Decision No. 424-A-2013

LICENCE APPLICATION

AirMédic Inc. (applicant) has applied to the Canadian Transportation Agency (Agency) for a licence to operate a domestic service, small aircraft.

To meet the requirement to hold a valid Canadian aviation document set out in subparagraph 61(a)(ii) of the Canada Transportation Act (CTA), the applicant submitted a document dated November 4, 2013 issued to it by Transport Canada which refers to an agreement between the applicant and Private Air Inc. (Private Air) dated October 23, 2013.

The Agency has considered the document and is satisfied that it is a Canadian aviation document within the meaning of the CTA.

The Agency is satisfied that the applicant meets the applicable requirements of paragraph 61(a) of the CTA.

In addition, in order for a licence to be issued, the Agency must also be satisfied, as provided for in paragraph 61(b) of the CTA, that the applicant has not contravened section 59 of the CTA within the preceding twelve months.

Section 59 of the CTA states that no person shall sell, cause to be sold or publicly offer for sale in Canada an air service unless, if required under Part II of the CTA, a person holds a licence under that Part in respect of that service and that licence is not suspended.

In this regard, the Agency notes that the applicant filed with its application an affidavit attesting that it had not contravened section 59 of the CTA within the preceding twelve months. In addition, with respect to this application, the applicant has undertaken not to contravene section 59 of the CTA prior to the issuance of the applied for licence.

As part of its application, the applicant submitted a letter explaining that it had filed a request with the Agency in 2002 for a determination as to whether it was required to hold a licence to offer its service through the subcontracting of aircraft. The applicant points out that the Agency at that time confirmed that a licence was not required as the providers of the aircraft had operator certificates and were licensed by the Agency in their own name.

The applicant adds that for a while, it obtained a Canadian operator certificate from Transport Canada and held licences issued by the Agency as it was operating its service using its own fleet of helicopters. A few years later, it requested the cancellation of its licences and based on the decision issued by the Agency in 2002, it continued to operate its service through subcontracting as it believed that it was in compliance with the CTA.

The Agency notes that in February 2013, the applicant filed with the Agency an application for a licence to operate a domestic service using its own aircraft, but that it has yet to receive a Canadian aviation document from Transport Canada. As that application remains incomplete, the applicant filed the present application for a licence to operate its domestic service using aircraft with flight crew provided by Private Air, in order to continue operating its aeromedical service.

The Agency finds that the applicant has contravened section 59 of the CTA.

The Agency, pursuant to subsection 79(2) of the CTA, has discretion to issue a licence notwithstanding a contravention.

The Agency has considered this matter and, in light of the substantive negative consequences that such a refusal would have on the users of the applicant’s air ambulance services, the Agency will not refuse to issue a licence to the applicant even though it contravened section 59 of the CTA.

Accordingly, the Agency approves the application for a licence to operate a domestic service, small aircraft.

In addition, to ensure continued compliance with subparagraph 61(a)(ii) of the CTA, the Agency, pursuant to sections 25 and 28 of the CTA, orders the applicant to provide the Agency with any documentation, immediately upon execution, that has the effect of altering or proposing to alter the agreement between the applicant and Private Air or would indicate that the applicant has entered into or is proposing to enter into a similar arrangement with a third party.

The applicant is prohibited from providing its domestic service, small aircraft, under Licence No. 130068, using all or part of an aircraft, with flight crew, that have been provided to Private Air by another person.

This Decision shall form part of Licence No. 130068.

CONTRAVENTION

On September 25, 2013, the Agency issued a confidential letter informing the applicant of the result of an investigation undertaken by the Agency’s Enforcement Division related to flights that were sold by the applicant and operated by Private Air on behalf of the applicant.

The Agency further informed the applicant that after having performed an analysis of, among other things, the arrangements between the applicant and Private Air, the Agency found, on a preliminary basis, that the applicant is the entity operating the publicly available air ambulance service and is the person required to hold a licence for the flights.

The Agency provided the applicant with the opportunity to show cause, before close of business on October 9, 2013, why the Agency should not: a) conclude that the applicant, rather than Private Air, was the entity that operated the publicly available air ambulance service without holding a licence, contrary to paragraph 57(a) of the CTA and b) order the applicant to cease and desist from operating a publicly available air service without a licence, contrary to paragraph 57(a) of the CTA.

The applicant responded on October 9, 2013.

Given the decision to issue a licence, the Agency concludes that the show cause letter of September 25, 2013 is now moot.

The Agency refers this matter to the designated enforcement officer for any action that may be deemed appropriate pursuant to section 180 of the CTA.