Decisions

CAT File No. Q-1068-37
MoT File No. NAP6504-C005254-025562

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Trans-còte Inc., Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7, 8.4(1), 8.5
Air Regulations, C.R.C. 1978, c. 2, s. 555(1)d)

Vicarious Liability, Take-off Below Minimum Visibility, Due Diligence


Review Determination
Pierre Rivest


Decision: October 9, 1995

TRANSLATION

I dismiss the allegation against Trans-Côte inc. and quash the monetary penalty of $250.00.

The Review Hearing on the above matter was held September 22, 1995, in the municipal hall at the City Hall, in Blanc-Sablon, Quebec.

Neither party called witnesses.

BACKGROUND

Trans-Côte inc. is alleged to have contravened paragraph 555(1)(d) of the Air Regulations on June 16, 1994 at approximately 12:10 hours, while it was the owner of the PA-31 aircraft registered as C-GOVZ, which took off from the Blanc-Sablon airport when visibility was below the minima prescribed in Canada Air Pilot.

The company was charged pursuant to subsection 8.4(1) of the Aeronautics Act.

As the monetary penalty of $250.00 was unpaid as of the prescribed due date of July 7, 1995, the matter was referred to the Civil Aviation Tribunal for review.

THE FACTS

This matter is directly related to the matter of Minister of Transport and Jerry Wilkins, CAT File No. Q-0453-33, and it was agreed that all facts, arguments, testimony and exhibits in the first matter (which was heard the previous day) would apply in this matter.

In contrast to the other matter, simultaneous interpretation was not required in this hearing (except to explain certain terms in Exhibit R-4) as it was conducted in French.

I. Umberto Tamboriello, Representing the Applicant

Mr. Tamboriello initially submitted only the following.

Referring to Exhibit R-1 (2 pages), he demonstrated that Trans-Côte inc. was in fact the owner of PA-31 aircraft C-GOVZ and that, consequently, if its pilot Jerry Wilkins were found guilty, Trans-Côte inc. would also be found guilty pursuant to subsection 8.4(1) of the Aeronautics Act and would be required to pay the penalty assessed against it.

II. Jimmy Joncas, Representing Trans-Côte inc.

Mr. Joncas emphasized the following.

1. He did not deny that Trans-Côte inc. was the owner of aircraft C-GOVZ on June 16, 1994.

2. Mr. Joncas claimed, however, that if the company is charged pursuant to subsection 8.4(1) of the Aeronautics Act, it would be fully entitled to demonstrate that in accordance with section 8.5 of that Act it cannot be found guilty of contravening section 555 of the Air Regulations, as it exercised all due diligence to comply with all Parts of the Act and all regulations and orders made under the Act.

3. Mr. Joncas submitted the following evidence to substantiate the foregoing claim:

(a) Trans-Côte inc. operates its air service under an Operating Certificate (Exhibit T-1, 14 pages) issued by Transport Canada.

(b) Trans-Côte inc. also has an Operations Manual, which it intends to use to show that it exercised all due diligence in regard to safety and compliance with the regulations.

For example, section 4.1.1 (Exhibit T-2) indicates that if revenue-producing flights must be approved by the Director of Operations or Chief Pilot, the pilot-in-command is also authorized to do so in special cases.

Such authorization is, in fact, self-dispatch (this term was used throughout the argument).

4. To facilitate decision-making by its flight crews, Trans-Côte inc. provides them with all the required documentation, including Canada Air Pilot, Air Navigation Orders, Air Regulations, navigation charts, and others.

5. For all aircraft it operates, the carrier provides pilots with a guide containing information relating to each aircraft (Exhibit T-3).

6. Exhibit T-4 (4 pages) is an excerpt from the Operations Manual detailing the duties of each individual and directing them to comply with the regulations; of particular note is section 3.2.7. This is to demonstrate clearly the company's self-dispatch policy.

7. Section 6.5 (Exhibit T-5) is very explicit with regard to take-offs in conditions below the weather minima prescribed in Canada Air Pilot: they are not allowed. The same applies to landings (Exhibit T-6, 2 pages).

Exhibit T-7 contains further instructions on piloting aircraft.

8. In addition to issuing directives in its Operations Manual, the company takes certain measures to ensure that these directives are followed:

(a) annual written examinations;

(b) one-on-one meetings with employees;

(c) video-taping of briefings;

(d) occasional flights accompanied by the Director of Operations.

9. The foregoing was submitted to demonstrate that Trans-Côte inc. exercises all due diligence to ensure compliance with the regulations.

The company nonetheless promotes self-dispatching and gives its flight crews full latitude to do so, but it also provides all the required support.

III. Cross-examination by the Applicant's Representative

In cross-examination, the Applicant pointed out that the pilot flying aircraft C-GOVZ on June 16 was none other than the Chief Pilot of the company (it was proved in the previous hearing that June 16 was Mr. Wilkins' first day as Chief Pilot), and that taking off in conditions below the prescribed weather minima was proof that the Director of Operations provided inadequate supervision contrary to his own Operations Manual.

IV. Reply by the Respondent

In reply to this allegation, the Respondent reiterated that the flight was self-dispatched and that all steps were taken to ensure that it was in accordance with the regulations.

In addition, company officers have never pressured flight crews to make flights that they would not want to make for reasons of safety.

ARGUMENT

I. Umberto Tamboriello, Representing the Applicant

Mr. Tamboriello emphasized two important aspects:

1. On the basis of the conditions governing issuance of the Operating Certificate, the Chief Pilot holds a key position (Exhibit R-2, 2 pages), and he must be considered "the directing mind and will" of the company.

Transport Canada takes the position of Chief Pilot very seriously, as section 7.1 of the Aeronautics Act indicates (Exhibit R-3).

2. Further, referring to the document entered into evidence by the Respondent (Exhibit T-4, section 3.2.2), the Chief Pilot must maintain "total supervision" over operations and, consequently, his role is of primary importance within the company.

3. The other important point raised by the Applicant is a determination by the Civil Aviation Tribunal in Minister of Transport and Canadian Helicopters Ltd. (File No. W-0134-37) (Exhibit R-4), in which the concepts of "due diligence" and "directing mind and will" of the company are discussed in the last paragraph of page 3 (the French-language version was not available, but the Respondent, with the assistance of the interpreter, accepted the English-language version).

In the present matter, it was the Chief Pilot himself who contravened the regulations; in addition, he set a bad example for another pilot who was going to try a Transport Canada proficiency test (Exhibit R-5; the reference is to a pilot named Gosse).

Notwithstanding the foregoing, the concept of due diligence does not apply in this case, and Trans-Côte inc. cannot invoke section 8.5 of the Aeronautics Act, as it did not provide adequate supervision.

II. Respondent's Argument presented by Jimmy Joncas

Mr. Joncas reiterated that the duties of the Chief Pilot must be considered separate from those of an ordinary pilot and that, in this case, Jerry Wilkins was acting as an ordinary pilot-in-command.

With regard to the requirement to set an example as Chief Pilot, he proved in the previous hearing that he took all steps to ensure that the flight was legal, and he did not act without due consideration.

The company, for its part, exercises all due diligence to maintain aviation safety, and it ensures that its personnel comply with the regulations. Its self-dispatch policy applies to all personnel and all work tools are provided for that purpose.

ANALYSIS

As the Tribunal dismissed the Minister's allegation in the first hearing, it is self-evident that the allegation against Trans-Côte inc. must also be dismissed in reference to subsection 8.4(1) of the Aeronautics Act.

Notwithstanding this determination, in this hearing I find that Trans-Côte inc. is justified in invoking section 8.5 of the Aeronautics Act and that it proved that it exercised all due diligence to ensure that its personnel complied with the regulations.

I further consider the self-dispatch policy completely normal for a small air carrier which, to a large degree, operates in remote and isolated areas. To attempt to do otherwise would be idealistic. Clearly, if the carrier operates in this manner it must take appropriate measures to operate safely and within the regulations; in my view, Trans-Côte inc. has proved that it did so.

In this respect I concur with the Determination of the Tribunal in Minister of Transport and Canadian Helicopters Ltd., entered into evidence by the Applicant, on the basis of the penultimate paragraph (page 4) of that Determination, and I allow Trans-Côte inc. to invoke section 8.5 of the Aeronautics Act.

Therefore, irrespective of the first Determination with regard to the pilot Mr. Wilkins, I would dismiss the Minister's allegation in the present matter.

DETERMINATION

In this matter, the proceeding by the Minister against Trans-Côte inc. is directly related with the previous matter (Minister of Transport and Jerry Wilkins). As I dismissed the Applicant's allegations in the first matter, I dismiss the present allegation and quash the monetary penalty assessed against Trans-Côte inc.

Pierre Rivest
Member
Civil Aviation Tribunal


Appeal decision
Guy Racicot, Michel Larose, Suzanne Jobin


Decision: July 4, 1996

TRANSLATION

The Tribunal dismisses the appeal and confirms the determination of first instance which had reversed the Minister's decision.

In accordance with the expressed wishes of the parties, only written arguments were submitted to the Appeal Panel in this case. The members assigned to review the first instance determination met on May 22, 1996, in the absence of the parties.

It is worth mentioning that this matter is closely related to the case of Minister of Transport and Jerry Wilkins, CAT File No. Q-0453-33. It was understood by the parties involved that the evidence submitted in the latter case could be used in the present matter.

BACKGROUND

Trans-Côte Inc. is alleged to have contravened paragraph 555(1)(d) of the Air Regulations on June 16, 1994, at which time it was the owner of aircraft PA-31, registered as C-GOVZ. Said aircraft took off from the Blanc-Sablon airport when visibility was below the limits specified in the Canada Air Pilot (CAP).

The Respondent is being proceeded against pursuant to subsection 8.4(1) of the Aeronautics Act. As the monetary penalty had not been paid by the due date, a Review Hearing before the Civil Aviation Tribunal was set. Said hearing was held on September 21 and 22, 1995 before Member Pierre Rivest.

At the conclusion of this hearing, Mr. Rivest dismissed the Minister's allegation, having found that the Respondent Company had proven, in accordance with section 8.5 of the Aeronautics Act, that it had exercised all due diligence to comply with the regulations.

THE LAW

Subsection 8.4(1) of the Aeronautics Act provides as follows:

8.4 (1) The registered owner 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 owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

Section 8.5 of the Aeronautics Act provides as follows:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

GROUNDS FOR THE APPEAL

The Minister of Transport appeals this determination on the following grounds:

1. The Tribunal based its decision on ill-founded findings of fact and law; specifically, that Mr. Rivest had erroneously concluded that proof of a due diligence defence had been established.

2. Any additional grounds as may be revealed by the transcript of the procedures.

ARGUMENTS

Transport Canada maintains that evidence demonstrated that the pilot-in-command of the aircraft owned by the Respondent contravened paragraph 555(1)(d) of the Air Regulations on June 16, 1994. Transport Canada contends that this suffices to establish the Respondent Company's liability.

Although the Minister of Transport acknowledges that the Respondent Company had taken certain steps to prevent the offence, the Minister maintains that these steps were inadequate within the meaning of section 8.5 of the Aeronautics Act.

In this respect, the Minister contends that Trans-Côte must assume an additional liability, as its employee was not only the pilot-in-command but also its chief pilot.

Consequently, the Appellant asks the Tribunal to declare that the Appellant did in fact establish the liability of the Respondent within the meaning of subsection 8.4(1) of the Aeronautics Act and to declare further that the Respondent did not establish that it exercised all due diligence within the meaning of section 8.5 of said Act.

The Respondent, on the other hand, maintains that Mr. Rivest's determination is well founded, in fact and law. In this respect, he points out that the Respondent Company had exercised all due diligence to prevent the offence.

For these reasons and those invoked by Mr. Rivest, the Respondent asks the Tribunal to uphold the determination of first instance.

DISCUSSION

The arguments presented and the evidence on record have convinced the Tribunal that, under the circumstances, the Respondent Company had established, on a balance of probabilities, that it had exercised all due diligence pursuant to section 8.5 of the Aeronautics Act.

In fact, according to the testimony, the Respondent met all its obligations with respect to air regulations. Furthermore, it implemented good control and monitoring measures, and took steps to ensure that its personnel was competent and complied with established standards and regulations.

It must be remembered that, on June 16, 1994, pilot Wilkins was acting as pilot-in-command and that, in this capacity, he was the sole person liable for decisions concerning the aircraft.

Accordingly, the Tribunal dismisses the Appeal.

Reasons for Appeal Determination:

Ms. Suzanne Jobin

Concur:

Mr. Guy Racicot
Dr. Michel Larose