Max Aviation Inc. v. Canada (Transport Canada)

Max Aviation Inc. v. Canada (Transport Canada) Court (s) Database Federal Court of Appeal Decisions Date 2005-10-17 Neutral citation 2005 FCA 335 File numbers A-603-04, A-604-04 Notes Digest Decision Content Date: 20051017 Dockets: A-603-04 A-604-04 Citation: 2005 FCA 335 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. NOËL J.A. BETWEEN: Docket: A-603-04 MAX AVIATION INC. and PROPAIR INC. and 2553-4330 QUÉBEC INC., carrying on business as AÉROPRO Appellants and COMMERCIAL AND BUSINESS AVIATION BRANCH OF TRANSPORT CANADA and MINISTER OF TRANSPORT OF CANADA and ATTORNEY GENERAL OF CANADA Respondents and Docket: A-604-04 AIR SATELLITE INC. Appellant and COMMERCIAL AND BUSINESS AVIATION BRANCH OF TRANSPORT CANADA and MINISTER OF TRANSPORT OF CANADA and ATTORNEY GENERAL OF CANADA Respondents Hearing held at Québec, Quebec, on October 17, 2005. Judgment delivered from the bench at Québec, Quebec, on October 17, 2005. REASONS FOR JUDGMENT OF THE COURT: NOËL J.A. Date: 20051017 Dockets: A-603-04 A-604-04 Citation: 2005 FCA 335 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. NOËL J.A. BETWEEN: Docket: A-603-04 MAX AVIATION INC. and PROPAIR INC. and 2553-4330 QUÉBEC INC., carrying on business as AÉROPRO Appellants and COMMERCIAL AND BUSINESS AVIATION BRANCH OF TRANSPORT CANADA and MINISTER OF TRANSPORT OF CANADA and ATTORNEY GENERAL OF CANADA Respondents and Docket: A-604-04 AIR SATELLITE INC. Appellant and COMMERCIAL AND BUSINESS AVIATION BRANCH OF TRANSPORT CANADA and MINISTER OF TRANSPORT OF CANADA and ATTORNEY GENERAL OF CANADA Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Québec, Quebec, on October 17, 2005) NOËL J.A. [1] These are two appeals brought by the appellants - i.e. Max Aviation Inc., Propair Inc., 2553-4330 Québec Inc., carrying on business as Aéropro, and Air Satellite Inc. - against two decisions by the Federal Court of Canada, dated October 14, 2004, dismissing the appellants' application for judicial review with costs in each docket. [2] These two appeals were joined by an order of our Court dated January 24, 2005, and in accordance with the terms of that order these reasons have the effect of deciding both appeals and will be filed in both dockets. Background [3] The appellants tried to verify, through a judicial review, the soundness of the interpretation by the Commercial and Aviation Branch of Transport Canada ("Transport Canada") to the effect 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"),SOR/96-433. The Federal Court echoed this interpretation. [4] According to the appellants, the Federal Court judge erred in law in endorsing the interpretation by Transport Canada with respect to the installation of a CVR in the aircraft they operated since none of the relevant provisions required the installation of CVRs in the aircraft in question. The judge had also made two incidental errors in handling the evidence and in the awarding of costs. Relevant statutory provisions [5] Enabled by the Aeronautics Act, R.S.C. 1985, c. A-2, the CAR includes regulatory requirements bearing on broad matters relating to aviation for which Transport Canada is responsible. Among these regulatory requirements, the following provisions of Subpart 5 (Aircraft Requirements) of Part VI (General Operating and Flight Rules) and of Subpart 3 (Air Taxi Operations) of Part VII (Commercial Air Services) of the CAR are relevant: CANADIAN AVIATION REGULATIONS, SOR/ 96-433 PART VI (GENERAL OPERATING AND FLIGHT RULES) RÈGLEMENT DE L'AVIATION CANADIEN, DORS/ 96-433 PARTIE VI (RÈGLES GÉNÉRALES D'UTILISATION ET DE VOL DES AÉRONEFS) SUBPART 5 (AIRCRAFT REQUIREMENTS) SOUS-PARTIE 5 (EXIGENCES RELATIVES AUX AÉRONEFS) DIVISION II - AIRCRAFT EQUIPMENT REQUIREMENTS SECTION II - EXIGENCES RELATIVES À L'ÉQUIPEMENT DE L'AÉRONEF Flight Data Recorder and Cockpit Voice Recorder Enregistreur de données de vol et enregistreur de la parole dans le poste de pilotage 605.33 (1) Subject to section 605.34, no person shall conduct a take-off in any of the following multi-engined turbine-powered aircraft unless the aircraft is equipped with a flight data recorder that conforms to section 551.100 of Chapter 551 of the Airworthiness Manual and section 625.33 of Standard 625 - Aircraft Equipment and Maintenance of the General Operating and Flight Rules Standards: 605.33 (1) Sous réserve de l'article 605.34, il est interdit d'effectuer le décollage d'un des aéronefs multimoteurs à turbomoteur suivants, à moins qu'il ne soit muni d'un enregistreur de données de vol qui est conforme à l'article 551.100 du chapitre 551 du Manuel de navigabilité et à l'article 625.33 de la norme 625 - Normes relatives à l'équipement et à la maintenance des aéronefs des Normes relatives aux règles générales d'utilisation et de vol des aéronefs: (a) an aircraft in respect of which a type certificate has been issued authorizing the transport of 30 or fewer passengers, configured for 10 or more passenger seats and manufactured after October 11, 1991; a) un aéronef à l'égard duquel un certificat de type a été délivré autorisant le transport de 30 passagers ou moins et dont la configuration prévoit 10 sièges passagers ou plus et qui a été construit après le 11 octobre 1991; (b) an aeroplane in respect of which a type certificate has been issued authorizing the transport of 30 or fewer passengers and configured for 20 to 30 passenger seats; b) un avion à l'égard duquel un certificat de type a été délivré autorisant le transport de 30 passagers ou moins et dont la configuration prévoit de 20 à 30 sièges passagers; (c) an aircraft in respect of which a type certificate has been issued authorizing the transport of more than 30 passengers; and c) un aéronef à l'égard duquel un certificat de type a été délivré autorisant le transport de plus de 30 passagers; (d) an aircraft in respect of which a type certificate has been issued authorizing the transport of cargo only and operated under Subpart 5 of Part VII. d) un aéronef à l'égard duquel un certificat de type a été délivré autorisant uniquement le transport de fret et qui est utilisé en vertu de la sous-partie 5 de la partie VII. (2) Subject to section 605.34, no person shall conduct a take-off in a multi-engined turbine-powered aircraft that is configured for six or more passenger seats and for which two pilots are required by the aircraft type certificate or by the subpart under which the aircraft is operated, unless the aircraft is equipped with a cockpit voice recorder that conforms to section 551.101 of Chapter 551 of the Airworthiness Manual and section 625.33 of Standard 625 - Aircraft Equipment and Maintenance of the General Operating and Flight Rules Standards. (2) Sous réserve de l'article 605.34, il est interdit d'effectuer le décollage d'un aéronef multimoteur à turbomoteur dont la configuration prévoit six sièges passagers ou plus et pour lequel le certificat de type de l'aéronef ou la sous-partie en vertu de laquelle il est utilisé exige deux pilotes, à moins qu'il ne soit muni d'un enregistreur de la parole dans le poste de pilotage qui est conforme à l'article 551.101 du chapitre 551 du Manuel de navigabilité et à l'article 625.33 de la norme 625 - Normes relatives à l'équipement et à la maintenance des aéronefs des Normes relatives aux règles générales d'utilisation et de vol des aéronefs. PART VII (COMMERCIAL AIR SERVICES) PARTIE VII (SERVICES AÉRIENS COMMERCIAUX) SUBPART 3 (AIR TAXI OPERATIONS) SOUS-PARTIE 3 (EXPLOITATION D'UN TAXI AÉRIEN) DIVISION VII - PERSONNEL REQUIREMENTS SECTION VII - EXIGENCES RELATIVES AU PERSONNEL Minimum Crew Équipage minimal 703.86 No air operator shall operate an aircraft with passengers on board in IFR flight with fewer than two pilots unless the air operator 703.86 Il est interdit à l'exploitant aérien d'utiliser un aéronef en vol IFR ayant des passagers à bord avec moins de deux pilotes à moins que les conditions suivantes ne soient respectées: (a) is authorized to do so in its air operator certificate; and a) l'exploitant aérien y est autorisé aux termes de son certificat d'exploitation aérienne; (b) complies with the Commercial Air Service Standards. b) l'exploitant aérien satisfait aux Normes de service aérien commercial. The facts [6] The appellants operate an air transport company and for that purpose use BE10 aircraft. Both parties agree that this type of aircraft does not require the presence of two pilots and that the type certificate issued for this aircraft authorizes its use with a single pilot. [7] However, even if the BE10 was conceived to be operated by a single pilot, the cockpit can accommodate two pilots and the appellants occasionally choose to operate the aircraft with two pilots. They do so because, in their opinion, the presence of two pilots inspires the trust of the travelling public and contributes to the passengers' comfort. [8] Further, when used as an air taxi, the BE10 is regulated by Subpart 3 of Part VII of the CAR which requires the presence of two pilots in certain circumstances unless the operator has been authorized to use a single pilot in its air operator certificate and it has complied with the Commercial Air Service Standards. [9] On that point, it is worthwhile to refer to operations specification 011 (also called "operator certificate") which was filed by the appellant, Max Aviation Inc.: 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 usingthe 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. [Emphasis added.] [10] The respondents also acknowledged before the first judge that in this case the appellants met theCommercial Air Service Standards. Decisions appealed [11] The Federal Court judge identified the issue as follows at paragraph 16 of his reasons: [I]s 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? [12] He answered in the affirmative. The full text of his reasons (references to the provisions at issue and certificate 011 omitted) reads as follows: [19] [Section 703.86] 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 [:]; [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. Analysis and decision [13] With respect, we do not share the interpretation of the provisions relied on by the first judge in making this determination. [14] Subsection 605.33(2) requires the presence of a CVR in the cockpit of an aircraft "for which two pilots are required by the aircraft type certificate or by the subpart under which the aircraft is operated . . ." [15] Yet, it is admitted that the BE10 aircraft type certificate does not require two pilots. [16] In Subpart 3, there is the authorization to operate a BE10 with a single pilot ("with fewer than two pilots") if the operator is authorized to do so in its air operator certificate and if it complies with the Commercial Air Service Standards. These two conditions are also met in this case. [17] It follows that, if we turn back to subsection 605.33(2), neither the aircraft type certificate, nor the Subpart under which that aircraft is used requires two pilots. According to the very wording of this provision, which in our opinion is not ambiguous, a CVR is therefore not required. [18] It is worthwhile to add that contrary to what the first judge seems to understand (reasons, paragraph 22), section 703.86 only bears on the number of pilots who must be flying an aircraft with passengers on board when in instrument flight (Instruments Flight Rules). The CVR is not mentioned. [19] The first judge was therefore wrong to determine that the CAR requires the appellants to equip their BE10 aircraft with CVRs when two pilots are at the controls. [20] We are also of the opinion that the judge should have accepted the late filing of the air operator certificate of the appellant, Max Aviation Inc. That certificate was at the heart of the dispute before the Court. The evidence was useful, if not necessary, to resolve the issue in dispute. [21] Moreover, this certificate was issued by the respondents and it was in their possession at all times. There would therefore be no element of surprise for them if it were filed, even late. Similarly, the late filing of this certificate would not cause them any prejudice and would not have delayed the hearing of the application for judicial review in progress. More importantly, the judge stated this in the reasons of his decision. [22] As for the attack on the double award of costs at first instance, despite the joint hearing, it is not necessary to decide the matter since we are allowing the appeal. [23] The appeals shall be allowed, the decisions by the Federal Court shall be set aside and it shall be declared that the appellant may operate their BE10 aircraft as a commercial air taxi service voluntarily and at their discretion with two pilots, without being required to equip their aircraft with a cockpit voice recorder (CVR). [24] Given the fact that there was common evidence and a joint hearing at the Federal Court and the joinder of appeals before this Court, the appellants shall be entitled to their costs, but only one set of costs for fees in each of the proceedings. They will also be entitled to be reimbursed for their disbursements in each docket for both proceedings. "Marc Noël" J.A. Certified true translation Kelley A. Harvey, BCL, LLB FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A-604-04 and A-603-04 STYLE OF CAUSE: MAX AVIATION INC. and PROPAIR INC. and 2553-4330 QUÉBEC INC., carrying on business as AÉROPRO AND 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 17, 2005 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. NOËL J.A. REASONS FOR JUDGMENT OF THE COURT: NOËL J.A. DELIVERED FROM THE BENCH BY: NOËL J.A. APPEARANCES: Robert A. Bergeron / Mélanie Boivin FOR THE APPELLANTS Guy-A. Blouin FOR THE RESPONDENTS SOLICITORS OF RECORD: Caïn, Lamarre, Casgrain, Wells - St-Georges, Quebec FOR THE APPELLANTS Department of Justice Canada - Ottawa, Ontario FOR THE RESPONDENTS Date: 20051017 Québec, Quebec, October 17, 2005 CORAM: DÉCARY J.A. LÉTOURNEAU J.A. NOËL J.A. BETWEEN: Docket: A-603-04 MAX AVIATION INC. and PROPAIR INC. and 2553-4330 QUÉBEC INC., carrying on business as AÉROPRO Appellants and COMMERCIAL AND BUSINESS AVIATION BRANCH OF TRANSPORT CANADA and MINISTER OF TRANSPORT OF CANADA and ATTORNEY GENERAL OF CANADA Respondents and Docket: A-604-04 AIR SATELLITE INC. Appellant and COMMERCIAL AND BUSINESS AVIATION BRANCH OF TRANSPORT CANADA and MINISTER OF TRANSPORT OF CANADA and ATTORNEY GENERAL OF CANADA Respondents JUDGMENT The appeals are allowed, the decisions of the Federal Court are set aside and it is declared that the appellants can operate their BE10 aircraft as a commercial air taxi service voluntarily and at their discretion with two pilots without being required to equip their aircraft with a cockpit voice recorder (CVR). The appellants will be entitled to costs, but only one set of costs for fees in each of the proceedings. They will be entitled to be reimbursed for their disbursements in each docket for both proceedings. "Robert Décary" J.A. Certified true translation Kelley A. Harvey, BCL, LLB