Decisions

CAT File No. O-1914-33
MoT File No. PAP5504-P-730494-032825

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Alain Tremblay, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, ss. 401.03(1)(b), 601.08(1)
Loi sur l'aéronautique, L.R.C. 1985, c. A-2, art. 7.7, 7.9(3)(b)
Official Languages Act, R.S., 1985, c. 31 (4th Supp.), ss. 15, 18

Questioning of witness, Official language, Language of witness, Flight in Class C airspace without clearance, Invalid medical certificate, Conflict


Review Determination
Pierre Beaudry


Decision: April 11, 2000

TRANSLATION

The Tribunal concluded that the Respondent did contravene paragraph 401.03(1)(b) and subsection 601.08(1) of the Canadian Aviation Regulations and confirmed the penalties of $1,000 and $100 respectively for a total of $1,100. This amount is payable to the Receiver General for Canada and is to be received by the Civil Aviation Tribunal within 15 days following service of this determination.

A Review Hearing on the above matter was held Tuesday, March 7, 2000 at 10:00 hours at the Standard Life Building in Ottawa, Ontario.

SUMMARY OF THE FACTS UNDER REVIEW

Mr. Alain Tremblay, flying a single engine Lake, model LA-4-200, registered C-FBPQ, departing from Gatineau to the southern United States, crossed the airspace of Macdonald-Cartier International Airport at Ottawa on December 18, 1998 without clearance or even prior communication with the control tower in Ottawa. Communication was finally established when the aircraft was leaving the airspace at its southern tip, continuing its flight to the United States. This flight conflicted with two aircraft in the airspace. These incidents were covered in an internal NAV CANADA report which triggered an investigation by Transport Canada. The investigation process led Transport Canada to realize that Mr. Tremblay did not have a valid medical certificate at the time of his return flight on January 26, 1999. Mr. Tremblay was consequently given notice of two contraventions. The first was in the amount of $1,000 for having acted as a flight crew member without a valid medical certificate. The second was for $100 for flying in Class C airspace without prior clearance from the air traffic control unit. Respondent Tremblay did not pay the said penalties which led to a review hearing under section 7.9 of the Aeronautics Act.

THE HEARING

Respondent Tremblay did not appear at the hearing and the Tribunal proceeded ex parte in accordance with subsection 7.9(2) of the Act.

In order to complete his evidence, the Minister had earlier asked that the Tribunal go to the Ottawa air traffic control unit to view the radar route of the C-FBPQ flight. This data had been stored at NAV CANADA. The Tribunal did go to view the radar data as planned. The Minister concluded his evidence at the end of this last testimony.

During the testimony of his first witness, the Minister introduced a motion regarding the use of the other official language for the examination. The mother tongue of the Minister's first witness was English while the hearing was conducted in French, the language of the document holder-respondent. Although simultaneous interpretation services were available, the Minister asked the Tribunal if the witness could be examined by the "presenter" in English. The Tribunal dismissed the motion.

To support his motion, the Minister submitted that the interpretation might not accurately convey all of the finer points of the issues given the technical aspect of the testimony. From the law point of view, the Minister submitted that section 18 of the Official Languages Act (OLA) does not require the presenter to examine in the specific language of the hearing, but in this case, could rightly opt for the language of the witness. The Minister cited the Lavigne v. Canada[1] judgment in which Mr. Justice Noël discussed the interpretation and consequences of section 18 at length and concluded that said section does not impose a linguistic obligation beyond the specifications contained in the section.

Section 18 of the OLA reads as follows:

18. Where Her Majesty in right of Canada or a federal institution is a party to civil proceedings before a federal court,

(a) Her Majesty or the institution concerned shall use, in any oral or written pleadings in the proceedings, the official language chosen by the other parties unless it is established by Her Majesty or the institution that reasonable notice of the language chosen has not been given; and

(b) if the other parties fail to choose or agree on the official language to be used in those pleadings, Her Majesty or the institution concerned shall use such official language as is reasonable, having regard to the circumstances.

To support his determination, Noël J. also cited subsection 15(1) and reviewed the facts in light of the principles of natural justice that ensure the right to an impartial hearing.

Subsection 15(1) of the OLA reads as follows:

15. (1) Every federal court has, in any proceedings before it, the duty to ensure that any person giving evidence before it may be heard in the official language of his choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.

In the Lavigne case, the issue was whether one party could insist on having the translation of some affidavits submitted as evidence by the other party, in this case, Her Majesty. Noël J. concluded that the various elements of evidence such as an affidavit, do not form an integral part of "oral or written pleadings in the proceedings" as defined in section 18. Consequently, "evidence does not come within the ambit of that term"[2] so there is no requirement to produce an element of evidence in the other language.

Essentially, Noël J. interpreted the OLA as associating the linguistic rights and obligations with the person who produces the substance of the evidence rather than the person that receives it. Subsection 15(1) was cited inter alia to support this conclusion.

So, concerning this hearing, there is no doubt that on one hand, nobody could force the Minister's witness to provide testimony in a language other than that of his choice. On the other hand, nobody could require a formal translation of an element of evidence as testimony, based on section 18.

For the Tribunal, the issue was whether or not the language of examination necessarily and by right of law had to be the language of the witness. The fact of confirming that section 18 does not impose a linguistic obligation on the Minister regarding the evidence does not settle the question. Here, the Minister was attempting to read into the combined elements of section 18 and the Lavigne judgment something that was not stated. Section 18 covers requirements for pleadings in the proceedings, but does not mention anything else and does not specify any other rights or obligations. This is also the case in subsection 15(1) where the rights of the witness are clearly recognized but the language of the examiner is not specified.

Therefore, this type of issue, in the absence of clear rights and obligations, must be resolved by interpreting other principles of the applicable law. During the hearing, guided by the rules of natural justice, the Tribunal took the position that the balance of convenience was the best guide for judging the situation. In this case, the specific circumstances could be compared as follows: on one hand, Respondent Tremblay is Francophone and the hearing was consequently conducted in French; furthermore, the hearing was being conducted ex parte since the Respondent was absent. The stenographer's notes are naturally in the language of the person speaking rather than in the language of the interpreter and, consequently, would not have to be translated formally. The Respondent has a direct interest in having most of the hearing conducted in French, particularly if he wants to exercise his right to appeal. On the other hand, the Minister and his English-speaking witness could take advantage of the interpretation services available. Furthermore, there were no specific form or time restrictions to limit the Minister's examination. The Minister could have monitored the interpretation, exercised quality control at will and asked his questions again to ensure he reached his objectives within the limitations of the applicable law.

If section 18 gave the Respondent the right to demand a formal translation of the testimony, the situation could be viewed from another angle. In this perspective, section 18 opposes the Minister's submissions.

The Tribunal found that the balance of convenience was clearly in the Respondent's favour. The motion was therefore dismissed.

THE EVIDENCE AND THE LAW

The Minister's evidence was essentially supported by the testimony of two inspectors from Transport Canada and the air traffic controller, an employee of NAV CANADA, who was on duty during the events. This testimony was supported by audio tapes of the air communications and the radar route of the flight stored electronically. Finally, various medical reports and files were submitted regarding the absence of a valid medical certificate at the time of the flight in question.

The Minister's burden of proof is based on a preponderance of the evidence or balance of probabilities. This burden was fully satisfied for the two contraventions. The evidence showed that on January 26, 1999, the Respondent assumed the functions of a flight crew member and pilot-in-command without a valid medical certificate and passed through class C airspace in Ottawa without prior communication or clearance on December 18, 1998. The Respondent had not experienced a radio failure such that the "NORDO" procedure would apply. The Minister's notice was issued on September 28, 1999 which was within the specified time limit.

Finally, the evidence indicated that the procedure followed by the Minister resulting in the issuance of the notice of penalty was fair and reasonable.

SANCTION

Regarding the absence of a medical certificate, the Minister assessed a penalty of $1,000 in accordance with the guide used at Transport Canada. For this type of offence, the guide recommends a sanction of $1,000 for a first offence, while the absolute regulatory maximum is $5,000. During the investigation, Mr. Tremblay indicated that he never received a notice informing him that his medical certificate was due for renewal and also put forward the excuse that his responsibilities in business had kept him very busy (Exhibit M-13). Such responses do not constitute a defence. The requirement for holding a valid licence is based on strict law and the Tribunal informed Mr. Tremblay that countries that signed applicable multilateral agreements rely reciprocally on each of the relevant signatories to ensure the regulatory standards of the originating country are applied and respected. In short, Respondent Tremblay was required to renew his medical certificate before his departure for the "south".

Regarding the second count, the flight in class C airspace without prior clearance, the Minister acted in the same manner by assessing a penalty of $100 as recommended in the guide for a first offence.

In this case, the Tribunal had much more difficulty in principle with the Minister's position given the serious nature of the events. Respondent Tremblay acted with disconcerting imprudence, indicative of a pilot-in-command who is ignorant or completely unconcerned. Whether it is one or the other or a combination of the two, the allegations shocked the Tribunal because no more dangerous situation exists in a VFR context. The facts were disturbing: a flight in class "D" airspace without communication (even though the Minister decided not to assess a penalty for such count), a flight in class "C" airspace without prior clearance, a flight four miles from the airport passing over the Ottawa radio beacon thereby cutting through the final approach leg for runway 25 at 2,500 feet which is 300 feet over the IFR approach altitude, cutting an aeroplane while the radar targets merged on the screen, then cutting a second aircraft on the far left final approach to runway 32 while the minimum IFR radar altitude was at 2,200 feet south of Ottawa, an inactivated transponder prior to leaving the airspace to the south and finally, making radio contact only at the very end when leaving the airspace.

Exhibits M-13 and M-14 indicate that the Respondent knew the region well but, according to his deposition, his GPS equipment was potentially not functioning and he believed he was at the edge of class "C" airspace. The weather was favourable, such that none of the evidence pointed to the possibility of a defence of necessity or due diligence. In fact, the Respondent and the aviation system were both lucky. The favourable weather, and particularly the low density of traffic, allowed the controllers involved to take the necessary measures to protect the Respondent-offender and the immediate traffic.

In this case, we are not talking about a partial and circumstantial intrusion at the edge of the airspace, but a flight directly over the Ottawa radio beacon at the IFR altitude without prior communication, the whole preceded by a flight in class "D" airspace without verbal or electronic communication. The facts in this case indicated a dangerous situation created by a pilot who should seriously review his airmanship and knowledge regarding applicable procedures.

When questioned by the Tribunal about the level of the penalty in the notice, inspector Elliott submitted that she did not see any reasons for a penalty higher than the minimum in the guide. Even if this was a first offence combined with the Respondent's cooperation during the investigation, the inherent risk to safety was high. Witness Elliott emphasized that the weather was favourable and that there were no critical manoeuvres since the converging aircraft saw each other (thanks to the controllers on duty). This reasoning is far from convincing since the level of the penalty should not, in the opinion of the Tribunal, be based on real damage to persons and property nor based on probability. The Tribunal would prefer a level of penalty that considers the whole context and that could actively contribute to accident prevention which is the objective of the system as a whole. Nevertheless, in an ex parte hearing, the wording of paragraph 7.9(3)(b) does not allow the Tribunal to modify the penalty indicated in the notice. The penalty of $100 could therefore not be raised.

CONCLUSION

The Tribunal concludes that the Respondent did contravene paragraph 401.03(1)(b) and subsection 601.08(1) of the CARs and confirms the penalties of $1,000 and $100 respectively for a total of $1,100.

Pierre Beaudry
Member
Civil Aviation Tribunal


[1] [1995] F.C.J. No. 737.

[2] See paragraphs 7 and 8 of the decision.