Decisions

TATC File No. C-2839-52
MoT File No. RB4200-102-EISENRIEDER

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Roy J. Eisenrieder, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Security Regulations, SOR/2000-111, s. 41


Review Determination
E. David Dover


Decision: November 7, 2003

I find that Mr. Roy Joseph Eisenrieder did contravene Part 3, section 41 of the Canadian Aviation Security Regulations, and I confirm the Minister's decision to assess a monetary penalty of $75.00. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held Wednesday, September 24, 2003 at 10:00 hours, at the Federal Court of Canada in Calgary, Alberta.

The witnesses, excepting Mr. Eisenrieder, were excused from the courtroom prior to the commencement of proceedings. There were no pre-hearing conferences held between the Applicant and the Respondent.

BACKGROUND

On April 3, 2003 a monetary penalty of $75.00 was assessed against Mr. Eisenrieder, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport alleging that Mr. Eisenrieder had contravened the following provisions(s):

On or about the 26th day of March 2003, at the Calgary International Airport, in the City of Calgary, Province of Alberta, Roy Joseph Eisenrieder, the holder of a restricted area pass, designed to be worn on the outer clothing, did enter and remain in a restricted area, to wit: the airside apron area adjacent to gate A15 of the Calgary International Airport, without visibly displaying his restricted area pass on his outer clothing, thereby contravening section 41 of the Canadian Aviation Security Regulations.

THE LAW

The Canadian Aviation Security Regulations, Part 3, Aerodrome Security, Control of Access to Restricted Areas:

41. A person must not enter or remain in a restricted area unless the restricted area pass issued to the person is visibly displayed on the person's outer clothing.

OPENING STATEMENTS

The case presenting officer, Mr. Donald Battrum, stated that on March 26, 2003 two Transport Canada inspectors were assigned to inspect the security measures in place at the Calgary International Airport. The specific inspection was to determine if individuals operating in restricted areas were properly displaying their security passes.

Mr. Battrum stated that the Minister would prove on a balance of probabilities that Mr. Eisenrieder did not have his security pass displayed on his exterior clothing. Mr. Battrum indicated that he would present four witnesses.

FOR THE APPLICANT — The Minister of Transport

Ms. Lisa Wood was sworn as a witness. She stated the she was employed by the Calgary Airport Authority as a security pass control officer.

Exhibit M-1 and Exhibit M-2

Ms. Wood testified the Mr. Eisenrieder signed for security pass number 41957 on January 02, 2001 (Exhibit M-1) and he was in possession of a document titled "Conditions of Issue Airport Restricted Area Pass".

Exhibit M-3

Ms. Wood stated that the sign titled "Authorized Persons Only" was affixed to the security doors adjacent to gate A15.

Exhibit M-4

The Airport Development Plan map presented by Ms. Wood indicates that gate A15, outlined in yellow, is within the airside security zone.

Cross-examination

Ms. Wood stated that for Mr. Eisenrieder to pass through the security gates outlined in yellow on Exhibit M-4 he would have to present his security pass.

Inspector Jeffrey Viens was sworn as a witness. He stated that he was employed by Transport Canada as a security inspector. Mr. Viens testified he was inspecting the operations of the ramp attendants working at gate A15 at the Calgary International Airport on March 26, 2003.

He stated that he observed Mr. Eisenrieder working on an aircraft with his airport security pass tucked inside his vest and not visible on the outside of his clothing. When Mr. Viens questioned Mr. Eisenrieder the latter pulled his security pass out from under his vest and was most cooperative with the questions submitted by Mr. Viens.

Inspector John Steele was sworn as a witness. He stated he was employed by Transport Canada as a security inspector. Inspector Steele stated that on March 26, 2003 he observed a group of Air Canada employees unloading an aircraft at gate A15 at the Calgary International Airport. He testified that one of the employees, Mr. Eisenrieder, displayed only his security lanyard and the pass was tucked behind his green vest.

When approached by the two inspectors Mr. Eisenrieder pulled his pass out of his vest and was most cooperative with the two inspectors.

Cross-examination

Inspector Steele stated that he was about 30 to 40 feet away from Mr. Eisenrieder when he observed the lanyard without the visible security pass.

Christopher Powell was sworn as a witness. He stated he was employed as the Manager of Support Services Air Canada at the Calgary International Airport on March 26, 2003.

He stated that Mr. Eisenrieder was also an employee of Air Canada. He indicated that it was a condition of employment with Air Canada that all employees possess and display restricted area passes when operating in restricted areas.

Exhibit M-5

Mr. Powell testified that Mr. Eisenrieder was in possession of an "Air Canada Employee Bulletin – Security" dated January 9, 2002, File 7120.

This document clearly states in paragraph 3 that all employees "MUST VISIBLY DISPLAY their Restricted Area Pass at all times".

THE RESPONDENT — Roy Joseph Eisenrieder

Mr. Eisenrieder was sworn as a witness. He testified that Air Canada employed him as a baggage handler. Mr. Eisenrieder produced a green reflective vest and stated that it did not have a pocket to store the security passes.

He stated that the suitcases he was handling were heavy and the security passes were being torn off the lanyards. To prevent this from happening he tucked the pass inside the vest.

Cross-examination

Mr. Eisenrieder admitted that there were other devices to secure the passes such as armbands and a newer orange vest that had a security pocket.

As there was no further evidence, the evidentiary record was closed.

FINAL ARGUMENTS

Mr. Battrum reviewed the evidence that had been presented by the Minister. He stated that Inspectors Viens and Steele observed Mr. Eisenrieder working adjacent to gate A15 at the Calgary International Airport without a visible restricted area pass displayed on his outer clothing. He further stated that the Notice of Assessment of Monetary Penalty dated April 3, 2003 was issued to Mr. Eisenrieder and received by the Respondent.

The Respondent — Mr. Eisenrieder

Mr. Eisenrieder stated he did not dispute the fact that he was not displaying his security pass.

ANALYSIS

Section 41 of the Canadian Aviation Security Regulations states:

41. A person must not enter or remain in a restricted area unless the restricted area pass issued to the person is visibly displayed on the person's outer clothing.

The evidence indicates that a restricted area pass was issued to Mr. Eisenrieder (Exhibit M-3).

Exhibits M-1 and M-2 outline the policy of the Calgary Airport Authority.

DETERMINATION

I find that Mr. Roy Joseph Eisenrieder did contravene Part 3, section 41 of the Canadian Aviation Security Regulations, and I confirm the Minister's decision to assess a monetary penalty of $75.00.

E. David Dover
Member
Transportation Appeal Tribunal of Canada


Appeal decision
Allister W. Ogilvie, Coleen Rogers, Tracy Medve


Decision: March 11, 2004

We dismiss the Appeal, but in the light of mitigating factors, the amount of the monetary penalty is reduced to $25.00. This amount is to be made payable to the Receiver General for Canada and received by the Transportation Appeal Tribunal of Canada within fifteen days following service of this determination.

An appeal hearing on the above application was heard at the Federal Court of Canada in Calgary, Alberta on Tuesday, February 10, 2004 at 10:00 hours.

BACKGROUND

The appeal hearing was convened pursuant to an appeal from the determination rendered by Tribunal member, Mr. David Dover, on November 7, 2003 following a review hearing on September 24, 2003. The review hearing was conducted in connection with a Notice of Assessment of Monetary Penalty issued by the Minister of Transport pursuant to section 7.7 of the Aeronautics Act. The Notice set out the following:

On or about the 26th day of March 2003, at approximately 16:55 hours, at the Calgary International Airport, in the City of Calgary, Province of Alberta, Roy Joseph EISENRIEDER, the holder of a restricted area pass, designed to be worn on the outer clothing, did enter and remain in a restricted area, to wit: the airside apron area adjacent to gate A15 of the Calgary International Airport, without visibly displaying his restricted area pass on his outer clothing, thereby contravening Section 41 of the Canadian Aviation Security Regulations.

Mr. Eisenrieder was fined $75.00. Mr. Dover in his review determination found that Mr. Eisenrieder did contravene section 41 of the Canadian Aviation Security Regulations and confirmed the Minister's assessment of a $75.00 monetary penalty.

At the hearing before Mr. Dover, Mr. Eisenrieder did not dispute that he had been in a restricted area on March 26, 2003, nor did he dispute that his restricted area pass was for a period obscured from view. Mr. Eisenrieder introduced evidence to describe how, during the course of conducting his duties as a baggage handler for Air Canada, his pass, which was attached to a company-supplied lanyard, would have become obscured behind his company-issued security vest. Mr. Dover's summary of the evidence presented by Mr. Eisenrieder was as follows:

(...) He testified that Air Canada employed him as a baggage handler. Mr. Eisenrieder produced a green reflective vest and stated that it did not have a pocket to store the security passes. He stated that the suitcases he was handling were heavy and the security passes were being torn off the lanyards. To prevent this from happening he tucked the pass inside the vest.

On cross-examination, Mr. Dover summarized Mr. Eisenrieder's testimony as follows: "Mr. Eisenrieder admitted that there were other devices to secure the passes such as armbands and a newer orange vest that had a security pocket."

Mr. Eisenrieder submitted eight grounds for appeal as follows:

I did not tuck my pass in behind my vest as stated in the paperwork (i.e., Review Determination) received November 10, 2003 by Registered Mail.

THE LEGISLATION

The Canadian Aviation Security Regulations, Part 3, Aerodrome Security, Control of Access to Restricted Areas section 41 sets out:

41. A person must not enter or remain in a restricted area unless the restricted area pass issued to the person is visibly displayed on the person's outer clothing.

The monetary penalty imposed on Mr. Eisenrieder was assessed pursuant to subsection 7.7(1) of the Aeronautics Act which permits the Minister, in relation to certain designated provisions of the Act, to assess a monetary penalty if he believes, on reasonable grounds, that there has been a contravention of the designated provisions. Section 41 of the Canadian Aviation Security Regulations is a designated provision for which the Minister may assess a monetary penalty not exceeding $1,000.00.

Although not specifically stated as a defence by Mr. Eisenrieder, we note some of the evidence presented by him pertained to mitigating actions and that section 8.5 of the Aeronautics Act may apply. This section provides a complete defence to an alleged contravention of certain provisions of the Act and regulations as follows:

8. 5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

SUMMARY OF EVIDENCE

On March 26, 2003 during a routine inspection of the ramp area at the Calgary International Airport, Transport Canada Inspectors Mr. Jeffery Viens and Mr. John Steele, from an initial distance of about 30 or 40 feet, observed Mr. Eisenrieder working on the ramp and standing with other Air Canada employees. The inspectors testified that they could see Mr. Eisenrieder was wearing a green safety vest and a lanyard was visible around his neck, but they could not see Mr. Eisenrieder's restricted area pass.

By the time the inspectors had approached Mr. Eisenrieder, his pass was visible. The inspectors testified that Mr. Eisenrieder was cooperative throughout their interaction.

Evidence presented on behalf of Transport Canada confirmed that Mr. Eisenrieder was issued with a restricted area pass and that on the day in question he was in a restricted area — the ramp at gate A15.

At the hearing before Mr. Dover, Mr. Eisenrieder provided a detailed explanation of his work function — handling heavy transfer bags bound for many international destinations. He described how it was easy, given the company-issued lanyard and the looseness of the one-size-fits-all safety vest, during the course of his work duties, for the pass to become lodged inside the vest. Mr. Eisenrieder also testified that there are other systems in place for displaying the security pass which are in use by employees from other companies, but that such systems were not provided by his employer, Air Canada, and he had no idea where to acquire such systems. Mr. Eisenrieder did not present evidence to dispute that his pass had become obscured from view.

ISSUES ON APPEAL

At the appeal hearing Mr. Eisenrieder stressed that he takes security seriously, reiterated that he was wearing a company-issued lanyard and safety vest and that in the past he had employed other systems for securing his pass to his outer clothing (i.e., a clip system) which proved unsatisfactory. He also demonstrated the system he now uses (i.e. pass secured to his radio which clips to the outside of his jacket) to ensure that he does not encounter the same problems. Mr. Eisenrieder also advised that he is pursuing other outer clothing alternatives that are more suited to keeping the pass visible.

Mr. Eisenrieder confirmed that he did not dispute the fact that he was found to have been in a restricted area and that the inspectors could not see his pass. His position was that his pass had become obscured during the course of performing his duties and that he did not intentionally tuck his pass into his vest.

At the appeal hearing Transport Canada's representative, Mr. Mulder, addressed each point of appeal and concurred with Mr. Eisenrieder on points 1, 2, 3, 5, 6, 7 and 8. On point 4 Mr. Mulder made no objection to the presentation of photos by Mr. Eisenrieder submitted to support his contention that there were no restricted area signs at gate A15. However, Mr. Mulder noted that the evidence of Ms. Wood at the review hearing was that signs were posted at all entrances to restricted areas and Mr. Eisenrieder's photos were taken inside the restricted area, away from the entrance. Therefore, he submitted that the photos did not constitute proof that the restricted area was not marked.

In summation Mr. Mulder agreed that Mr. Dover appeared to be drawing an inference from the testimony at the review hearing that Mr. Eisenrieder intentionally tucked his pass into his vest, an assumption that is not supported by the evidence. However, he reiterated the undisputed evidence that Mr. Eisenrieder's pass was not visible and submitted that the offence had therefore been proven. Mr. Mulder noted that as the pass holder Mr. Eisenrieder had responsibility for ensuring that the pass was displayed, regardless of whether he was wearing company-supplied clothing and accessories for displaying the pass which may or may not have been suitable.

Although not framed specifically as such, the issues raised by Mr. Eisenrieder on appeal appear to be twofold. First, if we accept that he did not intentionally hide his pass, does this serve as a defence? Second, if intent is not relevant, did he exercise sufficient due diligence through attempts made to ensure his pass did not become obscured to constitute a defence to the alleged infraction?

ANALYSIS

Section 41 of the Canadian Aviation Security Regulations is a strict liability offence. Consequently, it is not a requirement for the Minister to prove that Mr. Eisenrieder intended to obscure his restricted area pass while in a restricted area. It is sufficient to show that the pass was not visible and that Mr. Eisenrieder was in a restricted area. We find that the Minister has proven a contravention of section 41 of the Canadian Aviation Security Regulations.

Although Mr. Eisenrieder made submissions pertaining to efforts at due diligence and although these submissions were not disputed by the Minister of Transport, we find that these efforts fall short of what can reasonably be considered due diligence. However, we also take note that during the course of performing his duties, Mr. Eisenrieder could have problems with his pass becoming obscured, that since March 26, 2003 Mr. Eisenrieder has taken steps to display his pass on the outside of his company-issued safety vest in a way which more likely ensures it will not become obscured and that he has taken other steps to pursue other clothing styles which might more readily accommodate the requirement to display his pass without impeding his ability to work.

Although no submissions relative to the penalty were made at the review hearing nor at the appeal hearing, we note that if the intent of a monetary penalty is rehabilitation or deterrence, we are satisfied that Mr. Eisenrieder has demonstrated that these objectives have been met in the course of his actions at the time of and subsequent to the events of March 26, 2003.

In light of various mitigating factors established by the evidence at the review hearing including admission of the offence, cooperation with authorities and obvious attempts to prevent recurrence, we hereby reduce the amount of the monetary penalty to $25.00.

Reasons for Appeal Decision by:

Tracy Medve, Member

Concurred:

Allister Ogilvie, Vice-Chairperson
Coleen Rogers, Member