Decisions

CAT File No. Q-1191-02
MoT File No. NAP6504-P333724-027593

CIVIL AVIATION TRIBUNAL

BETWEEN:

Noël Parent, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., c. A-2, s. 6.9
Air Regulations, C.R.C. 1978, c. 2, s. 400

Seaplane, Lack of endorsement, Floatplane flight, Due diligence, Defences


Review Determination
Guy Racicot


Decision: July 10, 1996

TRANSLATION

The Tribunal upholds the suspension of the applicant's private pilot licence for a period of fourteen (14) days, as imposed by the Minister. Said suspension will take effect on the fifteenth day following service of this determination.

The Review Hearing on the above matter was held April 16, 1996 at the Federal Court of Canada, in the city of Quebec, Quebec.

SUMMARY

The Minister alleges that the Applicant piloted a sea aeroplane, between June 6, 1995 and July 28, 1995, while his licence was not endorsed for this purpose. The Applicant maintains that he took training and that he is competent to fly a sea aeroplane. He also maintains that he thought he was authorized to fly sea aeroplanes by virtue of a form given to him by his instructor upon completion of his training.

THE FACTS

The Applicant obtained his private pilot licence on September 21, 1993, subsequently taking training to qualify as a sea aeroplane pilot. According to the Applicant's testimony, this training was provided by Mr. Émile Rhéault who, on October 1, 1993 gave the Applicant a document entitled Flight Crew Licence – Application for Endorsement. A copy of this document was produced as Exhibit M-4.

For reasons that were not revealed during the investigation, this application for endorsement was never processed. Consequently, the Applicant's private pilot licence was never endorsed for piloting sea aeroplanes.

The Applicant declared that he believed form M-4 authorized him to pilot a sea aeroplane. Accordingly he piloted a sea aeroplane without holding a valid licence (admission M-1) until July 1995. Early in September 1995, following a claim presented to his insurers, the Applicant realized that his licence was not valid for piloting sea aeroplanes and took steps to have it endorsed by his instructors, Rhéault and Dumont.

Lorraine Dumont refused to issue a "certificate of additional privileges" to him because too long a period, that is more than two (2) years, had elapsed between completion of his training and the request for issuance of a certificate of endorsement.

After applying to the Minister of Transport, Mr. Parent obtained a certificate authorizing him to pilot sea aeroplanes as of November 14, 1995.

On December 1, 1995, a Notice of Suspension was issued against Mr. Noël Parent for having piloted sea aeroplanes between June 6 and July 18, 1995, while his licenced was not endorsed for this purpose. Mr. Parent requests a review hearing with respect to this decision.

During his testimony, Mr. Parent indicated that, while he was completing his sea aeroplane pilot training, he was also taking night flying training. Nevertheless, because he had not received a document similar to that labelled M-4 with respect to night flying, he did not make any night flights. Mr. Parent introduced these facts in support of his claim according to which he thought he was authorized to pilot a sea aeroplane.

THE LAW

Section 400 of the Air Regulations states that no person shall fly as a flight crew member of an aircraft unless he is the holder of an appropriate licence or permit.

The Tribunal must determine whether Mr. Parent committed the alleged offence while he knew that he was competent to fly a sea aeroplane and believed that he held a valid authorization to do so.

ARGUMENT FOR THE MINISTER

The Minister's representative alleges Mr. Parent was negligent because he did not ask his instructor about the significance of the document the latter had given him, that is the application for endorsement of qualification, and because he did not carefully read the document which, in the opinion of the Minister's representative, clearly indicates that it is not an endorsement, but rather an application for endorsement.

The Minister's representative claims that Mr. Parent did not show reasonable care. He maintains that Mr. Parent cannot plead ignorance of the regulations. He claims that the period of nearly two years, from the Applicant's receipt of the application for endorsement to the day on which Mr. Parent realized that his pilot's licence was not endorsed, is in fact of such a length as to confirm Mr. Parent's negligence.

The Minister's representative submits that proof of the offence has been established and that Mr. Parent should be found guilty.

ARGUMENT FOR THE APPLICANT

The Applicant claims, through counsel, first that he was qualified and that the fact that his licence was not formally endorsed is of no great importance.

Secondly, the Applicant invokes a defence of reasonable care. He admits to having piloted without having the appropriate endorsement. He claims that he acted as a reasonable person and that rather than having shown undue disregard, he simply was confused by these new documents. He believed that he was authorized to pilot a sea aeroplane and continued to do so in good faith until he learned, from his insurers in September 1995, that his licence was not endorsed for piloting sea aeroplanes.

DISCUSSION

As Mr. Parent's alleged offence is a strict liability offence, the onus was on the Minister to prove the offence. The proof was established to the satisfaction of the Tribunal. The Applicant himself admitted having piloted sea aeroplanes. The documentary evidence has established that Mr. Parent's licence was not endorsed for piloting sea aeroplanes.

The Tribunal must determine whether, as alleged by counsel, Mr. Parent can successfully invoke a defence of reasonable care as established in the decision R. v. Sault Ste-Marie (1978) 2 S.C.R., 1299.

Case-law has established many times since the aforementioned decision that the evaluation of a defence of reasonable care makes reference to the actions of a reasonably prudent person in the performance of his functions. The evaluation of Mr. Parent's behaviour must therefore be considered with reference to his qualifications as a pilot and not in light of his status as an ordinary individual.

A pilot's training requires an individual to learn the applicable regulations in order to become aware of the privileges he is granted and the limits by which he must abide.

There is no value in discussing the principle that ignorance of the law does not constitute a defence. Mr. Parent knew, or should have known, that he needed an endorsement to pilot a sea aeroplane. He knew that it was not sufficient to be competent to pilot a sea aeroplane. His belief that the document which his instructor had given him was sufficient confirms that he knew he was required to obtain a formal endorsement.

The first line of the document tabled by the instructor, Mr. Rhéault (M-4) clearly indicates that it constitutes an application for endorsement of qualifications. Part C of said document further indicates clearly that it is a recommendation for a sea aeroplane endorsement.

In its evaluation of the Applicant's reasonable behaviour, the Tribunal notes that nearly two years went by between the issuance of document M-4 and the awareness of the lack of an endorsement. This is a very long period which should have raised questions in the mind of a reasonably attentive pilot.

CONCLUSION

Following a review of the Applicant's behaviour, the Tribunal concludes that the latter did not act as a normally prudent and careful pilot and finds that he was negligent. Under the circumstances, the Tribunal finds that the Applicant's defence is not consistent with the requirements of the defence of reasonable care.

DETERMINATION

In conclusion, the Tribunal upholds the suspension of the Applicant's pilot licence by the Minister for a period of fourteen (14) days.

Guy Racicot
Member
Civil Aviation Tribunal


Appeal decision
Caroline Desbiens, Faye H. Smith, Michel G. Boulianne


Decision: February 11, 1997

TRANSLATION

In the circumstances, the Appeal is dismissed, and the Review Determination is upheld. The Tribunal confirms the fourteen-day suspension of the Appellant's private pilot licence assessed by the Minister. The said suspension shall take effect on the fifteenth (15) day following service of this Determination.

An Appeal Hearing on the above matter was held December 11, 1996, at 10:00 hours, at the Federal Court of Canada, in Quebec City, Quebec.

The Appellant is appealing the Determination rendered July 10, 1996 by Guy Racicot, Member, following the Applicant's request for review.

The Applicant's private pilot licence was suspended for a period of fourteen (14) days pursuant to section 6.9 of the Aeronautics Act, the said suspension was to take effect on the fifteenth day following service of the Determination.

THE FACTS

The Applicant obtained his private pilot licence on September 21, 1993, and subsequently underwent training to obtain a seaplane pilot rating. According to the Applicant's testimony, this training was given by Mr. Émile Rhéault, who issued to the Applicant, on October 1, 1993, a document entitled "Flight Crew Licence — Application for Rating Endorsement." A copy of this document was entered as Exhibit M-4.

For reasons not revealed during the investigation, this Application for Endorsement was never processed, and consequently the Applicant's private pilot licence was never endorsed for flying seaplanes.

The Applicant stated that he had believed form M-4 to be a document authorizing him to fly a seaplane, which he did without a valid licence (Exhibit M-1) until July 1995. Early in September 1995, following a claim to his insurers, the Applicant noticed that his licence had no endorsement for flying seaplanes, and he went to his instructors Rhéault and Dumont to have his licence validated.

Lorraine Dumont refused to issue him a "declaration granting additional privileges" because too much time, over two (2) years, had elapsed between completion of the training and the request for the issuance of a declaration.

After contacting the Minister of Transport, Mr. Parent obtained a declaration authorizing him to fly seaplanes as of November 14, 1995.

On December 1, 1995, a Notice of Suspension was issued against Mr. Noël Parent for seaplane flights made between June 6, 1995, and July 28, 1995, during which period his licence contained no endorsement for this purpose.

Mr. Parent subsequently requested a review of this decision on December 22, 1995. That same day, the Applicant was granted a stay of the said suspension until the Review Hearing consideration and Determination.

Following the Determination of member Guy Racicot of July 10, 1996, the Request for Appeal was filed on July 29, 1996, and a stay of the suspension being appealed was granted on August 20, 1996.

GROUNDS FOR APPEAL

The Appellant, through his counsel, argued in his Notice of Appeal of July 29, 1996, and orally at the hearing, as follows:

  1. the Member erred in fact as to the assessment of the evidence, particularly with regard to Exhibit M-4 and the evidence brought with regard to the receipt of this document;
  2. the Member erred in law as to the assessment of the defence of due diligence raised by the Appellant;
  3. the Member erred in fact and in law, and in his Determination should have nullified the fourteen-day suspension assessed by the Respondent Minister.

APPELLANT'S ARGUMENT

In addition to what the facts show and what can be gleaned from the testimony given during the Review, the Appellant argues that he did not act in bad faith and was unaware of the need to hold the rating document, that is, the licence endorsement, in order to be authorized to fly seaplanes.

According to the Appellant, it was not until the fall of 1995, when he filed a claim with his insurers, that he noticed his licence was not valid for flying seaplanes and took the necessary steps. It should be noted that more than two (2) years had passed between his training and the application for the issuance of a declaration.

The Appellant's principal argument therefore rests on the issue of good faith and due diligence.

RESPONDENT'S ARGUMENT

In its argument, the Respondent argues primarily that this concerns a strict liability offence, and that all the documents produced and the considerable time that passed leave no opening for acceptance of evidence of due diligence.

DISCUSSION

Document M-4 is a document which clearly states on its face that the Appellant has received the necessary training – and the Appellant was aware of this, since he signed it on October 1, 1993.

At the same time, the instructor Rhéault certified that the candidate received the training and experience prescribed in the Personnel Licensing Handbook and is qualified for the attendant ratings.

If this document is compared with M-5, which pertains to night flying, we note that Part D has been duly completed; that is, it includes a declaration of licensed privileges by a duly authorized person, in this case Lorraine Dumont, for night flying. There are several copies of this document, including the version produced as Exhibit M-7, showing that it was signed by the Appellant on December 22, 1994, and authorized by Lorraine Dumont at the same time, that is, some seven (7) or eight (8) months before the sequence of events which occurred between June 6, 1995, and July 28, 1995.

It seems to us that the fact of obtaining his rating for night flying in late 1994 and early 1995, should have drawn the Appellant's attention to the fact that his seaplane rating form had not been completed by the Department as the form for night flying had been, and that he should have done what a prudent and reasonable pilot would do and checked this out himself, rather than wait until the events of the fall of 1995 to validate his ratings.

The alleged offence by Mr. Parent is a strict liability offence which has been amply proven by the documents filed and the testimony given during the Review. Proof has therefore been established to the satisfaction of the Tribunal. Moreover, an admission has been made by the Appellant.

As the Member rightly pointed out during the Review, the Appellant's conduct must be assessed in light of what the normal and reasonable conduct of an aeroplane pilot would be.

The evidence abundantly shows that there were sufficient indications in the documentation in his possession concerning his seaplane endorsement and his night flying endorsement to reasonably alert him, without any further knowledge being required, to the fact that he was contravening the law and was not authorized to fly seaplanes.

His reference to the sufficiency of the document suggests and implies that he knew of the existence of the official documentation, but considered the document of his instructor to be sufficient, without the need for him to await confirmation from the Department.

Evidence of due diligence might have been considered had the offence occurred within a few days of his instructor's endorsement; it cannot be considered after two (2) years given all the events known at the time of this hearing. We can only concur with the Member when he clearly states that this is a matter of an application for a rating endorsement followed by a recommendation for a seaplane rating.

Moreover, the parallel drawn earlier between the rating and the authorization for night flying in late 1994 is in itself an obvious red flag and was a clear indication to the Appellant, if it was not already apparent, that he had no seaplane rating.

CONCLUSION

After having studied the evidence and the documentation presented, the Tribunal cannot allow the Appellant's argument.

DETERMINATION

In the circumstances, the Appeal is dismissed, and the Review Determination is upheld.

ADDITIONAL COMMENTS OF MEMBER CAROLINE DESBIENS

I subscribe to the Determination of my colleagues, but would add the following:

The Appellant, Noël Parent, cites as a second ground for appeal that the Member, during the Review, erred in law as to the application of the defence of due diligence in this case. In support of his argument, the Appellant cites the Supreme Court decision in Her Majesty the Queen v. Patrick Pontes and the Attorney General of Canada (1995) 3 S.C.R. 44, which, among other things, summarizes the conditions for application of the defence of due diligence to a strict liability offence. Specifically, the Honourable Justice Cory, on page 62 of the said decision, states as follows:

Defence of due diligence

The decision in Sault Ste. Marie, supra, established that a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence. That is to say, he did what a reasonable person would have done in the circumstances to avoid the occurrence of the prohibited act.

In this case, the Appellant admits that he knew his licence had to be endorsed for seaplanes in order to comply with the law, but believed he was in compliance simply by holding Exhibit M-4, the application for endorsement. According to Mr. Parent, his ignorance as to the sufficiency of Exhibit M-4 is a factual error which would render the failure to obtain an endorsement an innocent act. In short, the Appellant claims that this ignorance constitutes one of the elements of the defence of due diligence, namely, an honest but mistaken belief in nonexistent facts.

With respect, this argument by the Appellant must be rejected. In fact, the Appellant's ignorance of the fact that his licence was not endorsed de facto constitutes, rather, ignorance of the fact that his licence was not valid to fly seaplanes under the provisions of the statute, and specifically of the Air Regulations and the Air Navigation Order, Series IV, No. 2. Rather, it is an error of law. I therefore concur with the Determination of the Member who presided over the Review that this error constitutes an error of law which is not admissible as a line of defence.

In view to the foregoing, I cannot accept this argument of the Appellant, and I subscribe to the conclusions of the Determination of my colleagues.

Reasons for Appeal Determination:

Michel Boulianne, Member

Concurring:

Faye Smith, Chairperson
Caroline Desbiens, Member