Order No. 1994-A-31

February 3, 1994

February 3, 1994

IN THE MATTER OF a complaint filed by 2553-4330 Québec Inc. carrying on business as Aéropro, respecting flights operated by Avionair Inc. from Québec to Povungnituk.

File No. M4205/A263-4-1


WHEREAS under Licence No. 890159, 2553-4330 Québec Inc. carrying on business as Aéropro (hereinafter Aéropro) is authorized to operate a Class 4 Charter domestic service using fixed wing aircraft in Groups A, B and C from a base at Québec, Quebec;

AND WHEREAS under Licence No. 883564, Avionair Inc. (hereinafter Avionair) is authorized to operate a Class 4 Charter domestic service using fixed wing aircraft in Groups A, B and C from a base at Montréal, Quebec;

AND WHEREAS by letter dated September 15, 1993, Avia Marketing Consultants Inc., on behalf of Aéropro, filed a complaint with the National Transportation Agency (hereinafter the Agency) to the effect that on August 20, 1993, Avionair operated a charter flight on behalf of Gély Construction Inc. (hereinafter Gély Construction) from Québec to Povungnituk using a Beechcraft King Air 200 aircraft (Group C) 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 or 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 Aéropro submits that this flight was operated without the agreement of Aéropro and without the knowledge of the Agency, and that it was able to perform the flight for Gély Construction. Aéropro also submits that this was not the first time that Avionair has operated illegal flights. In this respect, it refers the Agency to its letter of September 19, 1991, in which the Agency determined that Avionair had contravened section 21 of the ATRs, and that [Translation] "any similar infraction in future by Avionair Inc. could result in action being taken to suspend or cancel the company's licences";

AND WHEREAS by letter dated October 14, 1993, in reply to Aéropro's complaint, Avionair notes that it used one of its Beechcraft King Air 200 aircraft on August 20, 1993, departing from Montréal with two passengers and stopping at Québec to pick up three other passengers and goods to perform a charter flight within the designated area. In addition, on the same date and at the same time, a Metroliner II also belonging to Avionair departed Montréal with one passenger and stopped at Québec to pick up other passengers and goods as part of a charter flight performed within the designated area. Avionair contends that both aircraft had been chartered by Gély Construction, and that it was necessary to use two 12,500 pound maximum certificated take-off weight aircraft each providing sufficient capacity to meet the requirements of the client. Avionair submits that the ATRs do not require a charterer to charter types of aircraft that do not meet its needs, especially when its aircraft are of fundamentally different design. Avionair argues that the flights performed on August 20, 1993 are legal, and that the provisions of section 21 of the ATRs, specifically paragraph (2)(b) which provides that the base is not protected if the company concerned cannot operate the flight on account of its licence or its Canadian aviation document, were complied with. Avionair further asserted that Aéropro was in no way able to perform the flights, as it had neither the types of aircraft required by the client nor the operating certificate required for such aircraft. In conclusion, Avionair contends that the flights performed on August 20, 1993 for Gély Construction were performed legally and requests that the Agency dismiss Aéropro's complaint. For the same reasons, Avionair considers that the comments concerning the infraction committed on September 19, 1991, are irrelevant and adds that the complainant is well aware that Avionair is no longer under the control of the company shareholders and directors that were in charge at the time of the 1991 infraction. The present management applies an operating policy that scrupulously complies with all applicable laws and regulations;

AND WHEREAS in its response Aéropro maintains that Avionair admits that it did operate the alleged flights using Beechcraft King Air 200 and Metroliner aircraft (both in Group C), because it misinterpreted the ATRs. Aéropro notes that it is well aware of the requirements respecting the Canadian aviation document and the licences issued by the Agency, and that, for its part, it meets those conditions, because it is authorized by the Agency, inter alia, to use Group C aircraft (which includes the Beechcraft King Air 100) and holds an operating certificate to that effect. Aéropro therefore maintains that the flights performed by Avionair on August 20, 1993 are indeed illegal and in contravention of section 21 of the ATRs, specifically paragraph 21(1)(a). Aéropro submits that the provisions of this section are very clear and cover any flight operated from the protected base to the designated area "... using aircraft belonging to a group for which another Class 4 licensee is licensed". Aéropro maintains that nowhere in the ATRs or the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), is any mention made of a type of aircraft, as suggested by Avionair; however, the groups are defined in section 5 of the ATRs. In this regard, Aéropro specifies that Group C includes all aircraft whose maximum certificated take-off weight is between 7,500 and 18,000 pounds;

AND WHEREAS Aéropro argues that a complaint would have been filed to protect Aéropro's legitimate interests regardless of the fact that the service was requested by Gély Construction (a client in Aéropro's service area) and regardless of which carrier may have been selected from among various other carriers solicited. Any carrier that offers charter services must ensure that it is legally entitled to do so, and that was manifestly not the case with Avionair in the circumstances surrounding Aéropro's complaint. Aéropro adds that it noted Avionair's comments regarding the change of control and operating policy of the company and would have hoped that Avionair had learned its lesson; for, although the company's management has changed, its operating policy has not, because Avionair still continues to operate flights from Quebec without a licence and without authorization. Consequently, Aéropro requests that the Agency suspend the licence held by Avionair, as this is a second offence;

AND WHEREAS the Agency notes that Avionair does not hold a licence authorizing it to operate a Class 4 Charter service from a base at Québec; that Avionair did not obtain Aéropro's or the Agency's permission to operate a charter flight between Québec and Povungnituk in accordance with subparagraphs 21(2)(i)(i) and 21(2)(i)(ii) of the ATRs; that Avionair violated Aéropro's base protection in 1991 by performing a flight between Québec and Kuujjuarapik, and that by letter dated September 19, 1991, the Agency notified Avionair that any similar offence in future could result in action being taken to suspend or cancel its licences; and that, even though there has been a change of control of the company since the 1991 infraction, Avionair is still responsible for its acts;

AND WHEREAS the Agency has reviewed the matter and is of the opinion that Avionair has contravened section 21 of the ATRs by failing to request Aéropro's permission to operate the subject charter flights. The Agency is also of the opinion that this was a second offence;

AND WHEREAS subsection 75(1)(b) of the National Transportation Act, 1987, 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 ... (b) 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 Licence No. 883564 should be suspended for a period of seven (7) days.

NOW THEREFORE, IT IS ORDERED THAT:

Licence No. 883564 is hereby suspended for seven (7) days commencing at 0001 hours EST, February 13, 1994, pursuant to paragraph 75(1)(b) of the National Transportation Act, 1987.

This Order shall form part of Licence No. 883564 and shall remain affixed thereto as long as the said Order is in force.

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