Decisions

CAT File No. Q-1277-02
MoT File No. NAP6504-P331078-027947

CIVIL AVIATION TRIBUNAL

BETWEEN:

Alain Charron, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., c. A-2, s 6.9, 8.4(3), 8.5
Air Regulations, C.R.C. 1978, c. 2, s 505, 515

Vicarious liability, Controlled airspace, Parachuting


Review Determination
Suzanne Jobin


Decision: October 1, 1996

TRANSLATION

The Tribunal confirms the decision of the Minister of Transport and upholds the three-day suspension assessed by the Minister. Said suspension shall begin on the fifteenth day following service of this determination.

The Review Hearing on the above matter was held Wednesday, September 11, 1996, at 10:00 hours at the Canadian International Trade Tribunal, Standard Life Centre, South Tower, 333 Laurier Avenue West, in the city of Ottawa, Ontario.

BACKGROUND

On April 30, 1996, Transport Canada sent the Applicant a notice that his commercial pilot licence was suspended for a period of three days. This Notice of Suspension reads in part as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened section 515 of the Air Regulations.

On March 8, 1996, at the airport in Gatineau, Quebec, you were the pilot-in-command of the aircraft registered as C-GZTE while parachute jumps were made in controlled airspace, without having obtained the required prior authorization of the Department of Transport.

As the pilot-in-command of said aircraft, you were proceeded against pursuant to subsection 8.4(3) of the Aeronautics Act.

On May 16, 1996, the Applicant filed a request for review and made an application for a Stay of Suspension. The application for a Stay of Suspension was granted by the Tribunal and a Notice of Review Hearing was served on the parties concerned, setting September 11 as the date of the Review Hearing.

At the start of the hearing, the Applicant's representative filed a preliminary motion asking the Tribunal to set aside immediately the Notice of Suspension, as the alleged facts were frivolous and groundless. The Tribunal denied this motion, deeming it premature.

THE LAW

Section 515 of the Air Regulations stipulates that:

515. Parachute descents, other than emergency descents, shall not be made

(a) in controlled airspace or within any air route designated as such by the Minister except in accordance with the written authorization of the Minister; or

(b) over the built-up areas of any city, town or other settlement, or over an open air assembly of persons except in accordance with the written authorization of the Minister.

Section 505 of these Regulations stipulates that:

505. Prior to the commencement of any flight, the pilot-in-command of an aircraft shall familiarize himself with all available information appropriate to the intended flight.

THE FACTS

On March 8, 1996, Mr. Alain Charron was the pilot-in-command of a Cessna 172 aircraft registered as C-GZTE. On this occasion, parachutists were dropped from the aircraft in controlled airspace without the necessary authorization having been obtained.

The Applicant's representative told the Tribunal that the facts submitted were not in dispute.

ARGUMENTS

The Applicant's representative argues that the evidence presented at the hearing did not show that Mr. Charron had committed the alleged offence or that he himself had, without authorization, made a parachute jump in controlled airspace. According to its allegations, the Respondent is attributing responsibility for a reprehensible act to the pilot-in-command of the aircraft who evidently committed no offence. Mr. Charron's representative is therefore asking that the Notice of Suspension be set aside.

Transport Canada argues that the Applicant is responsible for the offence in question, whether or not it was committed directly by him. It contends that the fact that Mr. Charron was the pilot-in-command of the aircraft at the time of the offence is sufficient to incur his responsibility. Mr. Charron should have been familiar with the applicable regulation and made sure no offence was committed on board the aircraft during flight time. The Respondent asks that the Tribunal confirm the Minister's decision and uphold the suspension.

DISCUSSION

During the Review Hearing, Transport Canada had to prove, on a balance of probabilities, that the alleged contravention took place. The Respondent also had to show that the Applicant was the pilot-in-command of the aircraft at the time of the alleged contravention. These elements of proof were essential to incur the Applicant's responsibility.

Once these elements were established, the Applicant had the burden of proving, on a balance of probabilities, that the offence was committed without the consent of the pilot-in-command, or that he had exercised all due diligence to comply with the applicable legislative provisions.

Subsection 8.4(3) of the Aeronautics Act stipulates as follows with respect to vicarious liability:

(3) The pilot-in-command 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 the offence was committed without the consent of the pilot-in-command and, where found to have committed the offence, the pilot-in-command is liable to the penalty provided as punishment therefor.

The Act defines "pilot-in-command" as follows:

"pilot-in-command" means, in relation to an aircraft, the pilot having responsibility and authority for the operation and safety of the aircraft during flight time;

Section 8.5 of this same Act states:

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.

In the present case, the Applicant has invoked neither the exceptions nor the defences stipulated in the Aeronautics Act. The Applicant has the onus of establishing that he falls into the category of exceptions referred to in subsection 8.4(3) or section 8.5 of the Act in order to release himself from his responsibility.

CONCLUSION

On examining the evidence submitted, the Tribunal considers that Transport Canada has discharged its burden of proof. The Applicant has brought no evidence that would release him from his responsibility as pilot-in-command of the aircraft registered as C-GZTE.

The provisions of the Aeronautics Act respecting vicarious liability are clear and not open to interpretation. The allegations of the Applicant's representative to the effect that the pilot-in-command of an aircraft cannot be held responsible for contraventions committed by others while the aircraft is in flight are counter to the provisions of the Aeronautics Act which explicitly provide for vicarious liability in such circumstances.

Furthermore, it bears pointing out that according to the definition of the term "pilot-in-command" contained in the Aeronautics Act, Mr. Charron was the person having responsibility and authority for the operation and safety of the aircraft during flight time. The Tribunal cannot support the position expressed by the Applicant's representative.

DETERMINATION

The Tribunal therefore confirms the Minister's decision and upholds the suspension assessed.

Suzanne Jobin
Member
Civil Aviation Tribunal


Appeal decision
Carole Anne Soucy, Faye H. Smith, Michel Larose


Decision: April 22, 1997

The Appeal is dismissed. The three-day suspension is confirmed and shall begin on the fifteenth day following service of this determination.

An Appeal Hearing on the above matter was held March 19, 1997, at 13:00 hours at the Tribunal Offices at 333 Laurier Avenue West, in Ottawa, Ontario.

BACKGROUND

The Appellant is appealing the determination of Suzanne Jobin, Member, following a request for review filed by Alain Charron. The Minister of Transport assessed a three-day suspension of Mr. Charron's commercial pilot licence for a contravention of section 515 of the Air Regulations. The Notice of Suspension contained an assertion that Mr. Charron was proceeded against as pilot-in-command of the aircraft pursuant to subsection 8.4(3) of the Aeronautics Act.

GROUNDS FOR APPEAL

The Tribunal Member at review confirmed the decision of the Minister of Transport and upheld the three-day suspension assessed by the Minister. From that determination, the Appellant seeks redress on the following grounds set out in his Notice of Appeal filed on October 11, 1996:

  1. The review member erred in law, fact, and in jurisdiction by finding Alain Charron violated Air Regulation 515. The review member had no evidence that Alain Charron had made a parachute descent contrary to Air Reg. 515. The review member had evidence before her that two other persons made the parachute descents and at the time of the parachute descents Alain Charron was flying a commercial aircraft.
  2. The review member erred in law, fact and in jurisdiction by finding that the pilot of an [sic] commercial aircraft is responsible for the acts of other persons who make parachute descents. The Aeronautics Act, or Air Regulations at the time of the alleged offence did not contain such a legal presumption.

The Notice of Appeal also contained the following paragraphs:

Now under CAR 602.26 and CAR 603.37 the Minister includes the pilot in the category with the parachutists in the class of persons responsible for parachute descents but at the time of the alleged offence such a presumption did not exist.

The questions that the appeal hearing must answer are:

  1. Did Allan Charron make a parachute descent?
  2. If Allan Charron did not make a parachute descent who did and did they violate Air Regulation 515?
  3. If other persons violated Air Regulation 515 where in the Aeronautics Act, or Air Regulations does it state the pilot of the aircraft is responsible for the parachute descent of others (at the time of the alleged offence)?

If the appeal tribunal can not answer either question 1, or both questions 2 and 3 in the affirmative they must overturn the findings of the review member.

THE FACTS

The following statement of facts was not disputed by the Appellant's agent. On March 8, 1996, Mr. Alain Charron was the pilot-in-command of a Cessna 172 aircraft registered as C-GZTE when parachutists were dropped from the aircraft in controlled airspace at the airport in Gatineau, Quebec, without the necessary authorization having been obtained from Transport Canada.

THE LAW

Section 515 of the Air Regulations states that:

515. Parachute descents, other than emergency descents, shall not be made

(a) in controlled airspace or within any air route designated as such by the Minister except in accordance with the written authorization of the Minister; or

(b) over the built-up areas of any city, town or other settlement, or over an open air assembly of persons except in accordance with the written authorization of the Minister.

Subsection 8.4(3) of the Aeronautics Act is as follows:

(3) The pilot-in-command 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 the offence was committed without the consent of the pilot-in-command and, where found to have committed the offence, the pilot-in-command is liable to the penalty provided as punishment therefor.

APPELLANT'S ARGUMENT

By way of argument, the agent for the Appellant stated that the reference in section 515 of the Air Regulations was to a parachute descent and asserted that Mr. Charron did not make a parachute descent.

In response to the Appeal Panel's query as to the application of subsection 8.4(3) the agent submitted that this section does not apply to section 515 of the Air Regulations because he (Mr. Charron) did not make a parachute descent. He said that there was a lack of evidence that there was a parachute descent from the aircraft.

RESPONDENT'S ARGUMENT

The Minister's representative reviewed the evidence relevant to the allegation that Mr. Charron flew registered aircraft C-GZTE in controlled airspace. At page 25 of the transcript, jumps in controlled airspace are acknowledged as follows:

  • C'est Tango Echo, monsieur, puis on vient de dumper nos gars.
  • Zulu Tango Echo, Roger. Juliet India Xray, the para drops are just beginning at this time. They are dropped from 4,000 feet. They should be landing on the airport site.

The evidence of Mr. Gendron, a flight information specialist on duty at the time of the alleged incident, was that he had acknowledged receipt of a communication from Mr. Charron regarding parachute jumps. Mr. Charron communicated: "qu'il 'dumperait' des parachutes au-dessus de l'aéroport."

The facts of this case are not in dispute. Their admission may be found at page 45 of the transcript where the pilot's agent, Mr. Floyd, responded affirmatively to the question posed by the Hearing Officer as follows: "You admit the evidence that was given this morning by the Minister of Transport, everything?" ... Mr. Floyd: "Yes"

The Respondent's representative submitted that the fact that Mr. Charron, the pilot, did not personally make a parachute jump from the aircraft was irrelevant to the facts of the case as Mr. Charron was pursued as pilot-in-command of the aircraft pursuant to subsection 8.4(3) of the Aeronautics Act.

The Respondent's representative submitted further that the Appellant's reference to the Canadian Aviation Regulations is also irrelevant to the facts of this case as they were not in force at the time of the commission of the offence, and thus the action must be based on the law as it was at the time that the offence was committed.

CONCLUSION

The Appeal Panel finds that section 515 of the Air Regulations is the relevant wording for consideration in this matter and that the wording of the newly minted Canadian Aviation Regulations is neither relevant nor helpful to our determination. The wording of section 515 above is clear, as are the obligations it imposes.

As noted by the Tribunal member in the Review Determination, according to the definition of "pilot-in-command" found in the Aeronautics Act, Mr. Charron was the person having responsibility and authority for the operation of the aircraft during flight time. We find the question of whether Mr. Charron made a parachute descent to be irrelevant as well, as he was, by his own admission, pilot-in-command and was pursued in this capacity per subsection 8.4(3) of the Aeronautics Act. It is clear that the Minister of Transport has exercised its option to proceed vicariously by proceeding against the pilot-in-command of the aircraft and to hold the pilot-in-command responsible for the offence

It is equally clear, in this as in all strict liability offences, that once the Minister has established the facts of the case, the onus then shifts to the pilot to exculpate himself by proving that the offence was committed without his consent. The defence of due diligence is also available to the pilot in circumstances warranting its application as contemplated by section 8.5 of the Aeronautics Act.

This panel is of the view that the Minister of Transport has made out its case on a balance of probabilities and that the Appellant has not met his burden of satisfying the Appeal Panel of the applicability of a defence. The Appellant has not produced any evidence that would absolve him of his responsibilities as pilot-in-command on the day in question.

Accordingly, we are satisfied with the conclusion reached by the Tribunal member at review and concur with her determination in all respects.

DETERMINATION

The Appeal is dismissed. The three-day suspension is confirmed.

Reasons for Appeal Determination:

Faye Smith, Chairperson

Concurred

Dr. Michel Larose, Member
Carole Anne Soucy, Member