Decisions

TATC File No. Q-3402-41
MoT File No. N5504-61938

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. 1985, c. A-2, 7.7
Canadian Aviation Regulations, SOR/96-433, 602.86(1), 703.37(2), 703.86


Review Determination
Suzanne Racine


Decision: April 9, 2008

Citation: 2431-9154 Québec Inc. v. Canada (Minister of Transport), 2008 TATCE 19 (review)

[Official English translation]

Heard at Sept-Îles, Quebec, on January 29, 2008

Held: I confirm, with the following modification, the decision of the Minister of Transport as set out in the notice of assessment of a monetary penalty:

Offences 1 and 2 – The penalties of $3750 each for the contraventions of section 602.86(1) of the Canadian Aviation Regulations are confirmed, for a total of $7500.

Offence 3 – The penalty of $5000 for the contravention of section 703.37(2) of the Canadian Aviation Regulations is confirmed.

Offence 4 – The penalty of $5000 for the contravention of section 703.86 of the Canadian Aviation Regulations is reduced to $2500.

The total amount of $15 000 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of the service of this determination.

I. BACKGROUND

[1] On August 14, 2007, the Minister of Transport issued a notice of assessment of monetary penalty to the applicant, 2431‑9154 Québec Inc., doing business as Sept-Îles Aviation Enr., alleging that it contravened sections 602.86(1), 703.37(2) and 703.86 of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act).

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

[translation]

You have contravened the following sections of the Canadian Aviation Regulations:

1. On or about November 19, 2006, around 2:23 pm EDT, at or near Ste-Anne-des-Monts, you did operate the aircraft registered as C-GCXF with carry-on baggage, equipment and cargo on board that were not restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence, thereby contravening section 602.86(1) of the Canadian Aviation Regulations.

Penalty: $3750

2. On or about November 25, 2006, around 2:30 pm EDT, at or near Rivière aux Saumons, you did operate the aircraft registered as C-GCXF with carry-on baggage, equipment and cargo on board that were not restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence, thereby contravening section 602.86(1) of the Canadian Aviation Regulations.

Penalty: $3750

3. On or about November 25, 2006 around 2:30 pm EST, at or near Rivière aux Saumons, Quebec, as an air operator of the aircraft registered as C-GCXF, you did not have a weight and balance system that met the Commercial Air Service Standards, in that the configuration of the seats used for the calculation was not that of the aircraft, thereby contravening section 703.37(2) of the Canadian Aviation Regulations.

Penalty: $5000

4. On or about November 19, 2006, around 2:23 pm EST, near Ste-Anne-des-Monts, Quebec, as an air operator, you did operate an aircraft with passengers on board in an IFR flight with fewer than two pilots while not complying with the Commercial Air Service Standards in that the pilot, Christophe Vallantin, had not successfully completed a single pilot proficiency check, thereby contravening section 703.86 of the Canadian Aviation Regulations.

Penalty: $5000

[3] On August 28, 2007, the applicant filed a request for review of the decision of the Minister of Transport.

II. LAW

[4] Section 7.7 of the Act provides the following:

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

(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate

(a) the designated provision that the Minister believes has been contravened;

(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and

(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.

[5] Sections 602.86(1), 703.37(2) and 703.86 of the CARs read as follows:

602.86 (1) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board, unless the carry-on baggage, equipment and cargo are

(a) stowed in a bin, compartment, rack or other location that is certified in accordance with the aircraft type certificate in respect of the stowage of carry-on baggage, equipment or cargo; or

(b) restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

...

703.37 (2) An air operator shall have a weight and balance system that meets the Commercial Air Service Standards.

...

703.86 No air operator shall operate an aircraft with passengers on board in IFR flight with fewer than two pilots unless the air operator

(a) is authorized to do so in its air operator certificate; and

(b) complies with the Commercial Air Service Standards.

III. AGREEMENT BETWEEN THE PARTIES

[6] In a letter dated March 8, 2007, sent to Inspector Guy Hamel of Transport Canada, the owner of the applicant, Jacques Lévesque, confirmed the following facts in answer to a letter from Inspector Hamel, dated February 12 (exhibit M-1):

· Christophe Vallantin did not tie down the carry-on baggage during the flights mentioned in offences 1 and 2;

· He failed to disclose to the representative of Transport Canada the weight and balance report for the flight mentioned in offence 3;

· He operated an aircraft in IFR flight (instrument flight rules) in the conditions mentioned in offence 4, erroneously believing that he had successfully completed his single pilot proficiency check, which would have authorized him to operate this flight.

[7] I also conclude that the dates, times and operation of the aircraft registered as C-GCXF are uncontested facts.

IV. EVIDENCE

A. Minister of Transport

(1) Offences 1 and 2

[8] During the testimony of Guy Hamel, an inspector for Transport Canada, the Minister submitted in evidence the statements of two passengers, Laurie-Ève Dechamplain and Marc Beaulieu, who were on board the aircraft registered as C-GCXF on November 19 and 25, 2006. According to these two witnesses, the carry-on baggage was not tied down during these two flights (exhibit M-2).

[9] During the testimony of David Deslauriers, an inspector for Transport Canada, the Minister submitted in evidence 12 colour photocopies of photographs taken on November 25, 2006, at around 10:25 a.m., local time, while the witness was on the apron of the Sainte-Anne-des-Monts Airport (exhibit M-4). The aircraft was returning from Rivière aux Saumons with passengers and considerable carry-on baggage. The Minister also submitted in evidence the inspection report of Mr. Deslauriers (exhibit M-3).

(2) Offence 3

[10] Normand Audet, an inspector for Transport Canada, testified that he was with Inspector Deslauriers on the apron of the Sainte-Anne-des-Monts Airport on November 25, 2006, at around 10:25 a.m., local time. He remembered that there was considerable baggage stacked in the cabin and none of it was tied down. The baggage was piled in such a way as to obstruct the only passenger exit door (exhibit M-3). Because he had doubts about the load of the aircraft, Inspector Audet requested that the pilot-in-command provide him with the aircraft's weight and balance report. Since the pilot-in-command did not have the document on hand, he suggested giving it to him later. Inspector Audet submitted in evidence the weight and balance report as well as the flight plans for the four segments flown by aircraft C-GCXF on November 25, 2006 (exhibit M-5). Pages 7 to 9 deal with the data relevant to the flight to which the offence pertains.

[11] The witness drew the Tribunal's attention to the upper part of page 8. The figure "8", which represents a standard eight-seat configuration, was struck out and replaced by the figure "6", to indicate a standard six-seat configuration. The mention of a rear double seat in the aircraft configuration was also struck out to show that the configuration involved only six seats. According to Inspector Audet, the applicant's weight and balance report allows for the following three configurations: stretcher, executive and standard eight-seat. No six-seat configuration was specified in the applicant's operations manual. In addition, when conducting his inspection on November 25, 2006, the witness noted that the double rear seat had been replaced with a single seat. Therefore, there were seven seats on board the aircraft. Inspector Audet specified that the difference in weight between a rear double seat and a single seat is about 25 to 30 pounds. He added that any modification to the configuration of an aircraft by adding or removing seats must be specified and documented in the operations manual. Any modification has an impact on the weight of the aircraft which the forward and aft centre of gravity must take into consideration. The applicant could use only the permitted configurations.

[12] On cross-examination, Inspector Audet mentioned that the operator must note the removal or addition of seats in the journey log.

(3) Offence 4

[13] The facts related to this offence were not contested.

B. Applicant

(1) Offences 1 and 2

[14] Jacques Lévesque testified as director and sole shareholder of the applicant. It had hired Mr. Vallantin as a pilot and he had worked for the applicant for a period of four years, during which time Mr. Lévesque had given him his flight training.

[15] The witness had reminded Mr. Vallantin that he had to tie down the carry-on baggage and abide by the requirements of the CARs to avoid subjecting the applicant to penalties.

(2) Offence 3

[16] Mr. Lévesque stressed the fact that the events happened without his knowledge. He specified that the difference in weight, that is, approximately 30 pounds, can have only a minimum impact on the weight and balance calculations. According to him, the extra 30 pounds had already been consumed in fuel before the aircraft took off.

(3) Offence 4

[17] Mr. Lévesque specified that Mr. Vallantin believed that he had logged the sufficient number of hours to do an IFR flight without having a second-in-command. Mr. Vallantin decided to do an IFR flight to benefit from radar coverage and, from the point of view of safety, to simplify this flight during the hunting season, which was a busy time.

[18] On cross-examination, Mr. Lévesque declared that Mr. Vallantin was qualified to do an IFR flight without a second-in-command only when there were no passengers on board.

[19] Considering that the applicant's air operator certificate had been suspended, Mr. Lévesque mentioned that Mr. Vallantin and himself had made flights for another air operator in Quebec. Mr. Lévesque gave Mr. Vallantin flight training on a type of aircraft belonging to this operator. Transport Canada had stated that it was very satisfied with Mr. Vallantin's proficiency.

V. ARGUMENT

A. Minister of Transport

(1) Offences 1 and 2

[20] The Minister alleges that he has proven on a balance of probabilities the facts mentioned in offences 1 and 2.

[21] The applicant acknowledged that Mr. Vallantin had not tied down the carry-on baggage during the flights on November 19 and 25, 2006. Because the applicant is responsible for monitoring the safety of flight operations and in ensuring that they are in compliance with existing standards and regulations, it cannot allege that it was not aware of the fact that the baggage had not been tied down. The colour photocopies of the photographs taken on November 25, 2006 (exhibit M-4) speak for themselves. In addition, according to the statements given by two passengers on the flights on November 19 and 25, no carry-on baggage had been tied down or restrained in any way on either leg of the round-trip flight. Passenger safety had been jeopardized because the baggage that was not tied down obstructed the only emergency exit in the aircraft.

(2) Offence 3

[22] The Minister considers that he has discharged his burden of proof.

[23] The applicant is required to ensure that a copy of the weight and balance report is on board the aircraft and that the appropriate configurations are used to calculate weight and balance. The applicant was lax in allowing the use of a configuration plan which did not show either the actual or the appropriate configuration. The resulting difference in weight and its impact on the weight distribution endangered the safety of the flight and the passengers and this warrants a penalty of $5000.

(3) Offence 4

[24] The minister submits that the penalty of $5000 is reasonable, considering that the safety of the passengers was in jeopardy.

B. Applicant

(1) Offences 1 and 2

[25] The applicant alleges that it cannot be held liable for offences committed without its knowledge. Because it must rely on its employees, it is reasonable for it to expect that they will abide by the laws and regulations, especially when it instructs them to do so. In support of its argument, the applicant cited Québec (P.G.) c. Les Équipements Lalancette Inc., (December 20, 2005), Mingan no. 650‑61‑003383‑050 (C.Q.).

[26] By instructing Mr. Vallantin to abide by the regulations concerning the restraining of carry-on baggage (exhibit M-1), the applicant has demonstrated due diligence. The two penalties of $3750 are clearly excessive. According to the applicant, the penalty should be in proportion to the size of the business and its assets, as mentioned in R. v. United Keno Hill Mines Ltd., (1980) 10 C.E.L.R. 43, [1980] Y.J. no. 10 (QL).

(2) Offence 3

[27] The applicant submits that the offence has been committed without its knowledge and that the penalty of $5000 is excessive. The Tribunal must consider that the configuration used by Mr. Vallantin to make the weight and balance calculations represents a difference of only some 30 pounds. The impact of this difference on the total weight is rather slim. According to counsel for the applicant, Transport Canada is persecuting Sept‑Îles Aviation Enr.

(3) Offence 4

[28] The penalty of $5000 is excessive, considering that the offence has been committed without the applicant's knowledge. It has demonstrated due diligence by explaining the content of section 703.86 of the CARs to Mr. Vallantin.

VI. DISCUSSION

A. Offences 1 and 2

[29] The applicant acknowledges that its employee, Mr. Vallantin, has failed to tie down the carry-on baggage during the flights on November 19 and 25, 2006 (exhibit M-1). The statements made by the two passengers during these flights corroborate in a less probative manner the applicant's admissions made in Mr. Lévesque's letter (exhibit M-1). The colour photocopies of the photographs taken on November 25, 2006 by Inspector Deslauriers (exhibit M-4) are quite clear as to the lack of netting or restraints to tie down the baggage.

[30] The Minister is punishing the applicant because it is the registered owner of the aircraft. Section 8.4(1) of the Act provides the following:

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.

[31] It is obvious that the applicant cannot allege that aircraft C-GCXF was in the possession of a person other than the owner without its consent because on November 19 and 25, 2006, its employee, Mr. Vallantin, was operating it.

[32] However, the applicant may rely on the defence of due diligence provided for in section 8.5 of the Act, which reads 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.

[33] Did the applicant show on a balance of probabilities that it had exercised due diligence to prevent an offence within the meaning of section 8.5 of the Act?

[34] The applicant submitted two other decisions, Quebec (P.G.) c. Les Locations de l'Anse de Sept-Îles Inc., (February 21, 2005), Mingan no. 650‑61‑002758-047 (C.Q.), and Quebec (P.G.) c. Transport Gilles Couillard Inc., (March 30, 2001), Mingan no. 650-61-001355-993 (C.Q.), which deal with offences that were committed by an employee performing his work and of which the employer was not aware. Although these defendants managed to demonstrate that the offence had been committed without their knowledge, they nevertheless had to prove that they had taken the precautions and measures necessary to instruct their employees to abide by the law.

[35] In R. v. Sault Ste-Marie, [1978] 2 S.C.R. 1299, the Supreme Court of Canada ruled as follows concerning the defence of due diligence when an employer is charged in respect of an act committed by an employee in the performance of his or her employment:

56 . . . the question will be whether the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to a corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself. . . .

[36] As far as the first aspect is concerned, the applicant confirms that the offences have been committed without its knowledge.

[37] As far as the second aspect is concerned, only the first paragraph of the letter sent to Inspector Hamel (exhibit M-1) mentions that Mr. Lévesque, the owner of the applicant, has advised Mr. Vallantin that he was to avoid this type of situation in the future. This paragraph does not explain the corrective measures applied. Did these measures involve some type of punishment (suspension, threat of suspension, ultimatum) concerning Mr. Vallantin, or simply preventive measures to avoid repeated conduct? The applicant did not explain the means or the precautions that it took on this point. It is not sufficient for the applicant to allege that these offences were committed without its knowledge. It must be able to show on a balance of probabilities that it monitors the safety of air operations and that it ensures that its flight personnel respects the regulations. The applicant must establish a system for checking the compliance of its operations.

[38] Mr. Lévesque, the director and sole shareholder of the applicant, is liable on this point as its principal. The evidence submitted by the applicant does not support a finding that it took all reasonable measures and precautions to prevent a repetition of this type of incident and behaviour. I am of the opinion that in the circumstances the Minister has discharged his burden of proof in connection with these two offences.

[39] The applicant alleges that the penalties are excessive, considering that the offences have been committed without its knowledge. It is asking the Tribunal to reduce them. As well, the applicant submits that these penalties are in addition to the fact that its air operator certificate has been suspended in December 2006.

[40] An appropriate penalty must strike a balance between deterrence and rehabilitation. It must be remembered that this issue does not only interest the Tribunal and the applicant but also the general public. As far as air transport is concerned, safety is the most important factor in determining the amount of a penalty and in considering the specific mitigating or aggravating circumstances in each case. The failure to tie down carry-on baggage has a direct consequence on air safety for the passengers as well as for the pilot-in-command. Considering that the applicant admitted that its employee had failed twice to abide by section 602.86(1) of the CARs (exhibit M-1) and that he repeated these two offences one week later, I am of the opinion that the applicant did not manage to have its staff respect the regulations.

[41] Considering that the maximum penalty applicable to a corporation for an offence under section 602.86(1) of the CARs is $15 000, I am of the opinion that the two penalties of $3750 are appropriate under the circumstances.

B. Offence 3

[42] What is involved here is the fact that Mr. Vallantin submitted to a Transport Canada inspector a weight and balance report based on an aircraft configuration that had not been authorized. The regulations specify that, before each flight, an air operator must perform weight and balance calculations by specifying the load and distribution so as to ensure that the aircraft is used within operational limits. It is crucial to know the weight of an aircraft and to position its centre of gravity in such a way that the operation of the aircraft is safe during all stages of a flight.

[43] Under the Commercial Air Service Standards, the applicant is responsible for establishing procedures which allow the crew to operate the aircraft within the limits specified in its operations manual and to ensure that its pilots comply with the regulations. When an aircraft is operated according to a different configuration than what is authorized, the air operator must add a separate addendum to the weight and balance report, which clearly corresponds to the configuration of the aircraft to which it applies and specifying an empty weight and the centre of gravity for the appropriate configuration. Therefore, a weight and balance report is necessary for each configuration of the aircraft which the operator intends on operating.

[44] The applicant did not submit any evidence that it had obtained approval from the Minister to use configurations other than those authorized, namely, stretcher, executive and standard eight-seat configurations. It did not submit any modification to Transport Canada for the purpose of using a standard six- or seven-seat configuration. Accordingly, Transport Canada had never given authorization to use systems for the calculation of weight and balance based on these two configurations. On this point the applicant did not contradict the facts alleged by the Minister. It did not submit any evidence of due diligence, namely, that it regularly verified the knowledge its flight personnel had of the procedures specified in the operations manual. In fact, the applicant exceeded procedures by allowing the aircraft to be operated beyond the approved limits.

[45] The Minister has shown on a balance of probabilities that the applicant used a seating configuration that was not authorized, thereby contravening section 703.37(2) of the CARs.

[46] According to the applicant, the penalty is excessive. The offence is not as serious as claimed because it is technical in nature and the surplus weight of 30 pounds involved in this configuration had only a minimal impact on the calculations of weight and balance.

[47] In this case, I am of the opinion that this offence is due to certain laxity on the part of the applicant in connection with its procedures. It was not concerned with operating its aircraft according to the limits approved in its operations manual or to require that its staff do so. To the contrary, not only did it tolerate misconduct by its employees, it even minimized the impact of such.

[48] I confirm the penalty of $5000.

C. Offence 4

[49] The applicant does not contest the facts concerning the offence committed on November 19, 2006, in connection with the flight from Sainte-Anne-des-Monts to Rivière aux Saumons. Only the amount of the penalty is contested. Similar facts involving the same pilot and the same aircraft occurred the next day on November 20, 2006, in connection with the return flight from Rivière aux Saumons to Sainte-Anne-des-Monts. The flight of November 20, 2006 was the subject of a notice of assessment of monetary penalty for a contravention of section 703.86 of the CARs and a review hearing which I presided (2431‑9154 Québec Inc. v. Canada (Minister of Transport), 2008 TATCE 2 (review), [2008] C.T.A.T.D. no. 2 (QL)).

[50] At this review hearing, the applicant alleged that its employee, Mr. Vallantin, had misinterpreted the requirements under section 703.86 of the CARs and had mistakenly believed that he had the proficiency to make an IFR flight without a second-in-command, with passengers on board. The applicant had explained section 703.86 of the CARs to Mr. Vallantin. On November 20, 2006, Mr. Vallantin chose to make an IFR flight rather than a VFR flight (visual flight rules) so as to simplify operations and make them safer during the hunting season.

[51] If Mr. Vallantin believed that he was competent to make an IFR flight without a second‑in-command on November 20, 2006, he must also have thought that he had the required proficiency when he made the flight on November 19, 2006, because the circumstances and the reasons alleged by the applicant are identical.

[52] Although this offence had been committed without the applicant's knowledge, it is responsible for taking all necessary precautions and measures so that its flight personnel abide by the regulations and standards.

[53] However, the Tribunal reduces the penalty of $5000 to $2500 considering the admission and explanations given by the applicant and the context in which the flight was made.

VII. DETERMINATION

[54] I confirm, with the following modification, the decision of the Minister of Transport as set out  in the notice of assessment of monetary penalty:

Offences 1 and 2 – The penalties of $3750 each for the contraventions of section 602.86(1) of the CARs remain the same, for a total of $7500.

Offence 3 – The penalty of $5000 for the contravention of section 703.37(2) of the CARs remains the same.

Offence 4 – The penalty of $5000 for the contravention of section 703.86 of the CARs is reduced to $2500, considering the admission and the explanations given by the applicant and the context in which the flight was made.

April 9, 2008

Suzanne Racine

Member