Decisions

TATC File No. Q-3364-09
MoT File No. 5258-8129

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

2431-9154 Québec Inc. (d.b.a. Sept-Îles Aviation Enr.), Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp.), s. 7.1(1)(c)
Canadian Aviation Regulations, ss. 702.02 and 703.02

cancellation of an Operating Certificate, Public interest, air operator certificate


Review Determination
Jean-Marc Fortier


Decision: October 2, 2007

Citation: 2431-9154 Québec Inc. v. Canada (Minister of Transport), 2007 TATCE 23 (review)

[Official English translation]

Heard at Sept-Îles, Quebec, on May 29 and 30, 2007

Held: I confirm the decision of the Minister of Transport to cancel the air operator certificate of Sept-Îles Aviation Enr., since public interest and the aviation record of the applicant and its principal, Jacques Lévesque, warrant the cancellation of air operator certificate no. 8260 of Sept-Îles Aviation Enr., pursuant to section 7.1(1)(c) of the Aeronautics Act.

I. BACKGROUND

[1]     The applicant, 2431-9154 Québec Inc., an air operator doing business as Sept-Îles Aviation Enr. (Sept-Îles Aviation), operated an aviation business under air operator certificate (AOC) no. 8260. This certificate was issued in accordance with sections 406 et seq. of the Canadian Aviation Regulations, SOR/96-433 (CARs).

[2]     The air transport operations of Sept-Îles Aviation continued until December 7, 2006, when the applicant was served with a notice of suspension of its AOC no. 8260 (with immediate effect) pursuant to section 7.1(1)(b) of the Aeronautics Act. According to the Minister of Transport, the business had not complied with the general conditions of the AOC, pursuant to sections 702.02 and 703.02 of the CARs. The detailed reasons for the suspension and the conditions for reinstatement are contained in the appendix to the notice of suspension. Sept-Îles Aviation did not resume its air transport operations after December 7, 2006.

[3]     On May 8, 2007, Sept-Îles Aviation received from Transport Canada a notice of cancellation of its AOC no. 8260, which came into effect on May 22, 2007, at 11:59 p.m. local time. The reasons for cancellation are also listed in appendix A of the notice of cancellation.

[4]     The grounds in support of the notice of cancellation of Sept-Îles Aviation's AOC no. 8260 (file nos. Q-3364-09 (TATC) and 5258-8129 (MoT)) and those put forward in support of the notice of cancellation of Sept-Îles Aviation's flight training unit operator certificate no. 8304 (file nos. Q-3365-09 (TATC) and 5811-8129 (MoT)) are identical. Moreover, the Tribunal rendered a decision on this notice on July 24, 2007 (2431-9154 Québec Inc. v. Canada (Minister of Transport), 2007 TATCE 19 (review)).

[5]     For the purposes of this determination, the Tribunal will make a determination on the notice of cancellation of the company's AOC no. 8260.

II. AERONAUTICS ACT

[6]     Section 7.1(1)(c) of the Act sets out the following:

7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that

[…]

(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a), warrant it,

the Minister shall, by personal service or by registered or certified mail sent to the holder or the owner or operator of the aircraft, airport or facility, as the case may be, at their latest known address, notify that person of the Minister's decision.

[7]     Section 7.1(8) of the Act sets out the following:

(8) If a decision to suspend or cancel a Canadian aviation document is referred back to the Minister for reconsideration under subsection (7), the decision of the Minister remains in effect until the reconsideration is concluded. However, the member, after considering any representations made by the parties, may grant a stay of the decision until the reconsideration is concluded, if he or she is satisfied that granting a stay would not constitute a threat to aviation safety.

[8]     At the outset of the hearing on May 29, 2007, the Tribunal informed counsel for both parties that it would hear their representations on both notices of cancellation issued by the Minister pursuant to section 7.1(8) of the Act if the matters were referred back to the Minister. The Tribunal will grant, if applicable, a stay of the decisions until the reconsideration is concluded, if it is satisfied that granting a stay

III. TRANSPORT CANADA'S GROUNDS FOR CANCELLATION

[9]     The notice of cancellation of AOC no. 8260 is based on 30 grounds for cancellation, which are numbered 1 to 30 and listed in appendix A of the notice of cancellation. The Minister filed a voluminous book of documents (exhibit M-1) in support of these grounds for cancellation.

[10]     However, in order to make a determination on the notice of cancellation of AOC no. 8260, the Tribunal will examine the grounds for cancellation nos. 1 to 7, 14 to 16, 19 to 21 and 23 to 30, as well as all of the evidence submitted at the hearing concerning the applicant's air operations.

[11]      The Tribunal considered the following evidence and grounds for cancellation:

[translation]
1. On April 5, 1990, Jacques Lévesque did not comply with subsection 39(3) of the Air Navigation Order, series VII, no. 3, and he was assessed a penalty of $125 (Aviation Enforcement file no. 5504-15076).

2. On July 21, 1990, Jacques Lévesque did not comply with section 543 of the Air Regulations and he was assessed a penalty of $100 (Aviation Enforcement file no. 5504-16053).

3. On or about November 14, 1991, a notice of suspension was issued concerning the operating certificate of Entreprises Jacques Lévesque Enr., given the non-compliance with paragraph 5(1)(d) of the Air Navigation Order, series VII, no. 3. The suspension came into effect on December 14, 1991. Afterwards, a review hearing was held and the file was referred back to Transport Canada for reconsideration (CAT file no. Q-0289-10).

4. On December 2, 1991, Jacques Lévesque did not comply with paragraph 548(1)(b) of the Air Regulations and was assessed a penalty of $100 (Aviation Enforcement file no. 5504-19732).

5. On November 10, 1995, a notice of suspension was issued concerning the air operator certificate of 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.), of which Jacques Lévesque was a principal, due to the discovery of several non-compliances in the course of a regulatory audit conducted from October 23 to 27, 1995.

6. On October 6, 2000, Jacques Lévesque did not comply with subsection 602.104(2) of the Canadian Aviation Regulations and he was assessed a penalty of $175 (Aviation Enforcement file no. 5504-42992).

7. On July 31, 2000, a notice of suspension was issued concerning the air operator certificate of 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.), of which Mr. Lévesque was a principal, following the discovery of several non-compliances in the course of a regulatory audit conducted from May 16 to 17, 2000.

14. On March 30, 2003, Jacques Lévesque did not comply with section 602.101 of the Canadian Aviation Regulations and was assessed a penalty of $250 (Aviation Enforcement file no. 5504-50442).

15. On February 13, 2004, a notice of suspension was issued concerning the air operator certificate of 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.), of which Jacques Lévesque was a principal, because the company no longer met the conditions for issuance, given that it no longer had a qualified chief pilot, as required pursuant to subparagraph 703.07(2)(b)(ii) of the Canadian Aviation Regulations.

16. On July 29, 2004, 2431-9154 Québec Inc. (Sept-Îles Aviation Enr./Eider Aviation), of which Jacques Lévesque was a principal, did not comply with section 103.03 of the Canadian Aviation Regulations following two requests to return the cancelled original air operator certificate.

19. On April 20, 2006, a notice of suspension was issued concerning the air operator certificate of 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.), of which Jacques Lévesque was a principal, because the company no longer met the conditions for issuance, given that it no longer had a qualified chief pilot, as required pursuant to subparagraph 703.07(2)(b)(ii) of the Canadian Aviation Regulations. The notice of suspension did not come into effect because he met the requirements before expiry of the allotted time.

20. In November 2006, 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.) was inspected twice. Several allegations of offences under the Canadian Aviation Regulations and the Aeronautics Act were made against the company, Jacques Lévesque and the company's other pilot, Christophe Vallantin. As a result of these offences, the Aviation Enforcement Branch opened six investigation files, which are at various stages of progress. Notices of assessment of monetary penalty were issued for file nos. 5504-62256 and 5504-62257, while file nos. 5504-61907, 5504-61930, 5504-61937 and 5504-61938 are still at the allegation stage.

21. On December 7, 2006, Transport Canada cancelled the approval of Jacques Lévesque as maintenance manager of 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.) because he did not fulfill his responsibilities, which included ensuring safe operations.

23. On December 7, 2006, Transport Canada cancelled the approval of Jacques Lévesque as operations manager of 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.) because he did not fulfill his responsibilities, which included ensuring safe operations. No request to review the Minister's decision was filed with the registrar of the Transportation Appeal Tribunal of Canada, which request would have had to be filed with the Tribunal no later than January 17, 2007, at 11:59 p.m. The cancellation is still in effect.

24. On December 7, 2006, Transport Canada cancelled the approval of Jacques Lévesque as chief pilot for 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.) because he did not fulfill his responsibilities, which included ensuring safe operations. No request to review the Minister's decision was filed with the registrar of the Transportation Appeal Tribunal of Canada, which request would have had to be filed with the Tribunal no later than January 17, 2007, at 11:59 p.m. The cancellation is still in effect.

25. On December 7, 2006, Transport Canada suspended the air operator certificate of 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.) because the company had not complied with the general conditions of the certificate as required by the Canadian Aviation Regulations, sections 702.02 and 703.02. No request to review the Minister's decision was filed with the registrar of the Transportation Appeal Tribunal of Canada, which request would have had to be filed with the Tribunal no later than January 17, 2007, at 11:59 p.m. Documents have since been submitted by Jacques Lévesque with regard to certain issues, in order to meet the conditions for reinstatement of the certificate. However, on March 22, 2007, he was notified by telephone that Transport Canada had reviewed the file and that a notice of cancellation of the air operator certificate was being prepared and would soon be served on him. The suspension is still in effect.

26. On April 25, 2007, 2431-9154 Québec Inc. (Sept-Îles Aviation Enr.), of which Jacques Lévesque was a principal, still did not comply with section 103.03 of the Canadian Aviation Regulations, requiring that the company return the Canadian aviation document, as stipulated in the notice of suspension of the air operator certificate dated December 7, 2006.

27. On July 16, 1998, an inspection finding was issued stating that the maintenance control system was ineffective, namely that aircraft registered as C-GCXF had not been checked against airworthiness directive AD97-01-13.

28. On April 30, 2002, an inspection finding was issued stating that the maintenance control system was ineffective, namely that aircraft registered as C-GUQM had not been maintained in accordance with the approved maintenance schedule no. Q0549.

29. In the course of a regulatory audit conducted in September and October 2003, inspection findings were issued stating that the maintenance control system was ineffective, specifically:

  • aircraft registered as C-GCXF had not been maintained in accordance with the approved maintenance schedule no. Q0628R4.
  • aircraft registered as C-GNEV had not been maintained in accordance with the approved maintenance schedule no. Q0549 and airworthiness directives AD98-02-08, AD94-06-09 and AD93-11-11 had not been checked.
  • aircraft C-GUQM had not been checked against airworthiness directives AD89-24-09, AD85-05-02 and AD78-16-06.

30. On October 26, 2004, an inspection finding was issued stating that the maintenance control system was ineffective, namely that aircraft registered as C-GCXF had not been maintained in accordance with the approved maintenance schedule no. Q0628R4, and airworthiness directive AD97-26-16 had not been checked.

[12]     The Tribunal also took into consideration ground for cancellation no. 22, concerning the irregularities and deficiencies in the maintenance control system. Transport Canada had brought these up in its finding form dated June 22, 2006, following an audit of Sept-Îles Aviation's maintenance management, carried out from June 19 to 23, 2006.

IV. MINISTER'S EVIDENCE – AVIATION RECORD OF THE APPLICANT AND JACQUES LÉVESQUE

[13]     At the outset of the presentation of its evidence, the Minister of Transport filed the document proposing admissions to be made by the applicant (exhibit M-2). These admissions correspond with the allegations contained in the appendix to the notice of cancellation of the AOC. Counsel for the applicant informed the Tribunal that the applicant agreed to make the admissions relating to the allegations in the notice of cancellation, subject to the evidence that it would submit at the hearing.

A.     1990 – 1998

[14]     Ground for cancellation no. 1 dates from April 1990. Mr. Lévesque was assessed a penalty of $125 for breach of section 39(3) of the Air Navigation Order, series VII, no. 3 (ANO). He conducted a take-off in weather conditions requiring the presence of a qualified co-pilot. According to the Transport Canada report, filed in support of this notice of contravention, the amount of the penalty had been reduced to $125 due to mitigating circumstances.

[15]     Ground for cancellation no. 2 also dates from 1990. Mr. Lévesque had not complied with section 543 of the Air Regulations, for which he was assessed a penalty of $100. The Transport Canada report, filed in support of this ground for cancellation, states that there was a positive resolution to this situation.

[16]     Ground for cancellation no. 3 states that the AOC of Entreprises Jacques Lévesque Enr. was suspended on December 14, 1991, for non-compliance with section 5(1)(d) of the ANO. On December 20, 1991, the Civil Aviation Tribunal made a determination on this suspension by the Minister (CAT file no. Q-0289-10). In this determination, the Tribunal acknowledged that the applicant had contravened section 5(1)(d) of the ANO and that it had acted with some negligence. The Tribunal however concluded that the applicant was not entirely responsible for the events that had occurred. The file was referred back to the Minister for reconsideration.

[17]     Ground for cancellation no. 4 states that in December 1991, Mr. Lévesque had not complied with section 548(1)(b) of the Air Regulations. He had not maintained a minimum altitude of 5 000 feet during a flight, in accordance with the instrument flight rules (IFR). He was assessed a penalty of $100. According to the Transport Canada report, filed in support of this ground for cancellation, mitigating circumstances warranted the reduction of the amount of the penalty.

[18]     Ground for cancellation no. 5 states that on November 10, 1995, Sept-Îles Aviation received a notice of suspension of its AOC. This notice, which was to take effect on December 11, 1995, was served after Transport Canada had discovered several non-compliances during a regulatory audit of the applicant's operations, conducted from October 23 to 27, 1995.

[19]     The Transport Canada report of November 9, 1995, indicated that the company's operations manual and some of its forms to be filled out prior to flights contained deficiencies requiring corrective action. The audit also identified deficiencies pertaining to the regulations on the responsibility of the management and operational control personnel, and the supervision of flights, several of which had been conducted contrary to the regulations (without a second in command when the circumstances required it). In addition, the aircraft inspections had identified deficiencies concerning the use of certain equipment and the presence of visible panels showing the operation of certain equipment. Several flights had not been recorded in the log book of one aircraft. Some aircraft were missing safety features cards for the passengers.

[20]     Sept-Îles Aviation took corrective action to address these deficiencies, which took until March 8, 1996. The evidence filed by Transport Canada, consisting of voluminous correspondence dealing with the corrective action required by Transport Canada, showed that the applicant had finally agreed to comply with the regulations and various air navigation orders. The applicant's AOC no. 8260 was therefore not reinstated until March 1996.

[21]     In July 1998, Transport Canada issued an inspection finding because the maintenance control system was ineffective. Aircraft C-GCXF had not been checked against airworthiness directive AD97-01-13 (ground for cancellation no. 27).

B.      2000 – November 2006

[22]     A new notice of suspension (ground for cancellation no. 7) of Sept-Îles Aviation's AOC was issued on July 31, 2000. The notice came into effect after a regulatory audit conducted on May 16 and 17, 2000, due to several non-compliances. According to the briefing note filed by Transport Canada, the company had not replied to the audit findings within the prescribed time. It had not taken the corrective action required by Transport Canada concerning the company's manuals, the management personnel and coordination of operations, the crew training program, flight documentation, aircraft inspection and documentation, and cabin safety. When the company finally complied with Transport Canada's requirements, the suspension was lifted on August 25, 2000.

[23]     This was the second notice of suspension of the company's AOC since 1995. In both cases, the notices of suspension were issued following a regulatory audit conducted by Transport Canada. In both cases, the evidence showed that the deficiencies identified by Transport Canada were significant and numerous. They generally involved a substantial part of the business operations.

[24]     On October 6, 2000, Mr. Lévesque did not comply with section 602.104(2) of the CARs. As set out in ground for cancellation no. 6, he was assessed a penalty of $175 for the offence, namely a lack of communication between the aircraft piloted by Mr. Lévesque and the control tower at Yarmouth, Nova Scotia.

[25]     Ground for cancellation no. 28 states that on April 30, 2002, aircraft C-GUQM had not been maintained in accordance with the approved maintenance schedule no. Q0549. According to the inspection finding of May 2, 2002, filed in support of this ground for cancellation, inspector Philippe Chénier had observed that the maintenance of aircraft C-GUQM and C-GCXF had not been performed in accordance with the company's maintenance control manual, which showed that the maintenance tasks on these two aircraft had not been completed within the prescribed time. The maintenance control system had remained ineffective.

[26]     According to ground for cancellation no. 29, during the course of regulatory audits conducted in September and October 2003, audit findings were issued stating that the maintenance control system was still ineffective as regards aircraft C-GCXF, C-GNEV and C-GUQM. In addition, certain airworthiness directives had not been checked on two of the aircraft mentioned. The Tribunal cites the following excerpts from the report filed by Transport Canada under the heading [translation] "Air Operator Maintenance Requirements":

[translation]

AOC-04 Evaluation Program

. . . In addition, during our audit, we noted weaknesses in the aircraft maintenance planning; there were discrepancies and anomalies in the MCM; deficiencies in the maintenance schedule; incomplete, illegible and missing entries in the technical records and inadequate weight and balance control. This demonstrates that the system evaluation program is ineffective and must be improved.

[…]

AOC-11 Maintenance Planning

The inspection in this area demonstrates that the maintenance planning and control system in place is inadequate and incomplete . . . The operator must take immediate corrective action to rectify the situation.

[…]

AOC-26 Control of Parts

The air operator has no system or procedure in place to ensure that the requirements of the Canadian Aviation Regulations 571.13 are met with respect to new and used aeronautical products stored at its main base.

As a result, the company was unable to prove the origin or the technical history of several aeronautical products that were found, which makes these parts ineligible to be installed on a Canadian aircraft.

[…]

[27]     On March 30, 2003, Mr. Lévesque was assessed a penalty of $250 for non-compliance with section 602.101 of the CARs. He had neglected to indicate all reporting points in the mandatory frequency area during a flight conducted according to visual flight rules (VFR) from Schefferville to Sept-Îles. Mr. Lévesque paid the penalty within the prescribed time (ground for cancellation no. 14).

[28]     According to ground for cancellation no. 15, another notice of suspension of Sept-Îles Aviation's AOC was issued on February 13, 2004 (taking effect on March 16, 2004 at 11:59 p.m.). The company no longer met the conditions for issuance, as it no longer had a chief pilot, pursuant to section 703.07(2)(b)(ii) of the CARs. In order to comply with the conditions of maintenance of AOC no. 8260, Mr. Lévesque had renewed his pilot proficiency check on March 12, 2004, terminating the notice of suspension of February 13, 2004.

[29]     According to ground for cancellation no. 30, Transport Canada had again observed, on October 26, 2004, that the applicant's maintenance control system was ineffective as regards aircraft C-GCXF. This aircraft had not been maintained in accordance with approved maintenance schedule no. Q0628R4, and airworthiness directive AD97-26-16 had not been checked.

[30]     According to ground for cancellation no. 19, a notice of suspension of Sept-Îles Aviation's AOC had been issued on April 20, 2006. The company no longer met the conditions for issuance, given that it no longer had a chief pilot qualified under section 703.07(2)(b)(ii) of the CARs. Since Mr. Lévesque had passed his pilot proficiency check on May 1, 2006, the notice of suspension was lifted on that date.

C. Events of November 2006

[31]     Grounds for cancellation nos. 21 and 22 must be considered together. On December 7, 2006, the Minister decided to revoke the approval of Mr. Lévesque as maintenance manager of Sept-Îles Aviation. According to ground no. 21, Mr. Lévesque had not fulfilled his responsibilities to ensure safe operations. Ground for cancellation no. 22 arose from an audit conducted by Transport Canada from June 19 to 23, 2006. Transport Canada had noted that the maintenance manager had not evaluated his maintenance control system on a continuous basis. He had not detected or corrected certain non-compliances identified by Transport Canada during this audit. Moreover, short and long-term corrective action, dating back to August 11, 2005, still had not been put in place. An inspection of aircraft C-GNEV and C-GUQM demonstrated that the applicant had not performed certain checks on some of the equipment of the two aircraft within the prescribed time (notification letters of November 8, 2006). In a document entitled [translation] "Sept-Îles Aviation – Situation Summary", sent on December 7, 2006, Transport Canada confirmed the following:  [translation] " the maintenance manager did not perform his duties, as set out in the Sept-Îles Aviation maintenance control manual approved by TC on November 28, 2003, and [translation] " the maintenance manager did not take out of service all aircraft that were unsafe or did not meet the requirements of the CARs or the maintenance control manual".

[32]     In the conclusion of this document, Transport Canada stated that the maintenance manager had not performed the duties that had been assigned to him, according to maintenance centre management. He had not taken the aircraft out of service when he should have. He also had not taken into account the delays nor effectively carried out the company's evaluation program, despite the fact that this had been noted twice by Transport Canada.

[33]     Grounds for cancellation nos. 20, 23, 24 and 25 dealt with specific events that occurred on November 15, 19, 20, 25 and 30, 2006. According to the Minister, Sept-Îles Aviation as well as two pilots, Mr. Lévesque and Christophe Vallantin, committed several offences under the CARs and the Act. These files are currently subject to aviation enforcement investigations. However, due to their significance, the Tribunal has no choice but to consider them in the scope of this determination.

[34]     On December 12, 2006, Transport Canada informed Mr. Vallantin that it was investigating 11 possible offences under sections 602.01, 602.86(1) (two counts), 602.86(2), 605.10(1), 605.10(2), 703.14(2), 703.37(1), 703.39(1) (two counts) and 703.881(1) of the CARs as well as section 7.3(1)(d) of the Act. According to Transport Canada, these offences were committed on November 19th, at Sainte-Anne-des-Monts, and on November 25th, also at Sainte-Anne-des-Monts and Rivière aux Saumons. Transport Canada submitted that the alleged offences endangered the life or property of any person. These offences were the result of the operating procedures for aircraft C-GCXF and the fact that the luggage contained in the aircraft, on both November 19 and 25, 2006, was not stowed in a manner preventing it from shifting during movement of the aircraft on the surface and in flight, thereby creating a danger for the passengers. Moreover, it was alleged that Mr. Vallantin, on November 19, 2006, acted as a member of the flight crew of aircraft C-GCXF, when he had not successfully completed a pilot proficiency check to operate an aircraft using IFR and carrying a passenger without a second in command.

[35]     Transport Canada also sent to the applicant, to Mr. Lévesque (the main principal), and to Mr. Vallantin several notices during the months of January and February 2007, informing them of several investigations being carried out concerning possible offences under certain sections of the CARs and section 7.3(1)(d) of the Act, pertaining to events that occurred from November 15 to 30, 2006. These offences concerned the actions of Messrs. Lévesque and Vallantin, as pilots of flights conducted during this period, as well as the actions of the applicant for failure to ensure the safety of the passengers in accordance with the regulations for carry-on baggage, safety operations and the use of required instruments in flight. In addition, according to Transport Canada, Messrs. Lévesque and Vallantin are alleged to have obstructed persons in performing their duties under section 7.3(1)(d) of the Act.

[36]     Ground for cancellation no. 23 pertains to events that occurred in November 2006. More specifically, it makes reference to a ramp check conducted on November 25, 2006, by Normand Audet and David Deslauriers of Transport Canada on aircraft C-GCXF, a Cessna 402 of Sept-Îles Aviation. The check took place right after the aircraft landed at the Sainte-Anne-des-Monts Airport around 10:25 a.m. local time. The two Transport Canada representatives had filled out eight inspection finding forms: nos. FO-02-01, FO-02-02, FO-03-01, FO-07-01, FO-11-01, FO-11-02, FO-11-03 and FO-11-04, all dated November 25, 2006. They contained allegations of serious offences against Sept-Îles Aviation, Mr. Vallantin, the pilot, and the operations manager, Mr. Lévesque.

[37]     In response to the events of November 2006, Transport Canada cancelled the approval of Mr. Lévesque as the applicant's operations manager and business's chief pilot on December 7, 2006. With regard to the two positions, he had not fulfilled his responsibilities to ensure safe operations. These are grounds for cancellation nos. 23 and 24.

[38]     On December 7, 2006, Transport Canada suspended Sept-Îles Aviation's AOC with immediate effect. This suspension was due to inadequate upkeep of the company's maintenance control system, other deficiencies pertaining to aircraft maintenance and numerous suspension notices issued by Transport Canada since 1995. The company did not comply with the general conditions of its AOC, in accordance with sections 702.02 and 703.02 of the CARs (ground for cancellation no. 25). Added to these grounds are the events of November 15 to 30, 2006, described in grounds for cancellation nos. 20, 23, 24 and 25.

[39]     The appendix to the notice of suspension of Sept-Îles Aviation's AOC contained eight conditions for its reinstatement. These conditions included the requirement to propose candidates for the positions of operations manager, chief pilot and maintenance manager. These candidates had to meet the requirements of the CARs and those of Transport Canada's officers. In addition, Sept-Îles Aviation had to present a corrective action plan to the satisfaction of Transport Canada. Any recurrence of the offences outlined in the inspection findings of November 25, 2006 (the events that occurred at Sainte-Anne-des-Monts) had to be prevented and four other conditions had to be met pertaining to flight training of the candidates for the position of chief pilot, inspection of flight and maintenance operations, and the evaluation program pursuant to section 706.07 of the CARs. These conditions were applicable to nearly all of the applicant's operations.

D. 2007

[40]     Lastly, the most recent ground for cancellation is the fact that on April 25, 2007, Sept-Îles Aviation still had not complied with section 103.03 of the CARs and had failed to return the Canadian aviation document, pursuant to the notice of suspension of the AOC of December 7, 2006 (ground for cancellation no. 26).

V. WITNESSES FOR THE MINISTER OF TRANSPORT

[41]     In support of its evidence on the grounds for cancellation of the applicant's AOC, described in exhibit M-1, the Minister of Transport called Gino Dufour, Jules Pilon, Guy Hamel and Normand Audet.

[42]     Mr. Dufour's testimony pertained to grounds for cancellation nos. 21, 22 and 27 to 30 concerning aircraft maintenance and the maintenance control system. Mr. Dufour is the superintendent of the Transport Canada Centre – General Aviation. He is responsible for aircraft maintenance for Eastern Quebec. According to Mr. Dufour, in 1998, Sept-Îles Aviation had not followed the maintenance control system procedures for certain aircraft with regard to the airworthiness directives. In April 2002, the same problem had occurred with regard to the maintenance control system. Aircraft C-GUQM had not been maintained in accordance with the maintenance schedule and certain tasks had not been performed.

[43]     In the course of a regulatory audit conducted in September and October 2003, Transport Canada had also observed that three aircraft (C-GCXF, C-GNEV and C-GUQM) had not been maintained in accordance with the approved maintenance schedule and that the airworthiness directives had not been checked. Although the applicant was capable of meeting Transport Canada's requests for corrective action, Mr. Dufour's testimony indicated that there were still serious deficiencies concerning the application of the maintenance control manual and compliance with the maintenance control schedule. According to Mr. Dufour, the maintenance control system was ineffective.

[44]     In June 2006 (ground for cancellation no. 22), in the course of a regulatory audit, Transport Canada stated the following in finding form no. AOC-04-01:

[translation]
The maintenance manager did not evaluate, on a continuous basis, his maintenance control system. He was unable to detect and correct certain non-compliances identified by Transport Canada during this audit. Moreover, certain short and long-term corrective actions, dating back to August 11, 2005, still have not been taken.

[45]     Mr. Pilon, Regional Manager, Commercial and Business Aviation, Transport Canada, testified in relation to grounds for cancellation nos. 3, 5, 7, 15, 19 and 23 to 26.

[46]     In November 1991, Sept-Îles Aviation's AOC was suspended for the first time for failure to comply with the ANO. Sept-Îles Aviation did not have a qualified chief maintenance mechanic. The second notice of suspension of the AOC was served on the applicant on November 10, 1995, as a result of a regulatory audit conducted in October 1995. This audit dealt with several aspects of the applicant's operations, in particular, authorization to fly contrary to the regulations, flight monitoring, the use of a qualified crew and the inspection of defective aircraft. A third notice of suspension was served on Sept-Îles Aviation in July 2000, after Transport Canada discovered a number of non-compliances in the course of a regulatory audit conducted in May 2000. In February 2004, a fourth notice of suspension was issued concerning Sept-Îles Aviation's AOC. The company had ceased to meet the conditions for issuance, as it no longer had a qualified chief pilot under the CARs. A fifth notice of suspension was also issued in April 2006, on the same ground as the notice of February 2004.

[47]     In December 2006, Transport Canada decided to revoke the approval of Mr. Lévesque as Sept-Îles Aviation's operations manager and company's chief pilot. Mr. Lévesque had not fulfilled his responsibilities, one of which was to ensure safe operations. Concerning these two grounds for cancellation, Mr. Pilon referred to the events of November 25, 2006, at Sainte-Anne-des-Monts, which were dealt with in the testimony of Mr. Audet of Transport Canada. These events were also a contributing factor in the immediate suspension of Sept-Îles Aviation's AOC on December 7, 2006, as the company had not complied with the general conditions of the CARs.

[48]     In his testimony, Mr. Pilon indicated that following the notices of cancellation mentioned in grounds nos. 21, 23 and 24 and the events of November 2006, he had met with Transport Canada representatives, including Diane Desmarais, to review the applicant's entire file. He explained that he had brought to light all of the elements of the offences attributed to the company or its chief pilot, Mr. Lévesque, over the past 10 years. Upon review of the file, Mr. Pilon, Ms. Desmarais and Vianney Paradis had jointly decided to issue a notice of cancellation of the applicant's AOC. The notice of cancellation of May 8, 2007, was signed by Mr. Pilon.

[49]     Mr. Hamel, Civil Aviation Security Inspector, Aviation Enforcement, Transport Canada, then testified on grounds for cancellation nos. 1, 2, 4, 6, 12, 14 and 20, with regard to the notice of cancellation of the applicant's AOC. Grounds for cancellation nos. 1, 2, 4, 6, 12 and 14 dealt with offences involving Mr. Lévesque over the period from 1990 until March 2003. Ground for cancellation no. 20 dealt with several offences under the CARs and the Act in November 2006. These offences were attributed to Mr. Lévesque and another pilot, Mr. Vallantin, in relation to the events of November 15, 19, 20, 25 and 30, 2006, at Sainte-Anne-des-Monts and Rivière aux Saumons.

[50]     The Minister of Transport then called Mr. Audet, Civil Aviation Inspector at Transport Canada. His testimony dealt with grounds for cancellation nos. 23, 24 and 25 and a field audit conducted on November 25, 2006, at Sainte-Anne-des-Monts with Mr. Deslauriers. The written statements of Messrs. Audet and Deslauriers concerning the events of November 25, 2006, were supported by a series of photographs (exhibit M-3) illustrating the state of the aircraft upon landing at the Sainte-Anne-des-Monts Airport on November 25, 2006.

VI. APPLICANT'S EVIDENCE

[51]     The applicant's evidence consisted mainly of the testimony of its president, Mr. Lévesque, and letters from Transport Canada dated March 8, 2007, and signed by Simon Ménard, Inspector, Airline Operations, Commercial and Business Aviation, Transport Canada (exhibit R-1). These letters confirmed that Daniel Cherrier met the experience requirements for chief pilots and recommended that he take the appropriate exam for chief pilots. Mr. Cherrier also met the experience requirements for operations managers and also recommended that he take the appropriate exam for operations managers.

[52]     Mr. Lévesque testified that after receiving the notice of suspension of Sept-Îles Aviation's AOC on December 7, 2006, and the cancellation of his position of chief pilot and operations manager, he had reviewed the conditions for reinstatement contained in the appendix to the notice of suspension. He had then proposed Mr. Cherrier as a candidate for the positions of chief pilot and operations manager of Sept-Îles Aviation.

[53]     From December 7, 2006 until March 22, 2007, Mr. Lévesque had attempted to meet Transport Canada's conditions for reinstatement of the AOC. However, on March 22, 2007, Ms. Desmarais called Mr. Lévesque to inform him that the Minister of Transport required the cancellation of the AOC.

[54]     According to what he had gathered from the two letters of March 8, 2007, recommending Mr. Cherrier as chief pilot and operations manager subject to successful completion of the required exams, Mr. Lévesque believed that he had, in part, met the conditions for reinstatement of the AOC.

[55]     Mr. Lévesque stated that the evidence dealing with the events of November 15 to 30, 2006, and the flights of November 25, 2006, at Sainte-Anne-des-Monts (photographs in bundle), which Transport Canada relied on in support of the notice of cancellation of AOC no. 8260, was not submitted to him until May 14, 2007, after the notice of cancellation was served (May 8, 2007).

[56]     In his testimony, Mr. Lévesque stated that over the past 10 years, he had always cooperated with Transport Canada to meet the Minister's requirements following the numerous notices of contravention issued concerning Sept-Îles Aviation's operations. He also confirmed that he preferred to pay the penalties in order to keep the peace, rather than incurring the costs associated with contesting the many notices served on him by Transport Canada.

[57]     Although Mr. Lévesque was verbally informed by Ms. Desmarais, on March 22, 2007, that a notice of cancellation of Sept-Îles Aviation's AOC was being issued, he still had not heard from Transport Canada as to the conditions for reinstatement of his AOC.

VII. CONSIDERATION OF THE EVIDENCE

[58]     The Minister of Transport submits that the cancellation of Sept-Îles Aviation's AOC is warranted based on the evidence and the arguments presented by its representatives. The Minister is of the opinion that public interest and, in particular, the aviation record of the operator and its principal, Mr. Lévesque, warrant the cancellation.

[59]     The Minister of Transport has put forward 21 grounds for cancelling AOC no. 8260. According to the Tribunal, some of them, in particular grounds nos. 1, 2, 4, 6 and 14, although they are offences under the CARs, cannot alone be relied on to warrant a notice of cancellation of the AOC.

[60]     Sept-Îles Aviation was issued five notices of suspension over the period from 1991 to 2006, and, in most cases, these notices of suspension were the result of multiple aircraft maintenance offences as well as persistent and serious deficiencies in its maintenance control system and flight operation.

[61]     After each regulatory audit conducted by Transport Canada in 1995, 2000 and 2006, concerning his business's operation and maintenance, Mr. Lévesque conducted himself such that Transport Canada had no other choice but to issue a notice of suspension to ensure that corrective action would be taken by Sept-Îles-Aviation and Mr. Lévesque. He acted as chief pilot, maintenance manager and operations manager.

[62]     This conduct was well illustrated in Mr. Lévesque's testimony. He stated that he relied on Transport Canada's audits to point out to him any serious deficiencies concerning the maintenance control and compliance with the safety standards required under the CARs. The Tribunal cannot accept the points argued by Mr. Lévesque, as it is the carrier's responsibility to ensure that its business is operated safely and in accordance with maintenance and safety standards under the CARs.

[63]     The holder of an AOC issued by the Minister of Transport must ensure, continuously and at all times, compliance with the operation and safety standards required by Canadian regulations. Since Mr. Lévesque holds all of the positions of responsibility with the applicant, Transport Canada rightly expects him to act responsibly in all aspects of managing the business.

[64]     Based on the Minister's evidence, the suspension of December 7, 2006, was the result of serious deficiencies concerning the maintenance and safety of the applicant's flights. These deficiencies were identified through the many audits conducted by Transport Canada in the last few years. The events of November 2006 merely confirmed the business's operational deficiencies, which had existed for many years.

[65]     Because of his aviation record, Mr. Lévesque no longer has the credibility to fill the positions related to aviation operations, namely operations manager, chief pilot and maintenance manager. Mr. Lévesque proposed candidates who were acceptable to Transport Canada. However, the Tribunal is not satisfied that, as main principal and shareholder of Sept-Îles Aviation, Mr. Lévesque will change his conduct such that he will safely manage the company operations, the maintenance and the flight operations in accordance with the AOC and the CARs.

[66]     Messrs. Audet and Pilon gave detailed testimony on the events of November 25, 2006. Moreover, the Minister filed a bundle of photographs of one of the applicant's aircraft. They were taken during a landing at the Sainte-Anne-des-Monts Airport on November 25, 2006. The Tribunal cannot ignore these factors when considering and assessing the conduct of Sept-Îles Aviation and its main principal, Mr. Lévesque, regarding the safety standards required by the CARs.

[67]     Neither the applicant nor Mr. Lévesque have presented relevant evidence to explain the events from November 15 to 30, 2006, which could have demonstrated that the business was not operated without controls and that it had a certain influence on the actions of its pilots. The Tribunal's understanding is that Mr. Vallantin (the pilot involved in the event of November 25th) no longer works for Sept-Îles Aviation and could have to answer for offences discovered in the course of investigations conducted by Transport Canada after those mentioned in ground for cancellation no. 20.

[68]     The Tribunal considers that the grounds for cancellation stated in Transport Canada's notice of cancellation of May 8, 2007, put forward prior to the events of November 2006, are serious enough to warrant the cancellation of Sept-Îles Aviation's AOC. Even though the applicant complied with Transport Canada following the notices of suspension issued since 1991, the applicant and its principal, in each case, went back to the company's old operating methods, thereby not complying with the AOC requirements.

[69]     The applicant's aviation record showed that in November 2006, Mr. Lévesque was already incapable of fulfilling the responsibilities as chief pilot, operations manager and maintenance manager of his aviation company, even prior to the offences alleged against the applicant and its principal, including the events of November 25, 2006, at the Sainte-Anne-des-Monts Airport.

[70]     The Tribunal considers that Transport Canada therefore acted reasonably in concluding that the operation of Sept-Îles Aviation was no longer justifiable, even with one or more new candidates for the positions of chief pilot, operations manager and maintenance manager, if ultimate control of the applicant remained entirely in the hands of its main principal, Mr. Lévesque.

VIII. PUBLIC INTEREST

[71]     The public interest argument was raised several times by the Minister of Transport and warrants the cancellation of AOC no. 8260, since aviation safety is at risk.

[72]     The Tribunal does not intend to go through each factor concerning the concept of public interest in aviation safety. This concept has been discussed in several determinations, including NexJet Aviation Inc. v. Canada (Minister of Transport), [2006], review determination, TATC file no. O-3248-09, [2006] C.T.A.T.D. no. 33 (QL), and Bancarz v. Canada (Minister of Transport), [2005], review determination, TATC file no. W-3058-27, [2005] C.T.A.T.D. no. 24 (QL). The latter decision was upheld by the Federal Court of Canada ([2007] F.C.J. no. 599 (QL)).

[73]     These two determinations confirmed that by relying on the public safety principle to suspend or cancel a Canadian aviation document, the Minister must be able to prove the occurrence of serious or several events with clear evidence. This evidence must establish that the holder of the Canadian aviation document committed offences under the regulations.

[74]     In that respect, the Minister demonstrated the occurrence of repeated and serious incidents constituting offences relating to the continued maintenance and operational control of Sept-Îles Aviation. In addition, the evidence submitted by the Minister satisfied the Tribunal that the company's main principal, Mr. Lévesque, had not fulfilled his responsibilities to ensure safe operations.

[75]     The Tribunal finds that, in terms of aviation safety, the public using the services of Canadian air carriers (large and small) is entitled to expect that these operators rigorously comply with the requirements of the CARs, whether for regional or international flights. This is one of the important principles confirmed by the Tribunal in Spur Aviation Ltd. v. Canada (Minister of Transport), [1997], review decision, CAT file nos. W-1282-20, W-1283-09, W-1284-09, [1997] C.AT.D. no. 24 (QL).

[76]     Based on the evidence submitted at the hearing and on the above-mentioned decisions, the Tribunal concludes that the Minister of Transport has established, on the balance of probabilities, that the public interest and, in particular, the aviation record of the applicant and its principal warrant the cancellation of AOC no. 8260.

IX. DETERMINATION

[77]     For these reasons, the Tribunal confirms the Minister's decision to cancel Sept-Îles Aviation's AOC no. 8260, since public interest and the aviation record of the applicant and its principal warrant cancellation of this document, under section 7.1(1)(c) of the Act.

October 2, 2007

Jean-Marc Fortier
Member


Appeal decision
Faye H. Smith, Howard M. Bruce, John Saba


Decision: March 31, 2008

Citation: 2431-9154 Québec Inc. v. Canada (Minister of Transport), 2008 TATCE 18 (appeal)

[Official English translation]

Heard at Sept-Îles, Quebec, on November 26, 2007

Held: The appeal is dismissed. The Tribunal confirms the decision of the Minister of Transport to cancel air operator certificate no. 8260 of Sept-Îles Aviation Enr., since the public interest and, in particular, the aviation record of the appellant and that of its principal, Jacques Lévesque, warrant it.

I. BACKGROUND

[1] This is an appeal from a decision rendered on October 2, 2007 by the member Jean‑Marc Fortier, following a review hearing held on May 29 and 30, 2007, at Sept‑Îles, Quebec.

[2] The appellant, 2431-9154 Québec Inc., doing business as Sept‑Îles Aviation Enr. (Sept‑Îles Aviation), operated an aviation business pursuant to air operator certificate no. 8260 (AOC). The certificate had been issued to the appellant in accordance with sections 406 and following of the Canadian Aviation Regulations, SOR/96-433 (CARs).

[3] The air transport operations of Sept-Îles Aviation continued until December 7, 2006, when the applicant was served with a notice of suspension of its AOC (with immediate effect) pursuant to section 7.1(1)(b) of the Aeronautics Act (Act). According to the Minister of Transport, the business had not complied with the general conditions of the AOC, pursuant to sections 702.02 and 703.02 of the CARs. The detailed reasons for the suspension and the conditions for reinstatement are contained in an appendix to the notice of suspension. Sept-Îles Aviation did not resume its air transport operations after December 7, 2006.

[4] On May 8, 2007, Sept-Îles Aviation received from Transport Canada a notice of cancellation of its AOC. The cancellation came into effect on May 22, 2007, at 11:59 p.m. local time. The reasons for cancellation are listed in appendix A to the notice of cancellation.

[5] The grounds in support of the notice of cancellation of Sept-Îles Aviation's AOC (file nos. Q‑3364-09 (TATC) and 5258-8129 (MoT)) and those put forward in support of the notice of cancellation of Sept-Îles Aviation's flight training unit operator certificate no. 8304 (FTUOC) (file nos. Q-3365-09 (TATC) and 5811-8129 (MoT)) are identical. The Tribunal rendered a decision on this notice on July 24, 2007 (2431-9154 Québec Inc. v. Canada (Minister of Transport), 2007 TATCE 19 (review)).

II. GROUNDS FOR CANCELLATION

[6] The notice of cancellation of the AOC is based on 30 grounds for cancellation, numbered 1 to 30 and listed in appendix A to the notice. At the review hearing, the Minister of Transport filed in evidence a voluminous book of documents in support of these grounds for cancellation.

[7] However, in making its determination on the notice of cancellation of the AOC, the review member examined grounds for cancellation nos. 1 to 7, 14 to 16, 19 to 21 and 23 to 30, as well as all of the evidence submitted at the hearing concerning Sept‑Îles Aviation's air operations.

[8] The review member also took into account ground for cancellation no. 22, concerning irregularities and shortcomings in the maintenance control system. Transport Canada had brought these up in its finding form dated June 22, 2006, following an audit of Sept-Îles Aviation's maintenance management, carried out from June 19 to 23, 2006.

[9] In his determination, the review member confirmed the Minister's decision to cancel Sept-Îles Aviation's AOC.

III. DISCUSSION OF GROUNDS FOR APPEAL

[10] Counsel for the appellant stated that the appeal was based on the following grounds. These grounds will be dealt with in the order they were presented.

A. First ground

[11] The first ground reads as follows:

[translation]

1. The member made contradictory determinations in arriving at his conclusions that the public interest as well as the aviation record and background of Sept-Îles Aviation and its principal warranted the cancellation of the AOC under appeal, whereas on the basis of the same evidence, just a few weeks earlier, he had made a completely opposite determination regarding the flight training unit operated by the same company and principal.

[12] Counsel for the appellant relied on the same arguments as those raised at the review hearing. He submitted that in December 2006, the Minister of Transport had issued a notice of suspension of Sept‑Îles Aviation's FTUOC and AOC. In February 2007, the Minister was of the opinion that Sept‑Îles Aviation had complied with the conditions for reinstatement and therefore reinstated the company's FTUOC. According to counsel for the appellant, no new facts had been raised since February 2007 in support of the notice of cancellation.

[13] Mr. Lévesque testified that, during the period from December 7, 2006, to March 22, 2007, he had attempted to meet Transport Canada's conditions for reinstatement of his AOC. He had proposed appointing Daniel Cherrier as Sept‑Îles Aviation's chief pilot and operations manager. However, on March 22, 2007, Diane Desmarais, a Transport Canada representative, telephoned Mr. Lévesque to notify him that the Minister of Transport had required the cancellation of the AOC.

[14] According to what Mr. Lévesque had gathered from the two letters dated March 8, 2007, recommending Mr. Cherrier as chief pilot and operations manager subject to successful completion of the required exams, he believed that he had, in part, met the conditions for reinstatement of his AOC.

[15] Counsel for the appellant argued that the review determination confirming the cancellation of the AOC is not well founded, since it is contrary to the previous determination referring the cancellation of the FTUOC back to the Minister for reconsideration.

[16] According to counsel for the Minister, the appeal panel can interfere only when the review determination is patently unreasonable. The decision in question was based on evidence given by witnesses and Mr. Lévesque on behalf of Sept‑Îles Aviation. Notwithstanding the fact that the decision concerning the cancellation of the AOC was based on the same global evidence for the two files, the review member did not consider the same evidence in each case, since he divided up the grounds and the supporting evidence. Counsel for the Minister submitted that, even if the evidence had been the same in both cases, it would have been sufficient to warrant the decision to cancel the AOC.

[17] By comparison, in the case concerning the cancellation of the FTUOC, the review member considered grounds for cancellation nos. 8 to 13, 17, 18, 21 and 22 in making his determination.

[18] The evidence showed that the conditions for reinstatement required by Transport Canada had been met by Sept-Îles Aviation to the satisfaction of Transport Canada and its managers. Consequently, on February 23, 2007, they notified Sept-Îles Aviation that it had complied with the conditions for reinstating its FTUOC and that the December 7, 2006 suspension had been lifted.

[19] Sept-Îles Aviation had therefore been authorized to resume activities associated with its FTUOC, which it did until May 2007, when it received the notice of cancellation of its FTUOC, some three months after having resumed operations.

[20] Based on the evidence submitted at the review hearing, Sept-Îles Aviation had not been charged with other offences, nor had it received any notices of suspension, between February 23, 2007 and May 22, 2007, the date when the cancellation of the FTUOC came into effect. The absence of new offences during this period had an impact on the member's determination to refer the matter back to the Minister for reconsideration. The review member was not satisfied that the Minister had met the criteria set out in Bancarz v. Canada (Minister of Transport), [2005], review determination, TATC file no. W‑3058‑27, [2005] C.T.A.T.D. no. 24 (QL). Moreover, he was not satisfied that the Minister had shown on a balance of probabilities that the public interest and, in particular, the aviation record of Sept‑Îles Aviation and that of its principal with respect to activities associated with the FTUOC, warranted the cancellation of the FTUOC.

[21] With regard to the cancellation of the AOC, which is at issue in the present case, the review member considered grounds for cancellation nos. 1 to 7, 14 to 16, 19 to 21 and 23 to 30, as well as all of the evidence introduced at the hearing.

[22] The review member was of the opinion that some of the grounds for cancellation, particularly grounds nos. 1, 2, 4, 6 and 14, could not on their own be relied on to warrant the notice of cancellation of the AOC, even though they constituted offences under the CARs.

[23] In his determination, the review member noted that Sept‑Îles Aviation had been issued five notices of suspension over the period from 1991 to 2006 and that, in most of these cases, the notices of suspension had stemmed from numerous aircraft maintenance offences as well as persistent and serious deficiencies is its maintenance control system and flight operations.

[24] After each regulatory audit conducted by Transport Canada in 1995, 2000 and 2006, concerning the business's operation and maintenance, Mr. Lévesque conducted himself such that Transport Canada had no other choice but to issue a notice of suspension to ensure that corrective action would be taken by Sept-Îles Aviation and Mr. Lévesque. He was acting as operations manager, chief pilot and maintenance manager.

[25] This conduct was well illustrated in Mr. Lévesque's testimony. He stated that he had relied on Transport Canada's audits to point out to him any serious deficiencies concerning the maintenance control and compliance with the safety standards required under the CARs. It is the view of this panel that the review member correctly concluded that it is the carrier's responsibility to ensure that its business is operated safely and in accordance with maintenance and safety standards under the CARs.

[26] The holder of an AOC issued by the Minister of Transport must ensure, continuously and at all times, compliance with the operation and safety standards required by Canadian regulations. Since Mr. Lévesque has taken up all the positions of responsibility with Sept‑Îles Aviation, Transport Canada was entitled to expect that he conduct himself in a responsible manner in all aspects of the management of his business.

[27] Based on the Minister's evidence, the suspension of December 7, 2006 was the result of serious deficiencies concerning the maintenance and safety of Sept-Îles Aviation's flights. These deficiencies were identified through the many audits conducted by Transport Canada in the last few years. The events of November 2006 merely confirmed the business's operational deficiencies, which had existed for many years.

[28] The review member therefore concluded that because of his aviation record, Mr. Lévesque no longer had the credibility to fill the positions related to aviation operations, namely operations manager, chief pilot and maintenance manager. Mr. Lévesque had proposed candidates acceptable to Transport Canada. However, the Tribunal was not satisfied that, as main principal and shareholder of Sept‑Îles Aviation, Mr. Lévesque would have changed his conduct so as to safely manage the company operations, the maintenance and the flight operations in accordance with the AOC and the CARs.

[29] The review member reviewed the concept of public interest in aviation safety as discussed in Bancarz v. Canada (Minister of Transport), cited above in paragraph 20, and in NexJet Aviation Inc. v. Canada (Minister of Transport), [2006], review determination, TATC file no. O-3248-09, [2006] C.T.A.T.D. no. 33 (QL). He stated that the Minister must be in a position to show the occurrence of serious events or of several events with clear evidence demonstrating contraventions of the regulations by the holder of the Canadian aviation document.

[30] In that respect, the Minister had demonstrated the occurrence of repeated and serious incidents constituting offences relating to the continued maintenance and operations control of Sept‑Îles Aviation. In addition, the evidence submitted by the Minister satisfied the Tribunal that the company's main principal, Mr. Lévesque, had not fulfilled his responsibilities to ensure safe operations.

[31] The review member concluded that, in terms of aviation safety, the public using the services of Canadian air carriers (large and small) is entitled to expect that these operators rigorously comply with the requirements of the CARs, whether for regional or international flights. This is one of the important principles confirmed by the Tribunal in Spur Aviation Ltd. v. Canada (Minister of Transport), [1997], review decision, CAT file nos. W‑1282‑20, W‑1283‑09, W‑1284‑09, [1997] C.AT.D. no. 24 (QL).

[32] Based on the evidence submitted at the review hearing and on the above-mentioned decisions, this appeal panel concurs with the conclusion that the Minister of Transport had established, on the balance of probabilities, that the public interest and, in particular, the aviation record of the applicant and its principal warranted the cancellation of its AOC.

B. Second ground

[33] The second ground reads as follows:

[translation]

2. The Federal Court upheld the decision of Member Fortier in the flight training unit case.

[34] Counsel for the appellant submitted that the review member had referred the case back to the Minister and that, in the meantime, the Minister had appealed the matter to the Federal Court. According to counsel for the appellant, the Federal Court had upheld the decision. The appeal panel is of the view that the Federal Court order (Canada (P.G.) c. 2431-9154 Québec Inc. (August 31, 2007), Ottawa, T‑1544‑07) concerned the Minister's motion to stay the suspension of the cancellation of Sept‑Îles Aviation's FTUOC until the application for judicial review could be heard. In this regard, we agree with the arguments of counsel for the Minister to the effect that the motion, which was dismissed by the Federal Court, did not affect the issues in dispute but simply the matter of the temporary stay, which is not relevant to the present appeal.

C. Third ground

[35] The third ground reads as follows:

[translation]

3. More specifically, the member based the decision which is the subject of this appeal on incidents that had occurred in November 2006 (paras. 33 to 37 of the determination), whereas the offences are being contested by Jacques Lévesque and pilot Vallantin, and the Transportation Appeal Tribunal has yet to render a decision (paras. 66 and 67 of the determination).

[36] Counsel for the appellant submitted that the review member had based his determination on contested facts. In paragraph 33 of his determination, grounds for cancellation nos. 20, 23, 24 and 25 concerned certain events having occurred on November 15, 19, 20, 25 and 30, 2006. According to the Minister of Transport, Sept‑Îles Aviation and its two pilots, Mr. Lévesque and Christophe Vallantin, had committed several offences under the CARs and the Act. Although these cases were subject to aviation enforcement investigations, the review member was of the opinion that, due to their significance, he had no choice but to consider them in the scope of his determination. Counsel for the appellant submitted that these offences had been contested and that the Tribunal therefore should not have considered these events, since to do so was a serious breach of natural justice.

[37] Furthermore, counsel for the appellant referred us to paragraph 47 of the review determination regarding the two grounds for cancellation of the approval of Mr. Lévesque as operations manager as well as his approval as chief pilot for the company because he had not fulfilled his responsibilities which consisted, among other things, of ensuring a safe operation. Concerning these two grounds for cancellation, Jules Pilon, Regional Manager, Commercial and Business Aviation, Transport Canada, had referred to the events of November 25, 2006 at Sainte‑Anne-des-Monts which were dealt with in the testimony of Normand Audet, Civil Aviation Inspector, Transport Canada. These events had also contributed to the immediate suspension of Sept‑Îles Aviation's AOC on December 7, 2006, as the company had failed to comply with the general conditions of the AOC, in accordance with the CARs.

[38] According to counsel for the Minister, grounds for cancellation nos. 23, 24 and 25 were the elements of the contraventions and had not been contested. In paragraph 66 of his determination, the review member stated that Messrs. Audet and Pilon had given detailed testimony on the events of November 25, 2006. Moreover, the Minister had filed several photographs, in a bundle, of an aircraft belonging to Sept‑Îles Aviation. The review member stated that these photographs had been taken during a landing at Sainte‑Anne‑des‑Monts Airport on November 25, 2006. He added that the Tribunal could not ignore these factors in the consideration and understanding of the conduct of Sept-Îles Aviation and its main principal, Mr. Lévesque, regarding the safety standards required by the CARs.

[39] Further, in paragraph 67, the review member stated that neither Sept-Îles Aviation nor Mr. Lévesque had presented relevant evidence to explain the events from November 15 to 30, 2006, which could have demonstrated that the business was being operated with controls and that it had a certain influence on the actions of its pilots. Finally, according to counsel for the Minister, all of the past actions of Sept‑Îles Aviation and Mr. Lévesque had to be taken into account, not just the events of November 2006.

[40] According to the review member, the grounds for cancellation stated in Transport Canada's notice of cancellation of May 8, 2007, put forward prior to the events of November 2006, had been serious enough to warrant the cancellation of Sept-Îles Aviation's AOC. Even though Sept‑Îles Aviation had complied with Transport Canada following the notices of suspension issued since 1991, the company and its principal, in each case, had gone back to their old operating methods, thereby not complying with the AOC requirements.

[41] The appeal panel concurs with the review member's finding that, in November 2006, the aviation record of Sept‑Îles Aviation showed that Mr. Lévesque was already incapable of fulfilling his responsibilities as chief pilot, operations manager and maintenance manager of his aviation company, even prior to the offences alleged against the company and its principal, including the events of November 25, 2006, at Sainte-Anne-des-Monts Airport.

D. Fourth ground

[42] The fourth ground reads as follows:

[translation]

4. The member erred in considering that Transport Canada had acted reasonably in concluding that allowing Sept-Îles Aviation to continue operating was no longer justifiable, even with one or more new candidates in the positions of chief pilot, operations manager and maintenance manager.

[43] Counsel for the appellant stated that the attitude of Transport Canada was inexcusable. In his view, Sept‑Îles Aviation had been placed in double jeopardy. He could not understand how the review member had arrived at the conclusions set out in paragraphs 68 and 70 of his determination. He stated that Sept‑Îles Aviation's record was free of accidents and that, in its 22 years of operation, the company had committed only minor offences.

[44] Counsel for the Minister replied that it was not necessary to have accidents but that the section addresses an accumulation of sanctions when one is addressing the public interest.

[45] The appeal panel concludes that the principle of double jeopardy does not apply to the facts in this case. The revocation or suspension of a licence permitting a person to engage in a regulated activity does not attract the prohibition against double jeopardy, a principle applicable only to criminal proceedings or other proceedings with truly penal consequences (R. v. Shubley, [1990] 1 S.C.R. 3 at 18, [1990] S.C.J. no. 1 (QL), cited in Boyd v. Canada (Minister of Transport), 2004 FCA 422 in ¶ [1], [2004] F.C.J. no. 2080 (QL)).

[46] When the notice of cancellation of the AOC came into effect on May 22, 2007, the AOC was still subject to a suspension, since Sept-Îles Aviation had failed to meet the conditions for reinstatement listed in the notice of suspension dated December 7, 2006. Consequently, the company had ceased its air transport operations on December 7, 2006.

[47] We accept the reasoning of the review member regarding his findings in paragraphs 68 to 70, where he concluded that the cancellation of the AOC was warranted. We also concur with the conclusion reached in paragraph 65 of his determination to the effect that, because of his aviation record, Mr. Lévesque no longer had the credibility required to fill the positions related to aviation operations, namely, operations manager, chief pilot and maintenance manager. Mr. Lévesque had proposed candidates who were acceptable to Transport Canada. We also agree with the conclusion to the effect that the review member was not satisfied that Mr. Lévesque, as main principal and shareholder of Sept‑Îles Aviation, would have changed his conduct so as to safely manage company operations, maintenance and flight operations in accordance with his AOC and the CARs.

[48] We are of the view that the review member made a reasoned and correct analysis of all relevant facts to this matter. Accordingly, we see no reason to alter the determination that Transport Canada therefore acted reasonably in concluding that the operation of Sept‑Îles Aviation was no longer justifiable, even with one or more new candidates for the positions of chief pilot, operations manager and maintenance manager, if ultimate control of the applicant remained entirely in the hands of its main principal, Mr. Lévesque.

IV. DECISION

[49] The appeal is dismissed. The appeal panel confirms the decision of the Minister of Transport to cancel the AOC of Sept-Îles Aviation, since the public interest and, in particular, the aviation record of the appellant and that of its principal, Jacques Lévesque, warrant it.

March 31, 2008

Reasons for appeal decision by: Faye Smith, Chairperson

Concurred by: John Saba, Member

Howard Bruce, Member