Decision No. 133-A-2010

The suspension is no longer in effect by Decision No. 257-A-2010

April 16, 2010

File No. M4210/K8-1

APPLICATION

Kasba Lake Lodge Ltd. carrying on business as Kasba Air Service (Kasba) has applied for a review of Decision No. 460-A-2009. In particular, it requests the Canadian Transportation Agency (Agency) to review its direction that the licence be automatically cancelled within 90 days, that is February 2, 2010. It also requests that the suspension be granted to allow it to request a reinstatement in June 2010.

BACKGROUND

In Decision No. 535-A-2007, the Agency suspended Kasba's licence for one year at the request of Kasba. In Decision No. 559‑A-2008, the Agency granted another one year suspension. In those Decisions, the Agency also directed Kasba to apply for reinstatement of the licence prior to the expiry of the suspension. As no such applications were filed, Kasba was allowed 30 days to show cause why its licence should not be cancelled. Following the issuance of the show cause directions, Kasba applied for another suspension.

The Agency's general practice when licences have been suspended for two years is to only suspend a licence for another 90 days. Following that, the licence would be automatically cancelled without further notice should all the requirements of the CTA not be met at that time. Therefore, in Decision No. 460-A-2009, the licensee was granted an additional licence suspension of 90 days and was advised that its licence would be automatically cancelled after 90 days, should all the requirements of the CTA not be met at that time.

POSITION OF KASBA

Kasba submits that it understood that its insurance certificates had been provided to the Agency by its insurer and it assumed that this would result in an automatic reinstatement of its licence.

In support of its application, Kasba provided copies of Certificates of Insurance for the periods June 15 – October 10, 2008 and June 15 – October 16, 2009. Also included was a description from the insurer of its procedures with respect to Certificates of Insurance detailing how it processes renewals.

In its letter dated January 4, 2010, Kasba advised that it only used its aircraft to carry registered guests of Kasba Lake Lodge.

ANALYSIS AND FINDINGS

Pursuant to section 32 of the CTA the Agency may review, rescind or vary any decision if, in the opinion of the Agency, since the issuance of the decision, there has been a change in the facts or circumstances.

The Agency notes that Kasba was under the impression that its insurance renewals had been filed with the Agency. However, the Agency's records indicate that they had not been filed with the Agency at the time Decision No. 460‑A‑2009 was rendered.

The Agency finds that the receipt of Kasba's insurance certificates for 2008 and 2009 constitutes a change in the facts and circumstances pertaining to Decision No. 460-A-2009 since it was issued within the meaning of section 32 of the Canada Transportation Act (CTA).

The Agency notes that Kasba is a seasonal operator which, on a yearly basis, has requested suspension of its licence when operations were ended and a lift of suspension when it was ready to commence. However, Kasba's licence has been suspended since October 26, 2007 and it did not file applications for reinstatement of its licence in 2008 and 2009. Kasba has demonstrated, however, that it held a Canadian aviation document and had the prescribed liability insurance while operating its seasonal service when its licence was suspended.

The Agency has considered this matter and pursuant to section 32 of the CTA varies Decision No. 460-A-2009 by deleting the last paragraph of that Decision and replacing it with the following:

The Agency orders that the licence remain suspended until November 4, 2010. Kasba is provided until that date to file an application to reinstate its licence, failing which, the licence will be automatically cancelled.

On a related matter, the Agency notes that Kasba operated flights while its licence was suspended. The Agency notes, however, that Kasba had assumed that the Agency had received the Certificates of Insurance and had automatically reinstated its licence. Further, Kasba had the prescribed liability insurance required while operating.

The Agency has considered this matter and finds that Kasba's failure to obtain a reinstatement of its licence before operating the service was not a willful attempt to avoid compliance with legislative and regulatory requirements. Therefore, the Agency will not take any action in this case. Kasba should be aware, however, that the Agency considers contraventions of provisions of the CTA or the Air Transportation Regulations, SOR/88-58, as amended, to be serious and will take appropriate punitive action should any contravention occur in the future.

Members

• Raymon J. Kaduck
• Jean-Denis Pelletier, P. Eng.