Date: 20020710
Docket: T-2006-00
Ottawa, Ontario, July 10, 2002
Before: NADON J.
BETWEEN:
BENOÎT DEMERS
Plaintiff
and
MINISTER OF TRANSPORT
Defendant
ORDER
The application for judicial review is dismissed with costs.
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"M. Nadon"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020710
Docket: T-2006-00
Neutral citation: 2002 FCT 762
BETWEEN:
BENOÎT DEMERS
Plaintiff
and
MINISTER OF TRANSPORT
Defendant
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review from a decision of the Appeal Panel of the Civil Aviation Tribunal ("the Tribunal") on September 18, 2000. By its decision the Tribunal upheld the first instance decision by member Carole Anne Soucy on March 21, 2000, and accordingly confirmed the decision by the Minister of Transport ("the Minister") to suspend the airworthiness certificate for the plaintiff's aircraft for the period September 15 to October 29, 1999.
[2] The relevant facts may be summarized as follows. The plaintiff owns a Bellanca 7 GCBC Citabria aircraft, registered C-GGYQ ("the aircraft"). On March 8, 1990, Transport Canada approved two equipment changes on the aircraft. Approval No. Q90-085 concerned installation of vertical vanes on the horizontal stabilizer, and the second approval, No. Q90-086, concerned the installation of a "Crosswinds Inc. STOL kit" on the wings. These changes are major modifications within the meaning of the Aeronautics Act, R.S.C. 1985, c. A-2.
[3] On March 20, 1990, approvals Q90-085 and Q90-086 were revised by a representative of the Minister, to add the following:
[Under Q90-085A):
This a "one-off" approval that cannot be extended nor transferred to any other aircraft without a subsequent approval. This approval is presently applicable only when the aircraft mentioned above is equipped with wheels or skis of an approved type and eventually with floats when flight tests are carried out. This approval has been revised to add the above supplemental limitation concerning the landing gear type permitted on this aircraft.
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[Under Q90-086A]:
Ceci est une approbation unique qui ne peut être prolongée ni transférée à aucun autre aéronef sans une approbation subséquente. Cette approbation est présentement applicable seulement lorsque l'aéronef précité est muni de roues ou skis de type approuvé et éventuellement sur flotteurs lorsque les essais en vol seront effectués. Cette approbation a été révisée afin d'ajouter la limitation supplémentaire ci-dessus en rapport avec le type de train d'atterrissage permis sur cet aéronef.
[4] On September 21, 1998, following a decision by the plaintiff to install floats on his aircraft, the maintenance director of Air Mélançon Inc.,[1] Gary Milot, wrote Transport Canada seeking an answer to the following question:
What is the requirement of Transport Canada to validate this installation on floats because of previously modified wings [Ref. #Q90-085A and Q90-086A)
[5] On September 23, 1998, Richard Fortier, an engineer, Regional Manager, Aircraft Certification, Quebec Region, answered Mr. Milot's letter as follows:
The "One-Off" Approval Nos. Q90-085A and Q90-086A dated March 20, 1990 are presently applicable only when the subject aircraft is equipped with wheels or skis of an approved type. They both state that the subject aircraft would be able to be operated with floats, of an approved type, when the appropriate flight tests are carried out. To date, we do not have any record of any flight tests that were performed to substantiate the "one-off" modifications on the subject aircraft, in the floatplane configuration, with EDO Model 89A-2000 seaplane floats.
Therefore, if it is further desired by the owner to operate the subject aircraft in the floatplane configuration, a formal request for the subsequent revision of both these "one-off" approvals should be submitted to this Office in order to be able to remove this limitation. The application should include a proposed flight test program which, when evaluated and found acceptable by this Office, will lead to our recommendation to our Maintenance Division for the issuance of an appropriate flight test permit to carry out the proposed flight tests in the floatplane configuration.
[6] As is clear from Mr. Fortier's reply, he told Mr. Milot that the owner of the aircraft had to make a flight test the program for which should first be approved by Transport Canada. Mr. Fortier's reply is the origin of the dispute in this Court, since the plaintiff installed floats on his aircraft without meeting the conditions laid down by Mr. Fortier. Specifically, the plaintiff refused to accept the condition imposed by Mr. Fortier that he should have his flight test approved before conducting it.
[7] On September 28, 1998, Transport Canada received a certificate of compliance dated September 17, 1998, stating that the floats had been installed on the plaintiff's aircraft. The certificate, signed by Pierre Lambert of Air Mélançon, indicated inter alia that installation of the floats was "subject to satisfactory flight tests".
[8] On October 3, 1998, the Air Mélançon chief pilot, Michel Lequin, did a flight test. The conclusion of Mr. Lequin's report, which was forwarded to Transport Canada, indicated the following:
The C. of G. was in the safe envelope on both flights. This aircraft is safe and comfortable to fly in the float configuration. The modifications incorporated to the aircraft do not affect adversely the control caracteristics [sic] of the aircraft.
[9] On December 16, 1998, Transport Canada informed the plaintiff that the compliance certificate of September 17, 1998, was incomplete in that [TRANSLATION] "the information on flight tests required for approvals Q90-085A and Q90-086A was not provided".
[10] On July 27, 1999, Vianney Paradis, an inspector for Transport Canada, sent the plaintiff a letter of notification telling him that the floatplane configuration had not been approved and accordingly he had to comply with Transport Canada's requirements by August 27, 1999, at the latest, otherwise his authority to fly the aircraft would be suspended.
[11] On August 9, 1999, Mr. Milot sent Transport Canada another copy of the report on the flight test conducted by the chief pilot Michel Lequin. Mr. Milot also sent the following reply to the letter of notification:
It is our opinion that the EDO 89A-2000 float installation is approved as per the requirements of T.C.A.-749 and also conforms fully to the requirements of Q90-085A and Q 90-086A, as flight tests were carried out on Oct. 03-98 before the aircraft was returned to service, acknowledging the limitation and comment section of E.O. Q90-085A and Q90-086A. Furthermore it has been demonstrated by the installer that the interrelationship between the approved modifications will introduce no adverse effect upon the airworthiness of the subject aircraft.
[12] As the reply to the letter of notification was considered unacceptable, Transport Canada suspended the airworthiness certificate for the plaintiff's aircraft on September 15, 1999. The notice of suspension, signed by Vianney Paradis, gave as a reason for the suspension the fact that the aircraft floatplane configuration had not been approved [TRANSLATION] "following installation of modifications Q90-085A and Q90-086A".
[13] On October 1, 1999, the plaintiff filed a motion for review of the suspension notice with the Tribunal. On March 21, 2000, counsellor Carole Anne Soucy confirmed the notice of suspension dated September 13, 1999. The conclusion of the decision given by Ms. Soucy reads as follows:
[TRANSLATION]
The Minister proved on a balance of probabilities that the Bellanca 7GCBC Citabria aircraft, registered C-GGYQ and owned by Benoît Demers, no longer met the conditions for issuance of the document when it was on floats. The decision to suspend the airworthiness certificate was justified. Consequently, I affirmed the suspension of the airworthiness certificate for the aircraft registered C-GGYQ for the period from September 15 to October 29, 1999, the date on which the applicant complied with the re-issuance conditions.
[14] The plaintiff appealed Ms. Soucy's decision and on September 18, 2000, the Tribunal upheld Ms. Soucy's decision and accordingly confirmed Transport Canada's decision.
[15] Before the Tribunal the plaintiff raised two points, namely that Ms. Soucy had erred in law in ascribing to the Minister powers not conferred by the Act, and that she had obviously erred in her understanding of the facts when she concluded that the plaintiff's aircraft had not been the subject of a flight test. At pp. 10 and 11 of the Tribunal's decision, under the heading [TRANSLATION] "DISCUSSION", there are the following reasons:
[TRANSLATION]
The Tribunal dismisses the first ground of appeal for the following reasons.
The letter of notification referred to s. 8.7(1) of the Act, with a deadline of August 27, 1999, and in the event there was no acceptable reply, it was s. 7.1(1) or s. 7.1(2) of the Aeronautics Act which applied for the notice of suspension.
As to s. 103.06 of the CAR, mentioned by Mr. Jenner, this actually makes no reference to the letter of notification, but it also does not exclude it.
The voluminous correspondence between March 8, 1990, and September 15, 1999, and the letter of notification (M-8) referred to in the notice of suspension, set out several points of information which are well known to the appellant.
The trial level counsellor did not err in concluding that the notice of suspension was insufficient detail to enable the applicant to be reasonably well aware of the reasons why the conditions for issuing his airworthiness certificate had not been met and to prepare his defence with full knowledge of the facts. Sections 507.02 and 507.11 of the CAR therefore apply.
The Tribunal also dismisses the second ground of appeal because, first, the approvals for aircraft modifications/repairs/equipment Q90-085A and Q90-086A are major repairs and the limitations and comments signed by Pierre Richard and dated March 20, 1990, are quite clear. In this regard, referring to the Petit Robert dictionary, the word "seulement" [only] is defined as follows: [TRANSLATION] "with nothing other than what is mentioned"; the word "éventuellement" [possibly] is defined thus: [TRANSLATION] "what may be possible", that is, what may happen if certain conditions are met. In the form of a verb, possibility is expressed by the conditional.
Second, according to s. 4.2(o) and s. 4.3(1) of the Aeronautics Act and s. 571.06 of the CAR, Messrs. Richard, Fortier and Ladouceur had all been delegated the Minister of Transport's authority to approve the use of floats in accordance with the requirements of September 23, 1998, and those requirements were observed to the letter by Mr. Milot, on behalf of the owner Benoît Demers.
In this regard, Mr. Milot clearly understood Transport Canada's requirements, but did not want to comply with them.
Accordingly, the conditions for issuing and continuing the airworthiness certificate dated March 15, 1990, are no longer being observed. Those conditions and terms, in clause 6 of the said certificate, read as follows:
In accordance with the Aeronautics Act, unless suspended or cancelled this certificate remains in effect as long as the aforementioned aircraft is maintained and certified in accordance with the applicable requirements of the Canadian Aviation Regulations.
In the instant case, the conditions required by Transport Canada were short-circuited or omitted and aircraft C-GGYQ was therefore no longer authorized to fly for the flight test conducted on October 3, 1998.
[16] According to the Tribunal, since the conditions for issuing and continuing the airworthiness certificate of the plaintiff's aircraft were no longer being observed, the Minister was justified in suspending the airworthiness certificate.
[17] The only point at issue in this Court is whether the Tribunal made an error of law or an error of fact which could justify its intervention. For the reasons that follow, my answer to that question is no.
[18] The defendant maintained that suspension of the airworthiness certificate for the plaintiff's aircraft was correct for two reasons. First, Transport Canada had not authorized the aircraft to do flight tests when the aircraft was equipped with floats, and second, because the flight test program had to be submitted to and approved by Transport Canada before the tests could be conducted.
[19] Needless to say, the plaintiff did not agree with the defendant's position. He submitted that approvals Q90-085A and Q90-086A could not support the defendant's position. By requiring that he obtain authorization for his aircraft to conduct flight tests and have a new flight test program approved first, Transport Canada was imposing on him conditions in addition to the approvals which were revised on March 20, 1990.
[20] In the plaintiff's submission, the approvals of March 20, 1990, required that flight tests be conducted and those tests were in fact conducted. Provided the flight tests were in accordance with the flight test program followed in 1990, the tests were sufficient. In the plaintiff's submission, since the 1998 flight tests corresponded to those in 1990 in all respects, the Tribunal erred when it concluded that Transport Canada could impose new conditions pursuant to the approvals of March 20, 1990.
[21] According to the plaintiff, the March 20, 1990, approvals are clear: they require that a flight test be conducted; they nowhere require that the flight test first be approved for floatplane configuration.
[22] In my opinion, the conclusion arrived at by the Tribunal does not in any way result from an error of law or an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. In Asselin v. Canada (Minster of Transport), [2001] F.C.J. No. 43, the Federal Court of Appeal affirmed as follows the judgment by Pinard J. that the applicable standard of review was that of reasonableness simpliciter:
At the commencement of the hearing, Mr. McGee, on behalf of the appellant, advised us that he agreed with the standard of review adopted by Mr. Justice Pinard (Asselin v. Canada (Minister of Transport), [2000] F.C.J. No. 256 (QL) in his review of the decision by the appeal panel of the Civil Aviation Tribunal, namely, the reasonableness simpliciter standard of the decision. We concur completely with that proposition.
Notwithstanding the able argument of Mr. McGee, we are unable to conclude that Pinard J. made any error that warrants our intervention, when he stated at paragraph 13 of his reasons:
In my opinion, taking into account the circumstances, and in particular the factual justification for the appeal panel's criticism of the applicant, it was not unreasonable for this Tribunal not to limit the application of subsection 801.01(2) of the Regulations to the precise time of the authorization given to the pilot of flight USA 304 and to extend its applicability to the entire period of time necessary for the execution of what had been authorized, that is, the period of time required for the flight USA 304 plane to reach runway 10. And it simply seems reasonable to me to apply a similar interpretation to the Regulations in question, to the effect that they contemplate an authorization that is given for as long as it may usefully be altered or cancelled, in order to prevent a violation of the prescribed separation standards. While I am not necessarily deciding that this is the "correct" interpretation to be given to the provision, the applicable standard of review in this case prevents me from intervening.
[23] In the case at bar, the parties disagree as to the meaning of approvals Q90-085A and Q90-086A of March 20, 1990. In the plaintiff's view, the floatplane configuration was approved, subject to a flight test. In the defendant's view, the plaintiff's position indicates a [TRANSLATION] "somewhat simplistic interpretation of the approvals". His interpretation was that the major modifications in 1990 were only approved when the aircraft was equipped with wheels or skis. When the aircraft was equipped with floats the plaintiff, in the defendant's submission, necessarily had to have approval for the floatplane configuration modifications, making an application for review of the approvals given on March 20, 1990. Consequently, prior approval of the flight test was required.
[24] The interpretation of the approvals Q90-085A and Q90-086A suggested by the plaintiff in my opinion is far from being unreasonable. At the same time, I also must recognize that it is possible to interpret the said approvals as the defendant suggested.
[25] After considering all the evidence, documentary and oral, the Tribunal concluded in favour of the interpretation suggested by the defendant. According to the Tribunal, the flight test of October 3, 1990, was inadmissible since on that date the aircraft did not have authority to fly on floats with the two major modifications. According to the Tribunal, Gary Milot understood Transport Canada's requirements quite clearly but did not wish to comply with them. Consequently, the Tribunal concluded that since the conditions for issuing and continuing the airworthiness certificate in effect had not been observed, the Minister was right to suspend the aircraft's airworthiness certificate.
[26] If I had to decide on interpretation of approvals Q90-085A and Q90-086A de novo, I would be inclined to find in the plaintiff's favour. At the same time, since the applicable standard of review is that of reasonableness simpliciter I cannot, unfortunately for the plaintiff, conclude that the interpretation of these documents by the Tribunal was unreasonable. Since for all practical purposes interpretation of these documents is the cornerstone of the decision rendered by the Tribunal, the plaintiff's application for judicial review will be dismissed with costs.
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"M. Nadon"
Judge
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OTTAWA, Ontario
July 10, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-2006-00
STYLE OF CAUSE: BENOÎT DEMERS v. MINISTER OF TRANSPORT
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 26, 2002
REASONS FOR ORDER BY: NADON J.
DATED: JULY 10, 2002
APPEARANCES:
EDOUARD BAUDRY FOR THE PLAINTIFF
JOSÉE PAQUIN FOR THE DEFENDANT
SOLICITORS OF RECORD:
LAVERY, DE BILLY FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
DEPARTMENT OF JUSTICE FOR THE DEFENDANT
MONTRÉAL, QUEBEC
[1] This company handled aircraft maintenance.
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