Decisions

CAT File No. O-1331-02
MoT File No. PAP-6504-P-729464-027209

CIVIL AVIATION TRIBUNAL

BETWEEN:

Jacques André Eric Goyet, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, ch. A-2, s. 6.9
Air Regulations, C.R.C. 1978, ch. 2, s. 539

Helicopter, Flight Over Water


Review Determination
Suzanne Jobin


Decision: August 15, 1997

TRANSLATION

After having examined the law and considered the arguments presented, it is the opinion of the Tribunal that section 539 of the Air Regulations does not pertain to helicopters, but only to single-engined or multi-engined landplanes. Consequently, the Applicant has not contravened section 539 of the Air Regulations as stated in the Notice of Suspension, and the suspension imposed by the Minister is cancelled.

The Review Hearing on the above matter was held Tuesday, April 1, 1997, at 10:00 hours in the Standard Life Building, in the city of Ottawa, Ontario.

BACKGROUND

On August 22, 1996, Transport Canada issued a Notice of Suspension which reads in part as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulations, s.539, in that you, on August 26, 1995, in the vicinity of Alexandria Bay, New York, operated a single engined landplane, to wit: an Enstrom 280C helicopter registered C-GJWQ in a commercial air service over water, beyond gliding distance from shore.

The suspension was to be in effect from September 19, 1996, until October 20, 1996. On September 3, 1996, a request for a review of the decision was filed with the Tribunal, together with an application for a stay of the suspension. A hearing date was set and a decision granting the stay of the suspension was granted until the Review Hearing consideration and determination.

PRELIMINARY ISSUE

On September 3, 1996, the Applicant's representative filed a motion for non-suit. On January 9, 1997, the Tribunal notified the Applicant that the application subsequently filed would be heard by the member presiding at the Review Hearing as a preliminary issue of law at the start of the hearing.

Accordingly, the Tribunal heard the motion for non-suit. It is the opinion of the Tribunal that this application is a procedure reserved for penal or criminal courts and not admissible in this proceeding. This application was therefore denied.

THE LAW

Subsection 6.9(1) of the Aeronautics Act provides as follows:

6.9 (1) Where the Minister decides to suspend or cancel a Canadian aviation document on the grounds that the holder of the document or the owner or operator of any aircraft, airport or other facility in respect of which the document was issued has contravened any provision of this Part or any regulation or order made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at his latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

Section 539 of the Air Regulations reads as follows:

539. Except as authorized by the Minister, no person shall operate, on a commercial air service over water beyond gliding distance from shore, a single-engined landplane or multi-engined landplane that is unable to maintain flight in the event of failure of the critical engine.

ARGUMENTS

The Applicant maintains that the Notice of Suspension in this case refers not to a plane, but to a helicopter. However, section 539 of the Air Regulations prohibits the operation of a single-engined or multi-engined landplane and makes no mention of a helicopter. In this regard, the Applicant recalls that the Air Regulations distinguish between these two types of aircraft, defining "aeroplane" and "helicopter" differently.

Consequently, and because the applicable text of the Regulations is clear, the Applicant argues that the terms "single-engined landplane or multi-engined landplane" used in section 539 of the Regulations are restrictive and do not include a helicopter. The Respondent therefore could not have committed the alleged offence.

The Transport Canada representative explains that this ambiguity has recently been corrected and that she has no arguments to be heard. Moreover, she corroborates the comments of the Applicant's representative who, in response to the stated position, told the Tribunal that the Minister had withdrawn the Notice of Suspension in this case.

DETERMINATION

The Tribunal, not having been previously notified that Transport Canada had withdrawn the Notice of Suspension, will make a determination on the substance of the issue.

After having reviewed the law and considered the arguments presented, it is the opinion of the Tribunal that section 539 of the Air Regulations does not pertain to helicopters and applies only to single-engined or multi-engined landplanes.

Consequently, the Applicant did not contravene section 539 of the Air Regulations as stated in the Notice of Suspension.

Suzanne Jobin
Member
Civil Aviation Tribunal