Order No. 1989-A-395

December 5, 1989

File No. 7-P390-2

WHEREAS under Licence No. 882146, Air Saguenay (1980) Inc. (hereinafter Air Saguenay) is authorized to operate a Class 4 Charter domestic service using fixed wing aircraft in Groups B and C, from a base at Kuujjuarapik (Poste-de-la-Baleine), Quebec;

AND WHEREAS under Licence Nos. 880049, 880051, 880061, 880062, 880063, 880064 and 890293, Propair Inc. (hereinafter Propair) is authorized to operate Class 4 Charter domestic services from various bases throughout Quebec; however, none of the said licences authorize Propair to operate charter services from the base Kuujjuarapik;

AND WHEREAS the National Transportation Agency was advised that Propair operated charter flights on behalf of the Cree Trappers Association from Kuujjuarapik using fixed wing aircraft in Group C;

AND WHEREAS by registered letter dated May 23, 1989, Propair was ordered to cease and desist from operating charter flights from Kuujjuarapik in contravention of section 21 of the Air Transportation Regulations, SOR 88-58 (hereinafter the ATRs);

AND WHEREAS subsection 21(1) of the ATRs states:

21. (1) Subject to subsection (2), every Class 4 licence shall be subject to the condition that the licensee shall not embark passengers and goods, using aircraft belonging to a group for which another Class 4 licensee is licensed, at

a) the base specified in the other licensee's Class 4 licence; or

b) any point within an area 25 miles in radius measured from

(i) the main post office of the base specified in that other licensee's licence, or

(ii) if there is no such post office, the latitude and longitude of that base.

AND WHEREAS by letter dated July 20, 1989, Air Saguenay filed a complaint with the Agency in which it contends that between May 31 and June 15, 1989, Propair positioned a DHC-3 Otter aircraft (Group C) at Kuujjuarapik and unlawfully engaged in the transportation of persons and goods in contravention of section 21 of the ATRs and requested that the Agency take disciplinary action against Propair;

AND WHEREAS by letter dated July 28, 1989, Propair replied to the complaint of Air Saguenay. In its reply, Propair confirmed that it operated charters from Kuujjuarapik for native people who wished to leave their winter trapping grounds but it contends that before engaging in this type of transportation, it asked the Cree Trapper Committee to communicate with the licensed air carrier at Kuujjuarapik, in this case Air Saguenay, to transport the native families who no longer had anything to live on because of a late spring. Propair contends that the Cree Trapper Committee was advised by Air Saguenay that it was not prepared to base an aircraft at Kuujjuarapik at that time and was demanding positioning and withdrawal costs from Chicoutimi in order to provide the service. For those reasons, Propair submits that it decided to operate the flights for humanitarian reasons without requesting a waiver. Consequently, Propair requests that the Agency dismiss Air Saguenay's complaint as it is unfounded since Air Saguenay is not providing, from Kuujjuarapik, the air services authorized under its licence;

AND WHEREAS by letter dated August 22, 1989, Air Saguenay responded to Propair's reply. It submits that it was prepared to serve the Cree Trapper Committee on the condition that the Cree Trapper Committee use the aircraft immediately and that it was not asking for any positioning of its aircraft as long as the Cree Trapper Committee required more than five flying hours at the location. Air Saguenay also submits that the services of Propair had been retained by the Cree Trapper Committee since it charged a lower price. In addition, Air Saguenay states that it was prepared at all times to serve the Indian population according to their demand;

AND WHEREAS the Agency notes that Propair admits having operated charter flights from Kuujjuarapik for the Cree Trapper Committee without obtaining the authorization from Air Saguenay or the National Transportation Agency, and therefore, did not act in accordance with section 21 of the ATRs;

AND WHEREAS the fact that Air Saguenay does not have aircraft based at Kuujjuarapik; that it charges its potential clients the cost of positioning its aircraft; or provides services at unreasonable rates does not give Propair the right to serve that point without obtaining permission from Air Saguenay or the Agency, and further, it is not for Propair to judge whether the tariff or charter conditions offered by Air Saguenay are unreasonable but rather for the user of the air service who can file a complaint with the Agency if such is the case;

AND WHEREAS the Agency has reviewed the matter and has determined that Propair operated charter flights from Kuujjuarapik in contravention of section 21 of the ATRs, when the Agency had ordered it to cease and desist from operating charter flights from that point;

WHEREAS paragraph 75(1)(b) of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) states:

The Agency may suspend or cancel the domestic licence of any person where the Agency believes on reasonable grounds that in respect of the service for which the licence is issued, the person has contravened any provision of this Part or any regulation or order made under this Part;

AND WHEREAS in light of the foregoing, the Agency is of the opinion that Propair's Class 4 Charter domestic Licence Nos. 880049, 880051, 880061, 880062, 880063, 880064 and 890293 should be suspended for a period of seven days.

NOW THEREFORE, IT IS ORDERED THAT:

Licence Nos. 880049, 880051, 880061, 880062, 880063, 880064 and 890293 are hereby suspended for a period of seven (7) days commencing at 0001 hours EST December 11, 1989 pursuant to paragraph 75(1)(b) of the National Transportation Act, 1987.

This Order shall form part of Licence Nos. 880049, 880051, 880061, 880062, 880063, 880064 and 890293 and shall remain affixed thereto as long as the said Order is in force.