Decisions

TATC File No. Q-3346-41
MoT File No. N5504-61090

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Wendake Hélicoptère Inc.,, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, 602.13(1)


Review Determination
Howard M. Bruce


Decision: February 7, 2008

Citation: Wendake Hélicoptère Inc. v. Canada (Minister of Transport), 2008 TATCE 9 (review)

[Official English translation]

Heard at Québec, Quebec, on November 15, 2007

Held: Based on the particular circumstances of this matter, the decision of the Minister of Transport is confirmed. The total amount of the penalty of $3 750, is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this determination.

I. BACKGROUND
[1] On March 28, 2007, a notice of assessment of monetary penalty was served on the applicant, Wendake Hélicoptère Inc. (Wendake), by the Minister of Transport, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act), alleging that the applicant had contravened section 602.13(1) of the Canadian Aviation Regulations, SOR/96‑433 (CARs).

[2] Annex A of the notice of assessment of monetary penalty reads as follows:

[translation]

On or about August 8, 2006, at approximately 5:23 p.m. (EDST), you conducted a landing of the helicopter registered C-GVDE within a built-up area of town, at or near the Vue Belvédère Motel, at 130 du Quai, St-Siméon, Quebec, without conducting the landing at an airport or military aerodrome, thereby contravening section 602.13(1) of the Canadian Aviation Regulations.

Penalty: $3,750

[3] On April 3, 2007, the Transportation Appeal Tribunal of Canada received a request for review from the applicant.

II. LAW

[4] Sections 7.7(1) and 8.4(1) and (2) of the Act provide as follows:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

[5] Section 602.13(1) of the CARs states as follows:

602.13 (1) Except if otherwise permitted under this section, section 603.66 or Part VII, no person shall conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town, unless that take-off, approach or landing is conducted at an airport, heliport or a military aerodrome.

III. EVIDENCE

A. Minister of Transport

[6] At the beginning of the hearing, the parties informed the Tribunal that they had come to an agreement regarding the admissions as to the facts of this matter. The Minister therefore did not have any witnesses testify, since the facts establishing that an offence had been committed by the applicant were admitted. The agreement reads as follows:

[translation]

· On August 8, 2006, at approximately 5:23 p.m. EDST, the helicopter registered as C‑GVDE landed within a built-up area, behind  the Vue Belvédère Motel, at 130 du Quai, St‑Siméon, Quebec, thereby contravening section 602.13(1) of the CARs.

· On August 8, 2006, at approximately 5:23 p.m. EDST, the helicopter registered C‑GVDE was used by Wendake Hélicoptère Inc.

[7] Given that the Minister established all of the elements of the offence, the Minister has satisfied the burden of proof. Accordingly, pursuant to section 8.5 of the Act, the burden of proof now falls on the applicant. It must establish that it took all of the measures necessary to ensure that its employee, Steve Labranche, would not contravene section 602.13(1) of the CARs.

[8] Section 8.5 of the Act provides as follows:

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.

B. Applicant

(1) Steve Labranche

[9] Mr. Labranche is a helicopter pilot. On August 8, 2006, he was flying the helicopter registered as C‑GVDE, owned by Wendake. He confirmed that on that day, a client was waiting for him in Saint-Siméon to install a probe required for geophysical surveys.

[10] Mr. Labranche testified that before arriving in Saint-Siméon, he had called the Vue Belvédère Motel and he was told that he could land close to the motel. Other helicopters had done so in the past.

[11] Arriving above Saint-Siméon, Mr. Labranche looked for the motel but was unsuccessful. He saw a hotel where a helicopter was already parked, but it was not the Vue Belvédère Motel. He received a telephone call telling him where the motel was located.

[12] In his testimony, Mr. Labranche confirmed that he had immediately noticed that the motel was in a built-up area, but in his opinion and despite this fact, the site appeared to be safe. He asked the motel owner if he could land in this location and the owner responded that he could do so without difficulty. He therefore landed.

[13] Mr. Labranche stated that a Transport Canada representative, René Boudreau, went to the location on August 8, 2006. Mr. Boudreau informed him that he was in a built-up area. In order to take-off, Mr. Labranche was required to request a special authorization from Transport Canada. A copy of this authorization was filed in evidence (exhibit D-1).

[14] Mr. Labranche confirmed that he knew it was illegal to land at this location. An excerpt from Wendake's operations manual (exhibit D-2), clearly establishing this fact at section 5.1.1, was filed in evidence. Mr. Labranche indeed confirmed that he did not usually do such things and that he had not consulted the company before making his decision.

[15] Finally, Mr. Labranche pointed out that he has no duties involving pilot management or disciplinary control within the company. He is simply a salaried pilot.

[16] During the Minister's cross-examination, Mr. Labranche pointed out that he is a minority shareholder in Wendake and holds 30% of its shares. Further, he confirmed that he held the position of maintenance manager. However, certain responsibilities relating to maintenance follow-up are delegated to a third-party company. The Minister had the company's organization chart from its maintenance control manual (exhibit M‑1) which was accepted and filed in evidence. According to this organization chart, Mr. Labranche is the maintenance manager.

[17] Mr. Labranche testified that he has more than 2 000 hours of experience in regard to geophysical surveying of land. It involves surveying an area at a distance of approximately 100 feet with a probe attached to the lower part of the helicopter.

[18] Mr. Labranche confirmed that he had landed once at the motel before attaching the probe to the helicopter for take-off. It was only after he landed the second time that he obtained authorization from Transport Canada for the third and final take-off. The Minister filed in evidence a series of photographs indicating where the helicopter had landed (exhibit M-2).

[19] When he was cross-examined by the Minister regarding the reasons that had prompted him to land at this location, while he was aware that he was in a built-up area, Mr. Labranche replied that he had done so to help the client who was waiting for him. It was at this location that he attached the probe to carry out work that would take at least four hours.

[20] The Minister also filed in evidence the helicopter's journey log, according to which Mr. Labranche had arrived in Saint-Siméon from Val-d'Or (exhibit M-3), as well as an excerpt from Wendake's operations manual (exhibit M-4).

(2) Steeve Gros-Louis

[21] Steeve Gros-Louis is the President of Wendake and is manager of operations and chief pilot. He confirmed that he is the majority shareholder of the company.

[22] In his duties as manager of operations, Mr. Gros-Louis establishes company policies and manages all of the operations activities.

[23] Mr. Gros-Louis was aware that Mr. Labranche was going to Saint‑Siméon on the day that the event occurred, but he did not know where Mr. Labranche would be staying during his visit. He confirmed that on August 8, 2006, he was in a prospecting camp in Raglan, in Northern Quebec, where there was no means of communication, except a satellite telephone belonging to the client he was serving at that time.

[24] Mr. Gros-Louis stated that, in the context of his duties, Mr. Labranche is a pilot and has no authority over other pilots. In regard to flight following, when Mr. Gros-Louis is in a location where it is impossible to reach him, the authority is delegated to the pilot.

[25] After being informed of the facts surrounding the incident of August 8, 2006,
Mr. Gros-Louis verbally reprimanded Mr. Labranche. Upon returning to the office, he wrote a memorandum to all of the pilots to remind them of the procedure to follow in similar cases (exhibit D-3).

[26] After receiving the notice of assessment of monetary penalty from Transport Canada,
Mr. Gros-Louis contacted his representative, Brian Jenner. Mr. Jenner advised him not to take any disciplinary action before the end of the investigation. On September 20, 2006, Mr. Gros‑Louis informed Transport Canada of the advice that he had been given by his representative in the context of the regulatory investigation involving Wendake (exhibit D‑4).

[27] On September 28, 2006, Yves Gosselin, the Regional Director of Civil Aviation at Transport Canada, sent an e-mail to Mr. Jenner to confirm the applicant's right to silence in this matter (exhibit D‑5).

[28] On November 8, 2007, once the investigation was finished, Mr. Gros-Louis confirmed that the applicant had imposed a penalty of $1 000 on Mr. Labranche, as a disciplinary measure for having violated company policy (exhibit D-6).

[29] On cross-examination, Mr. Gros-Louis explained that one of his responsibilities as the company manager was to establish standards and procedures and to keep up to date on the company's activities. He confirmed that on the day of the incident, when he was in Raglan, the responsibility had been delegated to the pilot.

IV. ARGUMENTS

A. Minister of Transport

[30] For all of the elements of the offence that were admitted by the applicant, the Minister submits that the burden of proof is reversed in accordance with section 8.5 of the Act.

[31] Pursuant to this section, once the party alleging a contravention has established the elements of strict liability, the alleged contravener must establish on a balance of probabilities that he exercised all due diligence to prevent the contravention.

[32] The Minister states that there was no mistaken identity in this matter, as the company's liability was determined pursuant to section 8.4(2) of the Act, which provides that an allegation may be brought against an operator and an owner.

[33] According to the Minister, the applicant's defence of due diligence must fail. Mr. Labranche is an officer of the company as maintenance manager and holds 30% of its shares.

B. Applicant

[34] The applicant reiterates that all of the elements of the offence are admitted and that Mr. Labranche was a sincere and clear witness who stated that he had erred in good faith. He sincerely believed that the motel was a safe landing place. He claims to have made a poor decision in the heat of the moment and acknowledges that this manner of proceeding was contrary to the applicant's policies.

[35] The applicant claims that the due diligence defence may be raised in this matter. Mr. Labranche does not have any position of authority with the company.

[36] Further, according to the applicant, the standard of application in matters of due diligence does not contemplate perfection. The applicant refers to a decision of the Tribunal, Nav Canada v. Canada (Minister of Transport), [2005], appeal decision, O‑2928‑41 (TATC), [2005] C.T.A.T.D. no. 27 (QL), stating that we cannot set an unreasonable standard of due diligence.

[37] It is important for the applicant that the Tribunal consider the nature of its activities and the fact that it is a small business.

[38] The applicant relies on Canada (Minister of Transport) v. Arctic Wings Ltd., [2004], review determination, W-2902-41 (TATC), to argue that the company cannot be held liable for a bad decision made by one of its pilots. In this case, Mr. Labranche is not an officer of the company and has no decision-making authority with this company. For the applicant, being a minority shareholder does not amount to being an officer of the company.

V. DISCUSSION

[39] Section 8.5 of the Act codifies the due diligence defence set out in R. v. Sault Ste-Marie (Ville), [1978] 2 S.C.R. 1299. Canada (Minister of Transport) v. Air Satellite Inc., [2000], review determination, Q-1901-37 (CAT), [2000] C.A.T.D. no. 15 (QL), states the following regarding the requirements of section 8.5 of the Act:

55 Section 8.5 of the Aeronautics Act is a legislative provision that echoes the defence of due diligence set out in the Sault Ste. Marie decision. Based on the ruling in R. v. Gonder, (1981) 62 C.C.C. (2d) 326, this Tribunal has already found (see Canadian Regional Airlines (1998) Ltd. v. Minister of Transport, ((1993) CAT File No. C-0225-50 and (1998) CAT File No. W-1536-50) that in order to assess the due diligence applicable, it is necessary to examine the general standard of reasonable care in the sphere of activity in question as well as the particular circumstances of the case that are apt to require a standard of care other than what is usual. As Stuart J. discussed in the Gonder decision, the element of proof concerning standard practice is just one of the important elements of this criterion. The ultimate test is the degree of due diligence required in the circumstances of each case.

56 According to this decision, the degree of care warranted in each case is principally governed by the following circumstances:

(a)  gravity of potential harm;

(b) alternatives available to the accused;

(c) the likelihood of harm;

(d) degree of knowledge or skill expected of the accused;

(e) extent underlying causes of the offence are beyond the control of the accused (p. 332 of the Gonder decision).

[40] The interpretation and the application of section 8.5 of the Act require that the Tribunal determine Mr. Labranche's status with the applicant.

[41] In fact, Monger v. Canada (Minister of Transport), [2000], review determination, Q‑1974‑02 (CAT), [2000] C.A.T.D. No. 57 (QL), sets out  as follows:

152 Now, the respondent has the obligation to provide the services of qualified pilots who abide by the regulations, and to monitor their performance and operations. If it does not do so, it is at its peril, especially when one of its directors is himself at fault.

[42] In his testimony, Mr. Labranche confirmed that he was flying the applicant's helicopter at the time of the incident that is the subject of this determination.

[43] On cross-examination, Mr. Labranche confirmed that he is not only a pilot but also a minority shareholder of the applicant. He holds 30% of its shares and holds the position of maintenance manager.

[44] The applicant's organization chart (exhibit M-1) properly describes Mr. Labranche's duties as maintenance manager. This document also contains a detailed list of the duties of maintenance manager, the description reads as follows:

[translation]

The maintenance manager is responsible for the planning and control of all the maintenance carried out on the company's aircraft. The maintenance manager ensures communication with Transport Canada regarding any subject involving maintenance as well as the contracting A.M.O. regarding any subject and maintenance release.

[45] The Tribunal determines that Mr. Labranche is more than a mere salaried employee of the company. The position of maintenance manager with a company in the field of aviation is of great importance and carries a high degree of responsibility. Further, the fact that Mr. Labranche is also a company shareholder confers on him certain authority over the other pilots and employees of the company. Mr. Labranche is therefore intimately connected with the company; he is one of its officers.

[46] The Tribunal finds that the applicant can hardly raise the due diligence defence, since the alleged act was committed by one of its officers.

[47] Further, the company's management and operations organization chart (exhibit M‑4) clearly indicates at section 5.1.1 that, if a pilot wishes to land in a built-up area, he must first obtain the Minister's authorization.

[48] This fact was acknowledged by Mr. Labranche, who admitted that he knew he was going against the CARs and the company's policies when he landed in a built-up area on the day of the incident.

[49] Finally, the testimony of Mr. Gros-Louis confirmed that when he was in Raglan on the day of the incident, he had delegated his operations authority to Mr. Labranche.

[50] In its memorandum dated September 5, 2006 (exhibit D-3), the applicant reminded its pilots of the importance of respecting the rules regarding built-up areas and the company's policy on this point. However, it must be noted that this memorandum was written after the incident that is the subject of this determination.

[51] Applying the requirements of Air Satellite Inc., supra at ¶ [39], the Tribunal considers that the degree of diligence which would have been required is relatively high if we take into account the factors set out in the following paragraphs.

[52] The gravity of potential harmThe Minister's evidence clearly establishes that the helicopter landed in a built-up area, where there was a high risk of harm – not only material but physical – for the persons there.

[53] The alternatives available to the accused – There were many such alternatives. Mr. Labranche clearly testified that there were other locations outside the built up area where he could have landed. However, although he knew that he did not have the right to land at this location, he chose to do so to help his client who was waiting for him to install the probe required for geophysical surveys.

[54] The likelihood of harmThis likelihood was quite high. The photographs (exhibit M-2) indicate not only the presence of electrical wires but also vehicles, children and many houses.

[55] The degree of knowledge or skill expected of the accused On this point, the degree of knowledge or skill we would have been entitled to expect of Mr. Labranche, as an officer and shareholder of the company, is higher than the degree that we might expect of a mere pilot. As an officer of the company, Mr. Labranche has specific responsibilities regarding maintenance. We can therefore expect that he would know all of the rules and policies of the company and apply them.

[56] The extent to which the underlying causes of the offence are beyond the control of the accusedIt should be noted that the underlying causes of the offence are not at all independent of the accused's control. He made a free and enlightened decision to land, despite the fact that he was well aware that he was in a built up area, simply to avoid inconveniencing the applicant's client who was waiting for him on the ground.

[57] Aside from the excerpt from the operations instructions filed in the record, the applicant did not advance any measure taken that would establish that it acted with due diligence to prevent one of its officers from committing an offence.

[58] In Arctic Wings Ltd., cited above in ¶ [38], the Tribunal asked: "What more could Arctic Wings have done in the circumstances?" In this matter, aside from the company's operations manual and the memorandum that was written after the incident, there was no evidence provided or gesture made by the company constituting due diligence, including taking all of the proper precautions to prevent one of its officers and shareholders from committing an offence.

VI. DECISION

[59] The facts constituting the offence were admitted by the applicant and the alleged acts were committed by a person intimately connected with the officers of the company, with no evidence of due diligence pursuant to section 8.5 of the Act. Accordingly, the Minister of Transport's decision is upheld and the penalty of $3 750 is confirmed.

February 7, 2008

Howard Bruce

Member