Decisions

TATC File No. O-3098-41
MoT File No. PAP5504-052939

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Georgian Express Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 602.11(2), 703.02, 703.88(1)(d)

Failure to follow the procedures specified in the air operator certificate, Take-off, Omission de se conformer aux procédures spécifiées dans le certificat d'exploitation aérienne, Notice of Assessment of Monetary Penalty, Failure to follow the operations manual, Killed passengers


Review Determination
Pierre J. Beauchamp


Decision: July 5, 2007

Citation: Georgian Express Ltd. v. Canada (Minister of Transport), 2007 TATCE 16 (review)

Heard at Toronto, Ontario, on October 24-27, 2005, February 7-10 and March 13-14, 2006

Held: Counts 1, 2, 5, 6, 8, 9, 10 and 11 are dismissed. Counts 3 and 7 are upheld, but the penalty for each of these two counts is reduced to $2 000. The total amount of $4 000 is to be made payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I.          BACKGROUND

[1]     Georgian Express Ltd. has applied for a review by this Tribunal of the decision of the Minister to assess monetary penalties totalling the sum of $53 750. These monetary penalties were assessed pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2, amended by R.S., c. A-3, following the crash of its Cessna 208B Caravan (C-FAGA) operating flight GGN 126 from Pelee Island, Ontario, to Windsor, Ontario, on the afternoon of January 17, 2004.

[2]     The ill-fated aircraft struck the frozen surface of Lake Erie shortly after take-off. All 10 occupants of the aircraft were fatally injured.

[3]     The notice of assessment of monetary penalty initially alleged the contraventions of a number of designated provisions of the Canadian Aviation Regulations, SOR/96-433 (CARs), which were detailed as follows:

Offence 1

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically on flight GGN 126 you did not comply with section 2.5.2 of the company operations manual in that the aircraft exceeded the maximum take-off weight specified in the approved Aircraft Flight Manual.

Monetary Penalty Assessed: $ 5,000.00

Offence 2

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 3.7.1 (b) of the company operations manual in that the aircraft on flight GGN 126 would have exceeded the maximum landing weight specified in the approved Aircraft Flight Manual after allowing for fuel consumption to the destination or alternate.

Monetary Penalty Assessed: $ 5,000.00

Offence 3

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 2.6.1 of the company operations manual in that on flight GGN 126 two dogs were carried on board the aircraft while not being properly secured prior to flight.

Monetary Penalty Assessed: $ 5,000.00

Offence 4

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.1 (f) of the company operations manual in that the Operations Manager failed to ensure that operations on flight GGN 126 conducted in accordance with current regulations, standards and air operator policy.

Monetary Penalty Assessed: $ 5,000.00

Offence 5

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.3 (d) of the company operations manual in that the Chief Pilot failed to ensure the operational suitability of the Pelee Island aerodrome.

Monetary Penalty Assessed: $ 5,000.00

Offence 6

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.7 (c) of the company operations manual in that company pilot on flight GGN 126 failed to complete an Operational Flight Plan.

Monetary Penalty Assessed: $ 5,000.00

Offence 7

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.7 (g) of the company operations manual in that company pilot on flight GGN 125 failed to notify the company of the whereabouts of the aeroplane when away from base.

Monetary Penalty Assessed: $ 5,000.00

Offence 8

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 2.4.8 of the company operations manual in that the duty officer failed to confirm that flight GGN 125 had reached Pelee Island.

Monetary Penalty Assessed: $ 5,000.00

Offence 9

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.11 of the company operations manual in that the duty officer failed to monitor the progress of flight GGN 126 specifically the duty officer was unaware of the alternate aerodrome selected for the flight.

Monetary Penalty Assessed: $ 5,000.00

Offence 10

Canadian Aviation Regulations 703.88(1)(d), in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, where you permitted a person to act as a flight crew member when the person had not fulfilled the requirements of your ground and flight training program in that the person had not been trained in all the elements of your "Safety Awareness Program".

Monetary Penalty Assessed: $ 3,750.00

Offence 11

Canadian Aviation Regulations 602.11(2), in that on or about January 17, 2004 at or near Pelee Island, Ontario, the pilot-in-command conducted a take-off in an aircraft, a Cessna Caravan 208B, registration C-FAGA, flight GGN 126, that had ice adhering to its critical surfaces.

The company is vicariously liable pursuant to s. 8.4(2) of the Aeronautics Act which states:

The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

Monetary Penalty Assessed: $ 5,000.00

Total Monetary Penalty Assessed:                Total: $ 53,750.00 (Canadian Funds)

[4]     Following a preliminary motion by the applicant to quash this notice of assessment of monetary penalty, the Tribunal issued an order on October 26, 2005, with reasons on January 20, 2006, quashing offence 4 assessing a monetary penalty of $5 000 in relation to an alleged contravention of section 703.02 of the CARs, for failing to conduct flight operations in accordance with "current regulations, standards and air operator policy".

[5]     The hearing continued from February 7 to 10 as well as from March 13 to 14, 2006 to hear evidence on the 10 remaining alleged offences. The parties then pleaded in writing.

II.        OVERVIEW (FACTS)

[6]     Georgian Express is an air taxi operator licensed under section 703 of the CARs (703 operator). It operates a mostly cargo operation out of its main base at the Toronto-Lester B. Pearson International Airport.

[7]     In the winter of 2003-2004, it also operated a transportation (passenger and cargo) service between Pelee Island and the mainland. During most of the year, a ferry provides that service. However, because of ice conditions on Lake Erie, the ferry service does not operate between early December and early March. Owen Sound Transportation Company Limited, which is mandated by the Ontario government to provide transportation between Pelee Island and the mainland, contracts with a commercial air operator to provide air service between the Island and Windsor.

[8]     Georgian Express had provided that service during two previous winters (2000–2001 and 2001–2002), while a competitor, Sontair Limited, had provided the service the following winter (2002-2003).

[9]     Early on the morning of January 17, 2004, Georgian Express Captain Wayne Price flew his aircraft, a Cessna 208B Caravan, from Toronto-Lester B.  Pearson International Airport to Windsor. He then operated a return flight from Windsor to Pelee Island, designated as GGN 121 and 122 returning to Windsor at approximately 9:30 a.m.

[10]     He contacted the company flight follower, Kim Herbert, after these flights to report in and forwarded his arrival and departure times. Later that day, around 3:00 p.m., he again contacted her and received the terminal aerodrome forecasts (TAFs) and aviation routine weather reports (METARs) for Windsor in anticipation of his flights Windsor - Pelee Island - Windsor. The flight to Pelee Island was scheduled to depart Windsor around 4:00 p.m.

[11]     Prior to his departure for Pelee Island, he refueled his aircraft taking on 600 litres of Jet A-1 fuel which weighed approximately 1 068 pounds. He had arrived earlier that morning from Pelee Island with a total of 800 pounds of fuel on board.

[12]     The weather reports (METARS for Windsor at 2000Z, 2017Z and 2048Z) prior to his departure indicated that light snow was falling at Windsor with ceilings decreasing from 3 100 feet above ground level (AGL) at 1500Z to 800 feet overcast, at departure time.

[13]     Captain Price had his aircraft de-iced shortly before take-off and the aircraft was airborne from Windsor shortly after 4:00 p.m. for its short flight to Pelee Island, which is situated approximately 30 nautical miles to the southeast of Windsor. The aircraft entered cloud shortly after take-off and encountered icing conditions during its flight to Pelee Island.

[14]     On approach to Pelee Island, Captain Price cancelled his instrument flight rules (IFR) flight plan with Cleveland Center and carried out a direct approach into Pelee Island Airport. The aircraft landed and arrived at the airport terminal at 4:20 p.m.

[15]     The passengers deplaned, the aircraft was offloaded of its baggage and cargo in short order, and reloaded with the bags and its eight new passengers. These passengers boarded the aircraft along with two Labrador dogs belonging to two of the passengers.

[16]     The aircraft immediately departed Pelee Island. When it had failed to contact either Cleveland Centre to pick up its flight plan or Windsor tower, and following ground reports of the sound of a crash, a search was initiated. The aircraft wreckage was located a short distance from the departure runway on the frozen surface of Lake Erie. All occupants had perished.

[17]     Following the accident, there were various communications and discussions between Georgian Express and Transport Canada. During these exchanges, Georgian Express was advised that a special audit would be carried out of its operations because of the accident, but before that audit took place (January 24-26th) the company's air operator certificate (AOC) was suspended on January 22, 2004.

[18]     The Minister carried out its suspension of the AOC by withdrawing the approval of the persons occupying two key positions: Paul Leach, the chief pilot, and Lori Shaw, the operations manager.

[19]     It would be reinstated on January 27th, following the special purpose audit of Georgian Express and its acceptance on January 26th of certain operating requirements for its Pelee Island's flights, including:

-         the addition of a second person on board to assist the pilot-in-command in his duties;
-         the provision of a ladder and de-icing equipment on Pelee Island; and
-         a daily review of weather conditions by the chief pilot to assist the pilot-in-command.

[20]     While the Transportation Safety Board of Canada (TSB) was carrying out its investigation to determine the cause of the accident, Transport Canada was also carrying out its own investigation from a regulatory point of view.

[21]     On January 23, 2004, Transport Canada Inspector Jeffrey McEvoy was assigned to investigate the events surrounding the accident in order to determine whether the air carrier had breached the CARs in respect of this accident.

[22]     He visited the premises of Georgian Express on February 26, 2004. At that time, he met Paul Mulrooney, president and chief executive officer of Georgian Express, and advised him that the Aviation Enforcement Branch of Transport Canada was conducting a regulatory investigation of the events which had occurred on January 17, 2004, for possible violations of the CARs.

[23]     On September 14, 2004, Inspector McEvoy sent a letter to Georgian Express indicating the Minister was investigating possible violations of the CARs (the investigation letter) and more specifically, certain breaches flowing from the alleged failure of the company personnel to follow the procedures specified in the company operations manual and AOC.

[24]     Following various communications between counsel for the applicant and Inspector McEvoy, Transport Canada issued its notice of assessment of monetary penalty for 11 separate alleged offences under the CARs on January 11, 2005

[25]     As mentioned earlier, following a motion by the applicant to quash the said notice of assessment of monetary penalty, this Tribunal quashed offence 4, and the present decision is therefore concerned with offences 1 to 3 and 5 to 11.

III.       LAW

[26]     Section 7.7 of the Aeronautics Act reads as follows:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate

(a) the designated provision that the Minister believes has been contravened;

(b) subject to any regulations made under paragraph 7.6(1)( b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and

(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.

[27]     Section 8.4(2) of the Aeronautics Act reads as follows:

(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

[28]     Section 703.02 of the CARs reads as follows:

703.02 No air operator shall operate an aircraft under this Subpart unless the air operator complies with the conditions and operations specifications in an air operator certificate issued to that operator by the Minister pursuant to Section 703.07.

[29]     Section 703.88(1)(d) of the CARs reads as follows:

703.88 (1) Subject to subsections (6) and (7), no air operator shall permit a person to act and no person shall act as a flight crew member in an aircraft unless the person



(d) has fulfilled the requirements of the air operator's ground and flight training program.

[30]     Sections 602.11(1) and (2) of the CARs read as follows:

602.11 (1) In this section, "critical surfaces" means the wings, control surfaces, rotors, propellers, horizontal stabilizers, vertical stabilizers or any other stabilizing surface of an aircraft and, in the case of an aircraft that has rear-mounted engines, includes the upper surface of its fuselage.

(2) No person shall conduct or attempt to conduct a take-off in an aircraft that has frost, ice or snow adhering to any of its critical surfaces.

IV.       EVIDENCE

[31]     The Tribunal heard the testimony of 15 witnesses over the course of six days of hearing. The evidence covered the following areas:

-         the meteorological conditions affecting the area on January 17, 2004;
-         the overall Georgian Express operations and training procedures and their self-dispatch system;
-         the relevant events with regard to the flight operations of Captain Price that day;
-         Transport Canada's special purpose audit of Georgian Express and the results of this audit;
-         the weight and balance issues;
-         the icing issues; and
-         the training records.

A.        Meteorological Conditions

[32]     To establish the weather conditions in which the Georgian Express flights, particularly flights GGN 125 and 126 operated that day, the Minister submitted to the Tribunal the testimony of Inspector McEvoy, and a number of weather reports (exhibits M-17, AM-33 and AM-34).

[33]     In essence, the testimony and weather packages establish that southwestern Ontario, on January 17, 2004, was under the influence of a low-pressure system situated over northern Ontario, with a trough of warm air aloft (TROWAL) extending to the north-north-west. The low, with its associated warm front, was moving in a southeasterly direction throughout the period. An area of clouds and snow ahead of the trough moved into southwestern Ontario during the morning and remained throughout most of the day.

[34]     The two graphic area forecasts (GFAs) (produced as part of exhibits M-17 and AM-33), valid for southwestern Ontario from 7:00 a.m. on January 17th through to the end of the period that we are concerned with, that is after 5:00 p.m. local time, show a forecast of weather comprised of overcast layers based at 3 000 feet and topped at 18 000 feet, with visibilities of 1 to 3 statute miles (sm) in light snow as well as moderate mixed icing in cloud from 3 000 to 12 000 feet.

[35]     It is interesting to note that when Captain Price contacted the Georgian Express flight follower, Ms. Herbert, around 3:00 p.m. in anticipation of his flight, he only received from her the applicable METARS and TAFs. There was no evidence presented to the Tribunal as to whether he ever received the applicable GFAs which we just discussed.

[36]     However, he did have the latest TAFs available for Windsor at the time of his departure, which was the forecast, issued at 1730Z on January 17th, valid from the period 1800Z to 1800Z the next day. The forecast indicated surface winds at anticipated 160º true (T) at 10 knots, with a visibility of ¾ sm in light snow, ceiling overcast at 1 000 feet AGL with varying visibility temporarily between the period of 1800Z to 2400Z of 3 sm in light snow with scattered clouds at 1 500 feet AGL and overcast at 3 000 feet. From 2400Z that evening, that is 7:00 p.m. local time, the winds would veer to the south-south-west (210ºT at 10 knots) with visibilities of at least 6 sm and overcast ceiling of 1 200 feet AGL varying temporarily between the period of 2400Z to 0800Z the next morning, that is from 7:00 p.m. to 3:00 a.m., of 2 sm in light freezing drizzle and light snow.

[37]     It is interesting to note also that shortly after Captain Price's flight departed from Windsor at 4:00 p.m., a new forecast was issued for Windsor at 2115Z (4:15 p.m. local time), indicating winds from the south at 8 knots, visibility of 1½ sm in light snow with ceilings overcast at 800 feet AGL and a probability of 40 percent between the period of 2100Z to 2400Z (4:00 to 7:00 p.m. local time) of light freezing rain and fog with overcast skies at 600 feet AGL.

[38]     Looking at the TAFs for Toledo, Cleveland and Detroit for the same period of time, which would have been available to Captain Price at the time of his preparation for the flight (produced as part of exhibit M-17), they show that as far as the freezing precipitation was concerned, it was generally forecast to start and be present temporarily only between the period of 2100Z to 2400Z. For example, the Toledo forecast at 1738Z shows a "tempo" period between 2100Z and 2300Z of ¾ sm in freezing rain and snow, and this temporary period of freezing rain is moved up on the 2003Z TAF, indicating a period of 1½ sm in freezing rain and snow starting at 2000Z through to 2300Z.

[39]     The Detroit metro airport (KDET) TAF for 1732Z that day indicates a temporary period of 1 sm in light freezing drizzle and fog temporarily between the period of 2000Z to 2200Z. The 2024Z TAF for the same airport extends the freezing rain period from 2000Z now to 2300Z with 2 miles in light freezing drizzle.

B.        Observed Weather

[40]     The actual weather as reported at Windsor airport for the departure time (4:00 p.m. local time (2100Z)), indicated surface winds of 180ºT at 6 knots, visibility of 1¾ sm in light snow and skies overcast at 800 feet AGL and a temperature of -5ºC. A special observation was also taken at the airport at 2141Z. It indicated surface winds at 190ºT at 6 knots with visibility of 2 sm in light snow, light freezing rain and mist with skies overcast at 500 feet AGL.

[41]     The weather observations seem to corroborate the testimony of Georgina Haig, an Anglican priest, who was a passenger on flight GGN 125 from Windsor to Pelee Island. She testified that the aircraft entered cloud shortly after take-off and was in cloud for a portion of its flight to Pelee Island. She also indicated that she was quite fascinated to observe the formation of ice on the left wing strut during the flight in cloud. Her testimony was also to the effect that during the course of the flight, she could hear ice coming off the aircraft and sliding off. It was "[t]he same sound as when snow is melting on your car then it slides down the back of your back windshield . . . ."(transcript at 10 (February 8, 2006)).

[42]     By then, as indicated above, light snow, light freezing rain and mist were occurring at Windsor (see the special weather report at 2141Z, exhibit AM-33 at 5) and was also reported there at 2200Z as 1½ sm in light snow, light freezing rain and mist.

[43]     In fact, the freezing rain had already started falling and was reported at the Detroit metro airport located just a few miles to the north on the 2045Z sequence (see exhibit AM-34 at 2) indicating a visibility of 2 sm in light freezing rain and mist.

C.        Events

(1)       David Shea

[44]     In reconstructing the chronology of events, the Tribunal heard the testimony of David Shea, the refuelling agent for RNG Aeroservices at Windsor airport. He refuelled Captain Price's aircraft before departure out of Windsor that afternoon.

[45]     He testified that Captain Price had arrived at his refuelling station in mid-afternoon and requested that he refuel the aircraft with 300 litres of fuel. Since Mr. Shea was not too sure as to whether Captain Price's request was for 300 litres "per side" or a total fuel of 300 litres, he questioned that and Captain Price confirmed that his request was for 300 litres of fuel per side for a total fuel load of 600 litres. While Captain Price was having lunch, that amount of fuel was loaded on the aircraft between 3:23 and 3:33 p.m., as is shown on the fuel slip (exhibit M-3) which he left on the captain's seat on board the aircraft.

(2)       Georgina Haig

[46]     We also know from the uncontradicted evidence of Ms. Haig that Captain Price had his aircraft de-iced immediately after all the passengers had boarded and shortly before take-off.

[47]     Ms. Haig is a frequent flyer between Windsor and Pelee Island. She attends to her congregation on Pelee Island from her home in Leamington, and therefore commutes to the Island approximately twice a month throughout the year. In the winter of course, she makes her way to Windsor to use the air service between Windsor and Pelee Island and as such had done that flight a number of times since 1999 when she started her ministry functions on the Island.

[48]     She testified that shortly after the aircraft had been de-iced at Windsor, the flight took off and immediately entered cloud. She testified that what was unusual about this flight was that, amongst other things, she was able to observe ice forming on the wing strut which she could see from her seat through the window. She found the process quite fascinating as she could see the moisture hitting the strut and ice forming and growing thicker and thicker as more moisture hit it. She could also hear what she described as ice coming off the plane and sliding off.

[49]     Upon reaching Pelee Island, the aircraft did a straight-in approach and landed. She noted the time of arrival at the terminal as 4:20 p.m. There were many people standing outside the terminal waiting for the aircraft arrival. Once the engine was shut down and the door had been opened, she was one of the first few people to come out of the back of the aircraft. She noticed a group of people, the hunters, come around the side of the fence and then everybody was sort of milling around the aircraft, some people retrieving their personal luggage from the cargo pod which the pilot had opened, and others helping Donna Olsen, the station agent, to load the bags and cargo onto the pod from a luggage cart that she had brought over. She had heard Donna calling to the hunters and saying, "Hurry up you guys, the pilot wants to go" (transcript at 15 (February 8, 2006)).

[50]     It was a wet cold and misty day, and she went into the airport terminal to sign in. Her friends, the Friesens, with whom she would be staying that weekend, had come to the airport to pick up food and groceries that had come on the flight, and while she waited for them, she boarded the Friesens' truck, which was parked close to where the aircraft was situated. From that vantage point, she could observe the goings on around the aircraft, and she saw the hunters climb on board the aircraft. She testified that by then, she was quite happy that her luggage was going to be kept inside the vehicle, because if it had been in the back of the truck, it would have gotten quite wet because of the weather conditions. In addition, she could see thin coats of ice forming on the windshield while the wiper blades of the truck were still running.

[51]     Ms. Haig was questioned about the dogs that eventually boarded the aircraft. She testified that in the past she had observed dogs on flights between Windsor and Pelee Island and, in particular, Dakota, one of the dogs that boarded the aircraft that day. On those other occasions, the dogs were left in the cabin of the aircraft, usually by the seat which was occupied by their master. On that particular day, she did not observe whether the dogs were on a leash.

[52]     The Tribunal also heard the testimony of two other witnesses on the question of the weather conditions and events surrounding the aircraft arrival that afternoon on Pelee Island.

(3)       Ford Crawford

[53]     Ford Crawford is a long-time resident of Pelee Island, who had received the group of eight hunters that weekend at his home. He knew all the hunters, some of them he had known for over 30 years having gone to school with, in particular Larry Janik. He was naturally quite affected by the crash of the aircraft that day.

[54]     His recollection of the event was therefore quite vivid. He testified that he remembered leaving his house with the hunters around 3:45 p.m., after a successful hunt the day before and a short hunt that Saturday morning, to bring them to the airport so they could take their flight back to Windsor. His house is situated a close distance to the airport, and the drive there takes a little less than 10 minutes. When questioned as to whether he had left his house at 3:30 p.m. as he had indicated in his earlier statement to the Ontario Provincial Police (OPP), or 3:45 p.m. as he was now testifying, he indicated that his recollection was that he had left around 3:45 p.m. that day, as he did not want to be at the airport too early before departure time, and yet have enough time to be able to unload his passengers, weigh the bags and be ready for the aircraft's arrival and departure.

[55]     As far as the weather was concerned that day, he testified that in the morning, it was snowing quite heavily, a heavy wet snow, and that at departure time from his house, there was snow falling with a mixture of ice mixed with the snow. They were going to proceed to the airport in two vehicles, one of which was driven by his friend, Mr. Janik, who was a passenger on flight GGN 126. He indicated that the latter had to clean off the windshield of his van which was pointing southeast before they could leave and proceed to the airport. Once they got to the airport, the weather was progressively getting worse. After they had weighed the bags, some of the "guys" went outside for a smoke and people were coming in and out of the small terminal building while they waited for the aircraft. When he eventually went outside himself, the weather was worse, in that there were ice pellets mixed in with the rain, to the point that "you would have to brush it off your jacket … ." (transcript at 9 (February 7, 2006)).

[56]     Then, the aircraft arrived, and as he was standing outside with his friend, Mr. Janik, observing the unloading and loading of the aircraft, he saw the pilot coming around the nose of the aircraft. His friend, Mr. Janik, who was in the refrigeration business, had pointed out to Mr. Crawford that there was ice on the leading edge of the wing of the aircraft that he could see from where they were standing. As the pilot came around the nose of the aircraft, they pointed it out to him. According to Mr. Crawford, the pilot glanced at it and immediately looked at the passengers who were trying to load the cargo pod and said, "Let's go" (transcript at 9 (February 7, 2006)).

[57]     Mr. Crawford estimated that the thickness of the ice that he observed was between ⅛ and ¼ inch. The ice was on the leading edge of the left wing, which is the only place that he observed ice on the aircraft. It seemed to curl over the leading edge. That is all they could see, as they could not see the top of the wing from where they stood.

[58]     He said good-bye to the passengers as they boarded the aircraft and walked back to his van. He remembers that ice had accumulated on his jacket that he had to brush off, as well as on the windshield of the van and he had to scrape that off before being able to drive away. By the time he started driving away approximately five minutes after saying good-bye to his friends, he saw that the aircraft was taking off down the runway, and by then freezing rain was falling.

[59]     While returning to his house, he talked to his partner, neighbour and friend, and was invited to the latter's house to pick him up so that they could return to the airport to pick up the other vehicle that he had left there. It is while he was visiting his friend's house that they were advised by one of the hunters, Bill Myles, who was staying there, that the airplane had crashed. This information would soon be corroborated by a phone call from his wife. He immediately jumped back into his van to go to the shoreline to try to pick out the aircraft. By then, they could not see anything; it was foggy, there was freezing rain falling and there was just nothing visible. It was only later on that evening that they could take a bearing on where the aircraft had crashed, from the lights of the search and rescue people at the scene.

(4)       Paul Feltz

[60]     The Tribunal also heard the testimony of Paul Feltz who was outside his house when he heard the aircraft taking off. His house is situated approximately one mile east of the airport and he could hear the aircraft revving up on the runway. It was a very cold, wet, drizzly day. As the aircraft was taking off, the drizzle turned into heavy freezing rain. He then heard a sudden crunching sound, realized that he did not hear the aircraft anymore and thought that possibly the aircraft had crashed.

[61]     As soon as he heard the noise and realized there was no further sound, he got into his truck to go to the airport. By that time, the truck had a heavy layer of ice on it and he had to drive to the airport with his head sticking out of the window as the wipers had frozen to the windshield.

[62]     Under cross-examination from counsel for the applicant, Mr. Feltz reiterated that at least for the hour preceding the crash, while he was outside doing his chores, it had been a heavy, misty, cold rain. It was about the time that the aircraft was revving up for take-off on the runway or starting the engines up, that it was turning to freezing rain. He was uncertain as to when exactly in the process of the aircraft starting up, the freezing rain had started, but he was certain at least that as the aircraft was going down the runway there was definitely freezing rain falling.

(5)       Dr. Thomas Wilson

Dogs

[63]     The Tribunal also heard the testimony of Dr. Thomas Wilson, the regional supervising coroner for southwestern Ontario. Dr. Wilson supervises the 60 coroners in his area, and he was present at the scene when the aircraft wreckage was retrieved from the lake.

[64]     He testified that amongst the debris, there were two dogs recovered from the airplane wreckage in the cabin area, one of which appeared to be attached by a leash, the other end of which was on the wrist of one of the victims. The other dog was found at the back of the aircraft, and this one was not attached to anything that he could recall.

(6)       Sergeant Anthony Cristilli

Body Weights

[65]     The Minister also submitted the testimony of Detective Sergeant Anthony Cristilli who was responsible for coordinating the investigation of the crash for the OPP.

[66]     He was present on January 30, 2004 when the Canadian Coast Guard Ship Risley brought the wreckage of the aircraft as well as the bodies to the shore and he coordinated the delivery of the bodies to a temporary morgue facility. He was then present when the bodies were weighed and prepared a chart entitled "Total Weight Chart" (exhibit M-7) which details the weight of the deceased occupants of the aircraft as well as the effects that were recovered. He testified that, although certain objects might have floated away from the wreckage, he could assert with a high degree of certainty that at the location where the aircraft was recovered, the divers had spent a considerable amount of time searching the immediate area and nothing had been left behind in that area.

[67]     We next turned to the evidence relating to the performance of some of the individuals for whose actions the applicant is being charged.

(7)       Kim Herbert

[68]     Kim Herbert was the flight follower on duty on January 17, 2004; Lori Shaw was the operations manager and Captain Paul Leach, the company chief pilot. As mentioned earlier, the applicant's AOC was suspended following the accident by the withdrawing of the authority for Ms. Shaw and Captain Leach's positions.

[69]     Ms. Herbert had two conversations with Captain Price that morning, one at 7:15 a.m. after his arrival from Toronto to Windsor, and the second one around 9:30 a.m. after he had returned from his Windsor-Pelee Island-Windsor sequence of flights GGN 121 and 122.

[70]     Her duties as a flight follower include the recording of departure and arrival times and ensuring that the flights arrive at their destinations, as well as monitoring the weather and providing the pilots with the TAFs and METARs as required. Her duties do not include the interpretation of the weather but simply the provision of the weather information to the crews. As far as the weather was concerned for that day, she was not aware of forecasts of freezing rain in the area at the time of these flights.

[71]     With regard to the flight planning, she testified that under the self-dispatch system in use, the pilots fill out their operational flight plan which is a company-produced document (exhibits M-9, M-10, M-11, M-12, and M-18). The actual filing of the flight plans is carried out by the company, and in the particular case of these Windsor-Pelee Island-Windsor flights, the flight plans are centrally stored with Cleveland Centre and activated when the pilot picks up his clearance.

[72]     For tracking of the flights, the company flight follower uses a computer software program which is tied into the air traffic control (ATC) system and which indicates when the flights are operational and in the air. When a flight disappears off the screen, it is presumed to have landed. Normally, the flight follower will call the destination if the pilot has not reported in to ensure the arrival of the flight. In the particular case of these flights to Pelee Island, her testimony was to the effect that the crews would often not have the time to call the arrival into Pelee Island and would report at the end of the series of flights, as the stopover in Pelee Island is of too short duration.

(8)       Lori Shaw

[73]     Lori Shaw is Georgian Express operations manager and generally, her duties are to ensure the safe operation of the company. She is thus in charge of the supervision and the training of the flight followers, as well as overseeing all of the operations of the company.

[74]     It is in that context that when Georgian Express was awarded the charter contract to Pelee Island from the Owen Sound Transportation Company Limited, she flew to Pelee Island with Captain Leach, the company chief pilot, to assess the operational suitability of the airport at Pelee Island. There, they looked at the airport, the communications facilities at the terminal office, the runway, the lighting as well as ramp access. Since there was no de-icing facility at the airport, the flight crews were instructed not to land at Pelee Island when there was a possibility that the aircraft would pick up ice. As well, if ice had been picked up while the aircraft was on the ground, they were instructed that they would have to remain there at the airport until the ice could be taken off.

(9)       Captain Paul Leach

[75]     Captain Leach was, at the time of the accident, Georgian Express chief pilot. His duties, enumerated in the company operations manual, essentially related to the supervision of Air Georgian flight crews. He answered, in the chain of command, to the operations manager and was responsible for the professional standards of the flight crews under his supervision. Therefore, amongst other duties, he supervised the flight crews' training and was also charged with ensuring the operational suitability of all aerodromes and routes served by the company.

[76]     Georgian Express operated under a self-dispatch flight system. That meant that ultimately the pilot-in-command of each flight retained responsibility to decide whether the flight he was charged with could be dispatched, that is, flown or operated. In that decision-making process, the pilot had no obligation to receive the go-ahead from an operations centre prior to starting his flight. This also meant that the pilots were responsible for:

-         ensuring the conditions for flight were suitable;
-         filling out all of the forms involved with carrying out the flight, including pre-departure flight plan, the calculation of the weight and balance of the aircraft; and
-         ensuring the weather conditions, as well as icing conditions, were such that they could adhere to the clean wing concept prior to departure of their flight.

[77]     To ensure that the pilots were able to carry out these duties properly, Georgian Express was required by the CARs to have a training system in place to ensure the appropriate training of the pilots. Captain Leach had thus participated in the training of Captain Price.

[78]     Captain Leach had first been made aware of Captain Price at the time of the start-up of the Pelee Island operation when it was determined that Georgian Express might require two additional captains to carry out that contract that winter. Captain Price at the time operated as first officer on a Beech 1900 for Air Georgian. His previous experience included working for a northern Manitoba operator as captain on a Cessna 208B Caravan for one year, and he therefore seemed a suitable candidate to Georgian Express to fill the position of captain on the upcoming contract. In addition to his past flying experience and present performance with Air Georgian, Captain Price had been a police officer in British Columbia before coming to Air Georgian, presented himself very well and had proven to be a well-liked, prudent and professional employee for Air Georgian, prior to coming to Georgian Express.

[79]     Captain Price had therefore been submitted to and passed a conversion training course on the Cessna 208B Caravan for Georgian Express. His training included training on the use of the company forms, such as the weight and balance calculations and the flight plans used by the company which were very similar to the ones already in use at Air Georgian. He had also completed a course on aircraft de-icing and icing operations awareness in flight. Captain Leach participated in this particular aspect of his training, and this icing training had also been re-examined in the context of his last pilot proficiency check (PPC) carried out by an approved check pilot, Don Burton, on November 30, 2003.

[80]     According to Captain Leach, following this training, it was quite clear that Georgian Express pilots were trained in all aspects of icing operations with the Caravan aircraft, were aware of the clean wing concept and of the prohibition of conducting a take-off if ice was adhering to any critical surface of the aircraft or with any level of contamination on the aircraft. The pilots were therefore authorized and expected to make the correct decisions with regard to the de-icing of the aircraft, and there were no limitations imposed upon those decisions of any kind by the operator.

[81]     To ensure that the pilots were conforming to the CARs and the company standard operating procedures (SOPs), Captain Leach's duties included the carrying out of a self-auditing system, where he would examine random samples of operational flight plans and the associated documentation including weight and balance and weather information relating to these flights.

[82]     This self-auditing process was also going on and being carried out by other staff members of Georgian Express, and in particular by quality control staff. Following such reviews, there were two requests made and addressed to Captain Price via the internal e-mail system. In one instance, Captain Leach had addressed the question of the necessity of using the exact required wording in the aircraft journey logbook to describe work carried out by the pilot in converting the aircraft from the passenger configuration to the cargo configuration and vice-versa.

[83]     A second request had been made through this e-mail system to Captain Price in relation to his recurrent annual ground training program. This had been a request made in error because, although Captain Price in his previous occupation as a first officer on the Beech 1900 for Air Georgian would have been required under this other AOC (for Air Georgian) to carry out annual recurrent ground training, this was not a requirement in the context of the Georgian Express operation. There had been no other requests made of Captain Price for correction in the context of this self-auditing system.

[84]     Finally, pursuant to the duties assigned to him, Captain Leach had flown to Pelee Island with the operations manager, Ms. Shaw, to assess the suitability of the operation there. He had examined the approach aids, the runway conditions as well as the suitability of the airport terminal and had determined that the Island airport met the requirements for Georgian Express to carry out its regular charter operation there.

[85]     Since there were no de-icing facilities on the Island, Georgian Express had devised a policy to cater to that situation. That policy involved instructions to the pilots that for the 2003 operation, as well as in previous years, not to depart from Pelee Island if any ice conditions had occurred either inbound or on the ground at Pelee Island until that ice could be removed. If ice was picked up inbound, the crew was to turn around and return to Windsor or whatever suitable alternate was available, but not to continue inbound into Pelee Island under these conditions.

D.        Past Reviews of the Applicant's Operations

[86]     In general terms, it can be said from the testimony heard from a number of Transport Canada inspectors that the applicant's past performance prior to that fateful day had been excellent. This also appeared to be the case following a special purpose audit carried out a week after the accident (January 24-26th) by Michael R. Stephenson, regional manager of Commercial Air Services for Transport Canada and directed by Inspector Joseph Szwalek and his team.

[87]     The Tribunal heard the testimony of Inspectors David Kyro, Szwalek, David Welsh and McEvoy. All these Transport Canada inspectors had dealings with the applicant since shortly after its incorporation in May 2000 through the investigation carried out by Inspector McEvoy following the accident.

[88]     Inspector McEvoy's investigation took a period of approximately one year to complete. It was carried out in the context of regulatory enforcement and culminated in the notice of assessment of monetary penalty which is the subject matter of this decision.

[89]     Inspectors Kyro, Szwalek, Welsh and Stephenson had dealings with the applicant in the context of the supervision of its operation over the past four years.

(1)       David Welsh

[90]     David Welsh is a Transport Canada inspector who was assigned as the audit manager of the first audit carried out on Georgian Express shortly after it started its operations in 2000. The audit was scheduled to be carried out on what is now commonly referred to as 9/11, that is on September 11, 2001. Because of the events that transpired that day and their impact on the whole North American transportation infrastructure, the scheduled audit was shortened although it was continued over the course of the next two days. Therefore, the audit did not cover all of the items that are normally covered during such an audit, as:

-         no in-flight checks were carried out on its crews because aircraft movements were shut down;
-         few checks were carried out on aircraft on the ramp and its ramp operations because of the limited number of aircraft movement that occurred following these events; and
-         only approximately one half of the operator's documentation normally reviewed was actually examined.

In all other aspects, the inspection did cover most of the subject matter normally examined.

[91]     As a result of that audit, there were no operational findings made which needed correction by the company. In his testimony, Inspector Welsh admitted that it was somewhat unusual that an operator of that size would do so well. The flight crew documentation as well as the company general training program and the training files were examined and found to meet all the regulatory standards. Inspector Welsh concluded in saying that although only a limited number of documents had been examined, he was satisfied that the audit had met its purpose and that in the event that the examination of the documentation as well as the training records and the general operations of the company had raised any questions or "red flags", the audit team would have returned to carry out a further examination. In fact, no such red flags were raised. The team found that the company met Transport Canada's requirements in all of its aspects, including the training it provided to its crews, the supervision of the crews, the review of the operational flight plans and weight and balance calculations of the operator. In all these cases, there were no operational findings.

[92]     It was therefore admitted that no concerns were transmitted to the operator following that audit and it was anticipated that there would be no other audits carried out until the next scheduled audit which would normally be held in a timeframe of approximately three years. Therefore, by January 2004, the applicant was scheduled to be submitted to another standard audit at that time and, following the accident, a special purpose audit was then scheduled.

(2)       Joseph M. Szwalek

[93]     Inspector Szwalek, like Inspector Welsh, had been with Transport Canada for over 19 years when he was assigned to carry out the special purpose audit of the applicant in January 2004. He held the position of regional manager of Commercial and Business Aviation for the region of Ontario for Transport Canada. The purpose of that special purpose audit which, by definition, is one that is not carried out in the context of the regularly scheduled inspections, was to examine the company operations to ensure that the company was in fact complying with the CARs. A special purpose audit therefore covers the same elements as a normal audit.

[94]     Of particular interest to the audit team was the examination of the company flight operations in relation to the way flight crews filed their flight plans, carried out their weight and balance calculations, the training they received and the application of that training to their operations under icing conditions. These issues apparently had been raised by the Transport Canada observer assigned to the TSB investigation team, and these concerns were being communicated by him to headquarters following the preliminary findings of the investigation team after the accident.

[95]     However, it turned out that, based on the review the team carried out on the manner in which the past flight plans had been filled out by crews and filed, there appeared to be no concerns about Georgian Express aircraft taking off overweight, and whether flight plans were being properly completed. During the examination of these flight plans, the team was able to do a random sampling of flight plans, check the actual weather and terminal forecasts, and it was established that there were no concerns that Georgian Express aircraft were routinely flying into known icing conditions.

[96]     Furthermore, the audit team took pains to examine all of the training records of the flight crews of Georgian Express during the course of that particular audit, and there were no concerns raised there.

[97]     They also looked at the company dispatch service and flight following operations, and not only did they express no concerns there, they were in fact impressed with the flight following system that the applicant had put into place. The overall assessment of Georgian Express operations after January 2004 was therefore that it was a good audit, that it was a safe operation, and that the company was complying with its operations manual.

(3)       David Kyro

[98]     David Kyro was the principal operations inspector assigned by Transport Canada to the applicant, and had been overseeing the operations of Georgian Express since 2001.

[99]     Although Inspector Kyro had only been with Transport Canada for five years, he had substantial experience with 703 operators, having in a sense been born in the aviation and commercial aviation industry. His father had started in commercial operations at the time he was born in 1954 and he literally grew up in that sort of environment, having flown a number of aircraft and accumulated at least, as far as turbine operations are concerned, around 3 000 hours of flying time on aircraft similar to the Cessna Caravan, the DHC3 Turbo Otter, Twin Otter, as well as the Caravan.

[100]     His duties with the company included dealing with the operations manager, the chief pilot, and with their day-to-day concerns, overseeing their operations manual amendments and approvals, as well as their SOPs, carrying out ramp inspections and in-flight inspections.

[101]     Through the course of these years of overseeing the operations of the applicant, only minor issues had ever been raised by him, which had been immediately attended to by Georgian Express staff. At the time of the special purpose audit, there were no outstanding regulatory issues that had not been dealt with.

[102]     These were the principal players heard by the Tribunal on the relevant facts relating to the general operations of the applicant and of the events of January 17, 2004.

[103]     As mentioned earlier, the Tribunal also heard the testimony of Inspector McEvoy, who was the Transport Canada inspector charged with the regulatory investigation of the applicant, Mr. Mulrooney, the applicant's president and chief executive officer, and Eric Edmondson, its vice-president of Operations, on the specifics of these charges.

V.        ARGUMENT

A.        Minister's Position

[104]     In general terms, the Minister submits that the applicant operated primarily a cargo operation at the time of the accident. Its cargo operation comprised 85 percent of its business, the rest being made up of on-demand charters.

[105]     The Pelee Island operation fell into this last category, but in fact consisted of a regular charter operation carrying passengers point to point on a seasonal basis. As such, the Pelee Island flights were "atypical" of the type of business Georgian Express regularly conducted.

[106]     Furthermore, Georgian Express runs a pilot self-dispatch operational system. That means that it is up to the pilot-in-command to determine ultimately whether the particular flight the pilot is operating should proceed. In making that determination, the pilot is expected to consider a series of factors including weather conditions and in that context, it is essential that the pilot receive all the support he needs from the company.

[107]     According to the Minister, Captain Price did not have that support. Considering the short interval between the flight arrival at Pelee Island and its scheduled departure time, the Minister submits that the pilot was expected to unload the passengers and cargo, load other passengers and cargo onto the aircraft, fill out all of the appropriate documentation, including the operational flight plan, calculate the weight and balance, check the weather, conduct the physical inspection of the aircraft and then depart, all this within a time span of approximately 10 minutes. Since he had no assistance from anyone to carry out these duties, he had all the responsibility, and little or no support.

[108]     According to the Minister, all of these factors were remedied after the accident and, therefore, the applicant cannot convincingly argue that its Pelee Island operation met the test of due diligence by placing the entire burden of decision-making on the pilot-in-command without the commensurate support required from the company.

(1)       Due Diligence

[109]     The Minister argues that offences such as the ones created under the Aeronautics Act and the CARs, and more specifically the 10 offences examined here, have been classified as strict liability offences (R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299). This means that once the actus reus or delictual act has been established, the onus shifts onto the alleged offender to avoid liability by proving on a balance of probabilities that the alleged offender took all reasonable care to avoid the commission of the offence.

[110]     This therefore involves a consideration of what a reasonable person would have done under the circumstances, and whether the alleged offender took all reasonable steps to avoid the particular events that gave rise, in this case, to the assessment of monetary penalties.

[111]     At page 7 of the Minister's arguments, the Minister further submits, relying on R. v. Gonder (1981), 62 C.C.C. (2d) 326, that unlike common law duties of care,

… a duty of care arising from public welfare statutes is owed to the public, not just to specific individuals. The scope of the duty is derived from the overriding objectives of the statutes, the specific statutory provisions and the nature of harm inherent to the activities undertaken by the business.

[112]     Therefore, according to the Minister, when the applicant entered this regulated activity by obtaining its AOC, it was deemed to have accepted certain terms and conditions applicable to those who act within this regulated sphere. Chief amongst these implied terms was that its conduct would comply with and maintain a certain minimum standard of care (see R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 at 239, cited at page 8 of the Minister's arguments). The Minister stated that "[t]he concept is that those persons who enter a regulated field are in the best position to control the harm which may result, and that they should, there, be held responsible for it". Thus, the applicant was in the best position to control its own activity and was under the obligation to regulate its own activities with careful vigilance.

[113]     Now the ultimate test is a degree of due diligence required in the circumstances of each case. While the company was entitled to use a self-dispatch system, it retained the ultimate responsibility for the safety of its operations and, therefore, it cannot argue that the underlying causes of the accident were beyond its control because it used a pilot self-dispatch system. It was incumbent on the company to ensure that all necessary support was available to the pilot. It failed to do so.

[114]     Relying on Gonder, cited above in ¶ [111], the Minister argues that since the reasonableness of care is inextricably related to the special circumstances of each case, the required degree of care must vary in accordance with the special circumstances of each factual setting.

[115]     The applicant in the context of its Pelee Island operation was now providing a passenger service and had failed to adjust its operations from its normal operations of delivery of cargo. Since the potential harm is far greater when dealing with passenger service, its regular self-dispatch system ought to have been modified. In failing to do that, it could not successfully plead the defence of reasonable care since it had not established that there was no reasonable feasible alternative that might have avoided or minimized injury to others.

[116]     On the contrary, since it amended its operations after the accident in order to be able to re-establish its AOC, the steps it negotiated with the Minister and implemented, such as the provision on Pelee Island of de-icing equipment for the aircraft, the daily supervision by the chief pilot of the operating weather, the assistance provided to the pilot-in-command by the addition of a person assigned on board with duties to provide whatever assistance the pilot-in-command required, were all steps that could have been taken before the accident to assist Captain Price and provide greater oversight of his decision-making process.

[117]     In short, a severe plane crash had taken the lives of 10 people. Regardless of how well Georgian Express had performed during the audits that the Minister had carried out, the applicant had to show specific acts with respect to the Pelee Island operations to show particular due diligence.

[118]     In Grain Growers Export Co. v. Canada Steampship Lines Ltd. (1918), 43 O.L.R. 330 at 34-45 (Ont. App. Div.) (also cited in the Minister's arguments at 16-17), Hodgins J.A. said that due diligence entails: ". . . not merely a praiseworthy or sincere, though unsuccessful, effort, but such an intelligent and efficient attempt as shall make it so, as far as diligence can secure it". The "make it so" expression actually related in that case to the obligation of an operator to make its ship seaworthy.

B.        Applicant's Position

[119]     The applicant takes a two-pronged approach in defence to the Minister's case.

(1)       Drafting of the Offences

[120]     First, the applicant argues that offences 1 to 3 and 5 to 9 are fatally flawed as drafted, as they charge the applicant with its failure to follow its operations manual. However, in all cases, the failures alleged in the offences entail, if proven, defects or a lack of diligence from specific individuals who should have been charged directly, not the applicant.

[121]     Since the obligations imposed by section 703.02 of the CARs are solely obligations imposed on the operator and since the CARs draw a distinction between the actions of the air operator and actions of operational personnel, "it is illogical to suggest that [for example, at offence 6 (failing to file a flight plan)] a company pilot is an "air operator" within the meaning of the AOC" (applicant's arguments at 14).

[122]     Therefore, since the obligation is imposed on the pilot by the operations manual, and since the pilot is not the company (the air operator), Georgian Express cannot be liable under section 703.02 of the CARs for a contravention that does not impose a specific obligation on it.

[123]     The applicant in essence submits that an air operator may be proceeded against under section 703.02 of the CARs, but only in circumstances where the offence is framed as an alleged violation of an obligation specifically imposed upon the air operator. For example, the obligation of the air operator to ensure the requirements of its ground and air training programs are met before permitting a person to act as a crew member (offence 10).

[124]     The applicant further argues that an air operator may be liable for a contravention committed by operations personnel in circumstances where the conditions of section 8.4(2) of the Aeronautics Act are satisfied.

[125]     However, the applicant submits that as the violation of this section is only alleged in relation to offence 11 (take-off in an aircraft that had ice adhering to its critical surfaces), it cannot be applied to the other alleged infractions.

[126]     The applicant thus argues that the Minister has made a fundamental error in framing offences 1 to 3 and 5 to 9, and since the alleged offences are defective in their framing, it must live with the offences as labelled and they should all be dismissed.

(2)       Due Diligence

[127]     The applicant submits that although the Minister has argued that the degree of knowledge and skill expected of Georgian Express is not that of an ordinary person but of a skilled and experienced air operator, the Minister has called no expert evidence as to what would be expected of a skilled and experienced air operator and, more particularly, how Georgian Express, in this case, fell below the standard prior to January 17, 2004. Therefore, the applicant argues at page 16 of its arguments that the Tribunal is "bereft of evidence that a higher standard prevailed in the industry". Therefore, the argument is that such evidence evidently does not exist.

[128]     Furthermore, since the Minister has argued that due diligence must be shown in respect to the factual circumstances underlying each offence, the applicant examines the "problematic" aspects of the Minister's due diligence argument under four headings:

(a)  the reliance on post-accident measures to establish a standard of care;
(b) the complete lack of expert evidence called to establish the standard of care;
(c)  the legal standard of due diligence; and
(d) the allegation that Georgian Express did not support its pilots.

(a)                    Post-Accident Measures

[129]     The applicant submits that the Minister would require the Tribunal to gage the applicant's performance in the light of some very high standard of care of which, firstly, there is no proof and, secondly, would be exemplified or found in a letter written by Mr. Edmondson, vice-president, Operations, for Georgian Express, on January 26, 2004 to Inspector Szwalek, regional manager, Commercial and Business Aviation for Transport Canada (exhibit M-40).

[130]     The applicant submits that the correct evaluation of the applicable standard, which it argues it was diligently meeting, must not be based on some unrealistic standard of perfection. Therefore, the applicant argues that post-accident measures may not be used as evidence of the required standard of care. The post-accident measures are but of a limited use and should not be deemed to constitute admissions of liability. Therefore, the taking of the steps proposed in the Edmondson letter must not lead the Tribunal to the inference and conclusion that the operation of the applicant was unsafe in their absence.

[131]     Given the context of this letter, which was produced following meetings and negotiations between the applicant and Transport Canada following the suspension of the applicant's AOC, and submitted with a view to re-establishing the applicant's operation, it certainly cannot be said that these post-accident measures were entirely voluntary.

[132]     Furthermore, the applicant submits that by the specific terms in the letter, it is clear that the procedures that were being considered by Transport Canada and the applicant were going to be put in place above and beyond those that were normally required by the regulator, to ease the start-up process.

[133]     The applicant submits that it is not unusual for the lessons learned from an accident to result in changes to operating procedures and regulatory standards. However, new post-accident measures should not be brought back in time and used to measure the diligence of an operator on the day of the accident.

[134]     Finally, the applicant argues that no causation has been established between the accident and the lack of these additional measures taken after the accident and to argue, as does the Minister, that had these measures been in place, they may well have prevented this accident, is but mere speculation.

(b)        Lack of Expert Evidence

[135]     The applicant submits that the only evidence presented to the Tribunal on the standard of care or the due diligence that Georgian Express should have exhibited prior to the accident was produced by Inspector McEvoy.

[136]     However, the applicant argues that Inspector McEvoy's evidence cannot be relied upon to establish a standard of care. He has only 300 hours turbine time, is not checked out on the Caravan and has no experience either with a 703 operator, such as the applicant or even a 705 operator, which would be a major airline.

[137]     In fact, of all the flight personnel to give evidence, Inspector McEvoy had by far the least amount of relevant flying time and experience. By contrast, the other inspectors from the Minister had the relevant experience and expertise. Inspector Szwalek, who headed up the operational side of the special purpose audit had worked with Transport Canada for nearly 20 years; prior to that, he had worked with a number of 703 operators. Inspector Kyro, Georgian Express principal inspector, had substantial previous 703 operator experience and had approximately 12 500 hours flight time including 3 000 hours turbine time with 900 hours on the Cessna Caravan.

[138]     On the other hand, the witnesses who testified on behalf of the applicant, for example, Mr. Mulrooney, Georgian Express president and chief executive officer, obtained his pilot licence in 1975 and had worked for a number of 703 operators before becoming president of Air Georgian. He had over 10 000 hours of flight time, including 3 500 hours on turbine aircraft. Mr. Edmondson, Georgian Express vice-president, Flight Operations, had approximately 6 800 hours of flight time, 6 000 of which were on turbine aircraft. He was also very familiar with the Pelee Island operations having flown there over 100 times. Finally, Mr. Leach, Georgian Express chief pilot at the time of the crash, had had a licence since 1994, had worked as a pilot, check pilot and training captain for various operators and accumulated 4 000 hours of flight time including 3 000 turbine time.

[139]     Furthermore, Inspector McEvoy, being the Minister's principal charging witness as well as the investigating officer whose investigative work resulted in the notice of assessment of monetary penalty, could not be both the advocate and an expert witness. Inspector McEvoy, being a party to the proceedings, his evidence could not serve as expert evidence, lacking a neutral and impartial manner. To quote Sopinka J.'s textbook on evidence, "the expert witness should provide independent assistance to the court and should not assume the role of an advocate" (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Canada: Butterworths, 1999) at 624; cited at page 24 of the applicant's arguments).

[140]     As Inspector McEvoy's testimony therefore lacked both the quality (limited experience) and impartiality required, to the extent that the Minister relied upon his evidence to establish a standard of care exceeding the regulatory standard, that evidence should be rejected.

(c)        Legal Standard for Due Diligence

[141]     Also, in its last general argument before proceeding to the specifics of the Minister's case, the applicant submits that the Gonder case, cited above in ¶ [111] and relied upon by the Minister, must be distinguished from the facts present in the case at bar, since in that case, the learned judge had found that there was no common standard of care, and so he was obliged to focus on the particular circumstances of the case. In the present case, the applicant submits that there is a standard of care common to the carriage of passengers by air. There is a recognized public interest in maintaining high standards, and these standards are set out by the Minister, and air operations are conducted only in accordance with them. In short, the general standard of care in the industry is already high in order to take account of the great public trust vested in the operators, and there are no "special circumstances" that justify making that already high standard even higher in the case of this particular flight.

[142]     The applicant therefore submits that the standard of care proposed by the Minister in the examination of the duties and imposed on the applicant in this particular case is not the existing high standard that is practised by Georgian Express, but rather a standard that demands virtual perfection based on a retrospective view as to measures that could or might have prevented this particular accident. The applicant submits that such a standard is unreasonable and not well founded in law and therefore should be rejected.

(d)       Lack of Support

[143]     Finally, the applicant submits that the Minister's written submissions made a number of allegations to the effect that Georgian Express did not provide sufficient support to its pilots with regard to the Pelee Island operation.

[144]     The Minister intimated that the pilot-in-command for that flight had all the responsibilities (particularly under a pilot self-dispatch system) and had little or no support. For example, there was no maintenance, no fixed-base operator on the Island, no heated hangars, etc. However, the applicant argues that there is no such requirement in the CARs for 703 operators to have maintenance facilities, de-icing equipment or heated hangars or a contract with a fixed-base operator at every point of destination. The applicant submits that Pelee Island was an intermediate stop, not a final destination and that as such, aircraft are never scheduled to be at Pelee Island overnight. Furthermore, there had been no evidence that a Georgian Express aircraft had ever been stranded on Pelee Island overnight and therefore quite apart from the regulatory requirements, there was no evidence called by the Minister to support the contention that Georgian Express' approach to Pelee Island operations was below the standard expected of a skilled and experienced air operator.

[145]     Furthermore, on the alleged "10-minute turnaround time", the applicant submits that the uncontradicted evidence of the chief pilot, Captain Leach, was that the pilots were required to take as much time as they needed in order to complete all their duties. The scheduled departure times were there only to provide the passengers with an indication as to when to show up at the airport. There was no evidence before the Tribunal that pilots were pressured to meet a flight schedule. Quite to the contrary, the pilots interviewed by Inspector Szwalek during the special purpose audit specifically denied being submitted to any pressure to fly.

[146]     In addition, Ms. Olson was there to assist the pilot with loading of passengers and cargo, as indeed the evidence showed for that particular flight.

[147]     As far as the pilot's responsibilities, including the walk-around, the check of weather and the completion of the operational flight plan, the applicant submits that since the pilot had already just flown in from Windsor, he would have been aware of what the weather was and the weather that would be encountered, and that he would have checked the latest forecast prior to the 15-minute flight from Pelee Island to Windsor. A review of the earlier operational flight plans (exhibits M-10 and M-11) demonstrated that Captain Price had sufficient time to complete his duties for the morning flights which had the same turnaround time.

[148]     Finally, the applicant's witnesses who testified generally on the subject matter of the Pelee Island operations, Messrs. Mulrooney, Edmondson and Leach as well as Ms. Shaw, were never questioned directly as to whether that 10-minute turnaround time was insufficient to complete the duties. The failure of the Minister to touch on that subject with these witnesses as well as the complete lack of expert evidence on the subject matter left the Tribunal with no reliable evidence on which to judge the adequacy of that particular operation.

VI.       DISCUSSION

[149]     Before proceeding to the specifics of the 10 alleged offences under review, some basic issues raised require consideration.

A.        Vicarious Liability and the Distinction in the CARs between Obligations
Imposed on the Air Operator and Obligations Imposed on the Employees of the Operator

[150]     As mentioned above, the applicant first argues that offences 1 to 3 and 5 to 9 are basically flawed as the alleged infractions are charged to the operator (Georgian Express), whereas in fact the wrongful acts or omissions were carried out by its employees who had specific obligations imposed upon them by the CARs and as such should have been charged personally. Since they were not charged and it is now too late to do so, these charges against the applicant are basically deficient and must be dismissed.

[151]     The applicant differentiates this type of liability from the vicarious liability arising out of section 8.4(2) of the Aeronautics Act, which it argues is in fact only alleged in the context of offence 11.

[152]     In the case of the said eight offences, "the duties imposed by section 703.02 of the CARs, namely, compliance with the conditions and operations specifications of the air operator certificate, are clearly those of Georgian Express and only Georgian Express" (applicant's arguments at 15).

[153]     It is submitted that the alleged offences  1 to 3 and 5 to 9 of the notice arise out of obligations imposed upon operations personnel such as the pilot-in-command, the flight follower and the chief pilot. Since there is a clear dichotomy in the CARs between the obligations imposed on the air operator (section 703.02) and the obligations imposed on the operations personnel (section 703.14), the applicant cannot be liable under section 703.02 for alleged infractions committed by its operations personnel who was specifically charged with these duties. Therefore, the applicant submits, Georgian Express cannot be liable under section 703.02 and paragraph (a) of its AOC for a contravention of a section of its operations manual that does not impose a specific obligation on it.

[154]     First, let us deal with the answer to this argument provided by the Minister. In rebuttal, the Minister claims that the notice of assessment of monetary penalty as drafted imports the duties of section 8.4(2) of the Aeronautics Act to all of the offences. The Minister states at page 3 of its response to the applicant's arguments that "[t]he Notice of Assessment of Monetary Penalty sets out 11 offences and at the end cites s. 8.4 (2) of the Aeronautics Act in reliance of that provision for the entire notice, not simply offence 11. It is clear on the face of the Notice of Assessment of Monetary Penalty that s. 8.4(2) is being relied on".

[155]     With respect, I disagree with the Minister's view that by alleging this section in this way, that is, following the description of the offence alleged at the first paragraph of offence 11, that the company is vicariously liable pursuant to section 8.4(2) of the Act in the context of all previously alleged offences. It is to be noted that I am speaking here of the location or "situs" in the text of this allegation of vicarious liability.

[156]     It is obvious from a simple reading of the text of the notice of assessment of monetary penalty and the way offence 11 is structured and drafted, that the issue of vicarious liability under section 8.4(2) of the Act is only invoked in relation to this particular offence. One simply has to go to the last paragraph of offence 11 to see that following the allegation of vicarious liability, the applicant (the company) is charged with a monetary penalty assessment of $5 000.

[157]     Had the drafter of this notice of assessment of monetary penalty wanted to import the application of section 8.4(2) of the Act to all the alleged offences, he would have had to include it in each offence or as a general statement following all 11 alleged offences, for example, immediately preceding the last statement of the present notice stating: "Total Monetary Penalty Assessed: Total: $53,750.00 (Canadian Funds)".

[158]     However, does this mean that in the case at bar, because of this flaw in the designation of the alleged offences, the applicant cannot be held responsible for any of the offences charged against it, even if proven, for failures of its operational personnel to abide by the CARs? I think not.

[159]     Does it mean that the Minister cannot rely on section 8.4(2) of the Act to import an automatic liability on the applicant if he proves the actus reus (the delictual act) on the balance of probabilities?

[160]     In Canada (Minister of Transport) v. Northern Airlink Ltd., [1998], review determination, CAT file no. W-1586-41, [1998] C.A.T.D. no. 41 (QL), the member of this Tribunal was confronted with a somewhat similar dilemma. The operator (Northern Airlink Ltd.) of a Cessna 206 was charged, amongst other counts, with permitting the take-off of an aircraft in an overweight condition and for failing to make certain required logbook entries. The pilot-in-command of the aircraft was also president and sole shareholder of the company holding the AOC, and he was also charged with failing to make entries in the logbook of the aircraft.

[161]     In this case, the Minister in drafting the different counts describing the alleged offences, having referred in its notice to the sections of the CARs applicable to each count, had failed to include any reference to section 8.4 of the Act.

[162]     The Tribunal member stated that:

¶ 87         It can be seen that in each of these three counts, as worded, the person identified as being responsible is not the person alleged in the offence. Counts 2 and 4 allege N.A.L. as operator to be responsible and count 3 alleges Mr. C. Falsnes to be responsible. In argument at count 3, the Minister asserted that Mr. Falsnes was responsible through the operation of section 8.4 of the Act.

¶ 88         That section addresses what may be known as vicarious liability. That term is not defined by the Act or CARs, but Black's Law Dictionary describes it as: "Indirect legal responsibility; for example, the liability of an employer for the acts of an employee".

¶ 89         Section 8.4 of the Act establishes the legal link between the person acting and the person ultimately responsible. The subsections of 8.4 provide reference to (1) the registered owner of an aircraft, (2) the operator of an aircraft, (3) the pilot-in-command of an aircraft, and (4) the operator of an aerodrome. These subsections allow proceedings to be taken against the particular entity (1)-(4) for an offence in relation to the aircraft, for which another person is subject to be proceeded against.

¶ 90         The Notice of Assessment of Monetary Penalty did not include any reference to reliance upon section 8.4 of the Act. Mr. McFarlane only raised it in argument and then only in reference to count 3.

(references omitted)

[163]     The member reviewed past decisions of this Tribunal dealing with this section and the concept of vicarious liability.

[164]     Two of these cases, Lindbergh's Air Service v. Canada (Minister of Transport), [1987], review determination, CAT file no. O-0025-10, [1987] C.A.T.D. no. 51 (QL) and Clarkson v. Canada (Minister of Transport), [1994], review determination, CAT file no. C-0347-10, [1994] C.A.T.D. no. 10 (QL), involved notices of suspension in which the Minister's reliance on section 8.4 of the Act was clearly expressed.

[165]     In another case, Gartner v. Canada (Minister of Transport), [1997], appeal determination, CAT file no. W-1278-02, [1997] C.A.T.D. no. 11 (QL), there had been no notice of reliance upon section 8.4 in the notice of suspension and the appeal panel stated:

¶ 65         This appeal has been determined on grounds other than that concerning the adequacy of the Notice of Suspension or disclosure. In view of the foregoing analysis, however, the Appeal Panel found that the tenets of procedural fairness and natural justice would require the Minister to reveal expressly his reliance upon the vicarious liability section, whether by inclusion in the Notice of Suspension or clear expression in the disclosure package.

[166]     Following the review in Northern Airlink Ltd., cited above in ¶ [160], the Tribunal member found that in the case of two of the four counts that were dismissed, the Minister had failed to give notice of its reliance upon section 8.4 of the Act, either in the notice or through disclosure. On another count, the Minister had also failed to give notice of its reliance on this section and furthermore had not invoked it in its pleadings and for that reason, the member decided that the count should also be dismissed.

[167]     At ¶ 97 of his determination, the Tribunal member stated the underlying reason for this decision being that "the very foundation of section 8.4 of the Act makes one person responsible for the act of another. Surely the person charged should have adequate notice that he is being held responsible for the acts of another so that he can present a complete and effective response".

[168]     In the case at bar, are we held to such a rigid reading of the notice of assessment of monetary penalty as to be precluded from applying the principles of vicarious liability of section 8.4 to the whole notice, because it is only alleged with reference to offence 11?

[169]     In a recent decision, Canada (Attorney General) v. Yukon (Whitehorse International Airport), 2006 FC 1326, [2006] F.C.J. no. 1671 (QL), the Federal Court sitting in appeal of an appeal decision of this Tribunal reviewed the regulatory process under which this Tribunal operates. (See Yukon (Whitehorse International Airport) v. Canada (Minister of Transport), [2006], appeal decision, TATC file nos. C-3005-50, [2006] C.T.A.T.D. no. 54 (QL); C-3006-50, [2006] C.T.A.T.D. no. 55 (QL); C-3007-50, [2006] C.T.A.T.D. no. 56 (QL); C-3008-50, [2006] C.T.A.T.D. no. 57 (QL).)

[170]     In that case, the Whitehorse International Airport (WIA), owned and operated by the Yukon Government, was issued four notices of assessment of monetary penalty under section 7.7 of the Act totalling the sum of $7 500.

[171]     These notices named WIA as a party though it was undisputed that WIA was not a legal entity and that only the named operator of the airport (that is, the Yukon government) and its servants and agents were subject to the security obligations created by the Act and regulations.

[172]     At review, the Yukon government challenged the Minister's notices before this Tribunal and at no time did it take issue with the Minister's determination of responsibility on the merits. The Yukon government argued instead that by incorrectly naming WIA as a legal person or entity subject to regulatory control, the Minister's notices were legal nullities and could not be saved by amendment. In the face of these motions, the Minister asked the Tribunal to amend the notices to add the Yukon government as the party named. The Tribunal allowed the Minister's motion to amend the notices and since the Yukon government had not mounted a substantive defence to the Minister's case against it, the contraventions were confirmed.

[173]     The Yukon government challenged the Tribunal's review determination by way of an appeal which was allowed by the Tribunal on two grounds:

1.      that the notices of assessment were legal nullities which could not be cured by an amendment; and
2.      that the Yukon government was prejudiced by having to proceed through a hearing on the merits before knowing whether it was a party to the proceeding.

[174]     The Minister appealed by way of judicial review to the Federal Court (see Yukon (Whitehorse International Airport), cited above in ¶ [169]). In examining the regulatory process by which these notices of infractions were adjudicated, the Federal Court found that written notice of the Minister's decision is required to be given to the person or corporation named. That notice must include the identification of the designated provision believed to have been contravened and the amount of penalty to be paid in settlement. Furthermore, it found that the framework providing for the adjudication of the alleged violations of these provisions was quite obviously designed as an administrative and not as a prosecutorial process:

[16]     … While that process is adversarial, it is also couched in language which discourages formality and technicality. An adjudication is required to conform to the dictates of fairness and natural justice, but otherwise the scheme avoids the more rigorous procedural requirements commonly associated with criminal or quasi-criminal prosecutions … .

[175]     In short, a notice was a form of a charging document, but it initiated an administrative process which was controlled by principles of natural justice with a view to efficiency and a reasonable degree of procedural informality.

[176]     Since in the administrative law context, form ordinarily gives way to substance, the obligation to give effective notice is driven by the ultimate consideration of fairness and not by technical formalities. The learned judge stated at ¶ [22] of his decision that "[e]ven in the realm of criminal and quasi-criminal proceedings, the historical justification for quashing indictments and informations had been largely eroded", referring on that point to the Supreme Court of Canada decision in Sault Ste. Marie, cited above in ¶ [109] at 1307, where the Court had stated that "the punctilio of an earlier age is no longer to bind us. We must look for substance and not petty formalities". The learned judge also stated that in Sault Ste. Marie, the Court went on to observe that in examining the validity of a charging document, a court should consider whether the accused had been actually prejudiced by an ambiguity in the language used.

[177]     The learned judge then referred to the Federal Court of Appeal decision in Boyd v. Canada (Minister of Transport), 2004 FCA 422, [2004] F.C.J. no. 2080 (QL), where the application of criminal law doctrine to the regulatory regime created under the Act had been considered. There the issue was whether the principle of double jeopardy ought to be applied to a regulatory charge brought by the Minister for the negligent operation of an aircraft. The Court held that the principle was only applicable to criminal or truly penal proceedings. In examining the issue of proper notice, the learned judge found that the Court had clearly applied the administrative standard and that is whether the affected individual had had sufficient notice to preclude any holding of a lack of natural justice.

[178]     Therefore, in Yukon (Whitehorse International Airport), cited above in ¶ [169], since the question was always one to be resolved by determining whether the affected party knew the case it had to meet and whether there had been a meaningful opportunity to be heard, the learned judge found that this Tribunal sitting in appeal had erred, as he found that the Tribunal also had the authority to amend the notice, or to order further disclosure.

[179]     In the case at bar, the notice of monetary penalty clearly indicates the provision of the CARs that has been allegedly breached. Only offence 11 alleges that the applicant (the company) is vicariously responsible for the infractions therein, that is that the pilot-in-command conducted a take-off in an aircraft that had ice adhering to its critical surfaces.

[180]     This is clearly the type of infraction entertained by section 8.4 of the Act which, as mentioned earlier, establishes the legal link between the person acting and the person ultimately responsible for an offence in relation to an aircraft. If the offence is duly established on a balance of probabilities and the applicant fails to establish a defence of due diligence provided under section 8.5 of the Act, it will be vicariously liable in the context of this specific offence (offence 11).

[181]     As far as the other offences are concerned, the applicant is charged with offences that flow from obligations directly imposed upon it as the holder of an AOC and, therefore, bound by the obligations created by section 703.02 of the CARs, which imposes on an air operator the obligation to operate its aircraft in compliance with the conditions and operations specifications of its AOC. That AOC contains the general conditions that it shall conduct its flight operations in accordance with its company operations manual (section 703.09 of the CARs).

[182]     Obviously, the company though through a fiction of law, a legal person, is but a fiction of law, and must act through persons to carry out its activities. The way in which it will carry out these actions, in this chosen field of activity, is laid out in its operations manual. The persons who have the responsibility to carry out the duties imposed upon them by the manual and the company structure, and approved to do so by the Minister, are the company and must abide by its precepts. If they fail to do so, they themselves may be charged, but their acts or omissions also engage the liability of the corporation.

[183]     However, the corporation is not defenceless since it may establish that it exercised all reasonable care to prevent the commission of the offence. The Supreme Court of Canada stated in Sault Ste. Marie, cited above in ¶ [109], at 1331:

… Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system … .

[184]     In the case at bar, we can say that it is all of the acts or omissions of that legal person (the company) which are the subject of the regulations and any person acting within the authority granted to it by the company may render it liable in the case of an infraction. (See also Gisèle Côté-Harper, Pierre Rainville, Jean Turgeon, Traité de droit pénal canadien, 4th ed. (Cowansville, Qc.: Yvon Blais, 1998) at 636-37.)

[185]     The Minister then must prove, on a balance of probabilities, each element of each offence. The proof will come from the evidence presented, whether through witnesses or documentary evidence.

[186]     In the case of offences 1 to 3 and 5 to 9, the Minister alleges generally that the applicant has committed an infraction by failing to conduct flight operations in accordance with the company operations manual, and then specifically addresses the particular section. The applicant was therefore well aware of the case it had to meet and the tenets of procedural fairness and natural justice were met whether section 8.4 was specifically alleged in respect of each offence or not. The company was clearly being charged for the acts or omissions of its employees acting in the course of their employment. The applicant corporation may then establish a due diligence case that will void its responsibility.

B.        Specific Charges

(1)       Offences 1 and 2

[187]     Offences 1 and 2 read as follows:

Offence 1

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically on flight GGN 126 you did not comply with section 2.5.2 of the company operations manual in that the aircraft exceeded the maximum take-off weight specified in the approved Aircraft Flight Manual.

Monetary Penalty Assessed: $ 5,000.00

Offence 2

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 3.7.1 (b) of the company operations manual in that the aircraft on flight GGN 126 would have exceeded the maximum landing weight specified in the approved Aircraft Flight Manual after allowing for fuel consumption to the destination or alternate.

Monetary Penalty Assessed: $ 5,000.00

[188]     In these first two offences, the Minister essentially alleges that the applicant is not in compliance with its operations manual in that:

(a)  the aircraft exceeded the maximum take-off weight specified in the approved aircraft flight manual; and

(b)  the aircraft would have exceeded the maximum landing weight specified in the approved aircraft flight manual after allowing for fuel consumption to the destination or alternate.

(a)        Offence 1

(i)         Discussion

  • Aircraft Weight

[189]     Section 2.5.2 of the operations manual (exhibit A-2) states that "[t]he take-off and landing weights shall not exceed the maximum weight specified in the approved Aircraft Flight Manual".

[190]     The maximum take-off weight specified in the Pilot's Operating Handbook and FAA Approved Airplane Flight Manual (exhibit M-23) is 8 550 pounds for flight in icing conditions, and its maximum landing weight is 8 500 pounds. In general terms, the maximum take-off weight of an aircraft is established by the simple calculation of the aircraft basic weight, plus its cargo and passenger loads, as well as the fuel on board. Once the aircraft has carried out its flight and has landed, the landing weight will be equivalent to its take-off weight minus the fuel burned en route.

[191]     There is general agreement in the evidence from both the applicant and the Minister on the aircraft basic weight and the cargo load. The applicant contests the calculations carried out by Inspector McEvoy as presented to the Tribunal in reference to the weight of the passengers as well as the amount of fuel on board.

[192]     Inspector McEvoy provided the Tribunal with his calculations of the total aircraft weight at take-off. He obtained the weight of the cargo (589 pounds) from the passenger manifest which he had obtained from the OPP (exhibit M-22). There were two dogs carried on board. Also, the passengers and crew total weight was determined to be 2 422 pounds (exhibit M-7). Three different body weights can be used in the present calculations: the body weights with wet clothing which was established by the coroner's office (exhibit M-7) and the total body weights minus their clothing. Finally, in consideration of the charge dealing with take-off in an overweight condition being carried out by the pilot, the applicant submits that the weights provided in the company SOPs for passengers should be used. Section 2.5.8 provides that those weights in the wintertime for adult males are 188 pounds and adult females at 141 pounds.

[193]     Irrespective of which weights are used in the calculations, that is the body weights with wet clothing, the body weights with an average of body weight without clothing and with wet clothing or the weights calculated from the presumed weight of passengers determined at section 2.5.8 of the SOPs, if the fuel load on board was 1 735 pounds at take-off from Pelee Island, as submitted by Inspector McEvoy, the aircraft exceeded its maximum take-off weight during the take-off run out of Pelee Island.

[194]     Using the figures calculated by Inspector McEvoy (exhibit M-21) and the average weight of the passengers relating to their wet clothing and dry clothing that they would have been wearing at take-off, we arrive at an average excess weight of 1 180 pounds.

[195]     Even using, as discussed above, the standard weights provided at section 2.5.8 of the applicant's SOPs, we arrive at a gross take-off weight of 9 253.5 pounds (aircraft basic empty weight 4 991.5 pounds, fuel on board 1 700 pounds, cargo 589 pounds, two dogs 140 pounds, passenger weights 1 692 pounds (9 males x 188 pounds), 141 pounds (1 female x 141 pounds), for a sum total of 9 253.5 pounds), minus aircraft maximum take-off weight in icing conditions with the pod on 8 550 pounds, for an excess weight of 703.5 pounds.

[196]     The only point of contention therefore in these calculations relates to the fuel load on board.

  • Fuel Load

[197]     Having reviewed the flight plans used in the morning for flights GGN 121 and 122 with reference to the fuel on board and fuel burned (exhibits M-10 and M-11), and considering the 600 litres of fuel boarded by Captain Price prior to his departure out of Windsor for flight GGN 125 in the afternoon (exhibit M-3), I am quite satisfied that the evidence provided by the Minister corresponds to the best estimates of the amount of fuel on board at take-off. Using Captain Price's own calculations for the morning flights show fuel on board out of Windsor on the flight to Pelee Island (flight GGN 121) of 1 000 pounds and 100 pounds of fuel burned, of which 35 pounds are used to start up and taxi, providing an arrival fuel therefore at Pelee Island on the morning flight of 900 pounds which was recorded by Captain Price on his morning flight plan (exhibit M-10). We also have the testimony of Mr. Shea stating that he did load 600 litres of fuel at 3:23 p.m. (exhibit M-3).

[198]     Those 600 litres of Jet A-1 fuel loaded onto the aircraft that afternoon weighed a total of 1 122 pounds, that is using a fuel conversion factor of 1.87 to convert litres of fuel to pounds (Transport Canada Aeronautical Information Publication, TP 2330E (AIP Canada), at RAC 3-3, section 3.5.2 "Fuel And Oil Weights"). Adding the 1 122 pounds of fuel to the 800 pounds of fuel the aircraft was estimated as having on arrival at Windsor from Pelee Island that morning (900 pounds on exhibit M-11 -- flight plan for flight 122 YPT to YQG showing fuel on board at departure out of YPT as 900 pounds, estimated fuel burned 100 pounds to destination) brings it to a total of 1 922 pounds of fuel on board at start-up for the flight GGN 125 YQG to YPT. Subtracting from that the 35 pounds of fuel which is the estimated burn for start-up and taxi brings us to a total fuel on board at departure out of Windsor that afternoon for the flight to Pelee Island of 1 887 pounds. Captain Price estimated his fuel on board for flight GGN 125 as 1 835 pounds at departure out of Windsor as appears from the flight plan recovered from the wreckage of the aircraft (exhibit M-12). Although there was no evidence presented to the Tribunal as to whether the aircraft engine was running while the aircraft was de-iced prior to departure out of Windsor, that may account for the extra 50 pounds of fuel which is the approximate difference between 1 887 pounds calculated and the 1 835 pounds that Captain Price inscribed on his flight plan.

[199]     Now providing for the fuel burn of 100 pounds for the flight to Pelee Island and the 35 pounds for start-up and taxi at Pelee Island, the estimate of 1 700 pounds of fuel on board at the start of take-off out of Pelee Island as calculated by Inspector McEvoy is correct.

[200]     As far as offence 1 is concerned, I am satisfied that the Minister has made its case of the take-off weight of the aircraft exceeding the maximum permissible take-off for the Cessna 208B Caravan with cargo pod installed and in anticipation of icing conditions, which is 8 550 pounds. The excess weight was at least 700 pounds, even in the scenario most favourable to the applicant, that is, using an estimated passenger weight as per section 2.5.8 of the company SOPs, instead of actual passenger weights.

[201]     I have already decided that in the particular circumstances of this case, given the way the offences were drafted in the notice of assessment of monetary penalty, a section 8.4 claim against the applicant is not warranted on these offences, other than for offence 11.

[202]     However, the applicant is charged directly with having breached section 2.5.2 of its operations manual (exhibit A-2) which prohibits take-off when the take-off weight exceeds the maximum permissible take-off weight, thereby committing a breach of section 703.02 of the CARs.

[203]     As discussed earlier, Georgian Express can escape liability in the context of these proceedings by establishing that it exercised all reasonable care to prevent the commission of the offence by the captain of that flight.

  • Due Diligence

[204]     The Minister submits that the ultimate test is the degree of due diligence required in the circumstances of each case and proposes that a variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each factual setting (See Gonder, cited above in ¶ [111]). Since the passenger operation of Pelee Island differed significantly from the rest of Georgian Express operation, and since the potential for harm was much greater when dealing with passenger services, a higher degree of care was expected of the applicant. Since Georgian Express was in the best position to control its own activities, the applicant could not hide behind its pilot self-dispatch operational system to avoid blame.

[205]     The pilot self-dispatch system used by the applicant is referred to in the CARs as a type D operational control system (see section 723.16 of the Commercial Air Service Standards (CASS)). In these cases, operational control is delegated to the pilot-in-command of the flight by the operations manager who retains responsibility for the day-to-day conduct of flight operations.

[206]     In a self-dispatch system the pilot is charged with the responsibility of flight planning and maintains sole authority to make operational decisions regarding the flight. By contrast, a co-authority dispatch system is characterized by a co-authority between the dispatcher and the pilot.

[207]     This operational control exercised by the pilot under this system includes the determination of the weight and balance of the aircraft. The decision to carry the load available within the confines of the operational limitations of his aircraft rests with him.

[208]     At the same time, under section 703.37 of the CARs, the operator is obliged to have an appropriate weight and balance system in place. The corresponding section 723.37 of the CASS specifies that the air operator is responsible for the accuracy of the weight and balance of each departing flight.

[209]     In the case at bar, the applicant provided its pilots with training with respect to proper calculations of weight and balance. In this context, it has been established that Captain Price was not new to this type of operation having operated as captain of a Cessna Caravan for another 703 operator in the recent past. In addition, on his conversion to this particular aircraft, he had received his conversion ground school training, which included training on weight and balance. As Captain Leach testified, these weight and balance calculations were not only part of the ground school training program, but also of the flight training program at Georgian Express. Captain Price would therefore have been well familiar with the weight and balance for the Caravan and other aircraft prior to joining Georgian Express and following his conversion course.

[210]     In addition, Georgian Express had in place an internal review system (testimony of Captain Leach) examining and auditing weight and balance reports of its line pilots.

[211]     Georgian Express had in place an internal communications system via the company computer system for immediate feedback to its pilots when problems arose. It is in this way that Captain Price, who had made an error in a logbook entry relating to the installation of seats and removal of seats (transformation of the aircraft from the cargo configuration to a passenger configuration), had been ordered by Captain Leach to correct this error (exhibit A-23).

[212]     Transport Canada in its two audits of the applicant, that of September 2001 and the post-accident special purpose audit of January 2004, specifically looked at weight and balance issues. Both audits concluded there was no problem whatsoever with Georgian Express operational flight plans with respect to weight and balance limitations.

[213]     I agree with the applicant's submission, given the evidence presented during the hearing, that there was nothing in Captain Price's history, background and training that would have alerted Georgian Express that he was prone to making a fatal miscalculation of the aircraft weight. Finally, there was no evidence presented to the Tribunal that Georgian Express had ever before permitted the take-off of an aircraft that was overweight, and the uncontradicted testimony of the witnesses for the company (Mr. Mulrooney and Captain Leach) was that, to their knowledge, no such take-off had ever occurred.

[214]     The Minister has not provided the Tribunal with any other evidence in relation to overweight take-offs being carried out by the applicant or any proof showing a lack of diligence in the training, control and oversight of its weight and balance system in place in its day-to-day operations. On the contrary, some of the Minister's own witnesses (see for example, Inspector Szwalek's testimony) established that they had conducted a thorough review of Georgian Express operations and had found no concerns whatsoever about overweight aircraft. Therefore, I am left with the inescapable conclusion that the applicant exercised all due diligence to prevent this contravention to its operational procedures.

[215]     I am therefore satisfied that the applicant has shown on a balance of probabilities that it exercised all due diligence to prevent the commission of this infraction. It had in place a weight and balance system that met the requirements of the CASS and established that it carried out an effective control and oversight of its weight and balance system in its day-to-day operations. I am thus satisfied that the applicant cannot be held responsible for the error of Captain Price on January 17, 2004.

[216]     Therefore, I dismiss offence 1.

(b)       Offence 2

[217]     With regard to offence 2, the applicant is charged with a contravention of section 703.02 of the CARs as in offence 1, in that it did not comply with section 3.7.1(b) of the company operations manual (exhibit A-2) with regard to exceeding the maximum landing weight.

[218]     The first comment here is that section 3.7.1(b) falls under the heading "Performance Limitations" of the applicant's SOPs. Section 3.7.1 states that

"[b]efore departure, the pilot-in-command shall calculate and adjust the take-off weight of the aeroplane as required to ensure that:

b)    after allowing for planned fuel consumption during flight to the destination or alternate aerodrome, the weight will not exceed the [maximum allowable] landing weight … .

Therefore, the charge is that the pilot-in-command failed to adjust the take-off weight to ensure that the aircraft would have met the maximum legal weight at arrival at the destination or alternate airports.

[219]     The second point of interest regarding the particulars of this offence relates to the statement of the offence itself in that the operator, Georgian Express, is charged with operating an aircraft which "would have exceeded the maximum landing weight specified in the approved Aircraft Flight Manual after allowing for fuel consumption to the destination or alternate".

[220]     Section 2.5.2 of the operations manual states that "the take-off and landing weights shall not exceed the maximum weights specified in the approved Aircraft Flight Manual". The testimony of Inspector McEvoy and exhibit M-23 established that maximum landing weight as 8 500 pounds.

[221]     Here the particulars of the infraction hold that the aircraft on flight GGN 126 would have exceeded the maximum landing weight (presumably on landing).

[222]     Section 2.5.2 of the applicant's operations manual states that the maximum landing weight shall not be exceeded. Obviously, from a reading of this section, the presumption is that this limitation must be observed at the time of landing and not before. Section 3.7.1(b) of the manual deals with the planning phase of flight. As stated above, the pilot-in-command must adjust his take-off weight to ensure that upon landing, the aircraft will not exceed its maximum authorized landing weight.

[223]     Readers familiar with flight operations will understand that it is quite common and usual for aircraft to take off at weights exceeding their maximum landing weight. The obligations being to land the aircraft under the maximum landing weight. In our present situation, the aircraft weight at the time of take-off did exceed its maximum landing weight but obviously, it never landed.

[224]     The alleged error of the pilot-in-command here is that he had failed to adjust his aircraft take-off weight before taking off to ensure a landing at destination or the alternate below the maximum landing weight. There is a reasonable probability that his destination was Windsor (that is what his destination was and for which he flight planned). He had no reason to go anywhere else unless the weather was unsuitable. As will be discussed below, there is no proof as to what his alternate was exactly.

[225]     Assuming a flight to destination and the planned fuel burned, I am satisfied that had the aircraft proceeded to Windsor as per normal and landed there, it would have exceeded its maximum landing weight.

[226]     The Minister has therefore again proved the actus reus of the offence of section 703.02 of the CARs, that is, an error in flight planning.

[227]     Then what is the applicant's responsibility? The applicant submits four lines of defence as to why the Tribunal should not find it guilty of the offence:

(a)  the framing of the offence;
(b) the lack of proof of an overweight condition;
(c)  due diligence; and
(d) double jeopardy.

[228]     Since I have already dealt with the first two lines of defence in the context of the preamble of this decision and of offence 1, I will not repeat the discussion here other than to say that the previous reasoning and decisions apply equally to this offence.

(i)         Double Jeopardy

[229]     As Phelan J. of the Federal Court stated in Boyd v. Canada (Minister of Transport), 2004 FC 263 at ¶ [16], [2004] F.C.J. no. 44 (QL): "The principle of "double jeopardy" or the "rule against multiple convictions" or the "Kienapple Principle" are all description of a basic rule emanating from criminal law that a person can only be punished once for the same act … "

[230]     The applicant submits that this principle is alive and well in the Tribunal context, referring to a long line of decisions dating back to Sanchez v. Canada (Minister of Transport), [1989], appeal determination, CAT file nos. O-0104-02 and O-0105-33, [1989] C.A.T.D. no. 30 (QL), and to Canada (Minister of Transport) v. Laurentide Aviation (2737-5633 Québec Inc.), [2003], appeal determination, CAT file no. Q-2097-05, [2003] C.A.T.D. no. 13 (QL), where the Kienapple principle was considered and applied.

[231]     However, a recent decision of the Federal Court of Appeal in the final disposition of one of the cases the applicant refers to would seem to put that statement in question: Boyd, cited above in ¶ [177].

[232]     Mr. Boyd, an aerobatic pilot, held a special flight operations certificate (SFOC) authorizing him to perform low-level aerobatics. Two of the conditions applicable to his SFOC were that such manoeuvres were prohibited over built-up areas or open-air assemblies of persons and when flight visibility was less than three miles.

[233]     While participating in the Can-Am Aerobatic Championship, the flying competition was cancelled because the weather conditions had deteriorated. Nonetheless, Mr. Boyd took off and performed some low-level aerobatics. Following an investigation of this flight, Transport Canada took two separate actions.

[234]     Mr. Boyd was charged under section 6.9 of the Aeronautics Act with contravening two sections of the CARs: section 602.01, that is, operating his aircraft in a reckless or negligent manner; and section 602.27, that is, operating his aircraft when the flight visibility was less than three miles. For these charges, his airline transport pilot licence (ATPL) was suspended. Transport Canada also cancelled Mr. Boyd's SFOC under section 7.1(1)(b) of the Act for failing to comply with the condition of his certificate (flight visibility of three miles).

[235]     Mr. Boyd asked for a review of this decision and the member of this Tribunal applying the double jeopardy principle found that cancellation of the SFOC and suspension of the ATPL were penalties imposed for a single act and thus quashed the contravention regarding the ATPL. (See Boyd v. Canada (Minister of Transport), [2002], review determination, CAT file nos. O-2418-71 and O-2468-02, [2002] C.A.T.D. no. 34 (QL)).

[236]     On appeal, however, the Tribunal reinstated the suspension finding that double jeopardy had no application since the "purposive difference" in the charges was sufficient to distinguish them: suspension of the ATPL was punishment for breaches of the CARs, whereas the cancellation of the personal SFOC was a safety matter, not punishment. Thus, while the same act grounded the two charges, they were sufficiently different to stand. (See Canada (Minister of Transport) v. Boyd, [2003], appeal determination, CAT file no. O-2468-02, [2003] C.A.T.D. no. 23 (QL)).

[237]     However, reviewing the evidence presented to the member, the appeal panel dismissed the two charges relating to flight visibility because the member had erred in his application of the law to the finding of flight visibility. Nonetheless, the charge of negligence was sustained as Mr. Boyd was found to have flown over an "assembly of persons" in contravention of section 1(a) of his SFOC.

[238]     On application for judicial review of this decision to the Federal Court, Phelan J. had to deal with a number of issues, one of which was the question of double jeopardy (see Boyd, cited above in ¶ [229]).

[239]     In that regard he stated at ¶ [16] of his decision that "[t]he principle of "double jeopardy"… is applicable in the public law context, particularly in regulatory offence proceedings". Applying these principles to the facts of the case, he found that the Tribunal had erred "in respect of the issue of the double jeopardy".

[240]     This decision was appealed to the Federal Court of Appeal (Boyd, cited above in ¶ [177]) and on December 8, 2004, Linden J.A. stated:

[1] The Federal Court Judge erred when he invoked the doctrine of double jeopardy in this case. The revocation or suspension of a licence permitting a person to engage in a regulated activity does not attract the prohibition against double jeopardy, a principle applicable only to criminal proceedings or other proceedings with truly penal consequences (R. v. Shubley, [1990] 1 S.C.R. 3, at p. 18).

[241]     It is interesting to note that this statement was referred to by the Federal Court in Yukon (Whitehorse International Airport), cited above in ¶ [169]) as the basis for the Court holding that: "[25] In this case, by applying criminal law principles to an administrative law issue, the Appeal Panel erred … ."

[242]     However, shortly after the Boyd decision, cited above in ¶ [177], the Federal Court of Appeal considered another case emanating from this Tribunal and held, without referring to the previous Boyd decision that the Kienapple principle applied to the facts of that case: Delco Aviation Limited. v. Canada (Minister of Transport), 2005 FCA 7, [2005] F.C.J. no. 28 (QL).

[243]     In that case, the offences repeated on two different days involved taking off from the Welland River. Those take-offs were alleged to be in violation of section 602.13(1) of the CARs, prohibiting take-off in a built-up area of a city or town, and in violation of section 601.04(2) of the CARs, in that the take-offs constituted the operation of an aircraft in prohibited airspace without prior authorization.

[244]     Delco Aviation having been found guilty of all four infractions appealed that decision. The Tribunal sitting in appeal upheld the finding of facts made by this member. However, applying the rule against multiple convictions, the panel quashed the convictions on counts 3 and 4 finding that Delco Aviation had been placed in a position of double jeopardy. (See Delco Aviation Limited v. Canada (Minister of Transport), [2001], appeal determination, CAT file no. O-1918-41.) Essentially, the appeal panel decided at page 9 that

… where the required factual similarities found in the same act of the accused is the ground for each of the charges, short of a clearly expressed intention of Parliament to the contrary, the rule against multiple convictions will prevent a conviction on both offences arising out of the same fact situation … .

[245]     The panel stated at page 8 that to establish double jeopardy, there must be a legal nexus between the two offences charged and a sufficient nexus will be satisfied if there are no additional or distinguishing elements that go to culpability.

[246]     The Minister applied to the Federal Court for judicial review and the Court allowed the appeal from the panel's decision and reinstated the conviction on all four counts. It determined that there were distinguishing elements in terms of the legal nexus between the offences which precluded the application of the principle in Kienapple. (See Canada (Minister of Transport) v. Delco Aviation Limited, 2003 FCT 733 at ¶ [7], [2003] F.C.J. no. 938 (QL).)

[247]     Delco appealed the decision to the Federal Court of Appeal (see Delco Aviation, cited above in ¶ [242]. The question raised in appeal was stated by the Court in the following terms:

[1]     Is the appellant, who operates an aerial sightseeing flight company, entitled to benefit from the rule against multiple convictions, which was initially adopted in Kienapple v. The Queen, [1975] 1 S.C.R. 729, and subsequently applied and elaborated in a number of decisions by the Supreme Court of Canada, including R. v. Prince, [1986] 2 S.C.R. 480 and Krug v. The Queen, [1985] 2 S.C.R. 255?

[248]     Posing the question in such terms obviously imports in the deliberation of this Tribunal the concept of double jeopardy or the rule against multiple convictions "initially adopted in Kienapple v. The Queen".

[249]     Following an elaborate examination of the decisions of the appeal panel of this Tribunal and the Federal Court, the Federal Court of Appeal held that the Federal Court had misinterpreted the elements and the legal scope of the rule against multiple convictions.

[250]     Like the appeal panel of this Tribunal, the Federal Court of Appeal had correctly recognized the first condition for the application of the rule, that of the sufficient proximity between the facts forming the basis of at least two offences. In that case, the existence of this factual nexus was established since the charges resulted from the same act (the take-off of an aircraft in a prohibited area).

[251]     Since as a second condition, there must also be a relationship of sufficient legal proximity between the offences to determine that those offences do not have additional and distinguishing elements that go to guilt, it was in finding that there were such distinguishing elements that the lower court had erred.

[252]     The Federal Court of Appeal therefore set aside the order of the Federal Court and restored the decision of the appeal panel staying the convictions of counts 3 and 4.

[253]     This decision of the Federal Court of Appeal was issued in January 2005, barely one month after the Boyd decision, cited above in ¶ [177], of December 2004.

[254]     Admittedly, the Delco decision, as in the present case, dealt with infractions to designated provisions of the Act whereas the Boyd case dealt with, on the one hand, the suspension of a document following infractions to section 602.01 of the CARs dealing with negligence and endangerment to life and property, and the cancellation, on the other hand, of the privileges associated with the SFOC. However, it was also argued that the principles of double jeopardy applied.

[255]     Although the Federal Court in Boyd held that this principle was applicable in the present public law context, the Federal Court of Appeal clearly stated otherwise without elaborating further on that point.

[256]     Now, considering that all the infractions alleged against the applicant in the present case are designated provisions as in the Delco case, I find that it is appropriate to examine the defence of double jeopardy put forward by the applicant.

  • Applicant

[257]     The applicant submits that in this case, both offences allege that flight operations were not conducted in accordance with the company operations manual (exhibit A-2) in that the aircraft exceeded the maximum weights.

[258]     The applicant submits that the first condition of the double jeopardy rule is met in that the same act grounds both charges: the flight operations involved in both charges can only refer to the taking on of an excessive load and the failure to calculate this load prior to take-off. The second condition is also met since no additional intervening act was necessary or possible to differentiate the charges.

[259]     Thus, two regulatory provisions merely provide two avenues for proving the same underlying delict, the failure to ensure safe weights of the aircraft.

  • Minister

[260]     The Minister responding to this question asserts that from a regulatory perspective, both charges are warranted since they deal with two separate dangerous situations, one at take-off and one at landing.

  • Discussion

[261]     With respect, I find that the defence of double jeopardy cannot afford any comfort to the applicant as the two offences here meet neither of the two conditions required for the principle to apply. Both offences deal with the failure to comply with the tenets of its operations manual, but as discussed above, that is also the case for all the other alleged offences.

[262]     However, each failure entails a different factual situation arising out of the take-off of flight GGN 126 that day. As far as offences 1 and 2 are concerned, offence 1 deals with the actual take-off of the aircraft in an overweight condition, while offence 2 charges the company with its failure to properly calculate and adjust the take-off weight to ensure a landing below maximum landing weight.

[263]     One offence therefore deals with the actual operation of the aircraft in an overweight condition (offence 1), and the other, to properly plan and execute the loading of the aircraft. Obviously, if the load had been properly calculated and put on board according to the precepts of the SOPs, the aircraft would not have taken off overweight and it can be argued that it would not have been in a situation, after take-off, of possibly landing overweight.

[264]     But I find that the same act "loading" does not underlie both infractions as there are additional or distinguishing elements in offence 2.

[265]     Offence 2 dealing with section 3.7.1 of the SOPs is related to the planning phase of the flight, not its actual carrying out, particularly since in the present case, the charge only relates to the landing weight of the aircraft.

[266]     There is therefore an additional distinguishing element both in time and place for the underlying action: one is take-off, the other is landing.

[267]     The infractions are not grounded in one set of facts. We are not here in this situation of one single act without any additional or distinguishing elements in terms of guilt. Therefore, I find that the applicant cannot benefit from the rule against multiple convictions.

(ii)        Due Diligence

[268]     Finally, the applicant pleads as in the case of offence 1 and for the same reasons that it exercised all due diligence to prevent the commission of the offence and for the same reasons as stated in that context, I am satisfied that the applicant has shown on a balance of probabilities that it did exercise all due diligence.

[269]     I therefore dismiss offence 2.

(2)       Offence 3

[270]     Offence 3 reads as follows:

Offence 3

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 2.6.1 of the company operations manual in that on flight GGN 126 two dogs were carried on board the aircraft while not being properly secured prior to flight.

Monetary Penalty Assessed: $ 5,000.00

[271]     The relevant sections of the CARs and the CASS applicable to the examination of this offence are:

Carry-on Baggage, Equipment and Cargo

602.86 (1) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board, unless the carry-on baggage, equipment and cargo are

(a) stowed in a bin, compartment, rack or other location that is certified in accordance with the aircraft type certificate in respect of the stowage of carry-on baggage, equipment or cargo; or

(b) restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

(2) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board unless

(a) the safety equipment, the normal and emergency exits that are accessible to passengers and the aisles between the flight deck and a passenger compartment are not wholly or partially blocked by carry-on baggage, equipment or cargo;

(b) all of the equipment and cargo that are stowed in a passenger compartment are packaged or covered to avoid possible injury to persons on board;

723.37 Weight and Balance Control

The weight and balance system required by Section 703.37 of the Canadian Aviation Regulations shall specify for each flight how the air operator will establish and be responsible for the accuracy of:

(5) aeroplane loading including, but not limited to, compartment weight and bulk cargo limits, floor loading limits, cargo restraint and loading considering weight and centre of gravity limits;

[272]     Section 2.6 of the company SOPs reads as follows:

2.6          Loading

2.6.1           Cargo, baggage, loose equipment, etc. shall be properly secured prior to flight using appropriate tie down strapping, rope, netting and attachment points as appropriate. See AFM or POH.

2.6.2           Nothing will be placed in locations that will cause blockage to any emergency/normal exit or required piece of emergency equipment such as a Fire Extinguisher.

(a)        Discussion

[273]     As discussed earlier, the air operator is responsible for the accuracy of the weight and balance of each departing flight. He is also responsible for the accuracy of airplane loading, including compartment weight and bulk cargo limits and cargo restraints (section 723.37(5) of the CASS).

[274]     Section 602.86(1) of the CARs specifies that no person shall operate an aircraft with cargo on board unless the cargo is stowed in a bin, compartment or rack that is certified for such stowage or restrained to prevent the cargo from shifting during movement of the aircraft either on the ground or in flight. In summary then, this section directs that where cargo is carried on board, it must be secured in an appropriate area and fashion or restrained to prevent movement during flight and in such a way as to ensure access to normal and emergency exits is free. Sections 2.6.1 and 2.6.2 of the applicant's SOPs echo this requirement.

[275]     As the two dogs were neither paying passengers nor carry-on bags or equipment, it is fair to assume that they fall under the category of on-board cargo. The Minister established with the testimony of Dr. Wilson that the two dogs that were observed boarding were found in the wreckage of the aircraft, one attached by a leash to one of the passengers and one, unattached, at the rear of the aircraft's passenger compartment.

[276]     There was no evidence of cargo netting, cage or any other restraining device according to his testimony nor did the testimony of any of the applicant's witnesses establish the existence of any such restraining system on flight GGN 126.

[277]     Captain Leach testified that it was sufficient that the dogs be restrained so as not to block emergency exits. As far as he was concerned, there was no requirement either in the CARs or the company SOPs to require that animals carried on board be caged. Ms. Shaw had previously also testified that there was no requirement that dogs be carried in cages on flights.

[278]     Ms. Haig testified that she had observed unleashed dogs in the past on Air Georgian, South Air and Georgian Express flights from Windsor to the Island and return. Though she could not recall specifically on which flights, I am satisfied that if it did not establish proof of what happened on flight GGN 126, it was indicative of some past practices of these operators.

[279]     As far as flight GGN 126 was concerned, her testimony was that although she observed the two dogs from her vantage point from the truck after arrival that day, neither dog had a leash that she could see.

[280]     On careful examination of the evidence of Dr. Wilson and Ms. Haig, I am satisfied that the Minister has established on a balance of probabilities that at least one of the dogs was neither leashed to his owner nor secured against movement prior to flight, as required by section 2.6.1 of the company SOPs (to say nothing of sections 602.86(1) of the CARs).

[281]     Furthermore, I am also satisfied from a reading of the applicable CARs cited above, that a 70-pound dog attached to a leash held by his owner is "not being properly secured prior to flight".

[282]     I agree with the Minister's position that the purpose of this requirement (securing against movement) is to protect the other occupants of the cabin to say nothing of the possibility of the shifting of the centre of gravity of the aircraft caused by the possible movement of the animals in the cabin.

[283]     I therefore find the applicant guilty of offence 3.

(3)       Offence 5

[284]     Offence 5 reads as follows:

Offence 5

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.3 (d) of the company operations manual in that the Chief Pilot failed to ensure the operational suitability of the Pelee Island aerodrome.

Monetary Penalty Assessed: $ 5,000.00

[285]     The applicant is charged here with failing via its chief pilot to ensure the operational suitability of the Pelee Island aerodrome, as required by section 1.4.3(d) of the company SOPs.

[286]     The Minister, through the testimony of Inspector McEvoy, submits that the airport was not suitable for the applicant's operations which consisted of passenger and cargo transport during the winter, principally in that:

(a)  there was no suitable de-icing equipment at the airport;>
(b) there was no ladder to assist the pilot in carrying out an aircraft inspection if need be;
(c)  there was no hangar facility;
(d) there was no maintenance facility; and
(e)  there were no accommodations available for the crew and passengers if the aircraft had to remain at the airport.

[287]     Although Inspector McEvoy's expertise was challenged by the applicant, I see no reason to discard his opinion in general terms on such a question. Inspector McEvoy is an airline transport rated pilot and although his experience may be limited as a 703 operator pilot, his lengthy experience at Transport Canada has surely provided him with the necessary training and expertise to deal with this question.

[288]     Inspector McEvoy's opinion on these lacks in equipment was that a pilot faced with icing conditions inbound to the Island might be pressured in returning through the icing conditions (presumably to Windsor) because he knew there would be no support for him on the Island. It can also be inferred from his testimony and the Minister's submissions that these same "lacks" might cause undue pressure on the decision of a pilot to depart from Pelee Island even though conditions might be conducive to the formation of airfoil icing, and airfoil icing might have occurred and gone undetected due to the lack of suitable inspection equipment. That is the reason why he judged the Pelee Island Airport to be operationally unsuitable.

[289]     The applicant retorts that there is no requirement in the CARs for an operator to have to meet the aforementioned requirements at every one of its destinations. Furthermore, the applicant had operated there in previous years under similar circumstances without any problems.

[290]     The applicant's flight operations policy with regard to any icing encounters on the way to Pelee Island was not to land there and return to Windsor or proceed to a suitable alternate. If icing occurred on the ground, the policy was that the aircraft was to remain on the Island until the ice could be dealt with. This had been the policy applied by its pilots in the past and repeated for that year's operation.

[291]     Finally, the airport was IFR-rated, and the necessary approach aids and the suitability for its day-to-day operations had been assessed by Captain Leach, the chief pilot, who had flown there specifically for that reason prior to the start of the operations that season, with Ms. Shaw, the operations manager.

(a)        Discussion

[292]     The first point of interest here is that there is no definition of "operational suitability" given either in the Act or in the CARs. Such suitability must therefore be determined according to the specific factual circumstances of each type of operation. Obviously, though Pelee Island may be "suitable" for a carrier such as the applicant (703 operator), it may not be so for a 705 operator for large aircraft (Boeing 737, 767, A330, A320, A340, etc.) in all of its aspects.

[293]     The operational suitability is thus quite a variable concept and in fact will certainly vary on a day-to-day basis: the runway conditions, approach aids, general airport facilities combined to weather conditions, the aircraft serviceability, load, etc. will all interplay in that determination. This concept applies to all flight operations.

[294]     It is not unusual (as stated above) for an air carrier to operate on a regular basis to an airport that does not have a suitable hangar, maintenance, accommodations or other facilities which are readily available elsewhere. That is why operational instructions to crews complement the operations and assist the pilot-in-command in determining whether, given certain conditions, the flight will continue to destination, return to its point of departure or proceed to an alternate.

[295]     Now given the circumstances of the present case, it is clear that from the Minister's point of view, what clearly rendered the airport unsuitable was the lack of de-icing equipment and equipment to inspect the aircraft prior to departure to determine and ensure the clean-wing concept. The other factors were merely elements that could incrementally complicate the decision-making process of the pilot-in-command. However, I cannot accept the Minister's view that for these reasons, the airport was unsuitable.

[296]     The evidence has clearly established that the directions to the crews were clear: if inbound and in icing (if capable), do not land and proceed back to Windsor or proceed to an alternate; if icing is encountered on the ground, wait for suitable conditions to depart.

[297]     That is not different for example from carrying out or preparing to carry out an approach in foggy conditions at that airport and finding that the weather renders the airport unsuitable as a destination because the weather limits preclude an approach and safe landing.

[298]     Under such conditions, the general terms of the pilot's own instrument certification instruct him either not to start an approach or to carry out a missed approach and proceed to a suitable alternate. Under these conditions, the airport has become unsuitable that day, at that time. It may well have been "suitable" in the hour preceding and may well again be suitable in the next hour. The pilot-in-command under our system, and certainly as demonstrated by the applicant under its SOPs, is responsible for making that determination on a flight-by-flight basis.

[299]     I am therefore satisfied that although Pelee Island may not have had all the facilities it should ideally have had, including de-icing and inspection equipment, it certainly was a suitable airport for the operations carried out there, when one couples its general characteristics to the applicant's operational directives to its crews.

[300]     Therefore, I dismiss offence 5.

(4)       Offence 6

[301]     Offence 6 reads as follows:

Offence 6

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.7 (c) of the company operations manual in that company pilot on flight GGN 126 failed to complete an Operational Flight Plan.

Monetary Penalty Assessed: $ 5,000.00

[302]     The applicant is charged here with the company pilot, Captain Price, failing to complete an operational flight plan for flight GGN 126, contrary to the company SOPs (section 1.4.7) which included in his duties the obligation to fill out an operational flight plan "as applicable". The proof of this failure came with the testimony of the investigating officer, Inspector McEvoy, who submitted a copy of the alleged flight plan for flight GGN 126 filled out by Captain Price.

[303]     The applicant objected to the admissibility of this document based on the best evidence rule and the failure of the Minister to establish provenance. The production of this document was nonetheless permitted with the appropriate weight to be given to it within the context of all the evidence presented in support of the Minister's allegations.

[304]     Unfortunately for the Minister's position, the only proof presented to the Tribunal to establish the alleged failure of Captain Price to complete a flight plan is that document (exhibit M-18). I am satisfied that the document presented to the Tribunal was a true copy of the document found in the wreckage of the aircraft.

[305]     Inspector McEvoy testified that he obtained it from the TSB's own original and how a copy of it was made in the TSB's office where the original was kept. There is no reason to doubt his assertion and this without the necessity of obtaining the deposition of the TSB officials who were present at the time, in the context of the proceedings before this Tribunal.

[306]     The applicant submits that there is no proof that this document is the actual flight plan used by Captain Price, whereas the Minister, based on the incomplete state of the document, asserts that the pilot-in-command had failed to complete an operational flight plan.

[307]     Exhibit M-18 does in fact lack the information normally included at block 19 (weight of all passengers), block 21 (zero fuel weight of the aircraft), block 23 (take-off weight), block 24 (landing weight obtained from subtracting en-route fuel from take-off weight -- see exhibit A-2 at 7-5), and block 26 (index of centre of gravity). All of the missing blocks relate to what one could describe as the load data for flight GGN 126 and they are mandatory items when an operational flight plan is required.

[308]     The applicant submits that this Tribunal should not base its decision on the basis of hearsay evidence (Bond v. New Brunswick (Board of Management) (N.B.C.A.), [1992] N.B.J. no. 567 (QL)).

[309]     Although, as already discussed, this Tribunal is not bound by any legal technical rules of evidence, it is nonetheless subject to consideration of fairness and natural justice (section 15 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29) and must base its decisions on a reasonable appreciation of the proof put forward.

[310]     Therefore, after consideration of all the evidence put forward at this hearing, such as:

(a)  the short duration stop at Pelee Island;
(b)  the amount of activity carried out by Captain Price after landing (securing the aircraft, assisting with loading, pre-flight duties in the cockpit, etc.);
(c)  a comparison of exhibit M-18 and exhibits M-10 (the flight plan for flight GGN 121), M-11 (the flight plan for flight GGN 122), and M-12 (the flight plan for flight GGN 125), all signed by himself and properly filled out;
(d)  the evidence of Sergeant Cristilli in relation to the search of the crash area and reasonable certainty that nothing had been left in that area once the aircraft was removed from the crash site; and
(e)  the fact that flight documents were removed from the wreckage near the remains of the pilot, as testified by Sergeant Cristilli;

I find that the preponderance of evidence presented supports the position that this document (exhibit M-18) emanates from flight GGN 126 and was in fact an operational flight plan for flight GGN 126.

[311]     However, I find that this is not sufficient to establish the alleged infraction. The infraction alleges the failure of the applicant to abide by its SOPs, specifically section 1.4.7(c). However, this section requires the pilot to fill out an operational flight plan "as applicable". At the same time, it has been established that the applicant had in fact filed centre stored flight plans for these flights which were activated with the appropriate ATC units upon pick-up of the IFR clearance.

[312]     Furthermore, section 723.18 of the CASS for 703 operators deals with the requirement of operational flight plans and states: "… An air operator that operates flights over routes with a cruise segment of less than 30 minutes may use an informal operational flight plan … ." Section 2.3.7 of the SOPs states that "[t]he pilot-in-command shall ensure that a copy of the Operational Flight Plan is left at the point of departure of a flight or series of flights … ."

[313]     Was this not considered a series of flights (121-122 and 125-126) where the copies of flight plans could be left at the originating station, Windsor? No proof was offered by the Minister in relation to the copies of the flight plan which should have been left at Pelee Island. Is it then that it should have been left at Windsor? What about the copies of flights GGN 121-122? What was the practice followed there? Furthermore, it may be that exhibit M-18 constituted what can be deemed an "informal operational flight plan" as permitted by the CASS and the company SOPs.

[314]     So the simple proffering of exhibit M-18 is not sufficient grounds for the offence. There is no satisfactory proof that, on a balance of probabilities, the company pilot failed to complete an operational flight plan.

[315]     Finally, even if the Minister had established sufficient grounds for the offence, applying the reasoning on the defence of due diligence discussed under offences 1 and 2 above, mutatis mutandis, I would also find that the applicant exercised all due diligence to prevent the commission of this offence.

[316]     For all of these reasons, I dismiss offence 6.

(5)       Offence 7

[317]     Offence 7 reads as follows:

Offence 7

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.7 (g) of the company operations manual in that company pilot on flight GGN 125 failed to notify the company of the whereabouts of the aeroplane when away from base.

Monetary Penalty Assessed: $ 5,000.00

[318]     The company is here tasked with the failure of its pilot to have notified it "of the whereabouts of the aeroplane when away from base" as required by section 1.4.7 (g) of the SOPs. To prove this allegation, the Minister submits the testimony of Inspector McEvoy who based this offence on conversations during the course of his investigation with Ms. Herbert and Ms. Shaw and on the short turnaround time on Pelee Island which would explain why Captain Price had not notified the company flight follower (Ms. Herbert) of his arrival at Pelee Island.

[319]     With regard to this allegation, the applicant pleads that the fact that the flight follower, Ms. Herbert, does not recall whether Captain Price had called her after arrival of flight GGN 125 on Pelee Island, is the required proof of the irremedial prejudice alleged during its application (on preliminary motions) for dismissal of this charge for undue pre-trial delays under section 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. The applicant again pleads that for this reason this charge should be dismissed.

[320]     The applicant also pleads that this charge stands from a misunderstanding by Inspector McEvoy of the meaning of section 1.4.7(g) of the SOPs. The applicant pleads that nowhere does it say that the duties assigned to the pilot-in-command must be completed by him. For example, on the question of notification of the aircraft's whereabouts, section 2.4.5 states only that the "pilot-in-command will pass a message to the Duty Officer concerning each departure and landing … ."

[321]     According to the applicant, that does not mean in fact that the pilot-in-command has to do this personally. His duty can be delegated to somebody else, as long as the task is accomplished. For example, this task can be carried out by the second-in-command (section 1.4.8 of the SOPs) where there is one assigned to the flight.

[322]     With respect, I disagree with this interpretation of the pilot-in-command's duties.

[323]     When read together, sections 1.4.7, 2.4.1, 2.4.3 and 2.4.5 of the SOPs all point to the obligation imposed on the captain of the flight to keep the company apprised before, during and after of his flight progress:

-         under the guise of "Flight Watch/Following and Communications", section 2.4.1 states that: "[c]urrent information on the location of the airport operator's aircraft shall be maintained at the Air Georgian Limited flight following centre … .";

-         section 2.4.3 states that "[t]he pilot-in-command is responsible to keep Flight Watch apprised of each flight's progress … .";

-         section 2.4.5 states that "[t]he pilot-in-command will pass a message to the Duty Officer concerning each departure and landing from the point of origin, at enroute stops, and from the final destination."

-         and finally, section 2.4.6 charges him with the duty to "notify the person who authorized the flight or the Duty Officer as soon as possible of any change of itinerary or schedule".

[324]     How does the pilot-in-command carry that function, while section 1.4.7 makes it his specific duty to complete all post-flight duties, including notification and confirmation to operations of the whereabouts of the aircraft when away from base? Could he delegate some of these duties to someone else? Yes, to a second-in-command, but the SOPs make it a specific crew responsibility to keep the company apprised of a flight's progress.

[325]     Based on the evidence of Ms. Herbert, I am therefore satisfied that Captain Price did not keep the company notified of the aircraft's whereabouts for flight GGN 125.

[326]     The applicant in his submissions pleads that Ms. Herbert simply did not recall whether Captain Price had contacted her and this is not only explainable but should be expected, given the lapse of two years following the events and her testimony.

[327]     However, having listened attentively to her testimony and reviewed her statements made to the OPP one week after the events (exhibit M-14) and to Inspector McEvoy in September 2004 (exhibit M-13), I am satisfied that in fact her recollection was that Captain Price had not called her after flight GGN 125.

[328]     For example, in her statement to Inspector McEvoy (exhibit M-13):

13.   Did he contact you once he had landed on Pelee Island?

I don't think he did.

14.   Prior to this incident did you normally liaise with the folks at the Transportation office on Pelee Island regarding each flight prior to its departure?

I would call the agent around the time of these ETA and then again when they were airborne off Pelee Island. The call once airborne would be to get updated passenger numbers and times. She contacted me after they were airborne on the 17th because something had gone wrong.

15.   Did he contact you prior to leaving Pelee Island?

No.

16.   Prior to this incident was it normal procedure for pilots to call in once they had landed?

With a quick turn in Pelee Island they usually did not call in when they had landed.

[329]     Her statement to the OPP on January 24, 2004 (exhibit M-14) was to the same effect:


- Observed flight 125 on IFR radar and arrival at Pelee.
- Did not receive call on arrival or departure.

[330]     Contrary to the applicant's submission, it appears that a procedure had evolved where because of the short duration of these stopovers at Pelee Island, crews did not call from there as for example happened on the morning flights GGN 120 and 121. She would therefore contact the Owen Sound Transportation Company agent or they would contact her.

[331]     Therefore, I am satisfied on a balance of probabilities that the Minister has established the essential elements of offence 7.

[332]     Did the company exercise all due diligence? I think not.

[333]     The issue here is not whether the company had a proper and efficient flight following system in place. It is whether the pilot-in-command notified the company of the aircraft's progress and whereabouts after landing of flight GGN 125.

[334]     It appears that because of the short turnaround time (and total combined time for the two flights of less than one hour: CYQG–CYPT–CYQG), a procedure had been set up in the context of the operations of these particular flights, where the flight follower would make the calls necessary to establish the whereabouts of the aircraft.

[335]     However, that procedure was not formally put into place and the company SOPs were not modified to relieve the pilot from that responsibility on these specific flights.

[336]     The company cannot therefore escape the liability of infringements to its SOPs that it was aware of and accepted. I therefore maintain the assessment of a monetary penalty for offence 7.

(6)       Offence 8

[337]     Offence 8 reads as follows:

Offence 8

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 2.4.8 of the company operations manual in that the duty officer failed to confirm that flight GGN 125 had reached Pelee Island.

Monetary Penalty Assessed: $ 5,000.00

[338]     This offence essentially charges that the company duty officer failed to confirm that flight GGN 125 had reached Pelee Island and, therefore, was not in compliance with section 2.4.8 of the company SOPs.

[339]     Section 2.4.8 states:

The Duty Officer will ensure that all flights have reached their destinations. In the event that a flight has not arrived at a destination within one hour of its ETA and the aircraft is not on a Flight Plan filed with ATS, then the Canadian Forces Rescue Coordination Centre will be notified … .

[340]     A proper understanding of search and rescue requirements in Canada is relevant in the context of this offence.

[341]     The search and rescue services (SAR) in Canada were established in accordance with the provisions of the International Civil Aviation Organization annex 12 – "Search and Rescue". The Canadian Forces are responsible for conducting search and rescue operations. In that context, the flight plan and flight itinerary are the primary sources of information for SAR operations (AIP Canada at SAR 1-1, section 1.1 "General" [Responsible Authority], and SAR 2-1, section 2.0 "Flight Planning").

[342]     Thus, in Canada, no pilot-in-command can operate an aircraft in IFR flight unless an IFR flight plan has been filed. This will meet the requirements of ATC services, as well as those of SAR (AIP Canada at RAC 3-3, section 3.6 "Flight Plan and Flight Itineraries").

[343]     In the context of coordinating search and rescue services, pilots are therefore required to file arrival reports on completion of their flights. Section 602.77(1)(b) of the CARs requires that a pilot shall file an arrival report with an ATC unit as soon as practicable after landing but not later than "(b) when no search and rescue action initiation time is specified in the flight plan, one hour after the last reported estimated time of arrival".

[344]     This requirement is echoed in section 723.16 of the CASS, which imposes on a 703 operator the obligation of having an air operational control system which has, amongst the duties, the "monitoring of a flight's progress and the notification of appropriate air operator and search-and-rescue authorities if the flight is overdue or missing".

[345]     As far as the applicant is concerned, these obligations are more specifically assigned to the duty officer at sections 1.4.11 and 2.4.8 of the SOPs.

[346]     It can therefore be surmised that these regulatory and SOP requirements have a double purpose: (1) an internal monitoring of the whereabouts of all its aircraft; and (2) a capacity to meet its obligations relating to search and rescue.

[347]     The evidence has established that the applicant had a threefold approach to monitoring flight progress arrivals and departures:

-    company pilot reports as discussed in relation to offence 7;
-     a computer program available to the flight follower (duty officer) to monitor progress of IFR flights; and
-     direct contact between the duty officer and the crews or others to ensure arrival and departure time.

[348]     The SOPs do not impose a specific time limit within which this confirmation of flight progress must be done, but it is clear from a reading of section 2.4 ("Flight Watch/Following and Communications") that at least for IFR and night VFR flights, it is a constant monitor.

[349]     Furthermore, it is also clear that if a flight has not arrived at destination within one hour of its estimated time of arrival, the duty officer is responsible for notifying SAR coordination centers (section 2.4.8 of the SOPs).

[350]     In this case, it is clear from the evidence that

-         although the pilot-in-command did not contact the company after landing of flight GGN 125 and prior to operating flight GGN 126, he met the requirements of the CARs as far as his obligation to file an arrival report (section 602.77(1) of the CARs) by closing his IFR flight plan with Cleveland Centre prior to landing; and
-         Ms. Herbert was clear in her testimony and in all her statements that she had noticed flight GGN 125's arrival as the flight went off her computer screen indicating to her a landing.

[351]     The evidence is also clear and uncontradicted that she was in contact both with Windsor and almost simultaneously with Pelee Island regarding the possible crash of flight GGN 126. This was within one hour of the estimated time of arrival of flight GGN 125 (4:20 p.m.) at 5:11 p.m. Immediately thereafter at 5:13 p.m., she was initiating the communication process relating to an overdue aircraft.

[352]     Therefore, I am satisfied that there is a preponderance of proof establishing that Ms. Herbert, in this context, did not fail to monitor and confirm the fact that flight GGN 125 had reached Pelee Island according to the requirements set out in the company SOPs.

[353]     Therefore, I dismiss offence 8.

(7)        Offence 9

[354]     Offence 9 reads as follows:

Offence 9

Canadian Aviation Regulations 703.02, in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, and did not comply with the condition in your air operator certificate, that you conduct flight operations in accordance with the company operations manual, specifically you did not comply with section 1.4.11 of the company operations manual in that the duty officer failed to monitor the progress of flight GGN 126 specifically the duty officer was unaware of the alternate aerodrome selected for the flight.

Monetary Penalty Assessed: $ 5,000.00

[355]     This charge stems, according to Inspector McEvoy, from his interview with Ms. Herbert on September 22, 2004, where when asked what the alternate was for flight GGN 126 on January 17, 2004, she stated in answer to question 19 that "[it] was most likely London" (exhibit M-13).

[356]     The Minister proposes that, in fact, Captain Price had changed his alternate from the centre stored alternate and anticipated if required proceeding to Detroit (DTW). This opinion stands from the inscription in block 9 (Alternate) (exhibit M-18). Exhibit M-18 is a document recovered in the wreckage of the aircraft and has been discussed at length above in reference to offence 6.

[357]     Ms. Herbert's testimony was quite specific and convincing on the question of her knowledge of the alternate for flight GGN 126. In her statement to Inspector McEvoy, nine months after the events, she could not recall specifically what the alternate was, but assumed it was most likely London (CYXU).

[358]     She also indicated at the time that the alternate was also indicated in the centre stored flight plan and that is the statement that apparently led Inspector McEvoy to allege offence 9.

[359]     At the hearing, however, she corrected that statement and indicated that she now knew that the alternate on January 17th was Sarnia (CYZR). Under the questioning of counsel for the applicant, she established that on the day of the events, she had at her desk a route summary, the repetitive flight plan listing (exhibit A-1), which indicated that Sarnia was the alternate for flight GGN 126 on that day.

[360]     Furthermore, on the day of this interview in September 2004, she had no knowledge of the questions which would be asked.

[361]     Considering the length of time that has elapsed since the last flight to Pelee Island, some six months earlier and since January (nine months), the number of flights she would have followed in the course of her duties, to say nothing of the fact that alternates can change on a flight by flight basis depending on the weather and other conditions, her lapse in memory, nine months after the events, is understandable.

[362]     Furthermore, although the flight plans were centre stored by the company, it remains the pilot-in-command's duty, according to the CARs as well as the applicant's SOPs, to ensure safe carriage of his flight and that includes monitoring the weather conditions and selecting an appropriate alternate.

[363]     However, to effect a change in alternate, that intention must be communicated to ATC as well as to the company. In the course of these events, therefore, it is possible that Captain Price intended to change his alternate from the centre stored, Sarnia, to Detroit or somewhere else.

[364]     He could easily have effected that change prior to his departure from Windsor. Given the short time planned on the ground in Pelee Island, it is reasonable to assume that he had planned both flights before departure. He could also have done that change while en route to Pelee Island and in communication with ATC (Windsor clearance delivery, ground, tower, departure, Cleveland Centre, a flight service station etc.) or prior to departure out of Pelee Island.

[365]     The Minister has put forward no proof of this change in alternate. The inscription in a document per say is not sufficient to effect that change.

[366]     I am therefore satisfied from the deposition of Ms. Herbert as well as her testimony that she did know what the planned alternate was at the time of the accident.

[367]     I therefore dismiss offence 9.

(8)        Offence 10

[368]     Offence 10 reads as follows:

Offence 10

Canadian Aviation Regulations 703.88(1)(d), in that on or about January 17, 2004 at or near Pelee Island, Ontario, you operated a Cessna Caravan 208B, registration C-FAGA, where you permitted a person to act as a flight crew member when the person had not fulfilled the requirements of your ground and flight training program in that the person had not been trained in all the elements of your "Safety Awareness Program".

Monetary Penalty Assessed: $ 3,750.00

[369]     The Minister's allegation in offence 10 is that the applicant permitted a crew member (Captain Price) to operate a flight when he had not fulfilled all the requirements of his ground and flight training program in that, more specifically, he had not been trained in "all the elements" of the applicant's Safety Awareness Program.

[370]     As mentioned earlier, the Minister must prove on a balance of probabilities its allegations.

[371]     The only evidence provided by the Minister in support of this alleged offence is the statement of Inspector McEvoy that he was "confused" and "baffled" from the fact that:

-     there seemed to be generally two sets of training records, one set of which was unsigned or signed by the instructors after the date of the accident; and
-     out of these documents, one page appearing in both sets, dealing with the "Ground Training Safety Awareness Program" was unsigned altogether.

[372]     Hence, according to his testimony, that meant the above-mentioned specified training had not been carried out.

[373]     No witnesses were called. No instructor, supervisor or anyone who had any dealings with either the training or the signing of documents (exhibits M-28 and M-29) were called to prove and corroborate the Minister's allegation.

[374]     On the contrary, according to the applicant, the same documents established that Captain Price had in fact met all of the training requirements for his initial conversion course to the Cessna 208B Caravan. I must agree.

[375]     The applicant submitted the testimony of Captain Leach, the company chief pilot, whose duties included the supervision of the training and checking of company pilots such as Captain Price.

[376]     His uncontradicted evidence was to the effect that Captain Price had met all the requirements of his ground and flight training conversion course. The segments of these training phases did include all of the elements that appeared on the training form (exhibit M-29 at 10-11), which the Minister proposed as the basis for this alleged offence.

[377]     The question of the two sets of training records, which apparently raised certain questions for Inspector McEvoy, has a simple explanation. The evidence heard during the hearing from Mr. Mulrooney, the applicant's president and chief executive officer, and Captain Leach, as well as the statement of Mr. Burton (in his letter relating to Captain Price's check ride (exhibit M-28)) seem to indicate that in all probability, Captain Price was still in possession of his training records which had been remitted to him by the check pilot after his check ride.

[378]     Hence, when in the course of the investigation, the applicant was asked to submit Captain Price's training file, it had to reconstruct it from its old files, some of which resided on the applicant's computer system. That was the package which was submitted as exhibit M-28.

[379]     The origin of the second set of documents was not established clearly, but they seem to have been provided by the TSB (exhibit M-29).

[380]     Also, the uncontradicted testimony of Captain Leach established that, although a form appears both in the company SOPs and was provided as part of the training package relating to "ground training – safety awareness program", the topics of this program are not covered as a stand alone training phase, but are included in the overall course material covered during the ground and flight training phases of the conversion course. This explains why this particular form was unsigned in both sets of documents.

[381]     Finally, it is also important to note that there were two independent observers who corroborated this statement.

[382]     One of them was the check pilot who did Captain Price's initial PPC on the Cessna 208B Caravan, thereby completing his conversation course on November 30, 2003.

[383]     The check pilot before commencing a PPC check ride has the obligation to examine and verify the validity of the pilot's training file (section 8.6.1(d) of the Approved Check Pilot Manual, 7th ed., March 2001 (TP 6533E)). A PPC will not be conducted if the training documents are not presented and are not valid or if the company has failed to provide all relevant training for the candidate, as specified in the operator's approved training program. This training includes the relevant ground training (section 8.6.2).

[384]     In his letter to Captain Leach (exhibit M-28 at 17), the freelance approved check pilot, J.D. Burton, relating to Captain Price's PPC ride of November 30, 2003, stated that "[t]he candidate's training file was presented to me and appeared to be complete". He also indicated that he had returned the training file to him at that time.

[385]     The second independent observer was the Minister's own observer at the TSB, Yves Lemieux, who on February 18, 2004, in an interim report (exhibit A-7) entitled Minister's Observer Update Report stated that "[t]he pilot file shows that the accident pilot began its training at Air Georgian Express Ltd. on November 19, 2003. The records show that his training covered all the required elements … ." (emphasis added).

[386]     I therefore find that the Minister has failed to establish the required elements of this alleged offence.

[387]     I therefore dismiss offence 10.

(9)        Offence 11

[388]     Offence 11 reads as follows:

Offence 11

Canadian Aviation Regulations 602.11(2), in that on or about January 17, 2004 at or near Pelee Island, Ontario, the pilot-in-command conducted a take-off in an aircraft, a Cessna Caravan 208B, registration C-FAGA, flight GGN 126, that had ice adhering to its critical surfaces.

The company is vicariously liable pursuant to s. 8.4(2) of the Aeronautics Act which states:

The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

Monetary Penalty Assessed: $ 5,000.00

[389]     The applicant here is charged pursuant to the vicarious liability provisions of section 8.4(2) of the Aeronautics Act for the actions of its pilot, Captain Price, who allegedly took off when his aircraft had ice adhering to its critical surfaces.

[390]     There, as discussed earlier, the Minister has the onus of establishing the constituent elements of the offence:

(a)  a pilot
(b) in the operator's aircraft
(c)  who carried out a take-off
(d) when ice was adhering to its critical surfaces.

[391]     The applicant may then avoid liability if it establishes that it exercised all due diligence to prevent the commission of this offence. As Dixon J. observed in Sault Ste. Marie, cited above in ¶ [109] at 1328: "[p]roof of the prohibited act prima facie imports the offence, but the accused may avoid liability by proving that he took reasonable care."

[392]     Before examining the evidence produced in relation to this offence, it is necessary to first deal with the applicant's first argument in law with regard to the vicarious liability provisions of the Act in relation to this case.

[393]     The applicant's argument is clear and simple: under section 8.4 of the Act, the registered owner or operator (sections 8.4(1) and 8.4(2)), amongst others, may be proceeded against in respect of and found to have committed an offence for which another person (in possession of the aircraft) may be proceeded against.

[394]     Since the process with proceeding against that "other person" is well detailed in the Act, particularly in the case of designated provisions such as here, it involves certain formal requirements which cannot be met in the case of a deceased person:

-         section 7.7(1) of the Act: service of a notice by certified mail; notice that that person may contest the assessment; and
-         section 4 of the Designated Provisions Regulations, SOR/2000-112: process of contestation.

A deceased person cannot be proceeded against and as Captain Price cannot be proceeded against, section 8.4(2) is inapplicable. The applicant cannot therefore be liable for breach of section 602.11(2) of the CARs by Captain Price.

[395]     The Minister counters that to accept this proposition would lead to an absurd interpretation of the Act since this is one of the very situations that the vicarious liability sections of the Act is meant to counter, that is the impossibility of the regulator to be able to identify and/or pursue the person who committed an offence in relation to an aircraft and yet still be able to ensure the purposes of the Act are met by all players involved in the operations of an aircraft.

[396]     It is clear from the reading of this section that the liability attaches to the owner or operator by the very act considered and not by the fact of whether the person is being proceeded against or not.

[397]     The terms "for which another person is subject to be proceeded against" do not imply either that the other person must be proceeded against, or the other person even be known or in existence.

[398]     It is clear from the plain reading of the section that the proven wrongful act of for example a pilot-in-command entails an automatic "lien" to the owner or operator of the aircraft who can then be proceeded against. The owner or operator may then establish a defence of due diligence as provided for at section 8.5 of the Act.

[399]     The purpose of this section is to put pressure on the owner or operator of an aircraft to do his duty in the interest of public welfare and safety.

[400]     It is very much akin to the duty of control by those who are responsible for the observance of public welfare regulations as observed by Dickson J. in Sault Ste. Marie, cited above in ¶ [109] at 1322:

The element of control, particularly by those in charge of business activities which may endanger the public, is vital to promote the observance of regulations designed to avoid that danger. This control may be exercised by "supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control"… The purpose … is to "put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morale." "… a man may be responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organizations up to the mark."

[401]     Therefore, to hold that because the principle possible offender is deceased, the owner (subsection 1) or operator (subsection 2) cannot be proceeded against would lead, as the Minister submits, to an absurd interpretation of the Act.

[402]     The interpretation to be given to that section must be such as to promote the objectives of the Act, which is aviation safety. As Professor Pierre-André Côté states in The Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000), at 454: "An interpretation is considered absurd if it leads to ridiculous or frivolous consequences" (also cited in the applicant's arguments at 72). To accept the applicant's submission on this point would lead to such consequences.

[403]     We now turn to the question of whether the pilot-in-command (Captain Price) conducted a take-off in an aircraft, the applicant's Cessna 208B Caravan that had ice adhering to its critical surfaces.

[404]     It is uncontested that Captain Price, the pilot-in-command of GGN 126, was in the employ of the applicant and duly authorized to carry out that flight on January 17, 2004 in the applicant's aircraft.

(a)        Icing Conditions

[405]     The Minister submits a variety of evidence on the question of icing conditions:

-         the weather data for the region that day in form of GFAs, weather forecasts and weather observations; and
-         the testimony of a number of witnesses in relation to the weather conditions and the events surrounding flights GGN 125 and 126, more particularly the testimony of Ms. Haig and Messrs. Crawford and Feltz.

(i)         Weather Data

[406]     I reviewed the applicable weather data earlier in ¶ [32] to ¶ [43]. It is clear that the general weather conditions at the time of flights GGN 125 and 126 were conducive to aircraft icing.

[407]     There was snow and eventually drizzle falling and the ground temperatures at Windsor, Cleveland, Toledo and Detroit airports were all just below freezing. There was snow falling at the time of departure of flight GGN 125 and the aircraft was in fact de-iced at Windsor prior to take-off.

[408]     The weather observations at the time of the accident were:

-         CYQG: 2000Z: 1½ SM -SN, temperature M05; 2100Z: temperature still M05;

-         KCLE: 2151Z: 2½ SM -SN, temperature M03; 2210Z: 5 SM SW (light snow), temperature M02;

-         Detroit : KDET: 2017Z: 2½ SM -SN, temperature M05;

KDTW: 2019Z: 2 SM -FZRA (light freezing rain), temperature M05; 2054Z: 2 SM -FZRA, temperature M05; 20:56 idem; and

-         CYQG: 2141Z special weather: 2 SM –SN –FZRA, temperature M05; 2200Z: 1½ SM -SN -FZRA.

[409]     There was also a mix of snow or snow and freezing rain in the surrounding areas. Detroit metro, a few miles to the west had freezing rain and temperatures of -5ºC at 3:19 and 3:54 p.m. local time, that is just prior to the departure of flight GGN 125 for Pelee Island.

[410]     We must remember also that the GFA depicted moderate mixed icing in cloud between 3 000 feet and 12 000 feet. The applicant disputes that interpretation by arguing that Pelee Island stood just outside of the delineated zone of the graphical area map. I disagree.

[411]     All of the evidence shows the system moving in a southeasterly direction towards Pelee Island and, furthermore, the freezing precipitations started falling earlier than originally anticipated as shown by both the amended forecasts and actual weather reports.

[412]     Finally, the description of the ice formation on the strut by Ms. Haig corroborates the forecast and is consistent more with mixed icing, which was the type of icing forecast, or even clear icing than with rime ice.

[413]     Ms. Haig, as mentioned earlier, is an Anglican priest, not a meteorologist or even a pilot, but her testimony in relation to her observation of the formation of ice on the strut of the aircraft on the way to Pelee Island is very revealing in that context:

Q.    … just to go back, you indicated that you saw ice forming on what you call the supports?

A.    Yes.

Q.    Is that the wing supports?

A.    Yes

Q.    Okay. And that is when you are in the clouds?

A.    Yes, when we were flying

Q.    Okay

A.    It was quite fascinating, actually.

Q.    Okay.

The Chair: Excuse me. I just want to make sure I get that right. When you were sitting in the aircraft, the question was did you notice the ice forming on the struts. Is that it?

The Witness: Yes, I did.

The Chair: And you said, "It was quite fascinating"?

The witness: Well, I had never seen that before. It just … I just happened to notice because the moisture would sort of hit it and then it would become ice and it just slowly grew thicker and thicker as more moisture came on it. I just had never seen that before and I remember watching it.

(transcript at 39-40 (February 8, 2006))

[414]     AIP Canada at MET 2-2, section 2.4 "Airframe Icing", provides a good description of the different types of icing that can form and accumulate on an aircraft:

*Rime Ice: Rough, milky, opaque ice formed by the instantaneous freezing of small supercooled water droplets.

*Clear Ice: Glossy, clear, or translucent ice formed by the relatively slow freezing of large supercooled water droplets.

[emphasis added]

[415]     It is clear from this testimony that as forecast, moderate mixed icing was occurring during the flight to Pelee Island and that Captain Price was activating his de-icing equipment to cater to this situation as Ms. Haig testified.

[416]     I am therefore satisfied that the evidence clearly establishes that there was icing occurring in the air on the flight over to Pelee Island.

(ii)        Icing on the Ground

[417]     I am also satisfied on a balance of probabilities that icing was occurring on the ground at the very least after the aircraft had landed, while it was parked at the ramp and most assuredly during its take-off run.

[418]     On this aspect of the question, the Tribunal heard the testimony of Ms. Haig and Messrs. Crawford and Feltz.

[419]     As the applicant raised questions about the credibility of Mr. Crawford and the weight to be given to parts, if not all, of his testimony, I will first deal with the testimony of Ms. Haig and Mr. Feltz.

  • Georgina Haig

[420]     Ms. Haig's testimony, as discussed earlier, is that after the aircraft landed and she had signed in at the counter, she went to her friends' truck to wait for them.

[examination-in-chief]
BY MS. PARSONS:

Q.    While you were waiting in the truck did you observe anything? Did you see anything? Could you see the plane still?

A.    Yes, the plane was still there. I originally got in … I remember thinking that I was glad there was enough room in the truck for my luggage, because otherwise it would have become wet in the back of the truck, if it had to sit back there. I remember seeing the windshield wipers going and there was thin coats of ice on the windshield.

Q.    Could you see the hunters around the plane?

A.    Yes

Q.    When you landed that day and you deplaned, do you remember the weather at that time?

A.    I remember it being very misty. I remember … not raining but misty. Because I wear glasses and, you know, I was trying to get out of the weather so that I didn't have to wipe my glasses off.

The Chair: You did or did not?

The Witness: I didn't want to, but I did have to. I got into Ella's truck as soon as I could so that I could get out of the weather.

BY MS. PARSONS:

Q.    By the time that you got into Ella's truck did you notice a change in the weather?

A.    Only that the windshield had ice on it. That would be the only change I would … I don't remember feeling that it was icy as I got out, against my skin or my glasses or anything. But I know there was definitely ice on the windshield.

[cross-examination by Mr. Trembley]

Q.    You indicated that when you disembarked from the aircraft it was misty? The weather was misty?

A.    Yes

Q.    Was it raining?

A.    I don't remember. At this point I don't remember it raining. I remember there was moisture in the air because, you know, I wear glasses.

Q.    You wear glasses. Did your glasses get wet?

A.    Yes

Q.    So, it definitely wasn't freezing precipitation at the point, then, that you left the aircraft, on arrival?

A.    When I left the aircraft? No, I probably… I don't know. No, not that I knew.

Q.    Okay, Not that you observed?

A.    That I knew, right.

Q.    Your glasses didn't have ice on them and no other indication that there was freezing precipitation, as far as you were aware?

A.    Right

(transcript at 18-19, 21-22, 34-36 (February 8, 2006))

[421]     I gather from both the expert examinations-in-chief as well as from the skillful cross-examination of counsel for the applicant that it was misty and cold when she got off the aircraft. The mist was sufficiently dense that she was happy her luggage was inside the truck because it would have gotten wet. The area is tiny and from her vantage point in the truck, she could see the aircraft. While she was in the truck, the weather changed and she could see ice on the windshield and ice forming on the windshield wipers, which were still running.

  • Paul Feltz

[422]     Mr. Feltz's testimony was quite similar to that of Ms. Haig.

[examination-in-chief by Ms. Parsons]

Q.    … [w]hat was the weather like, prior to hearing the crunchy sound?

A.    Prior to that it was kind of a heavy, misty drizzle, very cold.

Q.    When you heard the crunch sound, was the weather the same, had it changed?

A.    No, the weather, I would say, had changed from when I recall, just as the plane, I had heard it revving up to take off from the airport, it changed to a heavy, freezing rain.

I do recall walking across the snow, as the plane was revving up and taking off down the runway. And the snow had just a layer of ice on it.

[cross-examination by Mr. Trembley - response to member's question]

THE WITNESS: I remember hearing the engines revving up, which is probably the plane starting up and going down the runway. And in that time period, it was a freezing rain.

BY MR. TREMBLEY:

Q.    When you say "starting up and going down the runway", you mean starting the takeoff?

A.    Well, he may have been sitting on the runway just starting the plane, too. But I do know as the plane was going down the runway, it definitely was a freezing rain on the ground.

Because I do recall walking on the snow and there being a layer of ice on the snow at that time already.

Q.    So you are not able to say, then, that it was freezing precipitation before the pilot started to take off?

A.    Not for sure, no.

(transcript at 84, 92-93 (February 7, 2006))

[423]     Both Ms. Haig and Mr. Feltz corroborated the situation where after the aircraft landed and before the take-off, there was a heavy cold mist falling. Ms. Haig, looking at the aircraft and the people preparing to board, observed ice forming on the windshield wipers.

[424]     Mr. Feltz was outside doing chores in that same weather and observed the cold drizzle turning to heavy freezing rain as he heard the aircraft revving up on the runway. He could not say whether freezing rain was occurring before the aircraft started its take-off run but was certain that it was occurring during the take-off run.

  • Ford Crawford

[425]     The essence of Mr. Crawford's testimony is laid out in ¶ [53] to ¶ [59]. The applicant submits that the Tribunal should give no weight to his testimony as he lacks all credibility.

[426]     The applicant argues that Mr. Crawford:

-         gave conflicting statements in relation to the time that they left his house to go to the airport;
-         changed his story as to how much ice he observed on the aircraft;
-         changed his story as to the weather conditions and made incredible statements relating to the fact that the hunters would have been standing outside the terminal waiting for the aircraft, in freezing rain;
-         gave conflicting statements as to whether he was actually loading the aircraft himself or not; and
-         gave an incredible statement to the effect that Captain Price, upon being advised by him and his friend, Mr. Janik, of the presence of ice on the left wing, shrugged it off.

[427]     The Tribunal had the opportunity to closely observe Mr. Crawford during his testimony and has examined the statements he made on two occasions and which were submitted into evidence: the statement to the OPP the day after the event (exhibit M-1) and the statement he made to Inspector McEvoy some 11 months later (exhibit M-2).

[428]     I find that these statements are generally consistent and are corroborated by the evidence discussed above. Furthermore, by his demeanor, sincerity and vivid recollection of the events, he provided a sober and credible view of the events he observed. Reviewing the whole of the evidence relating to him (depositions and testimony), I am satisfied that he did not try to color the events or propose any theory or advance a case.

[429]     As a matter of fact, when Inspector McEvoy presented some leading questions (exhibit M-2) where he could easily have elaborated to advance the case, he answered in the simple, very credible way that he presented himself at the hearing:

10.   You indicated in your statement to the OPP there was nothing unusual about the size or weight of the load. Does this mean you have seen similar loads, such as this, depart in the past?

I have seen heavier loads depart the Island.

12.   You also indicated in your statement to the OPP that Larry Janik and yourself pointed out ice build-up on the leading edge of the wing. How much ice would you say was on the leading edge?

It was at least ¼ inch ice built up.

13.   Was there ice on other parts of the airplane as well when Larry Janik and yourself pointed out the leading edge ice to the pilot?

I didn't notice.

14.   Did you get the impression the pilot was not taking your concerns seriously?

It seemed like he acknowledged it but wanted to get going.

[430]     Turning to his statement to the OPP on January 18, 2004 (exhibit M-1 at 2), Mr. Crawford stated:

… [w]hen we got to the airport we weighed all the gear and put it on the cart. The plan [sic] landed and we started loading the gear. As far as I'm concerned there was nothing unusual about the size or weight of the load.

As the gear was being loaded Larry Janik and I pointed out ice on the leading edge of the wing. The pilot stood between us and looked at the wing he seemed to just shrug it off … .

The weather conditions were freezing rain. I had to brush ice off my jacket that built up while I was loading the plane. When we left the house at 3:50 pm there was freezing rain.

[431]     The applicant in its submissions emphasized the apparent contradictions, for example, as they relate to the time he left the house, which is stated alternatively as 3:30 or 3:50 in the same statement. However, Mr. Crawford was able to put that question to rest in his testimony and, in fact, whether the departure out of his house was at 3:30, 3:45 or 3:50 p.m. really has no bearing on his credibility or to the related facts of the weather conditions at the time. Both Messrs. Crawford and Feltz were unsure of the time that day, but both were quite clear of the weather conditions.

[432]     Counsel for the applicant also raises a question of credibility coloring all his testimony in relation to his statements about the loading of the aircraft.

[433]     According to the applicant, if Mr. Crawford helped in the loading of the aircraft, he could not have seen the leading edge of the aircraft and pointed it out to Captain Price given the location of the "cargo door".

[434]     In fact, I am satisfied by the explanation given by Mr. Crawford that the "we" term, one could say, is the "royal we", referring to the group or hunting party, that is all of them, who are all his friends.

[435]     Furthermore, his testimony about observing ice on the leading edge was also in a simple truthful unembellished fashion. For example, when asked whether he had seen ice anywhere else on the aircraft he simply answered "no".

[436]     When asked about the apparent contradiction between his statements relating to the thickness of the ice, again he indicated the smaller amount 1/8 inch versus ¼ inch as he had quoted earlier.

[437]     His testimony was therefore sober, credible and consistent with the evidence presented by Ms. Haig and Mr. Feltz and I have no reason to discount it.

[438]     If further corroboration is required, the following passage from the seminal training book for pilots on weather entitled Weather Ways, 3rd ed., Transport Canada, Meteorological Branch, at 116 and 124-25, is instructive:

15.3 – How Ice Forms in Cloud and Precipitation

Airframe icing … forms when an aircraft strikes water droplets at temperatures below freezing. The seriousness of icing depends on the air temperature, the temperature of the aircraft skin and the amount of water striking the aircraft which is, in turn, partly dependent on the size of the droplet … .

15-7 – Precipitation Types and Icing

(b) Freezing Drizzle: Drizzle falls from layer-type clouds that have a high water content. Freezing drizzle is found whenever drizzle occurs in regions where temperatures are below freezing.

Icing in freezing drizzle is usually of the clear type. Its intensity depends on the intensity of the drizzle.

[439]     All of the evidence points to a cold aircraft which had encountered freezing conditions en route, landing in Pelee Island where the ground temperature was below freezing (it is important to remember that Lake Erie was frozen and temperatures at three airports within 30 miles were approximately -5ºC), and a heaving drizzle was falling.

[440]     Ice had formed on the windshield of one of Mr. Crawford's trucks before his departure from his house within the hour preceding the aircraft's arrival. Ice was forming on the windshield wipers of Ms. Haig's truck while she observed the passengers mingling around the aircraft and boarding prior to departure. Ice was forming on Mr. Crawford's jacket while he was outside waiting for his friends and the aircraft to depart.

[441]     As mentioned above, airframe icing forms when an aircraft strikes water droplets at temperatures below freezing. Any Canadian knows that the reverse is also true, when water droplets (drizzle or rain) strike a cold metal object at below freezing temperatures, ice forms.

[442]     Finally, we have the uncontradicted testimony of Mr. Feltz who clearly stated that at the very latest, as the aircraft was in its take-off run, heavy freezing rain was falling.

[443]     Now the charge is that the pilot-in-command conducted a take-off when ice adhered to the critical surfaces of his aircraft.

[444]     A take-off is defined in section 101.01(1) of the CARs as:

"Take-off" - means

(a)     in respect of an aircraft … the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface … .

[445]     Therefore, considering all the evidence put forward and discussed above, I am satisfied that the Minister has established on a balance of probabilities that the pilot-in-command conducted a take-off while ice was adhering to the critical surfaces of his aircraft.

(b)        Due Diligence

[446]     I have reviewed the respective positions of the parties generally as they relate to the exercise of due diligence by the applicant in this case earlier.

[447]     Let us now examine it in the particular context of this offence. The Minister pleads that in relation to this offence, the applicant can only escape liability if it establishes that it exercised all reasonable care.

[448]     The Minister pleads that reasonableness of care must be measured by what another experienced operator carrying on a similar activity would have done in similar circumstances. Further, it is "often best measured by comparing what was done against what could have been done …", and establishing on a balance of probabilities that "there were no reasonable feasible alternatives that might have avoided or minimized injury to others" (See Gonder, cited above in ¶ [111] at 333; also cited in the Minister's arguments at 10.)

[449]     In addition, the Minister submits that the exercise of due diligence must be carried out with regard to very high standards. Such standards, in the case of passenger carriage, are different from those that apply to the main flight operations of the applicant, being the carriage of cargo, which normally comprise 85 percent of its activity.

[450]     Proof that such a high standard for the carriage of passengers was not met is demonstrated by the fact that the applicant, after the accident, put in corrective measures after consultation with the Minister.

[451]     The applicant on this point pleads that the Tribunal must not draw improper inferences from such post-accident measures, while there is no proof that such measures have an observable effect on the risk. They should not be seen as either an admission of guilt or an inference that the required standards were not met prior to the accident. It must be remembered that such new procedures were put into place so that the applicant's AOC would be reinstated and they therefore were not completely voluntary.

[452]     Finally, there was no credible proof put to the Tribunal as to what these higher standards could have been.

(c)        Discussion

[453]     In Ryan v.Victoria (City), [1999] 1 S.C.R. 201 at ¶ 28, Major J. states:

2.  Standard of Care

28    Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.

[454]     In the context of a civil liability case, in determining what the applicable common law standard of care should be, Major J. went on to say at ¶ 40:

40    Where a statute authorizes certain activities and strictly defines the manner of performance and the precautions to be taken, it is more likely to be found that compliance with the statute constitutes reasonable care and that no additional measures are required … .

[455]     In the present case, the Minister submits, as mentioned earlier, that the applicant's regular self-dispatch system should have been modified to a co-dispatch system and that there should have been the provision of de-icing equipment on the Island as well as equipment to cater to an inspection of the critical surfaces of the aircraft. The Minister also submits that, given the short turnaround time, an additional person on board should have been provided to assist the pilot-in-command as required.

[456]     Since there was no de-icing facility, no hangar and no arrangements to cater to the aircraft, passengers and crew in the event of a forced overnight stay on the Island, the applicant had failed to provide its pilot-in-command with adequate support to operate these flights.

[457]     The applicant submits that the Minister is trying to apply to Georgian Express a standard of care that demands "virtual perfection", based on a retrospective view of what it feels could have prevented the accident. Such is not the legal standard required of the applicant. I agree.

[458]     After considering all the evidence, I am satisfied that the applicant not only met but in fact, according to the Minister's own inspectors, excelled in the performance of its duties as established not only during its first audit, but following the special purpose audit carried out without warning (and therefore without special preparation by the applicant) by the Minister's team led by Inspector Szwalek shortly after the accident, and in the latter case, particularly as it relates to training and its icing program. In that regard, Inspector Szwalek testified as follows:

[cross-examination by Mr. Trembley]

Q.    Again, is it fair to say that you had no concerns that Georgian Express aircraft were routinely flying into known icing conditions?

A.    That is correct

Mr. Trembley: … I am going to ask you if you still agree with this.

At the time you said you were very satisfied with the company, the company did very well and was cooperative in the audit.

A.    Yes

Q.    And you still believe that to be true?

A.    I do.

Q.    You also indicated at the time that you looked at the flight following operations?

A.    I did.

Q.    Can you tell us what you looked at?

A.    We looked at their dispatch service and what they had available and how they handled it. It was a contract between Georgian Express and Air Georgian.

As well as we looked at the way of their computer system on how they notified the pilots of bulletins and information that comes across, and what is on the Web.

Q.    When you were with us in October, you indicated you were quite impressed with the flight following system?

A.    I was.

Q.    And that remains your view today? Your view hasn't changed since you were with us in October; is that fair?

A.    That is correct.

Q.    Ultimately, you told us in October that the company passed the audit with flying colours?

A.    They met the standard.

Q.    You may have been a little more praiseworthy in October. You said they passed with flying colours. Do you still agree with that assessment …

A.    It was a good audit.

Q.    This indicates that the previous Transport Canada audit was conducted September 11th to September 14th, 2001?

A.    Yes, it is.

Q.    The second question indicates: "…There were no operation findings…"

A.    That is correct.

Q.    In your experience, having been involved in a number of audits, 100 or so, would you say that it is unusual for there to be no operation findings?

A.    I would say yes, that is probably a good assessment.

Q.    Have you ever come across that before, where a company has had no operation findings in an audit?

A.    Smaller operations, yes, we have.

Q.    An operator the size of Georgian Express?

A.    No, we have not.

Q.    So is it fair to say that that is a fantastic result for an operator like Georgian Express to go through an audit with no operation findings?

A.    That is a good audit.

Q.    And again, the audit in January of 2004 was also a good audit?

A.    It was.

(transcript at 40, 42-45 (February 10, 2006))

[459]     Inspector Kyro testified as follows:

[cross-examination by Mr. Trembley]

Q.    You mentioned in your evidence in-chief, you told us how you would deal with small issues, as they would come up, and you gave the example of the fuel on the ramp?

A.    Correct.

Q.    And the company dealt with that issue to your satisfaction?

A.    Yes, they did. They dealt with it immediately.

Q.    And I think you said there were no systemic issues that ever came up with Georgian Express?

A.    No, there were none during my time as principal inspector.

THE CHAIR: So you are saying there were no significant issues during the time there, in that year?

THE WITNESS: That is correct.

(transcript at 70 (February 10, 2006))

[460]     No "red flags" were ever raised in relation to the applicant's operation by the Minister. Inspector Welsh testified as follows:

[cross-examination by Mr. Trembley]

Q.    If there wasn't an audit prior to January 17th, 2004, between the September 2001 audit and January 17th, 2004, Georgian Express would have no way of knowing that there are any operational problems from Transport Canada's point of view, with their operation; is that fair?

A.    I don't know what Georgian would have known, to be honest with you. I don't know how I would answer that.

Q.    Well, if the 2001 audit didn't communicate any operational issues and if the principal operations inspector didn't communicate any significant operations issues in the course of his duties, wouldn't it be fair to conclude that the management of Georgian Express would have no way of knowing that Transport Canada had any issues, if Transport Canada did have any operations issues with Georgian Express?

A.    Well, if Transport Canada hadn't indicated any concerns to the operation, I assume … yes, that would be a fair statement in my mind.

Q.    Certainly there is nothing in your 2001 audit that would communicate to management any significant operational issues?

A.    Nothing in this audit, no.

(transcript at 52 (March 13, 2006))

[461]     The testimony of these Transport Canada inspectors was particularly impressive and determining. Their depositions were put forward with total impartiality and in a sober, coherent and very professional manner.

[462]     In the past, these representatives of the Minister, as the delegates of the Minister in the overall oversight of the applicant's operation (Inspector Kyro) and in the punctual in-depth examination of the applicant's operation (Inspectors Welsh and Szwalek), had found no irregularity with the applicant. On the contrary, they had met with a document holder that was eager and quick to correct any minor issue that came up.

[463]     All these gentlemen have substantial flying experience and expertise in 703 operations. Inspector Kyro, as mentioned earlier, was raised in such an operation. Inspector Szwalek, after having spent a considerable amount of time in 703 operations, had been in that regulatory field at Transport Canada for close to 20 years, as was Inspector Welsh, who had 12 years of commercial flying experience before joining Transport Canada more than 19 years ago.

[464]     This overall impression therefore of a well-run company was reinforced as the applicant put forward convincing evidence that it was a well-managed company.

[465]     All its senior executives were examined. They impressed this Tribunal with a candid honest appraisal of the relevant facts surrounding this tragic accident. All have substantial experience in 703 operations in flying and managerial positions. For example, Mr. Mulrooney, the president and chief executive officer of the company, has been with Air Georgian and then Georgian Express since 1989, holding commercial multi-engine IFR ratings with approximately 3 500 hours turbine flying experience. Captain Leach, Georgian Express chief pilot, holds such ratings, as well as instructor and check pilot qualifications with 4 000 hours of turbine flying expertise.

[466]     The company SOPs met the requirements of the CARs. The evidence heard by the Tribunal in relation to the company approach to its handling of icing in training, pilot awareness and actual flight operations was convincing. In that context, the Minister's position is that the lack of de-icing equipment, the lack of a ladder for aircraft inspection, and the lack of the possibility of catering to aircraft passengers and crew (no fixed-base operator) in the event of an unexpected stay on Pelee Island were all indicative of a lack of meeting the standard; this position cannot be maintained.

[467]     The Tribunal received no evidence of such requirements and the CARs and directives applicable to 703 operators surely do not impose such requirements. If the Tribunal were to hold that such was a standard applicable in this case, due to the accident, the consequence could be of a quasi-judicially recognized and applicable standard to all 703 operators.

[468]     It is to be noted that 703 carriers operate out of a myriad of airports and aerodromes, some of which have the highest amount of support, for example, operations such as out of Toronto-Lester B. Pearson International Airport, Georgian Express home base. Others have non-existing or bare minimum support such as Pelee Island.

[469]     It is an axiom that courts do not make the law but apply it.

[470]     The applicant clearly established on a balance of probabilities that it exercised all due diligence to avoid the commission of the offence by its pilot. It selected by all accounts a mature, educated candidate who had demonstrated in the past, both with the applicant and its previous work experience, the required maturity and experience to meet the standards Georgian Express and the Minister demanded of such pilots.

[471]     The applicant trained him, in particular in the context of this offence, in all aspects of its future position as a PPC holder and pilot-in-command of its Cessna Caravan operation. This training involved both a ground school and flight training and culminated in a PPC ride carried out by an independent (of the applicant) check pilot, Mr. Burton. Captain Price therefore met all the requirements of the company and the Minister of Transport to exercise his duties on flights GGN 125 and 126.

[472]     The Canadian aviation system recognizes, in fact requires, that pilots-in-command be the final authority (in a self-dispatch system) on the decision to depart. Unless and until other requirements are imposed to assist or control such decisions by the pilot-in-command, operators such as the applicant cannot be found liable if they perform to the standard that is promulgated both in the CARs and the approved company SOPs, as did the applicant in this case.

[473]     I therefore dismiss offence 11.

C.        Penalties

(1)       Summary

[474]     As seen above, we have found that the Minister has made its case in the matter of offences 3 and 7 without the applicant establishing a defence of due diligence. In both cases, the penalty assessed by the Minister for each offence was in the sum of $5 000. The Minister has made no representations as to why the assessed amount of penalty should be maintained.

[475]     The applicant submits that there are a certain number of mitigating factors which should be considered and have a weight on the severity of the penalties assessed including:

-         no previous offence: Georgian Express has no prior convictions;

-         delay: there has been a substantial delay between the commission of the offence and the penalty;

-         special factual circumstances: Georgian Express has been unfairly punished through the AOC suspension and the circumstances surrounding that;

-         cooperation with authorities: Georgian Express cooperated with the special purpose audit and with Inspector McEvoy=s investigation; and

-         manner of proceeding of authorities: Georgian Express was not given an opportunity to respond to eight of the original 11 allegations.

[476]     It is submitted that a penalty of no more than $1 000 per offence is warranted in the circumstances. The applicant further submits that the Tribunal should be guided by the principles referred to in Canada (Minister of Transport) v. Air Transat A.T. Inc., [1999], review determination, CAT file no. Q-1687-41, [1999] C.A.T.D. no. 5 (QL). There, the member reviewed factors, some aggravating, some mitigating, which should be considered at arriving at a proper balance in establishing a penalty:

¶ 13         … Without attempting to limit what such factors may include, the following may be considered:

1.         Aggravating factors:

- infractions involving dishonesty,
- planned breaches,
- premeditated breaches,
- extent of harm to victims of the offence,
- past record of similar offences,
- prevalence of the offence.

2.         Mitigating factors:

- no previous offences,
- time since last offence,
- degree of remorse,
- whether or not an admission of the offence,
- degree of cooperation with authorities,
- delay between the commission of the offence and the time of the sentence,
- conduct (involvement) of any Avictims@,
- restitution,
- type of operation (commercial or private flight),
- impact on aviation community,
- special factual circumstances,
- relevance of enforcement manual recommendations,
- effect of a monetary v. suspension penalty on individual,
- occurrence impact on aviation safety,- manner of proceeding by authorities.

[477]     This case sets out correctly some of the criteria that have been considered by this Tribunal in such matters. In the case at bar, I find that none of the aggravating factors are applicable. Although the "extent of harm to victims" criterion must be considered, I find that it has no application here as none of the breaches to the CARs and the applicant's SOPs I have found the applicant to have contravened had a direct bearing in this tragedy.

[478]     On the other hand, I can consider the following mitigating factors:

-         the fact that Georgian Express has no prior convictions;
-         the fact that there has been a substantial delay between the commission of the offence and the determination of the penalty;
-         the fact that Georgian Express has already suffered through the suspension of its AOC for the week following the accident; and
-         the fact that Georgian Express cooperated with authorities and with the special purpose audit as well as Inspector McEvoy=s investigation.

[479]     This Tribunal has complete discretion in establishing the appropriate penalty for a breach of a designated provision. It is not bound by the recommended minimum penalties mentioned in Transport Canada=s Aviation Enforcement Policy Manual (TP 13794E), which served as the basis for the $5 000 fines assessed by the Minister for each offence in the notice of assessment of monetary penalty.

[480]     Considering the above, I reduce the penalty for each offence from $5 000 to $2 000.

VII.     DETERMINATION

[481]     Counts 1, 2, 5, 6, 8, 9, 10 and 11 are dismissed. Counts 3 and 7 are upheld, but the penalty for each of these two counts is reduced to $2 000.

July 5, 2007

Pierre J. Beauchamp
Member