TATC File No. Q-3916-33
MoT File No. 5504-075846
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Yves Julien, Applicant
- and -
Minister of Transport, Respondent
paragraph 401.03(1)(a) of the Canadian Aviation Regulations, SOR/96-433, pursuant to section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A 2
Decision: August 19, 2013
Citation: Julien v. Canada (Minister of Transport), 2013 TATCE 24 (Review)
Heard in Montréal, Quebec, on April 24, 2013
REVIEW DETERMINATION AND REASONS
Held: The Minister has proven, on the balance of probabilities, that the Applicant, Yves Julien, contravened paragraph 401.03(1)(a) of the Canadian Aviation Regulations. As such, the monetary penalty of $5 000 is upheld.
The total amount of $5 000 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Determination.
 The Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty (Notice) to the Applicant, Yves Julien, on September 6, 2012, with respect to an alleged contravention of paragraph 401.03(1)(a) of the Canadian Aviation Regulations, SOR/96-433 (CARs), pursuant to section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A-2 (Act). A Request for Review was filed with the Transportation Appeal Tribunal of Canada (Tribunal) on September 26, 2012.
 On March 11, 2013, an Admission of Facts (Admission) was sent by Mr. Julien to Transport Canada in which several issues were addressed. At the beginning of the Review Hearing, both parties agreed to the Admission, which reads as follows:
- On September 16, 2011, I acted as pilot-in-command of the LA-4-200 aircraft registered as C-GWCS during a flight from Saint-Hyacinthe to Lac Geoffrion, near La Tuque, Quebec, (hereafter the “Flight”);
- During the Flight, I was the holder of a valid medical certificate;
- During the Flight, I was the holder of a student pilot permit registered as 910181, issued on July 15, 2011;
- During the Flight, I was not the holder of a pilot licence or a recreational pilot permit.
- Mr. Claude Bélanger was my passenger during the Flight;
- An accident occurred at 19:32 during the landing at Lac Geoffrion;
- Mr. Bélanger died during the accident and I was seriously injured;
- I acquired the LA-4-200 aircraft registered as C-GWCS on August 10, 2010. A certificate of registration was delivered for the aircraft on September 20, 2010;
- After receiving my student pilot permit-aeroplane, I flew several times, including certain flights at Lac Geoffrion, while solo on board aircraft C-GWCS;
- I have no previous file with respect to aviation enforcement.
II. PRELIMINARY MOTION
 On April 10, 2013, the Minister submitted to the Tribunal a Motion to Amend the Notice of Assessment of Monetary Penalty (Motion). At the Review Hearing, both parties agreed to amend Schedule A to the Notice as follows:
[TRANSLATION] On or about the 16th of September, 2011, at approximately 19:32 hours local time, in the vicinity of Lac Geoffrion, near La Tuque, Quebec, you did act as a flight crew member of an aircraft, to wit an LA-4-200, bearing registration number C-GWCS, when you had a passenger on board and you did not hold an appropriate permit or licence, thereby contravening paragraph 401.03(1)(a) of the Canadian Aviation Regulations.
 The fine levied against the Applicant in the Notice remained at $5 000.
 The definition for “crew member” under section 101.01 of the CARs, as well as paragraph 401.03(1)(a), and section 401.19 of the CARs, read as follows:
101.01. “crew member” means a person assigned to duty in an aircraft during flight time;
401.03. (1) Subject to subsection (2), no person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless
(a) the person holds the appropriate permit, licence or rating;
401.19. The holder of a student pilot permit may, for the sole purpose of the holder's flight training or flight test, act as pilot-in-command of any aircraft of the category to which the permit relates, where
(a) the flight is conducted in Canada under day VFR;
(b) in the case of flight training,
(i) it is conducted under the direction and supervision of the holder of a flight instructor rating for that category of aircraft, and
(ii) no passenger is carried on board; and
(c) in the case of a flight test,
(i) it is conducted in accordance with section 401.15, and
(ii) no passenger other than the person referred to in paragraph 401.15(1)(a) is carried on board.
(1) Jean-Guy Carrier
 Jean-Guy Carrier is a Civil Aviation Inspector with Transport Canada. He has been with the Department since 1997 and with the Aviation Enforcement Division since 2000. Mr. Carrier testified that he was assigned to investigate an aircraft accident that took place at Lac Geoffrion, Quebec, on September 16, 2011. The initial Canadian Aviation Daily Occurrence Report (CADOR) issued for the accident (Exhibit M-1) indicated two persons on board, one of whom died (the passenger) and the other of whom was seriously injured (the Pilot-in-Command (PIC)). The aircraft was a Lake 4 200 Series (LA-4-200), registered as C-GWCS.
 In further testimony, Mr. Carrier stated that in his investigation of the event, which observed standard practices, the aircraft's Certificate of Registration (Exhibit M-3), confirmation of ownership (Exhibit M-2), as well as the pilot's licensing (Exhibit M-5) and medical validation (Exhibit M-6) were verified. Mr. Julien is listed as the owner of C-GWCS on the Certificate of Registration. Furthermore, Mr. Carrier was able to confirm that Mr. Julien was operating the aircraft as PIC with a Student Pilot Permit at the time of the accident. The issuance of Student Pilot Permit file no. 5802-910181 attributed to Mr. Julien was confirmed through the Transport Canada Distributed Air Personnel Licensing System (DAPLS) database.
 Mr. Carrier explained in detail the privileges associated with the Student Pilot Permit, which he summarized from an example of one (Exhibit M-7) as follows:
- The Permit is used for the purpose of receiving flight training from an instructor or for undertaking a flight test;
- The student pilot can act as PIC without an instructor on board but only if an instructor certifies and approves the flight when the student has reached a satisfactory standard of experience and skill;
- The student pilot can only operate as PIC in day Visual Flight Rules (VFR), under the direction or supervision of a flight instructor; and
- No passengers can be carried on board the aircraft.
 Mr. Carrier testified that he sent a letter of investigation dated October 24, 2011 (Exhibit M-9), to Mr. Julien detailing an alleged contravention of subsection 401.03(1) of the CARs and requesting that he contact Transport Canada in order to clarify and discuss the allegation. He noted that no contact was initiated by Mr. Julien, but he also stated that Mr. Julien was under no obligation to contact him. Mr. Carrier's conclusion after the investigation was that Mr. Julien operated an aircraft with a passenger on board with only a Student Pilot Permit and was thus in violation of the privileges granted under this Student Pilot Permit. Mr. Carrier confirmed in his investigation that no other pilot licensing was issued to Mr. Julien other than a Student Pilot Permit, and that the passenger on board that day, Mr. Bélanger, had also not been issued a pilot licence.
 In further testimony, Mr. Carrier stated that, based on the circumstances of the accident, he recommended the maximum fine of $5 000 as per the recommendations found in figure 12-1 in Transport Canada's Aviation Enforcement Procedures Manual (Procedures Manual) (Exhibit M-12). Several aggravating factors were taken into consideration; most importantly, the death of the passenger and Mr. Julien not having the required licence or appropriate rating to operate the flight. No mitigating factors were noted.
 In cross-examination by Mr. Julien, Mr. Carrier was asked to clarify his experience level as an investigator. He mentioned that he received training in investigating from the Royal Canadian Mounted Police (RCMP). He was also asked why no mitigating circumstances were taken into consideration. Mr. Carrier explained that a letter was sent to Mr. Julien, but no response was received. Mr. Julien asked Mr. Carrier if someone would be prone to respond or collaborate with his team when a letter is written in a threatening fashion. Mr. Carrier stated that he does not view the letter in that way and that this standard letter template simply highlights the allegation against the recipient as well as his right to not respond. Mr. Carrier was again asked if the letter promotes collaboration from recipients or if it is more so viewed as a threat. Mr. Carrier stated that this is the standard template that is used and sent to all individuals or operators that are being investigated. He could not express an opinion as to how the letters are received or viewed by recipients.
 The example of a Student Pilot Permit (Exhibit M-7) was shown to Mr. Carrier. He was asked if the font size in the document is legible to him. Mr. Carrier responded that he had no difficulty in reading the printed text on the permit. He was also asked if the requirement to receive instruction from a qualified flight instructor is specific to a named flight instructor or if it can be conducted by any qualified flight instructor. Mr. Carrier stated that any qualified flight instructor can conduct and supervise a student pilot.
 In further cross-examination, Mr. Carrier was asked if he was aware of the required training specified by Transport Canada to qualify for the seaplane rating. Mr. Carrier read out the applicable standard to the CARs, standard 421.38, in regards to the number of hours and experience required to have this rating on a licence. When asked if he had verified if Mr. Julien would have qualified for such a rating based on his previous flight experience, Mr. Carrier replied that he did not have access to the Applicant's log book to verify this claim. Mr. Julien countered in asking Mr. Carrier if he had contacted an Inspector Maxime Leblanc from the Sûreté du Quebec. Mr. Carrier clarified that an email was sent by Inspector Leblanc to Mr. Carrier's supervisor, then it was forwarded to him. He stated that he was aware that the Sûreté du Quebec was conducting its own investigation into the accident but that he was unaware of any documents, such as a log book, that were in the possession of this police agency. When asked again if he had asked for any documents in relation to his investigation, Mr. Carrier clarified that he had in fact been made aware that documents were being withheld by the Sûreté du Quebec due to its own ongoing investigation. Any request from Transport Canada for documentation would have required an Access to Information request, which was not done.
 Further questions as to the requirement to have a seaplane rating endorsed on a pilot licence were raised in cross-examination. Mr. Carrier indicated that once the level of experience is attained, this rating is simply added to an existing pilot licence and does not require any additional exam or flight test. Mr. Carrier again re-iterated that the seaplane rating can only be added to an existing pilot licence, not to a Student Pilot Permit.
 With regard to the Procedures Manual (Exhibit M-12), Mr. Carrier was asked to explain how monetary sanctions are applied in regards to first, second and third violations. He explained that for violations under paragraph 401.03(1)(a) of the CARs, a first-time offender would be levied a 20 per cent fine based on the maximum fine of $5 000, thus $1 000. All fines can be reduced based on mitigating factors. Mr. Carrier was asked if he had explored any mitigating factors that may have applied in this case, including whether the passenger had put pressure on the PIC to be taken on board. Mr. Carrier responded that he was unaware of any mitigating factors associated with this investigation, either from his own investigation or from any factors brought forth by Mr. Julien.
 In cross-examination, Mr. Julien requested that his income tax forms be submitted into evidence by Mr. Carrier. This was in an attempt to show his inability to pay the sanction and demonstrate his financial insolvency at the time of the Review Hearing. This was not granted, because in his capacity as a Civil Aviation Inspector, Mr. Carrier is not able to determine Mr. Julien's alleged financial insolvency through his income tax report. Mr. Julien was given the opportunity to submit this evidence through his own testimony if he so wished, but he declined to do so.
 In re-examination, Mr. Carrier confirmed that, based on his experience, most recipients, when the letter of investigation for an alleged contravention is received, contact Transport Canada in an effort to explain the situation and clarify the regulation(s) that they have allegedly breached. He further clarified that under standard 421.38 to the CARs, a pilot that has requested to have the seaplane rating added to their licence needs to, within a period of 12 months, complete a qualifying flight under the supervision of an inspector from Transport Canada, regardless of the pilot's previous hours of experience on that aircraft type.
 Mr. Carrier further stated that his investigation was conducted within the permitted timeline.
(2) Denis Bernier
 Denis Bernier is a flight instructor and has approximately 30 years of experience in this field. Mr. Bernier was subpoenaed to appear at the Review Hearing and was requested to bring with him his personal pilot log book with the flights that he conducted with the Applicant. He stated that he met Mr. Julien at l'École de pilotage in Saint-Jean-sur-Richelieu, Quebec. The first two instructional flights were conducted on a Cessna and the others on the Lake aircraft purchased by Mr. Julien.
 Mr. Bernier testified that his last flight with Mr. Julien was conducted on May 24, 2011. He also recalled having been with Mr. Julien in Saint-Hubert, Quebec at the time his Student Pilot Permit was issued on July 15, 2011, and meeting with Mr. Julien on one occasion approximately a month after the accident.
 Mr. Bernier explained that Mr. Julien had reached the pre-solo stage of his training. Once the required solos in the patterns had been completed, Mr. Julien would have been scheduled to begin his solo flight training in a practice zone, but only with pre-approval from Mr. Bernier prior to each flight. Mr. Julien had yet to be authorized on this type of solo flight. Mr. Bernier recalled having flown with Mr. Julien to Lac Geoffrion.
 Mr. Bernier explained that he never authorized Mr. Julien to conduct any solo practice flights at Lac Geoffrion. Mr. Bernier had identified a dedicated practice zone for such flights and the area of Lac Geoffrion fell outside its perimeter. Mr. Bernier also stated that the privileges associated with a Student Pilot Permit were explained to Mr. Julien, including the limitation that no passengers are to be carried on board.
 In cross-examination, Mr. Bernier was asked if he could recall Mr. Julien informing him that he would conduct a solo flight the day after his Student Pilot Permit had been issued. He responded that he could not recall the conversation. Mr. Bernier also confirmed that he flew approximately 30 hours in dual flight with Mr. Julien and found him to be a safe pilot. Mr. Bernier was asked why Mr. Julien purchased the Lake aircraft. He recalled that the principal reason for the aircraft purchase was to be able to fly to Lac Geoffrion but not in the capacity of a solo flight with a Student Pilot Permit.
 Mr. Bernier was asked if he was working as an independent instructor when instructing Mr. Julien; he responded that this was correct. Mr. Bernier agreed that as an independent instructor, he could only testify that he himself did not specifically give authorization to Mr. Julien to fly solo, whereas other independent instructors could have been available to perform such a task. Additionally, Mr. Bernier confirmed that once Mr. Julien had received a licence, he would have had the required hours for a seaplane rating to be added to the licence.
 Mr. Bernier confirmed that he met Mr. Bélanger. Although Mr. Julien had command of the aircraft during these occasions when the three of them flew together, Mr. Bernier stated that he was “officially” the PIC at all times.
 In cross-examination, Mr. Bernier was asked by the Minister what the procedure would be if a situation were to arise in which he was contacted by a student that he did not know and asked for the authorization to fly solo. He replied that he would need to fly with the student to ensure a level of competency prior to authorizing him for a solo training flight.
(1) No Witnesses
 The Applicant declined to give testimony or present any witnesses.
 Concerning the charge that is the subject of this Review Hearing, that the Applicant acted as a flight crew member with a passenger on board without the appropriate licence or permit, the Minister argues that in order to uphold the fine of $5 000 applied to Mr. Julien, he must demonstrate, on the balance of probabilities, that the Applicant contravened paragraph 401.03(1)(a) of the CARs. As a strict liability offence, the Minister does not need to prove intent but simply that the infraction occurred. The CADOR clearly indicates that the event occurred on September 16, 2011, and includes the location, time and aircraft type. Further evidence was presented to prove that Mr. Julien was the owner of the Lake-4-200 registered as C-GWCS.
 As to the allegation of Mr. Julien acting as PIC, the Minister argues that Mr. Julien admitted that Mr. Bélanger did not have a pilot permit or licence, and could not therefore have acted as PIC. In his Admission, Mr. Julien indicated that he acted as PIC and thus as a crew member according to section 101.01 of the CARs.
 The Minister states that he was also able to provide documented evidence that Mr. Julien was not a holder of any pilot licence and established that he was a holder of a Student Pilot Permit (Exhibit M-8). The privileges associated with this type of permit are clear in that on the back it is stated that passenger carrying is prohibited; that no flights can be conducted without supervision; and there is no authorization to land on water. Furthermore, the Minister's witness, Mr. Bernier, testified that he did not give any authorization or permission to Mr. Julien to fly solo in the practice area. Mr. Julien indicated in his Admission that he conducted several solo flights to Lac Geoffrion. The Minister also established that for Mr. Julien to have been properly licenced to conduct such a flight he would have had to have been a holder of a Private Pilot Licence or Recreational Pilot Permit with a seaplane rating, of which he had neither.
 The Minister contends that a defence of due diligence cannot be used based on the facts of the case. Mr. Julien flew his aircraft in the capacity of PIC with a passenger whereas a Student Pilot Permit does not authorize such a privilege.
 As to the sanction of $5 000, the Minister agrees that Mr. Julien has no prior convictions with Transport Canada, but that can be explained in that he had just received his Student Pilot Permit and had not yet flown as a PIC under the CARs. The amount applied is a maximum level sanction based on the Minister's argument that no evidence of mitigating factors was presented or heard, as well as the aggravating factor of the Applicant not respecting the privileges of his Student Pilot Permit. The Minister agrees that the Procedures Manual is a guide only but notes that it did provide the investigating inspector with guidelines for increasing the fine based on the factors above, as well as the unfortunate death of Mr. Bélanger.
 The Applicant argues that although Mr. Bernier did not authorize him to fly solo, it does not mean that he did not have this authorization from another flight instructor. Mr. Julien also raises the issue that weather was a mitigating factor that was not taken into consideration in applying the sanction. Mr. Julien went on to argue that, in his view, mitigating factors were simply ignored or not investigated due to an approaching deadline on Mr. Carrier's position within the investigation group, budgetary restrictions and the internal restructuring of Transport Canada.
 Additionally, Mr. Julien raised the issue of experience as a mitigating factor. He had almost double the minimum hours required to take the flight test, but was in no rush to complete his training. He reiterated that he is a safe pilot that takes the necessary precautions when operating an aircraft. Mr. Julien argues that the investigation was hampered due to the limited investigative training and experience of Mr. Carrier.
 Finally, Mr. Julien raised the issue of his injuries and the timing of the letter of investigation (Exhibit M-9) sent to him by Mr. Carrier. He argues that he was in no condition to respond to the letter as his recovery from the injuries lasted several months. In closing, Mr. Julien argues that he should not carry all the responsibility because Mr. Bélanger was also on board. Mr. Bélanger had flown previously with him, had taken flight lessons, was aware of the limitation of no passengers on board with a student pilot permit and ultimately, had a level of responsibility in his decision to be on board with him that day.
 As well, Mr. Julien stated that most of the required documents needed to show his previous experience are still with the Sûreté du Quebec because of their ongoing investigation into the accident and he has been unable to gain access to them. Mr. Julien believes that he is being accused twice for the same allegation; that is, on the one hand criminally by the Sûreté du Quebec and, on the other hand, by the Minister.
C. Minister's Reply
 The Minister submits that Mr. Carrier's investigation was conducted properly and with the information available at the time. Although voluntary, Mr. Julien did not submit any information to assist in Mr. Carrier's investigation at the time it was requested in the letter of investigation, nor did he submit any evidence to counter the allegation at the Review Hearing. The Minister notes that no documented evidence was submitted in regards to the Sûreté du Quebec withholding any documents from the Applicant. As well, the Minister submits that the Applicant is being charged more than once for the same incident because the investigation by the Sûreté du Quebec is for a criminal offence under the Criminal Code, R.S.C., 1985, c. C-46, whereas the present Review Hearing concerns an administrative sanction by Transport Canada pursuant to the Act.
A. Paragraph 401.03(1)(a) of the CARs
 The Tribunal must decide whether the Minister has proven, on the balance of probabilities, that Mr. Julien contravened paragraph 401.03(a) of the CARs, which specifies as follows:
401.03. (1) Subject to subsection (2), no person shall act as a flight crew member or
exercise the privileges of a flight crew permit, licence or rating unless
(a) the person holds the appropriate permit, licence or rating;
 There is no real dispute by Mr. Julien that he acted as PIC of a Lake 4-200 registered as C-GWCS on September 16, 2011, on a flight from Saint-Hyacinthe to Lac Geoffrion. Mr. Julien also admitted that during this flight that he was the holder of Student Pilot Permit no. 5802-910181. Consequently, the Tribunal must determine the following:
- Whether Mr. Julien had the appropriate licence or permit to conduct this flight with a passenger; and
- Whether all mitigating factors were taken into consideration by the Minister in determining the sanction.
 A permit (Exhibit M-7) lists the required conditions that must be respected by student pilots. The permit specifies these criteria on the back of the document. Notably, the permit specifies twice that passenger carrying is prohibited on both the front and the back of the document. The prohibition against passenger carrying is also printed in bold capitals on the front of the Applicant's Permit (Exhibit M-5). Indeed, the conditions associated with a Student Pilot Permit are clear.
 Mr. Julien flew a Lake 4-200 aircraft on floats, solo, as PIC, with a passenger, and with the intent to land on water. The minimal licensing required to conduct this flight legally would be a Recreational Pilot Permit or Private Pilot Licence with a seaplane rating.
 In reviewing these requirements individually, the following can be determined:
- In order for Mr. Julien to act as PIC, as a student pilot he would require authorization from a flight instructor. Mr. Bernier testified that no such authorization was ever provided to Mr. Julien. Mr. Julien in cross-examination raised a point in regards to the possibility of another flight instructor being able to provide this authorization. Although this can be feasible, the difficulty I have with this argument is that no evidence or witnesses were presented by the Applicant in support of this argument. In my view, this possibility of another instructor authorizing the solo flight has not been demonstrated to the Tribunal;
- As discussed previously, a Student Pilot Permit does not permit carrying passengers on board;
- Exhibits M-8 and M-10 confirm that neither Mr. Bélanger nor Mr. Julien were holders of a Recreational Pilot Permit or Private Pilot Licence. Furthermore, a rating, such as a seaplane rating, can only be added to an existing licence and not to a Student Pilot Permit. Although Mr. Julien may have had a certain level of experience, he did not have the licence required for the endorsement of a seaplane rating. The argument of experience is moot as the licensing requirement has not been met.
 Based on the evidence and testimony provided, Mr. Julien simply did not have the required licensing or authorization to act as PIC, or to fly with a passenger; nor did he have the rating to land his aircraft on water.
 I am sympathetic to the Applicant's argument that Mr. Carrier should have taken his medical condition following the accident into consideration and provided him with the opportunity to defend himself against the allegation. Although Mr. Julien has the right to not testify or offer evidence, in failing to do so, he did not provide evidence of the existence of mitigating factors. It is difficult for the Tribunal to weigh these factors as they were not presented in, and supported by, evidence. Mr. Julien raised the issue of his financial difficulty but the submission of his Visa statements and/or previous year's income tax report through the Minister's witness, Mr. Carrier, was refused for the simple reason that Mr. Carrier's expertise as a civil aviation inspector would not provide me with a fair assessment or understanding of the full extent of Mr. Julien's capacity to pay the sanction.
 I note that Mr. Julien was given ample opportunity to provide evidence and chose not to, which is his right. As the Tribunal can only weigh testimony and evidence presented at the Review Hearing, the Applicant's alleged financial hardship cannot be viewed as a mitigating factor. In my view, the Civil Aviation Inspector conducted a fair investigation and properly reviewed the aggravating and mitigating factors prior to applying the sanction.
 The Applicant raised the issue of weather as a mitigating factor, but failed to enter any evidence on this point either through weather reports or testimony. It would be difficult to weigh the role of the weather in the issue at hand due to the lack of evidence submitted. As such, I cannot view the weather as a mitigating factor.
 Moreover, I do not accept the Applicant's argument with regard to his experience being a mitigating factor. While the Applicant submits that he had almost double the minimum hours required to take the flight test, I find this argument to be immaterial to the issue at hand.
 Furthermore, I find that Mr. Julien failed to exercise due diligence to prevent this unfortunate accident. He did not have the required licensing or authorization to operate his aircraft in the manner in which it was operated.
 The Minister has proven, on the balance of probabilities, that the Applicant, Yves Julien, contravened paragraph 401.03(1)(a) of the Canadian Aviation Regulations. As such, the monetary penalty of $5 000 is upheld.
August 19, 2013
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