Decisions

TATC File No. Q-3131-42
MoT File No. N5504-53947

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Air Canada, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 602.105(c)


Review Determination
Caroline Desbiens


Decision: March 27, 2006

TRANSLATION

Air Canada did not contravene paragraph 602.105(c) of the Canadian Aviation Regulations since it has shown, on the balance of probabilities, that it exercised all due diligence to comply with section 8.5 of the Aeronautics Act. The monetary penalty of $25 000 is cancelled.

A review hearing on the above matter was held Tuesday, September 27, 2005, at the Commission des lésions professionnelles in Montréal, Québec.

BACKGROUND

The respondent has made allegations that the applicant pursuant to sections 7.7 to 8.2 of the Aeronautics Act (hereinafter "the Act") for having contravened paragraph 602.105(c) of the Canadian Aviation Regulations (hereinafter "CARs"). The respondent submitted that Air Canada flight AC927 landed at the Montréal-Pierre Elliott Trudeau International Airport ("Trudeau Airport") at about 01:00 local time while the noise operating restrictions period specified in the Canada Air Pilot was in effect.

Appendix A of the notice of assessment of monetary penalty states as follows:

You have contravened the following provision: 602.105c) of the Canadian Aviation Regulations.

On March 21, 2004, at approximately 01h55 local time, you operated an Air Canada Airbus A320 aircraft, Flight Number ACA927, at the Montreal/Pierre Elliott Trudeau Intl Airport during the noise operating restrictions period as specified in the Canada Air Pilot; by landing when aircraft operations are prohibited or restricted.

Penalty: $25 000

The respondent is therefore seeking payment of a monetary penalty of $25 000.

PRELIMINARY MOTIONS

At the beginning of the hearing, the representatives of the parties filed, as exhibit D-1, a list of admissions.

According to exhibit D-1, the applicant admits that an Airbus 320, Air Canada flight AC927, from Fort Lauderdale, Florida, landed at the Trudeau Airport on March 21, 2004, at about 01:55 local time.

The applicant also admits that the Airbus 320 aircraft type is stage 3 certified according to the provisions of part 36 of the Federal Aviation Regulations (FARs).

According to exhibit D-1, the parties also agree on the following facts:

The Trudeau Airport was closed down on March 20, 2004 from 16:30 to 17:15 hours local time because of the failure of a navigational system.

Air Canada flight AC925, on a scheduled run between Fort Lauderdale, Florida and the Trudeau Airport, had to be diverted to Burlington, Vermont.

The applicant had to rush another aircraft to the Trudeau Airport to conduct flight AC926 from Montréal to Fort Lauderdale, Florida, as well as flight AC927 from Fort Lauderdale, Florida to the Trudeau Airport.

The applicant requested an exemption from Aéroports de Montréal ("ADM") on March 20, 2004, in order to permit flight AC927 to land at the Trudeau Airport around 02:15 on March 21, 2004, and ADM refused the exemption request.

It was also admitted that flight AC927 landed at the Trudeau Airport despite the fact that the exemption request had been refused, and the applicant did not request a further exemption to land this flight at the Trudeau Airport.

The applicant called three witnesses, namely Julie Mailhot, Denise Egglestone and the captain, Claude Lapierre.

The respondent called Denise Dubuc and Christine Meloche of ADM.

During the hearing, all witnesses were excluded, with the exception of Ms. Mailhot, who remained present in order to assist the applicant's counsel.

THE LAW

Paragraph 602.105(c) of the CARs stipulates as follows:

Noise Operating Criteria

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

(a) preferential runways;

(b) minimum noise routes;

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

The Canada Air Pilot, regarding the instrument procedures for Québec, sets out the noise operating restrictions and noise abatement procedures for the Trudeau Airport. On the date of the offence, the Canada Air Pilot excerpt filed as exhibit M-2 stated as follows:

A. General

1. Noise operating restrictions apply to all turbo-jet and turbo-fan aircraft in accordance with the schedule in part "B".

. . .

5. Exemptions

Exemptions may be authorized in advance by the Director, Operations for specific flights and determinate periods.

Forward your request with its justification to the following address:

Vice-President, Airport Operations

Aéroports de Montréal
975 Roméo-Vachon Blvd. North
Suite 317
Montréal, Québec
H4Y 1H1

Fax: (514) 633-3138

Under specific conditions, in case of unexpected delays, an exemption may be granted by the Supervisor, Airside Operations by phone at (514) 633-3488

or fax at (514) 633-3492.

Paragraph "B" entitled "Noise operating restrictions turbo-jet and turbo-fan aircraft" stipulates that all arrivals are prohibited from 01:00 to 07:00 for all aircraft having a maximum certified take-off weight of over 45 000 kilograms and meeting the standards in chapter 3 of annex 16, volume 1, ICAO or are stage 3 certified according to part 36 of the United States' FARs.

The parties have acknowledged that the applicant's Airbus 320 that landed at the Trudeau Airport on March 31, 2004 is stage 3 certified pursuant to part 36 of the FARs. It was therefore prohibited from landing between 01:00 and 07:00 on March 21, 2004. For the purposes hereof, we are referring to this noise operating restrictions period applicable to the Trudeau Airport as the "curfew period."

The Minister filed an extract from the above-cited Canada Air Pilot as exhibit M-2.

Section 8.5 of the Aeronautics Act states as follows:

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.

The defence of due diligence stipulated in section 8.5 of the Act may be relied on as a defence against a notice of assessment issued pursuant to section 7.7 of the Act. In the present case, the respondent decided to assess a monetary penalty of $25 000 against the applicant pursuant to section 7.7 of the Act for having contravened paragraph 602.105(c) of the CARs cited above. The monetary penalty for this contravention was assessed under the Designated Provisions Regulations, SOR/96-433 as amended.

The Supreme Court of Canada defined the defence of due diligence as follows in R. v. Sault Ste Marie:

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. [1]

It is incumbent on the applicant to prove that it exercised all due diligence to prevent the contravention and this proof is on the balance of probabilities. The determination of what constitutes "due diligence" depends on the nature of the offence, the industry or activity in question and the specific facts of each case. In general, the greater the likelihood of harm or prejudice to public welfare, the more the defendant must exercise due diligence to escape responsibility.[2]

This Tribunal summarized the definition of due diligence at page 7 of Marsh v. Minister of Transport (appeal file no. C-1095-02) as follows:

Diligence is defined as "the attention and care legally expected or required of a person." The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.

Accordingly, due diligence is assessed in light of the normal and reasonable steps that an air carrier should exercise in similar circumstances, keeping in mind that the noise restriction measures for the Trudeau Airport are intended to ensure peace and quiet to the citizens who live near the airport, not the safety of the passengers, unlike other provisions of the CARs.

For a company, due diligence implies that the company must set up a system to prevent committing the offence and establish measures for ensuring that the system works effectively. This implies transmitting information and instructions aimed at preventing the offence between management and employees in their jobs, proper training of personnel and hiring of qualified personnel.[3]

THE ISSUE

The facts contained in the notice of assessment of monetary penalty are not in dispute since the applicant admitted that on March 21, 2004, Air Canada Airbus 320 flight AC927 landed at the Trudeau Airport at approximately 01:55 local time, during the noise operating restrictions period stipulated in the Canada Air Pilot.

The only issue is therefore whether the applicant exercised due diligence, a defence available pursuant to section 8.5 of the Aeronautics Act.

Specifically, we word the matter in dispute as follows: Did the applicant exercise due diligence in the circumstances to comply with paragraph 602.105(c) of the CARs?

THE EVIDENCE

The Minister's Evidence

Besides the facts admitted to and described earlier, the respondent, through two representatives of Aéroports de Montréal ("ADM"), showed that a procedure existed for requesting an exemption from ADM allowing the carrier to land at the Trudeau Airport during the hours when aircraft operations are prohibited because of the applicable noise control requirements.

Ms. Denise Dubuc, assistant director of operations for ADM, testified that exemption requests are generally made on a form sent by fax by the air carrier. ADM then sends its reply by fax to the carrier, and may or may not follow up with confirmation by telephone. The documents are always exchanged after that. An exemption number is assigned and then entered on the form. The information is then re-entered in an operations log by the operations supervisor.

Through Ms. Dubuc, the respondent filed exhibit M-1 which concerns directive 1-203 for soundscape management exemptions issued by ADM's operations management. This internal directive is only applicable to the Trudeau Airport.

According to Ms. Dubuc, ADM may grant an exemption from noise operating restrictions in unexpected situations arising from unforeseeable circumstances beyond the carrier's control. This is covered in paragraph 3.3.1.1 of directive 1-203 (M-1).

Paragraph 3.3.1.2 of directive 1-203 also states as follows:

[TRANSLATION]

3. 3.1.2 In general, an exemption may be granted based on the reasons relied on by the carrier, if a flight is delayed because of:

a. a change of route: the flight is diverted from its planned destination and Mirabel Airport is not accessible,

b. air traffic control services:

(1) for a landing, when the delay occurred during the flight from where the aircraft last departed,

(2) for a landing, when the aircraft is pushed from the gate of its last departure point in sufficient time to conduct the flight and arrive before the period of restriction,

(3) for a take-off, when the delay occurs after an aircraft push-back, and

(4) for a take-off, when a runway change occurs while the aircraft is already circling over the movement area,

c. de-icing and difficult meteorological conditions:

(1) for a landing, when the aircraft has left the gate at its last departure point in sufficient time to conduct the flight and arrive, in theory, before the period of operation restriction, and

. . .

d. complete or partial inaccessibility for the passengers or the carrier of one or more essential airport services required for the departure from Montréal - Trudeau at the scheduled time (i.e. PTV (passenger transfer vehicle) for boarding at a remote apron),

e. reasons related to passenger safety, on arrival or departure (i.e. bomb threat - baggage match), and

f. reasons related to a mechanical problem, on arrival or departure. In this case, rules are specified in paragraph 3.3.1.3.

Ms. Dubuc believes that the Canada Air Pilot also refers to possible exemptions in certain circumstances such as an unexpected delay.

According to Ms. Dubuc, when the applicant made the exemption request to be allowed to land at the Trudeau Airport on March 21, 2004, at about 01:55 local time, it did not meet the unforeseeability criterion required for exemption and the exemption was therefore refused. The applicant in fact knew, prior to the departure of Air Canada flight AC927 from Fort Lauderdale, that it would be late for its landing before the curfew period.

On cross-examination, Ms. Dubuc acknowledged that directive 1-203 is an internal directive that has never been issued to air carriers. Ms. Dubuc also acknowledged that paragraph 3.3.1.2 of the directive provides for the granting of exemptions in specific cases based on reasons relied on by the carrier if a flight is delayed, while paragraph 3.3.1.1 of the directive provides ADM with discretionary authority to grant an exemption in the case of unforeseeable circumstances beyond the carrier's control.

According to Ms. Dubuc, paragraph 3.3.1.2 of the directive provides for exemptions for various problems that air carriers may encounter and outlines the criteria for these exemptions. These exemptions do not cover cases where the delay occurs or is known before the aircraft's final departure point. In the present case, Air Canada knew towards late afternoon on March 20, 2004 that flight AC927 would be delayed since the Trudeau Airport was closed down due to failure of a navigational system between 16:30 and 17:15 local time, as acknowledged by the parties.

Ms. Dubuc said that during the night of March 20-21, ADM received other exemption requests. She also admitted that in the past, ADM had occasionally misplaced the exemption request forms or the exemption had not been registered in the electronic operations log. According to Ms. Dubuc, the carrier must absolutely obtain an exemption from ADM to land during the curfew period and no discretion in favour of the carrier is provided in the Canada Air Pilot, other than the cases mentioned in paragraph 3.1 of the directive, namely:

[TRANSLATION]

a. when the pilot-in-command declares an emergency,

b. when the aircraft is used for urgent medical transportation (i.e. to transport organs),

c. when the aircraft is used for an urgent, non-medical air operation (i.e. military - state of emergency decreed by a government authority), and

d. when the aircraft must continue its flight to its original destination after having landed at Montréal-Trudeau because of an emergency.

Ms. Meloche, supervisor of air operations for ADM, was on duty on March 20, 2004, between 08:00 and 20:00. As supervisor for air operations, she assists, among others, the director of operations at the Trudeau Airport. Her duties include managing landing restrictions, including noise operating restrictions stipulated in the Canada Air Pilot.

Ms. Meloche said that she received the applicant's exemption request for Air Canada flight 927 from Fort Lauderdale with Trudeau Airport as the destination on March 20, 2004, at about 16:30 local time. At the time she received this request by fax, the Air Canada aircraft was still on the ground at the Trudeau Airport and she refused the exemption because the aircraft's delay was known prior to its departure from Fort Lauderdale.

The Minister filed exhibit M-4 through Ms. Meloche, which is a copy of the exemption record from the operations log. Upon returning to work the next day, on March 21, 2004, Ms. Meloche entered the applicant's exemption request made at 02:15 into ADM's computer system on March 21, 2004, as well as ADM's exemption refusal. For March 20, 2004, the flight's planned arrival time was supposed to be 23:43.

In support of its exemption request, the applicant relied on the difficult weather conditions at Dorval resulting in the closure of the Trudeau Airport during the afternoon. The record shows that the exemption request was refused. It also shows, however, that the flight nevertheless landed at 01:55 at the Trudeau Airport.

There was no longer a supervisor on duty at the Trudeau Airport after 20:00 hours. According to Ms. Meloche, a cumulative delay caused by poor weather conditions is not a reason to justify granting an exemption under the terms of the ADM directive filed as exhibit M-1.

On cross-examination, Ms. Meloche admitted that during the afternoon of March 20, 2004, Trudeau Airport was closed down due to failure of a navigational system and because of this equipment failure, Air Canada flight 925, which was to land in the afternoon, could not do so and had to be diverted to Burlington, resulting in a delay for flight AC926 from the Trudeau Airport to Fort Lauderdale.

Regarding Air Canada changing aircraft, Ms. Meloche was not aware of what happened in terms of the applicant's operations. She also did not know whether another Air Canada aircraft was available before 17:30 to conduct flight AC926 from Montréal to Fort Lauderdale. Ms. Meloche also admitted that a number of flights were affected by the failure of the navigational system at the ADM airport.

Ms. Meloche did not find the copy of the exemption request that Air Canada sent by fax or ADM's exemption refusal sent by fax.

She said that during the night of March 21, 2004, three Air Transat flights, two of which were to land in Mirabel and one in Québec, were diverted to the Trudeau Airport because of the poor weather conditions and ADM's night dispatcher, Gilles Fortin, granted the exemption requests in all three cases. The exemption requests were made verbally during the flight while the aircraft were on final approach for landing at their destination airport and were accepted verbally by ADM.

According to Ms. Meloche, ADM handles on average 300-350 exemption requests a year for the Trudeau Airport.

For Ms. Meloche, the unforeseeable circumstances beyond the carrier's control that allow for an exemption from the noise operating restrictions referred to in paragraph 3.3.1.1 of directive 1-203 are described in a restricted way in the next paragraph, i.e. paragraph 3.3.1.2, cited earlier. Paragraph 3.3.1.1 of the directive does not grant any discretionary authority to ADM. Ms. Meloche contradicts her colleague, assistant director, Ms. Dubuc, in this regard.

What we gather from the evidence adduced by the ADM representatives is that Air Canada's exemption request to land at the Trudeau Airport during the curfew period was refused because the carrier was aware of the cumulative delay throughout the day of March 20, 2004, prior to leaving Fort Lauderdale Airport for the Trudeau Airport. The exemption request was made at about 16:30 on March 20, 2004 by fax and the refusal was sent by fax to Air Canada before Ms. Meloche's shift ended at 20:00 on March 20, 2004.

Applicant's Evidence

The applicant called three witnesses: Ms. Julie Mailhot, dispatcher and service manager for flight dispatch for Transport Canada, as well as operations and air traffic coordination, Ms. Denise Egglestone, flight dispatcher during the month of March 2004 at the time of the incident, and the pilot-in-command, Mr. Claude Lapierre, who was the pilot conducting Air Canada flight 927 between Fort Lauderdale and Montréal during the night of March 20-21, 2004.

Ms. Julie Mailhot's responsibilities include workforce planning as well as the flight dispatchers' workload, and she must ensure that flight dispatchers abide by the company's manuals, including the Air Canada Flight Operations Manual, Standard Operating Procedures and AIP. She is also responsible for collaborating with NAV Canada and the airport authorities and manages the duty chiefs in operations. Air Canada's flight dispatchers plan the flights that are assigned to them and make sure that each aircraft uses the safest and most direct route possible for a given flight. They order fuel, prepare flight plans and follow up on them, as well as following up on the weather during the flight. They are responsible for approaches upon arrival and management of airport curfews and hours of operation.

Airport curfew hours are included in the applicant's operations manual that must be complied with by the flight dispatchers. According to Ms. Mailhot, airport curfew hours are as important as safety, fuel, and so on. Curfew hours are included in all Air Canada flight plans. Ms. Mailhot is the one who reviews all records of requests for a curfew exemption.

Regarding the exemption request for Air Canada flight 927 departing Fort Lauderdale for the Trudeau Airport during the night of March 20-21, 2004, she obtained all the information from the night flight supervisor, who told her that the exemption request was refused during the flight. She was also informed that Air Canada flight 927 had nevertheless landed at the Trudeau Airport because of the poor weather conditions encountered at the Mirabel Airport, the alternate airport.

In support of her allegation, Ms. Mailhot filed exhibit D-2 entitled "YYZ Duty Chief Summary" prepared by the night flight supervisor, whose shift extended from 22:30 on March 20 to 06:30 on March 21. According to Ms. Mailhot, each flight supervisor's report, in this case, Mr. Roy Thompson, summarizes the events that occurred during their respective shift. This report states that ADM refused an exemption request to land at the Trudeau Airport during the curfew period. Therefore, Ms. Mailhot said that the exemption request was made during flight AC927 from Fort Lauderdale, not in the afternoon, as Ms. Meloche of ADM stated.

During the day of March 20, an Air Canada Airbus 320 aircraft was to conduct two daytime shuttle flights between Fort Lauderdale and Montréal. The first (flight AC924) went to Fort Lauderdale and returned to Montréal (flight AC925). While approaching the Trudeau Airport in Dorval, flight AC925 was unable to land and had to be diverted to the Burlington Airport because a glide path transmitter indicator, a navigational aid at the Trudeau Airport, was malfunctioning. This mechanical failure lasted 50 minutes and according to the applicant's report, during that period, Air Canada had five flights diverted, had to cancel one flight, and experienced 22 delays of over an hour.

Because of problems encountered by the Airbus 320 at the Burlington Airport, the applicant could no longer wait for this aircraft to return to Montréal to conduct the next flight, flight AC926 which was scheduled to leave the Trudeau Airport at 15:55 for Fort Lauderdale. The applicant therefore found another aircraft coming from Miami which was able to land at the Trudeau Airport once the glide path indicator was repaired. The applicant then cancelled another flight in order to use this aircraft since there were 140 passengers waiting to take flight AC926 to Fort Lauderdale, and another group of 140 passengers waiting to return from Fort Lauderdale to the Trudeau Airport.

The replacement aircraft from Miami that was supposed to conduct flight AC926 to Fort Lauderdale, normally scheduled for 15:55 local time, was assigned at 17:32 and the Trudeau Airport resumed normal operations only at 17:15. Ms. Mailhot stated categorically that the applicant did not file a plan prior to 17:32 for flight AC926 because it was not yet known which aircraft could land at the Trudeau Airport or what was the inventory of available aircraft.

Consequently, it was impossible for the applicant to plan flight AC926 from the Trudeau Airport to Fort Lauderdale prior to 17:15 since the Trudeau Airport was not yet operational. The applicant was therefore not able to request an exemption around 16:30, as stated by Ms. Meloche of ADM, namely the exemption allowing flight AC927 to land during curfew hours. At 16:30, the applicant had not even designated the aircraft that would conduct flight AC926 and therefore could not provide the aircraft registration or even say what type of aircraft would be needed. Furthermore, prior to 17:15, the applicant could even have cancelled flights AC926 and AC927 since there were no aircraft to conduct these flights. The aircraft's departure time could not have been planned from the Trudeau Airport, much less its arrival time in Fort Lauderdale.

Ms. Mailhot also stated that the Air Canada directive for dispatchers is to request an exemption only once the flight plan has been completed, that is, once the departure time is known, the wind calculation is done, and all other necessary information that could affect the duration of the flight in order to determine the arrival time is known. In fact, the aircraft's on-board computer makes it possible to accurately calculate the arrival time on the basis of the winds once the aircraft reaches its cruising altitude. It is only at that precise moment that the dispatchers know the exact arrival time and it is at that time that they are really able to request an exemption to land during the curfew period, if necessary.

Once the replacement aircraft for flight AC926 was assigned at 17:32, it took approximately 50 minutes to empty the aircraft, deplane all the passengers and baggage, refuel, and board all the passengers travelling to Fort Lauderdale. Thus, at 17:32, once the new aircraft was available, the applicant posted a departure time of 18:35 for flight AC926 from the Trudeau Airport to Fort Lauderdale. This aircraft cleared the gate at 18:34.

The applicant therefore expected to arrive in Fort Lauderdale at 22:15, and it still took 45 minutes on the ground to deplane the passengers, reboard everyone and refuel.

Once the aircraft reached Fort Lauderdale, the applicant asked the flight dispatcher and ground personnel to do their utmost to deplane all passengers as quickly as possible and have the fuel truck ready at the gate prior to arrival. Everything was done in 36 minutes, whereas it normally takes at least 45 minutes.

In the present case, the exemption was requested during the flight. The flight left Fort Lauderdale at 22:49 local time and was airborne at 22:59. According to Ms. Mailhot, the exemption was requested between 22:59 and 23:15.

Ms. Mailhot admitted that ADM refused the request for a landing at 02:15 at the Trudeau Airport. Following ADM's refusal, the applicant chose Mirabel as its destination. When the exemption request was refused, the applicant called its operations centre in Dorval to advise that the aircraft would be landing in Mirabel at about 02:15 in order to make arrangements for customs and to have the passengers taken by bus from Mirabel Airport to the Trudeau Airport. The applicant has a contract with Service Air for ground handling at the Mirabel Airport as well as agreements with bus companies to pick up passengers in Mirabel and take them to the Trudeau Airport.

The applicant's destination was therefore changed from the Trudeau Airport to the Mirabel Airport. The flight dispatcher, Ms. Denise Eggleston, called the people at the airport to inform them that the exemption request was refused, and called the captain of the aircraft about the change of destination.

The applicant also made arrangements to change the flight arrival time in the computers so that this new arrival time would appear on the screens at the Trudeau Airport to inform the people waiting for passengers of the change of destination.

Ms. Mailhot then said that the applicant had actually planned to land in Mirabel but that unfortunately, while approaching the Mirabel Airport, the weather conditions had deteriorated and changed fairly rapidly.

The applicant considered the situation to be quite irregular since the Québec airport was not an alternative, nor was the Ottawa Airport. In fact, Ms. Mailhot said that the weather conditions in Québec were also not considered within limits for a landing because they did not meet the minimum requirements for the Jean Lesage Airport to qualify as an alternate or destination airport. When the flight plan was being prepared, the Québec airport did not even meet the minimum standards for an alternate airport.

In Ottawa, the snow that fell during the day caused an Air Canada Jazz aircraft to run off of runway 7 at the Ottawa Airport at about 16:45 in the afternoon. The applicant subsequently issued a directive that no other aircraft travelling to the Trudeau Airport were to be diverted to Ottawa. This appears in exhibit D-5 entitled "System Operations Control Centre Synopsis" filed by the applicant. Information had been obtained that there were a number of problems in Ottawa due to poor weather conditions.

The Trudeau and Mirabel airports were really the only airports that provided good weather conditions for landing at the time the flight plan was prepared.

Ms. Mailhot filed exhibit D-3, the weather record for Mirabel for the night of March 20-21, 2004. Exhibit D-3 shows that at 00:45 local time (05:45 Zulu), Environment Canada issued special reports since the weather was changing rapidly. At 00:45, flight AC927 was travelling to the Mirabel Airport. Up until 00:27, the applicant had a report indicating that the vertical visibility was over 600 feet and the horizontal visibility was one mile in Mirabel. There was therefore no problem with landing.

At 00:45 (or 05:45 Zulu), everything began to change. The vertical visibility went to 700 feet with a runway visibility of three-quarters of a mile. At the time, there was no snow, but fog had set in. The report clearly indicates "F" for fog, three-quarters of a mile in fog.

At 01:15, the report (D-3) again shows a change. At that point, the vertical visibility was 400 feet and the horizontal runway visibility was a half mile in fog. The report (D-3) therefore shows that during that period, the weather conditions were deteriorating rapidly.

In support of her testimony, Ms. Mailhot also filed weather bulletins for Québec, Montréal and Ottawa entitled "METAR BULLETINS FOR YQB, YUL AND YOW" from March 21, 2004, between 04:00 Zulu and 07:00 Zulu, or between 23:00 local time on March 20, 2004 to 02:00 local time on March 21, 2004.

The twelfth METAR shown in exhibit D-4 for the Québec airport indicates that as the aircraft was leaving the runway in Fort Lauderdale at 22:59 local time, or 03:59 Zulu, there was light snowfall with deteriorating weather trends and a ceiling "broken 400 feet".

The aircraft therefore had to drop to an altitude below 400 feet to be able to see the runway. Also, the runway visibility was one mile. According to Ms. Mailhot, given the runway equipment in Québec, a ceiling of 400 feet and visibility of one mile did not permit a safe landing in Québec at the time the flight plan for flight AC927 was prepared, during the departure from the airport in Fort Lauderdale.

However, at that time, weather reports for the Mirabel and Trudeau airports allowed for landings at both these locations.

When the flight was unable to land at the Mirabel Airport, the applicant did not request an exemption to land at the Trudeau Airport. According to Ms. Mailhot, the control tower contacted the pilot-in-command as he was approaching the Mirabel Airport. At that time, the control tower indicated to him that the vertical visibility was 600 feet, and he therefore could not continue his approach in these weather conditions.

Ms. Mailhot said that when the captain decided to land at the Trudeau Airport, he was approaching the Mirabel Airport and, at that point, the weather conditions were deteriorating by the hour. There was a loss of 100 feet of ceiling and one mile of visibility per hour, and in these conditions, the safest decision was to land at the Trudeau Airport. In these circumstances, the safety of the passengers took precedence over the curfew set at the Trudeau Airport to protect from noise or the environment.

At the time the pilot-in-command made the decision to land at the Trudeau Airport, he chose to land right away when the weather conditions permitted rather than make a verbal exemption request to ADM, wait at an altitude of 3 000 feet and circle around the city of Dorval, thus disturbing the whole neighbourhood with noise at that hour. As the purpose of the curfew is to restrict noise, the directive was to land as quickly as possible to create the least possible disturbance.

In short, Ms. Mailhot said that it was quite unusual for the applicant to find the Trudeau Airport unavailable, and for the alternate airport, Mirabel Airport, to be inaccessible for landing because of poor weather conditions that deteriorated rapidly during the approach.

Although it was an unusual situation, Ms. Mailhot said that the pilot-in-command could not declare an emergency as such since an emergency really applied to situations where there was a fire on board or, for example, a problem with the landing gear. Also, because there was little air traffic at that time, the applicant did not need to request landing priority, so the pilot-in-command was justified in landing immediately.

On cross-examination, Ms. Mailhot confirmed that the flight plan that was filed with air traffic control (ATC) for flight AC927 indicated Trudeau Airport with Mirabel as the alternate airport.

The respondent's representative tried to contradict Ms. Mailhot with her letter of September 29, 2004, filed as exhibit M-5, in which she stated that the applicant requested an exemption from ADM in advance because it anticipated a delay on arrival in Fort Lauderdale and an even longer delay upon arrival when returning to Montréal.

Cross-examined about this document, Ms. Mailhot said that she prepared exhibit M-5 solely in light of the documents on file, without verifying it in detail. It was later, when the applicant received the monetary penalty, that she verified in greater detail the events that occurred during the night of March 20-21, 2004.

After these verifications were made, Ms. Eggleston, who was the night shift dispatcher during the night of March 20-21, 2004, confirmed to her that the exemption request was actually sent around 23:00/23:15. According to the verifications made by Ms. Mailhot, the flight plan was therefore changed during the flight to anticipate an arrival at the Mirabel Airport following ADM's refusal of the applicant's exemption request.

Ms. Mailhot concluded her examination by stating that the applicant never saw the ADM directive or received this directive filed as exhibit M-1.

Ms. Denise Eggleston was the second witness heard for the applicant. Ms. Eggleston was the dispatcher for flight AC927 during the night of March 20-21, 2004. Her shift started at 22:20 on March 20, 2004, and when she arrived at work, flight AC927 had left at 22:10. According to the information received from the previous dispatcher, he did not request an exemption from ADM for the destination of the Trudeau Airport and Ms. Eggleston was to make this request.

The previous dispatcher also explained the constraints that took place during the afternoon of March 20, 2004, causing problems with delays for flights AC925 and AC926 due to changing aircraft during the afternoon for the reasons mentioned earlier by the other witnesses.

Ms. Eggleston therefore made the exemption request to land during the curfew period at the Trudeau Airport and this request was denied. At that time, flight AC927 was airborne. Ms. Eggleston then informed her supervisor of the situation and also informed the operations system employees so they could make all the arrangements in anticipation of an arrival at the Mirabel Airport.

Ms. Eggleston personally checked the weather and NOTAMs to make sure this airport was safe for landing and then designated it as the new alternate airport and changed the flight plan. Ms. Eggleston also contacted Captain Lapierre to notify him of this change of destination. Ms. Eggleston explained that the people responsible for operations control in Dorval then took over arrangements for the arrival in Mirabel. In particular, they were to contact bus companies and customs officers to make sure everything was in place for the arrival at the Mirabel Airport.

Ms. Eggleston then confirmed that the aircraft was unable to land at the Mirabel Airport after all because of the poor weather conditions while approaching Mirabel, which did not meet the minimum requirements for a safe landing.

Ms. Eggleston confirmed that she was not told about this fact until the aircraft landed at the Trudeau Airport because the captain did not have time to contact her to inform her of it. According to Ms. Eggleston, the captain had just seven minutes, which is the flying time between Mirabel and Dorval, to reorganize and replan the flight's arrival at the Trudeau Airport. During that brief period, the captain had to follow a number of other flight procedures before contacting the dispatcher to inform her of the change of destination, if possible.

Ms. Eggleston said that the weather conditions were changing rapidly at that point. She explained that the Mirabel Airport was her main concern and that, unfortunately, the weather conditions had deteriorated rapidly in Mirabel. At that time, the weather conditions at the Trudeau Airport were above the minimum requirements and still acceptable, but they too were deteriorating.

On cross-examination, Ms. Eggleston explained that the exemption request cannot be made until the dispatcher has a good idea of the estimated arrival time, and it is not until the aircraft is airborne that the estimated arrival time is actually known. Ms. Eggleston also insisted that it is not until the aircraft has reached an altitude of 10 000 feet that a more accurate estimate of the arrival time can be obtained, since it is at that point that the aircraft reaches its normal cruising speed. Also, according to Ms. Eggleston, each flight dispatcher must avoid making several exemption requests for the same aircraft. If the exemption is requested before the aircraft leaves the ground, a number of other factors may come into play and affect the arrival time. For example, ground taxiing time may be delayed or the aircraft may experience a breakdown. All these factors can provide reasons for additional exemption requests and, to avoid such a situation, flight dispatchers always wait until the aircraft has reached its cruising speed to make the request.

On cross-examination, Ms. Eggleston admitted that at the time flight AC927 left Fort Lauderdale, the applicant was certain that this flight could not land before at least 01:00 on March 21, 2004.

Ms. Eggleston also said that she made her exemption request by telephone and not by fax, at approximately 23:00. No fax followed this exemption request since the request was refused verbally by telephone.

At the time of requesting the exemption, Ms. Eggleston estimated an arrival time of about 02:00 at the Trudeau Airport on March 21, 2004. The reasons provided for the applicant's exemption request were due to all of the delays caused by the equipment failure at the Trudeau Airport in the afternoon and the change of aircraft to be able to conduct the flight.

Ms. Eggleston also confirmed that the flight plan filed for flight AC927 showed Trudeau Airport as the destination, with Mirabel as the alternate airport. This flight plan was filed by another dispatcher before Ms. Eggleston was on duty.

In the present case, since the exemption request was refused, the applicant actually considered the alternate airport provided in the flight plan, namely Mirabel Airport, and in a context where landing in Mirabel, the alternate airport, was not possible, the alternative again became the Trudeau Airport. The decision to use this alternative was made, as mentioned, at about 23:00 local time on March 20, 2004.

On cross-examination, Ms. Eggleston confirmed, with the aid of the Environment Canada weather forecasts for the Mirabel Airport filed as exhibit M-7, that at the time the applicant was planning the flight, Mirabel Airport qualified as an alternate airport. The weather forecasts showed winds of four knots, runway visibility of five miles with light snowfall and a ceiling of 600 feet.

In exhibit D-4, filed by the applicant, weather forecasts for Trudeau Airport appear on the fourth page. At 04:08 Zulu, 23:08 local time, the weather conditions were such that the Trudeau Airport qualified as an alternate airport. That was the applicable weather forecast when Ms. Eggleston changed the flight plan to show Mirabel Airport as the destination.

According to Ms. Eggleston, an amended weather forecast was issued at 04:08 Zulu for winds at 200 degrees at a speed of five knots with a runway visibility of four miles and a ceiling of 800 feet. These forecasts also indicated that temporarily between 04:00 Zulu and 09:00 Zulu, the weather conditions were a visibility of one mile with rain showers and drizzle with a ceiling of 400 feet. These temporary weather conditions were expected between 04:00 and 09:00 Zulu, corresponding to 23:00 and 04:00 local time. These forecasts therefore indicated that at the time the flight plan was changed, shortly after 23:00 on March 20, 2004, and after the exemption request was denied, Trudeau Airport met the minimum requirements as an alternate airport.

The applicant then presented Captain Claude Lapierre, who has been a pilot-in-command with the applicant since 1997. He has been a pilot with Air Canada since January 8, 1979, and has logged over 18 000 flying hours.

Mr. Lapierre was the pilot-in-command for flights AC926 and AC927 on March 20, 2004. He confirmed the testimonies of Mmes. Eggleston and Mailhot to the effect that flight AC926 from the Trudeau Airport to the Fort Lauderdale Airport was delayed because the aircraft that was originally to be used by the applicant was diverted to Burlington. Mr. Lapierre also confirmed that flight AC927 was delayed from its original planned itinerary.

Mr. Lapierre also confirmed that the flight plan that was filed showed the Trudeau Airport as the destination airport and the Mirabel Airport as the alternate airport. After take-off, he soon noted that the curfew period at the Trudeau Airport would not be complied with and an exemption request was therefore made to ADM during the flight.

The flight plan was therefore changed during the flight to show the Mirabel Airport as the destination airport and the Trudeau Airport as the alternate airport.

Mr. Lapierre informed the passengers that the aircraft would be landing in Mirabel instead because of the Trudeau Airport curfew problem.

About 10 minutes before the planned arrival time, or at an altitude of 3 000 feet on final approach, the controller informed Captain Lapierre that the weather conditions did not permit a safe landing in Mirabel and that visibility conditions were below the minimum requirements. In fact, the controller told Captain Lapierre that horizontal visibility on the runway was 600 feet, whereas the minimum horizontal visibility required for a landing in Mirabel was 1 200 feet.

Captain Lapierre therefore aborted his approach to regain altitude and a decision had to be made immediately. Captain Lapierre knew that the Trudeau Airport, which was quite close by, allowed for a safe landing even though the curfew period was in effect.

Mr. Lapierre said that he did not have time to request an exemption because he did not want to run out of fuel. At that point, the situation became urgent because the speed was from 200-250 knots and there was little flying distance between the two airports.

Mr. Lapierre preferred to protect the safety of the 140 passengers on board. In his view, the safety of the passengers took precedence over the soundscape protection criteria. Also, at that point, all the prevailing weather conditions throughout Québec were variable and deteriorating quickly overall.

Captain Lapierre also confirmed that he made sure with Mirabel personnel that all the arrangements were made at the Mirabel Airport to provide passenger service in Mirabel rather than in Dorval. These steps were taken immediately after ADM refused the exemption request.

In fact, Mr. Lapierre verified with the ground coordinator that the personnel and customs officers would be in place and that transportation would be provided between the Mirabel and Trudeau airports. Mr. Lapierre therefore confirmed that all arrangements were made for landing at the Mirabel Airport, but the unfavourable weather conditions on final approach towards Mirabel warranted landing at the Trudeau Airport.

For Captain Lapierre, complying with the curfew is a very important standard and the applicant therefore took all possible steps to land at the Mirabel Airport. Unfortunately, the unfavourable weather conditions created an emergency situation that did not permit this curfew to be complied with.

On cross-examination, Captain Lapierre confirmed that prior to take-off of flight AC927 from Fort Lauderdale, the applicant knew that landing at the Trudeau Airport could not be done before the end of the curfew period. Mr. Lapierre also confirmed that no steps were taken at that time, at 18:35, to request an exemption. However, according to him, it was too soon to consider or make an exemption request because the estimated arrival time was not yet certain.

In fact, before flight AC927 took off, several options were still possible, namely cancel the flight, request an exemption, or that the applicant plan the flight to another destination.

The applicant also filed exhibits D-6 and D-7 through Captain Lapierre. Exhibit D-6 is an excerpt from the applicant's route manual for the Trudeau Airport. This excerpt deals with the directives regarding noise operating restrictions for the Trudeau Airport. Exhibit D-6 incorporates the noise abatement procedures found in chapter 6 of the Canada Air Pilot, and states that the curfew period for the Trudeau Airport is from 01:00 to 07:00 in the morning for all aircraft over 45 000 kilograms (maximum certified take-off weight) that meet the standards in chapter 3 of annex 16, volume 1 of the ICAO or are stage 3 certified according to part 36 of the United States' FARs.

Exhibit D-7 includes an excerpt from the Air Canada Flight Operations Manual which, according to Captain Lapierre, was in force at the time of the incident. This excerpt states that, as part of their training, in order to meet aerodrome criteria or qualifications, pilots-in-command must demonstrate their knowledge of the specific noise abatement and curfew procedures of aerodromes.

ANALYSIS AND CONCLUSION

The evidence shows that the essential facts of the contravention of paragraph 602.105(c) of the CARs are met and that the applicant's Airbus A320 landed at the Trudeau Airport on March 21, 2004, at 01:55, that is, 55 minutes after the beginning of the noise curfew.

As mentioned, the only issue is whether the applicant demonstrated reasonable care or exercised all due diligence within the meaning of section 8.5 of the Act to prevent the contravention. We must therefore ask ourselves whether the applicant exercised all normal and reasonable steps that an air carrier should exercise in the same circumstances to prevent the contravention of the noise restrictions for the Trudeau Airport.

In our view, the due diligence that the applicant could reasonably be expected to exercise must be assessed in light of the variable weather conditions faced on March 20 and 21 and based on the nature of harm to public welfare that the provision of the CARs in question is intended to protect (paragraph 602.105(c)). We have a provision designed to protect the environment, that is, to control noise at night so the residents are not disturbed in the vicinity of the Trudeau Airport. The purpose of the statutory provision in question is therefore not to protect the passengers. However, the actions of the aircraft's pilot-in-command resulting in a contravention of this statutory provision to restrict noise, were intended to protect the safety or welfare of the passengers.

For this reason, the due diligence required of an air carrier in the context of paragraph 602.105(c) of the CARs in these circumstances, should be less stringent than the diligence required under the provisions of the CARs regarding protection and safety of passengers.

In the present case, we accept the evidence that before flight AC927 departed from Fort Lauderdale, the applicant knew that flight AC927 could not possibly land prior to the curfew period stipulated in the Canada Air Pilot.

Minister's Arguments

The respondent's representative alleges that the applicant did not take all possible steps to comply with the Canadian Aviation Regulations and prevent the contravention since the exemption request should have been made prior to take-off.

Specifically, the Minister argues that prior to take-off to Fort Lauderdale, the applicant knew full well that it was not possible to land prior to the curfew period at the Trudeau Airport. In this context, the applicant should have made an exemption request for the Trudeau Airport immediately and would therefore have known of ADM's refusal to grant an exemption to land at the Trudeau Airport prior to take-off. The applicant could then have planned to use Mirabel Airport as its destination airport and an airport other than the Trudeau Airport as the alternate airport. According to the Minister, the Trudeau Airport could never be used as the alternate airport for landing times within the curfew period.

The Minister submits that this procedure could have reduced the risk of a fuel shortage since the applicant would have known of another alternate airport and calculated its fuel requirements accordingly.

To support its contention, the Minister filed this Tribunal's determination in Canada (Minister of Transport) v. Air Canada[4] in which Air Canada was found guilty of having landed at the Trudeau Airport during curfew hours and thus of having contravened paragraph 602.105(c) of the CARs when the airport administration refused an exemption.

Applicant's Arguments

Counsel for the applicant alleges that the applicant took all reasonable steps in the circumstances to prevent the contravention. The applicant has shown that all the internal measures were put in place to ensure that its personnel comply with the curfew periods at the Trudeau Airport. Exhibits D-6 and D-7 show this, as do the testimonies of the three Air Canada representatives. In fact, all the representatives indicated that curfew periods and noise operating restrictions are taken seriously. Noise operating restriction limits are also part of the training of the applicant's pilots. These elements are not in dispute.

The applicant also maintains that it took all necessary steps to land in Mirabel when ADM refused the exemption request, and the Minister does not dispute this fact.

It was only during the final landing phase towards Mirabel that it was impossible to land at that airport and the pilot-in-command had to quickly arrange to land at the Trudeau Airport in order to ensure the safety of the 140 passengers.

The applicant contends that at the time, the weather conditions prevailing at the airport in Québec also did not permit a landing that met the minimum requirements. The weather reports filed as exhibit D-4 support this contention.

The applicant further argued that the pilot-in-command had very little time to make a decision since the flying time between Mirabel and Dorval is only seven minutes. Ms. Mailhot also explained that the directive to pilots-in-command is that, in an emergency, it is preferable to land immediately at the Trudeau Airport during the curfew period rather than circle over that airport waiting for a reply to an exemption request, which is noisier and still disturbs the residents in the vicinity of the airport.

The applicant also alleged that even if it had planned to request an exemption before flight AC927 left the ground, the same change in flight plan would have been considered, that is, the Mirabel Airport for landing and the Trudeau Airport as the alternate airport. The weather conditions did not permit landing at the airport in Québec, as was shown, and the pilot testified that the weather conditions were generally unfavourable and variable for most regions of Québec. Consequently, the pilot-in-command would have therefore found himself in the same situation, with an impossible last-minute landing at the Mirabel Airport.

In addition, according to the applicant, it would be unreasonable to require, before the flight was even underway, that an exemption be requested as soon as it is known that arrival prior to an airport curfew is not possible. There are too many factors that can affect the arrival time before the aircraft has left the ground, and the applicant's practice prevents the need to amend the same exemption request to ADM several times.

The applicant also alleged that three Air Transat aircraft received an exemption because of poor weather conditions and were able to land at the Trudeau Airport, so if Captain Lapierre requested an exemption to land at the Trudeau Airport when he noticed that he could not land at the Mirabel Airport, the exemption would probably have been approved. It was also reasonable for the captain to assume that, in the circumstances, the exemption would be granted.

The applicant argued that this situation differs from the Tribunal's determination in Minister of Transport v. Air Canada, cited at page 19, submitted by the respondent. In that decision, the pilot-in-command, together with the person responsible for Air Canada operations management, made the decision to land at the Trudeau Airport despite the fact that an exemption had been refused, and that was not a case in which Air Canada then attempted to land at another airport when the exemption was refused. In that case, Air Canada disregarded ADM's refusal of the exemption and went ahead and landed at the Trudeau Airport.

ANALYSIS OF THE EVIDENCE

The evidence shows that the applicant took internal action to ensure that its pilots-in-command, including Captain Lapierre, and the flight dispatchers, knew the curfew periods and noise operating restrictions for the Trudeau Airport and that its personnel took these restrictions and curfew periods seriously. All witnesses for the applicant testified as to their knowledge of these measures and the fact that they were taken seriously.

The evidence also shows that the applicant could not consider the airport in Québec as an alternate airport either when its flight plan was filed or when it left the runway in Fort Lauderdale, or when it received ADM's refusal of its exemption request for the Trudeau Airport. This element emerges from the testimony of Ms. Mailhot of Air Canada and from the atmospheric data filed as exhibit D-4. The Minister did not refute this evidence.

The evidence also shows that it was risky to chose Ottawa Airport as the alternate airport since in the afternoon, an Air Canada Jazz aircraft became stuck on runway 7 when it slid on the snow covering the runway at the time. It was therefore reasonable that the applicant adopted an internal directive prohibiting the use of the Ottawa Airport as an alternate airport on March 20. Faced with this evidence, the Minister did not show that the applicant could have chosen the Ottawa Airport as the alternate airport when it filed its flight plan.

As for the Minister's allegation that the applicant should have requested its exemption prior to take-off from Fort Lauderdale in order to prepare a flight plan that did not consider the Trudeau Airport, it should be pointed out that the Minister has adduced no evidence showing another airport that could have been used as the alternate airport during the night of March 20-21, 2004, given the applicant's evidence referred to above concerning the Québec and Ottawa airports.

The evidence shows, however, that when the applicant changed its flight plan when it received ADM's refusal of the exemption request at about 23:00, the Mirabel Airport could be designated as the destination airport because the weather conditions at that time permitted it. This element of proof appears in the testimonies of Mmes. Mailhot and Eggleston of Air Canada and in exhibit M-7. Ms. Eggleston demonstrated that at that time, the weather conditions also allowed that the Trudeau Airport be considered as an alternate airport.

ADM's representatives also filed in evidence that three Air Transat flights were diverted to the Trudeau Airport during the curfew period the night of March 21, 2004, because the weather conditions at the Mirabel and Québec airports did not permit safe landings.

The evidence shows that the applicant took all necessary steps to land at the Mirabel Airport and thus prevent the contravention when ADM refused its exemption request. Both Mmes. Mailhot and Eggleston, as well as Captain Lapierre, confirmed that steps were taken at the Mirabel Airport to accommodate the passengers. The customs officers were rushed there, as was a shuttle bus that operated between the two airports to take the passengers back to the Trudeau Airport. In addition, an arrival for Mirabel was posted on the computer system to inform the people who were waiting for passengers.

It was during the final approach at an altitude of 3 000 feet that the controller in Mirabel informed the pilot-in-command that the weather conditions were unfavourable for a safe landing within limits in Mirabel. The evidence shows that the horizontal visibility was 600 feet on the runway, while the minimal requirement is 1 200 feet. This evidence comes from Captain Lapierre's testimony and the weather report (D-3).

Captain Lapierre also stated that he had just flown over the Trudeau Airport, where the weather conditions were favourable, when the air traffic controller in Mirabel informed him that it was not possible to land at that location.

It was shown that the weather conditions were variable and changing rapidly in the Montréal area as of 00:45 local time on March 21, 2004. In this context, the pilot-in-command had to make a decision quickly.

The evidence also showed that exemptions are granted to permit landings at the Trudeau Airport during curfew hours in unforeseeable circumstances beyond the carrier's control. However, ADM representatives do not agree on the interpretation of unforeseeable circumstances beyond the carrier's control. One thing is certain, poor weather conditions encountered at an airport while an aircraft is in the approach phase are cases that are subject to an exemption to land at the Trudeau Airport, since ADM granted exemptions to Air Transat that same night because of the poor weather conditions prevailing in Mirabel and Québec.

The evidence is also inconsistent as to the time at which the exemption request was transmitted to ADM and the way in which it was transmitted.

Ms. Meloche of ADM alleged that she received the request by fax at about 16:30 during the afternoon of March 20, 2004. However, Ms. Eggleston, dispatcher for flight AC927, argued that she made a verbal request once the aircraft was airborne, at about 23:00 on March 20, 2004. Ms. Meloche did not find the request made by fax nor any reply form. This tends to corroborate Ms. Eggleston's version, who alleged that she only made a verbal request and did not send the form because she received a refusal of the exemption request by telephone. Moreover, Ms. Mailhot stated that because of the closure of the Trudeau Airport until 17:15, the applicant could not assign a replacement aircraft for flight AC926 until 17:32 and she therefore could not have made her exemption request at 16:30, as ADM argued. These explanations are credible and corroborate Ms. Eggleston's version that the exemption request was made during the flight.

The three Air Canada witnesses also explained that according to the company's directive, an exemption request is only sent once all flight data is known, i.e. once the aircraft has reached its cruising altitude, so that the on-board computer can calculate the estimated time of arrival. This factual element also corroborates Ms. Eggleston's version that the exemption request was not sent verbally until about 23:00 on March 20, 2004, once the aircraft was airborne.

It is also more logical and normal from an organizational standpoint, for both the carrier and the airport, that a carrier requests an exemption once the arrival time is known, that is, once the aircraft is airborne, since a number of factors can affect the arrival time prior to take-off, as the applicant's representatives explained. The Minister has not presented any evidence to show that this practice was unusual among carriers or that it was not used in the aeronautical industry.

In addition, during cross-examination, Ms. Meloche admitted that she and the two other dispatchers on duty handle 300-350 exemption requests a year, so it is possible that she made a mistake regarding the time when the exemption request was made on March 20, 2004.

In any event, regardless of what time the exemption request was made, we do not believe it is an important element in the analysis of the due diligence defence in the circumstances of this case, since the applicant has shown that it took operational steps to comply with ADM's exemption refusal and planned to land at the Mirabel Airport on March 21, 2004 once it received the exemption refusal. In addition, the impossibility of landing in Mirabel was directly attributable to the poor weather conditions that arose during the final approach phase.

CONCLUSION

We agree with the applicant's arguments that the defence of due diligence must be assessed in the specific context of those days of March 20-21, 2004, when the weather conditions were generally variable and unfavourable and it was difficult to prepare flight plans well in advance.

In our view, it was reasonable for the applicant to anticipate a flight plan for Mirabel when the exemption was refused, with Trudeau Airport as the alternate airport. The airport in Québec could not be considered as the alternate airport and the applicant encountered problems on a runway at the Ottawa Airport because of the poor weather conditions.

Also, it was not unreasonable to consider Trudeau Airport as the alternate airport in a context in which ADM generally grants exemptions from the curfew period when unforeseeable circumstances arise during the flight. As proof, ADM granted three exemptions to Air Transat to land at the Trudeau Airport during the curfew period on March 21, 2004.

It should be pointed out that the ADM directive (exhibit M-1) listing the cases of exemption is an internal directive unknown to both the applicant and the air carriers at the time of the contravention, and it cannot prevent a carrier from referring to a defence of due diligence for facts that do not fall within the exemption categories set out in paragraph 3.3.1.2 cited earlier. In any event, in our opinion, the unfavourable weather conditions encountered in the final approach phase to Mirabel constituted unforeseeable circumstances beyond the carrier's control pursuant to paragraph 3.3.1.1 of directive 1-203, and therefore qualified for an exemption to land at the Trudeau Airport during the curfew period.

Also, in our opinion, a pilot placed in the same circumstances would be more concerned about the safety of the passengers and would opt to land at the Trudeau Airport in weather conditions that permit it, rather than worry about noise operating restrictions. With weather conditions quickly deteriorating in the Montréal area as well as Mirabel, it would have been unreasonable for the aircraft to circle over the airport so that the pilot could request an exemption, await the reply and risk a deterioration of the variable weather conditions, in addition to making noise by flying closely over Dorval residents. In this particular case, the safety of the passengers took precedence over noise operating restrictions.

The Canada Air Pilot also stipulates that exemptions are possible in cases of unexpected delays. It is reasonable to expect that ADM also considers unfavourable weather conditions to be an unexpected event during the final phase before landing that does not permit landing at the destination airport when these conditions were not anticipated while the flight plan was being prepared.

In addition, to accept the Minister's submissions that the Trudeau Airport could not be used as an alternate airport because it did not meet any of the criteria for exemption from the curfew period at the time the exemption was refused, would deprive the applicant of the defence of due diligence in circumstances where the weather conditions were unfavourable during the approach for a landing.

Neither the Canadian Aviation Regulations nor the Canada Air Pilot prohibits the use of the Trudeau Airport as an alternate airport during the curfew period when unforeseeable circumstances or poor weather conditions are encountered at the destination airport. In our opinion, if the carrier shows that it has exercised all due diligence to avoid landing at an airport during curfew periods, but due to circumstances and weather conditions, there was no choice but to do so for the passengers' safety, then it has exercised due diligence to prevent the contravention and can use that airport as the alternate airport. To assert otherwise would mean that a contravention of paragraph 602.105(c) of the CARs would constitute an absolute liability offence when a landing was made at an airport during the curfew period. It would be unreasonable to deny a carrier the possibility of using the Trudeau Airport as an alternate airport during the curfew period should the other alternate airports situated within a safe radius, depending on the fuel reserve, not qualify as alternate airports because of poor weather conditions that were unforeseen when the flight plan was filed.

As the applicant has submitted, it is our opinion that even if the applicant made its exemption request prior to take-off from the Fort Lauderdale Airport, it would have had no alternative but to land at the Trudeau Airport during curfew hours, since the weather and visibility conditions deteriorated rapidly in Mirabel during the flight's approach phase and the airport in Québec could not be used as an alternate airport.

In short, we cannot accept the respondent's assertion that the defence of due diligence is not admissible because the landing delay at the Trudeau Airport was known in advance, even before flight AC927 was conducted, and the applicant could have prevented the contravention if its exemption request was made prior to take-off, anticipating airports other than Trudeau Airport in its flight plan. The applicant was not required to take all possible steps to prevent the contravention but all normal and reasonable steps that a carrier must take in the circumstances, considering that the restriction was intended to protect the environment, not the safety of the passengers. It was not unreasonable for the applicant to request its exemption only once its aircraft was airborne, since this procedure is more practical from an operational standpoint and the Minister has not shown that such a practice was uncommon, unusual or unreasonable in the industry.

We have a situation where the applicant accepted ADM's refusal and took all reasonable steps to land at the Mirabel Airport and avoid landing at the Trudeau Airport during the curfew period. The immediate reason for the applicant landing at the Trudeau Airport was unforeseeable poor weather conditions encountered in Mirabel during the approach phase which did not permit a safe landing, and not the cumulative delay in flight administration between Montréal and Fort Lauderdale during the day of March 20, 2004. In this context, the applicant could reasonably expect to be granted an exemption to land at the Trudeau Airport during the curfew period, especially due to the poor weather conditions that prevailed in Québec, the airport in Québec did not qualify as an alternate airport at the time the flight plan was changed.

In this context, it is our opinion that the applicant has shown, on the balance of probabilities, that it exercised all due diligence to prevent the contravention and can rely on the defence of due diligence provided in section 8.5 of the Aeronautics Act.

The applicant's notice of assessment of monetary penalty dated March 11, 2005 is therefore rejected and the monetary penalty of $25 000 is cancelled.

March 27, 2006

Ms. Caroline Desbiens
Member
Transportation Appeal Tribunal of Canada


[1] N.J. Strantz, "Beyond R. v. Sault Ste-Marie: The Creation and Expansion of Strict Liability and the "Due Diligence" Defence," Alberta Law Review, vol. XXX, no. 4, 1992 at 1236.

[2] Ibid. at 1242.

[3] Ibid. at 1243.

[4] [2001], review determination, Q-2204-41 (CAT),