Decisions

TATC File No. W-3117-52
MoT File No. R4200-102-FORSTER P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Robert Forster, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Security Regulations, SOR/2000-111, s. 41


Review Determination
T. Richard Turner


Decision: May 20, 2005

I find that Mr. Robert George Forster did contravene section 41 of the Canadian Aviation Security Regulations and I confirm the Minister's decision to assess a monetary penalty of $75.00. This amount is to be made payable to the Receiver General for Canada and must be received by the Tribunal within thirty-five days of service of this determination.

A review hearing on this matter was held Wednesday, April 27, 2005 at 10:00 hours, at the Federal Court of Canada, in Calgary, Alberta.

There was a pre-hearing Agreed Statement of Fact between the applicant and the respondent dated April 27, 2005 which was signed by both parties. There were no motions.

BACKGROUND

On January 4, 2005, a monetary penalty of $75.00 was assessed against Mr. Forster, the applicant, pursuant to section 7.7 of the Aeronautics Act, by the Minister of Transport alleging that Mr. Forster had contravened the following provision(s):

On December 30, 2004, at approximately 11:00 a.m., at the Calgary International Airport, in the Province of Alberta, Robert Forster remained in a restricted area, to wit: Air Canada baggage make-up area – main terminal – Calgary International Airport, without his restricted area pass visibly displayed on his outer clothing, contrary to Subsection 41, Canadian Aviation Security Regulations.

AGREED STATEMENT OF FACT

The case presenting officer, Mr. Jeffrey Viens, and the applicant, Mr. Robert Forster, both stated on the record that each had read the Agreement Statement of Fact dated April 27, 2005 which both had signed. With the consent of Mr. Forster, the Agreement Statement of Fact was read by Mr. Viens into the record and a signed copy was given to each party and entered as Exhibit M-1.

This Agreement Statement of Fact, therefore, by consent, established all elements of this offence alleged by the Minister except for proving that Mr. Forster's restricted area pass was not visibly displayed on his outer clothing while he remained in the restricted area.

OPENING STATEMENTS

The Minister

Mr. Jeffrey Viens restated the elements of the Notice. He went on to say that Mr. John Steele, Transport Canada Inspector, observed Mr. Forster with his restricted area pass obscured by outdoor winter clothing. Mr. Steele also found Mr. Forster to be uncooperative when asked to produce his restricted area pass for inspection by him.

THE MINISTER'S CASE

Mr. John Thomas Steele was called by Mr. Viens and sworn as a witness. He stated that he was a security inspector for Transport Canada and was employed by Transport Canada on December 30, 2004.

Mr. Steele testified that it was a very cold day in Calgary with temperatures of approximately -15 to -16 degrees Celsius. He was wearing, in addition to his warm clothing, a brightly coloured vest.

He stated that at approximately 10:30 a.m. on December 30, 2004, he was conducting a patrol of restricted areas outside on the apron at the Calgary International Airport. The purpose of the patrol was to ensure that staff was displaying the restricted area passes as required. He detailed the various areas he visited at the airport for this purpose.

Mr. Steele stated that he observed several employees of various airlines without their restricted area passes visibly displayed; but as each of these ramp employees saw him approach in a very brightly coloured jacket which clearly identified him as a Transport Canada inspector, they pulled out their lanyards from within their outer warm clothing to ensure that the restricted area pass, which was attached to the lanyard, was properly visible. He testified that it was common for employees that are in a restricted area ensure that their restricted area passes are clearly visible when they see a Transport Canada inspector in the area undertaking a patrol.

Mr. Steele stated that at the north of Concourse A, staff from Air Canada process baggage for flights at Calgary International Airport. He testified that as he was proceeding from north to south and about 30 feet away from this baggage area, he noticed Mr. Forster sitting on a tug with a train of luggage carts attached to the tug behind him. Mr. Forster had not yet begun to drive the tug at this point.

Mr. Steele stated that Mr. Forster had on Air Canada clothing complete with an outer jacket that was zipped up to the top of the zipper. As he moved towards Mr. Forster, Mr. Steele stated that Mr. Forster saw him at approximately 20 feet of distance. He stated that Mr. Forster looked up at the ceiling at this point and did nothing else. When Mr. Steele was beside the tug on which Mr. Forster was sitting, he did nothing to display his restricted area pass.

After asking Mr. Forster for his restricted area pass, Mr. Steele stated that he did not immediately produce it. After a few moments, he did produce a lanyard to which many cards were attached, including a white access card. When Mr. Forster held out the lanyard, the restricted area pass was not clearly visible.

Mr. Steele stated that Mr. Forster made comments concerning a lack of care by the inspector with respect to the temperature. Mr. Steele then asked to see the restricted area pass once again and Mr. Forster then tossed his lanyard, together with all the various passes attached to it, onto the hood of the tug.

Mr. Steele stated that he did then view the restricted area pass as he removed the lanyard from the hood of the tug and that he recorded the infraction on a piece of paper. During this time, Mr. Forster continued to talk to Mr. Steele. Mr. Steele then told Mr. Forster that he was going to assess a $75.00 penalty.

After this brief exchange, Mr. Steele returned the passes and the lanyard to the hood of the tug and then left.

Mr. Steele stated that when he walked away from the tug, Mr. Forster also left the area. A few moments later, Mr. Forster approached Mr. Steele in a different location and wanted to talk again about the assessment of a monetary penalty. Mr. Steele testified that he simply walked away and later processed the appropriate paperwork in the prescribed way for such an offence.

Mr. Steele testified that after approximately two weeks, he checked the website at Canada Post to determine whether or not Mr. Forster had indeed picked up the registered letter which was sent to him by Mr. Steele concerning this incident. He had not.

Accordingly, Mr. Steele testified that he then went to Calgary International Airport to find Mr. Forster to serve him personally.

He found Mr. Forster under Concourse A nearest to Jetway A-12. Mr. Steele told him that he was being served for the incident on December 30, 2004. At this point he noticed that Mr. Forster had not properly displayed his restricted area pass, even though his coat appeared to have a plastic pocket designed for such a use. The restricted area pass was not visible.

Mr. Steele testified that he served Mr. Forster the papers.

As Mr. Steele was leaving Mr. Forster after this interaction, he noticed that the restricted area pass was on the floor of the cart that was behind the tug.

Following this testimony by Mr. Steele, Mr. Viens asked about the other employees at the time Mr. Forster was served. Mr. Steele testified that all other employees had their restricted area passes displayed. He said that Mr. Forster made no effort to pull out his pass and did not appear to want to.

THE APPLICANT'S CASE

Mr. Forster was sworn as a witness.

Mr. Forster testified that he works at a job where he is outside and inside in differing temperatures where there is a constant layering of clothing to keep either warm or cool. He testified that on December 30, 2004, it was a very cold day. He further testified that the inside room temperature was a comfortable temperature.

Mr. Forster stated that when, on that day and at that time, his tug was stopped with the baggage carts behind it at the belt at the baggage area, he noticed Mr. Steele for the first time. He denied that he saw Mr. Steele from a distance as Mr. Steele had testified.

Mr. Forster testified that the lanyard with his restricted area pass attached had been under his coat and not visibly displayed because it was cold outside. Mr. Forster stated that he could see that he was going to be fined, so he chose to toss it at Mr. Steele when asked for it by him. He further stated that he threw the pass at Mr. Steele because he was not allowed to distribute the luggage to passengers and he knew that they were waiting inside the passenger terminal.

Mr. Forster further testified that he chose to fight this sanction because he sees people all the time without the restricted area passes properly visible.

Mr. Forster stated that the identification was under his parka and that the identification was not clearly visible. He reiterated that others have a similar method of keeping their passes during cold weather, even though they are not visible either. Mr. Forster also stated that he felt it was not safe to pull out his pass when driving a tug, as he is concentrating on driving rather than having his restricted area pass visible. He mentioned that the company for whom he worked focuses on safety and that he felt this was more important than to have his restricted area pass clearly visible as required. He felt that Mr. Steele did not give him adequate opportunity to show his pass during the encounter.

Cross-examination

Mr. Viens asked Mr. Forster if he had to remove his parka to show his restricted area pass and Mr. Forster replied that no, he did not; but he had to retrieve it because the clothing was layered on top of it. Upon questioning, he further testified that he did not see Mr. Steele approach him and relies on the fact that Mr. Steele wears a very brightly coloured vest and would have seen him had he been close enough.

FINAL ARGUMENTS

The Respondent

Mr. Viens reviewed the evidence that had been presented by the Minister and Inspector Steele. He stated that through the Agreement Statement of Fact and the direct evidence by Mr. Steele, that all elements of the Notice had been proved.

Mr. Viens stated that the due diligence defence offered by Mr. Forster fails because he had not exercised all due diligence to prevent the contravention as required under section 8.5 of the Aeronautics Act. Mr. Viens also stated that Mr. Forster had testified that he had to unzip his parka to show the pass, which he failed to do, but could have done.

Mr. Viens stated that on a balance of probabilities, he had proven his case.

In terms of penalty, Mr. Viens spoke to the need for aerodrome security and why restricted area passes are issued and are important to display visibly. He stated that the maximum penalty under the Aeronautics Act is $5,000 and that $75.00 was appropriate for this occurrence.

The Applicant

Mr. Forster stated that he had not intended to show disregard for security and understood its importance. He stated that he has lost pieces of identification of various types before and was concerned about losing them again. He further stated that he has lost and found his restricted area pass and other passes from time to time over 32 years in the job at two international airports. He said that he had tried to use a different method to attach the pass to outer clothing; but it was not effective, given the nature of his job. He said that no existing system of attachment seems to work as passes are either not visibly displayed or fall off.

THE LAW

The Canadian Aviation Security Regulations, Part 3, Aerodrome Security, Control of Access to Restricted Areas:

41. A person must not enter or remain in a restricted area unless the restricted area pass issued to the person is visibly displayed on the person's outer clothing.

DISCUSSION

The Agreement Statement of Fact clearly, by consent between the parties, puts Mr. Forster in a restricted area at the Calgary International Airport on December 30, 2004 at approximately 11:00 a. m. It also puts ownership of restricted area pass number 69704 on Mr. Forster. These facts are not in doubt or disputed. The Agreed Statement of Fact does not deal with the restricted area pass being visible on a person's outer clothing.

Before I permitted the Agreement Statement of Fact to be entered as Exhibit M-1, I questioned Mr. Forster on the record to ensure that he understood what this document did. He told me that he understood and agreed with what it said. He signed the document in front of me and allowed Mr. Viens to read it into the record. I am satisfied that he knew what he was signing and the impact of it on his Hearing.

Mr. Steele gave testimony from both his memory and from detailed written notes to which he referred several times.

Mr. Steele is a Transport Canada inspector that I believe has some experience in these matters. He testified that he was on a patrol on December 30, 2004 at about 10:30 a.m. at the Calgary International Airport. He testified that he wore a brightly coloured vest that lets everyone know who he is and presumably what he is doing. He stated that he observed many employees working without their restricted area passes clearly visible on outer clothing but each rectified that matter by pulling out their lanyard when they saw Mr. Steele. I gather that this is common practice, certainly at Calgary.

Mr. Steele testified that the encounter with Mr. Forster was not entirely pleasant and gave me a complete story on the issue of the restricted area pass not being visible and Mr. Forster's attitude. Through Mr. Steele's testimony, I find that the Minister proved the missing element from the Agreement Statement of Fact. I believe that the Minister proved all elements of the offence.

Mr. Forster does not deny that the restricted area pass was not clearly visible on his outer clothing. It is clear to me that he intends to rely on a due diligence defence. He stated that he was and is unable to always have the restricted area pass visible on his outer clothing because of the nature of his job and the nature of the weather in Calgary. He stated that it is difficult to comply because if the lanyard with the restricted area pass is on the outside of outer clothing in the winter it gets in the way of him performing his job. He also stated that for safety reasons, he is not always aware of an inspector conducting a patrol. He stated that he puts safety before compliance in this instance and infers that his employer does as well.

I found Mr. Forster's demeanor to be one of defiance and difficulty. I do not believe he felt responsible for the infraction and was content to blame it on cold weather. I do not believe that he will behave any differently in the future nor attempt to find solutions to the problem of visibly displaying the restricted area pass as required. I believe he relies on not getting caught. His behavior with Mr. Steele was not denied by him and I can see how that behavior would exist after watching him at the Hearing. I believe he gave lip service to the need for security during his closing statement.

Mr. Forster has been employed at international airports for 32 years and must surely know that, on air-side, security is very important. His tossing of the lanyard at Mr. Steele speaks volumes about his attitude about security.

I have read the case of Minister of Transport v. Roy Joseph Eisenrieder and the appeal decision[1]. I find that the fact pattern in the subject case to be different because of the demeanor of the individual and difference in the willingness to conform to what is the law with respect to the visibility of restricted area passes on the person.

I do not find that the due diligence defence in this matter holds nor do I find mitigating circumstances which are relevant.

DETERMINATION

The Minister has proved the offence as alleged and the sanction of $75.00 is confirmed.

May 20, 2005

T. Richard Turner
Member
Transportation Appeal Tribunal of Canada


[1] Minister of Transport v. Roy Joseph Eisenrieder, review determination, [2003], appeal decision [2004], C‑2839‑52.