TATC Decisions

The Minister's allegation is dismissed.

A review hearing on the above matters was held February 4, 5, 6 and April 14, 15, 2004 at the Federal Court of Canada, in Edmonton, Alberta.

BACKGROUND

The respondents Olav Falsnes and Carl Falsnes are the principals and directing minds of the respondent Arctic Wings Ltd. (Arctic Wings). At the relevant times Olav Falsnes was the director of maintenance and operations manager and Carl Falsnes was the president, chief pilot, and training captain of Arctic Wings. Prior to August 2002, Carl Falsnes was the operations manager in addition to the other duties set out above.

Arctic Wings was a 702 / 703 air operator operating a fleet of single and twin engine aircraft from a base at Inuvik, N.W.T. under air operator certificate # 9467 approved 2001.11.15.

During the summer and early fall of 2002 Transport Canada carried out four inspections of the respondents' operations. On June 24 and 25 Transport Canada conducted a safety audit. On July 24 and 25 there was another inspection which resulted in a suspension of the air operator certificate on July 26. In early August a third inspection of approximately one week duration was carried out. On August 26, 2002 the air operator certificate was reinstated for VFR operations only. On September 24 and 25 a fourth inspection was carried out. The air operator certificate was again suspended on October 1, 2002 and remains suspended. The suspensions of the air operator certificate are not before the Tribunal.

At the outset there were 23 offences brought before this Tribunal. The offences were divided into three: Matter #1 (11 offences) was heard on February 4, 5, and 6, 2004; Matter #2 (9 offences), and Matter #3 (3 offences) were heard on April 14 and 15, 2004. The Minister chose not to proceed on 9 offences.

The parties agreed that general and background evidence introduced at the outset would be evidence on all matters.

Counsel for the respondents introduced evidence during the examination-in-chief of Mr. O. Falsnes and Mr. C. Falsnes that brought the behaviour of Inspector Cowman during his time at Arctic Wings into question. The Minister argues that given Mr. Cowman was not cross-examined on the issue of his behaviour I should exclude the oral evidence of both Carl and Olav Falsnes and not accept as evidence the respondents' letters to the Minister's representatives entered as Exhibits D-2 to D-5. The documents were admitted at the hearing. I will not now exclude the documents as they are relevant and reliable. As to the oral testimony, the Minister argues that it is unfair to rely on evidence that tends to put the integrity of a witness in question without first putting the questions to the witness in cross-examination. He cites Browne v. Dunn in support of his argument.^[1]

Both parties have acknowledged subsection 15(1) of the Transportation Appeal Tribunal of Canada Act expressly states that this Tribunal is not bound by the rules of evidence. Although I would have preferred that the questions had been put to Mr. Cowman, the letters referred to above as Exhibits D-2 to D-5 were all letters complaining about Inspector Cowman to his supervisors. The Minister must have known that Inspector Cowman's conduct would become an issue and chose not to raise the matter with Mr. Cowman during the examination-in-chief. The Minister also argues that much of the evidence about Mr. Cowman's conduct was hearsay and that it should be disregarded. Some of the evidence concerning Mr. Cowman's conduct was hearsay; much of it was not. My understanding of the rule concerning hearsay is that the evidence is to be admitted and that as the finder of fact I am to look to other corroborating evidence to either support or discredit the hearsay evidence and based on that corroborating evidence give the hearsay evidence the appropriate weight. In my view the corroborating evidence tends to support the evidence of inappropriate conduct of Inspector Cowman.

There was nothing in the evidence of either Carl Falsnes or Olav Falsnes that caused me to question the truthfulness of their statements. Both Falsnes were candid and forthright admitting errors or oversights where they occurred. Mr. Carl Falsnes was challenged on some of the admissions made in his letter to Mr. Wayne Loe, Superintendent – Commercial and Business Aviation, Transport Canada (Exhibit M-25 - TATC File No. W-2912-41). I accept his statement that although he disagreed with some of the statements contained in the letter, he made them on the advice and direction of an expert recommended to and retained by Arctic Wings to assist in obtaining reinstatement of its air operator certificate.

The evidence of Inspectors Cowman and McDonald both of whom claimed memory loss when questioned about the details of the delayed flight from Inuvik (TATC File No. W-2899-41, offence #1) was not believable.

In the circumstance of all of the matters originally brought before this Tribunal and the disposition of those matters, I am persuaded that the actions of the Minister through his representatives reflect badly on the process. The inspectors appear to have lost their objectivity and allowed the matter to become personal. They certainly did not project the professionalism and objectivity that has been evident at prior hearings I have conducted.

Prior to this hearing I was petitioned by both counsel to permit testimony by telephone. The reason was the extraordinary costs of travel. I granted the request and as a result several witnesses were heard by telephone. In the circumstances of this hearing and the nature of the evidence required from the particular witnesses, I am satisfied that the witnesses were properly identified and that their evidence was reliable.

Below are my reasons for each matter identified by the Transportation Appeal Tribunal file number and the offence number.

Arctic Wings - TATC File No. W-2902-41
Offence #1 - CARs 103.02(2)(c)

BACKGROUND

On September 25, 2002, representatives of the Minister of Transport made a surprise visit to the premises of Arctic Wings. A verbal demand was made of Mr. Olav Falsnes to produce certain records; in particular, company training records, aircraft logbooks, and pilot duty records. On September 26, 2002 a written demand for documents was made. Mr. Olav Falsnes did not produce the records to the satisfaction of the Minister.

EVIDENCE

The first demand was verbal and there was no time frame specified within which the document holder was to comply. The Minister's representatives were expecting immediate compliance.

Mr. O. Falsnes did not comply to either demand to the satisfaction of the Minister. He produced various records on request but would not turn over all documents at the same time, citing his past experience where Transport Canada reviewed his files and left them in disarray causing a significant loss of employee time placing the documents back in order. He also advised that some of the pilots' records were with Mr. Carl Falsnes (chief pilot for Arctic Wings) who was at the time on board an aircraft training a pilot candidate for a pilot proficiency check (PPC) and that the balance were locked in Mr. C. Falsnes' office. Mr. O. Falsnes advised that the records would be made available as soon as Mr. C. Falsnes was available. He did not refuse to produce the records. Mr. Douglas, a monitor / mentor that had been previously approved by the Minister, confirmed he was on board the aircraft with Mr. C. Falsnes during the training and that the particular pilot's records were on board the aircraft.

Mr. C. Falsnes stated that he completed all of his prearranged commitments and training and was available to produce documents for the Minister in the late afternoon. Carl Falsnes arrived at Arctic Wings' premises prepared to comply with the request for documents at between 3:00 and 3:30 on the day the request was made. The inspectors had left for the day, their workday complete. The inspectors were working to rule.

The following morning Inspector Cowman delivered a demand for documents. The demand required that the documents be delivered before the demand was served. Even if the document had been served in a timely manner it gave the document holder only twenty minutes to comply (Exhibit M-22).

The day after, the Minister and the RCMP arrived at the premises of Arctic Wings with a warrant and removed documents.

THE LAW

Subsections 103.02(1) and (2) of the Canadian Aviation Regulations (CARs):

103.02 (1) The owner or operator of an aircraft shall, on reasonable notice given by the Minister, make the aircraft available for inspection in accordance with the notice.

(2) Every person who

(a) is the holder of a Canadian aviation document,

(b) is the owner, operator or pilot-in-command of an aircraft in respect of which a Canadian aviation document, technical record or other document is kept, or

(c) has in possession a Canadian aviation document, technical record or other document relating to an aircraft or a commercial air service shall produce the Canadian aviation document, technical record or other document for inspection in accordance with the terms of a demand made by a peace officer, an immigration officer or the Minister.

Subsection 103.02(1) specifically sets out that there must be "reasonable notice" of the Minister's requirement presumably recognizing that the aircraft may not be available at the time of the demand. There is no specific requirement for notice prior to a demand made pursuant to subsection 103.02(2). There are circumstances where reasonable notice is not required; for example where the document is required by regulation to be on board an aircraft or carried on the person of a document holder. In other circumstances such as this, the general obligation to act reasonably must certainly apply. The drafters of the regulations could not have intended that a representative of the Minister could appear at the office of a commercial air service, and demand the immediate production of documents that are not required by regulation to be on board an aircraft or on a document holder's person.

DISCUSSION

The evidence of the representatives of Arctic Wings was that it was their busy season. That Carl Falsnes, the chief pilot, was not available at that time. He was in the midst of training a candidate for a PPC. Olav Falsnes, the operations manager and the person responsible for maintenance (PRM) provided the documents he had available. He did not have access to the pilots' training records. The documents were locked in the chief pilot's office. Carl Falsnes was available and ready to provide the documents during normal business hours in the afternoon of the day of the original demand.

The written demand made on the following day was meaningless and tends to corroborate the document holders' evidence as to the inappropriate behaviour of Inspector Cowman. It required on its face that the documents be provided within a 20-minute period and was served on the document holder after the time for compliance was past. Inspector Cowman left Arctic Wings' facility without giving the document holder any time to comply, apparently in a spray of gravel from the wheels of his car.

The document holder's statement to the Minister that the requested documents would be produced later when the chief pilot was available, given he was the person responsible for the records, was not unreasonable; the Minister's demand was.

There was no evidence to justify the Minister's demand for immediate access to the documents.

DETERMINATION

For the above reasons I find that Arctic Wings did not fail to produce the records in its possession as required by the CARs.

Olav Falsnes - TATC File No. W-2904-37
Offence #1 - CARs 103.02(2)(c)

In this file the Minister proceeded against Mr. Olav Falsnes for the same offence detailed above.

DETERMINATION

For the same reasons as set out above I dismiss the matter.

Arctic Wings - TATC File No. W-2902-41
Offence #2 - CARs 602.07(2)(a)

(vicarious liability, subsection 8.4(1) of the Aeronautics Act)

The Minister chose not to proceed.

Arctic Wings - TATC File No. W-2902-41
Offence #3 - CARs 703.02

(vicarious liability, subsection 8.4(1) of the Aeronautics Act)

BACKGROUND

On September 22, 2002, a Piper Navajo Chieftain C-FPIO operated by Arctic Wings with David Musselwhite as pilot-in-command was operated on a flight from Inuvik to Holman then from Holman via Paulatuk to Inuvik. On the Holman Paulatuk leg, Mr. Musselwhite flew the aircraft into cloud, flew above cloud, then did a cloud breaking procedure at Paulatuk. He chose not to land at Paulatuk due to high crosswind and continued on to Inuvik.

FACTS

Arctic Wings' air operator certificate was restricted to VFR flight operations. Part of the flight was conducted under instrument flying conditions which is clearly an offence. The essential elements of the offence were not disputed.

The Minister proceeded against Mr. Musselwhite on a separate matter. Mr. Musselwhite served a suspension for the infraction.

EVIDENCE

1. Mr. Musselwhite knew flight operations were restricted to VFR.
2. Mr. Musselwhite did not receive instructions to operate IFR.
3. The weather reports at the time indicated that the flight could be carried out VFR.
4. A VFR flight plan was filed.
5. Mr. Musselwhite chose to enter cloud and fly on top of cloud at higher altitude on the over water portion of the flight between Holman and Paulatuk.
6. Mr. Musselwhite said he felt it was safer at the higher altitude.
7. Mr. Musselwhite was a part-time employee; he had no supervisory roll.
8. Mr. Musselwhite was not a directing mind of the corporation.

DISCUSSION

The Respondent argues that notwithstanding the offence took place, they were duly diligent and as a result should not be sanctioned for this offence.

Arctic Wings advised their pilot that its operations were restricted to VFR. The flight plan was based on VFR weather. There is no evidence that the flight could not have been carried out VFR. What more could Arctic Wings have done in the circumstances? At the time they were not aware of and did not participate in the decision to operate contrary to their air operator certificate. The offence was a result of the actions of a pilot-in-command acting without the knowledge and consent of the operator. In the circumstance the culpable party is the pilot-in-command who was sanctioned for his actions.

THE LAW

Section 703.02 of the CARs:

703.02 No air operator shall operate an aircraft under this Subpart unless the air operator complies with the conditions and operations specifications in an air operator certificate issued to that operator by the Minister pursuant to section 703.07.

Subsection 8.4(1) of the Aeronautics Act:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

R. v. Sault Ste. Marie^[2]:

...Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to a corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself....

DETERMINATION

There is no evidence to show that Arctic Wings failed to comply with section 703.02 of the CARs.

Applying the test in Sault Ste. Marie I find that Arctic Wings took all reasonable steps to ensure compliance by its employee with the restrictions as set out in its air operator certificate. The Minister's decision as to this offence is dismissed.

Arctic Wings - TATC File No. W-2902-41
Offence #4 - CARs 703.02

(vicarious liability, subsection 8.4(1) of the Aeronautics Act)

Carl Falsnes - TATC File No. W-2912-41
Offence #2 - CARs 602.115(a)

The charges for both of these matters arise from the same facts.

BACKGROUND

On August 31, 2002, an Arctic Wings Piper Navajo Chieftain C-FPIO was alleged to have been operating in the vicinity of Holman during a VFR flight without reference to the ground.

FACTS

1. Mr. Carl Olav Falsnes was the pilot-in-command.
2. Mr. Falsnes was the chief pilot and one of the directing minds at Arctic Wings.
3. Mr. Vasudev Natarajan, a pilot with 1,700 hours, was sitting in the right front seat of the aircraft as an observer during the flight.

EVIDENCE

Mr. Natarajan, a former employee, testified that the flight was VFR and that he did not believe they lost contact with the ground. Mr. Falsnes testified that they had visual reference to the surface at all times. The exhibits concerning weather information available and Mr. Falsnes' explanation of the local conditions corroborated his testimony. I accept their evidence.

The Minister introduced two witnesses. Both were sitting in the cabin of a low wing aircraft (there was no evidence provided that the Navajo Chieftain is a low wing aircraft but I am prepared to take notice of that fact) and neither had any aviation training. I accept the truthfulness of their evidence that they could not see the ground at all times. That, however, does not prove that the pilot could not see the ground.

THE LAW

Paragraph 602.115(a) of the CARs:

602.115 No person shall operate an aircraft in VFR flight within uncontrolled airspace unless

(a) the aircraft is operated with visual reference to the surface;

DETERMINATION

Carl Falsnes - TATC File No. W-2912-41 (Offence #2) - The charge against Mr. Carl Olav Falsnes is dismissed as the Minister has not proven on the balance of probabilities that the offence occurred.

Arctic Wings - TATC File No. W-2902-41 (Offence #4) - As proof of the charge against Mr. C. Falsnes has not been proven there can be no vicarious liability. The charge against Arctic Wings is also dismissed.

Carl Falsnes - TATC File No. W-2912-41
Offence #5 - CARs 703.14(2)

Arctic Wings - TATC File No. W-2902-41
Offence #5 - CARs 703.14(2)

BACKGROUND

On August 31, 2002, Arctic Wings operated a flight out of Holman Island NWT, a Piper Navajo Chieftain C-FPIO. The pilot-in-command was Carl Olav Falsnes. The allegation is that Mr. Falsnes failed to properly secure the baggage and cargo.

EVIDENCE

The evidence of the two witnesses was inconclusive. However, Mr. Falsnes admitted to placing some of the luggage behind a seat then jamming the suitcases behind the seat by sliding the seat back against the cargo. The cargo was not tied down.

THE LAW

Subsection 703.14(2) of the CARs:

(2) The operations personnel of an air operator shall follow the procedures specified in the air operator's company operations manual in the performance of their duties.

The Arctic Wings operations manual provides at 2.6.1 - "Cargo, baggage, loose equipment, animals, etc., shall (my emphasis) be properly secured prior to flight using appropriate tie down strapping, rope, netting and attachment points as appropriate."

DETERMINATION

Carl Falsnes - TATC File No. W-2912-41 (Offence #5) - CARs 703.14(2) - As to Carl Olav Falsnes, the necessary elements of the offence were admitted. The offence is therefore confirmed. The penalty in the amount of $250.00 is confirmed.

Arctic Wings - TATC File No. W-2902-41 (Offence #5) - CARs 703.14(2) - Arctic Wings is not operations personnel of an air operator; it is the air operator. It could not in its own right commit the offence alleged. There can be no liability as the offence was not brought pursuant to section 703.02 of the CARs or subsection 8.4(1) of the Aeronautics Act. Therefore, no offence has been alleged.

Carl Falsnes - TATC File No. W-2912-41
Offence #3 - CARs 605.93(1)(a)

BACKGROUND

On or about July 24, 2002 an entry was made in a technical record, C-FAWB journey log book, that was not legible.

EVIDENCE

Mr. Falsnes admitted that he made the entry and that it was not legible. He also stated that it was his intention to correct not obliterate or disguise the entry. The operational flight plan contains the obliterated information.

DETERMINATION

All of the elements of the offence have been admitted. I therefore find that the offence occurred.

The fact that this offence was brought further corroborates the complaint about the inspector. The decision to proceed based on two incidents of an illegible entry that clearly did not disguise or mislead seems excessive given the number of log book pages the inspectors must have reviewed. Clearly the discretion as to whether or not to proceed is the Minister's. However, in the circumstances, only a very small fine can be justified. I therefore reduce the fine to $10.00.

TATC File No. W-2838-41
Offence #1 - CARs 706.02(b)

BACKGROUND

The Minister alleges that Arctic Wings failed to properly transfer a radar altimeter defect when opening a new journey log book.

FACTS

Piper Navajo C-FAWB was registered to and operated by Arctic Wings at all relevant times. On March 24, 2002, an entry was made in the journey log book # 13 of C-FAWB noting the radar altimeter as U/S (unserviceable). On the same day the defect was deferred. The deferred defect was listed on the front page entitled deferred defects. The page also states the defect is to be transferred to a new journey log book. There is no record in the journey log of the defect being corrected. The defect was not transferred to the next journey log 14, the record in that log book was that the radar altimeter was removed. The radar altimeter was reinstalled on August 29, 2002. The aircraft was operated throughout the period between March 24, 2002 and August 29, 2002.

EVIDENCE

Mr. Olav Falsnes testified that two days after the radar altimeter was noted as unserviceable it was removed and shipped for repair and the hole left by the removal of the instrument was filled with a blanking plate indicating that the radar altimeter had been removed. When it was removed there was no certainty that it would ever be reinstalled. His record of the work was in the aircraft maintenance records. He intended that entry to deal with the defect.

DISCUSSION

An entry in an aircraft journey log of a deferred defect is to alert the next pilot of the defect so he or she can ensure that the next flight can be safely carried out with the defect. The removal of a non-essential instrument and the installation of a blanking plate advising of the removal certainly delivers the message.

THE LAW

Paragraph 706.02(b) of the CARs:

706.02 No person shall operate an aircraft unless the aircraft is maintained in accordance with a maintenance control system that

(a) meets the requirements of this Subpart; and

(b) is described in the air operator's maintenance control manual (MCM) required by section 706.08.

The Arctic Wings maintenance control manual (MCM), section 4.2, technical records, states that the "Deferred defects section is the inside cover of the Company Journey Logbook. When a new logbook is created, any outstanding defects are to be transcribed from the old to the new logbook."

DETERMINATION

The removal and labelling dealt with the defect. There was no further need to advise the pilots they did not have a radar altimeter. The defect had been dealt with. The requirements of the MCM were therefore met. The charge is therefore dismissed.

Arctic Wings - TATC File No. W-2838-41
Offence #2 - CARs 571.10(1)

(vicarious liability, subsection 8.4(1) of the Aeronautics Act)

The Minister chose not to proceed with this matter.

Arctic Wings - TATC File No. W-2838-41
Offence #3 - CARs 571.03(a)

(vicarious liability, subsection 8.4(1) of the Aeronautics Act)

The Minister chose not to proceed with this matter.

Arctic Wings - TATC File No. W-2838-41
Offence #4 - CARs 706.02(b)

BACKGROUND

The Minister alleged that between March 21, 2002 and July 3, 2002 Arctic Wings operated a Piper PA-31 registered C-FAWB when the aircraft was not maintained in accordance with the maintenance control system when they failed to document weight and balance addenda and signatures and licence numbers when adding and removing seats.

FACTS

The subject aircraft is a Piper Navajo and the seats are designed for easy removal and installation. They slide in over a track and are held in place by a pin. No tools are required to install or remove the seats. The logbook of the aircraft clearly shows that the configuration of the aircraft changes frequently to meet the varying operational needs.

At the top of each page of the aircraft journey logbook there appears the pilot's signature and licence number beside the statement:

I hereby certify that I consider weather, airport facilities, aircraft weight and balance, and serviceability suitable for this flight, and that the aircraft is loaded as per the aircraft flight manual within C. of G. limits.

Lower on the page is a maintenance release which states:

The maintenance described has been performed in accordance with the applicable standards of airworthiness

None of the log book pages had a pilot's signature in this section.

The removal and installation of aircraft seats is defined as elementary maintenance.

EVIDENCE

The Minister relies on section 4.12 of Arctic Wings MCM and asserts that each change in the seating configuration should be recorded in the journey logbook maintenance section along with the Arctic Wings issued number for an unlicensed person performing elementary maintenance. Reference was also made to 4.10 of the MCM which authorizes Arctic Wings to train and issue a number to unlicensed people to allow them to carry out and sign for elementary maintenance.

The Minister also claims that an addendum to the weight and balance was required for each seating configuration in which the aircraft operated.

Mr. C. Falsnes pointed out that the weight and balance report has attached to it a chart setting out the weight, arm, and moment for 16 different seating configurations. The empty weight is in most circumstances determinative of the seating configuration. The pilot in completing his operational flight plan and making his calculation before certifying compliance with the weight and balance would have first had to determine which seating configuration was in place for the applicable flight.

As to the requirement for the performance of elementary maintenance, Mr. Falsnes stated that all pilots were trained to remove and install seats in the Navajo. He further indicated that Arctic Wings' interpretation of the provision concerning elementary maintenance is that the pilots were all licensed and therefore did not require an Arctic Wings' licence number as described in the MCM. He further stated that his interpretation of the requirement for a signature concerning the seating configuration was met when the pilot signed at the top of the page certifying compliance with the serviceability of the aircraft.

Mr. Falsnes testified that Arctic Wings believed it was complying with the terms of its MCM and operations manual, had been operating in this fashion since 1999 and had numerous inspections including the safety audit in June of 2002. There was no evidence that any inspector had in the past questioned or challenged their method of compliance.

It should be noted that there was no evidence presented to suggest that any seat was improperly installed or that any aircraft was operated overweight or outside the prescribed weight and balance limitations. Apparently Arctic Wings' method of compliance worked.

DISCUSSION

There can be no doubt that a Transport Canada safety audit would have included a review of the air operator's methods of load control and ensuring compliance with weight and balance requirements of its aircraft.

The issue is conflicting interpretations of the requirements necessary for compliance with the MCM. A rule of law is that when there is ambiguity in a document you rule against the drafter. In the circumstance of a MCM the document is prepared and submitted by the operator and approved by the Minister. Neither the original manual nor an amendment is effective until approved by the Minister. The Minister's approval is stamped on the document. In the circumstances the parties must bear equal responsibility for any ambiguity in the document.

To be fair the Minister must be consistent. If the document holder's method of compliance was acceptable on previous inspections and audits, why not now, what has changed. Prior inspectors had to have been aware of Arctic Wings' method of compliance; to suggest otherwise would be to suggest prior inspectors had not discharged their duty. Surely the Minister owes the document holder some notice if it expects the air operator to change practices that have in the past been found acceptable by other inspectors. The object of the particular requirements is to ensure that the seats are properly installed and that the aircraft is operated within its weight and centre of gravity limits. There is no evidence to suggest that Arctic Wings' interpretation and methods did not accomplish this goal. Safety is therefore not an issue.

DETERMINATION

Arctic Wings' method of compliance and interpretation of the requirements for compliance is reasonable and has been proven to meet the objective of the requirement. Therefore, I find that Arctic Wings did comply with the maintenance control system described in the MCM. The charge is therefore dismissed.

Arctic Wings - TATC File No. W-2838-41
Offence #5 - CARs 202.13(2)

BACKGROUND

The Minister alleged that between June 26, 2002 and July 22, 2002 Arctic Wings operated a Piper Navajo PA–31 Canadian registered C-FBBC when the aircraft was not registered to Arctic Wings.

FACTS

Signature Airways Ltd. was the registered owner of Piper Navajo PA-31 Canadian registered

C-FBBC. The subject aircraft was leased by Signature Airways Ltd. (the lessor) to Arctic Wings (the lessee). Both companies held a valid Transport Canada operating certificate for the type of aircraft. Both companies operated in the same Transport Canada region. The lessor was the registered owner of the aircraft. The lessee was qualified to be the registered owner of a Canadian aircraft. The aircraft was flown by Arctic Wings' employees during the term of the lease.

EVIDENCE

The Minister's representative demonstrated that the aircraft was not registered to Arctic Wings and there was no indication on Transport Canada's record that there had been a change in control of the aircraft. The LF-5 leasing advisory form had not been filed.

Mr. Carl Falsnes testified that the LF-5 form was on board the aircraft at all times. He further testified that he had contacted Transport Canada, in particular a Ms. Anna Borelli, to enquire what Transport Canada needed as a result of the lease. He stated that Ms. Borelli advised him that the LF-5 form was to be carried on board the aircraft.

There was no evidence that Arctic Wings followed up with Transport Canada or Signature Airways to ensure all was in order.

THE LAW

Subsection 202.13(2) of the CARs:

...

(2) Except as otherwise authorised pursuant to subsection 202.14(1), 202.42(3) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

Subsection 202.35(1) of the CARs:

202.35 (1) Subject to Subpart 3, where the registered owner of a Canadian aircraft transfers any part of the legal custody and control of the aircraft, the certificate of registration of the aircraft is cancelled.

Subsection 203.03(1)

203.03 (1) No person who is not the registered owner of an aircraft shall operate the aircraft as part of a leasing operation without an authorization issued pursuant to subsection (2) unless

(a) the lessor and the lessee each hold a Canadian operator certificate issued in respect of the aircraft type to be operated;

(b) the lessee is qualified to be the registered owner of a Canadian aircraft;

(c) the maintenance control system referred to in section 406.35, 604.48 or 706.02 and the maintenance schedule approved by the Minister under subsection 605.86(2) are, during the term of the lease, equivalent for the lessor and the lessee;

(d) the crew members of the aircraft are employed by the lessee; and

(e) the registered owner informs the Minister in writing, no later than seven days after the term of the lease commences, of

(i) the registration mark, manufacturer model designation and serial number of the aircraft,

(ii) the names, addresses and telephone numbers, and facsimile numbers, if any, of the registered owner and the lessee,

(iii) the Canadian operator certificate number and the approved maintenance organization certificate numbers of the lessor and the lessee,

(iv) the commencement and termination dates of the lease,

(v) the name of the person who is responsible for the maintenance of the aircraft during the term of the lease, and

(vi) the address of the main maintenance base for the aircraft.

FINDING

The relevant section of the CARs is 203.03(1) which deals with a lease between two Canadian air operators. In the circumstances of this matter paragraphs 203.03(1)(a), (b), and (d) of the requirements were met. As to paragraph 203.03(1)(c), there was no evidence submitted as to the equivalency of the maintenance requirements of the lessee and the lessor by the Minister or the document holder. As to paragraph 203.03(1)(e), the obligation of the registered owner to inform Transport Canada within seven days was not complied with. Arctic Wings was not the registered owner.

Clearly the aircraft was registered in Canada. I am not satisfied that a defect in the requirements for the change in custody and control of a commercial aircraft between two commercial operators would have the effect of cancelling the registration of an aircraft. It was not Arctic Wings' responsibility to inform the Minister in writing of the change.

DETERMINATION

I therefore dismiss the charge.

Arctic Wings - TATC File No. W-2838-41
Offence #6 - CARs 706.02(b)

The Minister alleged that between September 26, 2002 and September 28, 2002 Arctic Wings operated a Piper Navajo PA-31 registered C-FPIO in a manner not in accordance with its maintenance control system. Specifically Arctic Wings failed to address defects entered in the journey log book.

EVIDENCE

Mr. C. Falsnes admitted that a defect "anti-collision CB popped" was entered in the subject aircraft journey log book and that the aircraft was flown without first having the corrective action entered.

He further testified that he did inspect the system and that he was unable to duplicate the problem. He said he intended to make the entry the next morning but was subsequently distracted by the audit and his dealing with Inspector Cowman.

DISCUSSION

Given the timing and the inspection I am sympathetic and understand how easily the entry could have been forgotten. However, it does not excuse it and does not meet the test of a due diligence defence. The adage "the job isn't done until the paper work is finished" applies. Mr. Falsnes could have made the required entry immediately upon completion of the inspection; as he did not do that, he cannot therefore claim to have exercised all due diligence.

DETERMINATION

All the elements of the offence have been admitted. I therefore find that the offence was committed. However, in all the circumstances of the offence, I find the fine to be wholly disproportionate to the seriousness of this particular offence and hereby reduce the fine to $250.00.

Olav Falsnes - TATC File No. W-2881-35
3 counts of CARs 571.03(a)

The Minister chose not to proceed with this file.

Arctic Wings - TATC File No. W-2899-41
Offence #1 - CARs 700.16(3)

The Minister alleged that on or about July 25, 2002 Arctic Wings failed to provide Carl Falsnes with the minimum rest period as required by Part VII of the CARs.

FACTS

Arctic Wings admitted that the minimum rest period for the flight in question was not provided.

EVIDENCE

Both Carl Falsnes and Olav Falsnes testified that a charter flight that was scheduled prior to the arrival of the inspectors was unreasonably delayed by the actions of Inspector Cowman. The inspector questioned the weight and balance; the aircraft proved to be neither out of balance nor overweight. He asked for Mr. C. Falsnes' pilot licence and medical certificate which were produced. He alleged that Mr. C. Falsnes, the chief pilot approved by the Minister, was not qualified to conduct the flight and insisted on reviewing his training records which were in order. Inspector Cowman insisted on reviewing other training records, and he stood in front of the aircraft when he knew Mr. Falsnes intended to depart. All during a time when he knew the flight was being delayed, when he knew an injured person was waiting for transport back to Inuvik, and he knew there was another flight booked for the next morning which would have to be delayed for crew rest. He also knew Mr. C. Falsnes was the only pilot available. There was nothing in the examination-in-chief or the cross-examination of either Carl Falsnes or Olav Falsnes that caused me to question the truthfulness of their testimony. On the other hand, Inspectors Cowman's and McDonald's lack of specific memory of the events delaying the flight is not believable.

DISCUSSION

The Minister's argument was in essence that the inspectors have a job to do and that flight safety depends on it. There can be no doubt that the inspectors' job of enforcing the regulations is an important factor in achieving flight safety and their hands cannot be tied. The Aeronautics Act, the CARs, and the Standards demand high standards from the document holders. Similarly high standards should be expected from the inspectors charged with the responsibility of enforcing the law. Interfering in the normal operations of an air operator when there is no reasonable ground to believe there is an immediate threat to aviation safety falls below that standard. Based on the evidence presented there was no threat to aviation safety; therefore, interfering with normal operations was uncalled for. Although it can never be second place to safety, an air operator's reputation with its customers and its economic interests must be respected. In this circumstance they were not.

The document holders submitted that notwithstanding the breach of the regulations they had exercised the required due diligence and should be excused from the offence. In support of the submission they relied on evidence which I have found to be credible that the Minister's representatives interfered unreasonably with the departure of the flight. However, the onus of compliance remains with the document holder and the decision not to delay the departure, for no reason other than the inconvenience of a customer, is not exercising all due diligence.

DETERMINATION

The elements of the offence were admitted. I therefore confirm the Minister's finding. I do, however, reduce the fine to $625.00, an amount that in the circumstance would be sufficient to discourage a repeat of the same offence.

Arctic Wings - TATC File No. W-2899-41
Offence #2 - CARs 703.88(1)(d)

The Minister chose not to proceed with this matter.

Arctic Wings - TATC File No. W-2899-41
Offence #3 - CARs 703.99(1)(a)

The Minister alleged that on or about July 24, 2002 Arctic Wings failed to establish and maintain a record of Geoff Barberio's personnel licence number, type and ratings.

EVIDENCE

The Minister's representatives testified that on review of Mr. Barberio's training record they did not discover a record of his pilot licence number, type or ratings. In support of this, they tendered Mr. Barberio's records as Exhibit M-3. They further indicated that they requested further records and were advised there were none. They could not remember if they requested the specific information needed. Testimony on behalf of Arctic Wings was that at least one page of Mr. Barberio's training record is missing and that a personnel record form (page 39 of Arctic Wings MCM) should have been there. Mr. O. Falsnes further advised that had he known the inspectors were looking for a record of Mr. Barberio's licence number he would have produced a computer generated status sheet entitled Arctic Wings Training Record that was produced at this hearing (Exhibits D-9 to 11) which amongst other things contains the required information concerning Mr. Barberio's licence and ratings.

The evidence was that the date on the exhibits was inserted by the computer at the time of printing and that the record was kept by Arctic Wings in the normal course of business.

There is no evidence to support the Minister's suggestion that Exhibit D-9 was generated after the fact.

DETERMINATION

Although the pilot's training record may have been deficient as a result of the missing page, that was not the charge. The document holder had in fact established and maintained the required records. The matter is therefore dismissed.

CONCLUSION

Matter #1

Arctic Wings - W-2902-41

Offence #1: Arctic Wings did not fail to produce the records in its possession as required by CARs 103.02(2)(c). The charge is dismissed.

Offence #2: Withdrawn by the Minister.

Offence #3: Arctic Wings took all reasonable steps to ensure compliance by its employee with the restrictions as set out in its operator certificate. The Minister's decision as to this offence is dismissed.

Offence #4: As proof of the charge against Mr. C. Falsnes has not been proven there can be no vicarious liability. The charge against Arctic Wings is also dismissed.

Offence #5: Arctic Wings is not operations personnel of an air operator; it is the air operator. It could not in its own right commit the offence alleged. There can be no liability as the offence was not brought pursuant to section 703.02 of the CARs or subsection 8.4(1) of the Aeronautics Act; therefore, no offence has been alleged.

Olav Falsnes - W-2904-37

Offence #1: Allegation dismissed.

Carl O. Falsnes - W-2912-41

Offence #1: Withdrawn by the Minister.

Offence #2: The charge against Mr. Carl Olav Falsnes is dismissed as the Minister has not proven on the balance of probabilities that the offence occurred.

Offence #3: The Minister's allegation is upheld. However, in the circumstances only a very small fine can be justified. I therefore reduce the fine to $10.00.

Offence #4: Withdrawn by the Minister.

Offence #5: The necessary elements of the offence were admitted. The offence is therefore confirmed. The penalty in the amount of $250.00 is confirmed.

Total Penalty: $260.00

Matter #2

Arctic Wings - W-2838-41

Offence #1: The requirements of the MCM were met. The charge is therefore dismissed.

Offence #2: Withdrawn by the Minister.

Offence #3: Withdrawn by the Minister.

Offence #4: Arctic Wings did comply with the maintenance control system described in the MCM. The charge is dismissed.

Offence #5: The charge is dismissed.

Offence #6: All the elements of the offence have been admitted. I therefore find that the offence was committed. However, in all the circumstances of the offence, I find the fine to be wholly disproportionate to the seriousness of this particular offence and hereby reduce the fine to $250.00.

Total Penalty: $250.00

Olav Falsnes - W-2881-35

All three counts were withdrawn by the Minister at the Review Hearing.

Matter #3

Arctic Wings - W-2899-41

Offence #1: The elements of the offence were admitted. I therefore confirm the Minister's finding. I do, however, reduce the fine to $625.00, an amount that in the circumstance would be sufficient to discourage a repeat of the same offence.

Offence #2: The Minister chose not to proceed with this matter.

Offence #3: Although the pilot's training record may have been deficient as a result of the missing page, that was not the charge. The document holder had in fact established and maintained the required records. The matter is therefore dismissed.

Total Penalty: $625.00

William T. Tweed
Member
Transportation Appeal Tribunal of Canada

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^[1] [1893], 6R. 67 (H.L.), at 70-71.

^[2] [1978] 2 S.C.R. 1299 at 1331.