Decisions

TATC File No. Q-2547-15
MoT File No. N5504-46298

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Ville de Mascouche, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, s. 7.7
Canadian Aviations Regulations, sub. 302.08(5)


Review Determination
Suzanne Racine


Decision: September 11, 2003

TRANSLATION

The Minister has proven, on the balance of probabilities, the offence referred to in the Notice of Assessment of Monetary Penalty issued May 14, 2002. The assessed penalty of $5,000 is confirmed and must be made payable to the Receiver General for Canada and received by the Tribunal within fifteen days of receipt of this determination.

A review hearing on the above matter, previously scheduled for March 31, 2003, and postponed at the Respondent's request, was held June 4, 2003, at 10:00 hours in the boardroom of the Mascouche Municipal Courthouse, in Mascouche, Québec.

OBJECT OF THE REVIEW HEARING

On May 14, 2002, the Minister of Transport served a Notice of Assessment of Monetary Penalty on the Respondent, Ville de Mascouche, pursuant to section 7.7 of the Aeronautics Act, assessing a penalty of $5,000 against it for having allegedly contravened subsection 302.08(5) of the Canadian Aviation Regulations (CARs).

According to the Minister, on January 18, 2002, at about 8:25 hours (local time), the Respondent allowed snow removal equipment to move about on runway 11-29 when the runway was not closed, thereby violating the airport zoning and obstacle limitations established in its airport operations manual.

As the sum of $5,000 was not paid by the prescribed date of June 17, 2002, the Tribunal duly convened this hearing.

THE LAW

Section 7.7 of the Aeronautics Act reads as follows:

7. 7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

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

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

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

Subsection 302.08(5) of the CARs stipulates as follows:

(5) The operator of an airport shall operate the airport in accordance with the airport operations manual.

PRELIMINARY REMARKS AND MINISTER'S EVIDENCE

The Minister filed, as Exhibit M-1, an agreement entered into and signed by the parties on June 3, 2003, containing the following admissions:

  • Ville de Mascouche, as the operator of the Montreal/Mascouche airport, admits that on January 18, 2002, at about 8:25 local time, it permitted snow removal equipment to "be" (as opposed to the term "move about" used in the Notice of Assessment of Monetary Penalty) on runway 11-29;
  • The Respondent admits that this equipment violated the zoning and obstacle limitations;
  • Ville de Mascouche admits that it did not close the runway (11-29), or issue a NOTAM in this regard;
  • The Respondent acknowledges the written statement of the events of January 18, 2002, signed by Mr. Rock Martel. This statement was filed as Exhibit M-2;
  • The Respondent also admits that the pilot of aeroplane G-FANI was not informed that there was snow removal equipment on runway 11-29;
  • The parties also agree to submit in evidence, as Exhibit M-3, the relevant extracts from the airport operations manual of the Montreal/Mascouche airport.

This completes the Minister's evidence.

PRELIMINARY MOTION

Mr. Bock filed a motion for dismissal of the Notice of Assessment of Monetary Penalty on the ground that the notice uses the wording "move about" in reference to the equipment on runway 11-29. In actual fact, contrary to the wording of the Notice of Assessment of Monetary Penalty, the Respondent's representative stated that the snow removal vehicle was not moving about on runway 11-29.

Moreover, and regardless of whether the snow removal equipment was moving about on the runway or remained stationary, the document filed by the Minister as Exhibit M-1 and signed by the parties states that Ville de Mascouche permitted, at the very least, the snow removal equipment to "be" on runway 11-29 on January 18, 2002, at about 8:25 local time.

Mr. Rock Martel's written statement, also admitted as amended by the parties (Exhibit M-1) and filed as Exhibit M-2, states that he saw "a loader" leave "backing off of the taxiway" when he observed aircraft G-FANI land at the Montreal/Mascouche airport on the morning of January 18, 2002.

Documents M-1 and M-2 clearly show the presence of equipment on runway 11-29 of the Montreal/Mascouche airport on January 18, 2002, at about 8:00 local time. The parties even agree that this snow removal equipment violated the airport zoning and obstacle limitations (M-1).

The mere presence of an obstacle on the obstacle limitation surface, in this case the airport runway threshold, is sufficient to warrant the Minister's recourse, regardless of whether or not the equipment was moving. I deny the motion of dismissal submitted by the Respondent's representative.

RESPONDENT'S EVIDENCE

Mr. Bock called Mr. Jean-Luc Beauchemin to testify. Mr. Beauchemin is the president of the company 3099-0675 Québec inc. (Actionnair), to which Ville de Mascouche entrusted the operation and maintenance of the Montreal/Mascouche airport (Exhibit D-2 filed in a bundle) for the period July 1, 2001, to June 30, 2002.

In winter, Mr. Beauchemin looks after snow removal activities from the surfaces of the Mascouche airport, owned by Ville de Mascouche. He explained that Ville de Mascouche holds an aerodrome certificate (filed as Exhibit D-3) issued with the authorization of the Minister of Transport subject to the following conditions: public use, day and night, in VFR (visual flight) conditions.

Asked about the airport's snow removal activities, Mr. Beauchemin testified that he orders snow removal operations only once the snow has stopped falling. According to him, there is no runway snow removal activity when weather conditions are IFR. However, on occasion in the past, he has ordered snow removal from the area allowing access to the hangars during a snowfall.

At the time of the alleged offence on January 18, 2002, the witness said there was "a heavy snow shower," that "visibility was poor, almost nil." The weather conditions that prevailed at that time were, in his view, clearly IFR. In support of his contentions, he filed, as Exhibit D-1, the weather report recorded at Mirabel, Saint-Hubert and Dorval airports on January 18, 2002, between 13:00Z hours (8:00 local time) and 14:00Z hours (9:00 local time). He pointed out that the report of conditions present at that time at the Montreal/Mirabel international airport indicates the presence of snow and visibility ranging from 1½ mile to _ mile, while visual flight conditions require a visibility of at least 3 miles.

Mr. Beauchemin felt it was not necessary to issue a NOTAM to inform pilots of the presence of snow removal equipment on runway 11-29 on January 18, 2002, at about 8:25 local time. The witness said that he manages, for Ville de Mascouche, an airport certified for visual flight (VFR) conditions. The weather conditions present that morning were not VFR conditions but rather instrument flight (IFR) conditions. He went on to say that the Montreal/Mascouche airport is not equipped with an air navigation facility or with ground communication, other than an MF station that enables pilots to communicate with each other. Mr. Beauchemin said that it was unthinkable that an aircraft would land at the airport in such conditions. He also said that the snow removal equipment that was clearing the exit runway parallel to the runway had backed onto the runway threshold when aircraft G-FANI was conducting its approach.

Finally, he explained that the annual budget for snow removal at the Montreal/Mascouche airport was only $18,000.

On cross-examination by the Minister, Mr. Beauchemin said that he holds a commercial pilot licence and has taken refresher courses on weather in the context of obtaining this licence. He admitted, however, that he has no additional training in this area. He explained that the Montreal International Airport (Mirabel) is situated about 15 miles from the Montreal/Mascouche airport.

He agreed that the airport operations manual for the Montreal/Mascouche airport indicates that runway 11-29 must be closed while any maintenance is being performed that may involve mechanical equipment or other tools that violate the zoning and obstacle limitations. He argued, however, that this wording in the manual is subject to the conditions "governing certification." The aerodrome certificate issued to Ville de Mascouche is for VFR operations only and the weather conditions present at the time of the alleged offence were IFR conditions. In the circumstances, Mr. Beauchemin said that it was not necessary to close runway 11-29 and, subsidiarily, to issue a NOTAM since this runway was intended only for aircraft performing a visual (VFR) approach. In short, the witness pointed out that this runway is automatically closed during IFR weather conditions.

In response to this approach by the Respondent, the Minister's representative informed the Member that the Minister issues an aerodrome certificate only when it is satisfied that the aerodrome in question meets the standards governing aerodromes. In the case before us, the aerodrome could be used only in visual flight weather conditions. The document Airport Standards and Recommended Practices[1] sets out the requirements defining the limits to be kept clear of obstacles around aerodromes in order to minimize the risks that these obstacles present and to protect aircraft in flight. Mr. Tamborriello asked to have an expert testify on the matter or, if this was not done, to hear him on this matter, and his request was allowed.

He explained that these standards are to be reflected in the airport operations manual.[2] These standards make provision, of course, for more or less restrictive requirements and parameters according to whether the runway is intended for a visual approach or a precision approach. He submitted, however, that regardless of this, a notice must be issued when any object encroaches on the regulated limitation surface. The operator had the duty to inform the flight service station and/or the Minister of the existence of the obstacle (presence of the snow removal equipment on the threshold of runway 11-29) that might compromise aviation safety,[3] regardless of the weather conditions.

MINISTER'S ARGUMENTS

The Minister has proven, by filing in evidence Exhibits M-1, M-2 and M-3, all essential elements of the alleged offence. Ville de Mascouche did not operate the airport in accordance with its operations manual, and thereby violated subsection 302.08(5) of the CARs.

Section 3.1 of the operations manual states that runway 11-29 must be closed while any maintenance is being done when the equipment may violate obstacle limitation surfaces. The Respondent has admitted that the presence of snow removal equipment did violate, on January 18, 2002, at about 8:25, airport zoning and obstacle limitations. Ville de Mascouche is responsible, through its airport manager, for assessing the runway and must notify the Minister and the qualified flight station as soon as it knows of the presence of an obstacle or the existence of a situation that could compromise aviation safety and warrant taking precautions.[4]

REPRESENTATIONS REGARDING THE SANCTION

The Minister's representative stressed that the Minister assessed only the minimum amount of penalty recommended for an offence committed by a corporation under subsection 302.08(5) of the CARs.[5] This decision of the Minister is based on the fact that there were no aggravating factors and that the Respondent's admissions reduce the sanction.

The Minister's representative believes that the penalty of $5,000 serves the interests of justice aimed at deterring or avoiding a repeat offence and at preventing any dangerous consequence having a direct impact on aviation safety.

RESPONDENT'S ARGUMENTS

Mr. Bock recalled that the Respondent had no obligation to close runway 11-29 of the airport or to notify anyone of its closure. The Respondent operates a VFR airport and the weather conditions present at the time of the incident on January 18, 2002, were IFR. Runway 11-29 was therefore automatically closed, since it is intended for visual approaches only.

The Minister's sanction is, in his view, directed at the wrong person. The pilot of aircraft G-FANI is the real guilty party, since he should have known that the weather conditions were IFR. He should have refrained from conducting his approach in such conditions, especially at an airport that has no air navigation facility. The Respondent's representative reiterated that the aerodrome certificate held by Ville de Mascouche is for VFR airport operations, day and night. In the circumstances, the runway assessment is done "visually."[6] Ville de Mascouche committed no error since it complied with its aerodrome certificate and its operations manual.

Ville de Mascouche has worked closely and in good faith with the Minister and has an excellent record of airport management. Its representative therefore asks that his client be acquitted of the alleged offence or, if not, that a reduced, even a "token" sanction, replace the assessed penalty of $5,000, which he finds high compared to the airport's annual budget for snow removal.

Rebuttal

The Minister alleges that the assessment of a "token" penalty would be counter to the objectives of deterrence pursued by the Aeronautics Act. He points out that the issuance of a NOTAM in the present case was all the more essential as the Montreal/Mascouche airport is, first and foremost, an airport for recreation and training where the pilots are less experienced, and is the only means available to authorities to communicate information to pilots.

DISCUSSION

The Minister was critical of Ville de Mascouche for failing to operate the airport in accordance with its airport operations manual by having permitted the presence of snow removal equipment on runway 11-29 without closing the runway, thereby violating airport zoning and obstacle limitations.

Section 3.1 of the airport operations manual of the Montreal/Mascouche airport states that the runway must be closed during any maintenance that may cause mechanical equipment or other tools to violate the zoning and the obstacle limitations governing its certification (M-3). The certification issued by the Minister to the Montreal/Mascouche aerodrome is for public use, VFR, day and night (D-3). The same section 3.1 states, under the heading "Snow Removal," that this operation must take place only once the snowfall has stopped and the conditions are VFR.

Mr. Beauchemin, who is responsible for the operation and maintenance of the airport, admitted during examination that there was "a heavy snow shower" at the time of the alleged offence on January 18, 2002, that "visibility was poor, almost nil" and that the prevailing weather conditions at the time were "clearly IFR." This assertion is corroborated, moreover, by the weather reports recorded that morning at Mirabel, Dorval and St-Hubert airports (D-1).

Mr. Beauchemin also reported that no snow removal activity takes place when the weather conditions are IFR. He said, however, that even in the presence of these IFR conditions, there was snow removal equipment busy clearing the exit runway parallel to runway 11-29 and that it had backed onto the threshold of the landing runway (11-29) just as the aircraft G-FANI was conducting an approach. These facts are corroborated by the written statement as admitted by the Respondent and signed by Mr. Rock Martel (M-1 and M-2). The presence of equipment on runway 11-29 on January 18, 2002, at about 8:25 local time is also admitted by Ville de Mascouche.

The testimonial and documentary evidence clearly shows that the snow removal equipment should not, a priori, have been on the runway at the time of the alleged offence. This being so, the Respondent did not operate the airport in accordance with the provisions of its operations manual and thus contravened subsection 302.08(5) of the CARs.

The Respondent's representative then wanted to "excuse" the fact that it had not closed the runway, or issued a NOTAM, or notified anyone in this regard, by "taking refuge" behind the certification of the Montreal/Mascouche airport. This airport being for VFR conditions and the weather conditions that morning being IFR, the landing of aircraft G-FANI was quite simply unauthorized.

This explication has no bearing on the Respondent's actions. While it is true that the manual provides for the closure of runway 11-29 during any mechanical maintenance to be done in VFR conditions, the fact remains that the Respondent wrongly permitted, from the outset, the snow removal operation that took place on the morning of January 18, 2002, when the conditions were IFR. One might well wonder why the Respondent began snow removal operations in such conditions, particularly as the airport obviously could not afford to carry out the same operation several times, its budget being relatively limited. Doing so needlessly compromised aviation safety.

Moreover, the Montreal/Mascouche airport is an airport for recreation and training that serves a less experienced clientele. It has no air navigation facility. The presence of snow removal equipment on the runway while it was snowing (IFR) needlessly created a potentially dangerous situation that alone warranted the taking of appropriate precautions: the closure of the runway and the issuance of a NOTAM, the only way to communicate with pilots at that airport.

DETERMINATION

The Minister has proven, on the balance of probabilities, the offence mentioned in the Notice of Assessment of Monetary Penalty issued May 14, 2002, and the assessed penalty of $5,000 is confirmed.

Suzanne Racine
Member
Transportation Appeal Tribunal of Canada


[1] Transport Canada, 4th edition, 1st March 1993, TP 312.

[2] Paragraph 302.03(1)(a) of the CARs.

[3] Airport operations manual of the Montreal/Mascouche airport, section 1.3.3 Exigences relatives aux NOTAMS (M-3).

[4] Paragraphs 1.3.2(a), (b) and (e) of the airport operations manual.

[5] The maximum provided is $25,000.

[6] Section 3.1.3 of the operations manual.


Appeal decision
Carole Anne Soucy, Faye H. Smith, Michel Larose


Decision: April 2, 2004

TRANSLATION

We dismiss the appeal as to contravention but we allow the appeal as to penalty and reduce the penalty from $5,000 to $2,500. That amount must be made payable to the Receiver General for Canada and received by the Tribunal within fifteen days of receipt of this determination.

An appeal hearing on the above matter was held in the Federal Court of Canada building in the city of Montreal, Quebec on Monday, December 8, 2003 at 10:00 hours.

NOTICE OF ASSESSMENT OF MONETARY PENALTY

The essence of the allegation in this case is:

On January 18, 2002, at about 8:25 hours (local time), as operator of the Montreal/Mascouche Airport, the Director of the airport allowed snow removal equipment to move about on runway 11-29, when the runway was not closed, thereby violating the airport zoning and obstacle limitations contrary to the established procedure in the airport operations manual.

At the review hearing, the Minister filed an agreement entered into and signed by the parties on June 3, 2003, containing the following admissions:

  • Ville de Mascouche, as the operator of the Montreal/Mascouche airport, admits that on January 18, 2002, at about 8:25 local time, it permitted snow removal equipment to "be" (as opposed to the term "move about" used in the Notice of Assessment of Monetary Penalty) on runway 11-29;
  • The Respondent admits that this equipment violated the zoning and obstacle limitations;
  • Ville de Mascouche admits that it did not close the runway (11-29), or issue a NOTAM in this regard;
  • The Respondent acknowledges the written statement of the events of January 18, 2002, signed by Mr. Rock Martel. This statement was filed as Exhibit M-2; 
  • The Respondent also admits that the pilot of aeroplane G-FANI was not informed that there was snow removal equipment on runway 11-29;
  • The parties also agree to submit in evidence, as Exhibit M-3, the relevant extracts from the airport operations manual of the Montreal/Mascouche airport.

GROUNDS FOR APPEAL

Mr. Bock on behalf of the appellant has appealed the determination rendered by Ms. Suzanne Racine, who following a review hearing held at Montreal on June 4, 2003, determined that: The testimonial and documentary evidence clearly shows that the snow removal equipment should not, a priori, have been on the runway at the time of the alleged offence. This being so, the Respondent did not operate the airport in accordance with the provisions of its operations manual and thus contravened subsection 302.08(5) of the CARs. The Hearing Officer also confirmed the Minister's decision to assess a penalty of $5,000.

Notice of Appeal was filed on September 25, 2003 containing the following grounds:

  1. The Hearing Officer erred in law in concluding that each and every element of the alleged contravention, as set out in the Notice of Assessment of Monetary Penalty dated May 14, 2002 was established and proved;
  2. The Hearing Officer erred in concluding on the basis of the evidence presented before her, that the elements of the contravention were proved by "the mere presence of an obstacle on the obstacle limitation surface" applying thus the principle of lesser and included offence, which clearly constitutes an error of law;
  3. The Hearing Officer also erred in her appreciation of the evidence, notably the interpretation of the airport operations manual for Montreal/Mascouche, in attributing a probative and irrefutable value to the words of Mr. Tamborriello, the Minister's representative testifying on his own behalf, on the requirement to inform (NOTAM) of the existence of an obstacle when the runway was closed in any event due to IFR conditions;
  4. The Hearing Officer also erred in her appreciation of the evidence, specifically regarding the testimony of Mr. Beauchemin, in adding the word "only" in the reference to section 3.1 of the operations manual concerning snow removal thus according a limited and restricted sense to the expression "when conditions are VFR";
  5. The Hearing Officer erred in law in concluding that the testimonial and documentary evidence clearly indicated that snow removal equipment should not have been a priori found on the runway at the time of the alleged contravention when this same evidence should have led her to conclude that it was the pilot of the aircraft G-FANI who should not have been found at this location when conditions were clearly IFR;
  6. The Hearing Officer erred in law in imputing to the respondent and specifically to his representative, Mr. Beauchemin, an act without regard to the fact that the snow removal operation allegedly started before the end of the snowstorm which resulted in the Hearing Officer disregarding the reality of the weather and in particular the fact that the airport is exclusively VFR;
  7. Finally, the Hearing Officer erred in her justification to maintain the penalty at $5,000.00 indicating that it would serve the interests of justice when there was nothing to indicate that this would be the case, and to the contrary, such a sanction is so disproportionate that it contravenes the spirit of the law and is a flagrant violation of the principles of natural justice.

BACKGROUND

The evidence which was put forth at review on the appellant's behalf reveals that Mr. Beauchemin is the president of the company 3099-0675 Québec inc. (Actionnair), to which Ville de Mascouche entrusted the operation and maintenance of the Montreal/Mascouche airport for the period July 1, 2001, to June 30, 2002.

In winter, Mr. Beauchemin looks after snow removal activities from the surfaces of the Mascouche airport, owned by Ville de Mascouche. Ville de Mascouche holds an aerodrome certificate issued with the authorization of the Minister of Transport subject to the following conditions: public use, day and night, in VFR (visual flight) conditions.

Mr. Beauchemin testified that he orders snow removal operations only once the snow has stopped falling. According to him, there is no runway snow removal activity when weather conditions are IFR. However, on occasion in the past, he has ordered snow removal from the area allowing access to the hangars during a snowfall.

At the time of the alleged offence on January 18, 2002, the evidence of Mr. Beauchemin was that there was "a heavy snow shower," that "visibility was poor, almost nil." The weather conditions that prevailed at that time were, in his view, clearly IFR. In support of his contentions, he filed, as Exhibit D-1, the weather report recorded at Mirabel, Saint-Hubert and Dorval airports on January 18, 2002, between 13:00Z hours (8:00 local time) and 14:00Z hours (9:00 local time). He pointed out that the report of conditions present at that time at the Montreal/Mirabel international airport indicates the presence of snow and visibility ranging from 1 1/2 mile to mile, while visual flight conditions require a visibility of at least 3 miles.

Mr. Beauchemin felt it was not necessary to issue a NOTAM to inform pilots of the presence of snow removal equipment on runway 11-29 on January 18, 2002, at about 8:25 local time. It was his evidence that the airport was certified for visual flight (VFR) conditions. The weather conditions present that morning were not VFR conditions but rather instrument flight (IFR) conditions. Mr. Beauchemin stated that the Montreal/Mascouche airport is not equipped with an air navigation facility or with ground communication, other than an MF station that enables pilots to communicate with each other.

Additionally, Mr. Beauchemin agreed that the airport operations manual for the Montreal/Mascouche airport indicates that runway 11-29 must be closed while any maintenance is being performed that may involve mechanical equipment or other tools that violate the zoning and obstacle limitations. He argued, however, that this wording in the manual is subject to the conditions "governing certification." The aerodrome certificate issued to Ville de Mascouche is for VFR operations only and the weather conditions present at the time of the alleged offence were IFR conditions. In the circumstances, Mr. Beauchemin said that it was not necessary to close runway 11-29 and, subsidiarily, to issue a NOTAM since this runway was intended only for aircraft performing a visual (VFR) approach. In short, the witness pointed out that this runway is automatically closed during IFR weather conditions.

DISCUSSION

We are not convinced to alter the decision of the Hearing Officer on the basis of interpretation of the words "move about on the runway". Whether moving or not, he was on the runway and we believe that we would be putting too fine a point on it to hold in the circumstances of this case, that "move about" is different from "be". We were urged to hold the Minister to the use of the precise wording but we believe that to reject the count on that basis would frustrate the intent of the legislation. In our view whether it was moving or not, the equipment posed the same risk to landing aircraft. On this subject, we concur with the ruling of the Tribunal Member at review when she stated: "The mere presence of an obstacle on the obstacle limitation surface, in this case the airport runway threshold, is sufficient to warrant the Minister's recourse, regardless of whether or not the equipment was moving."

We appreciate the operator's argument that this is a VFR airport and hence unless it is VFR weather, no one should be landing at the airport. Regarding the issue of whether he is entitled to rely on this as a defence to an allegation that he did not send a NOTAM when the runway was being cleared of snow since in his view it was unnecessary in IFR only conditions, we conclude that he should have issued a NOTAM when the runway was being cleared in accordance with the airport operations manual notwithstanding the weather. As set out in the evidence at review, section 3.1 of the airport operations manual of the Montreal/Mascouche airport states that the runway must be closed during any maintenance that may cause mechanical equipment or other tools to violate the zoning and the obstacle limitations governing its certificate (M-3).

The airport operator knew the conditions were IFR because he is a pilot and he relied on his own knowledge to inform himself rather than on a weather report. There is no air navigation facility and no ground communication at the airport and pilots flying in the vicinity of this recreational airport could only communicate with each other by way of MF.

A further argument regarding whether the equipment went out to clear the runway during the snowstorm or after it was over does not in our view alter the requirement that the NOTAM should have been issued. In the former case of during the snow storm, the operator says that in this case the airport would be closed anyway since the weather was IFR and not VFR. In the second case, after the storm had stopped, the weather may be VFR and the requirement for the NOTAM is clearly stated in the operations manual. We do not believe that in the interests of safety we can distinguish between these two simply because the airport operator's knowledge of the weather conditions tells him that the former instance is a non-VFR condition and pilots are not permitted to land. In such case, where no NOTAM is issued, a pilot in an emergency situation may seek to make an emergency landing at this airport. We understand from some hearsay that the pilot who actually landed on that date was not in an emergency but that knowledge does not change the risk involved in this case.

It is quite obvious that sending a NOTAM whenever there is equipment on the runway eliminates the risk. The responsibilities assumed by the pilot for having landed on this runway was referred to numerous times during the appeal, however, we decline to comment on this as it is a separate matter.

We agree with the conclusion of the hearing officer at review and with her observations that the Montreal/Mascouche airport is an airport for recreation and training that serves a less experienced clientele. It has no air navigation facility. The presence of snow removal equipment on the runway [1] while it was snowing (IFR) needlessly created a potentially dangerous situation that alone warranted the taking of appropriate precautions: the closure of the runway and the issuance of a NOTAM, the only way to communicate with pilots at that airport.

REGARDING SANCTION

The Minister's representative stated that this was potentially a very dangerous situation, and that we should uphold the assessed penalty of $5,000 on the basis of the Wyer [2] case. The representative for the appellant urges that we reduce the penalty, as the appellant's record is spotless, and as well, this is a recreational airport which does not have much traffic being one of the few VFR airports in the province of Quebec, and finally, that in his view the responsibility in this matter rests with the pilot of the aircraft.

While the Minister's position is that this is potentially a dangerous case, we note that upon filing an agreement between the parties, together with three documents, the Minister's representative at review stated, at page 15 of the transcript of the review proceedings, that this is the case for the Minister. As the defence was putting in his case, the Minister's representative then sought to call more evidence on the grounds that he was taken by surprise.

Such an assertion by the Minister's representative comes as a surprise to this appeal panel as it did to the defence at the time of the review hearing. Clearly, it is the burden of the Minister to prove what he alleges in the Notice of Assessment of Monetary Penalty. [3] The Minister must give disclosure of its case to the defence, but there is no reciprocal requirement for disclosure by the defence. In fact, subsection 7.9(5) of the Aeronautics Act provides as follows:

(5) On a proceeding before a member of the Tribunal under subsection (4),

(a)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; and

(b)the person is not required and shall not be compelled to give any evidence or testimony in the matter.

It is clearly contemplated in the Act that the defence need say nothing in response to the Minister's allegation. As these offences in the Aeronautics Act and its subordinate legislation are ones of strict liability, the defence is aware that once the Minister does put his case in, the onus then shifts to the defence to respond to the Minister's case if he chooses to do so, and if he decides not to call evidence by way of defence, then the Hearing Officer must decide the case on the basis solely of the Minister's evidence. [4]

From the transcript, we have discerned that the Minister's representative at review gave expert witness testimony and as he was not asked questions as to his qualifications as an expert in this field, and as we have no basis on which to judge his expertise, we have decided to reject the evidence given by Mr. Tamborriello as an expert. [5]

As well, we would note that it is rather unusual for a representative of a party to give evidence as an expert witness in his own case. [6] In the case at hand, the Minister's representative in preparing his case should have anticipated all the elements that might be raised and thus should have arranged to have qualified witnesses provide evidence as necessary.

Hence, in its deliberations, the appeal panel was of the view that the Minister's evidence consists only of what was produced to page 15 of the transcript of the proceedings. Looking to the Wyer case above referred to, we look to the issue of deterrence, and we find that this case is most likely instructive and we find that $2,500 is sufficient as a deterrent for this operator who has been entirely cooperative. As for the deterrence of others, we are told that there are few VFR airports and no other similar infractions were cited to us and consequently we believe that the reduced penalty is sufficient to deter others as well. We do not believe that a greater penalty than $2,500 is warranted in the circumstances.

DECISION

We uphold the decision of the review member that is we dismiss the appeal as to contravention but we allow the appeal as to penalty and reduce the penalty from $5,000 to $2,500.


[1] See Mr. Rock Martel's written statement entered as Exhibit M-2, the Appellant's admissions (Exhibit M-1) and Mr. Jean-Luc Beauchemin's testimony at page 30 of the transcript of the review proceedings.

[2] CAT File No. O-0075-33.

[3] To the standard of the balance of probabilities, as set out in Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, Appeal 1987; now found in subsection 15(5) of the Transportation Appeal Tribunal of Canada Act.

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

[5] Page 53, lines 11-12 of the transcript of the review proceedings.

[6] This notion was discussed in the case of Joseph Gilles Jean Lapointe v. Minister of Transport (appeal) CAT File No. A-1475-33 at page 6: Investigator as Expert Witness.