Decisions

TATC File No. Q-4147-37
MoT File No. N5504-84014

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Foxair Héliservice - Hélico Pro Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, subsection 8.4(1)
Canadian Aviation Regulations, SOR/96 433, subparagraph 602.14(2)(a)(iii)


Review Determination
Suzanne Racine


Decision: September 20, 2016

Citation: Foxair Héliservice v. Canada (Minister of Transport), 2016 TATCE 25 (Review)

[Official English translation]

Heard in: Montréal, Quebec, on June 14 and 15, 2016

REVIEW DETERMINATION AND REASONS

Held: The Tribunal considers that the Minister has proven, on the balance of probabilities, the elements of the alleged offence. The Tribunal considers that the applicant has not proven, on the balance of probabilities, that it exercised all due diligence to be able to raise the defence provided by section 8.5 of the Aeronautics Act. The Tribunal upholds the penalty of $3,750 for a contravention of subparagraph 602.14(2)(a)(iii) of the Canadian Aviation Regulations imposed on the applicant as registered owner of the aircraft.

The total amount of $3,750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I. BACKGROUND

[1] The Minister of Transport (Minister) imposed a penalty of $3,750 on Foxair Héliservice - Hélico Pro Inc., the applicant, and Christian Assad, its president and the registered owner of the aircraft C‑FFQQ, under subsection 8.4(1) of the Aeronautics Act, R.S.C. 1985, c. A-2 (Act).

[2] Under appendix “A” of the Notice of Assessment of Monetary Penalty dated May 20, 2015, registered aircraft C-FFQQ was allegedly used, on or around June 8, 2014, at approximately 10:55 EDT, in the vicinity of Île Notre-Dame, in Montréal, Quebec, above an open-air assembly of persons, at an altitude lower than 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet or less of the aircraft, thus contravening subparagraph 602.14(2)(a)(iii) of the Canadian Aviation Regulations, SOR/96‑433(CARs). The registered aircraft C-FFQQ is an Agusta A109 helicopter.

II. ACTS AND REGULATIONS

[3] Subsection 7.7(1) of the Act states:

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

[4] Subsection 8.4(1) of the Act states:

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

[5] Subparagraph 602.14(2)(a)(iii) of the CARs reads as follows:

602.14 (2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

[…]

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; [...]

[6] Paragraph 602.12(1)(a) of the CARs reads as follows:

602.12 (1) For the purposes of this section and sections 602.14 and 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons if the built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; [...]

[7] Paragraph 703.36(a) of the CARs reads as follows:

703.36 For the purposes of sections 602.13 and 602.15, a person may conduct a take-off, approach or landing in a helicopter within a built-up area of a city or town, or operate a helicopter at altitudes and distances less than those specified in subsection 602.14(2), if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; [...]

III. PRELIMINARY AGREEMENT

[8] The applicant confirmed with the Tribunal that registered aircraft C-FFQQ was indeed used on June 8, 2014, at approximately 10:55 EDT in the vicinity of Île Notre-Dame.

IV. Evidence

A. Minister

(1) Véronik Blanchette

[9] Ms. Blanchette is an investigator at the Transport Canada Enforcement Division. She conducted the investigation on the event of June 8, 2014. After reading the detection notice (Exhibit M‑2) stating that one of the eyewitnesses, Frédéric Prillieux, had communicated with the control tower of Montréal's Pierre Elliot Trudeau Airport (Montréal-Trudeau) to report the event, Ms. Blanchette requested that Nav Canada send her the audio and radar tapes (Exhibit M‑4) regarding the incident in question.

[10] From the audio tape, she transcribed the conversations between the pilots of aircrafts C‑FFQQ and C‑FXHA and the tower controller at Montréal-Trudeau (Exhibit M‑5). The pilot of registered aircraft C-FFQQ advised the tower at 14:51:06 UTC (10:51:06 EDT) that he would conduct a flight at an altitude of approximately 500 to 600 feet.

[11] After viewing the radar tape from June 8, 2014, between 14:49 UTC and 15:03 UTC, Ms. Blanchette noted that registered aircraft C-FFQQ, which appeared under transponder code 5231, had been used for approximately 8 minutes at altitudes varying between 300 and 700 feet in the area of Montréal's Formula 1 Grand Prix, which was taking at Île Notre-Dame, while the aircraft was not in a take-off, approach or landing phase. The applicant's use of the aircraft was not in compliance with the authorization it was granted to land and take off at the Formula 1 Grand Prix on Île Notre-Dame or with the security profile, which forms an integral part of that authorization (Exhibit M‑3).

[12] Indeed, the chart on page 10 of the applicant's security profile required that an altitude of 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the coloured yellow box representing the heliport be maintained.

[13] The witness gathered factual information from the two eyewitnesses, Benoît Boulet and Mr. Prillieux, who were on site at the Grand Prix on Île Notre-Dame on June 8, 2014.

[14] Ms. Blanchette, who also wanted to gather the applicant's version of the facts, telephoned Mr. Assad on six occasions between October 7, 2014, and March 30, 2015, but was not able to reach him (Exhibit M‑8, page 12). Mr. Assad did not call her back. She went to the Belœil airport, where the company Foxair Héliservice - Hélico Pro Inc. is located, at the end of March 2015 to meet with Mr. Assad but that day, he had gone out to attend a meeting. She decided to make her way to the location of that meeting but when she arrived, she discovered that Mr. Assad had already left (Exhibit M‑7). She completed her investigation report on April 16, 2015, without having been able to speak to Mr. Assad. She recommended a penalty of $3,750, an amount applicable to a company for a first offence.

[15] Ms. Blanchette explained in cross-examination that landing and take-off authorization at the Formula 1 Grand Prix is granted to companies that make a request and not to pilots. She pointed out that section 8.4 of the Act allows Transport Canada to prosecute both the registered owner of the aircraft and the user or pilot. Four months elapsed between the receipt of the file for the purposes of investigation in June 2014 and the time when the witness tried to reach Mr. Assad by telephone at the beginning of October, and six months before she attempted to meet him in person. She confirmed that [translation] “it would have been good to get the information from Mr. Assad”.

[16] The witness confirmed that the authorization given to the applicant was for landing and take-off under section 703.36 of the CARs and not for low altitude flight. Indeed, only the [translation] “landing and take-off” and “703.36” boxes were checked in the security profile. The box that appears beside “low altitude flight” on the first page of the security profile, in her opinion, appeared to have been redrawn by hand but was not checked. A low altitude flight authorization would have been required for the pilot to fly at an altitude of less than 1,000 feet. Ms. Blanchette explained that Transport Canada authorized the applicant to conduct medical evacuation flights as a back-up air ambulance. As to whether Transport Canada should have spoken to the pilot using the aircraft on June 8, 2014, she pointed out that it was up to the applicant to take measures to inform the pilot of the content of the authorization granted to the company. The witness stated that the authorization granted for flights taking place between June 5 and 8, 2014, was granted to the applicant on June 4, 2014. She did not know the timelines that a company should expect in order to obtain such authorization. According to the witness, the radar tape that she viewed clearly shows that the pilot flew at an altitude below 1,000 feet.

(2) Benoît Boulet

[17] Mr. Boulet is a Civil Aviation Safety Inspector at Transport Canada. He has also been an instrument-rated helicopter pilot on several types of aircraft and has accumulated 8,500 flying hours. On Sunday, June 8, 2014, the witness was attending the Formula 1 Grand Prix on Île Notre-Dame. As he had participated in preparing the authorization for the applicant's medical evacuation operation, Mr. Boulet had brought a copy of the Transport Canada authorization and was monitoring the applicant's activities.

[18] Mr. Boulet arrived at the Gilles-Villeneuve track at around 9:00 a.m. on Sunday, June 8, 2014. During the morning, he stayed close to the Pirelli tower, where the operations centre of the Gilles-Villeneuve track and the heliport were located, to watch the preliminary races taking place before the Formula 1 event.

[19] The witness submitted a photo of the track and a map depicting the placement of the grandstands (Exhibit M‑11), and marked in pen on the map entered as Exhibit M‑12 the location of the Pirelli tower. Even if the map on page 2 of M‑11 pertained to the Grand Prix 2015 weekend, the layout of the grandstands was identical during Grand Prix 2014. Mr. Boulet drew a triangle on map M‑12 at the location where he observed helicopter A109 from the Pirelli tower and drew the path that he observed the aircraft take heading west. The witness stated that helicopter A109 was flying some 500 or 600 feet from the ground at the time.

[20] Mr. Boulet telephoned Mr. Assad, leaving a message stating that helicopter A109 was not authorized to fly lower than 1,000 feet. The witness did not receive a call back.

[21] He then contacted Mr. Prillieux to share his observation and plan to meet at the Pirelli tower for lunch at around noon.

[22] At approximately 12:30 p.m., the main aircraft conducting the medical evacuation operation at the Gilles-Villeneuve track left the heliport and helicopter A109 registered as C‑FFQQ landed in its place. Mr. Boulet took the opportunity to have a conversation with the pilot, Mr. Bibeau, and reminded him to comply with the terms of his authorization. The pilot allegedly told him that someone else had [translation] “probably taken his identification letters”.

[23] In cross-examination, Mr. Boulet stated that he did not believe the pilot when he had told him that someone else had probably identified as C‑FFQQ. According to him, the pilot believed that he was possibly in violation and had wanted to give himself an excuse.

[24] The witness did not remember that the applicant had requested permission to fly at low altitude over the built-up area of the Gilles-Villeneuve track when he had requested the authorization with Transport Canada. According to Mr. Boulet, a company may request authorization for a low altitude flight for the purpose of aerial photography of the site or to provide tours to passengers. In his opinion, Transport Canada would not have granted such authorization during the Grand Prix because of the risk that a low altitude flight poses to the crowd on the ground.

[25] According to Mr. Boulet, the service deadline to process an authorization request for Montréal's Grand Prix was a maximum of five days. He doubted that such a request could be processed in 24 hours.

[26] The witness did not feel the need to telephone Stéphane Bard, who was identified in the security profile as the person responsible for the applicant on site that day.

(3) Frédéric Prillieux

[27] Mr. Prillieux is the Associate Director of Flight Operations for the Quebec region at Transport Canada. He is also an airline pilot. The witness signed the take-off and landing authorization letter with 14 conditions granted to the applicant and dated June 4, 2014 (Exhibit M‑3).

[28] A Formula 1 racing enthusiast, the witness has attended all the Montréal Grand Prix races since 1999. Mr. Prillieux arrived on the site of the Gilles-Villeneuve track at around 9:00 a.m. on June 8, 2014, to watch the preliminary races before the Formula 1 race. He had a spot in Grandstand 31 (see Exhibit M‑11, page 2), third row before the last.

[29] While he was taking his seat, the witness first heard the sound of a helicopter coming from behind him, then saw the helicopter head toward downtown in the direction of the Port of Montréal. It was approximately 10:30 a.m. or 11:00 a.m. Mr. Prillieux stated that the aircraft was flying at an altitude of 400 or 500 feet. He immediately called the Montréal-Trudeau tower to find out the aircraft's registration. The control centre confirmed that it was registered aircraft C‑FFQQ, the back-up air ambulance on the site of the Gilles-Villeneuve track.

[30] The witness drew in ink on map M‑13 the path travelled by the helicopter as he observed it from where he was sitting in Grandstand 31. The asterisk signals the location of Grandstand 31 and the arrow represents which direction it faces.

[31] At around 11:30 a.m., Mr. Prillieux joined Mr. Boulet for lunch not far from the Pirelli tower. At around 11:40 a.m. or 11:45 a.m., the main helicopter ambulance that was at the heliport was called on the scene of an accident. The applicant's Agusta A109, registered as C‑FFQQ, then took its place. The witness stated that Mr. Boulet went to find the pilot to advise him that he could not fly at an altitude below 1,000 feet with the type of authorization held by the applicant. Mr. Prillieux kept out of the conversations. He pointed out that the pilot seemed to have properly understood Mr. Boulet's warning. Two people were seated in the helicopter, including the pilot.

[32] Mr. Prillieux stated that there was quite a crowd on Île Notre-Dame the morning of June 8, 2014. In his opinion, it is not unusual that 30,000 to 40,000 people would already be on site before the Formula 1 race, which takes place early in the afternoon. Grandstand 31, where his seat was located, was 50% full.

[33] Cross-examined by the applicant, the witness pointed out that the path travelled by the applicant's aircraft as he traced it on map M‑13 is approximate. He did not contact the applicant's representatives after he obtained confirmation of the aircraft's registration. Mr. Prillieux had not requested that the control centre of the Montréal-Trudeau tower notify the pilot to cease flying at altitudes and distances below those specified in the applicant's authorization and security profile (Exhibit M‑3).

[34] Asked to comment on the conversation between the pilot of aircraft C‑FFQQ and the controller of the Montréal-Trudeau tower with respect to the fact that he was performing a reconnaissance flight the morning of June 8, 2014, Mr. Prillieux pointed out that the reconnaissance flight specified at condition No. 11 of the authorization granted to the applicant was to have taken place during the day in VFR conditions at least once before the event and that it had to be performed at a minimum altitude of 1,000 feet above the built‑up area. The responsibility for this reconnaissance flight rested with the applicant's operations manager, Mr. Assad.

[35] Mr. Prillieux stated that it was the first time that he had witnessed an incident of this kind since the 17 years since he had started attending Montréal's Formula 1 Grand Prix.

[36] Mr. Prillieux was not aware that the Mel's Studios heliport was located in a built‑up area, or that Transport Canada tolerated landings and take-offs at this heliport.

(4) Jocelyn Charbonneau

[37] Mr. Charbonneau has been an air traffic controller at the Montréal-Trudeau tower since 2004. He explained to the Tribunal that air traffic controllers had received a special verbal briefing explaining the various air operations that were to take place in the restricted airspace of the Grand Prix between June 5 and 8, 2014, and informing them how these were to be co‑ordinated. A NOTAM delineating the airspace of the Grand Prix 2014 (Exhibit M‑10) informed aircraft pilots that they had to stay clear of this area up to an altitude of 1,400 feet with the exception of pre-authorized aircraft, medevac aircraft and IFR aircraft headed for Montréal-Trudeau and Montréal-St‑Hubert.

[38] According to the briefing (Exhibit M‑15), the applicant's aircraft A109 was to remain on standby at the Mel's Studios heliport in Montréal on June 8, 2014, and head toward the site of the Grand Prix should the main air ambulance, an A109 registered as C‑GVAM, take off from the site. Two other helicopters with cameras, one of which was registered as C‑FXHA, could fly at low altitude up to a maximum of 1,300 feet above the track to film. The registered aircrafts C‑FFQQ, C‑GVAM and C‑FXHA, having received authorization to penetrate the restricted airspace of the Grand Prix, were themselves responsible for maintaining separation within this area.

[39] The Minister's representative played the audio recording of the exchange between the pilots of registered aircrafts C‑FFQQ and C‑FXHA and the controller of the Montréal-Trudeau tower (Exhibit M‑4). The witness stated that the voice of the controller was indeed his.

[40] He stated that he had had to alert the pilot of registered aircraft C‑FXHA to the presence of registered aircraft C-FFQQ flying at an altitude of 500 or 600 feet until the pilot of aircraft C‑FXHA had it in view and could himself ensure a separation of 500 feet. The witness also stated that this intervention had caused confusion since neither he nor the pilot of registered aircraft C‑FXHA were aware of the reason why registered aircraft C-FFQQ was flying at that time in the restricted airspace of the Grand Prix. The witness then requested that the pilot of registered aircraft C-FFQQ explain himself to the pilot of registered aircraft C‑FXHA.

[41] Mr. Charbonneau then viewed and commented on the radar images of June 8, 2014, between 14:49 and 15:03 UTC showing registered aircraft C-FFQQ under transponder code 5231 conduct a flight for approximately 8 minutes at altitudes varying between 300 and 700 feet.

[42] Cross-examined by the applicant, the witness stated that he did not remember that aircrafts could fly over the St-Hubert exhibition site at altitudes varying between 600 and 800 feet. He pointed out that the Montréal-Trudeau tower had not assigned any altitude to the aircraft flying in the Grand Prix area.

(5) Martin Faucher

[43] Mr. Faucher has an Airline Transport Pilot Licence — Aeroplane and a Commercial Pilot Licence — Helicopter. As of May 2016, he had accumulated 4,200 flying hours on different types of helicopters, including BH06, BH07, BH12 and S350. He has been the authorized signatory at Transport Canada for operations in built‑up areas under section 703.36 of the CARs since 2007. He worked as a helicopter pilot in built-up areas, including for air ambulance operations at Montréal's Formula 1 Grand Prix. Mr. Faucher was not involved in the event of June 8, 2014.

[44] The Minister's representative wanted to have Mr. Faucher testify as an expert with respect to the authorization granted to air operators in built‑up areas, an authorization similar to those granted to the applicant for the Grand Prix 2014. The witness has authorized many requests of this type for air operators in the past. After holding a voir dire on Mr. Faucher's qualifications (Exhibit M‑11) and expertise, the Tribunal agreed that Mr. Faucher would testify as an expert to instruct it on the conditions usually attached to a landing and take-off authorization in a built‑up area under section 703.36 of the CARs.

[45] Mr. Faucher explained to the Tribunal that, unless air operators are authorized by their Air Operator Certificate to take-off and land in built‑up areas under section 703.36 of the CARs, they must submit a request to Transport Canada authorizing them to perform such operations. The applicant was not authorized to land and take off in built‑up areas according to its Air Operator Certificate (Exhibit M‑16).

[46] However, the applicant had obtained authorization as part of the Grand Prix 2014 activities issued by Transport Canada (Exhibit M‑3). The operations pertaining to this authorization had to be performed during the day, in VFR conditions, and the air operator had to meet each of the 14 conditions to which the authorization was subject, i.e. submitting to Transport Canada an updated map of the region and a diagram illustrating the routes that would be taken, the planned paths for the take-off and approach phases and the altitudes and distances on each route. The air operator also had to have an emergency plan for this event and identify the emergency landing area (heliport of Île Ste‑Hélène, Parc de la Voie Maritime and the St‑Hubert airport), as well as having to implement a plan for communication between helicopters to provide co-ordination and safe separation of air traffic involved in the operation.

[47] According to the witness, the Transport Canada authorization depended largely on meeting two critical conditions: first, that the pilots be familiar with the flight environment in the air and on the ground, which requires that the air operator verify facilities established on the ground of the site (condition 6, Exhibit M‑3) and, second, that the air operator conducts a reconnaissance flight at an altitude of more than 1,000 feet, during the day, before operations begin, so as to identify any obstacle that could affect security (condition 11, Exhibit M‑3).

[48] Mr. Faucher explained that this was the responsibility of the air operator's operations manager. He must ensure that pilots are very familiar with the work area before they are entrusted with the operation. In Mr. Faucher's words, the air operator's operations manager is the [translation] “guardian of compliance with conditions” imposed by the authorization.

[49] After listening to the testimony regarding the event of June 8, 2014, the witness stated that several points were puzzling. He wondered why the pilot of registered aircraft C-FFQQ. on that day at around 14:58 UTC (10:58 EDT). told the air traffic controller that he was conducting [translation] “a reconnaissance flight to … possibly change pilots” in order to justify his presence in the area to the pilot-in-command of registered aircraft C‑FXHA, also authorized to be in the area (Exhibit M‑5, page 3).

[50] The witness stated that the reconnaissance flight noted at condition 11 of the authorization had to be done at least once before the event. As the authorization had to be granted as part of Grand Prix 2014 from June 5 to 8 between 7:00 a.m. and 7:30 p.m. local time, the reconnaissance flight required for the purposes of preparation and security should have already been completed by the applicant's operations manager by the time the authorization period had begun.

[51] Regarding the question of the change in pilots, the witness stated that only Mr. Assad and Mr. Bibeau were authorized to perform back-up air ambulance operations in accordance with the security profile forms part of the Transport Canada authorization. As Mr. Assad did not respond to the calls and it seemed that he could not be found, he does not understand what pilot could have replaced Mr. Bibeau.

[52] The security profile attached to the authorization approved by Transport Canada specified the altitude to maintain (1,000 feet above the highest obstacle and a horizontal distance of 500 feet from such obstacle), and the take-off and approach phases (Exhibit M‑3, page 11). The pilot of registered aircraft C-FFQQ had to maintain this altitude and distance while flying above the Gilles-Villeneuve track.

[53] Using the co-ordinates found on the radar tape, the witness reproduced on map M‑17 the location of registered aircraft C-FFQQ at 10:55:10 EDT (14:55:10 UTC) based on the following co-ordinates:

     Latitude: 45° 30' 46''     Longitude: 73° 31' 51''

[54] He placed the aircraft at a point very close to the Pont des Îles, above the Gilles-Villeneuve track.

[55] According to Mr. Faucher, it is normal that the controller from the Montréal-Trudeau tower and the pilot of registered aircraft C‑FXHA were surprised that registered aircraft C-FFQQ was in the circuit area as they believed that it was at the Mel's Studios heliport. Such a situation shows, according to the witness, a flaw in the plan for communication between the helicopters and between the ground and the helicopters, as these plans were intended to ensure co-ordination and safe separation of air traffic involved in the operation (conditions 9 and 12).

[56] Asked to comment on what occurred on June 8, 2014, at around 10:55 EDT, the witness concluded that the pilot of aircraft C‑FFQQ had probably not been informed or at least not sufficiently informed, of the conditions that the applicant had to meet to perform its back-up air ambulance operations at the Grand Prix 2014.

[57] In cross-examination, Mr. Faucher pointed out that the most common failure of air operators flying in built-up areas using an authorization granted by Transport Canada is generally not well informing their pilots of the approach paths that appear on the security profile. The witness explained that the operations manager, the person ultimately responsible for air operations safety, must delegate his or her responsibilities if he or she is not available on the day of operations. He stated that, although the applicant had designated Stéphane Bard as the person responsible on site during the event, Mr. Assad was still the person responsible for compliance with the conditions of the authorization granted as the applicant's operations manager.

[58] According to Mr. Faucher, it was not up to Mr. Boulet to communicate with the person responsible on site to tell him that the applicant's pilot had overstepped the conditions of the authorization. The role of Transport Canada is one of oversight and compliance. The task of conducting operations in a safe manner and in compliance with the authorization granted is critical because operations are performed within normal regulations.

B. Applicant

(1) Christian Assad

[59] Mr. Assad is the applicant's operations manager and chief pilot. He is also the applicant's owner. He has accumulated 12,000 helicopter flying hours including 6,000 hours of in-flight training. The applicant was hired a dozen times in the past for the purposes of the Montréal Grand Prix. On June 4, 2014, the applicant was given the position of back-up helicopter ambulance to perform medical evacuations toward the Sacré-Cœur hospital in Montréal. Mr. Assad stated that he always exercised all due diligence in preparing these operations and ensuring their safety.

[60] In 2014, knowing that he could not himself provide the medical evacuation operation of June 8, the witness hired André Bibeau, a helicopter pilot, to conduct the operation in his place. Mr. Assad and Mr. Bibeau prepared all of the required documentation to obtain landing and take-off authorization at the 2014 Grand Prix. The witness stated that Mr. Bibeau knew exactly what he had to do on June 8, 2014, because he had fully briefed him of the requirements attached to this operation. It never came up that Mr. Bibeau might do anything other than medical evacuations.

[61] According to the witness, Mr. Bibeau allegedly agreed to a request from the representative of the helicopter manufacturer AgustaWestland to bring a friend who wanted to see the Grand Prix from the sky and perhaps take some pictures. Mr. Assad stated that he would never have authorized his pilot to go against the authorization granted to the applicant. The applicant's reputation for safety and the visibility it gets from the Grand Prix are too important for it to decide to overstep its authorization.

[62] The witness wondered why Transport Canada chose to punish only the applicant and not the pilot, who was at fault for having decided voluntarily to undertake a flight that he knew not to be authorized by Transport Canada. Mr. Bibeau knew that he was exceeding the limits of the authorization because he felt obligated to provide the questionable excuse of the reconnaissance flight and change of pilot to the controller at the Montréal-Trudeau tower and another excuse, no less questionable, made to Mr. Boulet.

[63] Mr. Assad also wondered why Mr. Boulet had not communicated with Mr. Bard, the applicant's representative on site on June 8. He stated that he would have co-operated with Transport Canada to put a stop to any violation. Once the Grand Prix was over, Mr. Boulet stated to the witness that Mr. Bibeau had done [translation] “something reprehensible but that it should sort itself out”. He deplores the attitude of Transport Canada that holds him as the only one responsible. He does not believe that exempting the pilot at fault and prosecuting only the air operator is a common practice at Transport Canada.

[64] Mr. Assad's cross-examination revealed that he trusted Mr. Bibeau when he gave him the responsibility of the Grand Prix 2014 medical evacuation operation and that he had enough time to prepare him adequately. He believed that Mr. Bibeau was possibly working for the first time as a pilot at the Grand Prix but he was not sure. To the best of Mr. Assad's recollection, Mr. Bibeau had not accompanied him to the preparatory meeting for the Grand Prix activities.

V. ARGUMENTS

A. Minister

[65] The Minister's representative submitted that she proved on the balance of probabilities that registered aircraft C-FFQQ was used above an open-air assembly of persons at an altitude lower than 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet in contravention of subparagraph 602.14(2)(a)(iii) of the CARs, and that the other elements of the offence are not under dispute.

[66] According to witnesses Boulet and Prillieux, tens of thousands of spectators who came to watch the preliminary races before the Formula 1 race were already at the Gilles-Villeneuve Circuit on the morning of June 8, 2014. This crowd was a large open-air assembly of persons within the meaning of subparagraph 602.14(2)(a)(iii).

[67] Mr. Boulet and Mr. Prillieux saw registered aircraft C-FFQQ flying at altitudes lower than 1,000 feet above the site, which the authorization granted to the applicant did not allow. The applicant was not in a take-off, approach or landing phase. The testimony of witnesses Boulet and Prillieux is corroborated by the audio tapes and the radar image that shows the aircraft, under the transponder code 5231, conduct a flight of approximately 8 minutes at an altitude varying between 300 and 700 feet above an open-air assembly of persons, contrary to what was provided in the security profile that is part of the authorization granted to the applicant.

[68] The Minister may, at his discretion, prosecute the registered owner of the aircraft because of a violation committed by the user of the said aircraft without having to prosecute the user pilot.

[69] The applicant has not shown on the balance of probabilities that it exercised all due diligence under section 8.5 of the Act to prevent the contravention, specifically that it had not sufficiently informed the pilot of requirements for the landing and take-off authorization and the security profile during the Grand Prix 2014. Therefore, the applicant cannot mount a successful due diligence defence.

[70] The Minister's representative requested that the Tribunal uphold the penalty of $3,750.

B. Applicant

[71] The applicant argued that it took all necessary measures to prepare the pilot more than adequately for his back-up ambulance helicopter mission and to inform him of all the ins and outs of such an operation during a Grand Prix. The applicant and the pilot worked together to prepare the security profile. It is completely satisfied with the preparation and information that it gave and that it would never have authorized the low altitude flight conducted by its pilot in the morning of June 8, 2014.

[72] The pilot is the only one responsible for this offence and, for this reason, the applicant asked him to settle this matter directly with Transport Canada.

[73] The Minister's representative did not show that the aircraft was used at a horizontal distance of less than 500 feet from an open-air assembly of persons.

VI. ANALYSIS

[74] The applicant does not dispute that registered aircraft C-FFQQ was used at around 10:55 EDT on June 8, 2014, in the vicinity of Île Notre-Dame.

To discharge her burden of proof, the Minister's representative must show on the balance of probabilities that this flight:

1) took place above an open-air assembly of persons,

2) at an altitude lower than 1,000 altitude above the highest obstacle,

3) at a horizontal distance within 500 feet of the aircraft.

(1) Open-air assembly of persons

[75] There is no doubt, based on the testimony of Mr. Boulet and Mr. Prillieux, that there were a lot of people on the site of the Gilles-Villeneuve Circuit the morning of June 8, 2014, to watch the preliminary races, an opening show of sorts to the afternoon's Formula 1 race. According to Mr. Prillieux, Grandstand 31, where he was seated that morning, was 50% full. The witness stated that it is not unusual to have between 30,000 and 40,000 people on site before the Formula 1 race. Montréal's Grand Prix is indeed a well-attended event, especially the Sunday on which the Formula 1 race takes place. The large number of people on the site of the Grand Prix on June 8, 2014 unambiguously fits the definition of an open-air assembly of persons as the term appears at paragraph 602.14(2)(a) of the CARs.

(2) Altitude lower than 1,000 feet

[76] Subparagraph 602.14(2)(a)(iii) of the CARs states that a helicopter (an aircraft other than an aeroplane or a balloon) must not be used above an open-air assembly of persons lower than 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet or less of the aircraft. This prohibition does not apply where conducting a take-off, approach or landing.

[77] The authorization granted to the applicant for the 2014 Formula 1 Grand Prix allowed it to conduct take-offs and landings in VFR conditions during the day for a back-up ambulance mission. The security profile did not permit a low-altitude flight, since the applicable box was not checked.

[78] The altitudes shown on the screenshots between 14:55:06 and 14:55:50 UTC indicate that registered aircraft C-FFQQ was travelling at altitudes varying between 500 and 600 feet.

[79] The Tribunal had to refer to screenshots for each of the points appearing on the radar imaging viewed during the hearing given that the DAL and AUD files recorded on the CD were impossible to read. At the Tribunal's request, the Minister's representative submitted these screenshots to the member and the applicant in an accessible file after the hearing.

[80] The testimonies of Mr. Boulet and Mr. Prillieux corroborate each other since they both stated that they saw the aircraft fly at altitudes varying between 400 and 600 feet, i.e. a low enough flight that Mr. Prillieux called the Montréal-Trudeau tower to find out the aircraft's registration and that Mr. Boulet gave the pilot a warning as soon as he had the opportunity. Ms. Blanchette, who transcribed the conversations between the pilots of registered aircrafts C‑FFQQ and C‑FXHA and the Montréal-Trudeau tower on June 8, 2014, between 14:50:18 and 14:59:00 UTC, stated that the pilot of registered aircraft C-FFQQ had announced at 14:51:06 UTC that he would make a flight and maintain an altitude of approximately 500 or 600 feet. Mr. Charbonneau, an air traffic controller at the Montréal-Trudeau tower confirmed this fact and stated that he had to advise the pilot of registered aircraft C‑FXHA of the presence of registered aircraft C-FFQQ flying at an altitude of 500 or 600 feet at 14:55:44 UTC. He viewed and commented on the radar imaging of June 8 between 14:49 and 15:03 UTC showing registered aircraft C-FFQQ make an eight-minute flight at altitudes varying between 300 and 700 feet.

[81] The Tribunal has no doubt that registered aircraft C-FFQQ indeed conducted a flight at an altitude below the limit permitted by subparagraph 602.14(2)(a)(iii) of the CARs.

(3) Horizontal distance

[82] The applicant submitted that the Minister did not show that the aircraft was used at a horizontal distance of less than 500 feet from an open-air assembly of persons.

[83] Paragraph 602.12(1)(a) specifies that, for the purposes of applying section 602.14 of the CARs, an aircraft is considered to have been used above an open-air assembly of persons if the open-air assembly is at a horizontal distance of 500 feet or less from a helicopter.

[84] The minimum horizontal distance of 500 feet required by subparagraph 602.14(2)(a)(iii) of the CARs must be maintained at all times in flight between the aircraft and the open-air assembly of persons.

[85] The Tribunal viewed the screenshots between 14:55:06 and 14:55:50 UTC on June 8, 2014, to verify the position of registered aircraft C-FFQQ. Registered aircraft C-FFQQ was located at the following points:

        Hour (UTC)                   Latitude          Longitude

     14:55:06 to 14:55:09     45° 30' 46''     73° 31' 50''

     14:55:10                       45° 30' 44''     73° 31' 52''

     14:55:11 to 14:55:13     45° 30' 43''     73° 31' 52''

     14:55:14                       45° 30' 40''     73° 31' 52''

     14:55:15                       45° 30' 39''     73° 31' 53''

     14:55:16 to 14:55:19     45° 30' 38''     73° 31' 52''

     14:55:20 to 14:55:24     45° 30' 33''     73° 31' 54''

     14:55:25 to 14:55:29     45° 30' 30''     73° 31' 54''

     14:55:30                       45° 30' 28''     73° 31' 55''

     14:55:31 to 14:55:33     45° 30' 23''     73° 31' 55''

     14:55:34 to 14:55:36     45° 30' 26''     73° 31' 47''

     14:55:37 to 14:55:40     45° 30' 27''     73° 31' 47''

     14:55:41                       45° 30' 22''     73° 31' 45''

     14:55:42 to 14:55:43     45° 30' 23''     73° 31' 46''

     14:55:44                       45° 30' 07''     73° 31' 54''

     14:55:45 to 14:55:48     45° 30' 06''     73° 31' 55''

     14:55:49 to 14:55:50     45° 30' 02''     73° 31' 51''

[86] First, the Tribunal considered the position of registered aircraft C-FFQQ indicated by Mr. Faucher on map M‑17. The witness stated that he indicated the position of the aircraft based on the following co-ordinates:

     Latitude 45° 30' 46''     Longitude 73° 31' 51''

[87] Mr. Faucher positioned the aircraft close to the Pont des Îles, above the track. However, this suggests an error in transferring the latitude on the map. Indeed, a mark annotated “45.30.50”, added in pen by the witness in the margins of the map, corresponds to a latitude of 45° 30.50' (45 degrees and 30.5 minutes), i.e. 45° 30' 30'' (45 degrees, 30 minutes and 30 seconds), and not 45° 30' 50'' (45 degrees, 30 minutes and 50 seconds). Therefore, latitude 45° 30' 46'' lies to the north and not to the south of this mark, placing the aircraft at that time on the other side of the Le Moyne channel, above Île Ste‑Hélène close to Pont du Cosmos.

[88] The Tribunal also noted that, for an unknown reason, some points identified on the screenshot differ slightly from those reported during the viewing of the radar imaging at the hearing. For example, the point in question identified by the Minister's witness during the viewing at 14:55:10 UTC

     Latitude 45° 30' 46''     Longitude 73° 31' 51''

is identified in the screenshot for the same time as the following point:

     Latitude 45° 30' 44''     Longitude 73° 31' 52''

[89] Second, the Tribunal considered the path taken by the aircraft according to the co‑ordinates shown in the screenshots. Since it did not have a scale map that contained these different co-ordinates so as to visualize the path of the aircraft from 14:55:06 to 14:55:50 UTC, the Tribunal placed on a map similar to that submitted in M‑17 a few points to show the path that the aircraft allegedly took.

[90] The points identified at 14:55:06, 14:55:10, 14:55:14, 14:55:23 and 14:55:30 UTC flight position of registered aircraft C‑FFQQ along Île Ste-Hélène, on the south coast, between the Pont du Cosmos and the Pont des Îles, beyond the Le Moyne channel. The points identified between 14:55:34 and 14:55:40 UTC place the aircraft very close to Île Notre-Dame, at the level of the Pont des Îles, then above Île Notre-Dame to the south of the Pont des Îles between 14:55:41 and 14:55:43 UTC.

[91] The plots of the path taken by the aircraft drawn by Mr. Boulet on map M‑12 and by Mr. Prillieux on map M‑13, while realistic from their perspective based on the locations where these witnesses were standing, are more or less compatible with the plot determined by the Tribunal based on points identified in the screenshots. The Tribunal relies on the best evidence, i.e. that provided by the radar screenshots.

[92] The Tribunal has no doubt that the applicant's aircraft flew at a horizontal distance of less than 500 feet from the assembly of persons on Île Notre-Dame. The aircraft even flew directly over the assembly of persons on Île Notre-Dame for a few seconds.

(4) Due diligence

[93] The applicant's representative wondered what motivated Transport Canada to prosecute the applicant rather than the pilot at fault who decided to perform a flight in breach of the granted authorization.

[94] Section 8.4 of the Act allows the Minister to proceed against the registered owner of the aircraft. Thus, the owner may be prosecuted by the Minister by virtue of vicarious liability, as the employer or delegator. The fact of having delegated the back-up ambulance operation of Grand Prix 2014 to pilot Bibeau does not exempt the applicant from ensuring that the operation is performed within the parameters of the authorization it was granted.

[95] It is not unusual for the Minister to proceed in this way, and the registered owner of the aircraft then has two possible defences. In the matter at hand, the applicant cannot allege in defence that the aircraft was in possession of a third party without its consent since it had delegated the user pilot. However, pursuant to section 8.5 of the Act, it is open to the applicant to argue that it exercised all due diligence in order to prevent a contravention of the Act and its regulations.

[96] The onus is on the applicant to prove this on the balance of probabilities. The definition of “all due diligence” is assessed on a case-by-case basis since it depends on the nature of the offence and the sector of activity in question. The applicant's representative, who is the applicant's operations manager, chief pilot and registered owner, had to show all the due diligence he exercised to prevent the user pilot from committing the offence in respect of which Transport Canada proceeded against him as the registered owner of the aircraft.

[97] Mr. Assad pointed out to the Tribunal that he had had all the time necessary to properly brief his pilot regarding the helicopter ambulance operation planned for June 8, 2014, since he had received the verbal confirmation from Transport Canada that the applicant had qualified long before receiving the written authorization from Transport Canada dated July 4, 2014. Mr. Bibeau was [translation] “more than prepared”, to use his own words. Mr. Assad stated that he prepared his pilot with the same thoroughness displayed during the dozen years that he conducted flight operations at the Grand Prix. Mr. Assad and his pilot together prepared the authorization request and the security profile so that he would be well aware of the requirements. The applicant had no interest in its pilot not complying with the authorization it had obtained. Mr. Assad knew his pilot's flying skills, as he had been his helicopter flight instructor, and he trusted him.

[98] The Tribunal is of the view that Mr. Bibeau surely knew that he was flying contrary to the authorization with low altitude flights because the excuses that he gave, specifically that of the [translation] “reconnaissance flight and change of pilot”, were quite far-fetched. Mr. Boulet, for that matter, did not believe them.

[99] However, the Tribunal has no other evidence in this regard than the testimony of the applicant's operations manager. The onus is on all applicants wanting to raise the due diligence defence to prove the facts that support their claim. Therefore, it is not sufficient for the applicant to state here that its user pilot was well informed of the parameters of the operation for the Tribunal to agree. The applicant did not submit any other evidence to support the accuracy of its statements. It would have been wise for the applicant to offer the Tribunal evidence in support of its claims that the pilot had been properly instructed on the flight to be performed. Testimony of the user pilot could have also shown that he had received adequate preparation.

[100] Given the insufficiency of evidence, the Tribunal considers that the applicant has not shown, on the balance of probabilities, that it exercised all due diligence within the meaning of section 8.5 of the Act.

[101] The Tribunal relies on the standard penalty table developed by Transport Canada, which provides a contravention of $3,750 for a first offence under subparagraph 602.14(2)(a)(iii) committed by a corporation.

VII. DETERMINATION

[102] The Tribunal considers that the Minister has proven, on the balance of probabilities, the elements of the alleged offence.

[103] The Tribunal considers that the applicant has not proven, on the balance of probabilities, that it exercised all due diligence to be able to raise the defence provided by section 8.5 of the Act.

[104] The Tribunal upholds the penalty of $3,750 for a contravention of subparagraph 602.14(2)(a)(iii) of the CARs imposed on the applicant as the registered owner of the aircraft.

September 20, 2016

Suzanne Racine

Member