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Amendment 4 (1992)

CAT and TATC Decision Amendments

Aeronautics Indexes

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CAT File No. O-0312-10

Civil Aviation Tribunal

BETWEEN:

Minister of Transport

- and -

Aéro-Cam Inc.

Air Regulations, C.R.C. 1978, c.2, as am., s. 534(2)(a)

Low flying - Built-up area - Aerial photography - Sanction Considerations

The applicant company was proceeded against vicariously, as owner of an aircraft piloted by an employee at a prohibited altitude, while engaged in aerial photography. The Minister suspended the company's Operating Certificate for 30 days.

On review, the Tribunal confirmed the Minister's decision, but waived the suspension, noting that the suspension would cause economic hardship to employees, and would not necessarily have a deterrent effect on the pilot's actions.

On appeal by the Minister, the 14 day suspension was reinstated, with the Tribunal rejecting the reasons given at the review for waiving the sanction.

NOTE: See Maguire v. Minister of Transport (CAT File No. O-0311-02) reported in this volume, as these two cases were heard together at the review and the appeal levels.

REVIEW DETERMINATION Fortier

May 14, 1992
Ottawa, Ontario

For the reasons indicated hereafter, the Tribunal dismisses the Notice of Suspension of Aéro-Cam Inc.'s Operating Certificate issued by the Minister of Transport.

REASONS FOR DETERMINATION

NOTICE OF SUSPENSION

This matter arises pursuant to section 6.9 of the Aeronautics Act, whereby the Minister of Transport decided to suspend the Operating Certificate of Aéro-Cam Inc. for contravention of the following provisions:

"the Air Regulations, s. 534(2)(a) in that on July 7, 1991, at approximately 2:45 p.m. local time, a Piper J3C-65 registered C-FOIE was flown over a built-up area of Richmond, Ontario, at an altitude of approximately 200 to 350 feet above ground. Aéro-Cam was the registered owner of C-FOIE on the date cited above."

EVIDENCE

This matter and the matter of Robert Maguire, Applicant and Minister of Transport, Respondent (CAT file No. O-0311-02 and DOT file No. 6504-P-205947-18248) were heard jointly by the Civil Aviation Tribunal.

The evidence presented at the hearings by Transport Canada demonstrated that Mr. Maguire, while acting as pilot-in-command of aircraft C-FOIE, contravened section 534(2)(a) of the Air Regulations.

Therefore, the Tribunal ordered the suspension of Mr. Maguire's commercial pilot licence for a period of 30 days reflecting Mr. Maguire's disregard for the application of the Air Regulations.

However, the Tribunal did not find that the suspension of Aéro-Cam Inc.'s Operating Certificate for a period of 30 days, which was to come into effect on February 12, 1992 and remain in effect until March 12, 1992, was justified by Transport Canada.

The Tribunal was informed by Mr. Maguire in evidence that Aéro-Cam Inc. employed approximately 15 people in the operations of aerial photography and that the operations of the Company were more active during the summer months.

In addition, the Tribunal is of the view that suspending Aéro-Cam Inc.'s certificate of operations would not necessarily have an effect on the actions of Mr. Maguire as a pilot and that the employees of Aéro-Cam Inc. would suffer directly from Mr. Maguire's personal actions if the Operating Certificate of that company were suspended for any period of time.

Given these circumstances, the Tribunal dismisses the Notice of Suspension of Aéro-Cam Inc.'s Operating Certificate issued by the Minister of Transport.

APPEAL DETERMINATION Richard, Jobin, Rouleau

December 4, 1992
Ottawa, Ontario

The appeal is allowed. The Minister's decision to suspend the respondent's Operating Certificate for a period of 30 days is upheld. The 30-day suspension will start on the fifteenth day following the date of service of this appeal determination on the appellant.

REASONS FOR APPEAL DETERMINATION

The Minister of Transport is appealing the determination made by Jean-Marc Fortier on May 14, 1992. The Review Hearing in this case was heard jointly with the Minister of Transport v. Robert Maguire (CAT File No. O-0311-02 and DOT File No. 6504-P-205947-18248). The determination made in that matter was also appealed by the Minister of Transport. The two appeals were heard jointly.

In the determination at first instance the Tribunal, while acknowledging that the Respondent had contravened subsection 534(2) of the Air Regulations, withdrew the penalty assessed by the Minister.

The grounds for the appeal are as follows:

1.The Tribunal Member erred in waiving without proper justification the suspension in light of the finding of contravention, and the evidence filed and submissions made by the representative for the Minister of Transport with respect to the sanction.

2.Such further and other grounds that the transcript of the proceedings may disclose.

REPRESENTATIONS OF THE PARTIES

The Appellant submits in his arguments that the Tribunal member assigned to conduct the Review cancelled without proper justification the penalty assessed against the Respondent. According to the Appellant's claims, Mr. Fortier did not take into account the seriousness of the offence or the principles that must be used to determine the appropriateness of assessing or confirming a penalty. The Appellant relies in this respect on the Tribunal's determination in the case of Minister of Transport and Kurt William M. Wyer, September 6, 1988, CAT File No. O-0075-33.

In that case, the Tribunal holds that, in the event of non-compliance with a regulation, the penalty assessed must constitute a deterrent factor to encourage absolute compliance with the law and regulations in the interest of safety.

The Respondent, represented by Mr. Maguire, who was exercising the functions of pilot-in-command at the time of the alleged infraction and is one of the owners of the Respondent company, maintains in its representations that suspension of the Operating Certificate will have negative economic impacts on the fifteen employees who work for the company.

DISCUSSION

Mr. Fortier states that the Tribunal had already suspended Mr. Maguire's pilot licence for 30 days and that suspension of the Respondent's Operating Certificate was unjustified. He explains the reasons for his determination in the following terms:

"...Aéro-Cam Inc. employed approximately 15 people in the operations of aerial photography...

...the Tribunal is of the view that suspending Aéro-Cam Inc.'s certificate of operations would not necessarily have an effect on the actions of Mr. Maguire as a pilot and that the employees of Aéro-Cam Inc. would suffer directly from Mr. Maguire's personal actions if the Operating Certificate of that company were suspended for any period of time."

The arguments advanced by the Respondent regarding the negative economic impacts of suspending the Operating Certificate on the Respondent's employees cannot prevail over public safety. The latter must take precedence over all other considerations in determining the appropriateness of assessing a penalty for contravention of a regulation.

Further, in view of the authority and control functions exercised by Mr. Maguire over the management of the Respondent company and of the number of similar offences alleged against him, the Tribunal does not consider it advisable to mitigate the sanction taken by the Minister.

Moreover, the presumption to the effect that suspending the respondent's Operating Certificate would not necessarily have an effect on Mr. Maguire's future actions does not seem to justify cancelling the penalty assessed.

Examining the record of the Review Hearing and considering the representations of the parties, the Tribunal is of the opinion that a 30-day suspension is appropriate in the circumstances.

Consequently, the appeal is allowed. The Minister's decision to suspend the Respondent's Operating Certificate for a period of 30 days is upheld. The 30-day suspension will start on the fifteenth day following the date of service of this appeal determination on the appellant.

Date modified:
2010-03-31