Regulations and You

Regulations and you

Liability for a Contravention Committed by Another Person

by Jean-François Mathieu, LL.B., Chief, Aviation Enforcement, Standards, Civil Aviation, Transport Canada

The pilot of a light aircraft was on final approach to a runway when he was instructed to expect clearance on short final and to prepare for a possible overshoot due to a vehicle on the runway. The tower controller subsequently cleared the pilot for a low approach only, but the pilot completed the landing while the vehicle was still operating on the far end of the runway.

The Canadian Aviation Regulations (CARs) require a pilot-in-command to follow the instructions issued by air traffic control. The evidence demonstrated a contravention of CAR 602.31 by the pilot-in-command; however, further investigation revealed that the pilot was a student on a solo flight and had not received any instruction regarding low approach and overshoot scenarios. The flight school was responsible for the content and quality of the training conducted and, as the owner and operator of the aircraft, was held responsible for this regulatory contravention.

The flight school was held responsible for the actions taken by the pilot-in-command through the use of a regulatory tool known as vicarious liability. While this discussion is not all-encompassing in its scope, vicarious liability can be generally described as a legal concept whereby an individual or organization may be found legally liable for a contravention committed by another person. Section 8.4 of the Aeronautics Act incorporates this concept in Canadian aviation legislation.

Section 8.4 of the Aeronautics Act specifies which parties can be found liable for a contravention committed by another person. The Act defines these parties as:

  • a registered owner of an aircraft;

  • an operator of an aircraft;

  • a pilot-in-command of an aircraft; or

  • an operator of an aerodrome or other aviation facility.

The concept of vicarious liability is important because it helps place responsibility for the a contravention of a regulation on the appropriate party. Where a party has power or influence over another, the party having the influence may be found liable for any contraventions committed by the party over which they exercise that influence and be subject to a penalty for the contravention.

The Aviation Enforcement Division uses several criteria to determine when the use of vicarious liability is appropriate. Some (but not all) of the factors that may be considered are:

  • knowledge of the circumstances;

  • involvement in the event;

  • any benefit gained by the contravention;

  • any trends or pattern of occurrences; and

  • where the identity of the actual offender cannot be determined.

For example, if you are the owner of an aircraft and you allow someone else to operate it, you will be expected to provide information regarding the details of that arrangement, and depending on the circumstances, you could be held liable for contraventions related to the use of the aircraft.

In a situation where a practice that is not compliant with the CARs is tacitly condoned or even encouraged by an organization, the organization can be found liable for a contravention that would normally be attached to the actions of an individual. If someone works for an air operator and a contravention occurs as a result of that individual’s actions, the air operator could be charged with the contravention if such actions were found to be an accepted practice in the workplace. Where proceedings are taken against a corporation, the corporate-level penalty will apply.

Conversely, where an employee of an air operator commits a contravention and the evidence demonstrates that the operator invested considerable effort in their instructions and guidance to employees to ensure that they maintain regulatory compliance, it is unlikely that the Aviation Enforcement Division would assess liability against the air operator.

Section 8.4 of the Aeronautics Act is another component in the framework to establish responsibility and accountability for actions, or lack thereof, for all parties that may have contributed to a breach of aviation regulations. There may even be cases where multiple parties could be held liable for a contravention where the evidence demonstrates shared responsibility.

The Aviation Enforcement Division supports Canada’s leadership role in aviation safety within the international community by promoting and applying a policy of fairness and firmness when dealing with contraventions of aeronautics legislation. Vicarious liability is one of the tools used to achieve this mandate. 

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