Decisions

TATC File No. Q-3269-33
MoT File No. N5504-58730

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Denis Labonté, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, mod. by R.S., c. A-3, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 401.03(1), 605.03(1) and 606.02(8)a)


Review Determination
Jean-Marc Fortier


Decision: January 22, 2007

Citation: Labonté v. Canada (Minister of Transport), 2007 TATCE 4 (review)

[Official English Translation]

Heard at Victoriaville, Quebec, on October 3, 2006

Held: I confirm the decision of the Minister of Transport set out in the notice of assessment of monetary penalty, dated May 12, 2006, with the following changes:

  • offence no. 1:     the amount of the penalty for contravention of section 401.03(1) of the Canadian Aviation Regulations, SOR/96‑433 (CARs), is reduced to $1 500;
  • offence no. 2:     the amount of the penalty for contravention of section 605.03(1) of the CARs remains the same, at $500;
  • offence no. 3:     the amount of the penalty for contravention of section 606.02(8)(a) of the CARs is reduced to $1 500.

The total amount of $3 500 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I.          BACKGROUND

[1]     On May 12, 2006, Denis Labonté, a resident of Victoriaville, Quebec, was served with a notice of assessment from Transport Canada, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2, as amended by R.S., c. A‑3, for contraventions, on November 19, 2005, of sections 401.03(1), 605.03(1) and 606.02(8)(a) of the Canadian Aviation Regulations, SOR/96‑433 (CARs).

[2]     Section 7.7 of the Aeronautics Act reads 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.

[3]     The notice of assessment, dated May 12, 2006, alleges the following:

[translation]

1 – You contravened section 401.03(1) of the CARs;

On or about November 19, 2005, at about 4:45 pm. (EST), in the vicinity of Victoriaville, Quebec, you exercised the privileges of a flight crew permit, licence without being the holder of such a permit or licence while acting as a flight crew member of the Kit Fox III aircraft, registered as C‑FQHK.

Penalty: $2 500

2 – You contravened section 605.03(1) of the CARs;

On or about November 19, 2005, at about 4:45 p.m. (EST), in the vicinity of Victoriaville, Quebec, you operated the Kit Fox III aircraft, registered as C‑FQHK, without having a valid flight authority.

Penalty: $500

3 – You contravened section 606.02(8)(a) of the CARs;

On or about November 19, 2005, at about 4:45 p.m. (EST), in the vicinity of Victoriaville, Quebec, while you were the owner of the Kit Fox III aircraft, registered as C‑FQHK, you operated that aircraft without having subscribed for public liability insurance.

Penalty: $2 500

[4]     The notice of assessment, dated May 12, 2006, states that the total amount of the monetary penalty is to be paid no later than June 14, 2006.

[5]     On June 13, 2006, Mr. Labonté filed a request with the Transportation Appeal Tribunal of Canada for a review of this decision of the Minister of Transport. On October 3, 2006, the Tribunal held the review hearing in Victoriaville, Quebec.

II.        FACTS

[6]     Mr. Labonté, a resident of Victoriaville, Quebec, has been the registered owner of aircraft C-FQHK, serial number 1056, since November 21, 2003, as shown in the aircraft's certificate of registration, filed by the Minister of Transport (exhibit M-1).

[7]     This certificate of registration states that the builder of the aircraft or aircraft kit is Gilles‑Normand Plourde, and that the aircraft in question is a Kit Fox III.

[8]     The Kit Fox III aircraft is an amateur-built aircraft under part V of the CARs. The aircraft must have a valid flight authority, while its pilot must hold a permit or licence to act as a flight crew member of the aircraft and subscribe for public liability insurance, pursuant to parts IV and VI of the CARs.

[9]     On November 19, 2005, Mr. Labonté was at the controls of his aeroplane and took off from his property situated behind his residence in Victoriaville. He conducted one or more flights over some vacant lots and a park forest located in the vicinity of that city.

III.       EVIDENCE ADDUCED BY THE MINISTER OF TRANSPORT

A.        Testimony of Paul Desaulniers

[10]     Paul Desaulniers is a police officer with the Sûreté du Québec. On November 19, 2005, he received a telephone call from a citizen who had seen a small beige aircraft flying at low altitude over his residence.

[11]     According to the information obtained, on November 19, 2005, Mr. Desaulniers went to Mr. Labonté's residence in Victoriaville, where he noted the presence of a beige and red aircraft on a lot behind the residence.

[12]     According to the testimony of Officer Desaulniers, Mr. Labonté informed him that he was the owner of the aircraft, that there had been no problems with it and that everything was fine. Mr. Labonté also confirmed that he had flown over his property to check on his beehives and had been unable to maintain an altitude of 1 000 feet or more because of high winds that day.

[13]     Officer Desaulniers confirmed in his testimony that he had not seen Mr. Labonté's aircraft make the flight on November 19, 2005, or land on his property that day. He did state, however, that he had noted the registration marks of aircraft C-FQHK when he went to Mr. Labonté's residence.

[14]     Officer Desaulniers further testified that he had contacted the Victoriaville airport and it had been confirmed to him that no aircraft had taken off or landed at that airport on November 19, 2005, owing to the weather conditions.

B.        Testimonies of Stéphane Houle and Julie Dufresne

[15]     Stéphane Houle testified that on November 19, 2005, he was at home and saw an aircraft fly very low and close to his residence. The aircraft was going up and down.

[16]     Mr. Houle confirmed that the aircraft was small, red and beige in colour, and flew at an altitude that he estimated to be about 200 feet.

[17]     Julie Dufresne testified to the same effect. She said that on November 19, 2005, while she was at home, she saw the aircraft fly over her property once in the morning and twice during the afternoon. She recognized the aeroplane as a red and beige aircraft. When it flew over her property at low altitude between 4:00 and 4:30 p.m., she was frightened and decided to call the Sûreté du Québec, which prompted Officer Desaulniers' intervention.

C.        Testimony of Yves Thibodeau

[18]     Yves Thibodeau has been an inspector with Transport Canada since February 1999. He has also been an aircraft maintenance engineer since 1986.

[19]     Mr. Thibodeau's testimony provides a chronology of the events regarding Mr. Labonté's operation of aircraft C-FQHK since November 21, 2003, the date on which Mr. Labonté registered ownership of his aircraft with Transport Canada.

[20]     Following an inspection of Mr. Labonté's aircraft on October 28, 2003, Transport Canada decided to suspend, on December 11, 2003, the flight permit in respect of the aircraft because of numerous defects, as shown in the inspection record (defect) attached to the notice of assessment and filed at the hearing as exhibit M-3.

[21]     On November 6, 2003, Transport Canada informed Mr. Labonté of the temporary detention of aircraft C-FQHK pursuant to section 8.7(1)(d) of the Aeronautics Act since the Minister of Transport had reasons to believe that the aircraft or its operation posed a risk to safety (exhibit M‑6).

[22]     This letter from the Minister of Transport states that the aircraft will be returned to Mr. Labonté if he formally undertakes to meet the requirements of one of the following two options:

(i)    The first option requires that the aircraft be airworthy and have a flight authority or airworthiness certificate in accordance with CARs standards. The aircraft must also be registered in accordance with the CARs and insured according to the appropriate standard and must not be operated in an unsafe manner. Finally, the pilot‑in‑command must hold a licence and a valid medical certificate for exercising the privileges necessary for the aircraft type and the type of flight undertaken.

(ii)    The second option offered by Transport Canada requires Mr. Labonté to promise not to operate the aircraft.

[23]     Mr. Labonté formally undertook to meet the conditions of the first option stipulated above by signing the Minister's letter dated November 25, 2003.

[24]     On February 2, 2004, Mr. Labonté received from the Minister of Transport a notice of assessment of monetary penalty pursuant to section 7.7 of the Aeronautics Act informing him that on or about August 9, 2003 (that is, about two months before the Transport Canada inspection of October 28, 2003), he had contravened sections 202.06(2), 401.03(1), 571.12, 602.01, 605.92(1) and 606.02(8)(a) of the CARs (exhibit M‑10). The penalties assessed for these offences totalled $5 450.

[25]     Schedule A to the notice of assessment, dated February 2, 2004, issued by Transport Canada (exhibit M‑10) alleges the following:

[translation]

Offence 1

You contravened section 202.06(2) of the Canadian Aviation Regulations;

On or about August 9, 2003, at or about 8:45 p.m. local time, in the vicinity of Drummondville, you operated the Kit Fox III aircraft bearing the marks C-FQHK when the size of the marks did not comply with the regulations.

Penalty: $250

Offence 2

You contravened section 401.03(1) of the Canadian Aviation Regulations;

On or about August 9, 2003, at or about 8:45 p.m local time, in the vicinity of Drummondville, you exercised the privileges of a flight crew permit, licence without being the holder of such a permit or licence while acting as a flight crew member of the Kit Fox III aircraft bearing the marks C‑FQHK.

Penalty: $1 000

Offence 3

You contravened section 571.12 of the Canadian Aviation Regulations;

On or about August 9, 2003, at or about 8:45 p.m local time, in the vicinity of Drummondville, you operated the Kit Fox III aircraft bearing the marks C-FQHK when a major modification had been performed by changing the wheels configuration to the floats configuration without notifying the Minister pursuant to the procedures set out in section 571.12 of the Airworthiness Manual.

Penalty: $100

Offence 4

You contravened section 602.01 of the Canadian Aviation Regulations;

On or about August 9, 2003, at or about 5:36 p.m local time, in the vicinity of Tingwick, when acting as a flight crew member of the Kit Fox III aircraft bearing the marks C‑FQHK, you flew over the municipality and the assembly of persons at the mechanical rodeo in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

Penalty: $1 000

Offence 5

You contravened section 602.01 of the Canadian Aviation Regulations;

On or about August 9, 2003, at or about 8:45 p.m local time, in the vicinity of Drummondville, when acting as a flight crew member of the Kit Fox III aircraft bearing the marks C-FQHK, you flew over the Drummondville speedway several times in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

Penalty: $2 000

Offence 6

You contravened section 605.92(1) of the Canadian Aviation Regulations;

On or about August 9, 2003, at or about 8:45 p.m local time, in the vicinity of Drummondville, when you were the owner of the Kit Fox III aircraft bearing the marks C-FQHK, you did not keep the technical records in respect of the aircraft, notably, the journey log and the technical records for the airframe and engine.

Penalty: $100

Offence 7

You contravened section 606.02(8)(a) of the Canadian Aviation Regulations;

On or about August 9, 2003, at or about 8:45 p.m local time, in the vicinity of Drummondville, when you were the owner of the Kit Fox III aircraft bearing the marks C-FQHK, you operated this aircraft without having subscribed for public liability insurance.

Penalty: $1 000

[26]     Following informal meetings between Mr. Labonté and the Minister of Transport representatives, including Diane Desmarais, in February 2004, the amount of the penalties was reduced to $4 100 and paid by Mr. Labonté, as shown in exhibits M‑11, M‑12 and M‑13 filed by the Minister of Transport.

[27]     However, after the events of November 19, 2005, Transport Canada issued, on December 2, 2005, a new notice of detention of aircraft C-FQHK because the aircraft's certificate of airworthiness, suspended since December 11, 2003 (exhibit M‑3), had not been revalidated since that date (exhibit M-9).

[28]     On December 2, 2005, Ms. Desmarais, of Transport Canada, sent Mr. Labonté, through Mr. Thibodeau, a notice informing him that aircraft C-FQHK was being detained pursuant to section 8.7(1)(d) of the Aeronautics Act (exhibit M‑7) and that this notice of detention would be lifted only on the following conditions:

(i)    the aircraft must be airworthy and have a flight authority or certificate of airworthiness in accordance with CARs standards;

(ii)    proof of insurance must be provided as required by section 606.02 of the CARs;

(iii)   once the conditions were met, Mr. Labonté had to promise, as custodian of the aircraft, that it would be operated only by someone holding a licence and a valid medical certificate for the type.

[29]     On December 2, 2005, Mr. Labonté, in his capacity as custodian of the aircraft subject to this notice of detention, undertook to comply with the conditions stated in the notice of detention by signing it. The notice of detention was also signed by Mr. Thibodeau of Transport Canada (exhibit M-7).

[30]     On March 24, 2006, Mr. Thibodeau of Transport Canada sent Mr. Labonté a letter informing him that he was investigating possible contraventions of sections 401.03(1), 605.03(1) and 606.02(8)(a) of the CARs arising from events that occurred on November 19, 2005, and asked, but did not require, Mr. Labonté to provide him with explanations of these events (exhibit M‑8).

[31]     In his testimony, Mr. Thibodeau confirmed that Mr. Labonté had given the Transport Canada representative no explanation nor submitted any documentation deemed appropriate in respect of the possible contraventions that occurred on November 19, 2005, and referred to in the letter of March 24, 2006 from Transport Canada.

[32]     In the circumstances, the Minister of Transport therefore issued the notice of assessment dated May 12, 2006 to Mr. Labonté for the offences mentioned in schedule A.

D.        Testimony of Denis Labonté

[33]     Denis Labonté acknowledged right away and without hesitation the events that gave rise to the notice of assessment of May 12, 2006 for the three contraventions of the CARs to which it refers.

[34]     Mr. Labonté admitted that he had no permit or licence that authorized him to act as a flight crew member of aircraft C‑FQHK (which is confirmed by the original of a certificate signed by the Secretary of the Minister of Transport (exhibit M‑4)); that on November 19, 2005, at about 4:45 p.m., he did indeed operate aircraft C-FQHK without having a valid flight authority or airworthiness certificate; and finally, that he had no public liability insurance covering aircraft C-FQHK.

[35]     Mr. Labonté further admitted having flown his aircraft for about 300 hours before the first notice of detention dated December 11, 2003 was issued in respect of the aircraft. At the time, he had no pilot licence and had not subscribed for any public liability insurance for the aircraft.

[36]     Mr. Labonté avowed that he had not intended to fly on November 19, 2005, but that he was at the controls of aircraft C-FQHK and was taxiing on the property behind his residence when the aircraft suddenly took off without any doing on his part because of the high winds that prevailed that day.

[37]     Mr. Labonté stated that he conducted just one flight on November 19, 2005, contrary to the testimony of Ms. Dufresne, who stated she had seen Mr. Labonté's aircraft three times that day: once in the morning, and twice in the afternoon.

E.         Testimony of Diane Desmarais

[38]     Diane Desmarais is a regional manager, Aviation Enforcement, with Transport Canada. The purpose of her testimony was to explain to the Tribunal the factors that Transport Canada used to determine the amount of the monetary penalties assessed against Mr. Labonté in the notice dated May 12, 2006.

[39]     During her testimony, Ms. Desmarais went over the procedure followed by Transport Canada to determine the amount of the penalties assessed for offences in accordance with the Aviation Enforcement Procedures Manual.

[40]     Ms. Desmarais produced an extract of chapter 12, entitled "Table of Sanctions", from the manual in question. She explained the procedure followed by Transport Canada in determining the amounts of the sanctions and the recommended minimum and maximum monetary penalties.

[41]     Ms. Desmarais went on to testify about the events related to the first notice of assessment issued to Mr. Labonté on February 2, 2004 for seven contraventions of the CARs. Following discussions and meetings with Mr. Labonté, the amount of these penalties had been reduced to $4 100 and paid by Mr. Labonté (exhibits M-11, M-12 and M-13).

[42]     Ms. Desmarais explained in her testimony that, in the case of the present notice of assessment, dated May 12, 2006, Transport Canada representatives had decided to assess penalties totalling $5 500 for Mr. Labonté's three contraventions of the CARs, as shown in schedule A to the notice. According to Ms. Desmarais, this was a second series of offences that the Minister of Transport was alleging against Mr. Labonté.

IV.       ANALYSIS AND EVALUATION OF THE EVIDENCE

[43]     The Tribunal has been able to assess the testimonies of Messrs. Desaulniers, Houle and Thibodeau, Ms. Dufresne and Ms. Desmarais on behalf of Transport Canada, as well as the testimony of Mr. Labonté, the applicant.

[44]     Based on the testimonies and the documents filed by Transport Canada, the Tribunal finds that, on a balance of probabilities, Transport Canada has shown that Mr. Labonté did indeed contravene sections 401.03(1), 605.03(1) and 606.02(8)(a) of the CARs with respect to aircraft C-FQHK, as stated in the notice of assessment of May 12, 2006.

[45]     Moreover, Mr. Labonté himself readily acknowledged in his testimony the events that gave rise to the notice of assessment of May 12, 2006, for the contravention of the three sections of the CARs in question.

[46]     The Tribunal has taken note of the recommendations in the table of sanctions in chapter 12 of the Aviation Enforcement Procedures Manual, notably with regard to the reduction of sanctions when there are mitigating circumstances and to the recommended provisions when similar offences are subsequently committed.

[47]     The Aviation Enforcement Procedures Manual recommends that in the case of subsequent offences, the sanction be higher than the previous amount, except when the CARs impose a limit on the maximum allowed.

[48]     In determining the appropriate sanction, the Tribunal must take into account factors related to the gravity of the offence, the premeditation of the offence and attitude of the offender, the record of the offender (prior contraventions) and the deterrence aspect of the sanction, in the sense that it should promote the offender's future compliance with the regulations.

[49]     The provisions of section 8.5 of the Aeronautics Act cannot apply to these strict liability offences.

[50]     Section 8.5 of the Aeronautics Act reads as follows:

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.

[51]     Thus, Mr. Labonté cannot invoke the argument, as he did when testifying, that he exercised all due diligence to prevent the flight or flights of November 19, 2005, so as to avoid the alleged violations.

[52]     After more than 300 pilot hours to his credit on this aircraft, Mr. Labonté knew, or should have known, that in taxiing on the ground at a good speed at the controls of his experimental aircraft on a day of high winds, he risked taking off even if he did not intend to, as he claims.

[53]     Moreover, Mr. Labonté could have followed the required flight procedures and landed his aircraft immediately after taking off and thereby avoided the allegations of November 19, 2005 against him.

[54]     The Tribunal thus finds that Mr. Labonté committed the contraventions of the CARs as alleged in the notice of assessment dated May 12, 2006.

[55]     This is the second series of offences that Mr. Labonté has committed, the first having been the subject of a notice of assessment dated February 2, 2004, for which he agreed to pay penalties totalling $4 100 after an agreement was reached with Transport Canada representatives (exhibit M‑11).

[56]     In the notice of assessment dated February 2, 2004, offence 2, namely, exercising the privileges of a permit without being the holder of the permit in question, and offence 7, namely, failing to subscribe for public liability insurance in respect of aircraft C-FQHK, are the same as offences 1 and 3 alleged against Mr. Labonté in the notice of assessment dated May 12, 2006.

[57]     In her testimony, Ms. Desmarais told the Tribunal that, of the seven offences covered by the notice of assessment dated February 2, 2004, offences 1 and 3 had been withdrawn, while offences 2, 4, 5, 6 and 7 had been maintained.

[58]     Offence 2 in the notice of February 2, 2004, resulted in a penalty of $1 000, whereas in the notice of assessment of May 12, 2006, Transport Canada assesses a penalty of $2 500 for offence 1, which is of the same nature.

[59]     In the case of offence 7 in the notice of assessment of February 2, 2004, the assessed penalty was $1 000, whereas for the corresponding offence, offence 3, in the notice of assessment of May 12, 2006, Transport Canada assesses a penalty in the amount of $2 500.

[60]     The Tribunal noted that in the notice of February 2, 2004, two offences alleged against Mr. Labonté (namely, offences 4 and 5) concerned flying over an assembly of persons (mechanical rodeo) and flying over the Drummondville speedway sometimes, in both cases in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

[61]     Transport Canada had deemed these two offences to be the most serious, since a penalty of $1 000 for offence 4 and a penalty of $2 000 for offence 5 had been assessed.

[62]     In the case of the notice of assessment of May 12, 2006, the three offences alleged against Mr. Labonté did not reach the same level of seriousness and the Minister of Transport did not charge Mr. Labonté with having acted in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

[63]     The Tribunal, however, cannot ignore the fact that Mr. Labonté nevertheless acted recklessly and negligently when he operated aircraft C-FQHK unlawfully on November 19, 2005.

[64]     Furthermore, in operating this aircraft on November 19, 2005, he directly breached the promises he himself had made on December 2, 2005, to Transport Canada as custodian of the aircraft (exhibit M-7).

[65]     Thus, in determining the amount of the sanctions to be assessed against Mr. Labonté, the Tribunal must ensure that these sanctions will serve as a deterrent for Mr. Labonté and promote his compliance with Canadian regulations.

[66]     In the circumstances and in view of the foregoing, the Tribunal determines that the penalties assessed against Mr. Labonté shall be as follows:

(i)    for the contravention of section 401.03(1) of the CARs, the penalty shall be reduced from $2 500 to $1 500;

(ii)    for the contravention of section 605.03(1) of the CARs, the penalty shall remain the same, at $500;

(iii)   for the contravention of section 606.02(8)(a) of the CARs, the penalty shall be reduced from $2 500 to $1 500.

V.        DETERMINATION

[67]     The Tribunal upholds the decision of the Minister of Transport to assess against Mr. Labonté the monetary penalties for contravention of sections 401.03(1), 605.03(1) and 606.02(8)(a) of the CARs respecting the operation of aircraft C-FQHK on November 19, 2005, with the following changes:

  • offence 1:      the amount of the penalty is reduced to $1 500,
  • offence 2:      the amount of the penalty remains the same, at $500,
  • offence 3:        the amount of the penalty is reduced to $1 500,

for a total of $3 500.

January 22, 2007

Jean-Marc Fortier
Member