Decisions

CAT File No. O-2088-33
MoT File No. PAP-5504-40542

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Dennis Foerster, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433 ss. 605.27(1)(a), 705.17

Onus, Due diligence


Review Determination
Philip D. Jardim


Decision: January 31, 2001

I find that Mr. Foerster did contravene paragraph 605.27(1)(a) and section 705.17 of the Canadian Aviation Regulations. The fine specified in the Notice of Assessment of Monetary Penalty is confirmed. The total amount of $500.00, 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, January 17, 2001 at 10:00 hours at the Federal Court of Canada, Canada Life Building, in Toronto, Ontario.

BACKGROUND

On November 18, 1999, Air Canada was operating flight 462 between Toronto and Ottawa. The aircraft was a Boeing 767. This flight is a very short one, with an air time of just 35 minutes in this case. The in-charge flight attendant was Mr. Dennis Foerster.

The aircraft was 2/3 to ¾ full and the crew commenced the in-flight service. Time was short, and the cabin crew fell behind, such that no pre-landing announcement was made prior to landing at Ottawa, nor was the cabin properly secured, nor were any of the flight attendants, including the in-charge flight attendant, seated as the aircraft touched down at Ottawa.

Transport Canada Chief of Cabin Safety Standards, Ms. Frances Wokes, was on board this flight. She discreetly approached Mr. Foerster and the captain of the aircraft after the passengers had disembarked, and advised them that there would be an investigation. Ms. Wokes reported the matter to Air Canada management. Investigations ensued. Mr. Foerster was suspended by the airline for eight days without pay — later commuted to five days, and Transport Canada fined Mr. Foerster $250.00 on each of two counts, totalling $ 500.00. The fine was not paid, and Transport Canada requested this hearing by the Tribunal.

THE LAW

Paragraph 605.27(1)(a) of the CARs states:

605.27 (1) Subject to subsection (2), the crew members on an aircraft shall be seated at their stations with their safety belts fastened

(a) during the take-off and landing;

[...]

Section 705.17 of the CARs states:

705.17 (1) An air operator shall ensure that all operations personnel are properly instructed about their duties and about the relationship of their duties to the operation as a whole.

(2) The operations personnel of an air operator shall follow the procedures specified in the air operator's company operations manual in the performance of their duties.

EVIDENCE AND ORAL ARGUMENTS

Mr. Richard Newcombe introduced the case for Transport Canada, calling four witnesses, and presenting seven exhibits.

Ms. Elliott was the investigating officer for Transport Canada. She established the names of the crew from Air Canada, interviewed witnesses and established that infractions of the regulations, under reference above, had taken place.

In his cross-examination of Ms. Elliott, Mr. Michael Church sought information as to who decided to charge Mr. Foerster and why. Ms. Elliott said that she had made that recommendation, after interviewing the three other witnesses and reading their statements. Mr. Church took issue with Ms. Elliott as to whether the other members of the cabin crew had been proceeded against, and what action had been taken against them. She admitted that they too had been investigated, but declined to say under the Privacy Act whether they had been charged. Mr. Church insisted, and after consideration the Tribunal upheld Ms. Elliott's silence. Section 8 of the Privacy Act protects individuals from having such details publicized about them.

In a spirited presentation, Mr. Church protested about the unfairness of Transport Canada singling out his client for prosecution, and not the other four flight attendants. He stated that there were mitigating circumstances on that flight:

  1. The type of aircraft had been changed at the last minute.
  2. The gate had been changed.
  3. The normal crew complement of seven was compromised to the minimum of five.
  4. The flight was late, and it was evident that the captain had increased the cruising speed of the aircraft to make up time. This resulted in an even shorter flight time than normal.
  5. Further, because of the last-minute aircraft change, the crew did not have enough time to prepare the cabin and the meal service, prior to departure.
  6. Mr. Foerster was more used to and had been expecting to operate the A-320 type of aircraft. In addition, he was confronted with a very short flight, for which he did not have adequate time to prepare.
  7. One of the five flight attendants was new, inexperienced and slowed down the service of meals and beverages. Some of the passengers were unusually demanding, asking for two or more drinks.

Ms. Elliott drew reference to Air Canada's company operations manual - Safety and Emergency Procedures Cabin Personnel. This document, presented as Exhibit M-2, is quite explicit as to the duties of cabin staff and the safety procedures required.

The second witness, Ms. Frances Wokes, took the stand. She is Transport Canada's Chief of Cabin Safety Standards, and it is as a result of her report and issue of a detection notice that the investigation ensued and charges were laid. Ms. Wokes's evidence was substantiated by the other two witnesses, Ildiko Horvath, and Ian Lie, who were both flight attendants on the flight.

Ms. Wokes saw one of the other flight attendants ask Mr. Foerster whether they should continue with the service, after the chimes had sounded and the cabin signs were illuminated. He told them to continue the service. Mr. Church objected to Ms. Wokes referring to her written statement (Exhibit M-5). At this point I obtained from Ms. Wokes her assurance under oath that everything in her statement is true. Her testimony is corroborated by the other two witnesses, Ms. Ildiko Horvath and Mr. Ian Lie, flight attendants who both gave Transport Canada written statements, and referred to them during their sworn testimony.

Mr. Church cross-examined all of these witnesses, and basically established the mitigating circumstances listed above with each of them. None of them denied that the pressure and stress of the situation in the cabin service on this flight were considerable. Indeed, they all freely confirmed it, and the union is currently taking the matter up with Air Canada.

Mr. Church further questioned the two other flight attendants and established that while Transport Canada had investigated them, they were not charged with the same offences, but were cautioned and counselled. Mr. Church re-emphasized that his client had been unfairly singled out, and that he had, as it were, suffered "double jeopardy," in that he was penalized twice for the same offences: by Air Canada's five-day suspension — equivalent to more than $1,000.00 - and now by Transport Canada, in the sum of a further $500.00.

Mr. Foerster took the stand. He has ten years experience with Air Canada. To his credit, he admitted that everything alleged by Transport Canada had happened. He said that he had not heard the warning chimes, nor had he seen the cabin signs come on. He said he was surprised when he felt the aircraft touch the ground and reverse thrust was applied, as he had not realized that they were that close to landing. He described his stress level as very high and with a depleted crew and an inexperienced member of the crew, his workload was made even higher.

He said that this was the first time he had flown the 767 on such a short flight.

Mr. Foerster said that he wanted to serve all of the passengers. He now realizes that his obsession with completing this in the limited time available caused him to disregard the overwhelming priority of cabin safety first, before all other considerations.

Mr. Church valiantly defended his client and offered a defence of due diligence, in difficult circumstances, with many mitigating factors. He repeated these, which are already listed above. In the light of Mr. Foerster's unblemished record, he is seeking leniency for his client.

DISCUSSION AND DETERMINATION

There is no doubt that the alleged infractions did take place, and that passenger and crew safety were seriously compromised as a result. Notwithstanding the stressful circumstances in the cabin on this flight and all of the other mitigating circumstances referred to above, Mr. Foerster evidently lost sight of the overall priority of cabin safety before cabin service.

He did not take at least two other courses of action which were open to him and which would have given him time to do his job properly. These are:

  1. Calling cabin service before departure to seek the proper crew complement. Seven instead of only the legal minimum of five.
  2. Telling the captain of the situation, when he saw that time was short, and requesting him to extend the approach to Ottawa.

Mr. Foerster is a careful and caring individual as befits his profession. He obviously cares a great deal about the passengers under his care, but in doing so, he lost sight of the priority of cabin attendants, i.e. that they are there primarily for the safety of the passengers.

I deeply sympathize with Mr. Foerster and the extreme circumstances under which he worked that night; however, I believe that in losing sight of the overall safety of his passengers, he misguidedly and unintentionally endangered them. He opened his airline and the captain of the aircraft to severe consequences, in the event that someone had been injured by not being strapped in, or struck by unstowed cabin equipment. He also failed his fellow cabin crew by not directing them and by not heeding their warning of the impending landing. In short, with ten years of experience behind him, and as an in-charge flight attendant, Mr. Foerster should have known and performed better.

Because of this, I cannot alter Transport Canada's sanction. In conclusion, I find that Mr. Foerster did contravene paragraph 605.27(1)(a) and section 705.17 of the CARs. The fine specified in the Notice of Assessment of Monetary Penalty is confirmed.

Philip D. Jardim
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Samuel J. Birenbaum, William G. McDonald


Decision: June 26, 2001

The appeal is dismissed. The Appeal Panel upholds the sanction of $500.00. This amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

An Appeal Hearing on the above matter was held Friday, May 25, 2001 at 10:00 hours, at the Federal Court of Canada, in Toronto, Ontario.

BACKGROUND

On November 18, 1999 Air Canada flight 462 flew between Toronto and Ottawa, Ontario. The flight was of a short duration. The air time was just 35 minutes.

The cabin crew commenced their normal in-flight service but the circumstances of the flight resulted in their falling behind their normal routine. The result of that was that when the aircraft landed in Ottawa no pre-landing announcement had been made, the cabin was not properly secured and the flight attendants in the rear cabin were not seated.

A Transport Canada official was on flight 462, travelling as a passenger. She reported the incident. An investigation ensued. Although all of the rear cabin flight attendants found themselves in the same circumstance, Transport Canada alleged violations only against the in-charge flight attendant, Mr. Dennis Foerster.

Transport Canada alleged a violation of paragraph 605.27(1)(a) of the Canadian Aviation Regulations (CARs) - crew members on an aircraft shall be seated at their stations with their safety belts fastened during take-off and landing, and also subsection 705.17(1) of the CARs - failure to follow the procedures specified in the air operator's company operations manual in failing to ensure that the required pre-landing announcements were made prior to landing.

The allegations were heard before a single Tribunal Member, Mr. Philip Jardim, on January 17, 2001. Mr. Jardim determined the following:

I find that Mr. Foerster did contravene paragraph 605.27(1)(a) and section 705.17 of the Canadian Aviation Regulations. The fine specified in the Notice of Assessment of Monetary Penalty is confirmed. The total amount of $500.00, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

It is from that determination that Mr. Foerster appeals.

The grounds of appeal are as follows:

It is respectfully submitted that the learnered [sic] Member erred in his decision when he failed to give effect to the following evidence and arguments:

  1. that the Applicant (Minister of Transport) abused his authority in allowing the prosecution in question;
  2. that the prosecution in question amounted to a discriminatory prosecution in the circumstances;
  3. that the prosecution in question was conducted in an arbitrary and discriminatory manner and lacking in good faith;
  4. that the prosecution in question amounted to a prosecution of 'double jeopardy' against the Respondent;
  5. that the Minister refused to disclose all relevant facts and evidence to the Respondent;
  6. that the Rules of Natural Justice were not given effect in the circumstances;
  7. that the motives of the Minister in the circumstances were tainted in an improper manner;
  8. that the Minister's discretion in permitting the prosecution of the Respondent in these circumstances was not exercised in good faith;
  9. that the decision to commence the prosecution and assess the penalties against the Respondent in these circumstances amounted to a disparity in the treatment of the Respondent;
  10. that officials of Transport Canada permitted the conduct in question to take place all the while without any effort to warn the Respondent of, inter alia, the safety risks in the circumstances;
  11. that there was no evidence that the Respondent had the time or opportunity to take the other courses of action suggested by the Member in the circumstances; and the Member erred in concluding:

FACTUAL FINDINGS

There is no dispute that Mr. Foerster was not in his seat with safety belt fastened upon landing nor any dispute that he had omitted making the requisite pre-landing announcement.

REPRESENTATION OF THE PARTIES

Appellant

Mr. Foerster was represented by Mr. Michael Church. His verbal presentation supplemented the previously filed grounds for appeal.

He submitted that the decision to prosecute and to continue the action was an abuse of authority. That was so because it was discriminatory, arbitrary and conducted in bad faith. The evidence of that was that the other flight attendants on board had not been charged, which showed a disparity in treatment of his client.

The Minister's motives were also suspect. Mr. Foerster had exercised his right not to cooperate with Transport Canada and was therefore singled out and punished by Transport Canada for his actions. That was illustrated by the fact that the other flight attendants, who had cooperated, were not charged.

As Mr. Foerster had been suspended from duty by his employer as discipline for the incident, the imposition of a monetary penalty by Transport Canada amounted to double jeopardy.

The Minister did not disclose all relevant facts and evidence. The rules of natural justice could not be given effect in the circumstance. Mr. Church argued that this was shown when the Minister's witness refused to answer his questions as to whether the other flight attendants had been charged. As his defence for Mr. Foerster was in part, the disparity of his treatment compared to the others, that fact was critical to the defence and Mr. Foerster was entitled to a full answer and defence. Anything less would be to breach the rules of natural justice.

Mr. Church did not accept and continued to argue that the Minister was wrong in law in asserting that the Privacy Act prevented the witness from divulging the information regarding the charges against the other crew members.

Respondent

Ms. Caminsky presented verbal argument to supplement her written submissions.

Regarding prosecutorial discretion she maintained that the decision to assess a monetary penalty only against Mr. Foerster was a proper exercise of authority. She presented jurisprudence to support the view that courts should not attempt to act as supervisors of prosecutorial discretion and then attempt to act as an impartial arbiter of the case.

Natural justice and procedural fairness were not impaired during this hearing. Not having disclosed that others were not prosecuted was irrelevant to the issue in her opinion. In any case that information was properly withheld as its disclosure would have violated the Privacy Act.

Ms. Caminsky argued that double jeopardy does not arise in these circumstances, as internal disciplinary proceedings by an employer are separate and distinct from an enforcement action by Transport Canada. The latter was an action taken by the state to make the appellant accountable to society at large.

The fact that the other flight attendants were not charged did not give rise to discrimination or disparity of treatment in her opinion. The record showed no evidence of that. The test for an abuse of process required conspicuous evidence of improper motives or of bad faith.

Mr. Foerster's position as the in-charge flight attendant was instrumental in his treatment as the other flight attendants were obliged to follow his lead.

We were urged to uphold the decision of the review hearing Member and confirm the assessed penalty.

DISCUSSION

Tribunal jurisprudence has accepted that the vast majority of contraventions under the Aeronautics Act and the CARs are strict liability offences. This is in keeping with the pronouncement of categories of offences found in R. v. Sault Ste. Marie.[1] The Minister needs only prove the constituent elements of the offence to make out the contravention, then the onus shifts to the alleged offender to prove he took all due diligence to avoid the commission of the offence.[2]

The constituent elements of the offence were established at the review hearing. The Member found that the alleged infraction did take place. The transcript and review hearing show that there was no evidence or serious argument that would have established due diligence.

On that basis the review hearing member's decision should be upheld. However, Mr. Church asserts a different approach. At first glance there appears to be 12 grounds of appeal, but when read it actually alleges two grounds.

The first ground alleges that the Member erred in not giving effect to certain evidence and arguments. Then there are listed 11 various transgressions of the Minister which, in varying form allege prosecutorial misconduct of one sort or another.

The second ground is that the Member erred in concluding that he had no jurisdiction to alter the sanction.

Some of the grounds are overlapping, and some clearly stand alone. We have addressed by ground number those that clearly stand alone but have addressed the others in groups where the issues blend together.

The issue to be addressed is whether the review hearing Member did make the errors as alleged in the grounds of appeal. We find that there were no errors that would cause us to overturn his determination nor to vary the sanction imposed.

It appears to us that the many transgressions of the Minister to which Mr. Jardim allegedly failed to give effect are closely interrelated. Grounds 1, 2, 3 and 7, 8, 9 seem to be amenable to being addressed together as they in one form or another address conduct that is discriminatory, arbitrary, lacking good faith or not being exercised in good faith.

To paraphrase Mr. Church, the Minister's motive in charging Mr. Foerster was tainted as he was prosecuted because he failed to "fess up." He stood on his rights rather than acquiescing to the demands of the investigator. That facet gives rise to some of the other grounds, such as the abuse of authority and lacking good faith.

All the back end crew members found themselves in the same circumstance, yet Mr. Church's client was singled out for punishment. That gives rise to the questions regarding the prosecution being discriminatory and a disparity in his treatment. Having not treated everyone equally the Minister exceeded his jurisdiction. There must be a good reason to pursue a prosecution, and if there is not, it is an abuse of authority, according to Mr. Church.

We do not agree with Mr. Church's arguments. There was evidence that would support taking action against Mr. Foerster.

Primarily Mr. Foerster was the in-charge flight attendant. The evidence shows that at least two of the flight attendants consulted him regarding the continuance of service. The testimony regarding his answer varies slightly in wording but there is no doubt that he directed them to continue the service.

Part of Exhibit M-2, entitled "12. Cabin Crew", an excerpt from the company operations manual, addresses the matter. It sets out the duties of the in-charge flight attendants. Among those duties are found:

  • Provides effective leadership for the Flight Attendants
  • Applies all safety and security standards and procedures as outlined in, but not restricted, to this publication
  • Ensures that Flight Attendants under his/her command apply all safety and security standards/procedures of Air Canada...

That same section of the company operations manual also addresses the duties of the Flight Attendants. Among those duties it states:

  • Follow all directives of the In-Charge Flight Attendant...

Section 705.17 of the CARs makes it mandatory to follow the procedures specified.

The flight attendants consulted the in-charge flight attendant and did follow his directive to continue serving.

Secondarily Mr. Foerster was a very experienced cabin crew member, having been a flight attendant for ten years. One would expect more from him, than one of the others who was on temporary status with 2½ months of experience. Indeed he was mandated to provide more as it was his duty to provide effective leadership for the flight attendants, which he failed to do.

Regarding the lack of good faith arguments (3,8), the onus to prove that rests upon the person alleging it.[3] The answer of the Minister's investigator on cross-examination does seem to imply that action was taken because Mr. Foerster did not provide a defence or give any mitigation, but it falls short of proving that the action was taken in bad faith.

Ground 4

Ground 4 is dismissed. The essence of double jeopardy is that an accused, after having been convicted of one offence, should not, in respect of the same act, also be convicted of another offence. Here it is clear that the action taken by the employer and the action taken by Transport Canada both arise out of the same factual circumstances.

A Civil Aviation Tribunal case[4] canvassed the issue of double jeopardy addressing its criminal law roots. What is clear is that it speaks to multiple offences. In this instance the internal discipline by an employer cannot be equated to having been convicted of an offence. Double jeopardy does not arise in the circumstances.

Grounds 5 and 6

We have reviewed grounds 5 and 6 together as the latter flows from the former. Ground 5 states that the Minister refused to disclose all relevant facts and the evidence to the Respondent; whereas ground 6 states that because of that, the rules of natural justice were not given effect.

The Minister does have an obligation to disclose all relevant evidence. We view relevant as being relevant to the offence alleged. Whether the other flight attendants were or were not charged does not go to prove or disprove the allegation against Mr. Foerster. Whether or not they were charged is irrelevant and therefore need not have been disclosed.

Regarding Transport Canada's investigator, the Member found that she was not required to divulge the information because of the operation of the Privacy Act (transcript at p. 64).

We do not feel compelled to enquire into the propriety of the finding or the operation of the Act. As previously stated we feel that whether the flight attendants were also charged is irrelevant to Mr. Foerster's alleged offences. However Mr. Church asserts that his defence is contingent upon it. We must observe that all the flight attendants were fellow employees of Mr. Foerster. It may be that he was fully aware that they were not charged. To get that fact into evidence all the other flight attendants could have been subpoenaed on behalf of Mr. Foerster. It is trite to say that there is no property in a witness.

Indeed, one question posed on cross-examination to each of the flight attendants elicited the desired answer enabling him to advance his argument (transcript, pp. 154, 184). To elicit evidence from the others was well within counsel's control had he chosen to call them as witnesses. We are not convinced that this particular facet of his defence strategy was required to be provided by the Minister. In any event Mr. Church was not deprived of making his disparity or discriminatory arguments, as he did so, both on review and before us.

In the result we do not concur that there was any error on grounds 5 and 6.

Ground 10

Mr. Church conceded that Ms. Wokes, the Transport Canada official on the flight, did not have a legal obligation to intercede. Further we find that if there was any attempt to warn the crew, as asserted in the appeal ground, that may very well have caused additional consternation as the crew at that time were in a critical state of the flight and had no knowledge of Ms. Wokes' identity. Ms. Wokes did not permit the conduct, in the sense of condoning it. She observed it as a passenger, since she was not on board in her official capacity as a Transport Canada inspector. Ground 10 is dismissed.

Ground 11

We agree with Mr. Church that there was no evidence that Mr. Foerster had time or opportunity to take the other courses of action as suggested by the Member. The Member's assertions in that regard likely came from his own considerable experience in aircraft operation. The remarks are obiter in nature, having no direct effect on the issue of Mr. Foerster's alleged violation. As such the remarks are not an error that would cause us to overturn the decision.

Ground 12

This ground of appeal must fail. We believe that Mr. Church misunderstood the words of the Member. Mr. Jardim's statement that he could not alter the sanction was prefaced by reasons which caused him not to alter the sanction. He did have the power to do so but chose not to because of the circumstances that he had previously recited.

SANCTION

Mr. Church, in his argument regarding mitigating circumstance, reiterated the demands of the flight, emphasizing the confusion over gates, change of aircraft type, short crew complement, inexperienced crew members, and short flight time. He spoke to Mr. Foerster's unblemished record.

A review of Mr. Jardim's decision shows that he gave full consideration to those facts. Nevertheless he found that Mr. Foerster had lost sight of his priority, the safety of the passengers. Therefore, he chose not to alter the sanction.

We as the appeal panel may substitute our decision for the determination appealed against (subsection 8.1(4) of the Act). However we concur with Mr. Jardim's view of the seriousness of losing sight of the safety considerations. The quantum of the penalty is consistent with a first offence. We agree with the sanction imposed.

CONCLUSION

The appeal is dismissed. We uphold the sanction.

Reasons for Appeal Determination:

Allister Ogilvie, Vice-Chairperson

Concurred:

Dr. Samuel Birenbaum, Member
William G. McDonald, Member


[1] R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299.

[2] Harry Edward Joseph Shermet v. Minister of Transport, CAT File No. C-1021-02.

[3] Sara Blake, Administrative Law in Canada, 2d ed. at 83.

[4] Edmundo R. Sanchez v. Minister of Transport, CAT File No. O-0104-02, Appeal.

  • that he had no jurisdiction or discretion to alter Transport Canada's sanction in these circumstances.