TATC File No. Q-3275-41
MoT File No. N5504-59206
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
2431-9154 Québec Inc., Applicant
- and -
Minister of Transport, Respondent
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. 406.03(1)
Flight training unit (FTU) operator certificate
Decision: June 18, 2007
Citation: 2431-9154 Québec Inc. v. Canada (Minister of Transport), 2007 TATCE 15 (review)
[Official English translation]
Heard at Rimouski, Quebec, on April 23, 2007
Held: The Minister's decision to assess a penalty of $5 000 against the applicant, 2431‑9154 Québec Inc., for having contravened section 406.03(1) of the Canadian Aviation Regulations, SOR/96‑433, is upheld. The total amount of $5 000 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.
I. PURPOSE OF THE REVIEW HEARING
 On June 2, 2006, the Minister of Transport, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2, as am. by R.S., c. A‑3, served a notice of assessment of monetary penalty on 2431‑9154 Québec Inc., doing business as Sept‑Îles Aviation Enr., for having contravened section 406.03(1) of the Canadian Aviation Regulations (CARs). According to schedule A of the notice of assessment of monetary penalty, the Minister charged the applicant with having operated a flight training service using the airplane registered as C‑GUQM from December 27, 2005 to February 22, 2006, at or near the Rimouski Airport, while it did not hold a flight training unit (FTU) operator certificate authorizing it to offer such a service at this location. The conditions and operations specifications stipulate that the applicant's main base is Sept-Îles; neither Rimouski nor any other sub-base appear on the certificate. The Minister assessed a penalty of $5 000.
 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.
(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate
(a) the designated provision that the Minister believes has been contravened;
(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and
(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.
 Section 406.03(1) of the CARs reads as follows:
406.03 (1) Subject to subsections (2) and (3), no person shall operate a flight training service in Canada using an aeroplane or helicopter in Canada unless the person holds a flight training unit operator certificate that authorizes the person to operate the service and complies with the conditions and operations specifications set out in the certificate.
A. Respondent's Evidence
 The Minister's representative called Guy Hamel to testify. Mr. Hamel has been a civil aviation safety inspector in the Aviation Enforcement Branch of Transport Canada for over five years. The witness, an airline pilot with more than 25 years of aviation experience, was assigned to investigate the circumstances leading to the notice of assessment of monetary penalty of June 2, 2006.
 During Mr. Hamel's testimony, the Minister's representative filed a detection notice signed by Patrick Curot of Transport Canada on February 17, 2006 (exhibit M‑1). It states that an employee of the airline Aéropro, Jocelyn Primeur, mentioned to him that Christophe Vallantin, a flight instructor employed by the applicant, gave flight training at the Rimouski Airport to two student pilots from the region, on February 13, 14, 15 and 16, 2006. The notice indicates, more specifically, that the operating base of the applicant's FTU is Sept‑Îles and that the applicant had not applied to open a satellite base in Rimouski.
 With regard to the testimony of Mr. Hamel, the Minister's representative then filed the applicant's FTU operator certificate (exhibit M‑2). It indicates that the applicant is authorized to offer training only at its main base in Sept‑Îles (CYZV) since it does not set out under "operations specifications" that it can offer training elsewhere. The Minister's representative also filed the certificate of registration for the BE19 aircraft, registered as C‑GUQM, property of the applicant (exhibit M‑3). With the help of the manager of the Rimouski Airport, Mr. Hamel obtained the names of the two student pilots who received flight training lessons from Mr. Vallantin at this location: Gilles St‑Pierre and Vincent Vadnais. According to the airport manager, the applicant knew that it was not authorized to give flight training to these two student pilots in Rimouski.
 The second witness was Gilles St-Pierre, a chiropractor residing in Rimouski. Wishing to learn to fly, and in the absence of a flying school in Rimouski, Mr. St-Pierre contacted Jacques Levesque at the applicant's place of business and asked him to provide his flight training at the Rimouski Airport. Mr. Levesque allegedly told him that the applicant had an aircraft in a hangar at the Rimouski Airport and that he could satisfy his request.
 With regard to Mr. St-Pierre's testimony, the Minister's representative filed a certified true copy of an excerpt from the log book presented to the member during the hearing (exhibit M-4). It covers the period from January 27 to February 22, 2006. The witness stated that all flights taking place during this period were made using the applicant's BE19 aircraft, registered as C‑GUQM, and that almost all the flights, with the exception of a flight with Mr. Levesque to Halifax on February 20, 2006, were made with Mr. Vallantin. The flight of January 27, 2006, was a familiarization flight: [translation] "I wanted to see if I liked it", pointed out Mr. St‑Pierre. The witness then informed the member that he had to continue his flight training at the applicant's base in Sept-Îles after February 22, 2006, as Transport Canada had prohibited the applicant from offering training from the Rimouski Airport. This prohibition resulted in costs four times higher than expected for Mr. St-Pierre.
 In cross-examination, Mr. St‑Pierre stated that he had asked Mr. Levesque if he could take the training close to home, because he preferred to learn to fly above the flat spreads of the Rimouski area rather than the contrasting mountainous and hilly region of the Sept‑Îles area. Mr. St‑Pierre repeated that there was no flying school in the region.
 The Minister's representative called Vincent Vadnais to testify. Mr. Vadnais owns a Rona hardware store in Amqui, where he lives. The witness, who wanted to take flying lessons, contacted the applicant and used the services of Mr. Vallantin. Mr. Vadnais indicated that the flights entered in the log book for November 12, 2005 to February 22, 2006 (exhibit M-5) took place with Mr. Vallantin in the applicant's aircraft registered as C‑GUQM at or near the Rimouski Airport.
 Patrick Curot, a flight training standards inspector at Transport Canada, then testified. He pointed out that a company is not prohibited from offering flight training outside of its main base, provided that its FTU operator certificate indicates where the flight training service is temporarily being given. With regard to his testimony, the Minister's representative filed the FTU operations certificate of Hélicraft 2000 Inc. as an example to illustrate Mr. Curot's testimony. Indeed, the operations specifications of this certificate stipulate that Hélicraft may temporarily operate a FTU at an additional base or a satellite base, away from its main base in St‑Hubert, in this case the Mascouche and Chicoutimi/St-Honoré Airports.
 When asked to comment on the excerpts from log books (exhibits M‑4 and M‑5) of Messrs. St‑Pierre and Vadnais, Mr. Curot directed our attention to the annotations appearing under the remarks section. They refer to lesson plans and exercises recommended by Transport Canada in the private pilot flight training program (exhibit M-8). In his opinion, it is clear that these flights took place as part of flight training given outside of the main base in Sept‑Îles.
 When questioned by the member, Mr. Curot indicated that a company can obtain authorization to provide training outside its main base quite quickly if it provides the documentation required under the regulations.
B. Applicant's Evidence
 The applicant's representative, Jacques Levesque, a pilot, also testified. He made the applicant's BE19 aircraft, registered as C‑GUQM, available to Messrs. St‑Pierre and Vadnais as a favour to them, as they were [TRANSLATION] "in a hurry to get started". The witness also stated that he had made a verbal request to the superintendent of the Rimouski Airport to set up a satellite base there. He indicated that the flights made by Messrs. St‑Pierre and Vadnais with Mr. Vallantin and recorded in the log books (exhibits M‑4 and M‑5) were flights aimed at familiarizing them with various aspects of private pilot training. The flight training of these pilots candidates took place in Sept‑Îles.
A. Minister's Arguments
 The Minister's representative alleges that he demonstrated, on a balance or probabilities, each and every element of the offence in section 406.03(1) of the CARs. In his opinion, the oral and documentary evidence indicates that the applicant did indeed operate a flight training service between December 27, 2005 and February 22, 2006, at or near the Rimouski Airport, without a FTU certificate authorizing it to give such training at this location, despite the fact that Transport Canada had ordered it to cease these activities on February 17, 2006. The applicant continued to provide flight training until February 22, 2006. The verbal request made by applicant to the superintendent of the Rimouski Airport was not sufficient to authorize the applicant to operate a satellite base at that airport.
B. Applicant's Arguments
 Contrary to the submissions of the Minister's representative, the applicant submits that it did not operate a flight training service, but rather provided familiarization flights to Messrs. St‑Pierre and Vadnais.
 To meet the burden of proof, the Minister's representative must demonstrate, on a balance of probabilities, the following facts:
(1) the use, by the applicant, of the aircraft registered as C-GUQM
(2) during the period from December 27, 2005 to February 22, 2006
(3) at or near the Rimouski Airport
(4) to operate a flight training service
(5) while it was not holding a FTU operator certificate authorizing it to operate this service elsewhere than at its main base (Sept‑Îles), in this case Rimouski, thereby contravening section 406.03(1) of the CARs.
 There is no doubt that the Minister proved the first three elements of the alleged offence. Indeed, the excerpts from the log books of Messrs. St‑Pierre and Vadnais and their testimonies confirm that they, together with Mr. Vallantin, an employee of the applicant, did use the applicant's BE19 registered as C‑GUQM, during the above‑mentioned period, from the Rimouski Airport.
 To satisfy the fourth point, the Minister must prove that the applicant operated a flight training service. Mr. Levesque stated that the applicant had not provided such a service in Rimouski since it had simply provided familiarization flights and, for this reason, could not have contravened the requirements of section 406.03(1) of the CARs.
 The remarks recorded in Mr. St-Pierre's log book (exhibit M‑4) include the annotation [translation] "familiarization" beside a one-hour flight of January 27, 2006. The log book also indicates that on January 28, 2006, Mr. St‑Pierre made a first one-hour flight with the annotation [TRANSLATION] "ex [exercises] 2‑9" and a second flight of one hour and twelve minutes with the annotation "ex 2‑12". On February 14, 2006, the log book shows a one-hour flight with the annotation "ex 2‑13‑14." Then, on February 16, 2006, there is a note: [TRANSLATION] "lesson plan no. 3/4/5" for a one-hour flight. Finally, the word "circuits" is written beside the one-hour flight of February 22, 2006.
 The annotations made in Mr.Vadnais's log book (exhibit M‑5) refer to lesson plans numbered 1 to 4 for each of the flights of one hour made on December 27, 2005 and February 14, 16 and 22, 2006.
 According to Mr. Curot, a flight training standards inspector for the last six years with Transport Canada, the annotations described above are generally recorded as part of a flight training program. The procedure is based on the flight training program for private pilots suggested by the Department in the private pilot flight training program (exhibit M-8). It is not reasonable to believe that Messrs. St‑Pierre and Vadnais, in a hurry to start their flying lessons, spent five hours and twelve minutes and four hours respectively (not including their initial familiarization flight) "evaluating" whether they were going to take private pilot training with the applicant.
 Messrs. St‑Pierre and Vadnais did not elaborate much on these annotations during their examinations and cross-examinations. Mr. St‑Pierre just stated a number of times that the flights in question had been made for familiarization purposes. It is clear that a candidate who wishes to take flying lessons first "gets familiar" with all of the aspects of such training. The familiarization flight is like a first step. Its purpose is to initiate the pilot candidate and potentially encourage him to register in a complete flight training program. Beyond this stage, the candidate must complete the exercises until mastering the execution of the flight manoeuvres in the program. According to the evidence presented, there is no reason to believe that the flights made between December 27, 2005 and February 22, 2006, were made for purposes other than flight training. The annotations referring to the exercises and lesson plans recorded in the log books (exhibits M‑4 and M‑5) indicate that flight training indeed took place. Messrs. St‑Pierre and Vadnais clearly indicated that they had contacted the applicant with the stated objective of taking flying lessons. The Minister has proved, on a balance of probabilities, the fourth element of the offence, namely that the applicant provided a flight training service.
 According to its wording, the applicant's FTU operator certificate (exhibit M‑2) only authorizes the applicant to provide training at its main base in Sept-Îles. The fact that there is no flying school near Rimouski or that Messrs. St‑Pierre and Vadnais were in a hurry to start their private pilot lessons does not authorize the applicant to "short-circuit" the requirements of the CARs concerning the establishment of a satellite base. This argument rather constitutes an additional reason for the applicant to ask that the Rimouski Airport be registered as a satellite base in order to meet the demand in this region. Mr. St‑Pierre surely would have appreciated having his flight training at a better price and close to his home in Rimouski. The applicant, who claimed to have already had a satellite base in Fermont, was aware that it had to obtain consent from the Rimouski Airport and municipal authorities in order to offer its flight training services. The verbal request that it made to the staff of the Rimouski Airport or the conversations that Mr. Levesque had with the mayor of the city did not authorize him to provide this training. It appears that meeting the urgent requests of Messrs. St‑Pierre and Vadnais took precedence over establishing a satellite base in Rimouski.
 The Minister's decision to assess the applicant, 2431‑9154 Québec Inc., a penalty of $5 000 for contravening section 406.03(1) of the CARs is upheld.
June 18, 2007
Howard M. Bruce, John D. Issenman, John Saba
Decision: January 15, 2008
Citation: 2431-9154 Québec Inc. v. Canada (Minister of Transport), 2008 TATCE 4 (appeal)
Heard at Sept-Îles, Quebec, on November 27, 2007
Held: For all of the reasons set out below, the appeal is dismissed and the penalty assessed is confirmed. The total amount of the penalty, $5000, is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this decision.
 This is an appeal from a determination by Suzanne Racine, dated June 18, 2007, following a review hearing held on April 23, 2007, in Rimouski, Quebec.
 The appellant operates a flying school and is authorized to provide training at its main base of Sept-Îles. However, in February 2006, Transport Canada was informed that the appellant had provided flight training at the Rimouski Airport from February 13 to 16, 2006.
 On June 2, 2006, following an investigation by Transport Canada, the Minister of Transport served a notice of assessment of monetary penalty on 2431‑9154 Québec Inc. pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act). The notice alleged that 2431‑9154 Québec Inc. had contravened section 406.03(1) of the Canadian Aviation Regulations, SOR/96-433 (CARs), because it had operated a flight training service at or near the Rimouski Airport.
 After considering the evidence and hearing the parties' arguments, the review member confirmed the following contravention and penalty:
You have contravened section 406.03(1) of the Canadian Aviation Regulations.
1. From December 27, 2005 to February 22, 2006, at or near the Rimouski (Quebec) Airport, you operated a flight training service using the aircraft registered as C‑GUQM while you did not hold a flight training unit operator certificate authorizing you to offer such a service, in particular, you did not comply with the conditions and operations specifications set out in the certificate since your main base is Sept-Îles and no sub-base appears on the certificate.
 On July 10, 2007, the appellant, through its counsel, put forward the following ground for appeal: [translation] "The penalty assessed is greatly exaggerated and completely disproportionate to the circumstances of the alleged offence, which was quite minor".
 On September 4, 2007, the appellant, through its counsel, put forward as a second ground for appeal that the Tribunal had misinterpreted the concept of familiarization.
 After receiving information from Jocelyn Primeur of Rimouski that the appellant was offering flight training from the Rimouski Airport, Transport Canada conducted an investigation, which enabled it to confirm the following facts.
 From December 27, 2005 to February 22, 2006, aircraft C‑GUQM was registered under the appellant's name and the flight training unit operator certificate (FTUOC) no. 8304 held by the appellant on the dates of the offence indicated Sept‑Îles as its main base.
 The testimony of Gilles St-Pierre and Vincent Vadnais and excerpts from their log books (exhibits M-4 and M-5) showed that the appellant provided them with nine training flights in Rimouski between December 27, 2005 and February 22, 2006.
III. APPELLANT'S ARGUMENTS
 During the hearing, the appellant expanded on its grounds for appeal.
A. Tribunal's error in assessing the testimony and understanding the concept of familiarization
 As its first ground for appeal, the appellant submits that the review member erred in her assessment of the testimony of Messrs. St-Pierre and Vadnais with respect to the activities during the nine training flights conducted in Rimouski. According to the appellant, the only people who could testify as to what happened in the aircraft during these flights are the witnesses who were there.
 The appellant submits that the review member erred in stating that only Mr. St‑Pierre had mentioned that they were familiarization flights, when Mr. Vadnais had also testified to this effect. The appellant added that no witness had established that Messrs. St-Pierre and Vadnais had taken control of the aircraft during these flights. The appellant's position was that the nine flights were familiarization flights to introduce Messrs. St-Pierre and Vadnais to flying and to enable them to determine whether they liked it enough to continue with the training.
 According to the appellant, the review member thus erred in finding that these flights were not familiarization flights.
B. Proportionality of the penalty
 As a second ground for appeal, the appellant submits that the review member erred in confirming the penalty of $5000.
 According to the appellant, the alleged offence is a minor offence that did not risk harming the public interest. Obtaining a permit to operate a satellite base is simply an administrative formality that had no effect on public safety, especially considering Jacques Levesque's considerable experience as a pilot.
 The appellant submits that a penalty of $500 would be more proportional to the alleged offence.
IV. MINISTER OF TRANSPORT'S ARGUMENTS
A. Tribunal's error in assessing the testimony and understanding the concept of familiarization
 The Minister submits that the review member correctly interpreted the concept of familiarization narrowly as a simple initiation flight. Familiarization flights must be specifically entered in the student pilot's log book, whereas training flights are entered differently.
 With respect to the testimony of the student pilots, Messrs. St-Pierre and Vadnais, the Minister is of the opinion that they are novices in the field and that Patrick Curot's testimony regarding familiarization activities should be given more weight. Moreover, the entries that student pilots made in their log books are the most direct evidence.
B. Proportionality of the penalty
 The Minister submits that the penalty assessed was justified by the circumstances of the alleged offences and that it is considerably lower than the maximum amount set out in the Act, which is $25 000 for each offence.
 According to the Minister, the offence is not minor, especially given that the appellant has 22 years experience in the field and that it had obtained authorization in the past to operate a satellite base. Thus, it was aware of the procedure to be followed.
 Moreover, the appellant continued to provide training from Rimouski after Transport Canada asked it to stop doing so, which is an aggravating factor.
 With respect to the facts and the evidence in this case, it is important to keep in mind the case law and principles guiding the Tribunal. In terms of the finding of fact, Moore v. Canada (Minister of Transport), , appeal decision, CAT file no. C‑0138‑33,  C.A.T.D. no. 5 at 5 (QL), confirms the principle under which an appeal tribunal should not interfere with the findings of fact made by the hearing officer unless they are patently unreasonable. In that decision, the appeal panel cites and applies the following criterion:
I am satisfied that a finding of fact by the hearing officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is none-the-less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an appeal tribunal, hearing an appeal on the record, should not interfere with the fact findings of the hearing officer.
This distinction may be subtle, but it is vital both to the preservation of the integrity of the appeal process and the safeguarding of the fundamental rights of the individual.
 As for the credibility of witnesses, Canada (Minister of Transport) v. Phillips, , appeal determination, CAT file no. C-0014-33,  C.A.T.D. no. 14 at 6 (QL), upholds the principle whereby the review member is in the best position to assess the evidence on the record:
The hearing officer is in the best position to be able to determine which evidence on the record he prefers; which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. Unless the findings of the hearing officer are patently unreasonable and cannot be supported by the testimony - under oath - the appeal tribunal should be reluctant to substitute its findings. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance. . . .
 We feel that the findings of fact by the review member were entirely reasonable, as they were supported by testimony she found credible and clear documentary evidence. Since the findings of the review member were not patently unreasonable, it is not relevant to review her determination regarding the facts in this case.
 We must therefore examine the grounds for appeal raised by the appellant to determine whether the review member's findings are unreasonable. Indeed, in Long v. Canada (Minister of Transport), , appeal decision, TATC file no. O‑2824‑02,  C.T.A.T.D. no. 20 (QL), the Tribunal states the following regarding the standard of review and the Tribunal's appeal procedures:
45 As the Aeronautics Act and its subordinate legislation are generally concerned with aviation safety we do not think that a decision which may have safety consequences should have to be patently unreasonable, i.e., clearly irrational before it may be found wanting.
46 We find that the standard of review as between the determination at first instance and that on appeal in Transportation Appeal Tribunal of Canada proceedings is whether the findings are "unreasonable".
A. Tribunal's error in assessing the testimony and understanding the concept of familiarization
 According to the appellant, the review member erred in finding that the flights were not all familiarization flights.
 The Tribunal reiterates that the findings of fact of the review member were entirely reasonable, since they were supported by testimony that she considered credible and clear documentary evidence. In fact, in the student pilots' log books the term "familiarization" is only indicated for the first flight (exhibits M‑4 and M‑5). The subsequent entries by Messrs. St-Pierre and Vadnais indicate the lesson plans covered during each flight. If they had considered these flights to be simple familiarization flights, they would have made an entry to that effect.
 Section 28 of the Act should also be taken into consideration. It provides as follows:
28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.
 As for the appellant's submission that the review member should have given more weight to the testimony of Messrs. St-Pierre and Vadnais, the Tribunal believes that it was reasonable for her to give more credibility to the entries they made in their log books.
 The documentary evidence provided by the student pilots and the testimony of Mr. Curot made it completely reasonable for the review member to find that the flights in question were not familiarization flights.
 We dismiss the first ground for appeal.
B. Proportionality of the penalty
 According to the appellant, the review member erred by not taking all the circumstances into account and by imposing measures that were inordinately severe and unjustified by the evidence in this case.
 First, it must be remembered that public safety is the primordial concern of aviation regulation and that the penalties assessed are deterrent measures. Their aim is to prevent reoffending by the offenders and protect the general public.
 Given that protecting the public is one of the cornerstones of aviation regulations, we believe that the review member correctly decided to confirm the penalty assessed.
 Among the factors supporting the reasonableness of the penalty assessed, we would mention that the appellant has considerable experience in flight training and was aware of the procedures and the regulations regarding flight training and satellite bases. Moreover, Transport Canada had asked it to stop offering training from Rimouski.
 Last, even though the Act allowed the Minister to assess a penalty for each flight carried out in contravention of the CARs, the Minister chose to do so for a single count.
 We dismiss this ground for appeal.
 For all these reasons, we dismiss the appeal and confirm the penalty of $5000.
January 15, 2008
Reasons for appeal decision by : Howard M. Bruce, Member
Concurred by: John D. Issenman, Member
John Saba, Member
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