaires municipales et de la Métropole.

Secondly, there is reason to wonder whether subsection 602.13(1) of the CARs is not open to interpretation with respect to its notion of "ville et village" within the meaning of the French text, and that of "city or town" in its English version. The English text of subsection 602.13(1) of the CARs translates "ville" by "City" and "village" by "Town." According to the Appellant, the term "Town" refers to a built-up area larger than a village, such that the prohibition of subsection 602.13(1) of the CARs would not apply to the former municipality of Pointe-du-Lac.

The issue is therefore whether the former municipality of Pointe-du-Lac is a "ville ou un village" within the meaning of the French text, or a "city or town" within the meaning of the English text of subsection 602.13(1) of the CARs.

The Commission de toponymie du Québec defines the term "ville" as "[a]gglomération plus ou moins importante, caracterisée par un habitat concentré dont les activités sont axées sur l'industrie, le commerce, les services et l'administration [a settlement of some magnitude characterized by a concentration of dwellings, where activities are based on industry, business, services and administration]"; while "village" is defined as "[a]gglomération rurale caracterisée par un habitat plus ou moins concentré, possédant des services de première nécessité et offrant une forme de vie communautaire [a rural settlement characterized by a lesser concentration of dwellings, offering basic services and a measure of community life.]"

The Petit Robert defines "ville" as "[m]ilieu géographique et social formé par une réunion organique et relativement considérable de constructions et dont les habitants travaillent, pour la plupart, à l'intérieur de l'agglomération, au commerce, à l'industrie, à l'administration, [a geographical and social environment formed by a relatively substantial complex of buildings, most of whose inhabitants work in commercial, industrial or administrative jobs within its boundaries]" and defines "village" as "[a]gglomération rurale: groupe d'habitations assez important pour avoir une vie propre (à différence du hameau) [a rural settlement; a group of dwellings large enough to have a life of its own (in contrast to a hamlet)]."

The Canadian Oxford Dictionary defines "city" as "a municipality with a large population or area or combination of the two," and "town" as "an urban area with a name, defined boundaries, and local government, usually larger than a village and smaller than a city."

This latter definition becomes more clear on consulting the term "village." The Canadian Oxford Dictionary defines the English term "village" as "a group of houses and associated buildings, larger than a hamlet and smaller than a town, especially in a rural area."

We note that the definition of the term "village" used in the French text to translate the notion of "town" in the English version of subsection 602.13(1) of the CARs is more restrictive. In fact, a person who consults the French version of subsection 602.13(1) of the CARs is prevented, for all practical purposes, from conducting an approach, landing or take-off within a greater number of built-up areas than the person who consults it in English. The terms "ville et village" of the French text cover more territory than the terms "city and town" of the English version, since the latter terms exclude the notion of "village."[7]

To show the legislator's intent, the Appellant's representative reminded the Panel that former paragraph 534(2)(a) of the Air Regulations, since replaced by the present subsection 602.13(1) of the CARs, prohibited any take-off, landing and attempted landing not only in a city or town, but also in all "other settlements." The word "autres" of the French text of this former section refers to the term "other settlements" in the English text. The abandonment of the term "autres" has rendered the present 602.13(1) regulation less restrictive by excluding those other forms of municipal structure that are not villes (cities) or villages (towns) from its application.

Exhibit M-7 , which is the zoning plan for the former municipality of Pointe-du-Lac (also forming part of the regional county municipality of Francheville), shows that the place of the alleged offence was in zone IC-01 of the said plan. This zone permits the presence of dwellings (single-family, semi-detached or two-family), various businesses for retail sales or services serving the local community, businesses for retail or wholesale sales and services serving the region, as well as certain industrial, manufacturing or recreational uses.

Exhibit M-10 shows us that 1230 Ste-Marguerite, the place of the alleged offence, is within the urban perimeter of the municipality, alongside the railway line and adjacent to commercial and residential zones and a short distance from the agricultural zone. The documentary and testimonial evidence entered into the record attests to this.

The settlement of the former municipality of Pointe-du-Lac is more akin to a "town" according to the evidence filed in the case, smaller than a "ville" ("city") while larger than a "village." It identifies itself as an urban, rather than a rural jurisdiction. It is in fact a built-up area of some size, with its own mayor, councillors, a headquarters, an office of the secretary-treasurer, a fire department, a recreation department, a public works department and municipal inspection station, and an advisory planning committee.

Moreover, the Commission de toponymie du Québec defines the term "municipalité" (in English, "municipality") as "[t]erritoire sur lequel s'exerce un gouvernement local conformément aux lois municipales." According to the Commission, a "ville" is considered to be a municipality erected as such in accordance with the provisions of the Cities and Towns Act. Moreover, the Canadian Oxford Dictionary defines "municipality" as "a city, town or district having local government."

The English definition of the term "municipality" is somewhat more specific than the French definition. It covers, specifically, the "city or town" parameters of the English version of subsection 602.13(1) of the CARs. Thus, the term "municipality" (or "municipalité") is appropriate only for larger settlements (cities) or settlements smaller than a city but larger than the "village" of the French text (towns). Only the French notion of "ville" (whose jurisdiction is governed by the Cities and Towns Act) would encompass that of "municipalité," whereas both "city" and "town" of the "city or town" parameters of the English text encompass the notion of "municipality."

Obviously, the legislator did not wish to create such a distinction between the two texts of subsection 602.13(1). In such cases, the rules of interpretation state that the enactment must be given the fairest and broadest interpretation that is compatible with its purpose.[8] The purpose of the Aeronautics Act is to ensure aviation safety. In the present case, the less restrictive version of the Act, namely, the English version of subsection 602.13(1) of the CARs, must take precedence.

In this sense, the Member's determination that the notions of "ville" and "village" encompass that of "municipalité" was not unreasonable since the terms "city" or "town" of the English text, which takes precedence here, encompass the former municipality of Pointe-du-Lac as described by the evidence entered in the record at first instance.

The Appeal Panel upholds the review determination. Mr. Vincent was not authorized to conduct an approach, landing or take-off within the built-up area of this settlement since the settlement comes within the prohibition in the English version of subsection 602.13(1) of the CARs. While it is true that virtually all of Quebec's territory is "municipalized", as the Respondent's representative states, the fact nevertheless remains that prohibition in subsection 602.13(1) of the CARs contemplates only manoeuvres executed within the built-up area of this territory and that it is therefore possible to conduct an approach, landing and take-off elsewhere than at a certified airport or military aerodrome.

Reasons for the Appeal Decision:

Suzanne Racine, Member

Concurred:

Faye Smith, Chairperson
Michel Boulianne, Member


[1] Interpretation Act, R.S. 1985, c. I-21, section 12.

[2] Trent Wade Moore v. Minister of Transport, CAT File No. C-0138-33 (TAC), February 14, 1991 (Appeal);
Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, January 26, 1987 (Appeal).

[3] Interpretation Act, R.S. 1985, c. I-21, section 12.

[4] Ruth Sullivan, Driedger on the Construction of Statutes, 3rd edition, Butterworths, p. 131.

[5] Aztek Aviation Consulting Ltd. v. Canada (Skylink) (1990) F.T.R. 210.

[6] Order 851-2001 adopted July 4, 2001, published July 12, 2001, and entered into force January 1, 2002.

[7] Delco Aviation Ltd. v. Minister of Transport, CAT File No. O-1918-41 (in appeal).

[8] Interpretation Act, R.S. c. I-21, section 12.