Decisions

CAT File No. W-1443-41
MoT File No. SAP-6504-C5319-29182

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Buffalo Airways Ltd., Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s.7.7
Canadian Aviation Regulations, SOR/96-433, s. 703, 704, 705.43(2)

Safety Briefing of Passengers, Due Diligence, Defenses


Review Determination
Faye H. Smith


Decision: September 23, 1997

Subsection 705.43(2) of the Canadian Aviation Regulations requires that air operators ensure that required safety briefings be given in English and in French. No exception or exemption was sought or given in this case. I have no option but to confirm the decision of the Minister of Transport to assess a penalty in the amount of $500.00. This amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this Determination.

This matter came on for a Review Hearing at the offices of Indian and Northern Affairs Canada, Yellowknife, N.W.T., September 16, 1997 at 10:00 hours.

PRELIMINARY MOTION

At the commencement of the hearing Mr. MacNab made a motion to amend the Notice of Assessment of Monetary Penalty to delete the reference to "Designated Provisions Regulations, SOR/86-596 (Air Regulations, Series 1, Number 3)" and to substitute "Canadian Aviation Regulations, section 103.08, Designated Provisions." There was no objection, and the motion to amend was granted.

THE LAW

Subsections 705.43(1) and (2) of the Canadian Aviation Regulations (CARs):

705.43 (1) An air operator shall ensure that passengers are given a safety briefing in accordance with the Commercial Air Service Standards.

(2) An air operator shall ensure that the safety briefing referred to in subsection (1) is given in English and French.

CASE FOR THE MINISTER

Transport Canada's representative filed three Secretary's Certificates, one attesting to Buffalo Airways Ltd. being the registered owner of aircraft C-GPNR, a second being the Air Operator Certificate for that aircraft, as well as a third indicating that no authorization had been granted to permit the operation of DC-3 aeroplanes pursuant to sections 703 and 704 of the Canadian Aviation Regulations.

In addition to the documentary evidence filed, the Minister called one witness, Ms. Jennifer Johnston who is employed as a Regional Superintendent, Cabin Safety, Transport Canada Aviation, in Edmonton, Alberta. As part of her duties Ms. Johnston carries out inspections of airlines regarding cabin safety issues. She indicated by way of background that she has worked at Transport Canada for twelve years and prior to that time had been a flight attendant for eleven years.

Ms. Johnston recalled having notified Buffalo Airways Ltd. that she would be in Yellowknife and would be doing a routine inspection of the air carrier. She further indicated that Flight Number 171/172 referred to above was a commercial flight with passengers. She stated that she knew there were more than twenty seats as she recalled having counted them.

It was the evidence of Ms. Johnston that on November 13, 1996 she carried out an inspection of Buffalo Airways Flight 171/172 being a DC-3 registered as C-GPNR at Yellowknife (Fort Simpson – Yellowknife route). Ms. Johnston listed the deficiencies found in her inspection in a document signed by her following the inspection and filed as Exhibit M-1 being the Passenger Safety Cabin Inspections Report. The entry relevant to our hearing today is that: "safety announcements were not done in French language per CAR 705.43(2)."

It was the evidence of Ms. Johnston that all of the pre-flight and in-flight announcements were given in the English language only.

The Minister urged that a violation of subsection 705.43(2) has been established on a balance of probabilities in that flight announcements were not provided in the French language on flights 171/172 by Buffalo Airways Ltd. on the relevant date. At that time, the section was binding on all air carriers having come into force with the implementation of the Canadian Aviation Regulations and had been contained in the prior legislation as at March of 1996. The Minister's representative stated that it was incumbent on the air carrier to provide the briefings in both official languages to ensure the maximum safety. It was his view that the penalty of $500.00, where the maximum was $1,250.00 for a corporation, was sufficient as a deterrent.

THE DEFENCE

By way of defence, Mr. Vanderaegen advised the Tribunal that the fact of the flight was not in dispute. He wanted to advise the Tribunal of the extenuating circumstances that contributed to this occurrence, and to do so, he called Mr. Garrett Pigden as his witness.

Mr. Pigden stated that he had been employed by Buffalo Airways Ltd. for a period of four years, during three of which he occupied the position of Chief Flight Attendant. The duties of this position included keeping manuals up to date, training of flight attendants and performing checks.

It was the evidence of Mr. Pigden that he now knows that flight announcements were to have been given in French as at March of 1996, although at the relevant time in November of 1996, he believed it to be required as at October 1996[1]. He further indicated that with the implementation of the legislative changes of October 1996, it was necessary to rewrite the Flight Attendant Manuals and that this was his first priority. Mr. Pigden stated that some carriers were disputing the requirement for French language briefings and that he thought he had more time to deal with it.

When he received a letter from Aviation Enforcement in December of 1996, it was apparent to him that the requirement for flight announcements in French was a priority; thus he wrote them out in English and sent them to Transport Canada for approval prior to sending them for translation. Evidently, Mr. Pigden encountered some delays as Ms. Johnston was on leave, and his other contact at Transport Canada was unable to approve the format. Ultimately the announcements were approved as translated and provision for their use was made as set out in a letter dated March 24, 1997, addressed to Jennifer Johnston and signed by Mr. Pigden, filed as Exhibit D-1 herein.

Mr. Vanderaegen, on behalf of the air carrier, stated that there is no question of whether the section was breached. He stated that, due to the timing of the regulations in March and the changes coming in with the Canadian Aviation Regulations in this same time frame, the problem was that a person in the company had not set the right priorities, and there was some confusion. On the issue of a penalty, he urged that the Tribunal not increase the amount.

CONCLUSION

Subsection 705.43(2) of the CARs as set out above requires that air operators ensure that required safety briefings be given in English and in French. No exception or exemption was sought or given in this case. While the representative of the air carrier made a valiant attempt to explain the confusion which was occurring at the time, I believe this falls short of establishing a defence of due diligence, as to be duly diligent one would have to be aware of the existence of the regulation which does not appear to be the case.

DETERMINATION

While I have some sympathy for the burdens occasioned by changing legislation, I have no option in this matter but to confirm the decision of the Minister of Transport to assess a penalty in the amount of $500.00.

Faye Smith
Chairperson
Civil Aviation Tribunal


[1] With the implementation of the Canadian Aviation Regulations