Decisions

TATC File No. Q-3782-37
MoT File No. N5504-072132

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Air Saguenay (1980) Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
section 602.01 and subsection 605.22(1) of the Canadian Aviation Regulations, SOR/96-433, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A 2


Review Determination
Franco Pietracupa


Decision: February 6, 2013

Citation: Air Saguenay (1980) Inc. v. Canada (Minister of Transport), 2013 TATCE 1 (Review)

Heard in Ville de Saguenay, Quebec, May 29 and 30, 2012

REVIEW DETERMINATION AND REASONS

Count 1: The Minister has not proven, on a balance of probabilities, that the Applicant,Air Saguenay (1980) Inc., contravened section 602.01 of the Canadian Aviation Regulations. As such, the monetary penalty of $25 000 is dismissed.

Count 2: The Minister has proven, on a balance of probabilities, that the Applicant, Air Saguenay (1980) Inc., contravened subsection 605.22(1) of the Canadian Aviation Regulations. The monetary penalty of $25 000 is upheld.

The total amount of $25 000 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.

I. BACKGROUND

[1] The Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty (Notice) to the Applicant, Air Saguenay (1980) Inc. (Air Saguenay), on April 20, 2011, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2 (Act), with respect to alleged contraventions of section 602.01 and subsection 605.22(1) of the Canadian Aviation Regulations, SOR/96-433 (CARs).

[2] Schedule A to the Notice set out the charges as follows:

[translation]

1. On July 16, 2010, at approximately 11:20 a.m. local time, in the vicinity of Chute-des-Passes, the pilot-in-command operated an aircraft bearing Canadian Registration C-GAXL in a negligent or reckless manner, which endangered or was likely to endanger the life or property of any person; that is, the aircraft was operated at an altitude and in visibility or ceiling conditions that did not allow for safe flight, thereby contravening section 602.01 of the Canadian Aviation Regulations.

Pursuant to subsection 8.4 (1) of the Aeronautics Act, a penalty has been assessed against you as the registered owner of the aircraft.

Penalty: $25 000

2. On July 16, 2010, at approximately 11:20 a.m. local time, in the vicinity of Chute-des-Passes, the pilot-in-command operated an aircraft bearing Canadian Registration C-GAXL when the aircraft was not equipped with a seat and safety belt for each person on board other than an infant, thereby contravening subsection 605.22(1) of the Canadian Aviation Regulations.

Pursuant to subsection 8.4 (1) of the Aeronautics Act, a penalty has been assessed against you as the registered owner of the aircraft.

Penalty: $25 000

[3] A Request for Review was filed with the Transportation Appeal Tribunal of Canada (Tribunal) on May 3, 2011. A Review Hearing on the matter was held in Ville de Saguenay, Quebec, May 29 and 30, 2012.

II. STATUTES AND REGULATIONS

[4] Section 602.01 of the CARs reads as follows:

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

[5] Section 605.22 of the CARs reads as follows:

Seat and Safety Belt Requirements

605.22 (1) Subject to subsection 605.23, no person shall operate an aircraft other than a balloon unless it is equipped with a seat and safety belt for each person on board the aircraft other than an infant.

(2) Subsection (1) does not apply to a person operating an aircraft that was type-certificated with a safety belt designed for two persons.

(3) A safety belt referred to in subsection (1) shall include a latching device of the metal-to-metal type.

[6] Paragraphs 602.115(a) to (c) of the CARs read as follows:

Minimum Visual Meteorological Conditions for VFR Flight in Uncontrolled Airspace

602.115 No person shall operate an aircraft in VFR flight within uncontrolled airspace unless

(a) the aircraft is operated with visual reference to the surface;

(b) where the aircraft is operated at or above 1,000 feet AGL

(i) during the day, flight visibility is not less than one mile,

(ii) during the night, flight visibility is not less than three miles, and

(iii) in either case, the distance of the aircraft from cloud is not less than 500 feet vertically and 2,000 feet horizontally;

(c) where the aircraft is not a helicopter and is operated at less than 1,000 feet AGL

(i) during the day, flight visibility is not less than two miles, except if otherwise authorized in an air operator certificate or a private operator certificate,

(ii) during the night, flight visibility is not less than three miles, and

(iii) in either case, the aircraft is operated clear of cloud; and

[7] Standard 571.13 of the CARs reads in part as follows:

Installation of Parts

The following definition applies to this Standard:

undocumented part” means a part lacking sufficient certification or history to make it eligible for installation on an aircraft without submitting it to a recertification process.

Information Note:

Pursuant to section 571.13 of the CARs, a part is to be inspected and its accompanying documentation verified prior to installation in accordance with a procedure that the Minister finds acceptable, having regard for the safety of the aircraft, to ensure that the part conforms to its type design. In the case of components removed from an aircraft for repair, overhaul or exchange, traceability to their most recent airworthy installation or to their most recent maintenance action will constitute evidence of conformity to type design.

[…]

IV. EVIDENCE

A. Minister

(1) Inspector Jean-Guy Carrier

[8] Jean-Guy Carrier is a Civil Aviation Inspector for Transport Canada based in Montréal. Inspector Carrier testified that on August 16, 2010, he was assigned to investigate an aircraft accident that had occurred at Lac des Quatre, Quebec, on July 16, 2010.

[9] Inspector Carrier testified that a civil aviation daily occurrence report (CADOR) issued by NAV CANADA reported an accident that took place north-west of Chute-des-Passes, Quebec, in which a de Havilland Canada DHC-2 Beaver (Beaver) had crashed on July 16, 2010. Inspector Carrier testified that he proceeded to interview the two surviving passengers, Pierre Bernier and Simon Bernier. The interview revealed that the flight had departed in adverse weather conditions and that a modified plastic chair had been used as a rear passenger seat.

[10] A preliminary investigation brought to light that the aircraft had impacted the side of a mountain, destroying the aircraft. Inspector Carrier asked the two surviving members of the Bernier family if any mechanical issues or engine problems had been observed. The response was negative. As to the passengers onboard, Inspector Carrier testified that the pilot, front right seat passenger, and the sole passenger seated at the rear of the aircraft did not survive the crash; he was ejected from the aircraft and was found approximately 15 feet behind the wreckage.

[11] It should be noted that Inspector Carrier's evidence did not refer to Michel Bernier, who was seated in the middle right seat of the aircraft. For clarification, I would note that the two aircraft occupants who survived were Pierre Bernier and Simon Bernier, and the four who did not were Gabriel Boivin (the pilot), Michel Bernier, Louis Bernier and Réjean Bernier.

[12] The Aviation Enforcement Case Report (Exhibit M-1) completed by Inspector Carrier detailed that the aircraft had been owned and operated by Air Saguenay since 1994, and that five passengers and one pilot were on board at the time of the accident. According to the Minister's Observer Initial Report (Exhibit M-3), the aircraft departed for its destination of Lac des Quatre, Quebec, but had to land en route at Lac Grenier, Quebec, and wait for around an hour and a half on the morning of July 16, 2010, due to reduced visibility and fog. The pilot was supposed to have arrived at Lac des Quatre around 8:30 that morning, but did not arrive there until around 10:30 a.m. The aircraft took off from Lac des Quatre with the passengers around 11:00 a.m. en route to Lac Margane, but subsequently crashed into the side of a hill around 11:17 a.m. The same report indicated that no mechanical or engine malfunctions were a factor on the morning of the accident. Further details mentioned that the Beaver involved had several seating configurations allowed by the manufacturer. This particular aircraft had an installation certificate allowing an additional rear hammock seat in which either a twin or triple seat could be used. During his investigation of the crash, Inspector Carrier found that no hammock seat had been installed. The plastic chair that had been used was not on the aircraft's original equipment manufacturer's approved equipment list.

[13] Inspector Carrier testified that he communicated with Jean Tremblay, Director of Operations and Vice-President of Air Saguenay, following this crash to inform him of his investigation and allegations against Air Saguenay. He sent a letter in this regard to Mr. Tremblay on February 16, 2011 (Exhibit M-5). Mr. Tremblay had no objections in submitting the requested documents in this investigation, although some documents had been handed over to the Transportation Safety Board of Canada (TSB) and were unavailable.

[14] Inspector Carrier further testified that this aircraft was equipped with a Garmin GPS, model 100. This was confirmed by the former regular pilot of this aircraft, Romain Desrosiers. However, the pilot of the Beaver on the morning of the crash, Gabriel Boivin, used his personal Garmin GPS, model 296. The unit displays a terrain warning when the aircraft is within 100 feet of terrain, above or below, in red symbology (see Exhibit M-7).

[15] Inspector Carrier testified that Pierre Bernier (Simon Bernier's uncle) submitted the invoice (Exhibit M-9) of the chartered flight to him. It identifies the flight as boarding four passengers, however, on the actual flight list, five passengers are recorded. The invoice also contains a company dispatch phone number that Pierre Bernier contacted on the morning of the accident. From his interview with Pierre Bernier, Inspector Carrier learned that the call to the dispatcher was made between 8:30 a.m. and 9:00 a.m. that morning. The aircraft crashed at approximately 11:20 a.m., as evidenced by the time showing on Michel Bernier's broken watch.

[16] Inspector Carrier testified that Pierre Bernier submitted to him a picture of a chair similar to the one that was used on the aircraft to seat his nephew the morning of the flight (Exhibit M-12). Upon inspecting all of the aircraft's technical documentation, he found no written reference to an authorization to install or use this type of chair for passenger seating. The only acceptable seating approved by the manufacturer was the hammock seat, in its twin or triple passenger configuration. He also elaborated on Standard 571 of the CARs, which states that if a major modification is performed on an aircraft, it must be duly recorded in the technical manuals and logs. No entry had been made regarding the chair used by the company to seat the fifth passenger in the rear of the aircraft. Inspector Carrier stated that Air Saguenay is an authorized air operator in visual flight rules (VFR) conditions under section 703 of the CARs.

[17] In cross-examination, Inspector Carrier admitted that, during his investigation, he did not verify Mr. Boivin's total number of hours on the Beaver, nor his experience in the region. He also clarified that Chute-des-Passes, Quebec, and Lac Margane, Quebec, are the same location. Inspector Carrier was asked if he has been to Lac des Quatre. He responded that he did not go to the lake during the investigation but is familiar with Chute-des-Passes and the topography of the region. He also stated that he has never flown a de Havilland Beaver or a de Havilland Canada DHC-6 Twin Otter (Twin Otter) aircraft.

[18] Inspector Carrier was asked how a pilot can determine the required weather for take-off from areas such as Lac Margane. He responded that normally, a pilot at a remote location consults a regional weather forecast for the immediate region, but ultimately self-dispatches if the weather is conducive to departure, as he is best suited to make that decision where no onsite weather reporting capability exists.

[19] Inspector Carrier testified that his investigation revealed that the pilot had departed from Lac Margane but then diverted to Lac Grenier due to weather at the destination. He estimated that the pilot waited approximately 40 minutes before departing and attempting an approach at Lac des Quatre. Simon Bernier reported hearing the aircraft overhead but he was not able to see it land. The first visual confirmation that the aircraft had landed was when the aircraft was taxiing towards the dock where the passengers were to be picked up. As to the passenger seating configuration upon departure, Inspector Carrier confirmed that the pilot was seated in the front left seat; Réjean Bernier was in the front right seat. Behind them were three passengers, Pierre Bernier on the left, Simon Bernier in the center, and Michel Bernier on the right. The fifth passenger was Louis Bernier, seated in the rear left in the plastic seat. From witness accounts, Inspector Carrier testified that Louis Bernier was ejected from the aircraft and found approximately 15 feet behind the wreckage of the aircraft.

[20] Still under cross-examination, Inspector Carrier was asked to explain the safety program at Air Saguenay. Inspector Carrier confirmed that the company adhered to the regulatory safety requirements for an operator under section 703 of the CARs. Inspector Carrier also confirmed that Air Saguenay had the authority to use the hammock seat in either 2- or 3-passenger configurations. He also explained that the hammock seat is not anchored to the floor of the aircraft. Hammock seat passengers are secured by seat belts that are anchored to the floor of the aircraft. When asked if Air Saguenay had properly installed this seat belt assembly, Inspector Carrier responded that the TSB investigators were unable to confirm if the seat belts had been installed properly.

[21] Inspector Carrier was also asked if Air Saguenay had properly installed the seat belt assembly anchor that was used for the plastic rear seat. Since the company had no authorization to install this modified plastic seat, Inspector Carrier did not see the need to verify this detail. Further discussion took place between the Applicant's representative and Inspector Carrier with respect to the sanctions imposed by the Minister. Inspector Carrier confirmed that Air Saguenay cooperated during the investigation and that the delay in some of the requested documentation was outside of Air Saguenay's direct control.

(2) Simon Bernier

[22] Simon Bernier was a passenger on the Beaver and arrived at Lac des Quatre on July 11, 2010, with several members of his family. He testified that he was seated in the centre seat of the second row with the appropriate seat belt assembly. His younger brother, Louis Bernier, was seated in the rear left of the aircraft on the modified plastic chair with its four leg supports shortened. The chair was not attached or anchored in any way to the aircraft. Louis Bernier did have a seat belt that was attached from his left shoulder, came across his body and attached around his right hip. The chair was plastic-moulded and grey in color.

[23] Simon Bernier testified that upon their arrival at Lac des Quatre on July 11, 2010, the plastic chair was removed from the aircraft and left on the dock. Simon Bernier testified that on the morning of July 16, 2010, the return flight home was delayed due to fog. His uncle, Pierre Bernier, had called the company early that morning between approximately 7:30 and 8:30 a.m. to discuss possible options based on the weather at Lac des Quatre. The aircraft arrived at approximately 10:15 a.m. From his perspective, the weather had remained unchanged, with fog and limited visibility.

[24] Simon Bernier also described the weather prior to departure. He confirmed that he did not visually see the aircraft land on the lake; he only saw the aircraft as it approached the dock. The aircraft was loaded and departed at approximately 11:00 a.m. The seating configuration remained unchanged, with the seat that had been left on the dock reloaded in the rear left of the aircraft, and his younger brother seated on it. Simon Bernier testified that from his second row, center seat position, the GPS instrument mounted in the aircraft was clearly visible. He confirmed that on the arrival flight, the bottom part of the GPS instrument screen had displayed yellow and red graphics. Upon departure the morning of July 16, 2010, the graphics on the same screen depicted solid red symbols (see Exhibit M-7).

[25] Simon Bernier further explained that he felt ill shortly after take-off on the morning of July 16, 2010. From occasional glances from his seat, he observed that the visibility was poor and that the clearance from obstacles was minimal. He testified that after take-off, his father spoke to the pilot, Mr. Boivin. His father then told him that Mr. Boivin had decided to attempt to look for an area to land due to the poor visibility en route. Simon Bernier recalls feeling the aircraft impact terrain. When he opened his eyes after the impact, he realized the aircraft was on fire.

[26] Simon Bernier was asked to explain what happened afterwards. He explained that he extricated his father and his uncle from the wreckage. He located his younger brother, Louis Bernier, unconscious but still breathing, approximately 10 feet behind the aircraft. Simon Bernier was asked if a hammock seat (see Exhibit M-4B) was installed on the aircraft and his response was negative.

[27] In cross-examination, Simon Bernier was asked to describe Lac des Quatre in terms of its length and general shape. He confirms seeing the aircraft land on July 16, 2010, over the treetops from the high end of the terrain. Simon Bernier was asked if he was able to see the end of the lake from his seated position during take-off. He confirmed that the end of the lake was visible. He recalls that after the aircraft had been in flight for 20 minutes, the pilot flew in a circular-type path in an attempt to find a lake to land on.

[28] In re-direct, Simon Bernier was asked if he could recall in which direction the pilot was looking during the flight. Simon Bernier recalled having closed his eyes since he was feeling nauseated, but on the occasions in which he did observe the pilot, he was looking down.

(3) Pierre Bernier

[29] Pierre Bernier was a passenger on the Beaver that crashed on July 16, 2010. He was also the person responsible for booking the chartered flight with Air Saguenay. He testified that the booking was made for five passengers. He further testified that on July 11, 2010, he proceeded to Lac Margane to board the flight. Five passengers plus the pilot departed for Lac des Quatre. In terms of seating, Pierre Bernier testified that two seats were located in the front, three seats were located in the center, and there was a single seat in the rear left of the aircraft. He recalls that the last seat was a plastic chair that was not anchored to the aircraft fuselage. His 13-year old nephew took that seat for the 25–30 minute trip to Lac des Quatre. He also recalls that the chair was removed from the aircraft and left on the dock while they were at Lac des Quatre.

[30] Pierre Bernier testified that on the morning of July 16, 2010, he woke up around 7:00 or 7:15 a.m. and observed a thick fog cover on the lake. The aircraft was expected at the lake at 8:00 a.m. He called Air Saguenay at approximately 8:50 a.m. on his satellite phone to verify if the return flight would be delayed or cancelled. He was advised that the aircraft had departed for Lac des Quatre but had to land en route due to weather conditions. No estimated arrival time was offered to him. Pierre Bernier made it clear to Air Saguenay that delaying the trip by a day or two due to weather was not an issue.

[31] Pierre Bernier testified that he was surprised to see the aircraft arrive that morning due to the weather conditions and poor visibility. He recalls that once the aircraft was loaded, it took off, but shortly after getting airborne, the visibility reduced to zero. He further stated that the ceiling that day may have been 200 feet. He observed the onboard GPS displaying solid red symbols and the pilot seemingly looking for a place to land. He confirms that no hammock seating was on board the aircraft on the return trip.

[32] Pierre Bernier recalls regaining consciousness shortly after the crash. Having been helped out of the aircraft by his nephew, he recalls helping Louis Bernier, who had been ejected from the wreckage. He also stated that the fog finally lifted sometime in the afternoon and that search and rescue arrived at the scene of the crash a few hours later.

[33] Pierre Bernier was asked to identify the invoice prepared by Air Saguenay for the charter flight (Exhibit M-9). The invoice indicated four passengers when in fact, there were five passengers.

[34] In cross-examination, Pierre Bernier was asked if the weather conditions improved between 7:00 a.m. and 11:00 a.m. on July 16, 2010. Pierre Bernier testified that, in his opinion, the prevailing fog and visibility remained unchanged. He recalls hearing the aircraft arrive prior to seeing it come through the cloud cover. When asked if he could recall the aircraft arriving over the mountain tops to the north, Pierre Bernier was unable to confirm from which direction the aircraft may have flown. When asked about the length of the lake on its north-south axis, he responded that it was approximately 1 mile in length.

[35] Pierre Bernier was asked if he was able to see the length of the lake prior to take-off on July 16, 2010; he responded affirmatively. On take-off, the aircraft took the normal southbound departure path. Pierre Bernier was asked if he was able to verify the seat belt attachments used by Louis Bernier, but he was unable to recall if he had.

[36] In redirect, Pierre Bernier reiterated that he had flown to Lac des Quatre on approximately 60 different occasions but had never flown in weather as bad as that of July 16, 2010.

B. Applicant

(1) Inspector Gilles Marsan

[37] Inspector Gilles Marsan is a Civil Aviation Safety Inspector for Transport Canada and was the Transport Canada-assigned inspector to Air Saguenay from mid-2008 until the beginning of 2011. Among his responsibilities of operational oversight, Inspector Marsan was also responsible for managing the regulatory oversight for flight training. He testified that he attended a two-day training session at Air Saguenay in May 2010. Inspector Marsan stated that he personally attended several courses over the two days of training. His main responsibility during these courses was to ensure quality and adherence to Transport Canada standards and regulations.

[38] He recalls that in the two days that he was onsite, he had several discussions with the Chief Pilot, Michel Turcotte, and Mr. Tremblay on various subjects. He does not recall any particular discussions or questions with respect to VFR weather requirements or seating configurations on the Beaver.

[39] On cross-examination, Inspector Marsan was asked if Air Saguenay was authorized to fly in reduced visibility conditions. Inspector Marsan responded that the company did not have this operational specification approval. The Minister asked Inspector Marsan if Mr. Tremblay occupied the position of Director of Operations during the time Inspector Marsan was the principal inspector for Air Saguenay. Inspector Marsan confirmed that Mr. Tremblay was the Director of Operations, except for a period following a Transport Canada audit in October 2009, until he resumed this position in February 2010.

[40] In redirect, Inspector Marsan confirmed that Mr. Tremblay met all the requirements for Director of Operations in February 2010, as well as during the August 2010 Transport Canada audit, which was shortly after the accident occurred.

(2) Michel Turcotte

[41] Michel Turcotte is the Chief Pilot at Air Saguenay, and has worked there for four years. In his testimony, he elaborated on Air Saguenay's fleet of 28 aircraft of various types, its operational bases, and the number of pilots employed during the peak summer months. Mr. Turcotte explained that communication between the 12 bases at Air Saguenay is conducted via telephone, satellite radio or high frequency (HF) radio.

[42] Mr. Turcotte briefly explained that pilots employed at Air Saguenay are trained when they are initially hired, as well as when they return, and are given a recurrent training syllabus. The training covers various subjects including operational manual briefs. Mr. Turcotte explained that these manuals specify the weather minimums required to operate aircraft. Mr. Turcotte also confirmed that most of the initial pilot training is conducted by him and that recurrent training is, at times, delegated to other Air Saguenay pilots.

[43] Mr. Turcotte was asked how pilots determine and ultimately decide to conduct a flight, in terms of the minimum weather required. Mr. Turcotte's response was that pilots must always respect the required weather minimums to conduct a flight. This information is available to pilots in operations manuals. A copy of each manual is available on each aircraft, and at each operational base. Mr. Turcotte explained that at bases that employ several pilots, one is designated to decide on the weather required for take-off and operations. At bases that may have only one pilot, the decision rests with the pilot-in-command (PIC) based on aviation weather reporting sources; when such sources are unavailable, the pilot makes a visual assessment.

[44] Mr. Turcotte testified that at Lac Margane, other than a dispatcher, the only pilot on-site the day of the accident was Mr. Boivin. Mr. Turcotte explained that the responsibility for verifying the weather for the departure and the destination would have rested with Mr. Boivin. He would have made this assessment based on weather reports, information from the Internet, visual cues and/or any other means for verifying applicable weather conditions. Mr. Turcotte also testified that Mr. Boivin was employed by Air Saguenay for 10 years and had over 11 000 hours of flight experience, primarily in the region served by Air Saguenay.

[45] The Applicant's representative then questioned Mr. Turcotte on the training that was conducted in May 2010 at Lac Sébastian, Quebec. Mr. Turcotte said that the two-day training session in May was observed by Inspector Marsan, and that the pilots took the opportunity to raise with him the issue of the use of a plastic chair as additional seating. Mr. Turcotte confirmed that he learned at the meeting that Mr. Boivin was using the chair in flights, but Mr. Turcotte could not recall who raised this issue. Mr. Turcotte testified that after discussing it with the pilots and Inspector Marsan, the decision was made that the chair was allowed as long as the seat belt used for this seat was properly secured to the aircraft fuselage.

[46] Mr. Turcotte explained that the same type of belt would be used for either the plastic chair or the hammock seats. The hammock seats are secured on the aircraft using brackets on which the assembly is snapped in. He said that since the accident, the plastic chair is not allowed to be used on a Beaver and any flight with more than four passengers is to be conducted on a Twin Otter aircraft or, if feasible, hammock seating is used on the Beaver in the rear if no luggage is on board.

[47] In cross-examination, Mr. Turcotte was asked to explain the weather minimums required to operate in non-controlled airspace. He responded that for day flights conducted at 1 000 feet above ground level (AGL), the required visibility is 1 mile with the aircraft maintaining at least a 500-foot vertical and 2 000-foot horizontal distance from cloud. For flights conducted at less than 1 000 feet AGL, the required visibility is 2 miles and the aircraft must be clear of cloud. Mr. Turcotte testified that he cannot confirm at which altitude Mr. Boivin was flying the day of the accident.

[48] Mr. Turcotte was asked if the plastic chair that was used was attached in any way to the aircraft. He responded that he is unsure if the chair was secured to the aircraft. He reiterated that the hammock seat did have supporting brackets which the seat was attached to.

[49] Finally, the Minister asked Mr. Turcotte how the issue of the use of the plastic chair was raised at the two-day training in May 2010. Mr. Turcotte responded that the pilots decided to take advantage of the presence of Inspector Marsan during the training to ask about the legality of using the plastic chair. He recalls Inspector Marsan being asked the question and Inspector Marsan responding that he would get back to them. Mr. Turcotte cannot recall if Inspector Marsan came back with a response on that day or the next, or if the response was given to him directly, but he does recall that the use of the chair was allowed. No written confirmation of this response was requested by Mr. Turcotte.

(3) Romain Desrosiers

[50] Romain Desrosiers has been a pilot at Air Saguenay since 2000 and has over 4 000 hours of flying on a Beaver. He testified that he has flown to Lac des Quatre on several occasions. He described the lake as being mostly north-south oriented; take-offs from the lake are usually southbound. The lake from north to south is approximately 1 mile in length and has two mountain peaks 400 feet to the south, which lead to a valley.

[51] Mr. Desrosiers stated that on the morning of July 16, 2010, he was at the Lac Sébastian airbase. Due to limited communication coverage in remote regions, Mr. Boivin communicated via HF radio with the base at Lac Sébastian to inform them that he had proceeded to conduct a precautionary landing at Lac Grenier due to weather encountered en route. He subsequently radioed back to advise that the weather had improved and that he would be departing for Lac des Quatre. Upon arrival at Lac des Quatre, Mr. Boivin radioed the base at Lac Sébastian to inform them that he had landed. Mr. Desrosiers could only recall that the time may have been between 9:00 a.m. and 10:00 a.m. No further reports regarding the weather were received by Mr. Desrosiers.

[52] Mr. Desrosiers further testified that Mr. Boivin radioed Lac Margane shortly after take-off to inform the base that he had departed from Lac des Quatre and was heading back to Lac Margane. A few minutes later, Mr. Boivin radioed again to inform Mr. Desrosiers that the weather had deteriorated and that he was intending to locate a suitable landing surface. Mr. Desrosiers testified that after a few more minutes, he radioed back and asked if the weather had improved. Mr. Boivin's response was negative. This was the last radio communication between Mr. Desrosiers and Mr. Boivin.

[53] In cross-examination, Mr. Desrosiers stated that he has never used the plastic chair on the Beaver and that the normal passenger load on the aircraft is four passengers with cargo and luggage. He also stated that he cannot recall at exactly what time Mr. Boivin radioed him from Lac Grenier. Mr. Desrosiers was asked if, at any time, he had taken the opportunity to recommend that Mr. Boivin remain at Lac Grenier due to the weather conditions. His response was negative. He continued to explain that Mr. Boivin had the extensive experience required to make that decision and that the pilot on-site would be the person best suited to properly evaluate the weather.

[54] Mr. Desrosiers also confirmed that the required visibility for take-off is 2 miles if the ceiling is lower than 1 000 feet.

(4) Jean Tremblay

[55] Jean Tremblay is the Director of Operations and Vice-President at Air Saguenay and has been in the position for 15 years. In his testimony, Mr. Tremblay stated that the Chief Pilot, Mr. Turcotte, reports directly to him and maintains almost daily contact with him in terms of operational issues and concerns.

[56] Mr. Tremblay confirmed that he attended the May 2010 training at Lac Sébastian. A Transport Canada inspector and 12 to 15 pilots were in attendance. He stated that under certain circumstances, the Beaver aircraft is insured for six passengers on the condition that the hammock seat is installed and that no luggage is on board. A problem arises when there are five passengers and luggage. Mr. Tremblay testified that the hammock seat cannot be installed in that situation, as the luggage is secured in this area. His understanding is that as long as the seat belt assembly is properly attached to the fuselage of the aircraft, the fifth passenger can be seated on any surface, such as a cooler or packsack. This problem is not unique to Air Saguenay; it exists with other Beaver operators.

[57] Mr. Tremblay confirmed that the issue of the legality of using the plastic chair for a fifth passenger on the Beaver was raised with Inspector Marsan. Although he could not recall on which day of the training the question was raised, Inspector Marsan verbally confirmed to the pilots attending the course that the seat could be used as long as the seat belt assembly was properly attached and secured to the aircraft.

[58] Mr. Tremblay stated that he can only recall one other accident at Air Saguenay that involved a weather issue. He explained that each pilot is responsible for reviewing the weather prior to departure by using current information available on various websites, and from weather reports issued at various stations in the region. He provided an example that the closest weather reporting station to Chute-des-Passes is in Bagotville, Quebec, which is 125 miles away. No actual weather reporting stations are available at locations such as Chute-des-Passes and Lac des Quatre. A Transport Canada inspection conducted a few weeks after the accident revealed no major violations by Air Saguenay, its Chief Pilot or the company's operations procedures.

[59] On cross-examination, Mr. Tremblay stated that he arrived on the day of the accident at the Lac Sébastian base at approximately 11:30 a.m. That afternoon he spoke with the dispatcher on duty, who informed him that Pierre Bernier had called the base to find out if the aircraft dispatched to pick them up had departed. At no time did the dispatcher contact Mr. Boivin, nor was he contacted by Mr. Boivin other than through a radio call after take-off from Lac Margane en route to Lac des Quatre.

[60] Mr. Tremblay acknowledged that the plastic chair had been used previously at Air Saguenay and is not physically attached to the aircraft in any fashion. He was also asked why the invoice for the flight indicated four passengers when in fact five had been reserved for the flight. He responded that the invoice was not produced by him and that the five passengers' names are clearly indicated on the invoice.

[61] Mr. Tremblay could not recall who had asked Inspector Marsan about the use of the plastic chair during the training session in May 2010, but he was present in the room when it was raised. He testified that the response from Inspector Marsan was that the chair could be used on the condition that the seat belt assembly was properly anchored to the aircraft fuselage. At no time did Mr. Tremblay request that this authorization or approval be put in writing.

[62] In redirect, Mr. Tremblay explained that the cost per operating mile almost doubles when operating a Twin Otter instead of a Beaver.

C. Minister's Evidence on Redirect

[63] Inspector Marsan was recalled by the Minister at the end of the second day of the Hearing. I was not aware that he would be recalled and had therefore allowed the Inspector to remain in the room during the second day's review. I allowed his testimony, but clearly indicated that I would reserve the right to assign the testimony the appropriate weight. From his testimony on the second day, I only mention that when asked by the Minister, he stated that he could not recall hearing questions regarding the plane's seating configuration.

V. ARGUMENTS

A. Minister

[64] Concerning the first charge, the Minister argues that the pilot, Mr. Boivin, was, on a balance of probabilities, negligent in taking off on July 16, 2010, in weather below the authorized minimum required. This is based on the viva voce testimony of and evidence presented by two witnesses, Pierre Bernier and Simon Bernier, which the Minister summarized as follows:

  1. Both stated that visibility the morning of the flight was almost non-existent.
  2. Pierre Bernier testified that the aircraft was expected at Lac des Quatre at 8:00 a.m. on July 16, 2010. He called Air Saguenay at 8:50 a.m. to enquire about the flight departing that day.
  3. Pierre Bernier informed the dispatcher about the adverse weather at the lake and indicated that he would understand if the flight was delayed until the weather improved.
  4. The Minister submits that the information communicated to the dispatcher at Lac Sébastian should have been forwarded to Mr. Boivin during his wait at Lac Grenier, which would have provided him with additional weather information at Lac des Quatre.
  5. Testimony from both witnesses indicates that shortly after take-off from Lac des Quatre, the pilot lost ground visibility and the on-board GPS unit was displaying red warning indicators. Based on Pierre Bernier's estimate, the ceiling that day may have been 200 feet, with little or no visibility due to fog.

[65] The Minister submits that he has proven, on a balance of probabilities, that the pilot was negligent because he took off in a ceiling with visibility below 1 000 feet without having the required 2-mile lateral visibility.

[66] As to the second charge, the Minister submits that a modified plastic chair that is not anchored or attached in any way to an aircraft would never be permitted or allowed by a Transport Canada inspector. The Minister argues that the certified hammock assembly is the only approved and certified seating for the Beaver. The seating is secured in place and is on the aircraft's equipment list. The chair that was used by Air Saguenay has not been approved for use on this aircraft and should not have been used.

[67] The Minister also argues that the sanctions imposed by both charges must be upheld based on documentary evidence and testimony, which he submits is as follows:

  1. The evidence clearly indicates that the pilot took off in weather resulting in visibility below the required VFR minimum, resulting in the crash and the loss of four lives.
  2. There was also a repeated and unauthorized use of the chair, which was used not only on the day of the accident, but also on July 11, 2010. Witness testimonies indicate that the approved hammock seating was not used for the fifth passenger.
  3. Air Saguenay indicated on the invoice that only four passengers would be on the flight whereas the company was aware that five passengers were scheduled. The company should have taken the initiative to have the Beaver aircraft replaced by a Twin Otter to properly secure the fifth passenger.

B. Applicant

[68] Concerning the first charge, the Applicant's representative argues that the pilot had the required experience to judge and assess the weather conditions required for take-off, submitting the following:

  1. Mr. Boivin had over 11 000 hours of bush flying experience, according to Mr. Turcotte, in a region that he knew well.
  2. The weather required for take-off on the morning of July 16, 2010, from Lac Margane was fine. In encountering fog en route, Mr. Boivin decided to land at Lac Grenier and wait for the fog to dissipate. Testimony indicates that the waiting period was approximately 2 hours.
  3. Mr. Boivin informed fellow pilot, Mr. Desrosiers, via radio that the weather had improved and that he would continue to Lac des Quatre.
  4. Based on witness testimony, the aircraft took off in a north-south direction, with the end of the lake visible. The distance is approximately 1 mile with obstruction from a hill that is 400 feet high. Only once the pilot was airborne was he able to observe that the weather had deteriorated and that a precautionary landing was required.

[69] Based on the above testimony and evidence, the Applicant's representative submits that no negligence can be attributed to the pilot of the aircraft and the defence of due diligence is warranted. In support of this submission, the Minister cites Lévis (City) v. Tétreault, 2006 SCC 12, in which it was ruled that a defence of due diligence may be successful if the “accused” has taken all reasonable precautions to avoid the event.

[70] With this in mind, the Applicant's representative argues that Air Saguenay was duly diligent in terms of training and operational follow-up with its crews, including recurrent training on weather requirements for aircraft operation. The company has an approved training program, operational manuals and has a high level of expertise in northern bush operations. The company has a good operating record with only one weather-related accident since 1985.

[71] As for the second contravention, the Applicant's representative again cites Lévis, arguing that, in the case at hand, a competent person of authority authorized the use of the plastic chair. Both Mr. Tremblay and Mr. Turcotte testified that the use of this plastic chair had been an issue for several years and that the question was raised to Inspector Marsan as an authority figure in his role of Transport Canada inspector. As such, the Applicant submits that they are entitled to rely on the defence of officially induced error.

[72] The question of the credibility of the testimony offered was also raised by the Applicant's representative. He submits that both Mr. Turcotte's and Mr. Tremblay's testimonies are consistent with what was said and heard during the two days of training in May 2010. Inspector Marsan's testimony is contradictory. He initially testified that he did not recall being asked any questions regarding seating on the Beaver, then later testified that he was never asked questions on this subject.

[73] With regard to the sanctions, the Applicant's representative submits that Air Saguenay participated and cooperated with all requests for information regarding this unfortunate accident. As to the delay in the aircraft's technical logs, the Applicant's representative submits that these were submitted to the TSB at the beginning of the investigation, then to the insurers before being returned to Air Saguenay. The logs were submitted to Transport Canada as soon as they were received from the insurers.

C. Minister's Reply

[74] The Minister submits that all elements of negligence have been proven. Testimony from both Simon and Pierre Bernier indicates thick fog over the lake. The fact that Mr. Boivin was required to land at Lac Grenier also indicates the probability of bad weather at Lac des Quatre. A reasonable person under the circumstances would have waited longer for the weather to improve. The pilot's decision to depart without the weather improving sufficiently proves negligence.

[75] The Minister argues that once the pilot arrived at Lac des Quatre, he should have waited for the weather to improve before departing. The Minister also argues that the pilot's decision to depart from Lac des Quatre may have been the result of over-confidence based on his extensive experience.

[76] With regard to due diligence, the Minister submits that the company did not do all it could have to avoid this situation. The Minister cites R. v. Rio Algom Ltd., [1988] 66 O.R. (2d) 674, in which it was decided that the ability to predict danger is a factor in deciding if a person has taken everything into consideration to avoid an accident. In the case at hand, Mr. Boivin was aware of weather issues when he decided to land at Lac Grenier. Pierre Bernier communicated with Air Saguenay that morning to report the weather conditions at the lake. The Minister argues that the company should have asked the pilot to return to the base to wait for better weather.

[77] To counter the Applicant's defence of due diligence, the Minister cites the Tribunal determination, 2431-9154 Québec Inc. v. Canada (Minister of Transport), 2007 TATC 23 (Review), file no. Q-3364-09. Based on this case, the Minister argues that Air Saguenay cannot claim ignorance because it was Mr. Boivin who violated the CARs; rather, it must demonstrate that it has oversight in terms of its operations and crews. The pilot used the plastic chair several times and Air Saguenay was aware of its use; no effort was made to cease this practice before receiving a clarification or authorization from Transport Canada. As such, the sanction as applied is valid.

[78] Finally, the Minister submits that Inspector Marsan's testimony is credible. He argues that at no time during Inspector Marsan's testimony for the Applicant was he ever asked whether the use of the plastic chair was allowed by Transport Canada at the May 2010 training session. The Minister submits that no inspector would ever allow the use of such a seating device and, based on the contradiction in testimony, one must assume that, on a balance of probabilities, no Transport Canada inspector would ever allow this seat to be used. Accordingly, the Minister submits that the Applicant has not reasonably proven a defence of officially induced error.

VI.  ANALYSIS

A. Count 1: Section 602.01 of the CARs

[79] I find that the Minister has failed to establish, on a balance of probabilities, that Air Saguenay contravened subsection 602.01 of the CARs. First and foremost, I have found the testimony heard by the Minister's witnesses as to the weather at Lac des Quatre credible, but in determining the application of section 602.01 of the CARs, I have to address two critical issues: negligence and due diligence.

[80] In order to determine if there was negligence in this case, I must examine whether the pilot operated the Beaver in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person, pursuant to the CARs. As submitted by the Minister, in Van Nice v. Canada (Minister of Transport), 2004 TATC file no. C-2885-02 (Review), negligence is defined as doing something a reasonable person would not do, or omitting to do something a reasonable person would do. It is also defined as the absence of such care that would be the duty of a reasonable person in Decicco v. Canada (Minister of Transport), 1998 CAT file no. C-1316-02 (Appeal).

[81] In my view, and from Mr. Desrosiers', Simon Bernier's and Pierre Bernier's testimony, the weather conditions en route to and at Lac des Quatre were marginal. This is evident in Mr. Boivin's decision to land at Lac Grenier in order to wait for better weather conditions. The witness testimony and the documentary evidence before me (see Exhibit M-3) clearly confirm that the pilot was waiting for better conditions. The wait duration from reports and testimony was anywhere from 40 minutes to 2 hours. Mr. Boivin departed for Lac Grenier again and had the visibility to land at Lac des Quatre around 10:15 a.m.

[82] With no weather reporting facility at Lac des Quatre, the decision to take off rests with the pilot. The decision to ascertain if the required visibility is within the regulatory minimums is based on the pilot's observation at the moment of take-off. Testimony from the Applicant indicates that the lake is an L-shape, with the dock located perpendicular to the north-south departure surface of the aircraft (Exhibit R-1). With testimony indicating a ceiling below 1 000 feet, the 2-mile visibility requirement was mandatory. Visibility may vary when observing from a west-east location, or a north-south one. Witnesses have indicated that during the take-off roll, the end of the lake was visible. Considering the topography of the lake, it would have been difficult to assess visibility due to the hill located directly ahead of it.

[83] In my opinion, it would be conceivable that, from his perspective, one of the passengers seated in the second row could have assessed visibility differently than the pilot seated in the forward seat. Simon Bernier added that he was feeling ill and closed his eyes on several occasions in order to avoid getting physically ill. The weather was without a doubt marginal, but the responsibility to properly assess the weather minimum without dedicated aviation reports ultimately falls to the pilot. Testimony from both the Minister's and Applicant's witnesses indicates that, at the very least, the end of the lake was visible prior to take-off. This would indicate at least one mile of visibility.

[84] The aircraft did land at Lac des Quatre and it was able to depart. Testimony from the radio transmissions to Mr. Desrosiers indicates that shortly after take-off, the pilot encountered deteriorating weather conditions, and the need to land became critical. Upon review of the pilot's actions on that day, including his precautionary landing to wait for an improvement in weather conditions, his overall years of experience in the region, and his actions that day, I find, on a balance of probabilities, that the weather was adequate for take-off on July 16, 2010, but subsequently deteriorated once the aircraft was airborne. Although the weather played a factor in the accident, I believe the pilot did take all reasonable steps to ensure adequate departure weather as per section 602.115 of the CARs. Although hindsight is 20/20, I find no negligence in the pilot's decision-making process that day with respect to his decision to take off from Lac des Quatre.

[85] Testimony from Inspector Marsan indicates that Air Saguenay met all the requirements and specifications required of an operator under section 703 of the CARs. The pre- and post-audits revealed no major violations in terms of operational training and currency for the pilots operating in the region. Air Saguenay's safety record in operating a fleet of multiple types of aircraft in this region is good. No issues were raised by Transport Canada in May 2010 when Inspector Marsan attended the training briefings. I find that the company had an approved training program (Exhibit R-2) covering the required subjects relating to required weather determination, decision processes, and authorization requirements to operate. As such, it is determined that the company exercised due diligence in terms of initial pilot training and recurrent training syllabuses, in providing company operating manuals that clearly define flight authorization dispatching processes, and in all infrastructure support, to ensure safe flight planning and follow-up.

B. Count 2: Subsection 605.22(1) of the CARs

[86] The Minister has demonstrated that a plastic chair was used to seat the fifth passenger in the Beaver aircraft on the day of the accident, as opposed to the hammock seating approved for this purpose.

[87] As such, in order to determine whether the aircraft was operating without a proper seat and safety belt for each person in violation of subsection 605.22(1), it is necessary to determine the following:

  1. whether the seat/seat belt assembly installed on the Beaver by Air Saguenay was authorized by the manufacturer to be installed and used on the aircraft; and
  2. whether the seat/seat belt assembly installed on the Beaver by Air Saguenay was authorized by Transport Canada.

[88] The testimony and exhibits presented by the Minister as to the manufacturer's approved seating and seat belt for the rear seating of the Beaver clearly indicate that the only approved seating that can be added to this aircraft is the twin or triple hammock seat with belt assembly. The Weight and Balance Report (Exhibit M-18) issued on September 21, 1985, indicates that the twin hammock rear seat and belt are on the approved equipment list for this aircraft. The Weight and Balance Report (Exhibit M-17) issued on December 9, 1985 again refers to a triple hammock seat, or optional twin hammock seat and belt. Subsequent amendments to such reports from 1985 to 1996 (Exhibits M-19 to M-23) make no reference to any other seat assembly. Based on these facts, it is my conclusion that the Applicant's use of a plastic chair in any modified configuration is not approved for use on the Beaver by the manufacturer.

[89] I must address a pivotal part of the Applicant's argument, centered on the testimony of two of his witnesses, Mr. Turcotte and Mr. Tremblay. Both testified to a discussion in May 2010 in which Inspector Marsan verbally approved the use of this chair in lieu of the twin or triple hammock seat. Mr. Turcotte testified that during the two-day training event at Lac Sébastian in May 2010, the legality of using the chair was raised by pilots, then later to Inspector Marsan. He could not recall who had raised the question or at which time during the two-day event the issue was raised, but did recall that the response from the inspector was that as long as the seat belt assembly was properly attached, the seat is approved for use. Mr. Turcotte could not recall if the Inspector Marsan responded immediately to the question, or if the response was given to him directly or to the group present that day.

[90] The second witness for the Applicant, Mr. Tremblay, also testified that the question regarding the use of this plastic chair as rear seating was raised with Inspector Marsan during this May 2010 training event. Mr. Tremblay could not recall when during the two days of training the question had been raised or by whom. Mr. Tremblay added that Inspector Marsan was unable to respond initially but did come back to the group and confirmed verbally that the chair could be used as long as the seat belt assembly was properly attached to the aircraft fuselage.

[91] Inspector Marsan's testimony is conflicting at best. When he initially testified for the Applicant, he could not recall any discussion regarding seating configuration during the May 2010 training event. As I was unaware that the Minister would call this witness after the Applicant's evidence on the second day of the Hearing, he was permitted to remain in the room during the remainder of the second day's review. Although I allowed his testimony on the second day, I clearly indicated that I would reserve the right to weigh Inspector Marsan's testimony accordingly. His statements on the second day as a witness for the Minister were conflicting at best. Although during his second day of testimony he stated that he could not recall hearing questions regarding the plane's seating configuration, the previous day he had stated that he could not recall if the issue had even been raised. As such, I find that his testimony is not helpful in this matter and assign little weight to it.

[92] Nevertheless, I find that Air Saguenay failed to exercise due diligence to prevent this contravention. The fact that both Mr. Tremblay and Mr. Turcotte could recall the discussion pertaining to the use of this modified plastic chair, but were unaware of details pertaining to when and how it was broached with their Transport Canada inspector is troubling. Although I do not question the fact that this issue may have been raised, the fact that both of them did not request any formal written approval from Inspector Marsan is difficult for me to ignore. Based on their respective levels of experience, they should have known that the use of an unsecured modified chair as rear seating would have, at the very least, required written approval from Transport Canada. It is difficult to explain that even though both testified that this question was one that they had wanted clarified for some time, no formal written response was ever requested by them.

[93] Both Mr. Turcotte and Mr. Tremblay clearly indicated in their testimonies that the use of this chair was not a new issue and that the need to properly clarify its legality was important. With the level of experience both individuals possess, it is a generally accepted practice in the industry to not only raise the issue in an official matter, such as requesting written clarification, but to ensure that the response from Transport Canada be duly noted in writing and communicated via approved documentation, such as memos and operational manuals. In my opinion, this was a duty that could not have been overlooked.

[94] With that said, it is important to clarify the seat belt assembly issue that was discussed at the Hearing. No question as to the legality of the belt was raised, as this is an approved item on the aircraft equipment list. It is important to note that the belt assembly is approved in conjunction with the twin or triple hammock seat. As testified by the Applicant's witnesses, the Beaver has the fittings and brackets required to install these two seating configurations, along with the seat belt assembly. Although the hammock seats are not anchored in, they are nevertheless secured on the aircraft. This is not the case with the modified plastic chair. In my view, the argument raised by the Applicant's representative, that the seat belt assembly is the only item required for rear seating, is narrow and incorrect. The approved seat belt assembly is designed to be used with the approved hammock seating configurations. Separating these two is an incorrect interpretation of the equipment list for the Beaver. The plastic chair is not an approved item on the aircraft equipment list and is, therefore, not approved to be used in conjunction with the seat belt indicated on that list.

[95] Finally, to determine whether the Applicant's defence of officially induced error can succeed, we must apply the test for officially induced error as defined in Lévis (City) v. Tétreault to the facts at hand. It is clear that an error was made in this instance with regard to using the plastic chair as a seat on the aircraft. As such, the first element of this defence has been proven. I am also satisfied that those involved with Air Saguenay considered the legal consequences of their action prior to using the plastic chair as seating on the aircraft. Accordingly, the second element of the defence is proven as well.

[96] However, I find that this defence fails on the third element. I am not convinced, on the balance of probabilities, that the Applicant received advice from Inspector Marsan with regard to using the plastic chair as a seat in the aircraft. The witnesses for the Applicant cannot provide adequate detail on how this alleged advice was requested or received, and there is contrasting witness testimony as to any alleged advice or consent given on this issue. Based on the evidence before me, it seems that the Applicant mentioned to Inspector Marsan in passing a practice that was already in use. As such, the Applicant has not demonstrated that it took the necessary steps to seek advice on this issue that would entitle it to rely on a defence of officially induced error.

[97] Furthermore, even if the Applicant could have proven the third element of this defence, the defence would have inevitably failed on the fourth element, that being the reasonableness of the advice. As noted by the Minister, any such advice given as alleged by the Applicant's witnesses would have been clearly dangerous and unreasonable. Indeed, this advice is unreasonable from a common sense point of view, and should be even more unreasonable to aviation professionals, including the employees and officers of Air Saguenay. As such, I find that the Air Saguenay's reliance on any such advice would clearly have been unreasonable.

[98] Based on these considerations, the Minister has proven, on a balance of probabilities, that the Applicant contravened section 605.22 of the CARs. The Applicant has failed to demonstrate that it was duly diligent or relied on an officially induced error.

VIII. DETERMINATION

[99] Count 1: The Minister has not proven, on a balance of probabilities, that the Applicant,Air Saguenay (1980) Inc., contravened section 602.01 of the Canadian Aviation Regulations. As such, the monetary penalty of $25 000 is dismissed.

[100] Count 2: The Minister has proven, on a balance of probabilities, that the Applicant, Air Saguenay (1980) Inc., contravened subsection 605.22(1) of the Canadian Aviation Regulations. The monetary penalty of $25 000 is upheld.

February 6, 2013

Franco Pietracupa

Member


Appeal decision
Suzanne Racine, Gary Drouin, Charles Sullivan


Decision: June 22, 2015

Citation: Canada (Minister of Transport) v. Air Saguenay (1980) Inc., 2015 TATCE 13 (Appeal)

[Official English Translation]

Heard in: Quebec City, Quebec, on April 21, 2015

APPEAL DECISION AND REASONS

Held: The appeal is dismissed and the cancellation of the penalty of $25,000 is upheld.

I. BACKGROUND

[1] On April 20, 2011, the Minister of Transport issued a Notice of Assessment to the respondent, as recorded owner of the registered aircraft C‑GAXL, pursuant to subsection 8.4(1) of the Aeronautics Act, R.S.C. 1985, c. A‑2, for two contraventions of the Canadian Aviation Regulations, SOR/96‑433 (CARs). The first one imposed a penalty of $25,000 for a contravention of section 602.01 of the CARs and the second one, a penalty of $25,000 for a contravention of subsection 605.22(1) of the CARs. Only the first contravention is the subject of this appeal.

[2] In Schedule A of the Notice of Assessment, the Minister reproached the respondent for having allowed its pilot-in-command to operate the registered aircraft C‑GAXL, on July 16, 2010 at approximately 11:20 a.m. local time, in the vicinity of Chute‑des‑Passes, in a reckless or negligent manner which endangered or was likely to endanger the life or property of any person; that is, for allowing use of the aforementioned aircraft under visibility or ceiling conditions, as well as at an altitude, that did not allow for safe flight, thereby contravening section 602.01 of the CARs.

[3] A review hearing took place before Franco Pietracupa, member of the Transportation Appeal Tribunal of Canada (Tribunal), on May 29 and 30, 2012. In his determination dated February 6, 2013, the member concluded that the Minister did not prove, on a balance of probabilities, that Air Saguenay (1980) Inc. (Air Saguenay) had contravened section 602.01 of the CARs. He consequently rejected the penalty imposed by the Minister.

[4] The Minister appealed this conclusion. An appeal hearing took place in Quebec City, Quebec, on April 21, 2015, before an appeal panel comprised of three members of the Tribunal.

II. GROUNDS FOR APPEAL

[5] In the Notice of Appeal dated March 6, 2013, the appellant states the following three reasons:

[Translation]

1- The Tribunal member erred in facts and in law by concluding that the pilot-in-command of aircraft C-GAXL did not use his aircraft in a reckless or negligent manner which endangered or was likely to endanger the life or property of any person, in contravention of section 602.01 of the Canadian Aviation Regulations (CARs). More precisely, the Tribunal member committed an error in facts and in law by placing the emphasis, in his determination, on respect for the meteorological minima provided for in section 602.115 of the CARs, and by not taking sufficiently into account the combined effect of the weather conditions and visibility, the topography of the location, the altitude at which the aircraft flew and the testimonies presented during the [review] hearing.

2- The Tribunal member erred in facts and in law by concluding that the applicant [Air Saguenay (1980) Inc.] had exercised due diligence, while the employee(s) of the applicant had not notified the pilot of the prevailing unfavourable weather conditions at the destination and, considering this, had not warned the pilot to postpone his take-off.

3- The Tribunal member committed an error in law by basing his determination on the essential elements of a violation committed pursuant to section 602.115 of the CARs, while the accusation concerned section 602.01 of the CARs.

III. ARGUMENTS

A. Appellant

[6] The appellant submits the following arguments:

(i) The Tribunal member did not sufficiently take into account the testimonies of Messrs. Simon and Pierre Bernier, although deemed plausible, according to whom the prevailing weather conditions on the morning of July 16, 2010 to Lac des Quatre were unfavourable and had remained as such until the time of take-off.

(ii) The member was incorrect in concluding that the weather conditions, on the morning of July 16, 2010 to Lac des Quatre, deteriorated during the flight.

(iii) The member was incorrect in basing his conclusions on hypotheses and speculation about what the pilot-in-command was thinking at the time of his decision-making on the morning of July 16, 2010. He should have relied on the only direct evidence available concerning the status of the weather conditions, namely that contained in the testimonies of Messrs. Simon and Pierre Bernier.

(iv) The member failed to consider the following ten undisputed elements of proof:

1) during his trip toward Lac des Quatre, the pilot had to divert from his path due to weather conditions;

2) the pilot had to make a precautionary landing on Lac Grenier and remain there for nearly two hours until the weather conditions improved and allowed him to take off;

3) upon his arrival at Lac des Quatre, the aircraft flew out of the clouds before landing on the lake;

4) the weather conditions at Lac du Quatre did not change between the time the witnesses woke up and the fatal accident;

5) the cloud ceiling was at a maximum of 200 feet upon take-off;

6) the topography of the area shows summits of 1,300 feet;

7) upon take-off, the pilot could not see beyond 1,000 feet due to the presence of a mountain at the end of the lake;

8) the pilot could therefore not see what awaited him after take-off;

9) the passengers and inhabitants of the camp had no objection to remaining on site a while longer;

10) there was no urgent need to take off, since the pilot's next flight was scheduled for the end of the day.

(v) In his analysis, the Tribunal member did not consider the reckless nature of the pilot-in-command's actions. He only considered the aspect relating to the negligent nature of his actions, which is contrary to the interpretation of regulations 602.01 of the CARs.

(vi) The member was incorrect to conclude that there had been due diligence on behalf of the respondent given the fact that the latter had not taken all the necessary precautions to notify its pilot of the unfavourable weather conditions present at Lac des Quatre.

(vii) Even if the respondent delegates the operational control of a flight to its pilot, it is nonetheless true that the respondent would have remained responsible according to the provisions of its operations manual.

(viii) The member committed an error by basing his determination on section 602.115 of the CARs, while the alleged violation was a reckless or negligent use of an aircraft pursuant to section 602.01 of the CARs.

B. Respondent

[7] The respondent's representative submits what follows:

(i) The conclusions of the Tribunal member are within a range of reasonable results given the evidence that he had at his disposal.

(ii) The member's determination is amply supported by the evidence and the appeal panel should not intervene. The member committed no error on either the factual or legal aspects.

(iii) The member reasonably concluded that the pilot-in-command's actions had not been negligent after having analyzed the evidence that he had at his disposal, namely: the testimonies concerning the weather conditions at Lac des Quatre on the morning of July 16, 2010; the visibility and topography of the area; the pilot's behaviour during this day; his work experience; and his knowledge of the region.

(iv) The member correctly concluded in law that the respondent had shown due diligence and his conclusions are reasonable considering the evidence that he had at his disposal.

(v) The member accurately analyzed the alleged violation in respect of section 602.01 of the CARs. The member referred to the appropriate decisions of this Tribunal in matters of recklessness or negligence to determine whether or not there was either any reckless or negligent piloting.

IV. REVIEW STANDARD APPLICABLE ON APPEAL

[8] A panel that hears the appeal of a decision rendered following a review must apply the appropriate standard of review depending on whether it is a factual or legal question, prior to deciding if it must uphold or dismiss the appeal.

[9] In paragraph 57 of Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada determined that it is not necessary to indulge in the analysis of the standard of review if it was already established by case law. In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, the federal court examined the question of the standard of review applicable to the Tribunal's decisions. It ruled that in questions of fact and credibility, the appeal panel must demonstrate deference with regard to the review member's determination but that it can draw its own conclusions in relation to the questions of law, which do not call for any deference.

[10] As a result, questions concerning the facts, and the mixed facts and law, should be examined by the Tribunal's appeal panel by adopting the standard of review of reasonableness, as elaborated on by the Supreme Court in paragraph 47 of its reasons for judgment in the Dunsmuir case:

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

The Tribunal applied this standard in several of its decisions, particularly Farm Air Ltd. v. Canada (Minister of Transport), 2011 TATCE 20, docket No. C‑3621‑09 (Appeal), and Genn v. Canada (Minister of Transport), 2012 TATCE 7, docket No. P‑3739‑02 (Appeal).

[11] In this case, the appeal panel must ask the following question: is the determination of the review member, who concluded that the Air Saguenay pilot had not been negligent, within a range of possible and acceptable outcomes given the evidence that he had at his disposal?

V. ANALYSIS

A. Grounds for Appeal No. 1

[12] These grounds for appeal, according to which the review member could have erred as to the facts and the law by concluding that the Air Saguenay pilot had not used his aircraft in a negligent or reckless manner, include two elements: firstly, the member might have erred in facts and in law in his determination by placing the emphasis on the respect for the meteorological minima provided for in section 602.115 of the CARs. Secondly, the member could have committed an error in facts and in law by not taking sufficiently into account the combined effect of the weather conditions and visibility, the topography of the location, the altitude at which the aircraft flew and the testimonies presented during the hearing.

[13] The appeal panel will first concentrate its analysis of the member's determination on the various aspects of the second element of these grounds for appeal; the first element to be examined later, in conjunction with Grounds for Appeal No. 3.

(1) Weather conditions, visibility and testimonies presented at the review hearing

[14] The Minister argues that the member did not take the testimonies of Messrs. Simon and Pierre Bernier sufficiently into account, which clearly demonstrate that the weather conditions and ceiling at Lac des Quatre, on the morning of July 16, 2010, were unfavourable and that they remained unchanged until the time of the accident. According to the Minister, the member would also have had to consider that the weather conditions were so bad that they had forced the pilot to land on Lac Grenier and to remain there for nearly two hours before he could take off again for Lac des Quatre.

[15] Thus, Mr. Simon Bernier testified that it was "really not good weather" that morning, that there was a thick fog, that "the top of the trees was barely visible at the other end of the lake" and that there was a low ceiling. Mr. Simon Bernier asserted that the temperature had remained practically unchanged all morning long and that there was some additional fog during the take-off.

[16] His testimony is supported by that of Mr. Pierre Bernier, who specified that the ceiling was at a maximum of 200 feet. Mr. Pierre Bernier was so convinced that they would not be at the camp that morning that he called Air Saguenay to tell them there was a lot of fog at Lac des Quatre. The dispatcher informed him that the plane had left the base at Lac Margane, but had to land on a lake as a precaution. Mr. Pierre Bernier would not have had any objection to remaining in place a while longer. He was surprised when he at first heard the aircraft, then saw it arrive, coming out of the fog above the lower part of the mountain. Mr. Simon Bernier also saw the aircraft but above the higher part of the mountain at 300 or 400 feet from the lake at the time the aircraft came through the clouds.

[17] At take-off, Mr. Pierre Bernier had taken his place behind the pilot in the second row. He was in a position to see the south end of the lake. Then, as soon as the plane was somewhat aloft, he no longer saw anything through the cabin window located directly next to him on his left. Mr. Simon Bernier, who was seated in the middle of the second row next to Pierre, does not recall if he could see the end of the lake. The flight had lasted about 20 minutes, during which the pilot looked out his side window, more so than to the front, to find a place to land on the water.

[18] The review member concludes, in paragraph 79 of his determination, that the weather conditions at Lac des Quatre were poor, given the testimonies of Messrs. Simon and Pierre Bernier which were deemed credible. The member also deems as credible the testimony of Mr. Romain Desrosiers, with whom the pilot had communicated on several occasions on the morning of July 16, 2010. This witness reported that the pilot, during his successive radio transmissions, had indicated to him that the conditions encountered during his flight to Lac des Quatre were poor, that they had forced him to make a precautionary landing on Lac Grenier along the way, but then they had improved before quickly deteriorating after the departure from Lac des Quatre. Striking a balance between these testimonies considered as credible, the member concludes in paragraph 81 of his determination that the weather conditions were good enough at the departure from Lac des Quatre, that the pilot decided to take off. Lastly, the member finds that, in the absence of a means of weather reporting at Lac des Quatre, the final decision whether or not to take off rested with the pilot (paragraph 82 of the determination).

[19] The member's reasoning in this respect relies moreover on the testimony of inspector Jean‑Guy Carrier, who said that in the absence of a local weather forecast, the pilot must decide if he takes off or not, in view of the observations which he makes on site. According to Mr. Carrier, the pilot's years of experience and his knowledge of the region are crucial factors that influence his decision-making process. Therefore, the more a bush pilot operates under the changeable and sometimes unpredictable weather conditions with years of experience in a given region, the more he will be in a position to assess the conditions favourable to the operational control of his flight. The pilots employed by Air Saguenay have clear instructions, according to the testimony of its chief pilot, Mr. Michel Turcotte. They have to respect the weather minimums stipulated in the company's operations manual.

[20] The member also relied on the fact that the aircraft had safely landed on Lac des Quatre and that he had been capable of taking off from it. At take-off, Mr. Pierre Bernier saw the south end of the lake. As Mr. Desrosiers and Mr. Pierre Bernier acknowledged that the lake measured one (nautical) mile in its north‑south direction, the member concluded that the pilot benefited from at least one mile of visibility. In any case, the presence of a mountain located at the south end of the lake prevented the pilot-in-command from estimating the visibility farther than one mile. The member also concluded that it was possible that Mr. Pierre Bernier may have been able to assess the visibility differently than the pilot in front, since the cabin window to his left was in a curved form. Moreover, Mr. Simon Bernier reported having sometimes seen the top of the trees through the fog when he looked outside. He had a diagonal view on what took place below, which could have slanted his vision.

[21] The member also examined the pilot's actions during the morning of July 16, 2010, as well as his experience. The pilot, Mr. Gabriel Boivin, had 33 years of bush flight experience, 10 of which were in the respondent's service. He counted 11,500 flight hours, 10,000 of which were mostly in the region and on the type of plane used on July 16, 2010. He knew the area very well. According to the evidence that the member had at his disposal, the pilot was not under any pressure; he had only one other flight to be carried out at the end of the day. He had performed a precautionary landing before arriving at his destination because the weather conditions had deteriorated en route. He had then waited at Lac Grenier for the weather conditions to allow him to take off again toward Lac des Quatre and to land there on the water.

[22] The member deemed that the pilot's experience and his knowledge of the region, his observations of weather conditions and visibility, and conditions experienced during his flight between Lac Grenier and Lac des Quatre that morning, had allowed him to make the decision to take off from Lac des Quatre. The member therefore detected no negligence in his decision-making process.

(2) Topography of the area and altitude maintained by the aircraft

[23] The Minister submits that the member failed to consider that the topography of the area includes 1,300-foot summits while the witness, Mr. Turcotte, gave evidence that the pilot had maintained a 1,000-foot altitude or less.

[24] Mr. Desrosiers explained to the member that the pilot must take off from the north‑south direction on the lake. In order to avoid the mountain located at the south end of the lake, the pilot must first perform a turn to the right, then a second turn to the left to be able to stay in the valley where the ground descends around 200 feet, and where it is easier to follow landmarks on the ground. The testimony of Mr. Pierre Bernier, who had many times taken this route, corroborates the testimony of Mr. Desrosiers concerning the departure manoeuvre and the vertical drop to the lake outlet.

[25] Considering his extensive experience in the region and his knowledge of the area's topography, the pilot anticipated performing his VFR flight safely by maintaining references to the ground in the valley. Mr. Desrosiers testified that a few minutes after having received the message from the pilot informing him that he had taken off from Lac des Quatre, he spoke with the pilot again, who notified him that the weather conditions had deteriorated and that he thought he had to land. The member concluded from this, in paragraph 84 of his determination, that the weather conditions were adequate to take off from Lac des Quatre on July 16, 2010, but that they had subsequently deteriorated in-flight.

[26] Mr. Turcotte, the respondent's chief pilot, stated on cross‑examination that he did not know exactly at what altitude the pilot had flown on the morning of July 16, 2010 but that there was a good possibility, according to him, that the flight was performed below 1,000 feet. The witnesses Simon and Pierre Bernier observed a red square at the top of the GPS screen, which would indicate that the aircraft was dangerously approaching the ground. The topographical map submitted as evidence under M‑24 indicates the presence of summits varying between 1,350 feet and 2,150 feet. The dotted line would indicate the aircraft's presumed route as well as the location of impact. The respondent's representative objected by informing the member that there was no proof that it was a presumed route, that the GPS was never found and that the witness who had filed this topographical map, Mr. Carrier, was not a competent witness to come forward and assert that the pilot had actually followed this route. This unquestionably explains why the member did not grant more weight in the assessment of evidence as to the topography.

[27] The Minister also alleged that in the member's analysis, he had not considered that the passengers and inhabitants of the camp would have had no objection to remain on site longer and that there was no urgency for the pilot to take off that morning since he was not pressed for time, having only one other flight to carry out toward the end of the day.

[28] Mr. Desrosiers testified having spoken with the pilot after his take-off from Lac des Quatre. He had not detected any nervousness or stress in his tone of voice, rather he believed it to be quite normal. It was only some minutes later that he felt the pilot seemed focused when he notified him that the weather conditions had deteriorated and that he was thinking about landing. Mr. Simon Bernier had not noticed anything special about the condition of the pilot. He had the same attitude that he had noticed at home a few days before when he left the base at Lac Margane, headed to Lac des Quatre, on July 11, 2010; he seemed comfortable, very well and in a pleasant mood.

[29] If the pilot had determined, given the weather conditions and the visibility, that he could take off on the morning of July 16, 2010, there would have been no reason to remain on site any longer even if the passengers would not have objected to it. Besides, the fact that the pilot may not have had any reason to be in a hurry to take off could just as well demonstrate that he would have been in no way pressured to be negligent. Just as the member determined, the pilot decided on the basis of his observations, his experience and his skills, that he could take off.

[30] The appeal panel is of the opinion that the member's findings of fact, and of mixed facts and law, are within the range of possible and acceptable outcomes given the evidence that he had at his disposal.

B. Grounds for Appeal No. 2

[31] Air Saguenay is penalized pursuant to subsection 8.4(1) of the Aeronautics Act as recorded owner of the aircraft, for a contravention of negligence or recklessness of its pilot-in-command pursuant to section 602.01 of the CARs. In this respect, section 8.5 of the Act allows the respondent to invoke the defence of due diligence by pointing out that it took all the required precautions to conform to the Act and its regulations.

[32] According to the Minister, the respondent did not take all the required precautions to invoke the defence of due diligence provided for in section 8.5 of the Act. He claims that the respondent was aware of the unfavourable weather conditions at Lac des Quatre on the morning of July 16, 2010, and that it would have had to, as a result, notify its pilot-in-command and ask him to postpone his take-off.

[33] Mr. Pierre Bernier had informed the Air Saguenay dispatcher that there was a lot of fog at Lac des Quatre on the morning of July 16, 2010. The respondent's dispatcher did not see fit to communicate this information to the pilot, who then indicated on the HF radio waves that he had just made a precautionary landing on Lac Grenier, located about ten minutes flying time from Lac des Quatre, because of unfavourable weather conditions. Mr. Desrosiers, also a pilot employed by the respondent and that morning located at the Lac Sebastian base, received the message from the pilot-in-command and spoke to him. The Minister submits that whereas the respondent knew the status of the weather conditions present at Lac des Quatre on the morning of July 16, 2010, they should have notified its pilot-in-command to postpone the departure.

[34] The Tribunal member, however, concluded that the respondent had shown due diligence, which he indicates in paragraph 85 of his determination:

I find that the company had an approved training program (Exhibit R‑2) covering the required subjects relating to required weather determination, decision processes, and authorization requirements to operate. As such, it is determined that the company exercised due diligence in terms of initial pilot training and recurrent training syllabuses, in providing company operating manuals that clearly define flight authorization dispatching processes, and in all infrastructure support, to ensure safe flight planning and follow‑up.

[35] The Supreme Court, in R. v. Sault Ste. Marie, [1978] 2 SCR 1299, established that it is necessary to prove the fact of having taken "all due care" to be able to benefit from a defence of due diligence, which includes "consideration of what a reasonable man would have done in the circumstances." In Lévis (City) v. Tétreault, 2006 SCC 12, the Supreme Court revisited the defence of due diligence to specify that the appeal in this defence can demand proving the fact of having actively tried to avoid the violation.

[36] As a result, so that an air operator might benefit from the defence of due diligence, it must not only conform to all requirements and required standards to operate its services, but it must also demonstrate that it takes active measures to ensure that its flight personnel respects the regulations (24319154 Québec Inc. v. Canada (Minister of Transport), 2008 TATCE 19, docket No. Q‑3402‑41 (Review).

[37] Did the respondent take the reasonable precautionary measures so that its flight personnel would respect the air regulations in order to be able to benefit from a defence of due diligence?

[38] The evidence demonstrates that the respondent has an initial theoretical training program consisting of examining each of the points in the operations manual, including the respect for meteorological minima, followed by an exam and annual recurrent training, followed by a theoretical exam not compulsorily imposed by Transport Canada, but rather by the respondent. It also distributes internal press releases answering questions raised by personnel in matters of flight operations; it holds meetings between the chief pilot and the pilots to go over the requirements of weather minimums in certain cases; and carries out periodic checks of the different bases as well as the paperwork completed by the pilots. Finally, the respondent assures the accessibility to material such as operational manuals in every aircraft as well as in its library. All of these measures are enough indicators of evidence that allow the member to conclude that the respondent endeavours to have the regulations respected by its flight personnel. They also indicate to the member the importance of the respondent's role is in these precautionary measures.

[39] The member also added to paragraph 85 of his determination, based on the testimony of Mr. Giles Marsan, the Transport Canada inspector appointed to Air Saguenay, that the respondent had a satisfactory record in matters of safety on the basis that audits prior to and subsequent to the accident had revealed no violation in operational training and in keeping up to date the knowledge of its pilots who were practicing in the region.

[40] Even if the information concerning the unfavourable weather conditions at Lac des Quatre had been relayed by the dispatcher from the Lac Margane base, located 20 minutes by air from Lac des Quatre, or by Mr. Desrosiers, who was at the Lac Sebastian base located 100 miles to the south of Lac des Quatre, neither one of them would have been able to recommend that the pilot not take off. Ultimately, it was up to the pilot to determine first-hand on site, given his experience and his expertise, if he should take off or not; this is exactly what he did when he left Lac Grenier after his precautionary landing and when he decided to take off from Lac des Quatre on the morning of July 16, 2010.

[41] The respondent's operational manual (Exhibit R‑29) stipulates that the respondent's operations manager, once having authorized the flight, delegates control of the flight operation directly to the pilot-in-command while remaining responsible for all flights. This procedure does not mean that the respondent must make the decisions instead of its flight personnel, as the delegation of control of the flight operations to the pilot would then no longer make any sense. This signifies that the company assumes responsibility on behalf of its pilots.

[42] In addition to finding it reasonable that the member may not have detected any negligence in the pilot's decision-making process with respect to his decision to take off from Lac des Quatre on July 16, 2010, the appeal panel is of the opinion that it was also reasonable for him to conclude that the respondent had shown due diligence under the circumstances, considering the evidence that he had at his disposal. In reaching this conclusion, the member took into consideration the initial and recurrent training provided to the pilots, its operational manuals and the entire support infrastructure set up by the company. The appeal panel believes that this conclusion is one of the possible and acceptable outcomes according to criteria established by the Dunsmuir case.

C. Grounds for Appeal No. 3

[43] The Minister is of the opinion that the member could have erred in law by basing his determination on the essential elements of a violation committed pursuant to section 602.115 of the CARs, while the accusation concerned section 602.01 of the CARs. Related to this, we also address here the first element of Grounds for Appeal No. 1, according to which the Tribunal member could have erred in law by placing the emphasis in his determination on respect for the meteorological minima provided for in section 602.115 of the CARs.

[44] The Minister alleges that the member relied on section 602.115 of the CARs instead of section 602.01, by concluding what follows in paragraph 84 of his determination:

Although the weather played a factor in the accident, I believe the pilot did take all reasonable steps to ensure adequate departure weather as per section 602.115 of the CARs.

[45] The Minister submits that the respondent was not penalized because the pilot had infringed section 602.115 of the CARs, but rather because the aircraft had been used by the pilot-in-command in a reckless or negligent manner, and under visibility and ceiling conditions as well as at an altitude that did not allow for a safe flight.

[46] Several factors can play a role in determining whether there was negligence or recklessness on the part of the pilot. Section 602.115 of the CARs was raised initially by the Minister's representative during the cross‑examinations of Messrs. Turcotte and Desrosiers as an additional element to those invoked in Schedule A of the Notice of Assessment for a contravention. The raising of this section constituted another means of persuading the member that the pilot-in-command had been reckless or negligent pursuant to section 602.01 of the CARs by having operated his aircraft at an altitude of less than 1,000 feet in VFR flight in unmonitored airspace unless having an in-flight visibility of at least two miles in daytime. The member considered this element and set it aside by writing, in paragraph 82 of his determination, that it would have been difficult for the pilot, considering the topography of the lake, to see beyond the mile of visibility that he had, due to the hill which stood at the end of the lake.

[47] The panel is of the opinion that the member did not base his determination on the essential elements of section 602.115 of the CARs.

[48] In paragraph 79 of his determination, the member mentions that he assessed the respondent's defence of due diligence to determine to what extent the alleged violation to section 602.01 of the CARs should be applied. Moreover, it clearly stands out from paragraph 80 of the member's conclusions that he took up the goal to determine, considering the evidence that he had at his disposal, if the pilot had acted in a reckless or negligent manner likely to endanger the life or property of any person.

[49] The member then makes reference, in paragraph 80 of his analysis, to the case law of the Tribunal in Francis Dominic Decicco v. Minister of Transport [1998] CAT docket No. C‑1316‑02 (Appeal), in assessing if the pilot had done what was reasonable to do under the circumstances or if he had failed to do something that a reasonable person would have done.

[50] In his analysis of the facts, the member preferred to maintain that the decision to take off rested with the pilot. He concluded that he did not detect any negligence in the pilot's decision-making process regarding his decision to undertake his flight from Lac des Quatre, despite the fact that the weather conditions may have been poor. To justify his conclusion he relied, in part, on Mr. Desrosiers' testimony, and partly on the pilot's work experience and knowledge that he had of the region and its topography. The member thus concluded that the pilot, in accordance with what he had reported to Mr. Desrosiers by radio transmission, had had sufficient visibility to take off from Lac des Quatre on the morning of July 16, 2010, and that it is only once in flight, a few minutes after having taken off, that the weather conditions had deteriorated.

[51] The appeal panel is of the opinion that the member did not make his determination only on the basis of the essential elements of section 602.115 of the CARs, but rather on all the elements of facts discussed in the analysis relating to the second element of the Grounds for Appeal No. 1. The appeal panel is therefore of the opinion that the member committed no error of law in his analysis of section 602.01 of the CARs.

[52] The Minister also alleged that the Tribunal member had committed an error in law by considering only the relevant aspect of negligence in his determination and by not making a judgment on the relevant aspect of the pilot's recklessness within the meaning of section 602.01 of the CARs.

[53] The appeal panel in the Decicco case referred to the definitions of the terms "negligence" and "recklessness" raised in Norbert A. Selbstaedt v. Minister of Transport [1988], CAT docket No. C‑0081‑02 (Appeal), taken at the time from the fifth edition of Black's Law Dictionary.

[54] Negligence was defined therein on page 930 as follows:

[...]Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

[55] Recklessness was defined therein on page 1,142 as follows:

Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though forseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.

[56] It rests with the member first to determine if the alleged conduct is negligent or reckless. As the member determined that he did not detect any negligence in the pilot's behaviour, this necessarily implied that he had not found his behaviour to be reckless, in accordance with the above-mentioned definition. The member had therefore not addressed the notion of recklessness.

[57] The appeal panel is of the opinion that the member correctly interpreted section 602.01 of the CARs.

VI. DECISION

[58] The appeal is dismissed and the cancellation of the penalty of $25,000 is upheld.

June 22, 2015

Reasons for the Appeal Decision: Suzanne Racine, Member

Concurred by:  Gary Drouin, Member

Charles S. Sullivan, Member