Decisions

TATC File No. O-2740-41
MoT File No. 5504-048018

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Heli-express Aviation Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 202.13(2)


Review Determination
Samuel J. Birenbaum


Decision: July 29, 2003

I find that Heli-Express Aviation Inc. did contravene subsection 202.13(2) of the Canadian Aviation Regulations. With respect to the monetary penalty, I feel that a penalty of $1,000 indicates the seriousness we attribute to allowing an aircraft to fly without a valid certificate of registration in these special circumstances. That amount is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within fifteen days of service of this determination.

A review hearing on the above matter was held Thursday, May 8, 2003 at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

At commencement of the hearing the Minister's representative raised a motion to amend the Notice of Assessment of Monetary Penalty, dated January 3, 2003, to change the wording on line two, under count one, to state "on six occasions," instead of "on eight occasions" as previously worded. There were no objections offered to this change, and thus the Notice of Assessment of Monetary Penalty was altered to read "on six occasions." No other pre-hearing matters were brought forth at this time.

BACKGROUND

The Minister's representative indicated that on November 5, 1997, a helicopter registered C-GTDA was purchased by a company "1127220 Ontario Inc." This company was owned solely by Mr. Nuosci of Heli-Express Aviation Inc. [hereinafter Heli-Express].

A certificate of registration was confirmed in Exhibit M-1; the certificate dated March 9, 1998 indicates the registration of GTDA, a Bell Helicopter, Textron Division of Textron Inc. Model 206B, Serial No. 3130. Attached to this exhibit is a letter dated October 24, 2002, from Mr. Lindsay H. Cadenhead, Superintendent, Ontario Region for Minister of Transportation, indicating that this letter constitutes a temporary non-transferable certificate of registration, Commercial, for the helicopter in question, but is not valid beyond December 1, 2002, or until formal documents are received, whichever occurs first. Upon expiration of this certificate, or upon change of ownership of the aircraft within the period specified, the registration of the aircraft will be deemed to be cancelled. A second certificate of registration for the same aircraft, C-GTDA, was issued October 30, 2002 for helicopter 206B, Serial No. 3130 owned by Heli-Express.

Exhibit M-2 indicates a bill of sale for the helicopter, along with a lease agreement between 1127220 Ontario Inc. and Heli-Express, for the period November 5, 1997 to November 5, 2000. A further lease agreement for this aircraft is contained in section "C" of Exhibit M-2, indicating a leasing period October 28, 2002 to November 5, 2099, and this is dated at Ottawa the 19th day of March 2003.

Mr. Richard Newcombe was apprised of the situation by another inspector, Mr. Miller. On October 29, 2002 McMahon was advised that the certificate of registration for the alleged aircraft was not valid at this time. The aircraft had been flown without the certificate for approximately two years.

Journey log copies were obtained, and Exhibit M-4 indicates six flights during the period in question, when a certificate of registration was not valid. Mr. Gillespie, another Transport Canada inspector, indicated in his testimony that the original certificate of registration automatically terminates with change of ownership or when a lease terminates for the aircraft.

On cross-examination, Mr. Nuosci indicated that the company owning the aircraft and its lease are owned totally by the same person. Both the lessee and the lessor represent the same individual. Mr. Nuosci was unaware that the certificate of registration would cease to exist upon transfer of the aircraft between the two companies, both of which are owned solely by himself. He further was unaware that the change of lease, or its termination, would also render this certificate of registration, invalid.

On further cross-examination, it was determined that Mr. Nuosci's first indication that there was no certificate of registration on the aircraft occurred October 9, 2002 when he received a faxed message. He responded immediately, the following day by letter, and arranged for the development of a new lease to ensure legal custody of the aircraft was properly arranged. He alone was the decision maker, the responsible party and sole legal entity responsible.

On redirect, it was determined that upon expiry of the lease, the lessor automatically retained legal control of GTDA by virtue of the bill of sale.

Mr. Lindsay Cadenhead, Superintendent for Licensing and Registration for Transport Canada, testified that he was sent a letter on May 8, reproduced in Exhibit M-8, extending the lease from "1127220 Ontario Inc." known as the lessor to "Heli-Express Aviation Inc." until the year 2099. Superintendent Cadenhead indicated that because the lease was expired, it could no longer be extended, and legally the position was that the certificate of registration was no longer in effect for the aircraft in question.

On cross-examination, Mr. Nuosci indicated that as a result of his not being aware of the need to re-register the certificate of registration, following transfer of ownership and termination of lease, nothing bad happened, there was no change of owners, no change of legal responsibility, and in fact no harm at all occurred as a result of his actions. His intention was not to disobey, although he was unaware of the consequences that occurred.

THE LAW

Subsection 202.13(2) of the Canadian Aviation Regulations (CARs) reads as follows:

202.13 (1) This section does not apply in respect of an aircraft that is

(a) a hang glider; or

(b) a parachute.

(2) Except as otherwise authorized pursuant to subsection 202.14(1), 202.42(3) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

202.14 (1) On receipt of an application in writing, the Minister shall issue a written authorization permitting the operation in Canada of an aircraft that is not registered and in the authorization may specify conditions governing the operation of the aircraft as necessary for its safe and proper operation, where

(a) the aircraft was manufactured in Canada;

(b) the aircraft is operated by the manufacturer;

(c) the aircraft is operated within Canada for the purpose of

(i) a production test flight,

(ii) a customer acceptance flight, or

(iii) a flight undertaken to complete the manufacturing process or to export the aircraft;

(d) a registration mark has been reserved in respect of the aircraft pursuant to subsection 202.02(1);

(e) the aircraft displays its marks in accordance with section 202.01 or 202.07; and

(f) the manufacturer is qualified to be the registered owner of a Canadian aircraft pursuant to section 202.15.

[...]

202.42 [...]

(3) The Minister shall, for the purposes of a Canadian special aviation event authorized by the Minister pursuant to Subpart 3 of Part VI, authorize in writing the operation in Canada of an ultra-light aeroplane that is not registered in Canada if the sponsor meets the requirements set out in the Aircraft Marking and Registration Standards.

202.43 (1) Where an aircraft is registered in a foreign state that is not a contracting state or is not a state that has an agreement in force with Canada that allows an aircraft that is registered in that state to be operated in Canada, the Minister may, in writing, authorize the operation of the aircraft in Canada, and in the authorization may specify conditions governing the operation of the aircraft as necessary for its safe and proper operation.

EVIDENCE BY THE RESPONDENT

Mr. Dominic Nuosci testified that he is President of Heli-Express which began in 1997, and had the three-year lease on an aircraft, but that the lease was destroyed in a fire caused by arson. Mr. McMahon was employed as his chief pilot and operations manager in February 2000, and was not aware of the existence of the lease, nor that the lease had expired. It was his feeling, understanding, and belief that the lease would go on indefinitely. The insurance was in the name of both companies and when the lease expired it was his sole intention to continue the lease indefinitely and to operate the aircraft as such. He testified that he received a letter from Transport Canada on October 26, 2000, asking if there had been a change in ownership of the aircraft? He replied there had been none, as he did not feel that his ownership had changed in any way. Apprised of his cancelled certificate of registration, he immediately requested a new certificate of registration, and paid the extra amount to have it expedited.

Exhibit D-1 contains a letter dated October 26, 2000, from Transport Canada, under the name of F. Sowres, requesting information with respect to aircraft C-GTDA, particularly the full name and address of the new owner of the certificate of registration, as well as the location of the said aircraft. An immediate reply indicating no change in ownership was provided to the Minister.

CLOSING ARGUMENTS

The Minister indicated the strict liability nature of this offence, and that the Respondent had ample time to correct the mistakes made. He indicated that the sanction of $5,000 requested by the Minister at this time covered only one count, although six counts had been laid. It was necessary for this fine, in order to insure that companies adhere strictly to the Regulations.

The Respondent indicated that he did not believe at all the certificate of registration was not valid, since the two companies in question were both solely owned, and fully controlled, by him. He thought he was making an internal company alteration only, which would not nefariously affect anyone outside the organization. His company was the only one responsible at all times, there was no intent to harm, nor deceive, and he responded quickly when requests were made of him. He states that he has had no previous convictions nor fines for any infractions, however minor, and that he felt the current $5,000 fine was not deserved, under the circumstances, and would seriously affect his economic viability.

The Minister replied that it is very serious to fly an aircraft without a valid certificate of registration, and to do so knowingly.

The Respondent in this case was informed at least six months previously, by the insurance company, that there was a problem with the certificate of registration. The owners apparently were not aware of the consequences, and no action was immediately taken.

DETERMINATION

Strict liability offences require the Minister to establish, on a balance of probabilities, only that the prohibited act has been committed. In this instance Mr. Flewelling has satisfactorily set out those factors necessary to prove that the aircraft certificate of registration was not in effect for a prolonged period of time, and that the change of ownership and termination of the lease had definitely occurred. Although ignorance of the law cannot relieve an obligation, I am none the less impressed by the conduct of Mr. Nuosci and of Mr. McMahon, both of whom testified, under oath, in a direct forthright manner, that there was no intent on their part to deceive, or to avoid the small price of a new certificate of registration. They claimed, that what they did, was what any reasonable person with inadequate information might do under the circumstances, and believing that when one transfers ownership between two solely owned companies, that this is in itself not a matter deserving of serious consequences.

That the Minister needs to have all aircraft certified is obviously a key factor in regulation, certification, and ultimately aviation safety, and this represents a very serious and important part of the regulatory mechanism which the Minister must impose. I find that the Respondent, Heli-Express, is guilty of the six counts and did contravene subsection 202.13(2) of the CARs. Count #1: on the dates between October 11, 2002 and October 17, 2002, in the province of Ontario, Heli-Express operated Bell 206B helicopter C-GTDA on six occasions when the certificate of registration for the aircraft was not in force.

With respect to the monetary penalty, I feel that it is not necessary at this time to impose a penalty of $5,000 since deterrence is no longer a factor in an already apologetic Respondent, who appeared to have made several errors which on the surface do not appear to be intentional. There appears to be a need to further educate the aviation community with respect to this legislation, and the Minister's representatives may wish to consider some way of doing this. I feel that a penalty of $1,000 indicates the seriousness we attribute to allowing an aircraft to fly without a valid certificate of registration in these special circumstances.

S. Birenbaum, MD, CCFP
Member
Transportation Appeal Tribunal of Canada