Decisions

CAT File No. Q-1138-37
MoT File No. NAP6504-C6788-026025

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Regionnair Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Aircraft Seats and Safety-Belts Order, (Air Navigation Order, Series II, No. 2), s. 4(1)

Seats, Safety belts and Safety Harnesses


Review Determination
Suzanne Jobin


Decision: April 2, 1996

TRANSLATION

The Tribunal upholds the decision of the Minister of Transport that the Respondent contravened subsection 4(1) of the Aircraft Seats and Safety-Belts Order, Air Navigation Order, Series II, No. 2. In view of the fact that this was a first offence of the said Order, the Tribunal reduces the amount of the monetary penalty, set at $1,000 by the Minister of Transport, to $750. The $750 penalty is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Tuesday, March 19, 1996, at 10:00 hours at the Sept-Iles Courthouse, in Sept-Iles, Quebec.

BACKGROUND

On September 8, 1995, Transport Canada sent the Respondent a Notice of Assessment of Monetary Penalty, which reads in part as follows:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s): Aircraft Seats and Safety-Belts Order (Air Navigation Order, Series II, No. 2, subsection 4(1)).

On December 12, 1994, at about 20:00 UTC, the aircraft registered as C-FJCL made a flight, landing at Tête-à-la-Baleine, during which there was no approved safety-belt for one of the passengers on board.

The Respondent, as the registered owner of the aircraft, was fined $1,000.

THE LAW

Section 7.7 of the Aeronautics Act stipulates as follows:

7. 7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

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

Subsection 8.4(1) of the Aeronautics Act stipulates 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.

Subsections 4(1) and 4(2) of the Air Navigation Order, Series II, No. 2, entitled Aircraft Seats and Safety-Belts Order, makes the following provision:

4. (1) Subject to subsection (2), no person shall operate an aircraft, except for a purpose referred to in section 13 or 14, unless the aircraft is equipped with an approved seat that is equipped with an approved safety-belt for each person on board the aircraft who is not an infant.

(2) An aircraft may be operated without being equipped with an approved seat that is equipped with an approved safety-belt for a passenger who is carried on a stretcher or in an incubator or other similar device that is restrained by a device approved for that purpose.

Sections 13 and 14 referred to in subsection 4(1) concern, respectively, Parachute Operations and Special Purpose Operations, and are not applicable to the present case.

In the applicable Order, "safety-belt" is defined as follows:

means any device that is designed for use in an aircraft to restrain a person and that consists of either a lap strap or a lap strap combined with a shoulder harness; (ceinture de sécurité)

THE FACTS

On December 12, 1994, Lisa Green took flight GIO-1702 on board an aircraft registered as C-FJCL belonging to Regionnair. The aircraft, a DHC-6-200, was travelling from Chevery to Tête-à-la-Baleine.

Onil Chassé was the pilot-in-command of the aircraft and was assisted by a co-pilot, Mario Fafard. No other crew member or employee of the Respondent was on board the aircraft.

Boarding proceeded without formality; the seats had not been assigned, and passengers chose their seats themselves. Lisa Green went to the rear of the aircraft and settled into a seat near Wanda-Lee Evans. She noticed that the seat she had chosen was not equipped with a complete safety-belt. In fact, part of the strap of the safety-belt was being used to secure cargo placed on the floor.

According to her testimony, the flight was packed, and there was no other seat available on the aircraft. She decided not to inform the pilot or co-pilot of the situation for fear she would have to leave the plane. Mrs. Green claims that the crew members did not check, once the passengers had boarded, to ensure that the occupied seats were equipped with safety-belts. An illuminated sign, however, stating that safety-belts should be fastened, was visible at all times.

Wanda-Lee Evans had also noticed that part of the strap of the safety-belt of her companion's seat was being used to secure cargo placed in front. She tried unsuccessfully to notify a crew member of the situation, but did not make an issue of it. Mrs. Evans corroborates Mrs. Green's testimony that all other seats on the aircraft were occupied.

Mr. Onil Chassé maintains that flight GIO-1702 was not full. He states that there were vacant seats and that every seat on the aircraft was equipped with a regulation safety-belt.

This testimony is corroborated by Mario Fafard who explains that as co-pilot, he made the usual checks on December 12, 1994. In this regard, he maintains that before take-off, he made a visual inspection to ensure that all passengers had fastened their safety-belt.

DISCUSSION

The Applicant maintains that on December 12, 1994, the crew of flight GIO-1702 did not perform their duties. In this regard, the Applicant states that Regionnair, its employees or agents, failed to ascertain whether each and every seat on the aircraft occupied by a passenger was equipped with an approved safety-belt.

This reprehensible conduct constitutes a threat to the public safety and could have had unfortunate consequences. The Applicant is therefore asking the Tribunal to uphold the Minister's decision.

The representative for the Respondent maintains that Regionnair complied with the regulation in force. According to its claims, the seat occupied by Mrs. Green was equipped with a safety-belt.

The fact that part of this belt may have been used to secure cargo should not have prevented Lisa Green from using it. The part used to secure cargo on the floor was accessible and Mrs. Green should have retrieved it. At the very least, she could have informed aircraft personnel of the situation or moved to another seat.

Finally, the Respondent maintains that the Minister of Transport has not shown beyond a reasonable doubt that Regionnair committed the offence in question. It therefore asks the Tribunal to dismiss the application of the Minister of Transport.

DETERMINATION

The Aeronautics Act is silent on the applicable criterion for evaluating evidence. The Tribunal, however, maintains that the criterion to be met is the balance of probabilities or the preponderance of evidence. In previous determinations, the Tribunal has had to rule many times on this matter, notably in:

  • Minister of Transport and Thomas Ritchie Phillips
    CAT File C-0014-33
  • Stewart Lake Airways Ltd. and Minister of Transport
    CAT File C-0093-10
  • Minister of Transport and Norman A. Milne
    CAT File C-0090-33
  • Minister of Transport and Clifton W. Armstrong
    CAT File P-0094-33
  • Minister of Transport and 123582 Canada Inc.
    CAT File Q-0274-41
  • Selbstaedt and Minister of Transport
    CAT File C-0081-02
  • Springdale Aviation Ltd. and Minister of Transport
    File CAT A-1048-10

While we are not bound by these determinations, we share the rationale of them all with regard to the applicable criterion for evaluating evidence.

The Aircraft Seats and Safety-Belts Order requires that each seat occupied by a person on board an aircraft be equipped with an approved safety-belt. Now, the evidence presented at the hearing and, specifically, the testimony heard have convinced the Tribunal that on December 12, 1994, the seat occupied by Lisa Green was not equipped with an approved safety-belt as required by the regulation in force.

The evidence also showed that on December 12, 1994, Lisa Green did not conduct herself in a prudent and careful manner. She knew full well that the seat she occupied was not equipped with a complete safety-belt.

She knew, or should have known, the applicable regulatory requirements. This was not the first flight Lisa Green had taken. In this regard, she openly admits that a visible illuminated sign reminded passengers on board that they were to fasten their seat-belts for take-off. Mrs. Green chose not to notify crew members of the situation.

While Lisa Green's conduct was far from blameless, her behaviour cannot excuse the Respondent from its responsibility. Regionnair, its employees or agents should have ensured that all seats occupied during flight GIO-1702 were equipped with a complete approved safety-belt in proper working condition.

Therefore, the Tribunal must confirm the decision of the Minister of Transport that the Respondent contravened subsection 4(1) of the Aircraft Seats and Safety-Belts Order, Air Navigation Order, Series II, No. 2.

The maximum monetary penalty stipulated in the regulation for the contravention in question is now $5,000. The Minister of Transport set the amount of the monetary penalty at $1,000, to take into account the fact that this was the Respondent's first violation of the regulation in question. In the circumstances, the Tribunal reduces the amount of this penalty to $750.

Suzanne Jobin
Member
Civil Aviation Tribunal