Decisions

TATC File No. P-4241-41
MoT File No. Z 5504-87448

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Island Express Air Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2, s. 7.7(1)
Canadian Aviation Regulations, SOR/96-433, s. 703.88(1)(d)


Review Determination
Laura Safran


Decision: December 13, 2016

Citation: Island Express Air Inc. v. Canada (Minister of Transport), 2016 TATCE 36 (Review)

Heard in: Abbotsford, British Columbia, on September 27, 2016

REVIEW DETERMINATION AND REASONS

Held: The Tribunal concurs with the Minister of Transport's assessment of the penalty at $5,000 for a breach of subsection 703.88(1) of the Canadian Aviation Regulations and, accordingly, dismisses this application.

The assessed penalty of $5,000 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] On or about May 10, 2015, at or near Abbotsford, British Columbia, the applicant, Island Express Air Inc., being an air operator, permitted an individual, namely Mr. Adrian Bernstein, to act as a flight crew member in a Beech King Air B100 aircraft with Canadian registration C‑FASN. It is alleged by the respondent, the Minister of Transport (Minister), that the grant by the applicant of permission enabling Mr. Bernstein to act as a flight crew member contravened subsection 703.88(1) of the Canadian Aviation Regulations, SOR/96‑433 (CARs), because Mr. Bernstein had not fulfilled the requirements of the applicant's training program. The Minister assessed a monetary penalty of $5,000 pursuant to subsection 7.7(1) of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act).

II. STATUTES AND REGULATIONS

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

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… notify the person of his or her decision.

[3] In this case, the Minister assessed a monetary penalty of $5,000 against the applicant for the alleged contravention of subsection 703.88(1) of the CARs, which states in part:

703.88 (1) … no air operator shall permit a person to act and no person shall act as a flight crew member in an aircraft unless the person

[…]

(d) has fulfilled the requirements of the air operator's ground and flight training program.

III. PRELIMINARY ISSUES

(1) Disclosure

[4] At the outset of the review hearing, the applicant raised a preliminary motion seeking postponement of the review hearing pending receipt by the applicant of files it had requested from the respondent pursuant to the Access to Information Act, R.S.C., 1985, c. A‑1, in order to obtain comparative information concerning the Minister's treatment of other operators in allegedly similar circumstances.

[5] The respondent replied that such preliminary request had been made on September 20, 2016 and that on September 22, 2016 this Tribunal had denied the preliminary request.

[6] The Tribunal concurred with the respondent and confirmed that it had responded on September 22, 2016 to the applicant's request of September 20, 2016 for postponement of this review hearing on the basis that the Tribunal had no jurisdiction over the Access to Information Act and the applicant had received full disclosure in preparation for the file. The Tribunal ruled again that it has no jurisdiction over requests made pursuant to the Access to Information Act.

[7] Accordingly, the applicant's preliminary motion seeking a postponement of this hearing was dealt with by this Tribunal prior to the date of the hearing and the motion for postponement was denied.

(2) Laying of a Charge against the Applicant

[8] On behalf of the applicant, Mr. Gerald Visser expressly admitted the alleged contravention of paragraph 703.88(1)(d) of the CARs but asserted that the applicant was not the only operator to make such errors and that other operators had not been penalized or penalized to the same extent by the Minister. In lieu of a monetary penalty in this case, Mr. Visser contended that the applicant should have the opportunity to conduct a thorough analysis of the error and take corrective action to prevent a future repetition of the error.

[9] Mr. Visser further stated that Island Express Air Inc. historically has had a “poor relationship” with Transport Canada, and the applicant had been working to improve the relationship and that it has, in fact, recently improved. He recounted the general history of such relationship, commencing in 1998, indicating that the reason for the current assessment of monetary penalty against the applicant was related to, or was a consequence of, that negative relationship, and that another operator experiencing similar errors would not have been subjected to monetary penalization by the Minister.

[10] The Minister's representative stated in response to such statement by Mr. Visser that the Crown has discretion at law to lay charges and assess penalties against all or any entities that violate the law, whether or not other entities were in violation of the same provisions of the CARs in similar circumstances.

[11] In support of this, he cited the decision of the appeal panel of the Civil Aviation Tribunal in the case of Minister of Transport v. Décary, CAT file no. Q-2089-39 (Appeal), in which the panel stated that the Crown has discretion in regard to the charges it brings and against whom it brings them and that the courts must not interfere in the exercise of such discretionary power.

[12] The Minister's representative then stated that since the applicant has admitted the offence, the only issue to be determined was the appropriate monetary penalty to be assessed.

[13] This Tribunal accepted such admission of the offence by the applicant and, without further discussing the issue of Crown discretion, stated that the Tribunal will not consider allegedly similar offences by other operators unless the specific evidence of same is brought before it. The Tribunal repeated that the applicant's request for records concerning treatment of other operators was made pursuant to legislation that is not within the jurisdiction of this Tribunal to address.

[14] Therefore, the Tribunal determined that this review hearing would proceed with respect to the quantum of the monetary penalty.

IV. EVIDENCE

A. Minister

(1) Kent Wickens

[15] Mr. Wickens testified that he is an enforcement investigator with Transport Canada's Civil Aviation division based in Vancouver and has held that position for approximately 18 months. Mr. Wickens confirmed that the applicant was assessed a monetary penalty for a contravention of paragraph 703.88(1)(d) of the CARs pursuant to the Notice of Assessment of Monetary Penalty. Mr. Wickens, reciting the provision, confirmed that it precludes an operator permitting a person to act as a flight crew member in an aircraft unless that person has fulfilled the requirements of the operator's ground and flight training program. In this case Mr. Bernstein, a member of the flight crew of the King Air B100 aircraft operated by the applicant on May 10, 2015, had not fulfilled the applicant's flight training program.

[16] Mr. Wickens advised that Transport Canada has instructed staff that its internal policy is that a minimum monetary penalty assessed against a corporation for a breach of subsection 703.88(1) is $5,000. A monetary penalty assessment of $5,000 would be characterized by Transport Canada as a “first-level” fine.

[17] Mr. Wickens also testified that in assessing the monetary penalty in this matter, Transport Canada considered but found no mitigating or aggravating circumstances that would impact the sanction. The applicant did not cross-examine Mr. Wickens.

B. Applicant

(1) Gerald Visser

[18] Mr. Visser stated that he is the operations manager and accountable executive of the applicant. Mr. Visser stated that the contravention by the applicant of subsection 703.88(1) in this matter had occurred and was the result of an error made by the applicant's chief pilot in respect of Mr. Bernstein's training record although Mr. Bernstein was a licensed and experienced pilot.

[19] Mr. Visser testified that the sanction imposed by the Minister as a result of such error was excessive in view of Transport Canada's treatment of other operators that had made similar errors without penalization.

[20] Mr. Visser advised that, since 1998, the applicant had been subjected to enhanced monitoring by Transport Canada and excessive penalization that had resulted in its near-collapse as a viable air carrier. He recounted specific instances of such monitoring and sanctions, including repetitive grounding of King Air aluminum-floored aircraft despite the previous approval of such flooring by Transport Canada. Mr. Visser also referred to a 2014 incident. He stated that prior to dealing with an emergency incident that arose during a flight by the applicant operated by Mr. Visser in poor winter weather, the applicant received documentation from Transport Canada concerning the King Air aircraft flooring that referred to grounding of the King Air aircraft. Mr. Visser stated that he was upset by such documentation and that the timing of its delivery by Transport Canada immediately before the flight could have affected his ability to deal with the emergency.

[21] Mr. Visser also discussed the hiring of a qualified replacement chief pilot and the delay by Transport Canada in undertaking the check ride, thus resulting in an operational shutdown over approximately 10 days until the check ride was performed.

[22] Mr. Visser recounted other incidents concerning the relationship between the applicant and Transport Canada and commented that the applicant over the years had lost in excess of $100,000 as a result of Transport Canada's “bullying” tactics and enhanced enforcement measures against the applicant. He advised that every mistake on the part of the applicant had been corrected and that the applicant had retained an expert consultant to re-evaluate its maintenance and tracking systems to prevent future errors.

[23] Mr. Visser concluded that the applicant had been subjected over the years to significant penalization and that the current violation, which emanated from an error in training records, should not have elicited the monetary penalty that was assessed by the Minister.

[24] On cross-examination, Mr. Visser confirmed that the applicant had received 30 days' notice of suspension of its air operator certificate but that the certificate had, in fact, neither been suspended nor cancelled. Mr. Visser also admitted that the applicant had received previous infraction notices from Transport Canada, and that after certain of those alleged infractions, the applicant had received oral counselling from Transport Canada and had not been further penalized.

[25] Acknowledging that the regulatory sanctions for contraventions applied equally to all carriers, Mr. Visser also stated that a $5,000 penalty for a smaller air operator such as the applicant has far greater significance than the same penalty assessed against a major air carrier.

V. ARGUMENTS

A. Minister

[26] The Minister confirmed that since the applicant had admitted the offence, the only issue to be determined is the amount of the sanction. The Minister referred to the testimony of Mr. Wickens to the effect that a monetary penalty of $5,000 is a first-level sanction and a minimum penalty assessed against a corporation for a contravention of the CARs.

[27] The Minister noted that although Mr. Visser testified as to the alleged bullying and harassment tactics against the applicant over time on the part of Transport Canada, in this case the penalty assessed was the minimum sanction that could be assessed and indicative of leniency by Transport Canada in view of the applicant's aviation record.

[28] The Minister then referred to this Tribunal's decision on appeal in Canada (Minister of Transport) v. Bickerstaff, 2014 TATCE 25 (Bickerstaff), in which the Minister assessed a monetary sanction of $1,000 pursuant to section 7.7 of the Act for a contravention of the CARs. The review member in that matter, citing Canada (Minister of Transport) v. Wyer, [1998] CAT file no. O-0075-33 (Appeal), found that while the applicant admitted the offence, there were mitigating factors and the review member thus reduced the penalty to $100. The Minister appealed the penalty reduction. The appeal panel reviewed the aggravating and mitigating factors in that case and noted that the Aviation Enforcement Procedures Manual suggested that an appropriate variation as a result of either aggravating or mitigating circumstances should be up to 30%. The appeal panel, which was not bound by the Manual, found nonetheless that the facts were not so exceptional as to justify a penalty reduction in excess of 30%.

[29] The Minister stated that no exceptional circumstances were prevalent in this case and, notwithstanding the applicant's past history of infractions, Transport Canada had assessed a minimum first-level penalty. The Minister concluded that there was no reason based on the facts to decrease the sanction imposed against the applicant, but that if this Tribunal was of the view that aggravating or mitigating circumstances did exist, then it should consider the reference by the Bickerstaff appeal panel to a reduction of no more than 30%.

B. Applicant

[30] Mr. Visser referred to his testimony concerning the historical relationship of the applicant and Transport Canada and that the applicant through the years had incurred excessive sanctions due to Transport Canada's zealous monitoring of the applicant's operations and its imposition of significant sanctions against the applicant. Mr. Visser concluded that although unintentional mistakes may have been made by the applicant, such mistakes had always been remedied by it. Although the applicant wishes to learn from its mistakes, the penalty being assessed by the Minister in this case is excessive.

VI. ANALYSIS

[31] It is not at issue that on May 10, 2015, the applicant permitted an individual, Mr. Bernstein, to act as a flight crew member in a King Air B100 aircraft with Canadian registration C-FASN despite the fact that Mr. Bernstein had not fulfilled the applicant's flight training program requirements, in contravention of paragraph 703.88(1)(d) of the CARs.

[32] Mr. Visser, being the accountable executive of the applicant, admitted all elements of the offence and noted that the offence emanated from a mistake in the applicant's training records but that Mr. Bernstein was a licensed and qualified pilot. Mr. Visser submitted that the history of excessive monitoring of the applicant's operations by Transport Canada, together with alleged “bullying” tactics on the part of Transport Canada and excessive penalization of regulatory infractions, should be taken into consideration by this Tribunal in reviewing the monetary sanction. He also testified that other air carriers had also contravened the CARs but had not been penalized to the same extent as the applicant.

[33] Mr. Visser was unable to obtain evidence of infractions by other carriers that were of a similar nature to the infraction in this case but that had resulted in no sanctions or reduced sanctions being assessed but, even if he had presented such evidence, the possibility of similar infractions by other carriers is not of relevance to the sanction imposed in this case. Additionally, the history, as alleged by the applicant, of Transport Canada having monitored its operations and penalized the applicant excessively in the past does not justify the contravention of the CARs by the applicant in this case, nor does it in itself justify a modification of the assessed monetary penalty in this case.

[34] I concur with the Minister's position that if Transport Canada intended in this matter to harass and bully the applicant so as to impact its operations, the penalty assessed for this infraction would not have been a “first-level” minimum sanction of $5,000.

[35] Therefore, I reject the argument that the sanction of $5,000 was assessed as a result of the past negative relationship or “bullying” tactics of Transport Canada.

[36] The Minister has cited the Bickerstaff appeal decision with respect to an appropriate reduction of sanction as a result of mitigating factors as recommended in the Aviation Enforcement Procedures Manual but there is no evidence before this Tribunal that any mitigating circumstances arose in this matter that would justify a penalty reduction. I am cognizant of the applicant's testimony concerning its willingness to learn from its mistakes but also note a history of past infractions admitted by the applicant.

[37] The admitted failure of the applicant to enforce its flight training program requirements, notwithstanding how such failure arose in this case, is a clear breach of the CARs. Subsection 703.88(1) is in place to ensure that a carrier's approved flight training program is complied with in all respects so that a failure of such compliance, whether as a result of errors in a flight record or otherwise, can have a consequence.

[38] The Tribunal is not bound by Transport Canada's staff instructions on minimum monetary penalties. Regardless of any such instructions, I see no persuasive reason to depart from the assessed monetary penalty. In other words, though I accept that Mr. Bernstein's training record may have been inadvertently affected due to an error by the applicant's chief pilot, I arrive at the conclusion that despite such inadvertence, there are no exceptional circumstances that have been brought into evidence before this Tribunal that would justify a reduction of the monetary penalty assessed for this admitted infraction.

VII. DETERMINATION

[39] The applicant has admitted the offence and therefore the only issue for this Tribunal to determine is whether the monetary penalty of $5,000 assessed against the applicant was excessive.

[40] The Tribunal finds no evidence of aggravating or mitigating circumstances insofar as the prescribed sanction for this particular violation of the CARs is concerned.

[41] The Tribunal concurs with the Minister's assessment of the penalty at the first level applicable to a breach of subsection 703.88(1) of the CARs and, accordingly, dismisses this application.

December 13, 2016

(Original signed)

Laura Safran, Q.C.

Member