Decisions

TATC File No. H-3474-40
MoT File No. AARB 5504-C11368 E29 12233 SV A

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Nav Canada, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, subsection 803.01(2)


Review Determination
Faye H. Smith


Decision: August 26, 2009

Citation: Nav Canada v. Canada (Minister of Transport) 2009 TATCE 24 (review)

Heard at Ottawa, Ontario, on November 24-26, 2008 and March 3, 2009

Held: I find that the Minister of Transport has established, on a balance of probabilities, that Nav Canada contravened subsection 803.01(2) of the Canadian Aviation Regulations. However, I reduce the monetary penalty from $25 000 to $1 000. The total amount of $1 000 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

File Nos.: H-3472-40

H-3473-40

H-3474-40

I. BACKGROUND

[1] The Minister of Transport issued three notices of assessment of monetary penalty to Nav Canada for numerous contraventions of subsection 803.01(2) of the Canadian Aviation Regulations (CARs), alleging that it failed to provide aeronautical information services in accordance with the standards set out in the Convention on International Civil Aviation (Convention, also known as the Chicago Convention and the International Civil Aviation Organization (ICAO) Convention) to provide timely notice of errors in its maps and charts through the use of notice to airmen (NOTAM), and to maintain an adequate quality management system (QMS).

[2] The relationship between the parties is aptly described in the following five paragraphs, as in the Minister's written submissions regarding Canada's obligations under the Convention before and after the privatization of air navigation services in 1996.

[3] As a signatory to the Convention, Canada has undertaken international obligations to provide air navigation services which comply with international standards and procedures (articles 28 and 37 of the Convention).

[4] Section 3.1.1 of annex 15 to the Convention provides that each contracting State may delegate the authority for the provision of aeronautical information services to a non-governmental agency, provided that the standards and recommended practices of annex 15 are adequately met. The same section also provides that the State remains responsible for the information that is published. Moreover, section 3.1.1.2 requires every contracting State to take all necessary measures to ensure that the aeronautical information/data it provides is adequate, of required quality and timely.

[5] Prior to 1996, all air navigation services in Canada were provided by the federal government, mostly through the Department of Transport. In 1996, Transport Canada's operational responsibilities in this field were transferred to Nav Canada, a newly established, private not‑for‑profit corporation. Section 9 of the Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20 (CANSCA) provides the following:

9. Subject to this Act, the Corporation shall, on and after the transfer date, provide all users with the civil air navigation services that the Department of Transport provided immediately before the transfer date and shall do so to the same extent as the services were provided by the Department of Transport.

[6] Subsection 10(1) of the CANSCA further provides that Nav Canada shall have a monopoly on the provision of aeronautical information services in Canada:

10.(1) Subject to subsections (2) to (4), no person, other than the Corporation, shall, on or after the transfer date, provide

(a) aeronautical information services,

. . .

in respect of Canadian airspace or any other airspace in respect of which Canada has responsibility for the provision of air traffic control services.

[7] The term "aeronautical information services" is defined in the CANSCA as the services necessary to meet requirements of annexes 4 and 15 to the Convention that relate to aeronautical information.

II. FACTS

[8] The Minister of Transport issued three notices of assessment of monetary penalty to the applicant, Nav Canada, alleging contraventions of subsection 803.01(2) of the CARs for failing to provide timely notice of errors in its maps and charts through the use of NOTAMs and to maintain an adequate QMS, thereby failing to meet its obligations under the standards set out in annex 4 (section 1.3.3) and annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention (10th and 12th editions respectively) and by not complying with these standards specifically:

  1. On or about February 5, 2007, the Minister of Transport assessed a total monetary penalty of $30 000 against Nav Canada, being $5000 each for six separate allegations of failure to provide adequate aeronautical information services and an alleged failure to demonstrate that it possessed an adequate QMS. All six counts related to a failure to publish permanent changes to the aeronautical information package as AIP amendments (file no. H-3472-40).
  2. On or about May 10, 2007, the Minister of Transport assessed a monetary penalty of $25 000 against Nav Canada for failing to issue a timely NOTAM to inform the aviation community that the LOC/DME RWY 11 instrument approach at Gaspé, Quebec, was not authorized (file no. H-3473-40).
  3. On or about July 23, 2007, the Minister of Transport assessed a $25 000 monetary penalty against Nav Canada for failing to issue a timely NOTAM indicating that the CYA 140 and CYA 165 in the Vancouver VFR navigational chart (VNC,19th edition) should read CYR 140 and CYR 165 respectively (file no. H-3474-40).

III. LAW

[9] Subsection 803.01(2) of the CARs states as follows:

803.01 (2) No person shall provide aeronautical information services except in accordance with the standards set out in Annexes 4 and 15 to the Convention.

[10] There are 18 annexes to the Convention; we are specifically concerned with section 1.3.3 of annex 4 and sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1 of annex 15:

Annex 4

1.3.3 A Contracting State shall take all reasonable measures to ensure that the information it provides and the aeronautical charts made available are adequate and accurate and that they are maintained up to date by an adequate revision service.

Annex 15

3.1.7 An aeronautical information service shall receive and/or originate, collate or assemble, edit, format, publish/store and distribute aeronautical information/data concerning the entire territory of the State as well as areas in which the State is responsible for air traffic services outside its territory. Aeronautical information shall be published as an Integrated Aeronautical Information Package.

3.2.1 Each Contracting State shall take all necessary measures to introduce a properly organized quality system containing procedures, processes and resources necessary to implement quality management at each function stage as outlined in 3.1.7 above. The execution of such quality management shall be made demonstrable for each function stage, when required.

4.2.8 Operationally significant changes to the AIP shall be published in accordance with AIRAC procedures and shall be clearly identified by the acronym − AIRAC.

4.3.1 Permanent change to the AIP shall be published as AIP Amendments.

[11] The terms "aeronautical information service" and "NOTAM" are defined in annex 15 to the Convention:

Aeronautical information service (AIS). A service established within the defined area of coverage responsible for the provision of aeronautical information/data necessary for the safety, regularity and efficiency of air navigation.

NOTAM. A notice distributed by means of telecommunication containing information concerning the establishment, condition or change in any aeronautical facility, service, procedure or hazard, the timely knowledge of which is essential to personnel concerned with flight operations.

IV. MINISTER OF TRANSPORT'S OPENING STATEMENT

[12] The Minister stated that his case is not about the errors on the charts or maps but rather is about how the errors were addressed by Nav Canada, in particular whether Nav Canada provided timely notice of the errors and whether they [employees] maintained an adequate QMS to bring errors to their attention, and whether all of this was done in accordance with standards of annex 15 to the Convention.

[13] The Convention sets out Canada's obligations which are provided in subsection 803.01(2) of the CARs, as being incorporated into the domestic legislation of Canada. While the section refers to annexes 4 and 15 to the Convention, it is annex 15 that is relevant for our purposes.

[14] The object of AIS is set out in the introduction of annex 15 which states:

The object of the aeronautical information service is to ensure the flow of information/data necessary for the safety, regularity and efficiency of international air navigation. . . . Corrupt or erroneous aeronautical information/data can potentially affect the safety of air navigation.

[15] The Minister submitted that there were two situations.

  • First situation: where there was no NOTAM in place, even though there were errors on a map or chart. That is to say that the failure to issue the appropriate NOTAM was a breach of Nav Canada's obligation to provide AIS in accordance with subsection 803.01(2) of the CARs.
  • Second situation: where NOTAMs remained in place for a significant period of time without the appropriate changes or updates being made to the maps or charts. It was the Minister's position that these long standing NOTAMs indicated a failure to update the aeronautical information package and to maintain a QMS. The Minister states that timely notices must be provided to users of aeronautical services to advise them of a condition or a change that affects civil aviation, as defined at page 2-3 of chapter 2, annex 15 to the Convention. As well, if a NOTAM conveys information about a permanent change which amends an aeronautical publication, the publication must be amended and the NOTAM cancelled, as provided in section 4.3.1 of chapter 4, annex 15 to the Convention.

V. NOTICE OF ASSESSMENT OF MONETARY PENALTY

(FILE NO. H-3472-40)

Long Standing NOTAMS – Failure to Update Aeronautical Information Package and to Maintain a QMS

[16] For reference as to its specific wording, I have quoted verbatim in the immediate paragraph below, the wording of only the first of the six counts in the notice of assessment of monetary penalty (file no. H-3472-40). All of the other five counts are identical, except for the subject matter of the charges. I have included particulars of all six NOTAMs together with their resolution where applicable in paragraph 17 below.

1.   On or about 05 February 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services by not demonstrating aeronautical information quality management in accordance with the standards set out in Annex 4 (section 1.3.3) and Annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention on International Civil Aviation, tenth edition and twelfth edition respectively and by not complying with these standards, specifically:

a. NAV CANADA did not comply with their internal quality management system by not raising the required quality management non-conformance report relating to an operationally significant permanent change to the Vancouver, British Columbia, Visual Flight Rules (VFR) Terminal Area (VTA) Chart for the King George VFR Check Point Coordinates, following the 3‑month period after notification of this permanent change, by NOTAM number 050236 under NOTAM File CZVR, nor did NAV CANADA publish a timely aeronautical information publication amendment reflecting this change;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $5,000.00.

A. Evidence

(1) Minister of Transport

[17] The following are particulars of the six long-standing NOTAMs which are the subject matter of the notice of assessment.

1. NOTAM 050236 − Penalty Assessed: $5000

This NOTAM was issued on April 14, 2005 and informed the aviation community that the King George coordinates on the Vancouver terminal area (VTA) chart should read 4905.7N rather than 4903.7N. The mistake on Nav Canada's publication displaced the location of the check point by about two nautical miles (testimony of Denis Blanchet, transcript, vol. I at 53-54).

On February 5, 2007, almost two years after it was issued, this NOTAM was still active and the VTA chart still showed incorrect coordinates for the King George Checkpoint (exhibits M-3, M-4 and M-5, Vancouver VTA charts).

2. NOTAM 050286 − Penalty Assessed: $5000

This NOTAM was issued on April 29, 2005. It corrected a minimum enroute altitude (MEA) on a segment of the V317/V440 route which was mistakenly depicted on the low altitude enroute Chart LO1 and LO2. The NOTAM advised the aviation community that the MEA was 6500 feet as opposed to 3400 feet.

Nav Canada updates this chart every 56 days. On February 5, 2007, this NOTAM was still active and the enroute low altitude chart had not been corrected. It was finally corrected in the enroute low altitude chart which became effective on August 30, 2007 (exhibits M-6, M-7, M-8, M-9 and M-10), over two years and four months after the NOTAM was issued, and fifteen publication cycles later.

3. NOTAM 050873 − Penalty Assessed: $5000

This NOTAM was issued on September 4, 2005 and it informed the aviation community that a change over point should have been portrayed at the intersection of the V368 route and MITEK on the LO1 enroute chart.

On February 5, 2007 the change over point was not portrayed on the LO1 enroute chart and the NOTAM was still active on July 5, 2007 (exhibits M-12, M-13 and M-14).

4.   NOTAM 050339 − Penalty Assessed: $5000

This NOTAM was issued on May 13, 2005 and purported to amend the MEA on a segment of the V317/V440 route from 11 000 feet to 18 000 feet. However, because 18 000 feet is no longer a low altitude route, this NOTAM was actually rendering this segment unusable as a low altitude route (testimony of Mr. Blanchet, transcript, vol. I at 78).

The Minister referred to the testimony of Michael Hohm, Nav Canada's Manager of Airspace Planning and Design, who testified that this change in MEA required a revision of the entire airway (testimony of Mr. Hohm, transcript, vol. III at 655). He also testified that he only began working on resolving this issue in the middle of 2007. Nav Canada formally requested an amendment to the airway on February 22, 2008 (letter of April 8, 2008, from Nav Canada to Transport Canada, exhibit A‑5).

5.   NOTAM 050604 − Penalty Assessed: $5000

This NOTAM was issued on July 9, 2005 to advise of a change in the MEA on a segment of airway V354 between GRASE and LW. The MEA should have read 9900 feet instead of 7500 feet.

This error was finally corrected on July 5, 2007, two years after the NOTAM was issued (enroute low altitude chart, effective July 5, 2007, exhibit M-24).

6.   NOTAM 050875 − Penalty Assessed: $5000

This NOTAM was issued on September 4, 2005 and it informed the aviation community that a change over point should have been portrayed on the V368 route on the LO1 enroute chart.

On February 5, 2007 the change over point was not portrayed on the LO1 enroute chart and the chart was finally corrected on August 30, 2007 (enroute low altitude chart dated August 30, 2007, exhibit M-29).

[18] The Minister summarized the NOTAM situation at Nav Canada from 2003 to 2007, as follows. In 2003, a Transport Canada audit revealed that there were hundreds of NOTAM amending publications in Nav Canada systems (testimony of Mr. Blanchet, transcript, vol. I at 46). Transport Canada conducted a follow-up inspection in 2004. That inspection revealed that Nav Canada had not appropriately implemented its corrective action plan. As a result of this follow‑up inspection, Nav Canada instituted a corrective action plan which contained a NOTAM tracking system known as PANTS (Publication Amendment NOTAM Tracking System; testimony of Mr. Blanchet, transcript, vol. I at 46 and 103).

[19] The Minister stated that Nav Canada conceded that its management of NOTAMs which amend publications was unsatisfactory. When Charles Montgomery became the director of AIS in 2005, Nav Canada had a great number of NOTAMs that were beyond 90 days in the system (testimony of Mr. Montgomery, transcript, vol. II at 375). Mr. Montgomery testified that Nav Canada's Vancouver regional office was generating most of the long term NOTAMs. He added that the manager responsible for quality management in that office was provided an early retirement package. Mr. Montgomery was dissatisfied with his work which included the way in which the NOTAM situation was being handled (testimony of Mr. Montgomery, transcript, vol. II at 437).

[20] In May 2006, the Vancouver regional office's responsibilities were transferred to the Montréal office. It is only then that Nav Canada realized the extent of the problem, although there were some indications before that (testimony of Mr. Montgomery, transcript, vol. II at 376). After the Vancouver regional office was shut down, many things came to light that Nav Canada was not aware of (testimony of Mr. Montgomery, transcript, vol. II at 442).

[21] The Minister submitted that Benoit Tardif, Manager of AIS Standards and Training, Nav Canada, agreed with Mr. Blanchet that at the time of the Transport Canada audits, there were hundreds of outstanding NOTAMs. Therefore, Nav Canada was aware, from the year 2003, that there was a weakness in its NOTAM amendment performance (testimony of Mr. Tardif, transcript, vol. II at 507 and 511). Mr. Tardif testified that Nav Canada did not have sufficient resources to act on Transport Canada's concerns. He testified that he was overwhelmed by Transport Canada's requests and that he advised Mr. Montgomery that someone else should be hired to work on this issue, or else his other responsibilities should be removed so he could dedicate all his time to this issue (testimony of Mr. Tardif, transcript, vol. III at 570-571).

[22] According to Mr. Tardif, there were 170 long-standing NOTAMs in early 2006, but by the date of this hearing, that number had dropped to 70. However, when asked about February 2007, the date of the offences, Mr. Tardif did not dispute that the number of long‑standing NOTAMs in the system was approximately the same as in early 2006 (testimony of Mr. Tardif, transcript, vol. III at 622). It was only as of October/November 2008 that Mr. Tardif could confidently say that the issue was under control (testimony of Mr. Tardif, transcript, vol. III at 571).

[23] The Minister stated that annex 15 of the Convention requires member States to have a quality system the management of which must be demonstrable for each function stage, as provided in section 3.2.1 of annex 15 to the Convention.

[24] Mr. Blanchet, a Transport Canada civil aviation inspector, defined a QMS as follows (testimony of Mr. Blanchet, transcript, vol. I at 100):

A quality management system is set to make sure that the corporation has the proper resources and procedures in place, and processes in place, to make sure that all of the services that they are providing are of quality that are meeting the standards and regulations.

[25] Marc Rougeot, Vice-President of operations for BSI Management Systems, testified that Nav Canada had a QMS which was ISO 9001 compliant. He defined QMS as a compilation of best practices recognized internationally and worldwide that will drive good practices and continuous improvement within an organization (testimony of Mr. Rougeot, transcript, vol. II at 306).

[26] Nav Canada implemented PANTS as a part of its QMS, as a result of two Transport Canada audits. According to Nav Canada's own AIS procedures manual, the purpose of PANTS is to track NOTAMs amending permanently the publications, to ensure that the required publication amendment process is initiated and to cancel the NOTAM after publication. Nav Canada's AIS Procedures Manual (volume 03, rev. 01.07, February 26, 2007, exhibit M-30) required the regional office responsible for tracking NOTAMs to issue a non-conformance report in Nav Canada's QMS reporting system for any NOTAM that exceeds three months in duration: ". . . [a]ny NOTAM that exceeds 3 months in duration will be followed up with a non‑conformance report in the QMS reporting system . . . " (AIS Procedures Manual at 24). The 90‑day requirement was based on section 4.4.1 of annex 15 to the Convention (testimony of Mr. Blanchet, transcript, vol. I at 166-67).

[27] On January 30, 2007, Mr. Blanchet requested from Mr. Tardif copies of the publication amendment change (PAC) or the non-conformance reports related to eight NOTAMs that had been in the PANTS for over three months. These proceedings concern six of the eight NOTAMs referred to in Mr. Blanchet's email (emails exchanged between Messrs. Montgomery and Blanchet, exhibit M-1).

[28] On February 1, 2007, Mr. Tardif replied that Nav Canada saw no need to issue a non‑conformance report because it uses PANTS to track its performance and for continuous improvement (exhibit M-1). Mr. Tardif added that he was very busy on other matters. He stated as follows: "It is not preferable to reallocate our resources to respond to your request by Monday" (email of February 1, 2007 from Mr. Tardif to Mr. Blanchet, exhibit M-1).

[29] With respect to the role of non-conformance reports in quality management, Mr. Rougeot defined a non-conformance report as a way of flagging that you have identified a gap in your system (testimony of Mr. Rougeot, transcript, vol. II at 309). He testified that once a weakness is identified a company must demonstrate that it is working to correct it (testimony of Mr. Rougeot, transcript, vol. II at 300).

[30] In Mr. Rougeot's opinion, not all instances of non-conformance require the issuance of a non-conformance report. For example, small incidents do not require a root cause analysis, only once repetitive issues are identified does it become necessary to invest the appropriate time, energy and resources (testimony of Mr. Rougeot, transcript, vol. II at 307-08). However, even minor incidents, if they are repetitive, warrant a non-conformance report (testimony of Mr. Rougeot, transcript, vol. II at 314).

[31] Mr. Rougeot testified that the ISO standard requires that discrepancies be tracked, if not through a non-conformance report then through management meetings. There must be objective evidence from those meetings that corrective action is implemented (testimony of Mr. Rougeot, transcript, vol. II at 315).

[32] Mr. Rougeot testified that Nav Canada currently holds a valid ISO 9001 certification. The British Standards Institution (BSI) conducts audits of Nav Canada through a sampling (testimony of Mr. Rougeot, transcript, vol. II at 322). BSI never detected in their sampling that Nav Canada had long‑standing NOTAMs and never raised the issue with them (testimony of Mr. Rougeot, transcript, vol. II at 335-36 and 342). Mr. Rougeot testified that, had this been brought to his attention, Nav Canada would have had to demonstrate that it was taking appropriate measures to identify, monitor and track the problem (testimony of Mr. Rougeot, transcript, vol. II at 347-48).

(2) Applicant

[33] It is the applicant's position that notwithstanding the transfer to Nav Canada of the responsibility and expertise for ensuring adherence to the annexes to the Convention, and notwithstanding the specific obligation on Transport Canada as of the transfer date to cease to manage the Air Navigation Service (ANS), the actions of Transport Canada in this case demonstrate the attempted management rather than the regulation of the AIS.

[34] Mr. Blanchet testified that when he reviewed PANTS data on February 5, 2007, he could find no record of one of the six NOTAMs and concluded that the tracking system did not capture it. It was Mr. Blanchet's evidence that the absence of non‑conformance reports established that Nav Canada's QMS did not work, and that it was not demonstrable at each function stage (testimony of Mr. Blanchet, transcript, vol. I at 161-63).

[35] Mr. Rougeot testified that Nav Canada's QMS was certified to be in compliance with ISO 9001:2000. Nav Canada argued that contrary to Mr. Blanchet's testimony, the absence of non-conformance reports does not automatically establish that a QMS does not work or is not demonstrable at each function stage. Mr. Rougeot testified that a non-conformance report is not an integral part of a QMS. A non-conformance report is simply a tool for management to track, flag or capture a weakness (testimony of Mr. Rougeot, transcript, vol. II at 309; testimony of Mr. Tardif, transcript, vol. II at 511).

[36] What is important is that management must be aware of the issue, and an organization may be tracking weaknesses without necessarily having to raise a non-conformance (testimony of Mr. Rougeot, transcript, vol. II at 309-10, 314 and 339). Regardless of whether a non‑conformance report is filed, the important issue is whether management is engaged in improvement, whether a root cause analysis is conducted and whether corrective measures are implemented (testimony of Mr. Rougeot, transcript, vol. II at 308-15).

[37] Further, Nav Canada asserts that the evidence is that no additional information would have resulted from the filing of a non-conformance report. Nav Canada had the ability to track the NOTAMs, and the PANTS spreadsheet was performing exactly the same function as a non‑conformance report and tracking the NOTAMs. The fact that there was no non‑conformance report could not result in Nav Canada losing track of the NOTAMs (testimony of Mr. Montgomery, transcript, vol. II at 380). As stated by Mr. Tardif: "If a situation is already captured, why would you issue a non-conformance [report] to recapture that?"(testimony of Mr. Tardif, transcript, vol. II at 511). As for the NOTAM that Mr. Blanchet could not find in PANTS, it also must have been tracked, as it was published (testimony of Mr. Tardif, transcript, vol. III at 625).

[38] The evidence is that Nav Canada has maintained an ISO certified QMS throughout the period under review by Transport Canada. In the last audit, the ISO auditor found that management commitment was a strength, as well as the focus on implementing new tools and new technologies to enhance the performance of the processes (testimony of Mr. Rougeot, transcript, vol. II at 319).

[39] Moreover, the ISO auditor testified that the requirement that Nav Canada's QMS be demonstrable at each function stage meant that the QMS had to be implemented in all the areas under which Nav Canada had responsibility or authority. In that regard, Nav Canada's QMS complies with this requirement because the QMS is organized "like an umbrella where it covers all of the key processes for which they [Nav Canada] have or are working with"(testimony of Mr. Rougeot, transcript, vol. II at 321-22). Under Nav Canada's procedures, the non‑conformance report was not an essential part of its QMS, was not a requirement of annex 15 to the Convention, and even if it were, a failure to complete would not have established that Nav Canada's QMS was not demonstrable at each function stage, as required by section 3.2.1 of annex 15 to the Convention (testimony of Mr. Rougeot, transcript, vol. II at 324‑25 and 347).

[40] Nav Canada has demonstrated the efficiency of its QMS regardless of any evidence of a non-conformance report. For example, after the two audits of Transport Canada in 2003 and 2004, Nav Canada implemented the PANTS to allow management to track the improvement of its performance (testimony of Mr. Tardif, transcript, vol. II at 506-07 and 512; Nav Canada's AIS Procedures Manual (section 21.07 at 24; testimony of Mr. Montgomery, transcript, vol. II at 441).

[41] Regarding the six NOTAMs in this case, the issue came to the fore for Nav Canada in 2006, with management's heightened concern that some NOTAMs from the Vancouver regional office were not adequately published. Management conducted a root cause analysis, and it resulted in the retirement of an official as well as ultimately the closure of the Vancouver regional office (testimony of Mr. Montgomery, transcript, vol. II at 375-79).

[42] Nav Canada takes issue with the second aspect of the Minister's case in relation to the six NOTAMs respecting the statement that the standards found in the annexes to the Convention require publication, in the AIP, of the information contained in the NOTAMs of more than three months duration, and the cancellation of the NOTAMs. Nav Canada states that no evidence has been put forward to substantiate the allegation that Nav Canada has been in breach of the annexes simply by virtue of having NOTAMs in force for longer than three months.

[43] Nav Canada added that it is noteworthy that Transport Canada's documents reveal that Jean-François Mathieu, Chief, Aviation Enforcement, Transport Canada, formed the view that this aspect of the Minister's allegations were not supportable, and that annex 15 does not require publication within three months nor preclude a practice of issuing NOTAMs indefinitely in the provision of AIS. The Tribunal also heard from Mr. Tardif who agreed with that conclusion and added that it was consistent with the practice in other countries (email of Jean-François Mathieu, dated November 14, 2007, exhibit A-1; testimony of Mr. Tardif, transcript, vol. III at 557‑58).

[44] As well, Nav Canada submitted that it was open to the Minister to provide evidence from a witness with the appropriate expertise to support the contrary view but no such evidence was offered.

[45] The evidence establishes that the number of NOTAMs has declined significantly. Mr. Tardif testified that, at the date of the hearing, only 70 NOTAMs exceeded 90 days in duration, of which 40 were longer than 112 days. The evidence is that this aspect of AIS has been developed, or improved by Nav Canada, and there is no evidence that any NOTAM has been active for more than 144 days which is Nav Canada's current performance target (testimony of Mr. Tardif, transcript, vol. III at 620-21).

[46] The precise issue before this Tribunal on this charge is whether Nav Canada breached the standards of annex 15 (and thereby the CARs) by failing to cancel the six NOTAMs, by publication or otherwise, at some indeterminate time after 90 days. It may be noted that the evidence shows that, at the time, Nav Canada was provided with copies of the detection notices in respect of the six NOTAMs: three had already been cancelled, as corrected charts had been published, two were corrected on charts issued the following month, and the last was in the process of a lengthy airspace review and was cancelled in February 2008. At the time the notices of assessment of monetary penalty were issued, five of the six NOTAMs had been cancelled between four and nine months previously.

[47] In his written representations, the Minister makes reference to the risk of having had these NOTAMs outstanding for periods in excess of 90 days. There was no attempt by the Minister's witnesses to substantiate any degree of significance to such risk, nor to explain why Transport Canada took no steps to eliminate such risk in 2003 or the period following. Nav Canada submits that no significant risk was in issue, and that Transport Canada only resorted to enforcement action when it decided that Nav Canada could not be persuaded to adopt Transport Canada's system management priorities.

B. Discussion

[48] In their written submissions, the parties have found it convenient to divide the issues in this notice ─ whether Nav Canada breached the standards found in annexes 4 and 15 to the Convention:

(1) for failure to publish AIP amendments, and

(2) for failure to maintain a QMS.

[49] Section 3.1.1.2 of the Convention requires that each contracting State shall take all necessary measures to ensure that the aeronautical information/data it provides relating to its own territory, as well as areas in which the State is responsible for air traffic services outside its territory is adequate, of required quality and timely. This shall include arrangements for the timely provision of required information/data to the AIS by each of the State services associated with aircraft operations.

[50] The Minister has asked that the Tribunal adopt a standard, as to how promptly a permanent change must be published in the light of Canada's commitment set out in section 3.1.1.2 of the Convention.

(1) Failure to Publish AIP Amendments

[51] The Minister stated that the dispute between the parties concerns the standard that must be applied when judging how promptly a permanent change must be published. He asserts that there is no precedent in Canada or worldwide on this issue. The Tribunal should adopt a standard that is both attainable and in accordance with the high standards of aviation safety that Nav Canada has committed itself to (Air Navigation Services and Airspace, TP 13142, section 5.2, exhibit A-1). The Minister states that even if it is judged by a very flexible standard, Nav Canada failed to provide AIS in accordance with the standards set out in annexes 4 and 15 to the Convention.

[52] The applicant, by way of response, noted that the Minister put no evidence before the Tribunal on the content of the standards in the annexes or to assist in assessing conformity with the standards. Adding, we heard nothing from the Minister, for example as to the standards set and applied by Transport Canada prior to the transfer of responsibilities to Nav Canada, or as to the standards applied by other countries who share the obligation to provide AIS in conformity with the annexes.

[53] In response to the applicant's threshold issue about the evidence on the contents of the standards, the Minister stated that he understood this argument to be that the Minister, according to Nav Canada, had an obligation to adduce evidence about the content of the standards and the level of conduct that is expected and perhaps references to foreign jurisdictions.

[54] The Minister submitted that we have to take the plain meaning, the ordinary meaning of the standards, as it applies. If Canada is not satisfied with the wording of a standard, there is a possibility to file a difference, but if a difference is not filed, then one must accept the ordinary meaning. He further stated that we should not lose sight of the fact that the annex material is not drafted as in other conventions but by highly specialized technical experts. He cited an excerpt from Shawcross and Beaumont Air Law (issue 15, December 2008), concluding that the annexes are detailed codes of regulations drafted by a specialized body, and that the meaning of these annexes are readily understood by people in the field of aeronautics.

[55] The Minister stated that we have to remember that we are also dealing with a specialized tribunal that was set up as a result of the report of the findings of Charles Dubin J. that there be an independent impartial specialized tribunal to rule on the field of aeronautics. There is no need to take any extraneous evidence from other jurisdictions, as it is precisely to this Tribunal that Parliament has conferred the authority to decide in any given circumstances whether the annexes are respected or not.

[56] From the Tribunal's perspective, expertise is a consideration that must be kept in mind as section 3 of the Transportation Appeal Tribunal of Canada Act, L.C. 2001, ch. 29 (TATC Act) provides that persons are appointed to the Tribunal by reason of their expertise in one of the transportation sectors. This expertise of members of a specialized tribunal enables them to understand and thereby to assess, and to interpret the body of evidence that is presented by the parties. Thus while basic concepts need not be explained, expert members of specialized tribunals cannot substitute their opinions for those of the witnesses and are not entitled to cast about and create evidence.

[57] In this case, the Tribunal is called upon to determine, for the first time, whether there has been a breach of the standards in annexes 4 and 15 to the Convention. The factual situations are not in dispute. The Minister stated that I am to take the ordinary meaning of the standard and that judging by even the most flexible standard, Nav Canada failed to provide AIS in accordance with annexes 4 and 15 to the Convention.

[58] The Minister asserted that standard 4.3.1 of annex 15 to the Convention provides the following: "Permanent changes to the AIP shall be published as AIP Amendments." He states that the word "permanent" is defined in the Black's Law Dictionary (6th edition), as: "fixed" "continuing", "lasting", "enduring", "abiding", "not subject to change", generally opposed in law to "temporary" but not always meaning "perpetual". Further, the six NOTAMs at issue contained permanent changes; the information was by NOTAM for a period of approximately two years and the charts were eventually corrected. (Minister's written submissions at ¶ 68-70).

[59] Nav Canada responded that AIP is defined in chapter 2 of annex 15 to the Convention as follows: "A publication issued by or with the authority of a State and containing aeronautical information of a lasting character essential to air navigation." According to Nav Canada, the documents that are issued in Canada, as part of AIP, are identified as "AIP (ICAO)". Several examples have been referred to in evidence. The following publications, Canada Air Pilot (CAP) and Canada Flight Supplement (CFS), are labelled "AIP (ICAO)"; the enroute charts are labeled "AIP (ICAO)". The VTA chart and NOTAMs are not part of AIP (Nav Canada's written representations at ¶ 93-94).

[60] Further, Nav Canada stated that adherence to standard 3.1.1.2 does not impose an obligation, even in respect of long‑standing matters, to provide the information through AIP amendments. If a permanent change to an AIP document is to be made, whether it is new information or a correction of an error, it is to be published as an AIP amendment. As Mr. Tardif testified, an error in a document may be corrected by AIP amendment or by NOTAM. Annex 15 to the Convention does not require the former, rather than the latter. Furthermore, if correction by change to the AIP is to be made, the annex imposes no obligation to effect this change by publishing an AIP amendment within any particular number of days, months or cycles (testimony of Mr. Tardif, transcript, vol. II at 467-69 and 474, and vol. III at 556-57).

[61] Having conducted an analysis of each of the six NOTAMs in the notice of assessment of monetary penalty (file no. H-3472-40) together with their resolution (by publication of en route chart as applicable, etc.) at paragraph [17] herein, I note that the practice accords with the testimony of Mr. Tardif above at paragraph [60]. I accept the submission of Nav Canada at paragraph [60] above, as this is consistent with my own interpretation of chapters 3 and 4 of annex 15 to the Convention.

[62] Nav Canada takes issue with the Minister's assertion in paragraph [42] above, that standards found in the annexes to the Convention require publication, in the AIP, of the information contained in the NOTAMs of more than three months duration, and the cancellation of the NOTAMs. Nav Canada asserts in that same paragraph [42] that no evidence has been put forward to substantiate the allegation that Nav Canada has been in breach of the annexes simply by virtue of having NOTAMs in force for longer than three months. Moreover, Nav Canada, at paragraph [43] herein, provides convincing evidence in support of its position also consistent with the practice in other countries, and a practice that was agreed to by a Transport Canada official in an email of November 14, 2007 (exhibit A-1).

(2) Failure to Maintain a QMS

[63] Standard 3.2.1 of annex 15 to the Convention requires each contracting State to implement a QMS whose execution must be made demonstrable at each function stage.

[64] The Minister argued that Nav Canada failed to follow the requirements of its own quality system. Its AIS procedures manual stated: "Any NOTAM that exceeds 3 months in duration will be followed up with a non-conformance report in the QMS reporting system . . . " (AIS Procedures Manual at 24).

[65] Further, the Minister submitted that Nav Canada not only failed to follow its own procedures but also indicated that it was not necessary to follow them because it uses "PANTS to track its performance and to support continuous improvement" (exhibit M-1, emails exchanged between Messrs. Montgomery and Blanchet). The Minister adds that this ignores the fact that the object of the PANTS is to track NOTAMs amending permanently the publications and to ensure that when such a NOTAM is issued the required publication amendment process is initiated, and when the publication corrective action has been taken, the associated NOTAM is cancelled (AIS Procedures Manual at 24). Additionally, the excerpts from Nav Canada's PANTS spreadsheet show that only five of the six NOTAMs at issue were contained in PANTS, and that there was no intended publication or follow-up date, or PAC number (excerpts from Nav Canada PANTS dated February 5, 2007, exhibit M-31).

[66] I accept Nav Canada's submissions that a NOTAM that exceeds 90-day duration in its system may have exceeded its own performance target in its AIS Procedures Manual but that this is not a breach of annex 15 to the Convention. This evidence given by Mr. Tardif confirmed that the 90-day performance target had later been increased to 144 days.

[67] With respect to the long standing NOTAMs which remained in place for a significant period of time without the appropriate changes being made to the maps or charts, it was the Minister's assertion that this indicated a failure to update the AIP and to maintain a QMS. It was the position of Mr. Blanchet that the absence of the non-conformance reports was evidence that the QMS was not demonstrable at each function stage.

[68] This was countered by Mr. Rougeot's testimony who stated that a non-conformance report is a way of flagging that you have identified a gap in your system. It could be just a tracking spreadsheet that is logged as a non-conformance. Other organizations have a specific form where they will ask the following questions: What is the incident? What is the immediate action taken? That is, by definition, what a non-conformance report is (testimony of Mr. Rougeot, transcript, vol. I at 309).

[69] During the hearing, a representative for Nav Canada confirmed that the privatization of its entire air navigation services was unique to Canada. Hence, we will not likely find published sources of precedent for comparison. Matters herein arising between Nav Canada as service provider, and Transport Canada, as regulator, would formerly have been resolved for the most part within the government, being matters between employer and employee.

[70] We were not provided with evidence from the Minister on long standing NOTAMs prior to the transfer of the service to Nav Canada in 1996. In his testimony, Mr. Blanchet advised that beginning in the year 1991 he had worked for Transport Canada as a specialist in the International NOTAM office. He was cross-examined on the matter and he indicated that prior to 1996, Transport Canada had, on occasion, a few NOTAMs in existence for longer than 90 days but he could not remember how many there were (testimony of Mr. Blanchet, transcript, vol. I at 146-49).

[71] Mr. Blanchet then worked at Nav Canada as the team leader of the International NOTAM office. He managed that office and made sure that they had proper resources to provide this service, which is a 24/7 service. He was involved in the systems that were in place, as well as the procedures. The service provided by the office was to issue NOTAMs that are originated by various organizations, by Nav Canada or even Transport Canada in certain areas. The office received that information, ensured that it was provided in a timely manner and distributed as well on the aeronautical fixed telecommunication network. Mr. Blanchet worked at Nav Canada from 1996 to 2002.

[72] Mr. Blanchet said that he then returned to work for Transport Canada. In 2003, it was noticed as part of an audit, that Nav Canada had issues on having several hundreds of those NOTAMs amending publications in the system at any one point. A lot of them were related to amendment to publications that were not done in a timely fashion, meaning that they were staying there for more than two cycles at least. There was a finding on that audit and an inspection in 2004 raised another finding stipulating that it had to be corrected (testimony of Mr. Blanchet, transcript, vol. I at 47).

[73] The implementation of the PANTS followed, and shortly thereafter, Transport Canada asked Nav Canada to raise six non-conformance reports for NOTAMs that were over 90 days old. Failing to receive them within a week, Transport Canada concluded there was no quality control. Nav Canada responded that non-conformance reports were not required, as they had a tracking system, and thus had quality control.

[74] Paragraph 90 of the applicant's written representations indicates that only Nav Canada presented evidence on the interpretation of the standards and their application by Nav Canada and other AIS providers (testimony of Mr. Tardif, transcript, vol. II at 467-74, 493, 499‑501, 515‑25 and 529-31, and vol. III at 556-57 and 596-98).

[75] The written representations of the applicant (book 1 in ¶ 46) provides as follows:

It is clear from the evidence that, prior to the transfer, Transport Canada maintained active NOTAMs for periods longer than 90 days (testimony of Denis Blanchet, transcript, vol. I at 148) and in at least one case, dealing with a Toronto flight procedure, the NOTAM was active for more than three years (testimony of Mike Hohm, transcript, vol. III at 652-53 and 691). It is the Minister's evidence, notwithstanding such long term NOTAMs, that Transport Canada was compliant with the standards in the Annexes (testimony of Denis Blanchet, transcript, vol. I at 146-48) . . .

[76] In an email of November 14, 2007, Mr. Mathieu expressed the view that this aspect of the Minister's allegations was not supportable and that annex 15 to the Convention does not require publication within three months nor preclude a practice of issuing NOTAMs indefinitely in the provision of AIS (exhibit A-1). Mr. Tardif agreed with that conclusion and stated that it was consistent with the practice in other countries. I had indicated at the hearing that I would admit this email as evidence, as it was material to the matters in issue but would determine its weight later. Often little weight is given to such hearsay, as we do not know the writer's qualifications or the basis upon which he came to this conclusion. Although it is hearsay, Mr. Tardif agreed with that conclusion, and that it was stated to be consistent with the practice in other countries (testimony of Mr. Tardif, transcript, vol. III at 557-58).

[77] I would refer to Mr. Rougeot's testimony under cross-examination. He was asked the following question: "If you had known about these six NOTAMs, for you would it have automatically meant that the QMS was ineffective, inefficient?" Mr. Rougeot's answer was as follows:

Not at all. Once again, a management system allows room for error with regard to an organization can have incidents, can have non-conformances that happen. As long as you can demonstrate that you are taking any appropriate measures to identify, monitor and track and continuously improve, that is the key foundation of a management system (testimony of Mr. Rougeot, transcript, vol. II at 347-348).

[78] Additionally, the fact that no non-conformance report was issued could not result in Nav Canada losing track of the NOTAMs (testimony of Mr. Montgomery, transcript, vol. II at 380). Mr. Montgomery gave an overview of continuous improvements to the NOTAM system and answered that, in his view, Nav Canada, and the AIS service in particular, was dealing with these NOTAMs in an appropriate fashion; they were not being ignored (testimony of Mr. Montgomery, transcript, vol. II at 383-84). Transport Canada stated that Nav Canada failed to demonstrate quality management in the execution of the publish/store stage, as required in standards 3.1.7 and 3.2.1 of annex 15 to the Convention.

[79] Mr. Rougeot testified that he personally did not agree with the statement that a management system is ineffective if there is a weakness identified in one of the processes. The intent behind ISO 9001:2000 is that you will implement appropriate measures and mechanisms and processes to help you as an organization when there are weaknesses, to identify them and work with them and have appropriate monitoring and measuring tools in place (testimony of Mr. Rougeot, transcript, vol. II at 324).

[80] Mr. Rougeot also testified as follows:

To say a management system is not effective or is not implemented properly, it would be a serious breach or where an organization does not have the management commitment, does not have a corrective preventative action process in place. Those are the key founding blocks of the management system.

The fact that there [are] identified instances or non-conformances in a management system cannot lead directly to the conclusion of an ineffective system. The reason being why, if – personally I have seen non-conformances of a nature that may concern me in an organization, I will then go back and sit down with the management team and talk to them to understand . . . what they [are] doing also since they have the overall responsibility of the system in that light (testimony of Mr. Rougeot, transcript, vol. II at 324-25).

[81] To the following question: "Could a company lose its certification for failing to issue a non-compliance report?" Mr. Rougeot answered in the negative and stated the following:

. . . There is a process where we can remove the certification from an organization and the ones that I have seen from experience in the past that have lost registration is where there is a serious breakdown in not just one area of the management system but they have repetitive breakdowns in a lot of the key areas. Normally they would lead back to a failure of the whole corrective preventative action process and a lack of management commitment to make the appropriate changes and corrections to the management system (testimony of Mr. Rougeot, transcript, vol. II at 325).

Mr. Rougeot further added that this is not the case for Nav Canada where the certificate is still valid (testimony of Mr. Rougeot, transcript, vol. II at 326).

[82] I am unable to find on the Minister's evidence proof of failure to demonstrate that Nav Canada possessed a QMS. Failure to provide six non-conformances for NOTAMs that were over 90 days old within a week did not result in proof of failure to have quality control. The issue relating to the 90 day time period was resolved in favour of the applicant at paragraph [60] and following. As to the QMS, I accept Nav Canada's evidence as summed up by Mr. Rougeot in paragraph [77] and [79] to [81] above, that it had maintained an ISO certified QMS throughout the period under review by Transport Canada. Senior management and auditors of Nav Canada were professional and forthright in putting the history of Nav Canada before the Tribunal. Mr. Montgomery explained the difficulties he found at Nav Canada, specifically with the backlog of NOTAMs in Vancouver. He was most candid in sharing the operational problems related to volume and how they were resolved.

VI. NOTICE OF ASSESSMENT OF MONETARY PENALTY

(FILE NO. H-3473-40)

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

1. On or about 10 May 2007, between 17:01 and 18:14 Universal Time Co-ordinated (UTC), in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services in accordance with the standards set out in Annex 15 to the Convention on International Civil Aviation, twelfth edition, specifically:

a. NAV CANADA did not issue a timely NOTAM, containing required aeronautical information, that the LOC/DME RWY 11 Instrument Approach Procedure at Gaspé, QC, was not authorized; thereby contravening section 803.01(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $25,000.00.

A. Evidence

(1) Minister of Transport

[84] On July 8, 2006, a Nav Canada flight inspection report indicated that the distance measuring equipment (DME) was below tolerance between VOR radials 183 and 285, and that the DME Arc between those radials on the instrument procedure LOC/DME RWY 11 was not useable. Nav Canada did not inform the aviation community of these findings for almost nine months, until it issued NOTAMs on April 5, 2007 (letter of May 9, 2007, from Transport Canada to Nav Canada, exhibit M-36).

[85] On April 27, 2007, Transport Canada officials had a teleconference with Nav Canada's AIS personnel (exhibit M-36). Transport Canada had concerns about the instrument procedures and requested answers and more information. Nav Canada was advised that the problems associated with this approach have not been clearly defined, and that the NOTAM, as issued, was unclear, and that it did not provide the pilot with sufficient information. Transport Canada concluded that it was unclear if the facilities (LOC, DME) could support the existing approach.

[86] Nav Canada officials could not provide Transport Canada with the required information. As a result, Transport Canada asked Nav Canada to issue a NOTAM, indicating that the approach was not authorized until more information could substantiate that it was safe (testimony of Mr. Blanchet, transcript, vol. I at 117 and 191). Nav Canada was not directed by Transport Canada to use a particular wording or an expiry date. It chose to use "LOC/DME RWY 11 NOT AUTH TIL 0705101700", meaning that the NOTAM expired on May 10, 2007 at 17:00 UTC.

[87] On April 30, 2007, Mr. Blanchet (Transport Canada) sent an email to Nav Canada, as a reminder about the expiry of the NOTAM on May 10, 2007, and the requirement to implement corrective action before its expiry. He wrote as follows: "Since NOTAM CYGP 070085 was issued with a fixed expiry time (TIL 0705101700), appropriate corrective action will be required before May 10" (email string between Transport Canada and Nav Canada, exhibit M-34 at 4). Mr. Blanchet also advised Nav Canada that NOTAMs 070067 and 070068 (earlier NOTAMs referring to this equipment) were no longer required because the approach was not authorized. Nav Canada never advised Transport Canada of what corrective actions it was taking (testimony of Mr. Blanchet, transcript, vol. I at 124).

[88] On May 10, 2007, Transport Canada sent an urgent message to Nav Canada to advise that the NOTAM had in fact expired, and that there was no other NOTAM referring to the LOC/DME RWY 11 instrument procedure in place (emails exchanged between Transport Canada and Nav Canada, exhibit M-34 at 1 and 2). Nav Canada issued a NOTAM at 18:15 UTC to extend the previous NOTAM until May 18, 2007. Consequently, there was a period of 1 h 15 min. when there was no NOTAM to advise the aviation community about the concerns associated with the instrument procedure.

[89] It was Transport Canada's suggestion that Nav Canada's personnel might not have worked on the NOTAM at all, if they had not been reminded by Transport Canada, and it might have been more than 75 minutes.

(2) Applicant

[90] Regarding the issue at the Gaspé Airport, the applicant submitted that the issue is that there was a problem with the DME, which is an instrument used in instrument landing procedures. It was discovered that the DME signal was not reliable, because the signal was too weak to comply with the requirements of annex 10 to the Convention (testimony of Mr. Montgomery, transcript, vol. II at 394-96). There was no evidence that the DME was inoperable or that its reduced functioning, although it may result in a diminished level of service in instrument flight conditions, constituted any safety issue whatsoever.

[91] Although no enforcement action was taken, Transport Canada alleged that the problem with the DME was detected in July, 2006 but that no NOTAM was issued until April 5, 2007 (Minister's written submissions in ¶ 98; testimony of Mr. Blanchet, transcript, vol. I at 131; testimony of Ms. Lafrenière, transcript, vol. I at 233). However, Mr. Holm's testimony and the NOTAMs indicate that NOTAMs concerning the procedure were issued for the Gaspé Airport throughout the period (bundle of NOTAMs from July 8, 2006 to May 1, 2007, exhibit A-8; testimony of Mr. Hohm, transcript vol. III at 677 and 679-81).

[92] At the time that Transport Canada directed Nav Canada to issue a "not-authorized" NOTAM, Mr. Blanchet conceded that there were two NOTAMs in place, issued by Nav Canada without direction, to advise pilots that there was a problem with the instrument procedures at Gaspé (testimony of Mr. Blanchet, transcript vol. I at 120). In fact, it was Mr. Blanchet's testimony that the two NOTAMs at Gaspé were giving accurate information, that they had no expiry date and thus, would still have been active but for the direction of Transport Canada to cancel them (testimony of Mr. Blanchet, transcript, vol. I at 189-90). During questioning on the six NOTAMs issue, Mr. Blanchet also stated that the Minister did not dispute the content of the information because it is put out by Nav Canada: " . . . We cannot go and fly those routes and assess that. It's not part of our job" (testimony of Mr. Blanchet, transcript, vol. I at 149). Later, Mr. Blanchet conceded that NOTAM 68, cancelled at the direction of Transport Canada, was giving accurate information about the DME (testimony of Mr. Blanchet, transcript, vol. I at 189‑90).

[93] Transport Canada's NOTAM "not authorized" denied outright a procedure that was useful in certain circumstances. Mr. Hohm testified that the two NOTAMs that Transport Canada required be cancelled actually described the conditions that were producing the limitations and gave pilots appropriate information on what they could and could not do. Mr. Hohm testified that it was absolutely inappropriate to cancel those two NOTAMs (testimony of Mr. Hohm, transcript, vol. III at 687). According to Mr. Tardif, to say that the procedure is not authorized is to pull a service from your clients, and it should be viewed as a last resort (testimony of Mr. Tardif, transcript, vol. III at 545).

[94] Mr. Montgomery testified that Nav Canada did not think "not authorized" was appropriate; there was no safety issue with the NOTAMs that existed and there were other options to deal with this situation other than issuing a NOTAM "not authorized" (testimony of Mr. Montgomery, transcript, vol. II at 405-06 and 410), which would have kept the airport accessible (testimony of Mr. Montgomery, transcript, vol. II at 412-13).

[95] Transport Canada alleged that the NOTAMs were confusing, and this is disputed by the experts at Nav Canada. Mr. Hohm testified that there was no confusion, and if there had been confusion, pilots would have complained and alerted Nav Canada through emails and other channels of communication (testimony of Mr. Hohm, transcript, vol. III at 706-08). If the NOTAMs had been unclear as to the procedure at Gaspé, Nav Canada would have heard it through the numerous channels of communication it has with the industry. Nav Canada gets reports by email on what pilots would like changed, as well as regular feedback (testimony of Mr. Hohm, transcript, vol. III at 707).

[96] Nav Canada stated that in the situation at Gaspé, Transport Canada sought to substitute its operational judgment for that of Nav Canada. The Minister's witness, Ms. Lafrenière, Program Manager, AIS and Airspace, Transport Canada, conceded that there was no reason to think that there was a risk of accident (testimony of Ms. Lafrenière, transcript, vol. I at 245-46). Mr. Blanchet also testified that he had no information that safety was at issue (testimony of Mr. Blanchet, transcript, vol. I at 196). Mr. Montgomery testified that the subject matter experts were in control of the situation (testimony of Mr. Montgomery, transcript, vol. II at 428).

[97] There was a period of approximately 75 minutes without a NOTAM. Nav Canada, in the exercise of its expertise, made the operational decision to let the NOTAM lapse. The weather was good and Nav Canada determined that the conditions did not require the automatic extension of a less than ideal NOTAM. Ms. Lafrenière offered the speculation that a pilot on an instrument flight plan might not wish to change it despite the weather conditions and seek to use a potentially unavailable instrument procedure. Mr. Hohm dismissed this as being at odds with what pilots actually do. Pilots would have changed procedure to VFR because it is more direct, and it saves fuel and a lot of work (testimony of Mr. Hohm, transcript, vol. III at 676-77).

B. Discussion

[98] The issue in this notice is centered on the word "timely" which is defined in the Canadian Oxford Dictionary as "occurring", "done" or "made at an appropriate or suitable time", "opportune", "occurring" or "appearing in good time".

[99] The Black's Law Dictionary cites "timeliness" as "the importance of fulfilling the terms of a contract by the date provided for in the agreement".

[100] I interpret the responsibility under section 3.1.1.2 being that the requirement for the contracting State to take all necessary measures to ensure that the aeronautical information/data it provides relating to its own territory, as well as areas in which the State is responsible for air traffic services outside its territory, is adequate, of required quality and timely. This shall include arrangements for the timely provision of required information/data to the AIS by each of the State services associated with aircraft operations. In my view, the term "timely", when applied to the delivery of AIS, and specifically to the application of the NOTAM in question means "opportune" and in "good time", and I interpret that, for our purposes, to mean "before the prior NOTAM had expired". Each case must be judged on its individual facts.

[101] The timely delivery of services speaks to the delivery of aeronautical information services, and the issuance of the NOTAM herein 75 minutes after the expiration of the prior NOTAM must lead to the conclusion that there is a failure to provide a NOTAM for a specific period of time. In the light of Mr. Tardif's testimony that there were 137 000 NOTAMs issued in the year 2007, the failure to issue a NOTAM for a 75-minute period may appear to be de minimis. However, I must conclude that the failure to issue a NOTAM for the 75-minute period is a failure to issue a timely NOTAM containing required aeronautical information, which is a contravention of subsection 803.01(2) of the CARs.

[102] As the Minister has proved the constituent elements of the strict liability offence on a balance of probabilities, the onus now shifts to Nav Canada to determine if it could prove, on a balance of probabilities, that it exercised all due diligence to avoid commission of the offence. This assertion respecting a defence to strict liability offences was set out in the case of R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, and is also codified in section 8.5 of the Aeronautics Act (Act).

[103] A review of the written evidence, commencing with the email of April 17, 2007, from Transport Canada to Nav Canada  regarding NOTAMs 070068 and 070067 and subsequently 070085 until the final email on May 10, 2007 indicates a total of 17 emails exchanged between Transport Canada and Nav Canada (exhibit M-34). These emails reveal ongoing discussions in a spirit of cooperation by Nav Canada, ending in an exchange of correspondence between senior operations personnel of Nav Canada and Transport Canada (exhibit M-36).

[104] Mr. Montgomery testified that, notwithstanding the numerous reminders by Transport Canada, the Gaspé LOC/DME RWY 11 procedure was not overlooked by Nav Canada. We know this to be true as evidenced by the contents of the emails exchanged between Transport Canada and Nav Canada. As the evidence indicates that the NOTAM would not be issued in time, Nav Canada chose to let it lapse because the weather was favourable and pilots could fly VFR. Moreover, on the facts specific to this case, the timing was not inappropriate or unreasonable, as Nav Canada was entitled to rely upon the daylight hours and favourable weather that existed prior to the issuance of its NOTAM with a TIL date of May 18.

[105] Nav Canada's evidence was straightforward that nothing more could have been done, as they worked on the NOTAM beyond the expiration hour and reissued the same NOTAM. I believe that Nav Canada has availed itself of the defence of due diligence.

VII. NOTICE OF ASSESSMENT OF MONETARY PENALTY

(FILE NO. H-3474-40)

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

1. On or about 23 July 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services in accordance with the standards set out in Annex 15 to the Convention on International Civil Aviation, twelfth edition, specifically:

a. NAV CANADA did not issue a timely NOTAM, containing required aeronautical information, that CYA 140 and CYA 165 on the Vancouver, British Columbia VFR Navigational Chart (VNC) 19th edition should read "CYR 140 and CYR 165" respectively;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $25,000.

A. Evidence

(1) Minister of Transport

[107] The Minister relied on the following facts, found in the chain of emails between Transport Canada and Nav Canada (exhibit M-39, at 3-4).

[108] On July 20, 2007, Nav Canada was advised by Transport Canada that restricted airspace CYR 140 was mistakenly portrayed as CYA 140 on the 19th edition of the Vancouver VNC. Three days later, on July 23, 2007, Transport Canada indicated that the same error appeared in respect of CYR 165, which was incorrectly depicted as CYA 165 on the same chart.

[109] On August 2, 2007, an email from Transport Canada alerted Nav Canada that the discrepancies reported should be reviewed and that appropriate NOTAM action should be taken. On August 10, 2007, Transport Canada asked that an appropriate NOTAM action be taken regarding CYRs 140 and 165. On August 14, 2007, Nav Canada was directed by Transport Canada to issue a NOTAM immediately to indicate that CYRs 140 and 165 were incorrectly depicted as CYA 140 and CYA 165 on the Vancouver VNC. Transport Canada stated that this issue has safety implications. On the same date, Nav Canada confirmed that NOTAMs 070915 and 070916 had been issued (email exchanged between Nav Canada and Transport Canada at 3 and 1-2 respectively, exhibit M-39).

[110] It was the Minister's submission that flying into an airspace designated as CYR could expose a pilot to a fine for violating section 601.04 of the CARs. Nav Canada relied on the fact that CYR 165 was listed in the planning section of the CFS. However, this information had been in the CFS for many years. Therefore, it would be difficult for a pilot to determine which publication was the accurate one. A NOTAM to direct a pilot to the correct information was thus required in the circumstances (testimony of Ms. Lafrenière, transcript, vol. I at 256-57).

[111] The Vancouver VTA is a separate publication which depicts a portion of the Vancouver VNC on a larger scale. This publication correctly depicted CYR 140 on it.  The VTA, however, is not a map that pilots are obligated to use by regulation (testimony of Ms. Lafrenière, transcript, vol. I at 262), and it is not a map required by ICAO to be produced (testimony of Mr. Tardif, transcript, vol. II at 481-82).

(2) Applicant

[112] In the notice of assessment of monetary penalty, the Minister alleged that Nav Canada failed to issue NOTAMs when required to by the annexes, to alert pilots that two flight restricted areas (CYRs) had been erroneously depicted on an aeronautical chart as advisory areas (CYAs). As in the case of the six NOTAMs, the issue for consideration is not whether there were errors on charts but whether adequate information was provided by Nav Canada in the face of these errors.

[113] First, there was again no safety issue engaged by these matters (testimony of Mr. Tardif, transcript, vol. II at 502, vol. III at 574; testimony of Mr. Hohm, transcript, vol. III at 675 and 690). Second, the information that Transport Canada thought should be the subject of NOTAMs was readily available either on the VTA chart (in the case of CYR 140) or in the CFS (in the case of CYR 165). If adequate information was available, the issuance of NOTAMs would have been redundant and have increased the number of NOTAMs in force for no valid reason.

[114] The Vancouver VFR chart, VNC, on which the errors occurred, is an aeronautical chart that contains information for VFR flights intended in the intermediate and low altitudes at low speed (testimony of Mr. Tardif, transcript vol. II at 479). The VNC contains the clear direction on its face that if flying below 12 500 feet above sea level (ASL), within an area clearly marked, "See VTA Chart" (testimony of Mr. Tardif, transcript, vol. II at 479-80).

[115] The evidence is clear that the correct information was available in the VTA. CYR 140, depicted in the VNC as a CYA, was accurately depicted as a CYR in the VTA. As discussed below, pilots must use the VTA and not the VNC when flying in the area where CYR 140 is located at an altitude where the details of CYR 140 are relevant and necessary information.

[116] Mr. Tardif testified that the reason why the larger scale VTA exists is because of the density of information on the central part of the VNC chart. Furthermore, significant information for pilots flying below 12 500 feet ASL is not included in the VNC chart to prevent cluttering (testimony of Mr. Tardif, transcript, vol. II at 480). For example, all information about the vertical limits of controlled airspace within the VTA area is not included on the VNC. Similarly, VFR call-up check points within the VTA area are only shown on the VTA and not on the VNC (testimony of Mr. Hohm, transcript, vol. III at 670-71). Moreover, the VNC does not provide required information about class C airspace in the VTA area. Pilots must receive clearance to enter class C airspace and they would be guilty of a regulatory infraction if they did not get clearance, and they would put themselves in a hazard situation. For pilots to have the appropriate information about class C airspace in the VTA area, they must go to the VTA (testimony of Mr. Hohm, transcript, vol. III at 669-71).

[117] Consequently, pilots must use the VTA if flying below 12 500 feet ASL, as the VNC lacks necessary information for that type of operation (testimony of Mr. Tardif, transcript, vol. III, at 589-91). Nav Canada does not give pilots a choice of using the VTA, or not. It makes it very clear (testimony of Mr. Tardif, transcript, vol. II at 481 and vol. III at 587-89).

[118] Ms. Lafrenière conceded that pilots must, by regulation, have all the appropriate information before commencing their flight (testimony of Ms. Lafrenière, transcript, vol. I at 208 and 278). However, she also opined that by regulation, a pilot does not need to use the VTA (ibid, at 260 and 262). This opinion appears to be in conflict with section 602.71 of the CARs which provides as follows:

602.71 The pilot-in-command of an aircraft shall, before commencing a flight, be familiar with the available information that is appropriate to the intended flight.

For flights below 12 500 feet ASL, some of the appropriate information is only available on the VTA.

[119] Interestingly, Ms. Lafrenière conceded that, if she was flying, she would use the VTA (testimony of Ms. Lafrenière, transcript, vol. I at 263). This appears to be the correct position. The regulation requires pilots to use the best information available. They are required to familiarize themselves with the information that is appropriate to their intended flight. The VNC directs pilots to use the VTA, and it is critical that they go to the VTA to have the best information available.

[120] Mr. Hohm, who is also a pilot with many years of experience flying in the VNC/VTA areas, testified that the VNC is insufficient to fly safely in the VTA area (testimony of Mr. Hohm, transcript, vol. III at 667-68).

[121] The CYR 165 was correctly depicted in the CFS in the planning section, where Nav Canada would eventually have published a correction, had a NOTAM been issued and then replaced by a change to the AIP (testimony of Mr. Tardif, transcript, vol. II at 488-89). The information was in the appropriate section of the CFS. It is irrelevant when, or why, a correction is first placed in the CFS, as this publication is more authoritative than the chart. Pilots must always consult the NOTAMs and the CFS to have latest information (testimony of Mr. Tardif, transcript, vol. II at 490-91).

[122] In fact, it was conceded by Ms. Lafrenière that the information was in the CFS on the date of the offence, and that pilots must look at the NOTAMs and the CFS (testimony of Ms. Lafrenière, transcript, vol. I at 254-57). Moreover, the VNC chart clearly provides that it must be used with the NOTAMs and the CFS, as they contain the most current information (testimony of Mr. Tardif, transcript, vol. II at 482 and vol. III at 603).

[123] Ms. Lafrenière testified that it was not the error on the charts per se that was the reason for the notice of assessment of monetary penalty but the fact that Nav Canada knew, on July 20, 2008, about the error, and took up to August 14, 2008 to issue the NOTAM (testimony of Ms. Lafrenière, transcript, vol. I at 203-05 and 256). It is Nav Canada's evidence that it did not issue a NOTAM because, in its expert judgment, a NOTAM was not necessary. A NOTAM, although not required by annex 15 to the Convention was issued on August 14, 2008 solely because of Nav Canada's policy of implementing a direction from Transport Canada when issued even if, in Nav Canada's view, the direction is improperly given.

[124] In the case of both, CYR 140 and CYR 165, the correct information was made available and users of the VNC were directed to use the sources where the correct information was provided (testimony of Mr. Tardif, transcript, vol. II at 492‑500). In both instances, Transport Canada directed Nav Canada to issue NOTAMs to change CYA to CYR, and Nav Canada did so when directed.

B. Discussion

[125] The reason for the notice of assessment of monetary penalty, as stated above by Ms. Lafrenière, is the fact that Nav Canada knew about the error and took 25 days to correct it. Transport Canada therefore concludes that Nav Canada has failed to deliver adequate AIS, by not issuing timely NOTAMs in the two instances of CYA to CYR and thereby failed to conform to annexes 4 and 15 to the Convention. One has to view all of the responsibilities and functions of the State with respect to the delivery of the service, as set out in chapter 3 of annex 15 to the Convention. Moreover, the object of the AIS is to ensure the flow of information/data necessary for the safety, regularity and efficiency of international air navigation.

[126] Transport Canada and Nav Canada exchanged many emails on the subject of the two errors citing CYRs as CYAs on the VNC chart. After the string of emails and 25 days, the NOTAMs correcting the errors were published. Much of Transport Canada's frustration appears to have come from the fact that Nav Canada did not respond quickly. Nav Canada for its part responded by publishing the NOTAMs only when directed to do so since it maintained throughout that such publication was unnecessary.  It was Nav Canada's position that the correct information was published and available to pilots in the CFS and the VTA.

[127] The requirement for the provision of timely information is discussed in paragraph [4] above as set out in section 3.1.1.2 of annex 15. Hence, the rationale for the production of timely information is identical to that in file no. H-3473-40 (Gaspé). In the present matter, however, Nav Canada did not provide the information for a period of 25 days because it did not agree with the regulator that NOTAMs were required to correct the information.

[128] On this latter point, I refer to the testimony of Ms. Lafrenière: "We communicate to NAV CANADA the issue and we expect the service provider to take appropriate action. Just when no actions are taken and when actions are required, Transport Canada was left with no other option than to go the enforcement route" (testimony of Ms. Lafrenière, transcript, vol. I at 214-15).

[129] It is my view that timely NOTAMs to correct the errors on the charts were required on these facts, and that Nav Canada was in contravention of subsection 803.01(2) of the CARs during the 25-day period pending the issue of the correcting NOTAMs. Nav Canada relied on the fact that CYR 165 was listed in the planning section of the CFS. However, Transport Canada responded that this information had been in the CFS for many years. Therefore, it would be difficult for a pilot to determine which publication was the accurate one and accordingly, a NOTAM to direct a pilot to the correct information was thus required in the circumstances (testimony of Ms. Lafrenière, transcript, vol. I at 256-57).

[130] The Vancouver VTA is a separate publication which depicts a portion of the Vancouver VNC on a larger scale. This publication correctly depicted CYR 140 on it. The VTA, however, is not a map that pilots are obligated to use by regulation (testimony of Ms. Lafrenière, transcript, vol. I at 262), and it is not a map required by ICAO to be produced (testimony of Mr. Tardif, transcript, vol. II at 481-82). I agree with the submission of Nav Canada that pilots flying into Vancouver would use the VTA. However, I am of the view that the availability to pilots of the information in the CFS and the VTA is not a defence but rather goes to mitigation as discussed below.

[131] The Minister has proved the elements of the offence, on a balance of probabilities. It is my view that due diligence does not apply on these facts where the applicant had decided not to issue NOTAMs, believing they were not necessary as the information was provided in other formats, and only issued the NOTAMs when directed to do so by Transport Canada.

[132]  The assessed monetary penalty is five times the penalty of $5000 suggested for a first offence in the Transport Canada guidelines. There were some references made by Ms. Lafrenière to prior offences but no record was filed and no particulars were given by counsel. Consequently, the Tribunal must view this as a first offence. Moreover, the monetary penalty of $25 000 seems excessive when following sentencing principles in the decision Canada (Minister of Transport) v. Wyer, [1988], CAT file no. O‑0075‑33 (appeal).

[133] Although Ms. Lafrenière indicated in her email of August 14, 2007 that the matter was one of safety, I can see no safety implication with regard to these two NOTAMs, and none was suggested during the testimony. The Transport Canada inspectors stated it was a serious offence but the only rationale given was that a pilot might be assessed a fine by enforcement for flying in a restricted area. This, in my view, does not make the offence a serious one, and if a pilot were to receive a monetary penalty for flying in a restricted zone, it is most likely that the enforcement inspector would absolve the pilot‑in‑command of any penalty when the pilot and the inspector compared the source of the CYR/CYA document. If not, then an appearance before the Tribunal would likely exonerate the pilot, if an earlier response to a letter of investigation from Transport Canada had not made such appearance unnecessary.

[134] When we look to mitigating factors, we must consider that pilots are required to consult the CFS prior to flight, and the testimonies of Messrs. Tardif, Holm and Montgomery were unanimous that pilots flying into Vancouver would without doubt consult the VTA. I consider that the availability of this information to pilots, during that 25-day period when the NOTAM was unavailable, is a mitigating factor. I am of the view that a penalty for this first offence in the amount of $1000 is adequate when one considers such factors as deterrence (not an issue), as well as safety and mitigation discussed above.

[135] Nav Canada stated that the actions of Transport Canada have been directed to compelling it to manage, operate and develop AIS in the manner Transport Canada deems appropriate in the exercise of Transport Canada's judgment and discretion. This is an improper use of its regulatory authority. I do not believe that Transport Canada was interfering with the management of Nav Canada. The Minister has responsibility for regulation of aeronautics and supervision of all matters connected therewith, pursuant to section 4.2 of the Act. This prevailing responsibility lies with the Minister qua regulator, the want of which may carry crown liability. Such was the decision confirmed at the Federal Court of Appeal in Swanson Estate v. Canada [1991] F.C.J. no. 452.

[136] The Minister stated that in accordance with its role as a regulator, and with its obligations to monitor, prevent and encourage corrective action, Transport Canada officials issued directions to Nav Canada in respect of its provision of AIS, pursuant to annex 15 to the Convention. To this end, Nav Canada stated in evidence that it would always follow Transport Canada's directions, whether in agreement or not, and did so in respect of the subject NOTAMs in the second and third notices of assessment of monetary penalty.

VIII. COSTS

[137] Subsection 19(1) of the TATC Act provides as follows:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

[138] As indicated at the close of submissions on March 3, 2009, the Tribunal has the limited jurisdiction set out above to award costs of a punitive nature. Consequently, we have no need to address costs.

[139] I thank the parties and their counsel for their professionalism and diligence in the preparation of all of their excellent submissions herein.

IX. DETERMINATION

A. File No. H-3472-40

[140] The notice of assessment of monetary penalty is dismissed. The Minister of Transport did not prove, on the balance of probabilities, that Nav Canada contravened subsection 803.01(2) of the CARs.

B. File No. H-3473-40

[141] I find that the Minister of Transport has established, on a balance of probabilities, that Nav Canada failed to issue a timely NOTAM, thereby contravening subsection 803.01(2) of the CARs. However, I also find that the applicant is not liable for the contravention, pursuant to section 8.5 of the Aeronautics Act, having demonstrated to the Tribunal that it exercised all due diligence to prevent the contravention.

C. File No. H-3474-40

[142] I find that the Minister of Transport has established, on a balance of probabilities, that Nav Canada contravened subsection 803.01(2) of the CARs. However, I reduce the monetary penalty from $25 000 to $1 000.

August 26, 2009


Appeal decision
Suzanne Racine, J. Richard W. Hall, Elizabeth MacNab


Decision: December 14, 2010

Citation: Canada (Minister of Transport) v. NAV CANADA, 2010 TATCE 30 (appeal)

Heard at Ottawa, Ontario, on February 3, 2010

Held: The Appeal is allowed. The Appeal Panel finds that the Review Member erred in law in analyzing the entire circumstances relevant to this matter by not properly taking into account all of the other relevant factors relating to the assessment of penalties. The penalty is increased from $1 000 to $12 500.

File Nos. H-3472-40

H-3473-40

H-3474-40

I. THREE FILES WERE APPEALED BY TRANSPORT CANADA

(H-3472-40, H‑3473-40 and H-3474-40)

A. Background

[1] The provision of air navigation services internationally is governed by the Convention on International Civil Air Navigation ("Convention", "Chicago Convention") and its Annexes. Until 1996, air navigation services in Canada were provided by the federal Department of Transport (Transport Canada). That year, however, responsibility for the provision of these services was transferred to NAV CANADA, a private not‑for‑profit corporation, by the Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20 ("CANSCA"). This statute gave Nav Canada the exclusive authority to provide certain air navigation services, including aeronautical information services ("AIS") and, by section 9, it required Nav Canada to

. . . provide all users with the civil air navigation services that the Department of Transport provided immediately before the transfer date and shall do so to the same extent as the services were provided by the Department of Transport.

[2] In addition to this requirement, regulations were made under the Aeronautics Act ("Act") regarding the provision of such services, including section 803.01 of the Canadian Aviation Regulations ("CARs").

[3] This Appeal relates to three files that will be discussed separately. They all involve alleged contraventions of subsection 803.01(2) of the CARs, which states:

803.01(2) No person shall provide aeronautical information services except in accordance with the standards set out in Annexes 4 and 15 to the Convention.

[4] A Review Hearing on all three matters was held before the Review Member, Faye H. Smith, who was at that time the Chairperson of the Transportation Appeal Tribunal of Canada ("Tribunal"), on November 24, 25 and 26, 2008, and March 3, 2009, and a determination was issued on August 26, 2009.

File No. H-3472-40

[5] This file deals with six occasions where it was alleged that services were not provided in accordance with subsection 803.01(2), on the grounds that NAV CANADA did not demonstrate adequate aeronautical information quality management in accordance with the standards set out in Annexes 4 and 15 to the Convention. The Review Member found that the Minister of Transport failed to prove this charge.

File H-3473-40

[6] This file is based on a failure to comply with the standards set out in Annex 15 by failing to issue a timely Notice to Airmen (NOTAM). The Review Member found that this contravention had been proven but that a defence of due diligence applied.

File H-3474-40

[7] This file is also based on the failure to issue timely NOTAMs. The Review Member found that the contravention had been proven but she reduced the penalty assessed by the Minister from $25 000 to $1 000.

B. Grounds of Appeal

[8] The Minister set out 10 grounds of appeal that related to specific files, and they will be discussed in that context.

[9] In addition, two general grounds of appeal were listed as follows:

11. The Member made an error in law in relying on uncorroborated hearsay evidence in certain instances, and

12. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

II. STANDARD OF REVIEW ON APPEAL

A. Arguments

[10] The Appellant referred to Minister of Transport v. Arctic Wings Ltd., [2006] TATC file no. W-2902-41 (appeal) for the proposition that, in an appeal, the standard of review for findings of fact is "reasonableness" and for questions of law it is "correctness".

[11] The Respondent referred to Dunsmuir v. New Brunswick, [2008] 1 S.C.R., for the same proposition. As well, the Respondent referred to Billings Family Enterprises v. Canada (Minister of Transport), [2008] F.C.J. No. 17, where it was held that an Appeal Panel should give considerable deference to the Review Member's findings of fact and credibility, but that the Appeal Panel is entitled to its own view of the law.

B. Analysis

[12] There seems to be substantial agreement between the parties on the standard of review and the Appeal Panel accepts their analysis.

[13] Section 14 of the Transportation Appeal Tribunal of Canada Act ("TATC Act") provides that an appeal shall be on the merits based on the record of the proceedings of the Review Hearing and any oral argument put forth by the parties at the Appeal Hearing. The Appeal Panel has reviewed the record and has heard argument at the Appeal Hearing.

III. FILE H-3472-40

A. Background

[14] The six counts of this charge are based on the existence of NOTAMs making permanent changes to the information on various aeronautical charts that, on February 5, 2007, had been outstanding for more than three months without the changes being made on the charts. In fact, these NOTAMs had all been issued between April and September 2005. It was alleged that the long‑standing nature of these NOTAMs constituted a failure to provide AIS in accordance with the Annexes, as required by section 803.01(2) of the CARs, in that their long standing nature showed that there was inadequate aeronautical information quality management as required by Annex 15.

[15] The inadequacies were first, the failure to produce a non-conformance report relating to an operationally significant permanent change as required by its internal Quality Management System ("QMS") and, second, the failure to publish a timely Aeronautical Information Publication ("AIP") amendment reflecting the change. The full wording of the six counts is set out in the Annex to this Appeal Decision.

[16] The first of the six counts in relation to the long-standing NOTAMs also alleged that the requirements of section 1.3.3 of Annex 4 had not been met. Section 1.3.3 provides as follows:

1.3.3 A Contracting State shall take all reasonable measures to ensure that the information it provides and the aeronautical charts made available are adequate and accurate and that they are maintained up to date by an adequate revision service.

[17] While section 1.3.3 is not mentioned in the other five counts, each count alleges that ". . . nor did NAV CANADA publish a timely aeronautical information publication amendment reflecting this change."

[18] In dealing with this issue, the Review Member agreed with NAV CANADA's argument that the requirement for timely notice of a revision could be met by the issuance of a NOTAM.

[19] Annex15 is entitled "Aeronautical Information Services. Section 3.2 is headed "Quality System", and section 3.2.1 provides as follows:

Each Contracting State shall take all necessary measures to introduce a properly organized quality system containing procedures, processes and resources necessary to implement quality management at each function stage as outlined in 3.1.7. . . The execution of such quality management shall be made demonstrable for each function stage, when required.

[20] The function stages referred to in section 3.1.7 of Annex 15 require an aeronautical information service to

. . . receive and/or originate, collate or assemble, edit, format, publish/store and distribute aeronautical information/data concerning the entire territory of the State as well as areas in which the State is responsible for air traffic services outside its territory . . . .

[21] Section 3.2.2 of Annex 15 is a recommendation that the quality system required by section 3.2.1 of Annex 15 ". . . should be in conformity with the International Organization for Standardization (ISO) 9000 series of quality assurance standards . . . ."

[22] NAV Canada has a quality system certified as meeting the requirements of ISO 9000 and was subject to audits respecting it by authorized companies. The Review Member found that, in spite of the failure to provide non-conformance reports as requested by Transport Canada, there were adequate tracking mechanisms relating to the status of the NOTAMs to indicate that there was adequate quality control.

B. Grounds of Appeal

(1) Minister of Transport

[23] The grounds of appeal concerning file H-3472-40 are as follows:

  1.  
    1. The Member erred in law in the interpretation and applications of section 1.3.3 of Annex 4 and sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1 of Annex 15 of the Convention on International Civil Aviation (Convention also known as the Chicago Conventionand the International Civil Aviation Organization (ICAO) Convention;
    2. The Member's finding of fact at paragraph 82, that there was insufficient evidence to demonstrate a failure of Nav Canada's Quality Management System ("QMS") was unreasonable;
    3. The Member's finding of fact at paragraph 82, in determining that failure to provide six non‑conformances for NOTAMs that were over 90 days old within a week did not result in proof of failure to have quality control, was unreasonable;
    4. The Member's finding of fact at paragraph 82 that implied that the maintaining of an ISO certification is an indication that the company has a QMS, was unreasonable.

C. Arguments

(1) Appellant

[24] The Minister argues that the Review Member made an error in law in determining that an error could be corrected either by amending an AIP or by the issue of a NOTAM. This interpretation ignores the requirement to "take all reasonable measures to ensure that the information . . . and the aeronautical charts made available are adequate and accurate and that they are maintained up to date by an adequate revision service", as required by section 1.3.3 of Annex 4. While the Minister accepted that the initial notice of a permanent change could be given by a NOTAM, to hold that this would be the only notification required would lead to the possibility that no changes would be made other than by a NOTAM and pilots consulting a large volume of them could miss important safety information. Further, the correction of charts by a NOTAM violates the requirement in Annex 4 that such charts be "adequate and accurate".

[25] The Minister also argues that in paragraph [56] of her determination, the Review Member erred in holding that ". . . expert members of specialized tribunals cannot substitute their opinions for those of the witnesses and are not entitled to cast about and create evidence", in reaching her conclusion that the Convention does not require amendments to be effected within any particular number of days. While the Minister agrees that no specific number of days is required, the amendments were not made in accordance with NAV CANADA's own internal policies. The words "adequate and accurate" (section 1.3.3 of Annex 4) must be given some meaning, and NAV CANADA has established a meaning in its policies.

[26] Further, the Minister argues that the Review Member erred in law in concluding that a failure to provide a non-conformance report 90 days after a NOTAM still in existence, making a permanent change to a chart does not show a failure to have adequate quality control and does not mean that NAV CANADA does not have an adequate QMS as required by Annex 15.

[27] While the Appellant agrees that failure to issue a non-conformance report does not automatically show an inadequate QMS, in reaching her conclusion on this matter, the Review Member failed to take into account evidence of numerous long-term NOTAMs, coupled with NAV CANADA's unawareness of the magnitude of the issue until May 2006. The Minister maintains that NAV CANADA's QMS was inadequate because, even after the problem was identified during Transport Canada audits in 2003 and 2004, NAV CANADA did not take corrective action in accordance with its internal procedures document that required the issue of a non‑conformance report within 90 days, nor did NAV CANADA amend the charts within its "realistic standard" of 144 days. In fact, NAV CANADA was not aware of the full extent of the problem until May 2006. At that time, there were 170 long‑standing NOTAMs, and that number had not changed by the time the Notice of Assessment Monetary Penalty ("NAMP") was issued, although it had been reduced to 70 by the time of the Review Hearing. Benoit Tardif, in testifying for NAV CANADA, said that it did not have sufficient resources to meet Transport Canada's concerns relating to the NOTAMs.

[28] The Minister argues that although the Review Member relied heavily on the testimony of Marc Rougeot, a qualified ISO auditor employed by the British Standards Institution ("BSI") Management Systems, in reaching her conclusion, his testimony supports the opposite conclusion. While he stated that not all instances of non‑conformance require the issue of a non-conformance report, repetitive issues warrant such reports. ISO standards require that discrepancies be tracked, if not through reports, then through management meetings, and that there be objective evidence that corrective action is implemented. Further, neither Mr. Rougeot nor BSI audited this aspect of NAV CANADA's operations, although Mr. Rougeot's testimony was that, even if such an audit had taken place, it would not have affected the ISO certification. According to the Minister, although Mr. Rougeot may be qualified to determine whether an ISO certification is in effect, he cannot, however, determine whether the requirements of the CARs, and consequently of Annex 15, have been met.

[29] The Appellant submits that the evidence establishes that NAV CANADA failed to maintain a quality system "containing procedures, processes and resources necessary to implement quality management at each function stage".

(2) Respondent

[30] The Respondent, NAV CANADA, argues that the Appellant had provided no evidence to establish the meaning of the standards in the Annexes or the standard of conduct necessary for compliance with them. International standards that are incorporated into domestic law, as was done in section 803.01 of the CARs, while applying domestically, retain their character as international law and must be interpreted in accordance with the rules of treaty interpretation. According to the Vienna Convention on the Law of Treaties ("Vienna Convention"), these rules include the legislative history of a convention and its preparatory work. Further, only the Respondent had provided any evidence in relation to the usual practices of other countries in carrying out the obligations established by the standards, and this evidence did not support a finding that these obligations had been breached.

[31] The Respondent also argues that section 9 of CANSCA should be taken into account. This section stipulates that NAV CANADA must provide the same services as those provided by Transport Canada immediately before the transfer, and provide those services to the same extent as they had been provided previously by Transport Canada. This should be interpreted as limiting NAV CANADA's statutory obligation to acting in the same manner as Transport Canada in complying with Annexes 4 and 15. The Respondent noted, however, that it was committed to improving the system both to better serve its clients and to observe its contractual obligations under the Transfer Agreement with Transport Canada.

[32] With regard to the long-standing NOTAMs, the Respondent noted that there was no dispute that the information in the NOTAMs was ". . . adequate, of the required quality and timely. . . . ", in the terms of section 3.1.1.2 of Annex 15 and argued that this section does not require that information be provided through AIP amendments. While acknowledging that permanent changes to information require an AIP amendment, the Respondent argued that an error may be corrected by an AIP amendment or a NOTAM. Annex 15 does not require one or the other, and if an amendment to the AIP is required, Annex 15 imposes no particular time frame for publication.

[33] The Respondent submits that the Review Member was not in error in relying on the hearsay evidence in the email of Jean-François Mathieu, Chief, Aviation Enforcement, Transport Canada, setting out his conclusion that there was no offence in relation to NAV CANADA's QMS. Such evidence is admissible before the Tribunal, which is free to determine its weight. In this situation, the evidence was corroborated by testimony that also indicated that it reflected international practice. No contrary evidence was adduced.

[34] On the basis of the evidence presented, the Respondent argues that the Review Member did not err in holding that there had been no breach of the applicable standards in Chapters 3 and 4 of Annex 15 or that amendments to the AIP need not be made within a three month period. That NOTAMs may be in effect for longer periods is consistent with prior Transport Canada and international practices.

[35] The Respondent disagreed with the Appellant's assertion that the Review Member should have taken into account the evidence of other long standing NOTAMs in determining the adequacy of NAV CANADA's QMS. In response, it pointed out that the Appellant's own witness, Denis Blanchet, a Civil Aviation Inspector with Transport Canada, testified that, in his view, the six long standing NOTAMs that were in the NAMP demonstrated a QMS failure. The Respondent also argued that to bring up other NOTAM issues at this point was an abuse of process, since none were mentioned in the NAMP.

[36] The Respondent's position is that the Review Member was entitled to rely on Mr. Rougeot's testimony regarding the effect of failure to provide a non‑conformance report on an ISO certification of an adequate QMS. There was adequate managerial follow-up once the problem was discovered and the status of the NOTAMs was being tracked by the Publication Amendment NOTAM Tracking System ("PANTS"), thus rendering the report unnecessary. While it is true that Mr. Rougeot never audited the NOTAM process, his testimony was that, if such an audit had been carried out, it would not have affected the ISO certification.

[37] Further, the Respondent argues that the Review Member did not rely solely on the ISO certification in making her determination that there was an adequate QMS. She also took into account Mr. Rougeot's testimony that a QMS will be effective if management is aware of the weakness.

[38] Therefore, the Review Member did not make an unreasonable finding of fact in determining that there was insufficient evidence to demonstrate a failure of NAV CANADA's QMS, that failure to file non-conformance reports within 90 days does not prove failure to have quality control, and that maintaining ISO certification is evidence or an indication that NAV CANADA had a QMS.

(3) Appellant's Argument in Reply

[39] The Appellant replied to the Respondent's arguments regarding interpretation of the standards, by pointing out that their wording is clear and unambiguous and, according to theVienna Convention, should be interpreted in accordance with their ordinary meaning.

[40] The jurisprudence referred to by the Respondent relates to international treaties, which are necessarily broadly worded as opposed to the standards in Annexes 4 and 15, which are prepared by panels of experts in the field and constitute a detailed code of conduct.

[41] The argument, based on section 9 of the CANSCA, that because there may have been some long‑standing NOTAMs while Transport Canada was responsible for providing AIS, does not override section 11 of that statute, which provides that NAV CANADA is designated as the authority responsible for providing AIS for the purposes of Annexes 4 and 15. Even admitting that there were long‑standing NOTAMs when Transport Canada was responsible for their issue, without more evidence of the surrounding circumstances, no comparison can be made. Further, the issue is not whether NAV CANADA failed to cancel the NOTAMs within 90 days, but rather the failure to take any action on the matter for extensive periods of time.

[42] Section 9 of the CANSCA cannot be used to justify the failure to have a QMS because none was in effect at Transport Canada at the time of the transfer. The obligation specified in Annex 15 only came into effect in 2000, and any argument that section 9 obviates NAV CANADA's responsibilities to comply with the Annexes as they evolve ignores its responsibility to provide AIS in accordance with the Annexes.

[43] The Respondent's characterization of the Appellant's arguments concerning the existence of other long-standing NOTAMs, as reflecting an abuse of process because it was a new argument, ignores the numerous times they were referred to in evidence and documents such as the detection notices. NAV CANADA developed the PANTS in response to Transport Canada's concerns and included it in its AIS Procedures Manual, and listed it in its AIS Business Management Systems Manual among the documents forming part of its QMS. The transcript shows that the argument was made during closing arguments at the Review Hearing.

D. Analysis

(1) Interpretation of International Civil Aviation Organization (ICAO) Standards

[44] The Respondent suggests that the Minister has failed the threshold issue of establishing the standards against which the Respondent's conduct should be measured since he had presented no evidence concerning the interpretation of the standards of international practices regarding them.

[45] Further, the Respondent argues that, in order to interpret the standards, there should have been evidence of the legislative history and preparatory work at ICAO to determine the intention behind them. In support of this argument, the Respondent cited Articles 31 and 32 of the Vienna Convention and jurisprudence holding that common law rules of interpretation did not apply to international law, as well as texts stating that the governing principle of international law interpretation is to give effect to the intention of the parties; therefore on this basis, the Respondent states that monetary penalties should be set aside.

[46] The Appellant replies that the words in Annexes 4 and 15 have clear meanings, as part of a detailed code of conduct prepared by experts and, according to the Vienna Convention, should be given their ordinary meaning.

[47] Article 31 of the Vienna Convention sets out the general rule of interpretation. Paragraph 1 of the Article provides as follows:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The Article defines the context of a treaty as including other agreements relating to the treaty and provides that subsequent agreements and practices relating to it should be taken into account. Article 32 of the Vienna Convention provides that, where interpretation in accordance with Article 31 of the Vienna Convention leads to a result that is ambiguous or manifestly absurd, recourse may be had to supplementary sources such as the preparatory work and the circumstances of the Treaty's conclusion.

[48] In this matter, the Appeal Panel finds that the words of Annexes 4 and 15 are clear, plain and unambiguous and the issue is how they should apply to the circumstances set out. The object and purpose of Annex 15 is set out in its Chapter 1 and should be used in determining such application. While the Respondent has indicated that it provided evidence regarding international practices in relation to provisions in Annex 15, the evidence amounts to simple statements that such practices exist without elaboration or explanation. For example, Mr. Tardif, the Appellant's witness, testified that he knew ". . . that some countries have AIPs that are out of date" (transcript, vol II at 469) but he did not mention which countries nor did he explain in what respect they were out of date. In discussing the proposition that Annex 15 does not preclude the practice of issuing NOTAMs that remain in effect indefinitely, Mr. Tardif said that it is something that has been observed in other countries, without identifying the countries or the nature of the NOTAMs (transcript, vol III at 557).

[49] Both parties have pointed out that, in its review, the Appeal Panel is entitled to its own view of the law. In relation to the interpretation of the standards at issue, the Appeal Panel concludes that the wording of Annexes 4 and 15 is such that it does not require evidence of its preparatory work or international practice to determine its meaning. The wording of the sections in question is clear. The only issue is how they should be applied to the circumstances in these matters.

(2) Necessity for Aeronautical Information Publication Amendments

[50] The first ground of appeal is that the Review Member erred in law in interpreting and applying section 1.3.3 of Annex 4 and sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1 of Annex 15.

[51] The Appellant argues that the Review Member's finding, that an error on a chart may be corrected either by a NOTAM or an AIP amendment, ignores the requirements set out in section 1.3.3 of Annex 4 that aeronautical charts be accurate and maintained by an adequate revision service.

[52] In reply, the Respondent argues that the information in the NOTAMs met the requirements in section 3.1.1.2 of Annex 15 and that, notwithstanding the requirement of section 1.3.3 of Annex 4, an error in an AIP may be corrected by either an amendment or a NOTAM.

[53] The Review Member adopted the Respondent's position on this point, on the basis of Mr. Tardif's testimony, that all the charts were eventually amended to show the changes, and this position was consistent with her own interpretation of Chapters 3 and 4 of Annex 15.

[54] It is common ground between the parties that the aeronautical charts at issue are AIPs while NOTAMs are not. Consequently, Annex 4 must be interpreted in concert with Annex 15, as it relates to such publications. Section 4.3 of Annex 15 is entitled "Specifications for AIP Amendments" and section 4.3.1 provides as follows: "Permanent changes to the AIP shall be published as AIP amendments." To the Appeal Panel, this wording seems to be clear and unequivocal. If a change to an AIP is permanent, it must be published as an AIP amendment. While the Respondent, in paragraph 98 of its written submissions, seems to accept this proposition, it argues that where the change is a correction of an error in an AIP, it can be done either by an amendment or a NOTAM. The Respondent gives no explanation other than the statements of the witness, as to why there is a distinction between a change that is substantive and one that corrects an error. While the Appellant has accepted that an initial notification of a change or correction may be given by a NOTAM, reading the reference to "an adequate revision service" in section 1.3.3 of Annex 4 together with the requirement, section 4.3.1 of Annex 15 leads to the conclusion that an adequate revision system must include an amendment to the AIP Chart. In light of this, the Appeal Panel disagrees with the decision reached by the Review Member on this aspect of her determination.

[55] Each count of the NAMP alleges that NAV Canada did not publish a timely AIP amendment reflecting the change to the Chart. Given that the Appellant has accepted that the initial notice of the change may be given by a NOTAM, the issue is then whether there was a timely failure to publish an AIP amendment. While section 4.3.1 of Annex 15 requires that an amendment be published, it does not establish a time frame for doing so. However, the Appellant has argued that a time frame of 90 days was established by NAV Canada's own internal policies. While these policies may set goals for NAV Canada, and it was admitted during testimony that they may be unrealistic, this argument cannot, from the Appeal Panel's perspective, support a charge related to a breach of sections 3.2.1 or 4.3.1 of Annex 15.

[56] While the number of long-standing NOTAMs is not relevant to determine the adequacy of the QMS, it may be taken into account in determining what constitutes timelines. The Appeal Panel recognizes that the number of NOTAMs outstanding would require time both to determine how to deal with the necessary amendments and to actually indicate these amendments to the specific charts. Given that this process had begun by the time of the Review Hearing, the Appeal Panel finds that, in the circumstances, the amendments were being made in a timely manner.

(3) Quality Management System (QMS) Requirements

[57] The Appellant also appealed on the basis that the Review Member erred in law in her interpretation of sections 3.1.7 and 3.2.1 of Annex 15, relating to the requirement for a QMS. This matter will be considered together with the second, third and fourth grounds of appeal, each of which alleges that the Review Member made an unreasonable finding of fact concerning the QMS. These grounds will be dealt with in reverse order, since that order best fits the contextual development of the arguments before the Tribunal.

[58] Section 3.2.1 of Annex 15 requires the establishment of a QMS that contains "procedures, processes and resources" necessary to implement and demonstrate quality management at each of the function stages, set out in section 3.1.7. Section 3.2.2 is a recommendation that the QMS should be in conformity with ISO 9000. This section is followed by a note that ISO 9000 provides a QMS framework but the details will be formulated by each State and, in most cases, will be unique to that State.

[59] The fourth ground of appeal advanced by the Appellant is that the implied finding by the Review Member, that the maintaining of an ISO certification as an indication that NAV Canada had a QMS, is unreasonable. The Appeal Panel finds that this ground of appeal cannot be sustained. The recommendation in Annex 15 is clear that ISO certification provides, at the least, a framework for a QMS and consequently, the existence of such a certification indicates that a system is in place. Whether that system is adequate to meet the requirements of section 3.2.1 of Annex 15 may remain to be determined in the light of all the circumstances, but it is not unreasonable to take its existence into account as a factor in that determination.

[60] The third ground of appeal is that the Review Member's finding of fact, that the failure to provide six non-conformance reports for NOTAMs that were over 90 days old within a week did not result in proof of failure to have quality control, is unreasonable. In argument, however, the Appellant takes the position that it was not the failure to provide non‑conformance reports alone that showed a failure to have an adequate QMS, but rather the surrounding circumstances of the existence of numerous long-standing NOTAMs over several years with little improvement in the situation. The Appellant also points out that in dealing with the matter, NAV Canada did not follow its own internal procedures manuals, which required that a non-conformance report be filed after a NOTAM had been in existence for 90 days.

[61] In response, the Respondent argues that a QMS does not require non‑conformance reports, but rather must include a means for management to be aware of and monitor problems in the system. In this case, a monitoring system, PANTS, was established to track NOTAMs. The Respondent also refers to the evidence of the ISO auditor that a QMS allows for errors, so long as corrective measures are being taken.

[62] As pointed out by the Appellant, there were systemic problems that resulted in numerous long-standing NOTAMs being in effect. The evidence shows that, in an effort to correct the situation, a series of changes were put into effect, including the transfer of responsibility from one office to another and eventually to NAV CANADA Headquarters and the introduction of the PANTS.

[63] The Appeal Panel accepts that a QMS will allow for errors. The requirement in Section 3.2.1 of Annex 15 requires that the QMS demonstrate quality management at each function stage mentioned in section 3.1.7 of Annex 15. The "function stage" at issue seems to be the publication of the information. Both parties seem to agree that the requirement is, not that the publication process be perfect, but rather that there be a means of identifying and tracking problems and a system for correcting them.

[64] The six counts of the NAMP allege that the failure to provide a non-conformance report is a failure to comply with NAV CANADA's QMS. As pointed out, however, there was a tracking system available in PANTS. In addition to tracking, however, a function of a non‑conformance report is to establish the root cause of the non-conformance. In this situation, the root cause had already been established. Therefore, the Appeal Panel finds that the determination, by the Review Member, concerning the failure to provide the six non-conformance reports, was reasonable.

[65] Similarly, the second ground of appeal that the Review Member's finding of fact, that there was insufficient evidence to demonstrate a failure of Nav Canada's QMS, is unreasonable and must fail in the opinion of the Appeal Panel. The only issue raised with respect to the adequacy of the QMS is the failure to provide the non-conformance reports. As discussed above, the Appeal Panel finds that the failure was not determinative of the system's adequacy.

[66] Given that the Appeal Panel finds that the Review Member's finding of fact with regard to the adequacy of NAV CANADA's QMS were not unreasonable, the Appeal Panel also finds that she made no error in law in interpreting the provisions of Annex 15 on this point.

(4) Section 9 of the Civil Air Navigation Services Commercialization Act ("CANSCA")

[67] It should be noted that part of the Respondent's argument was based on section 9 of theCANSCA, which provides that Nav Canada

. . shall . . . provide all users with the civil air navigation services that the Department of Transport provided immediately before the transfer date and shall do so to the same extent as the services were provided by the Department of Transport.

[68] Since Transport Canada did not have a QMS at the time of the transfer, the Respondent argues that it is not obligated to establish one, and that by doing so, it has voluntarily exceeded its statutory obligations. The Appeal Panel finds that this position is untenable.

[69] Any argument that the services provided by NAV Canada need only be exactly the same as those provided by Transport Canada at the time of the transfer can only be based on the phrase "to the same extent as the services were provided by the Department of Transport". According to the Canadian Oxford Dictionary (Second Edition), the primary meaning of the word "extent" is "the space over which a thing extends". This meaning imports a geographic aspect to NAV Canada's obligation and requires it to provide the services that Transport Canada provided outside Canada in international airspace, in accordance with international arrangements.

[70] The general principle of statutory interpretation is that words in a statute should be interpreted in a manner that is consistent with the entire Act. It is clear that the CANSCA is not intended to limit NAV Canada's activities to continually accord with the exact activities of Transport Canada at a single instant in time. The various air navigation services are defined in the CANSCA and the term "aeronautical information service" is defined as ". . . services necessary to meet those requirements of Annexes 4 and 15 to the Chicago Convention that relate to aeronautical information", without limiting the requirements to those in effect on a specific date. Section 14 and following of the CANSCA provide authority for changing services and set out procedures that must be followed in so doing.

(5) Hearsay Evidence

[71] A general ground of appeal is that the Review Member made an error in law in relying on uncorroborated hearsay evidence in certain instances. While the Appellant did not argue this ground in relation to the email of Mr. Mathieu, the Respondent suggested that it was corroborated by oral evidence and that it reflected international practice.

[72] The Appeal Panel notes that the Review Member was free to give the email whatever weight she considered appropriate. It would seem, however, that the only weight given to the email was to treat it as corroborating the testimony of Mr. Tardif, the Respondent's witness (paragraph [76] of the Review Determination). The Appeal Panel takes no issue with how the Review Member treated the email evidence.

[73] Taking all the above factors and arguments into account, the Appeal Panel does not believe that any error was committed by the Review Member in respect of the allegations in this file.

IV. FILE H-3473-40

A. Background

[74] Schedule A of the NAMP reads as follows:

1. On or about 10 May 2007, between 17:01 and 18:14 Universal Time Co-ordinated (UTC), in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services in accordance with the standards set out in Annex 15 to the Convention on International Civil Aviation, twelfth edition, specifically:

a. NAV CANADA did not issue a timely NOTAM, containing required aeronautical information, that the LOC/DME RWY 11 Instrument Approach Procedure at Gaspé, QC, was not authorized;

thereby contravening section 803.01(2) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $25,000.00.

[75] On April 27, 2007, Transport Canada informed NAV CANADA that problems associated with the Gaspé instrument approach were not clearly defined and asked NAV CANADA to issue a NOTAM indicating that the approach was not authorized. NAV CANADA issued, as directed, a "not‑authorized" NOTAM that stated it would expire on May 10, 2007 at 17:00 UTC. On April 30, 2007, Transport Canada reminded NAV CANADA about the expiry of the "not-authorized" NOTAM and asked for an appropriate corrective action. On May 10, 2007, Transport Canada advised NAV CANADA that the "not‑authorized" NOTAM had, in fact, expired. NAV CANADA issued a NOTAM at 18:15 UTC to extend the previous NOTAM. Thus, for an hour and fifteen minutes, there was no NOTAM in place to inform the aviation community about the problems with the LOC/DME RWY 11 instrument procedure at Gaspé airport (Quebec).

[76] The Review Member found that there had been a breach of the requirement to issue a timely NOTAM. However, she concluded that NAV CANADA was not liable for the contravention because it had established that it exercised the appropriate degree of due diligence pursuant to section 8.5 of the Act.

B. Grounds of Appeal

[77] The grounds of appeal concerning file H-3473-40 read as follows:

5. The Member erred in law in interpreting the law of due diligence;

6. The Member erred in law in applying the law of due diligence to the facts of the case;

7. The Member's finding of fact at paragraph 104, that the timing of the NOTAM with respect to the allegations in file H-3473-40 was not inappropriate or unreasonable, as NAV CANADA was entitled to rely on the daylight hours and favourable weather that existed prior to the issuance of NOTAM, was unreasonable;

8. The Member's finding of fact at paragraph 105, that "nothing more could have been done", was patently unreasonable.

C. Arguments

(1) Appellant

[78] The Minister submits that NAV CANADA did not demonstrate that it took every reasonable precaution to avoid the commission of the offence. The NAV CANADA due diligence defence is established entirely on the basis of uncorroborated hearsay. Therefore, the Review Member should not have accepted this evidence as the sole source of the Respondent's due diligence defence. The Appellant submits that the Review Member erred in fact in considering that the Respondent was entitled to rely upon daylight hours and favourable weather that existed prior to the issuance of a new NOTAM. NAV CANADA could and should have issued a NOTAM before the expiry of the previous one. In support of its position, the Minister noted that the Respondent conceded that it was a simple NOTAM to draft, that it had the capacity to issue it and that such a NOTAM could have been issued before the expiry of the previous NOTAM.

(2) Respondent

[79] NAV CANADA submits that it exercised due diligence and that the Review Member did not err in interpreting the law of due diligence or made an unreasonable assessment of the facts and evidence in applying the law of due diligence to the facts of the case. NAV CANADA's defence of due diligence is not based on uncorroborated hearsay. It is based on the testimony of Charles Montgomery, Director, AIS and Flight Operations, NAV CANADA, which is corroborated by the evidence adduced on the same issue by Mr. Tardif and Michael Hohm.

[80] The Respondent argues that the Review Member did not err in considering that, before the issuance of a new NOTAM, NAV CANADA could rely upon the daylight hours, the favourable weather and the fact that the pilots could fly VFR. As a result, the Respondent submits that the Appeal Panel should not interfere with these findings of fact, as they are reasonable and supported by the evidence. Indeed, NAV CANADA took all reasonable steps to avoid the 75‑minute period during which no NOTAM was issued. The Respondent was in control of the situation and re-issued the same NOTAM while working on a more accurate and effective version. Moreover, NAV CANADA submits that the simple existence of a 75‑minute period between NOTAMs is no basis for finding a breach of any of the standards in Annex 15.

[81] In summary, the Respondent submits that it provided adequate aeronautical information throughout and that the new NOTAM was issued in a timely manner in accordance with the circumstances.

D. Analysis

[82] The Review Member found that, on the balance of probabilities, the Minister had established that NAV CANADA failed to issue a timely NOTAM, in accordance with the standards set out in Annex 15. The failure to issue a NOTAM for a 75‑minute period after the expiry of the "not-authorized" NOTAM was a failure to issue a timely NOTAM, which is a contravention of subsection 803.1(2) of the CARs. Despite that conclusion, the Review Member found that, although NAV CANADA did not meet the expiry date, it was not liable because it had demonstrated that it exercised all due diligence to prevent the contravention.

[83] The Review Member relied on the fact that NAV CANADA did not overlook the matter during the 75‑minute period it chose to let the NOTAM lapse because it was already working on a NOTAM with a more appropriate content for the resolution of the IFR approach at Gaspé. The Review Member also accepted that NAV CANADA's position that it was entitled to rely upon daylight hours and favourable weather in Gaspé during the 75‑minute period it took before re-issuing the "not-authorized" NOTAM. She concluded that nothing more could be done.

[84] The Minister submits that NAV CANADA did not take all reasonable steps to avoid the offence. If it had taken all reasonable steps, a NOTAM would have been issued immediately, without a delay of 75‑minutes, to advise the aviation community that the LOC/DME RWY 11 instrument approach procedures at Gaspé were not authorized or unreliable. NAV CANADA had the capacity to issue a NOTAM on time, and the same "not-authorized" NOTAM was re-issued as directed by the Minister, only after NAV CANADA was alerted that the NOTAM had expired. The Respondent did not present direct evidence that it was working on the resolution of the matter. The Review Member relied on the testimonies of Messrs. Montgomery, Hohm and Tardif, based on information received from others. These witnesses were not directly involved in the resolution of this matter. In doing so, the Review Member accepted uncorroborated hearsay evidence as the sole source of NAV CANADA's due diligence defence.

E. Due Diligence Defence

[85] The Minister submits that the Review Member did not properly assess whether NAV CANADA exercised due diligence, as set out in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 and also codified in section 8.5 of the Act.

[86] In strict liability offences, the burden of proof rests with the Minister to establish each of the elements of the offence to the standard of the balance of probabilities. Once this has been done, the burden then shifts to NAV CANADA to prove, on the balance of probabilities, that it has exercised all due diligence to prevent the offence.

[87] NAV CANADA submits that it was already covering the problem associated with the approach at Gaspé with two NOTAMs. One NOTAM indicated that the localizer was reliable only 15 degrees on either side of the runway, while the other indicated that the LOC/DME was not reliable along the south arc between radial 183 and 285. Besides describing the conditions that were producing limitations, the two NOTAMs were also informing pilots on what they could or could not do at Gaspé. These two NOTAMs had no expiry date. Although Mr. Blanchet conceded that the two NOTAMs were giving accurate information on the situation at Gaspé, he found them confusing and asked NAV CANADA to issue a NOTAM indicating that the approach was not authorized until more information could substantiate that it was safe.

[88] NAV CANADA issued a "not-authorized" NOTAM with a fixed expiry day and time of May 10, 2007 at 17:00 UTC. While NAV CANADA was not convinced that the issuance of a "not-authorized" NOTAM was the solution to deal with the situation in Gaspé, it proposed to work meanwhile on a more appropriate NOTAM. On April 27, 30 and May 1, 2007, the Minister informed NAV CANADA that he was expecting a corrective action before the expiration of the NOTAM on May 10, 2007 at 17:00 UTC. When that NOTAM expired, NAV CANADA was still in the process of developing an appropriate NOTAM and decided not to extend the existing NOTAM since the flying and meteorological conditions were visual at Gaspé. The 75‑minute period without a NOTAM was a deliberate exercise of judgement by NAV CANADA, who had not lost sight of the situation.

[89] Due diligence involves a consideration of what a reasonable person or company would have done under the same circumstances and whether the alleged offender took all reasonable steps to avoid the offence. The required degree of care is related to the special circumstances of each case's factual setting: see e.g. R. v. Gonder (1981) 62 C.C.C. (2d) 326.

[90] In Grain Growers Export Co. v. Canada Steamships Lines Ltd. (1918) 43 O.L.R. 330, Justice Hodgins wrote that due diligence entails: ". . . not merely a praiseworthy or sincere, though unsuccessful, effort, but such an intelligent and efficient attempt as shall make it so, as far as diligence can secure it." In that case, the "make it so" expression related to the obligation of an operator to make its ship seaworthy.

[91] Did NAV CANADA take all reasonable steps to issue a timely NOTAM, with respect to the approach procedure at Gaspé, and therefore avoid a 75‑minute gap, where it was impossible to know if the LOC/DME instrument approach was authorized at Gaspé?

[92] The Appeal Panel agrees with the Appellant that NAV CANADA did not exercise all due diligence to issue a timely NOTAM and prevent the 75‑minute gap. NAV CANADA deliberately issued a "not‑authorized" NOTAM with an expiry date, choosing to work on developing a more appropriate NOTAM. Although NAV CANADA was informed several times that a corrective action should be taken at Gaspé, NAV CANADA deliberately let the "not‑authorized" NOTAM expire so that there was a lapse of 75 minutes.

[93] Had NAV CANADA issued the "not-authorized" NOTAM without an expiry date, it could have drafted the appropriate NOTAM, which needed time, consultation and effort while the "not-authorized" NOTAM was still in force. Alternatively, the Appeal Panel agrees that NAV CANADA could have re-issued the "not-authorized" NOTAM, even though it was not the preferred option before it expired, while it prepared the ideal NOTAM to deal with the approach procedure at Gaspé.

[94] While it might be said that NAV CANADA had not lost sight of the matter, that the weather was favourable for visual flying conditions during the 75‑minute gap and that there was no need for the pilots to fly IFR, these defences ignore NAV CANADA's capacity to issue a NOTAM on time to deal with the situation at Gaspé. NAV CANADA, which is responsible for the management, operations and development of AIS, had the capacity and the expertise to resolve the matter with a NOTAM. The eventual decision by NAV CANADA to re‑issue the "not‑authorized" NOTAM is due largely to the Minister's diligence in overseeing the situation.

[95] In the Appeal Panel's opinion, the Review Member erred in her application of the due diligence defence. Her conclusion that "nothing more could have been done" contradicts clearly the testimony of NAV CANADA's own witness, Mr. Tardif, that NAV CANADA had the capacity to issue a NOTAM before the expiry of the previous one.

F. Hearsay

[96] The Minister submits that NAV CANADA did not present direct evidence that it was working on the resolution of the instrument approach procedure at Gaspé. Messrs. Montgomery, Tardif and Hohm were not directly involved and did not have direct knowledge of the issue. The Appellant argues that the Review Member erred in law while relying on uncorroborated hearsay evidence as the sole proof of the Respondent's due diligence defence. By choosing to adduce the evidence through members of its management, the Minister submits that NAV CANADA shielded the evidence from cross-examination.

[97] NAV CANADA argues that the availability of the defence of due diligence to a corporation depends upon whether such due diligence was taken by those who are the directing mind and will of the corporation as noted in R. v. Sault Ste-Marie cited above. Although he may not have had a first-hand knowledge of the facts on the issue, Mr. Montgomery, who is the Director of AIS and Flight Operations, NAV CANADA, could nevertheless attest to the events. Mr. Montgomery's testimony was corroborated by the testimonies of Messrs. Tardif and Hohm on the same issue.

[98] Section 15(1) of the TATC Act states as follows:

15. (1) Subject to subsection (2), the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it, and all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

[99] Before administrative tribunals, evidence is considered a procedural matter and administrative law decision makers are masters of their own procedure. This is because Tribunal Members are expected, in part, to apply common sense to the consideration of evidence. Hearsay evidence is therefore admissible and its weight is a matter for the Tribunal to decide, unless its receipt would be a clear denial of justice or if it is irrelevant to the matter to be judged.

[100] Although Mr. Montgomery had some knowledge that NAV CANADA was assessing the situation and was developing a more appropriate NOTAM, he testified that he was not personally involved in the resolution of the approach procedure at Gaspé. He received or obtained his information from others. The same observation applies to Messrs. Tardif and Hohm's testimonies. The evidence adduced from Messrs. Montgomery, Tardif and Hohm is considered hearsay evidence, although relevant evidence. NAV CANADA did not present any direct evidence that it was working at developing a NOTAM to bring a solution to the Gaspé issue.

[101] The Tribunal has repeatedly affirmed that uncorroborated hearsay evidence should not be relied upon as the sole proof of an allegation. In Canada (Minister of Transport) v. Rowan, 1997 CAT file no. A-1500-33 (review), it was alleged that a pilot did not comply with an air traffic control clearance. Evidence adduced as to one of the elements of the offence was uncorroborated hearsay. The Member found that he could not accord that evidence any weight and, therefore, dismissed the allegation.

[102] In Canada (Minister of Transport) v. 641296 Ontario Inc. (North East Air Services), 1997 CAT file no. O-1342-37 (review), it was alleged that there were flights flown but they were not entered in a journey log book. The evidence relied on aircraft movement records compiled by an employee of Statistics Canada, who was unable to confirm or deny that flights took place, was rejected as being insufficient proof. In Sierra Fox Inc. v. Canada (Minister of Transport), 2005 TATC file no. O-2997-41 (appeal), the Appeal Panel rejected Daily Air Traffic Records submitted otherwise than in testimony at the proceedings, as proof of the truth of their contents because the proof of the allegation relied solely on uncorroborated hearsay.

[103] The Appeal Panel finds that the evidence adduced by NAV CANADA on the question of knowing whether NAV CANADA was working at resolving the issue at Gaspé with a more appropriate NOTAM is based on uncorroborated hearsay evidence. In the context of this case, the Appeal Panel cannot accept this uncorroborated hearsay evidence to support NAV CANADA's position.

G. Breach of Annex 15 to the Convention

[104] The Respondent also asks the Appeal Panel to uphold the determination on the grounds that there was no breach of Annex 15.

[105] NAV CANADA bases its arguments that the Appeal Panel may overturn the Review Member's finding that a breach occurred on statements by the Supreme Court of Canada in R. v. Keegstra, [1995] 2 S.C.R. 38, where it was held that a Respondent in an appeal may raise any argument that supports the decision appealed from even if that argument had been unsuccessful in the court below. The Respondent submits that the provisions of Annex 15 do not establish a specific time requirement for the issue of a NOTAM, and a 75‑minute period between NOTAMs is not a basis for finding a breach of the standards in Annex 15. The Respondent stated that it provided adequate aeronautical information throughout, and the NOTAM was issued in a timely manner or promptly, in accordance with the circumstances based on the weather and on the fact that Gaspé was not a busy airport.

[106] The Appellant argues that, if the Review Member's finding with regard to a breach of Annex 15 (and consequently of subsection 803.01(2) of the CARs) is to be challenged, a cross‑appeal should have been filed by NAV CANADA. In support of this, the Minister cited R. v. Guillemette, [1986] 1 S.C.R. 356, where it was held that only the Crown could appeal an acquittal so that a decision to order a new trial on an appeal by the accused, who had been convicted of a lesser offence, amounted to an error in law since it implicitly overturned the acquittal on the original charge. The Appeal Panel notes that R. v. Guillemette was cited inR. v Keegstra, as an example of a limitation on appellate jurisdiction where the respondent itself had not appealed on an issue. Further, in R. v. Keegstra, the Court held that the provision in section 29 of the Rules of the Supreme Court of Canada, SOR/83-74, that specifically authorizes a respondent to seek to uphold a judgement on grounds not raised in the reasons for that judgement, does not establish an independent avenue for cross‑appeals.

[107] In this matter, the Review Member found that the alleged breach had taken place. It is difficult to see how an argument that there was, in fact, no such breach could be said to support this finding. It seems to the Appeal Panel to be more in the nature of a direct challenge to the Review Determination that could only be founded upon a cross-appeal by the Respondent.

[108] Consequently, the Appeal Panel finds that the Respondent's position on this matter does not meet the criterion set out in R. v. Keegstra and so does not believe that it could substitute its own decision with respect to whether the Review Member was right to find that NAV CANADA contravened subsection 803.01(2) of the CARs.

[109] The fact that NAV CANADA's written submissions only ask the Appeal Panel to dismiss the Appeal, and not overturn the original decision, certainly strongly suggests that NAV CANADA originally appreciated this distinction.

[110] Transport Canada has assessed a $25 000 monetary penalty to NAV CANADA for having failed to provide information services that comply with Annex 15 to the Convention. NAV CANADA has indeed failed to have a NOTAM in place to advise the aviation community about the problems with the instrument procedure at Gaspé airport for one hour and fifteen minutes. The $25 000 monetary penalty assessed by Transport Canada is the maximum amount available for a subsequent offence to subsection 803.01(2) of the CARs.

[111] The Appeal Panel agrees that several facts constitute aggravating circumstances. First NAV CANADA did not issue a NOTAM until April 5, 2007, although the problem with the instrument procedure at Gaspé airport existed in July 2006. Second, NAV CANADA has been unable to issue a NOTAM clearly explaining the problem associated with the approach. NAV CANADA also had to be directed by Transport Canada to issue a not authorized NOTAM until more information could substantiate the safety of the approach. NAV CANADA chose to issue the not authorized NOTAM with an expiry date and let the NOTAM lapse for one hour and fifteen minutes, despite being informed twice by Transport Canada of its impending expiry. Lastly, NAV CANADA could have easily reissued the not authorized NOTAM with a different expiry date but failed to do so.

[112] The Appeal Panel also agrees that it is necessary that the penalty assessed has a deterrent effect in order to achieve its goal. Since the Appeal Panel has dismissed the Appeal in five prior alleged contraventions to subsection 803.01(2) of the CARs, this contravention now constitutes a first offence to this subsection. The Appeal Panel is of the opinion that the recommended maximum amount of $5 000, set out in the Aviation Enforcement Procedures Manual ("AEPM"), is justified in the circumstances and has the necessary deterrent effect.

V. FILE H-3474-40

A. Background

[113] Concerning the charge in this matter, Schedule A of the NAMP reads as follows:

1. On or about 23 July 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services in accordance with the standards set out in Annex 15 to the Convention on International Civil Aviation, twelfth edition, specifically:

a. NAV CANADA did not issue a timely NOTAM, containing required aeronautical information, that CYA 140 and CYA 165 on the Vancouver, British Columbia VFR Navigational Chart (VNC) 19th edition should read "CYR 140 and CYR 165" respectively;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $25,000.

[114] In reviewing the 19th edition of the Vancouver VNC, Transport Canada discovered that there were two errors where specified areas of airspace were described as CYA (Advisory) when they should have been described as CYR (Restricted). Transport Canada advised NAV CANADA of these errors in late July, and asked, on August 2 and 10, 2007, that NOTAMs correcting the errors be issued. On August 14, 2007, some 25 days after NAV CANADA was first informed of the error, Transport Canada directed that NOTAMs be issued, and they were issued the same day. NAV CANADA argued that the correct information was available to pilots in other documents that they should consult before entering the airspace. In the case of CYR 165, it was properly described in the planning section of the Canada Flight Supplement (CFS) and CYR 140 was properly designated in the Vancouver VTA Chart. While this latter document is not a required chart under Annex 4, it describes a portion of the Vancouver VNC on a larger scale and includes information not available on that Chart.

[115] The Review Member found that the errors on the Chart should have been corrected and that the delay in doing so did not accord with the timelines requirements of Annexes 4 and 15. She found, however, that there were mitigating circumstances in that Transport Canada had not shown that there were any safety implications involved and that the correct information was available. She also noted that the assessed penalty of $25 000 was five times the amount suggested in Transport Canada's guidelines for a first offence. Taking these matters into account, the Review Member reduced the penalty to $1 000.

B. Grounds of Appeal

[116] The grounds of appeal concerning file H-3474-40 are as follows:

9. The Member erred in law the application of mitigating factors to the decision with respect to sanction;

10. The Member's finding of fact at paragraph 133-134, that there were no safety implications with regard to the two NOTAMs at issue, was patently unreasonable.

C. Arguments

(1) Appellant

[117] To begin with, the Appellant submits that the Review Member did not err in finding that the failure to issue NOTAMs correcting two errors on the Vancouver VNC Chart, which wrongly identified CYR airspace as CYA airspace, was deliberate and contravened subsection 803.01(2) of the CARs. However, the Appellant argues that the Review Member did err in concluding that deterrence was not an issue in the proceeding and in that she only considered the safety implications of the breach and did not give weight to other relevant considerations, such as security, efficiency and regularity of civil aviation, in reducing the penalty from $25 000 to $1 000.

[118] In Canada (Minister of Transport) v. Wyer, 1988 CAT file no. O‑0075‑33 (appeal), the Tribunal has held that the appropriate considerations in determining the amount of a monetary penalty include at least denunciation, deterrence, rehabilitation and enforcement recommendations.

(2) Respondent

[119] The Respondent argues that the Review Member properly applied the law in relation to penalties, and that the findings of fact upon which she based her determination of mitigation were not unreasonable. It noted that there was no minimum penalty prescribed.

[120] Alternatively, the Respondent submits that the Review Member erred in her interpretation of the law and that the Appeal Panel is entitled to substitute its own opinion on legal issues. From the Respondent's perspective, the Review Member erred by ruling that pilots could be confused, as to which information could be relied on in the differences between the VNC and the CFS and between the VNC and the VTA. The correct information in one case was in the CFS, which is more authoritative than the Chart. The VNC also directs the user to consult the VTA, which contained the correct classification of the other airspace. The Respondent's position is that the Review Member erred in law in holding that a pilot was not obligated to consult the VTA because it is not an AIP, since the obligation to consult arises from section 602.71 of theCARs, which requires pilots to use the best available information regarding flights.

[121] The Respondent argues that the Review Member also erred in law in holding that Annexes 4 and 15 require that a NOTAM be issued in these circumstances. No specific provisions of Annex 15 were identified in the NAMP but the Minister essentially relied on section 5.1.1.1n) of Annex 15, which provides that a NOTAM must be issued where there are changes "in the status of prohibited, restricted or danger areas" and on section 5.1.1.2. of Annex 15, which recommends that NOTAMs be considered in any other circumstances that may affect aircraft operations. In this case, there was no obligation to issue a NOTAM since the information on the VNC was an error and not a change in the status of the airspace that requires a change in the Transport Canada's Designated Airspace Handbook. Section 5.1.1.2 of Annex 15 is only a recommendation.

(3) Appellant's Argument in Reply

[122] The Appellant responded that, in the absence of a cross-appeal, there was no means of rearguing the question of whether there had been a breach of Annex 15.

D. Analysis

[123] The Respondent's argument, that the Review Member erred in finding that there was a breach of Annex 15, and thus subsection 803.01(2) of the CARs has been addressed in the discussion relating to the finding of a breach in file H-3473-40. That reasoning also applies in this file.

[124] The Review Member based her decision on section 3.1.1.2 of Annex 15, which requires that aeronautical information provided be "adequate, of required quality and timely". She found that adequacy required that the errors on the Chart be corrected, and that a delay of 25 days in correcting the erroneous information by NOTAM did not meet the requirement of timeliness. The Appeal Panel agrees with that observation.

[125] In considering the amount of the penalty, the Review Member noted that it was far in excess of the recommended amount of $5 000 for a first offence, as set out in Transport Canada's AEPM. She also considered that there were mitigating factors that justified a reduction of the recommended penalty for a first offence, in that there was no evidence of a safety threat and that pilots were directed to consult documents that included the correct information. She also held that deterrence was not a factor to be considered in this matter, although she did not expand on this conclusion. She did mention, however, that NAV Canada did issue the NOTAMs as soon as Transport Canada directed them to do so.

[126] The Appellant claimed that the Review Member's finding, that there were no safety implications with regard to the two NOTAMs at issue, was patently unreasonable. The Appeal Panel finds that this ground is not justified. There was no evidence presented to show that any safety issue had actually arisen nor was there evidence to show that any effect on safety was likely.

[127] The other ground of appeal on this issue was that the Review Member had erred in law in the application of mitigating factors with respect to sanction. The argument on this point seems to focus more on the lack of consideration of all factors relating to the determination of a monetary penalty than to specific issues of mitigation.

[128] As noted above, the Tribunal has set out the principles relevant to determining an appropriate monetary penalty in Canada (Minister of Transport) v. Wyer, (1988), CAT file no. O‑0075‑33 (appeal). The factors articulated by the Tribunal in that case included both general and specific deterrence. While the Appellant has admitted that there is no element of general deterrence involved, once an offence has been found to be committed, some consideration must always be given to deterring the offender from further contraventions.

[129] In this situation, NAV Canada had its own interpretation as to what was required once the errors on the Chart had been discovered. Once NAV CANADA was aware that the attitude of Transport Canada as regulator was different, it maintained its position that no NOTAMs were necessary. That said, NAV CANADA does not seem to have explained or tried to justify their position to Transport Canada. While NAV Canada may form an opinion about the meaning of the Annexes, it cannot ignore a different interpretation by Transport Canada.

[130] The Appeal Panel agrees with the Review Member's statement at paragraph [135] of her determination that Transport Canada was not attempting to interfere with the management of NAV Canada but was rather carrying out the Minister's responsibility under section 4.2 of theAct for the regulation and supervision of all matters relating to aeronautics. The attitude of NAV Canada in holding to its position without explanation is a matter to be considered in relation to deterrence.

[131] The Review Member based her assessment of the amount of the penalty, in part on the assumption that it was a first offence and that the recommended penalty in the AEPM for a first contravention of subsection 803.01(2) is $5 000. In fact, the offence is at least the second contravention of the subsection, and the recommended penalty is $12 500. While the Review Member found that there was a mitigating circumstance in that there were no direct safety implications resulting from the errors, the Appeal Panel is of the opinion that any mitigation is balanced by the aggravating factor that NAV CANADA ignored Transport Canada's position on the matter, without explanation, and took no action until directed to do so. Further, the Appeal Panel considers that deterrence is a factor that should be taken into account when assessing the penalty. Consequently, the Appeal Panel finds that the appropriate penalty is $12 500.

[132] The Appeal Panel would like to thank Counsels for the Minister of Transport and NAV CANADA for their very helpful submissions and conduct.

VI. DECISIONS

A. File No. H-3472-40

[133] The Appeal is dismissed. The Appeal Panel finds that the Review Member did not err in her interpretation of the law relating to NAV CANADA's QMS nor did she make any unreasonable findings of fact concerning it.

B. File No. H-3473-40

[134] The Appeal is allowed. The Appeal Panel finds that the Review Member erred in law in the application of the defence of due diligence. Consequently, the monetary penalty assessed by the Minister is reinstated, but it is decreased from $25 000 to $5 000.

C. File No. H-3474-40

[135] The Appeal is allowed. The Appeal Panel finds that the Review Member erred in law in analyzing the entire circumstances relevant to this matter by not properly taking into account all of the other relevant factors relating to the assessment of penalties. The penalty is increased from $1 000 to $12 500.

December 14, 2010

Reasons for appeal decision by: Suzanne Racine, Member

Elizabeth MacNab, Member

Concurred by: J. Richard W. Hall, Chairperson

ANNEX

FILE H-3472-40

The wording of the six counts is set out as follows:

1.   On or about 05 February 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services by not demonstrating aeronautical information quality management in accordance with the standards set out in Annex 4 (section 1.3.3) and Annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention on International Civil Aviation, tenth edition and twelfth edition respectively and by not complying with these standards, specifically:

a. NAV CANADA did not comply with their internal quality management system by not raising the required quality management non-conformance report relating to an operationally significant permanent change to the Vancouver, British Columbia, Visual Flight Rules (VFR) Terminal Area (VTA) Chart for the King George VFR Check Point Coordinates, following the 3‑month period after notification of this permanent change, by NOTAM number 050236 under NOTAM File CZVR, nor did NAV CANADA publish a timely aeronautical information publication amendment reflecting this change;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $5,000.00.

2.  On or about 05 February 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services by not demonstrating aeronautical information quality management in accordance with the standards set out in Annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention on International Civil Aviation, twelfth edition and by not complying with these standards specifically:

a. NAV CANADA did not comply with their internal quality management system by not raising the required quality management non-conformance report relating to an operationally significant permanent change to the Enroute Low Altitude L 01 Chart, for the V 317/V440 YZP VOR to HECAT, Minimum Enroute Altidude, following the 3-month period after notification of this permanent change by NOTAM number 050286 under NOTAM File CZVR, nor did NAV CANADA publish a timely aeronautical information publication amendment reflecting this change;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $5,000.00.

3. On or about 05 February 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information service by not demonstrating aeronautical information quality management in accordance with the standards set out in Annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention on International Civil Aviation, twelfth edition and by not complying with these standards, specifically:

NAV CANADA did not comply with their internal quality management system by not raising the required quality management non-conformance report relating to an operationally significant permanent change to the Enroute Low Altitude L 01 Chart, for the V 368 MITEK Intersection to read Change Over Point to the ZK1 NDB, following the 3-month period after notification of this permanent change by NOTAM number 050873 under NOTAM File CZVR, not did NAV CANADA publish a timely aeronautical information publication amendment reflecting this change;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations, Monetary Penalty Assessed: $5,000.00.

4. On or about 05 February 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services by not demonstrating aeronautical information quality management in accordance with the standards set out in Annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention on International Civil Aviation, twelfth edition and by not complying with these standards specifically:

NAV CANADA did not comply with their internal quality management system by not raising the required quality management non-conformance report relating to an operationally significant permanent change to the Enroute Low Altitude L 01 and L 02 Chart for the V 317-440 YOLKK to HECAT, Minimum Enroute Altitude, following the 3-month period after notification of this permanent change by NOTAM number 050339 under NOTAM File CZVR, nor did NAV CANADA publish a timely aeronautical information publication amendment reflecting this change;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $5,000.00.

5. On or about 05 February 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services by not demonstrating aeronautical information quality management in accordance with the standards set out in Annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention on International Civil Aviation, twelfth edition and by not complying with these standards, specifically:

NAV CANADA did not comply with their internal quality management system by not raising the required quality management non-conformance report relating to an operationally significant permanent change to the Enroute Low Altitude L 02 Chart, for the V 354Minimum Enroute Altitude between Grase and LW, following the 3‑month period after notification of this permanent change by NOTAM NUMBER 050604 under NOTAM File CZVR, nor did NAV CANADA publish a timely aeronautical information publication amendment reflecting this change;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $5,000.00.

6. On or about 05 February 2007, in Ottawa, Ontario, NAV CANADA did not provide adequate aeronautical information services by not demonstrating aeronautical information quality management in accordance with standards set out in Annex 15 (sections 3.1.7, 3.2.1, 4.2.8 and 4.3.1) to the Convention on International Civil Aviation, twelfth edition and by not complying with these standards, specifically:

NAV CANADA did not comply with their internal quality management system by not raising the required quality management non-conformance report relating to an operationally significant permanent change to the Enroute Low Altitude L 01 Chart, for the Change Over Point on V 368 between YYD/227 and ZKI NDB following the 3-month period after notification of this permanent change by NOTAM number 050875 under NOTAM file CZVR;

thereby contravening subsection 803.01(2) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $5,000.00.