Decisions

TATC File No. Q-3199-41
MoT File No. N5504-55253

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Aviation 2000 Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 703.02


Review Determination
Suzanne Racine


Decision: June 12, 2006

TRANSLATION

The Minister of Transport has not shown on the balance of probabilities all the elements of the alleged offence. The Tribunal dismisses the allegations and the monetary penalty assessed by the Minister of Transport.

A review hearing on the above matter was held on March 29 and 30, 2006 in the hearing room at the town hall in La Tuque, Quebec.

Witnesses were excluded.

OBJECT OF THE REVIEW HEARING

On September 7, 2005, the Minister of Transport, pursuant to section 7.7 of the Aeronautics Act (Act), served Aviation 2000 inc. (Aviation 2000) with a notice of assessment of monetary penalty (notice of assessment) for having allegedly contravened section 703.02 of the Canadian Aviation Regulations (CARs). Appendix A of the notice of assessment states that on or about October 4, 2004, at about 10:30 a.m., local time, in the vicinity of La Tuque, Quebec, Aviation 2000 operated the Cessna 180H aircraft, registered as C-FSGB, in aerial work involving sightseeing operations that did not meet the conditions and specifications in its air operator certificate. The Minister assessed a monetary penalty of $5 000.

LAW

Section 7.7(1) of the Act states as follows:

 7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

 Section 703.02 of the CARs reads as follows:

703.02 No air operator shall operate an aircraft under this Subpart unless the air operator complies with the conditions and operations specifications in an air operator certificate issued to that operator by the Minister pursuant to Section 703.07.

 Section 703.07 of the CARs states as follows:

 Issuance or Amendment of Air Operator Certificate

703.07 (1) Subject to Section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to

 (a)  maintain an adequate organizational structure;

(b)  maintain an operational control system;

(c)   meet training program requirements;

(d)  comply with maintenance requirements;

(e)   meet the Commercial Air Service Standards for the operation; and

                        (f)    conduct the operation safely.

(2)   For the purposes of subsection (1), an applicant shall have

(a) a management organization capable of exercising operational control;

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

(i)       operations manager,

(ii)     chief pilot, and

(iii)  where the applicant does not hold an approved maintenance organization (AMO) certificate, maintenance manager;

(c)   operational support services and equipment that meet the Commercial Air Service Standards;

(d)  aircraft that are properly equipped for and flight crew members who are qualified for the area of operation and the type of operation;

(e)   an operational control system that meets the requirements of Section 703.16;

(f)    a training program that meets the requirements of this Subpart;

(g)  legal custody and control of at least one aircraft of each category of aircraft that is to be operated;

(h) a company operations manual that meets the requirements of Sections 703.104 and 703.105; and

(i)    a maintenance control system approved pursuant to Subpart 6.

 Preliminary Remark

The applicant's representative, Stéphan Charles‑Grenon, acknowledges that the Cessna 180H, registered as C-FSGB, and referred to in the Minister's notice of assessment of September 7, 2005, was not appearing in his client's air operator certificate in 2004. On May 5, 2005, the aircraft was, however, added to the air operator certificate of Aviation 2000.

FACTS

Respondent's Evidence

Counsel for the Minister of Transport, Jean‑Guy Carrier, asked that Alain Charlebois, who has worked for Transport Canada for 14 years, be qualified as an expert witness. Assigned in turn to the air navigation section, the aerodrome certification section and the aviation enforcement section, Mr. Charlebois is responsible for the certification of commercial and business aviation operations. He approved the air operator certificate of Aviation 2000. He has experience as a pilot and pilot‑in‑command, as well as formal training in administration and a bachelor's degree in computer management. Mr. Charles-Grenon had no objection to Mr. Charlebois testifying as an expert.

The witness submitted the air operator certificate of Aviation 2000, approved on May 16, 2003. This certificate authorized Aviation 2000 to operate a commercial air transport service using Cessna 185 and Beaver DHC2 aircraft, both to carry persons or goods (section 703 of the CARs) and to provide the specialized air services listed in part I of the certificate (section 702 of the CARs) (exhibit M-1). Transport Canada subsequently authorized the applicant to operate a Cessna 206 aircraft (exhibit M-2) as of September 3, 2004, and a Cessna 180H aircraft (exhibit M-3), for the same types of services mentioned above, as of May 5, 2005, at the request of Marc Leclerc, the owner of Aviation 2000 (exhibit M-4).

An operator must comply, in the required form and manner, with the standards applicable to the type of services covered by its air operator certificate. As the witness stated, it must, among other things, satisfy the requirements with respect to the training and maintenance program. Unlike the operation of private aircraft, the operator of an aircraft for commercial purposes must hold an air operator certificate according to the regulations. Mr. Charlebois was not aware of the insurance requirements for operation of an aircraft for private purposes.

On cross-examination, the witness provided the following:

  1. He again stated that he examines only the certification applications of commercial aviation operations.
  2. In 2004, Aviation 2000 was indeed authorized to operate the Cessna 185 pursuant to sections 702 and 703 of the CARs.
  3. He did not know that, during the week of October 4, 2004, Transport Canada was conducting an on-site inspection (audit) of the applicant's operations.
  4. A private aircraft can be operated with passengers on board.

Audrey Dupont-Lépine testified next. Early in the morning of October 4, 2004, she purchased a videocassette at the Familiprix in Saint-Georges for the purpose of filming, with a movie camera borrowed from Annabelle Lacombe, her "plane ride" that was to take place that same day at Lac‑à‑Beauce, located in the vicinity of La Tuque, Quebec, the operating base of Aviation 2000. On her arrival at the site, the witness noticed the presence of a motor coach filled with French tourists. Ms. Dupont-Lépine then testified that she met Mr. Leclerc and asked him for a quick flight. She sat in the back of an aircraft, allowing her mother to sit in front next to the pilot. She had agreed to film her flight "as a favour" to Ms. Lacombe, a woman for whom she had previously worked. The flight, which she said lasted only 20 or 30 minutes, was her first ever. She submitted the videocassette and described what she had filmed during her flight on October 4, 2004 (exhibit M-6).

Counsel for the Minister of Transport then screened the videocassette (exhibit M-6), which Ms. Dupont-Lépine acknowledged she was seeing for the first time. The date of October 4, 2004, appears on the left at the bottom of the screen. The pilot, who identified himself to Ms. Dupont‑Lépine as "Franck", told her she was on board a Cessna 180. On take off from Lac‑à‑Beauce on that date, the time shown on the screen is 10:21 a.m. Next, we see that the aircraft flew over the La Tuque area, and then touched down on Lac‑à‑Beauce, its starting point, at 10:34 a.m., on October 4, 2004, as shown by the notation at the bottom of the screen. On leaving the aircraft, Ms. Dupont-Lépine filmed the white aircraft with red stripes, registered as C-FSGB. She said she paid "$50 cash" to the pilot Franck for the flight and asked him for a receipt (exhibit M-5). Ms. Dupont-Lépine told the Tribunal member that she noticed on the receipt she had requested from the pilot Franck that he had written down Cessna 185 as the aircraft flown, rather than Cessna 180, as he had told her verbally, according to the videocassette (exhibit M‑6). After the flight, Ms. Dupont‑Lépine and her mother left the applicant's base to have a meal in a restaurant called "Le Flores," although she submitted a receipt dated October 4, 2004, from a bar restaurant called "Le Parasol" (exhibit M-7).

The following facts emerged from the cross-examination of Ms. Dupont-Lépine:

  1. She went to Aviation 2000 to film a flight at the request of Ms. Lacombe, who is the owner of a competing airline based in Lac‑à‑la‑Tortue.
  2. She knew [translation] "there was a story", which was connected with this request, but she said that she was not interested in knowing more about it.
  3. Ms. Lacombe apparently told Ms. Dupont-Lépine that Aviation 2000 was using a Cessna 180 aircraft for sightseeing operations without authorization to do so.
  4. It was not foreseen that the flight would necessarily be on board a Cessna 180.
  5. The movie camera loaned to Ms. Dupont-Lépine belonged to Ms. Lacombe.
  6. Ms. Dupont‑Lépine met Charles Burroughs, a Transport Canada inspector, in December 2004, that is, two months after her flight.
  7. She did not film the interior of the buildings of Aviation 2000 at Lac‑à‑Beauce.
  8. She did not ask the pilot Franck to correct the error on the receipt as to the type of aircraft used for the flight.
  9. She asked the pilot for the receipt, because the owner was not there.
  10. She admitted that she was seeing Mr. Leclerc, seated in the hearing room next to Mr. Charles-Grenon, for the first time.
  11. Ms. Lacombe had given her $120 to pay for the flight, the meal and the purchase of the videocassette.

On re-examination, Ms. Dupont‑Lépine stated that she had not asked for any particular type of aircraft for her flight on October 4, 2004. The pilot had taken her and her mother in a Cessna 180. The witness had worked for Ms. Lacombe over the summer of 2004, but was not working for her in October 2004.

Mr. Carrier called Ms. Lacombe, the owner of Aviation Mauricie, which is based at Lac‑à‑la‑Tortue, in Mauricie. The witness said she knew that, contrary to its air operator certificate, Aviation 2000 was operating a Cessna 180H to conduct sightseeing operations. Ms. Lacombe therefore decided to send someone anonymously on an all‑expenses‑paid sightseeing flight with Aviation 2000. This person would film the flight with a movie camera that she would lend her for the occasion, and would request a receipt and bring it back to her. According to Ms. Lacombe, Ms. Dupont‑Lépine was just the person for the task, first, because she did not know Mr. Leclerc, the owner of Aviation 2000, nor did he know her, and second, because she had often expressed a desire to fly. Ms. Lacombe said she asked Ms. Dupont-Lépine to go to Aviation 2000 on October 4, 2004, to take a sightseeing flight. She also asked her to check whether there were any tourists motor coaches there, to try to talk to the guides, and not to insist on any aircraft in particular. The witness also asked Ms. Dupont‑Lépine to bring the videocassette of her flight back to her.

On cross-examination, Ms. Lacombe related the following:

  1. When she loaned her movie camera to Ms. Dupont‑Lépine the morning of October 4, 2004, she explained to her how to record using the cassette and the memory chip.
  2. She and Ms. Dupont‑Lépine viewed together the content of the videocassette concerning the flight.
  3. She had not altered the cassette or the extracts appearing on the memory chip, or changed the date or time appearing at the bottom of the screen on the videocassette.
  4. She had kept the videocassette in the company's safe. Ten days later, she turned it over to Inspector Burroughs of Transport Canada.
  5. She filed a complaint with Patrick Carrière of Transport Canada.
  6. She opposed a business project of Mr. Leclerc and his partner, Alain Priem, in Saint‑Étienne‑des‑Grès.
  7. She denied having telephoned people to dissuade them from doing business with Aviation 2000, whether the people in question were managers for the Corporation du Parc de l'Île‑Saint‑Quentin or [translation] "people of Lac Blanc".

Inspector Burroughs, an inspector with Transport Canada, testified that he was informed of Ms. Lacombe's complaint on about October 12 or 13, 2004. He said that on checking the Transport Canada database, he found that as of October 2004, the aircraft authorized by the air operator certificate of Aviation 2000 were the Cessna 206 and 185 and the DHC2. The Cessna 180H was not authorized. The witness met with Ms. Lacombe of Aviation Mauricie on October 14, 2004. He viewed the content of the videocassette and a few extracts from the film recorded on the memory chip. To obtain a copy of the videocassette purchased and used by Ms. Dupont-Lépine, he had to go to a specialized laboratory of Sûreté du Québec. The copy (exhibit M-6) was then placed in safekeeping at the offices of Transport Canada. Mr. Charles‑Grenon agreed that this video could not have been altered after coming into Transport Canada's possession. Inspector Burroughs also took from Ms. Lacombe the receipt that Aviation 2000 had issued and given to Ms. Dupont-Lépine on October 4, 2004 (exhibit M‑5). The witness also visited, on October 14, 2004, the base of Aviation 2000 at Lac‑à‑Beauce; there were no operations that day.

On December 14, 2004, Inspector Burroughs met with François Robichaud, the operations manager of Parc de l'Île‑Saint‑Quentin, at the location where, according to Ms. Lacombe, Aviation 2000 had committed a number of irregularities. He also questioned someone named Duclos, who told him he did not know of any sightseeing operations at Aviation 2000 on the Cessna 180H. The next day, on December 15, 2004, he took Ms. Dupont-Lépine's statement about the events of October 4, 2004.

A meeting with Mr. Leclerc of Aviation 2000 took place in May 2005. Mr. Leclerc told Inspector Burroughs that he was the owner of the Cessna 180H, registered as C‑FSGB, and that he operated it for private purposes. It was actually not until January 2005, according to exhibits M‑3 and M‑4, that the applicant applied for an air operator certificate for the Cessna 180H. Inspector Burroughs pointed out that Mr. Leclerc allowed some pilots, whom he trusted, to use his aircraft to increase their pilot hours to become "insurable". Franck Enjalric sometimes took people along on these flights. Mr. Leclerc suggested to Inspector Burroughs that he speaks with Mr. Enjalric. According to Inspector Burroughs, there is no information in his notes that he consulted any document provided by Mr. Leclerc. The witness then said he had tried in vain to contact Mr. Priem.

Finally, Inspector Burroughs stressed that he does not usually handle this type of case. He said that he is an aircraft maintenance engineer certified for several aircraft types. In this capacity, he is generally called on to give his opinion on the analysis and evaluation of compliance with the criteria leading to type certification, rather than to investigate complaints stemming from operation of an aircraft not in compliance with the conditions of its air operator certificate. It was his opinion that Transport Canada had assigned him this investigation because the matter called for tact and diplomacy.

The cross-examination revealed the following facts:

  1. Ms. Lacombe operates an airline and conducts aviation activities similar to those of the applicant.
  2. The witness did not pursue his investigation of the alleged flight irregularities committed by the applicant at Parc de l'Île‑Saint‑Quentin, because he had no proof of such activities.
  3. Inspector Burroughs recorded at page 16 of his notes that Pascal Duclos, a former Aviation 2000 pilot now working for Air Hélibec inc., in La Tuque, did not know of any sightseeing operations involving the applicant's Cessna 180H.
  4. There was never any question of Mr. Leclerc asking some pilots, including Mr. Enjalric, for a monetary contribution in exchange for permission to use the Cessna 180H to [translation] "build up their hours."
  5. The witness stated that Mr. Leclerc had told him on seeing him [translation] "It's a frame‑up!" and possibly [translation] "Was it Ms. Lacombe who sent you?"

Philippe Potvin, a pilot with Aviation Mauricie, said he was [translation] "comfortable with computers". He testified that his employer, Ms. Lacombe, had asked him to record onto a compact disk all the files in the company's computer pertaining to the events filmed by Ms. Dupont-Lépine. He did not view these files.

On cross-examination, Mr. Potvin said it is possible to change the date shown on digital videos extracted from files. He recorded several files, [translation] "the whole record."  He did not know who had transferred these files onto the computer.

Applicant's Evidence

Mr. Charles-Grenon called Yvan Noël Guindon, the general manager of Parc de l'Île‑Saint‑Quentin in Trois‑Rivières, to testify. Mr. Guindon knew Mr. Leclerc, but had met more often with his partner, Mr. Priem, in the fall of 2003 or 2004, in the context of a project to offer sightseeing by float plane in Parc de l'Île‑Saint-Quentin.

The witness also knew Ms. Lacombe. She had expressed to him her dissatisfaction about the project. According to the witness, Ms. Lacombe did not at all appreciate that a competitor [translation] "who operates aircraft without insurance" was proposing such a project. She therefore decided to submit the application of her own airline for this project. Mr. Guindon told her that Messrs. Priem and Leclerc would have priority if the town council approved such a venture. After consideration, the town council decided not to go ahead with the project. The witness said he has had no further business relations with Mr. Leclerc since that day.

The cross-examination by counsel for the Minister of Transport revealed the following:

  1. 1.      Mr. Guindon spoke several times with Ms. Lacombe.
  2. 2.      The witness took no notes of these conversations.
  3. 3.      Mr. Guindon contacted Mr. Leclerc in January 2005, to inform him that the town council had decided in the end not to go ahead with the project.
  4. 4.      Mr. Leclerc contacted Mr. Guindon early in 2006 to tell him he would be receiving a summons to appear to testify in March 2006, before the Transportation Appeal Tribunal of Canada in a matter involving his company. He simply asked him to tell the truth.

Mr. Charles-Grenon called Inspector Burroughs to testify. The latter explained that, in addition to viewing the videocassette on October 14, 2004, he also viewed, at Ms. Lacombe's suggestion, four digital video files stored on a compact disk, to wit files 39, 40, 41 and 42. The compact disk contained a total of 42 video files. The witness briefly viewed the others. Mr. Charles-Grenon had him view files 25 to 29. Inspector Burroughs confirmed that the files did indeed show Lac‑à‑Beauce, the base of Aviation 2000, a Fleur de Lys motor coach on the premises, tourists, extracts apparently filmed by Ms. Dupont-Lépine. He acknowledged having forgotten to include these files in the investigation file for disclosure to the applicant. He also acknowledged not having checked with Ms. Lacombe whether the video from the cassette and the one from the memory chip were both recorded using the same camera. On viewing them before the Tribunal member, he noticed that the video from the memory chip showed no date at the bottom of the screen, whereas the date of October 4, 2004 and the time could be seen on the one from the cassette.

Inspector Burroughs was not cross-examined.

Mr. Leclerc, the owner of Aviation 2000, testified. He is simultaneously the chief pilot, the operations manager, the maintenance supervisor and the dispatcher. He has flown for 34 years and has 15 000 pilot hours. He said he had always had good relations with Transport Canada. This was the first time he had been in any trouble with them. He said he got up early the morning of October 4, 2004, to begin work. At 8 a.m., he was waiting for Transport Canada inspectors who were to spend the week at Lac‑à‑Beauce doing a regulatory audit of his company. He filed an extract of the report of the Transport Canada audit (exhibit R‑1) done on the Cessna 185 (C‑FDFF), the Cessna 206 (C-FJST) and the DH-2 (C-GAZJ) aircraft. The Cessna 180H (C-FSGB) was his personal aircraft that he used to go hunting. He also loaned it to Mr. Enjalric to build up hours. The witness said he had not hired Mr. Enjalric. However, because the latter was a good worker, he gave him free lodging at the base and let him fly the Cessna 185 and the Cessna 180H to build up hours, in exchange for which Mr. Enjalric helped the witness with his company. Mr. Enjalric wanted above all else to build up hours: [translation] "It became a real sickness!" the witness said.

On Sunday, October 3, 2004, Mr. Leclerc asked Mr. Enjalric to take the Cessna 180H to Thommy Garvin to have it washed and waxed before he used it to go hunting. A photocopy of an extract from the journey log book of the C-FSGB (exhibit R‑2) shows that, on October 3, 2004, Messrs. Enjalric and Mertens made a local flight lasting a total of 1 hour and 25 minutes. There is no sign of an entry in the aircraft journey log book for October 4, 2004. In fact, no flights were made on the Cessna 180H from October 3 to 8, 2004. The aircraft was used on October 8, 2004, for a flight to Arc Ange, then to Lac‑à‑la‑Tortue for maintenance work at Bel Air Laurentien Aviation Inc. (page 2 of exhibit R‑2).

A photocopy of an extract from Mr. Enjalric's log book, filed by the witness (exhibit R‑3), also shows that he used the Cessna 180H on October 3, 2004. He did not fly again that aircraft until the following October 8th for a flight from Lac‑à‑Beauce to Arc Ange, then on to Lac‑à‑la‑Tortue. Mr. Leclerc wondered how Mr. Enjalric could have used the Cessna 180H on October 4, 2004, when the aircraft was not even at the base, especially since, knowing he would be busy with the Transport Canada inspectors on October 4, 2004, he had asked Mr. Enjalric that day to help him take calls and do various tasks.

Mr. Leclerc was also surprised at the receipt filed in evidence (exhibit M-5). According to the witness, this receipt, dated October 4, 2004, was not prepared for Ms. Dupont-Lépine and her mother, but rather for two passengers on board the Cessna 185 used by Mr. Lavallée for a sightseeing flight. [translation] "My planes don't take off for $100", the witness said. The photocopy of the extract from the journey log book of the Cessna 185 (C-FDFF) (exhibit R-4) shows that Mr. Lavallée, who is certified for the Cessna 185, made a number of flights during the day of October 4, 2004.

Mr. Leclerc was also surprised that Mr. Enjalric asked for money from passengers he had decided to take with him on the Cessna 180H. He and Mr. Enjalric had a clear understanding that he could not charge for flights made on this aircraft with passengers. In his view, Ms. Dupont‑Lépine's flight on the Cessna 180H on October 4, 2004, never took place. The witness also filed a blank receipt from the bar-restaurant Le Parasol (exhibit R‑5) which he said he obtained quite easily; he was even offered more. He also stressed that Inspector Burroughs had not asked to see any documents in support of his claims.

Together with his partner and friend, Mr. Priem, the applicant had added a Cessna 206 VIP to his fleet, enabling Aviation 2000 to attract an enviable European clientele. Aviation 2000 is the official carrier for Auberge Sacacomie and Auberge du Lac Taureau. Unfortunately, Ms. Lacombe and her husband were, in his view, waging a campaign to malign his company by telling falsehoods and systematically trying to obstruct all their plans.

The cross-examination of Mr. Leclerc revealed the following:

  1. 1.   On October 4, 2004, the Cessna 180H was with Mr. Garvin who lives in Lac‑à‑Beauce.
  2. 2.   Mr. Leclerc has the original journey log book of the Cessna 180H (C‑FSGB) and the original of Mr. Enjalric's log book.
  3. 3.   The dates of the last three entries on the first page of exhibit M-4 have been corrected by changing the "3" to a "4". This is an error. To be convinced of this, one need merely check the sequence of flying hours entered for October 3 and 4, 2004, in the aircraft journey log book. The last flight on October 3 was at about 2 p.m. and the first on October 4 shows a flight at about 10:30 a.m. The entries made in the log make sense and follow in sequence.
  4. 4.   Transport Canada is needlessly attempting to cast doubt on the entries appearing in the extracts from the log books filed in evidence.
  5. 5.   According to Mr. Leclerc, in 2004, it cost about $225 an hour to operate the Cessna 180H and $450 an hour for the Cessna 185.
  6. 6.   Mr. Leclerc issues only one invoice for tourist groups.
  7. 7.   According to Mr. Leclerc, the two passengers in question in exhibit M-5 undoubtedly joined other passengers who were likely with a tourist group.
  8. 8.   Mr. Leclerc spent the week of October 4 to 8, 2004, providing documents to the Transport Canada inspectors and overseeing the flights.
  9. 9.   Mr. Enjalric could not use the Cessna 180H if the weather conditions were unfavourable. He did not pay for the fuel when he used this aircraft.
  10. 10. The passenger, Ms. Dupont-Lépine, likely made a flight before October 4, 2004.

Mr. Enjalric said that Mr. Leclerc loaned him his Cessna 180H for free in exchange for his doing various jobs for him, such as greeting clients, answering the telephone, making up invoices or refuelling aircraft. The witness pointed out that he did not use the Cessna 180H on October 4, 2004, because Mr. Leclerc had asked him to take it to Mr. Garvin the previous day, that is, October 3, 2004 (second entry in exhibit R-3). Mr. Enjalric said he recorded all his flights in his log book. He was surprised to see the date of October 4, 2004, at the bottom of the screen when viewing the cassette (exhibit M-6). While he was preparing for a training flight on the Cessna 180H, [translation] "these people arrived, they seemed interested... I simply offered to take them for a ride". On October 4, 2004, he was at the base to help out while Mr. Leclerc was with the Transport Canada inspectors. He recognized his signature on exhibit M‑5, but maintained that this invoice had not been issued to Ms. Dupont-Lépine, much less for a flight on the Cessna 180H. Mr. Enjalric stated categorically that he received no money from Ms. Dupont‑Lépine, nor did he issue her a receipt for her flight. Mr. Leclerc had clearly informed him he was not to take payment from passengers he took on board the Cessna 180H. Mr. Enjalric said he mentioned all these facts to Inspector Burroughs during his investigation.

The cross-examination brought the following facts to light:

  1. 1.   In May 2004, Mr. Enjalric began his training on the Cessna 180H at Aviation 2000. He has accumulated 115 pilot hours on that aircraft.
  2. 2.   Aviation 2000 began paying him in May 2005.
  3. 3.   He makes his entries in the log book after every flight.
  4. 4.   He always had his log book "1" with him, covering the period from May 16, 1999 to August 24, 2005. In December 2005, he left it in a box at Aviation 2000. He picked it up again soon before his appearance.
  5. 5.   Mr. Garvin was accustomed to washing Mr. Leclerc's Cessna 180H.
  6. 6.   He learned in the spring of 2005 from Mr. Leclerc that Transport Canada was investigating a flight he had made on October 4, 2004.
  7. 7.   Inspector Burroughs of Transport Canada contacted him in May 2005.
  8. 8.   He forgot to tell him that the Cessna 180H was with Mr. Garvin.
  9. 9.   He remembered having made a short flight with Ms. Dupont-Lépine, but could not recall the date.
  10. 10. He viewed the cassette shortly before his appearance.

Mr. Charles-Grenon questioned Mr. Garvin, a friend of Mr. Leclerc. He confirmed that an Aviation 2000 pilot had brought him Mr. Leclerc's Cessna 180H on about October 3, 2004, to be washed before hunting season began.

In cross-examination, Mr. Garvin stated as follows:

  1. 1.   He has known Mr. Leclerc for seven or eight years.
  2. 2.   Mr. Leclerc asked him to wash his plane. He did this two or three times a year, for free. In exchange for his services, Mr. Leclerc occasionally took him on a fishing trip.
  3. 3.   Mr. Leclerc's aircraft has two bucket seats in front and two bucket seats in back. He is able to differentiate between the Cessna 180 and the 185 because [translation] "it's written in the front".
  4. 4.   He lives 1.5 kilometres from the operating base of Aviation 2000. He is not a pilot.
  5. 5.   He sees often Mr. Leclerc's aircraft.

Mr. Priem testified for the applicant. He went into partnership with Mr. Leclerc and purchased a Cessna 206 VIP to meet the needs of European tourists. Mr. Priem said he had heard about Ms. Lacombe while busy contacting Mr. Guindon about the Île‑Saint‑Quentin project. Mr. Guindon told him he was concerned about the reputation of Aviation 2000 because of conversations he had had with Ms. Lacombe in which she had said that Aviation 2000 [translation] "was not in compliance and was making illegal flights". The witness also pointed out that their Lac Blanc and Lac à l'Éclair clients had suddenly become suspicious of Aviation 2000 and repeatedly asked to see the company's air operator certificate and insurance documents. On consulting an Internet forum on floatplane flights in Canada, he read messages "signed Anabelle" warning readers that the Air Mauricie (now called Aviation 2000) aircraft were in poor condition and that the company had once lost its licence, in his view creating unfounded doubts about this company.

RESPONDENT'S SUBMISSIONS

Counsel for the Minister of Transport argued that he has shown on the balance of probabilities all the facts alleged in appendix A of the notice of assessment based on the following premises:

–        Ms. Dupont-Lépine's testimony speaks for itself. Ms. Dupont-Lépine confirmed the date of the flight as being October 4, 2004, and filmed the aircraft registered as C-FSGB, in which she was seated that day on leaving the Aviation 2000 base for a sightseeing flight. She also filmed at the controls of that aircraft the pilot Franck, who told her she was on board a Cessna 180. Franck acknowledged having made out the receipt (exhibit M-5) and his signature. The date of October 4, 2004 appears at the bottom of the screen when exhibit M‑6 is viewed. Ms. Dupont-Lépine's testimony is credible and reliable, since she has no interest to further. The applicant has not succeeded in undermining the credibility of the witness.

–        The applicant's evidence to the effect that the Cessna 180H, registered as C-FSGB, was with Mr. Garvin on October 4, 2004, is an "alibi defence". The applicant did not submit this information to the Minister of Transport far enough in advance to allow it to make the necessary verifications. The Tribunal member ought therefore to consider this fact in determining its probative value.

–    The photocopies of the extracts from the log books filed by the applicant are not reliable. Some of the entries for flights between October 4 and 8, 2004 have been changed or crossed out.

APPLICANT'S SUBMISSIONS

–    On October 4, 2004, Aviation 2000 could not have operated the Cessna 180H, registered as C-FSGB, as alleged in appendix A of the notice of assessment. The aircraft was not at the base that day. Three witnesses have confirmed this fact: Messrs. Leclerc, Enjalric and Garvin.

–    The entries made in the log books of the Cessna 180H and of Mr. Enjalric show that it was not flown on October 4, 2004.

–    The applicant had no obligation to inform the Minister of Transport of its defence. The Transport Canada investigators simply did not pursue their investigation far enough.

–    Ms. Dupont-Lépine and Ms. Lacombe were in collusion to obtain proof that Aviation 2000 had used the Cessna 180H, registered as C-FSGB, on October 4, 2004, for sightseeing operations. They had an interest to further in this case: Ms. Dupont-Lépine took a sightseeing flight at Ms. Lacombe's expense. Ms. Lacombe obtained a video and a receipt from Aviation 2000 to support her allegations and allow the Minister of Transport to proceed against Aviation 2000.

–    The testimonies of Ms. Dupont-Lépine and Ms. Lacombe conflict on a number of points. Ms. Dupont-Lépine's testimony does not agree in every respect with the documentary evidence adduced by the Minister of Transport.

DISCUSSION

To discharge its burden of proof, the Minister of Transport must show on the balance of probabilities each and every one of the following facts alleged in appendix A to the notice of assessment, to wit:

  • the time, October 4, 2004, at about 10:30 a.m.;
  • the place, in the vicinity of La Tuque, Quebec;
  • the operation by Aviation 2000 of a Cessna 180H, registered as C-FSGB;
  • the existence of aerial work involving sightseeing operations (for remuneration); and
  • the non-compliance of this aerial work with the applicant's air operator certificate.

The evidence of the Minister of Transport is based essentially on the testimonies of Ms. Dupont‑Lépine and Ms. Lacombe, on the video filmed by Ms. Dupont-Lépine (exhibit M‑6), as well as on the receipt issued by Aviation 2000 (exhibit M-5) and a restaurant receipt (exhibit M-7), both dated October 4, 2004. On viewing the videocassette, we plainly see Ms. Dupont-Lépine and her mother at the Aviation 2000 base at Lac‑à‑Beauce, boarding an aircraft on floats, Ms. Dupont-Lépine's mother taking her place in front with the pilot and Ms. Dupont-Lépine in the back, behind her mother. The aircraft took off, flew over the La Tuque area and touched back down at Lac‑à‑Beauce. While airborne, the pilot identified himself as "Franck" and told the passengers they were on board a Cessna 180. On leaving the aircraft, Ms. Dupont-Lépine filmed its registration letters, C-FSGB. Aviation 2000 did indeed operate the Cessna 180H, registered as C-FSGB, over the La Tuque area. However, the representative of Aviation 2000 disputes, first, that his client operated the said aircraft on October 4, 2004, and second, that it was operated as a sightseeing flight when its air operator certificate did not permit it to do so.

Let us look first at whether the Minister of Transport has discharged its burden of proof as to the date of the alleged offence.

The evidence of the Minister of Transport shows that Ms. Dupont-Lépine went to Aviation 2000 the morning of October 4, 2004, at the request of Ms. Lacombe to take a "plane ride" with all expenses paid by Ms. Lacombe. Ms. Dupont‑Lépine purchased, at Ms. Lacombe's request, on the morning of October 4, 2004, a videocassette to film her flight. Ms. Lacombe loaned her movie camera to Ms. Dupont‑Lépine. As instructed by Ms. Lacombe, Ms. Dupont-Lépine gave her the cassette used to record her experience at Aviation 2000 on October 4, 2004, along with the receipt issued by the applicant for the flight (exhibit M-5) and a restaurant receipt (exhibit M‑7), both dated October 4, 2004. Ms. Lacombe corroborated these facts by candidly admitting having set up this scenario and sending Ms. Dupont-Lépine to the applicant to find out whether there was any basis for her concerns about the applicant's operation of the Cessna 180H. Ms. Lacombe's scenario did not include Ms. Dupont‑Lépine specifically requesting a flight on board the Cessna 180. Counsel for the Minister of Transport also relies on the date of October 4, 2004, and the time shown at the bottom of the screen when viewing the video (exhibit M‑6) and on the date of October 4, 2004 showing on the receipts (exhibits M‑5 and M‑7) to conclude that the event did in fact take place on the date and time in question.

The evidence shows that Ms. Lacombe's movie camera can record data using either a cassette or a memory chip. The date of October 4, 2004 and the time, 10:21 a.m. to 10:34 a.m., did indeed appear at the bottom of the screen when Inspector Burroughs viewed the videocassette. Oddly enough, although the information shown on the cassette and on the memory chip were in fact filmed using the same movie camera, that is, the one belonging to Ms. Lacombe, the date and time did not appear at the bottom of the screen when, at the hearing, Mr. Charles-Grenon viewed the film sequences recorded on the memory chip. Inspector Burroughs made this observation to the Tribunal, because he had not noticed this discrepancy when viewing the film transferred by Ms. Lacombe's employee, Mr. Potvin, from her computer files to a compact disk. When questioned by Mr. Charles-Grenon, Mr. Potvin said it was possible to change the date and time of events filmed on cassette or digital files. The evidence therefore leaves open the possibility that the date and time shown on the cassette could have been changed between October 4 and 14, 2004. On the latter date, Ms. Lacombe turned the cassette over to Inspector Burroughs. The Minister of Transport has obviously not explored this possibility. According to Mr. Potvin, the content of the compact disk consisted of no fewer than 42 files. At Ms. Lacombe's suggestion, Inspector Burroughs viewed mainly files 39, 40, 41 and 42. He briefly viewed the others, but admitted he had not viewed files 25 to 29, also filmed by Ms. Dupont‑Lépine. He disclosed to the applicant's representative only the four files that Ms. Lacombe had specifically suggested he view, that is, files 39 to 42.

Aside from the date and time seen at the bottom of the screen when viewing the videocassette (exhibit M-6), the conversations heard provide no clue as to the date and time of the events, nor do they make any reference or allusion to the payment demanded for the flight.

The receipt (exhibit M-5) clearly bears the date of October 4, 2004, but was issued for a flight on a Cessna 185 with Mr. Lavallée at the controls. If, as counsel for the Minister of Transport claims, Mr. Enjalric erred in entering the name of another aircraft, what would explain his also entering the name of a pilot other than himself when his purpose for being at the Aviation 2000 base was first and foremost to build up pilot hours in exchange for various services? Why, too, would Ms. Dupont-Lépine not have the receipt corrected when she noticed it said "Cessna 185" instead of "Cessna 180"? Why would she take inaccurate proof back to Ms. Lacombe, who had made her well aware of her concerns about the pseudo-commercial activities of the Cessna 180H?

We are unable to verify, based on the results of the investigation of the Minister of Transport, whether the Cessna 180H (C‑FSGB) was in fact flown on October 4, 2004. It seems that Inspector Burroughs was satisfied with the testimonies of Ms. Dupont-Lépine and Ms. Lacombe, with the date of October 4, 2004, showing at the bottom of the video screen (exhibit M-6), and with the receipts (exhibits M‑5 and M‑7). The inspector, who had to refer to his notes a number of times during his examination‑in‑chief, did not more fully document the evidence as to the date of the event. The fact that this inspector does not usually handle this type of case does not excuse him from obtaining, as is done in any investigation, all the proper information to support the allegations of the Minister of Transport on which the burden of proof depends.

Inspector Burroughs said he did not recall whether, at his meeting with Mr. Leclerc, he consulted documents provided by Mr. Leclerc [translation] "because there was nothing in his notes to that effect". Now, it is not up to the person charged by the Minister of Transport with having contravened the regulations to show the inspector the evidence that would justify his actions. Rather, it is up to the inspector to assume the proactive role that automatically falls to him and document the case of the Minister of Transport. This applies to any type of inspection. It is surprising that the inspector did not place on the record documents of interest, such as the journey log book of the Cessna 180H (C-FSGB) and Mr. Enjalric's pilot log book, or even consult them, when it was not just his right but also his duty to do so.

A photocopy of an extract from the journey log book of the Cessna 180H filed by the applicant (exhibit R-2) shows that the aircraft was not flown from 12:45 p.m. on October 3, 2004 to 8:25 a.m. on October 8, 2004, on which date the aircraft was taken to Lac‑à‑la‑Tortue for maintenance work at Bel Air Laurentien Aviation Inc. An examination of the entries shown in the photocopy from the journey log book of the Cessna 180H (C-FSGB) (exhibit R-2) does not lead one to believe there has been any manipulation or falsification. Moreover, these entries are consistent in every way with those for the Cessna 180H (C‑FSGB) in the photocopy from Mr. Enjalric's log book (exhibit R-3).

The photocopy of the extract from the journey log book of the Cessna 185 (exhibit R-4) shows, as does the receipt (exhibit M-5), that the pilot Lavallée conducted a flight on the Cessna 185 on October 4, 2004. In fact, Mr. Lavallée, who is certified for this aircraft, conducted a series of short flights (six) on October 4, 2004, probably for tourists. While counsel for the Minister of Transport has attempted to cast doubt on the last three entries on page 1 (exhibit R‑4), it seems clear to us that a mistake was inadvertently made (i.e., five instead of four) and was corrected so that the entries would be consistent with the chronological order of the entries on page 2, which are intact.

The receipt dated October 4, 2004 from the restaurant Le Parasol in La Tuque (exhibit M-7) is not in itself reliable evidence, since this type of document can often be obtained in the desired quantity and completed as one likes. In fact, Mr. Leclerc tried this and obtained a blank receipt from the same restaurant without any difficulty (exhibit R-5).

In addition to proving the date of the event, the Minister of Transport also had to show that the applicant operated the Cessna 180H (C-FSGB) in aerial work involving sightseeing operations, as stated in appendix A of the notice of assessment. Mr. Charlebois has shown that the applicant's Cessna 180H was not included on the air operator certificate of Aviation 2000 until May 2005 (exhibits M-1, M-2 and M-3), following an application by Mr. Leclerc (exhibits M-8 and M-9). This aircraft could therefore not be used for other than private purposes in 2004, which Mr. Charles‑Grenon has acknowledged since the start of this hearing.

On the one hand, Ms. Dupont-Lépine states that she paid the pilot Franck (Mr. Enjalric) "$50 cash" for the flight and asked him for the receipt which she filed (exhibit M-5). On the other hand, Mr. Enjalric states categorically that he never received any money from Ms. Dupont‑Lépine after the brief flight in the Cessna 180H that he offered to make with her, and never made out a receipt for that flight. He made this assertion twice, with equal force both times. Mr. Enjalric acknowledged having made out the receipt (exhibit M-5), but said it could not have been intended for Ms. Dupont-Lépine because he knew full well that Mr. Leclerc had asked him not to request payment from passengers he sometimes took on board the Cessna 180H, as this aircraft was for private use only. Mr. Leclerc repeated this "caution" about the Cessna 180H in his testimony, stressing that he trusted Mr. Enjalric. According to the latter, the receipt (exhibit M-5) had most certainly been intended for passengers who had probably taken a sightseeing flight on the Cessna 185 with the pilot Lavallée on October 4, 2004.

Mr. Leclerc usually makes up only one invoice per group. He multiplies the cost per person by the number of passengers. He sometimes makes out individual receipts for people who turn up at the base and are not with a group and are paired up with passengers from a group to fill vacant seats, if need be, in the interest of cost effectiveness. This practice, which Mr. Enjalric corroborated, led the latter to believe that the two individuals for whom the receipt (exhibit M‑5) was intended were not Ms. Dupont-Lépine and her mother, but rather two people who joined other passengers, members of a group, on a sightseeing flight in the Cessna 185 on October 4, 2004, with Mr. Lavallée at the controls, especially since, according to Mr. Leclerc, the Cessna 185 never takes off when there are fewer than four (paying) passengers, much less for $100.

Inspector Burroughs' inspection revealed that a former pilot of Aviation 2000, now employed by Air Hélibec inc. located in the La Tuque area, did not know of the "sightseeing activities" of the Cessna 180H.

In order to determine where the truth lies when there is a conflict surrounding major elements of the offence, the Tribunal must carefully review all the evidence adduced at the hearing and decide the value to be accorded to it.

Ms. Dupont‑Lépine is a young 19-year-old mother who, feigning an offhand and familiar attitude towards the Tribunal, was forced, clearly in spite of herself, to testify because of a favour she agreed to do for Ms. Lacombe in exchange for this brief flight. Ms. Dupont-Lépine was able to make precise and complete observations about the events surrounding her first flight. She is the key witness of the Minister of Transport in this case. And yet she did not appear to us to have a good recollection of the events. While plausible, the evidence she gave differs from that given by other witnesses about the same events.

She claimed to be seeing the video she had filmed on October 4, 2004 for the first time on the day of the hearing, whereas Ms. Lacombe said she had viewed it with her the day she brought it to her, that is, on October 4, 2004. She also maintained that she had not filmed the interior of the buildings at the operating base of Aviation 2000, as the batteries of the movie camera were low, whereas she told Inspector Burroughs that she had filmed the interior on arriving at the site. Ms. Dupont-Lépine seemed to us to be thrown off balance and blushed when she realized the inconsistency in her comments. She said she met Mr. Leclerc on October 4, 2004, and asked to be taken on a short flight, then later admitted, on cross-examination, that she was seeing Mr. Leclerc for the first time the day of the hearing. The Tribunal noted, moreover, that she asked the pilot for a receipt precisely because the owner was not there. Finally, she did not recall the name of the restaurant where she ate in La Tuque after her flight. The inconsistencies harboured in her testimony detract greatly from the credibility and reliability of the main aspects.

Obviously Ms. Lacombe, who filed a complaint against Aviation 2000 and also owns an airline that operates in the same region as the applicant, had an interest in the outcome of the case. The testimonies of Messrs. Guindon and Priem also show that Ms. Lacombe had difficulty accepting competition and engaged in practices that are unwarranted in a climate of healthy competition. It is difficult to understand why Ms. Lacombe told Ms. Dupont-Lépine not to ask for "any particular type of aircraft" for her flight when she had sent her precisely for the avowed purpose of finding out if the applicant's Cessna 180H was in fact involved in sightseeing operations.

Mr. Enjalric struck us as a serious-minded individual who has a reserved nature and good judgment. His testimony was honest and consistent; he had nothing to hide. When undergoing lengthy cross-examination, he was composed, patient and unwavering when answering. His answers were spontaneous. He remembered having given Ms. Dupont‑Lépine this free ride in the Cessna 180H, but could not remember the date. In his testimony, Mr. Enjalric said that on October 4, 2004, he was at the Aviation 2000 base. This statement is corroborated by the testimony of Mr. Leclerc, who had asked for his help that day because he was busy attending to the Transport Canada inspectors who were there from Monday, October 4, until Friday, October 8, 2004. Mr. Garvin's testimony corroborates that of Mr. Enjalric, who said he took the Cessna 180H to him on October 3, 2004, to be washed at Mr. Leclerc's request.

Mr. Leclerc, a businessman and experienced pilot, testified with resolve and certainty and with the avowed intention and desire to correct the facts and [translation] "set the record straight". His testimony is corroborated by that of Mr. Enjalric. He remained calm throughout the examination and cross-examination when he commented that this was a [translation] "frame‑up" by a competitor and talked about the various strategies she had used to hinder his expansion plans and malign his operations (exhibit R-6 and testimonies of Messrs. Guindon and Priem). Mr. Leclerc saw Ms. Dupont‑Lépine for the first time the day of the hearing.

The testimonial evidence adduced by the Minister of Transport has not appeared to us to be as consistent and plausible as that adduced by the applicant's witnesses. Ms. Dupont-Lépine contradicted herself on a number of points. Even the testimonies of Ms. Dupont-Lépine and Ms. Lacombe, who acted in concert, were inconsistent. The filing of the receipts (exhibits M-5 and M-7) and the results of the investigation of the Minister of Transport have not tipped the balance of probabilities in its favour. The alibi defence raised by counsel for the Minister of Transport in connection with section 7 of the Canadian Charter of Rights and Freedoms applies in criminal proceedings before common law courts and not to an administrative tribunal such as the Transportation Appeal Tribunal of Canada. The Tribunal believes that the consistent testimonies of Messrs. Leclerc, Enjalric and Garvin, supported by the information that appears in the copies of the extracts from the journey log book of the Cessna 180H and the pilot's log book, better represent what actually occurred.

DETERMINATION

The Minister of Transport has not shown on the balance of probabilities all the elements of the alleged offence. The Tribunal dismisses the allegations and the monetary penalty assessed by the Minister of Transport.

June 12, 2006

Suzanne Racine

Member