Max Aviation Inc. v. Canada (Minister of Transport), 2004 FC 1410

Date: 20041014

Docket: T-594-04

Citation: 2004 FC 1410

Ottawa, Ontario, the 14th day of October 2004

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

MAX AVIATION INC.

and

PROPAIR INC.

and

2553-4330 QUEBEC INC.

doing business as AEROPRO

Applicants

and

COMMERCIAL AND BUSINESS AVIATION BRANCH

OF TRANSPORT CANADA

and

MINISTER OF TRANSPORT OF CANADA

and

ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]        The applicants are challenging the interpretation by Transport Canada regarding the Canadian Aviation Regulations (CAR) for installing a cockpit voice recorder (CVR) in a type of aircraft under certain conditions.

BASIS OF LEGAL PROCEEDING

[2]        This is an application for judicial review filed against the interpretation given by the Commercial and Business Aviation Branch of Transport Canada (Transport Canada) that a Beechcraft BE10 (BE10) aircraft with a crew of two pilots must be equipped with a cockpit voice recorder (CVR) when the aircraft is used as an air taxi pursuant to Subpart 3 of Part VII of the Canadian Aviation Regulations (CAR):^[1]

-Information letter from Transport Canada, applicants' record (Exhibits D-1, D-2 and D-3), pages 23 to 29.

[3]        According to Transport Canada, the interpretation given was not a "decision"of a federal board, commission or other tribunal within the meaning of section 18.1 of the Federal Courts Act.^[2]

[4]        In the past the applicants continued operating their BE10 and no administrative steps were taken regarding them, since it was agreed that the applicants would be applying to the Federal Court about this interpretation by Transport Canada:

-Affidavit by Michel Gaudreau, respondents' record, page 6, paragraph 32.

[5]        Before withdrawing its earlier position in Court, the respondents submitted, the applicants should have filed an application under section 17 of the Act for a declaratory judgment, rather than an application for judicial review under section 18.1 of the Act.

[6]        In the present circumstances, the respondents have no objection to the application for judicial review at bar being heard as if it were an action pursuant to section 18.4 of the Act.

[7]        In any event, therefore, the Court will proceed on a substantive basis and reach a conclusion on the merits of the latter, in accordance with the spirit of the Act: that is, as quickly as possible, avoiding as many impediments and delays as possible.

FACTS

[8]        APPLICANTS

Max Aviation Inc.

(a)        Max Aviation Inc. operates an air transport business pursuant to an operating licence issued by Transport Canada.

            (b)        Max Aviation Inc. operates several BE10 type aircraft, including a multi-engined (twin engine), turbine-powered aircraft for six or more passengers.

            (c)        Max Aviation Inc. operates these aircraft as an air taxi service, that is on request, for a varied range of customers pursuant to Subpart 3, "Air Taxi Operations", of Part VII of the Canadian Aviation Regulations (CAR).

            (d)        Max Aviation Inc. maintains that it can quite legally operate the BE10 with only one pilot, which is done by many businesses, but for reasons having to do with customer service, passenger comfort and confidence of the travelling public in the operator and in safety in general, some businesses, including the applicants, choose to operate it with two pilots.

Propair Inc.

            (e)        Propair Inc. operates an air transport business pursuant to an operating licence issued by Transport Canada.

            (f)         Propair Inc. operates several BE10 type aircraft, including a multi-engined (twin engine), turbine-powered aircraft for six or more passengers.

            (g)        Propair Inc. operates these aircraft as an air taxi service, that is on request, for a varied range of customers pursuant to Subpart 3, "Air Taxi Operations", of Part VII of the Canadian Aviation Regulations (CAR).

            (h)        Propair Inc. maintains that it can quite legally operate the BE10 with only one pilot, which is done by many businesses, but for reasons having to do with customer service, passenger comfort and confidence of the travelling public in the operator and in safety in general, some businesses, including the applicants, choose to operate it with two pilots.

Aeropro

            (i)         Aeropro operates an air transport business pursuant to an operating licence issued by Transport Canada.

            (j)         Aeropro operates several BE10 type aircraft, including a multi-engined (twin engine), turbine-powered aircraft for six or more passengers.

            (k)        Aeropro operates these aircraft as an air taxi service, that is on request, for a varied range of customers pursuant to Subpart 3, "Air Taxi Operations", of Part VII of the Canadian Aviation Regulations (CAR).

            (l)         Aeropro maintains that it can quite legally operate the BE10 with only one pilot, which is done by many businesses, but for reasons having to do with customer service, passenger comfort and confidence of the travelling public in the operator and in safety in general, some businesses, including the applicants, choose to operate it with two pilots.

[9]        The applicants all operate BE10 aircraft and provide an air taxi service.

[10]      The BE10 is an aircraft with two turbine engines and its passenger seating configuration is for six or more passengers.

[11]      Transport Canada considers that when the BE10 is used as an air taxi and two pilots are at the controls, section 605.33(2) requires that the aircraft be equipped with a CVR:

-Information letter from Transport Canada, applicants' record (Exhibits D-1, D-2 and D-3), pages 23 to 29.

According to Transport Canada, for important reasons as set out in the transcript of the examination of Michel Gaudreau, director, commercial and business aviation, of Transport Canada:

[TRANSLATION]

                With only one pilot, really, the pilot, he is not speaking . . . once you put . . . the two pilots are . . . the result is that . . . the operation of the aircraft, they each have duties in the aircraft, and then they communicate with each other.

                So, the Cockpit Voice Recorder is there to record this communication.^[3]

[12]      The applicants maintain that:

            (a)        through its regional manager, commercial and business aviation, Transport Canada on February 24, 2004, sent the three applicants a letter requiring the installation of cockpit voice recorders (CVRs) in their BE10 type aircraft, as appears from the letters filed as D-1 (Max Aviation Inc.), D-2 (Propair Inc.) and D-3 (Aeropro);

            (b)        in these letters filed as D-1, D-2 and D-3 Transport Canada allowed thirty (30) days for the submission of a schedule of remedial measures and implementation of the installation of cockpit voice recorders (CVRs) in the applicants' BE10 aircraft;

            (c)        this implementation or remedial procedure, as described by the regional manager, could involve penal or administrative measures against the applicants if they did not comply;

            (d)        the applicants' operating licences could be suspended or revoked by Transport Canada or penal action leading to conviction or payment of fines might be undertaken pursuant to the Aeronautics Act, c. A-2.^[4]

[13]      In the applicants' submission, the interpretation of the application of section 605.33(2) of the Canadian Aviation Regulations (CAR) should be:

            (a)        until recently, in compelling the implementation of the measure, Transport Canada relied on the old regulatory provision; a copy was filed as D-4; at section 2(a)(ii), it read as follows:

is required to be operated by two pilots pursuant to the type certificate or Section 704.106 . . .

            (b)        on account of its vagueness, this section of the Regulations occasioned a clarification by Transport Canada in its Information Circular No. 0198, filed as Exhibit D-5;

            (c)        the Regulations were amended on September 1, 2003, and the new version filed as D-6 was also discussed by Transport Canada in an Information Circular, under No. 0198R, filed as D-7;

            (d)        it was in this Information Circular that Transport Canada informed all the Canadian carriers in question, including the applicants, that if they chose to use multi-pilot crews they should have cockpit voice recorders installed in their aircraft;

            (e)        to more clearly demonstrate the lack of precision in the relevant regulations on the question of cockpit voice recorders, the applicants filed as Exhibit D-8 a copy of the notice of a proposed amendment (NPA) published in the Canada Gazette, Part I, on February 15, 2003;

            (f)         in order to assist in interpreting the regulation, the applicants filed the English version of the text of section 605.33(2) as D-9 and the U.S. version published by the Federal Aviation Administration (FAA) as Exhibit D-10, as the provisions are similar.

[14]      The applicants argued that the issues were the following:

            (a)        the installation of a cockpit voice recorder in a BE10 type aircraft costs an average of $35,000 to $50,000, depending on whether it is used or new;

            (b)        the applicants alone operate some fifteen (15) of these aircraft;

            (c)        the Quebec and Canadian fleet is large;

            (d)        several operators choose to operate these aircraft with only one pilot for reasons of economy;

            (e)        if the Transport Canada interpretation prevails, some air taxi companies will be encouraged to operate their BE10s with only one pilot, and even rewarded for doing so, while the applicants would have to have costly equipment installed because they choose to do so with a two-pilot crew;

            (f)         in view of the foregoing, the applicants argued that it is not compulsory to have a cockpit voice recorder installed in their BE10s and that the installation is only required in aircraft where piloting by a two-person crew is compulsory at all times; this is in fact what counsel for the applicants replied to the regional manager in a letter dated March 18, 2004, and filed as Exhibit D-11.

[15]      For all these reasons, the applicants do not share Transport Canada's view and asked this Court to rule that they are not under a duty to install a CVR in their BE10s when this aircraft is used as an air taxi and two pilots are at the controls.

POINT AT ISSUE

[16]      The only point at issue rests on a substantive question:

is Transport Canada's interpretation, that a BE10 should be equipped with a CVR when the aircraft is used as an air taxi and two pilots are at the controls consistent with the provisions of the CAR?

ANALYSIS

[17]      When used as an air taxi, the BE10 is covered by Subpart 3 of Part VII of the CAR, titled "Air Taxi Operations", and may be operated by one or two pilots depending on the type of flight and regulatory requirements. Subpart 5 of Part VI of the CAR, titled "Aircraft Requirements", may be read with Subpart 3.

[18]      Section 703.86 of the CAR provides:

[19]      That section implicitly confirms, first, that aircraft operated pursuant to Subpart 3 of Part VII of the CAR require two pilots, and second, it is possible to operate with only one pilot if the two conditions mentioned in paragraphs (a) and (b) of that section are observed.

[20]      However, in addition to the two conditions stated in section 703.86, an aircraft may be operated by only one pilot if operations specification 011 is observed.

[21]      Operations specification 011, created by paragraph 703.86(a) of the CAR, mentions the requirements and conditions that are necessary:

1. This operations specification is issued pursuant to paragraph 703.86(a) of the Canadian Aviation Regulations. The operation of an aircraft with passengers on board in IFR [Instrument Flight Rules] flight without a second-in-command is authorized using the aircraft indicated by reference numbers and listed in section 2 of this operations specifications. This operations specifications is valid if the air operator complies with the requirements of section 723.86 of the Commercial Air Service Standards.

[22]      In fact, section 703.86 of the CAR combined with operations specification 011 forms an exception to the rule, that aircraft operated pursuant to Subpart 3 of Part VII of the CAR must be operated by two pilots, and they allow a single pilot to be at the controls of a multi-engined turbo-powered aircraft without that aircraft having to be equipped with a CVR.

[23]      At the same time, where two pilots are at the controls of a multi-engined turbo-powered aircraft like the BE10, section 605.33(2) of the CAR provides that the aircraft must be equipped with a CVR:

CONCLUSION

[24]      The need for the applicants to equip their BE10 with a CVR when the aircraft is used as an air taxi and when two pilots are at the controls is consistent with the requirement described in section 605.33(2) of the CAR.

[25]      Consequently, the Court finds that Transport Canada's interpretation, disputed by the applicants in the case at bar, is consistent with the provisions of the CAR.

[26]      Accordingly, the application for judicial review as filed, treated as an application for judicial review, is dismissed.

ORDER

FOR THESE REASONS, THE COURT ORDERS that the application for judicial review be dismissed with costs.

Certified true translation

Jacques Deschênes, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                             T-594-04

STYLE OF CAUSE:                                             MAX AVIATION INC. and PROPAIR INC. and 2553-4330 QUEBEC INC.

doing business as AEROPRO

v. COMMERCIAL AND BUSINESS AVIATION BRANCH OF TRANSPORT CANADA and MINISTER OF TRANSPORT OF CANADA and ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                       QUÉBEC, QUEBEC

DATE OF HEARING:                                         OCTOBER 5, 2004

REASONS FOR ORDER

AND ORDER BY:                                              MR. JUSTICE SHORE

DATE OF REASONS FOR

ORDER AND ORDER:                                      OCTOBER 14, 2004

APPEARANCES:

Robert Bergeron                                                                        FOR THE APPLICANT

Mélanie Boivin

Guy A. Blouin                                                                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

CAIN, LAMARRE, CASGRAIN, WELLS                              FOR THE APPLICANT

Ville Saint-Georges, Quebec

MORRIS ROSENBERG                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario