Date: 20030512
Docket: T-846-01
Citation: 2003 FCT 586
Ottawa, Ontario, this 12th day of May, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ARNIS ALBERT VEIDEMAN
Applicant
- and -
MINISTER OF TRANSPORT
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Arnis Albert Veideman (the "Applicant") makes this application for judicial review of the decision of an Appeal Panel of the Civil Aviation Tribunal (the "Tribunal"), dated April 5, 2001, in which the Tribunal allowed the appeal of the Minister of Transport (the "Respondent"), set aside the decision of William T. Tweed, Member of the Civil Aviation Tribunal (the "Review Member") and reinstated a monetary penalty of $500.00 against the Applicant.
Background
[2] On March 29, 2000, the Applicant was a helicopter pilot flying in the Blanket Ridge area of the Monashee Range, South of Revelstoke, in British Columbia. This was a heli-ski operation in which the Applicant was transporting skiers to the top of certain slopes, where the skiers would disembark and then ski down the mountain.
[3] At some points during the day of March 29, 2000, while ascending into the area known as the Vortex, the Applicant's helicopter encountered some members of a group of skiers who had accessed the area by skiing in on the up track. The Vortex up track is also the normal and safest route for the helicopter to fly up that particular slope. The skiers complained that the helicopter flew in close proximity to them on several occasions.
[4] As a result of these complaints, on May 11, 2000, the Respondent issued a Notice of Assessment of Monetary Penalty of $500.00 to the Applicant alleging that he had breached paragraph 602.14(b) of the Canadian Aviation Regulations, SOR/96-433 (the "Regulations") by unlawfully operating an aircraft at a distance of less than 500 feet from a person.
[5] On October 13, 2000, a hearing was held in Kelowna, British Columbia. In his Review Determination, dated January 4, 2001, the Review Member found that, on at least one occasion, the helicopter passed overhead of one or more skiers at less than 500 feet when it was not on approach to land. However, the Review Member found that, on the balance of probabilities, the Applicant exercised all due diligence to prevent the contravention. In particular, the Applicant was not in a position to control or know if skiers were going to be on the mountain slope along his route. According to the Review Member, the Applicant could not have been expected to alter his route, which would compromise the safety of his passengers, once he discovered the skiers on his route. The Review Member also found that it was not reasonable to expect, nor was it mandated by the Regulations, that the helicopter's operations should have been suspended because the pilot anticipated that a skier might be on his required route.
[6] The Respondent appealed the Review Determination to the Tribunal. The Tribunal allowed the appeal and reinstated the monetary penalty. In a decision dated April 5, 2001, the Tribunal found that the Review Member's finding of fact was unreasonable and that he erred in the application and interpretation of due diligence. In particular, the Tribunal found that, although the Applicant could not have known the skiers would be beneath him on his first ascent, on all subsequent ascents, he knew or should have known that the skiers were accessing the Vortex via the up track situated under his proposed flight path. As the pilot in command of the helicopter, the Applicant could control the event that led to the infraction. To avoid flying within 500 feet of the non-heli skiers, the Applicant could have chosen to go to any of the other adjacent slopes or even return to home base.
[7] The Tribunal noted that the purpose of paragraph 602.14(2)(b) of the Regulations is to keep aircraft at a safe distance from persons on the ground and to ensure the safety of those on the ground. Based on this purpose and the small number of times that the Applicant had encountered other skiers, the Tribunal dismissed the Applicant's argument that the Regulation should be interpreted to allow overflights, because to move the heli-ski operation would be to put it out of business.
[8] The Applicant is challenging the decision of the Tribunal on this application for judicial review.
Issues
[9] Based on the oral and written submissions of the parties, the single issue for determination is:
Did the Tribunal err in its interpretation and application of the law of due diligence?
Relevant Statutory Provisions and Regulations
[10] The Applicant was charged with contravening paragraph 602.14(b) of the Regulations:
| 602.14(2) (2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft ...
(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.
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602.14(2) (2) Sauf s'il s'agit d'effectuer le décollage, l'approche ou l'atterrissage d'un aéronef ou lorsque la personne y est autorisée en application de l'article 602.15, il est interdit d'utiliser un aéronef : ... b) dans les cas autres que ceux visés à l'alinéa a), à une distance inférieure à 500 pieds de toute personne, tout navire, tout véhicule ou toute structure. |
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[11] Section 602.15 of the Regulations does not apply in this case.
[12] Section 8.5 of the Aeronautics Act R.S.C. 1985, c. A-Z, sets out the defence of due diligence:
| 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. |
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8.5 Nul ne peut être reconnu coupable d'avoir contrevenu à la présente partie ou à ses textes d'application s'il a pris toutes les mesures nécessaires pour s'y conformer. |
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Analysis
Preliminary Issue: The Standard of Review
[13] In Asselin v. Canada (Minister of Transport), [2000] F.C.J. No. 256 (T.D.), aff'd [2001] F.C.J. No. 43 (C.A.), leave to appeal to S.C.C. dismissed, [2001] C.S.C.R. No 119, Pinard J. applied the pragmatic and functional approach to decisions of the Appeal Panel of the Tribunal and concluded, at paragraph 11, that the appropriate standard of review is one of reasonableness simpliciter:
Taking into account, therefore, the existence of a privative clause, the expertise of the Appeal Panel, the safety of the public contemplated by the Act and the technical and specialized nature of the Regulations, I am of the view that a standard based on judicial deference is appropriate. However, given that the issue before the Appeal Panel involved not only a question of fact but a question of law pertaining to the interpretation and application of subsection 801.01(2) of the Regulations and par. 2.5 of chapter 1 of standard 821 of the Separation Standards, I believe, as my colleague Gibson J. held in Killen v. Canada (Minister of Transport) (June 8, 1999), T-2410-97, in regard to another decision of the same Appeal Panel, that the applicable standard of review is situated somewhere between correctness and patent unreasonableness, that is, it is the reasonableness simpliciter standard.
[14] I agree with Pinard J. that the appropriate standard of review is one of reasonableness simpliciter.
[15] The Supreme Court of Canada recently addressed the nature of the reasonableness standard in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17 (QL). Iacobucci J., writing for the Court, stated at paragraph 55 that:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere.
Issue: Did the Tribunal err in its interpretation and application of the law of due diligence?
[16] The Applicant submits that the Tribunal's decision was unreasonable in that it did not properly assess whether the Applicant had exercised due diligence as set out in section 8.5 of the Aeronautics Act. Under the circumstances, it was reasonable for the Applicant to undertake flights along the ridge leading to the top of the Vortex run without compromising anyone's safety, despite being aware of the possibility that he might overfly skiers on the up track. The Tribunal was required to take into account the exceptional circumstances of these particular heli-ski operations (Marsh v. Canada (Minister of Transport), [1996] C.A.T.D. No. 44 (C.A.T.) and failed to do so. Such exceptional circumstances include the mountainous terrain and the fact that this was a commercial operation that was licensed for this particular area.
[17] In my view, the Tribunal did not err in its interpretation and application of the law of due diligence.
[18] Once the Respondent established, on a balance of probabilities, the constituent elements of paragraph 602.14(2)(b) of the Regulations, a strict liability offence, the onus shifted to the Applicant to prove, on a balance of probabilities, that he exercised all due diligence to avoid the commission of the offence R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; Aeronautics Act, s. 8.5).
[19] In Sault Ste. Marie, supra, Dickson J., as he then was, stated at page 1326 that the defence of due diligence "will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event."
[20] Sault Ste. Marie, supra was codified in section 8.5 of the Aeronautics Act and has been applied by the Tribunal (see e.g. Shermet v. Canada (Minister of Transport), [1996] C.A.T.D. No. 64 (C.A.T)). In Norris v. Canada (Minister of Transport), [2000] C.A.T.D. No. 64 (C.A.T.), a different panel of the Tribunal elaborated on the defence of due diligence at paragraph 8 as follows:
To succeed with a due diligence defence the Appellant has to prove one or more of the following:
1. That the document holder took reasonable steps to obtain all relevant information necessary for the discharge of his or her obligations set out in the CARs [the Regulations];
2. That notwithstanding the document holder's obligations as set out in the CARs he or she was not in control of the events that led to the infraction;
3. That the appropriate exercise of the authority and responsibility given the document holder did not prevent the infraction;
4. That the document holder did not have a reasonable opportunity to discover an error made by another document holder from whom he or she accepted responsibility;
5. That an equipment failure prevented the document holder from discharging his or her duty.
[21] Point number two was seen by the Tribunal as particularly relevant in this case.
[22] The Tribunal found that, although the Applicant could not have known the skiers would be beneath him on his first ascent, on all subsequent ascents, he knew or should have known that the non heli-skiers were accessing the Vortex via the up track situated under his proposed flight path. As the pilot in command of the helicopter, the Applicant could control the event that led to the infraction. To avoid flying within 500 feet of the non-heli skiers, the Applicant could have chosen to go to any of the other adjacent slopes or even return to home base.
[23] The facts highlighted by the Tribunal suggest that the Applicant did not take any steps, let alone all reasonable steps, to avoid the infraction of paragraph 602.14(2)(b) of the Regulations. On his second and subsequent ascents, the Applicant was aware that skiers were on that area of the mountain, including the up track. The Applicant, an experienced helicopter pilot, was also aware that the safest route to the Vortex was along the up track. As a result, the Applicant knew or should have known that, on his ascent toward the Vortex, he would be flying within 500 feet of skiers on the up track. However, the Applicant failed to take any steps to avoid these overflights.
[24] The Applicant could have chosen to fly his passengers to a different ski run in order to avoid flying within 500 feet of the skiers ascending the up track. He could also have chosen not to fly his passengers up the mountain at all. Given the Applicant's evidence that he rarely encountered skiers on that part of the mountain, this option would not significantly curtail the his employer's business or adversely impact the heli-skiing industry at large.
[25] In my view, the submissions of the Applicant and his actions on March 29, 2000 ignore that one of the purposes of the Aeronautics Act and its regulations is the protection of the public, which includes not only the heli-skiers in the Applicant's helicopter, but the skiers ascending the run via the up track. The Applicant had options available to him that would ensure the safety of both his passengers and the skiers on the mountain, but he persisted in a course of action which put the safety of the skiers on the up track at risk.
[26] Finally, I note that the Tribunal did not ignore the unusual circumstances of this particular operation. The decision reflects an understanding of the commercial nature of heli-skiing and an appreciation of mountainous terrain. However, on weighing all of the factors of this case, this expert tribunal concluded that the safety of the skiers on the ground was not overcome by these exceptional factors.
[27] I am of the view that the Tribunal did not err by concluding that the Applicant had not exercised due diligence. This finding was supported by the evidence before the Tribunal and the Tribunal's reasons can stand up to a somewhat probing examination.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed.
"Judith Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-846-01
STYLE OF CAUSE:ARNIS ALBERT VEIDEMAN
Applicant
- and -
MINISTER OF TRANSPORT
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MAY 7, 2003
REASONS FOR ORDER BY: SNIDER, J.
APPEARANCES BY: Mr. Ronald Chapman
For the Applicant
Ms. Liz Tinker
For the Respondent
SOLICITORS OF RECORD: Ronald Chapman, Esq.
Barrister and Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030512
Docket: T-846-01
BETWEEN:
ARNIS ALBERT VEIDEMAN
Applicant
- and -
MINISTER OF TRANSPORT
Respondent
REASONS FOR ORDER