Decisions

CAT File No. Q-1850-10
MoT File No. 5258-1-8114

CIVIL AVIATION TRIBUNAL

BETWEEN:

Parachutisme Aventure Inc. Aéro 3000, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, ss. 7.1(1)
Canadian Aviation Regulations, SOR-96/433 ss.703.02, 703.07(1), 703.07(2)(b) 703.07(2)(b)(ii), 723.07(2)(b), 723.07(2)(b)(i)(A), 723.07(2)(b)(i)(A)(III), 723.07(2)(b)(ii)

Standards to be Met, Notice of Suspension, Qualified Managerial Personnel, Alterations of Notice of Suspension, Air Operator Certificate


Review Determination
Pierre Rivest


Decision: August 12, 1999

TRANSLATION

Based on a balance of probabilities, I confirm the Minister of Transport's decision to suspend the air operator certificate of Parachutisme Aventure Inc.Aéro 3000.

A review hearing on the above matter was held Friday, July 30, 1999 at 10:00 hours at the Federal Court of Canada premises in Montréal, Québec. The witnesses made a solemn declaration.

BACKGROUND

On July 16, 1999, the Applicant's air operator certificate was suspended because the Applicant no longer had a chief pilot employed in accordance with the requirements of subparagraph 703.07(2)(b)(ii) of the Canadian Aviation Regulations (CARs).

The suspension was to come into force on August 1, 1999 on which date the air operator certificate was to be returned to Transport Canada. The Applicant had until August 16, 1999 to appeal this determination before the Civil Aviation Tribunal (CAT).

Before presenting his evidence, Mr. Tamborriello made two modifications to the notice of suspension:

1. On page 1, the date of the air operator certificate should read 1996.10.10 (Exhibit M-1) and not 1998.06.11;

2. On the second page, in the left column, the reference to the CARs section should be 703.07 instead of 723.07.

These two modifications were accepted by the Tribunal and by the Applicant.

THE LAW

Subparagraph 703.07(2)(b)(ii) of the CARs stipulates:

703.07 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to

[...]

(2) For the purposes of subsection (1), an applicant shall have

[...]

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

[...]

(ii) chief pilot

THE FACTS

For the Respondent

Mr. Tamborriello called Mr. Marcel Devost. He is an inspector responsible for commercial air carriers for Transport Canada.

He provided to the Tribunal the main reasons for the suspension of the Applicant's air operator certificate by Transport Canada:

  • On June 23, 1999, a letter signed by Mr. Sylvain Desmarais, a former chief pilot of the Applicant, was first sent to Inspector Gilles Marsan, representative of Transport Canada at Saint-Hubert Airport (Exhibit M-2), who forwarded it to his superior, Inspector Devost.
  • This was a letter of resignation as chief pilot for Aéro 3000 (M-2).
  • At that time, the Applicant was informed by Transport Canada that the company no longer met the requirements of the regulations.
  • The Applicant then submitted the name of a candidate for the position of chief pilot, but the candidate was refused because he was not qualified for the position in accordance with the standards of the regulations. In addition, the request had not been signed by the administrator of the company (Exhibit M-3).
  • Transport Canada asked the Applicant to return its air operator certificate in accordance with subsection 7.1(1) of the Aeronautics Act:

7.1 (1) Where the Minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

Mr. Noël cross-examined the witness regarding the scope and meaning of subparagraph 703.07(2)(b)(ii) of the CARs and of standards 723.07(2)(b) which cover the obligations of the carrier and the qualifications of the chief pilot, respectively.

More specifically, Mr. Noël wanted to know what is meant by the word "adequate" in paragraph (a) of subsection 703.07(1) of the CARs.

(a) maintain an adequate organizational structure

Furthermore, what does Transport Canada mean by "employed on a full-time basis" (paragraph 703.07(2)(b))?

(b) managerial personnel who have been approved by the Minister in accordance with the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

The witness answered that the employee involved must meet the requirements of standards 723.07 of the CARs and that this is mentioned in the section in question, and that "full-time" means that the person should not be absent except for short periods of time, usually not longer than three weeks.

For its part, the note ("NOTE") under subparagraph (ii) of section 723.07, page 5, "Responsibilities" reads:

In his or her absence, all responsibilities for operational duties shall be delegated to another individual qualified in accordance with the Canadian Aviation Regulations except that the knowledge requirements detailed under Chief Pilot qualifications may be demonstrated to the air operator rather than the Minister.

Mr. Noël based his argument on the fact that the "NOTE" in question allows him, as operational manager of the company, to assign the responsibilities of chief pilot to someone else without informing the Minister. He therefore devolved most of the responsibilities of chief pilot upon himself.

This is where Transport Canada objected specifying that Mr. Noël did not meet the requirements of the standards (which is contrary to the "NOTE" because he would have to hold an airline transport pilot licence, but he only holds a commercial pilot licence.

The witness referred, among others, to subclause III of clause 723.07(2)(b)(i)(A) of the standards:

(A) The chief pilot shall:

[...]

(III) where IFR is authorized by the air operator certificate, hold a valid Airline Transport Pilot Licence (Aeroplane) or in the case of an IFR single-engine operation, a valid Commercial Pilot Licence (Aeroplane) and a valid Instrument Rating appropriate for an aeroplane subject to this Subpart.

Furthermore, Mr. Noël submitted that he never received Mr. Desmarais' letter of resignation and that if he had received it, he would have refused it. He therefore considers Mr. Desmarais still at his service, which is denied by the witness in view of the letter of resignation.

There were discussions between Mr. Noël and the witness regarding the interpretation of the word "absence." What is meant by absence and what is the allowable duration of absences?

According to the witness, these are periods during which the chief pilot is on vacation or sick leave, for example. Based on the custom accepted by Transport Canada, this is rarely longer than three weeks. However, it was mentioned that there is nothing officially written on the subject and that longer absences may be accepted.

For the Applicant

Mr. Noël testified for the Applicant since he has the responsibility of president, director of operations and maintenance engineer. His testimony consisted both of presenting certain facts or arguments and of pleading his case by exposing financial and operational considerations.

It must be said that his company is a very small business with a single aircraft, a Piper PA-31, a twin-engine pressurized aircraft operated under VFR and IFR conditions.

The company does not fly more than 250 hours per year, and most of these flights are not in the summer (between the end of June and the beginning of September, the aircraft does not make more than two or three flights per month). He therefore submitted that his chief pilot, Sylvain Desmarais, could be absent for the three months of summer, that this was in accordance with standards 723.07 and that most of the tasks normally devolved upon the chief pilot were transferred to him. This includes, among others, the tasks described in clauses B, C, D, E, F and G in subparagraph (b)(ii) of subsection 723.07(2) of the standards.

The company has at its service a qualified pilot and copilot to perform the required aerial work. For 10 to 15 flights during the summer, Mr. Noël submits that his chief pilot does not need to be on site at all times (Mr. Desmarais is currently flying in Greece on a forest fire spraying contract from which he will return next September 25th).

Finally, Mr. Noël admitted that the regulations must apply uniformly to everyone, but that the size of a business must also be considered and that certain requirements must be adapted to its needs.

All things considered, Mr. Noël deems his chief pilot, Mr. Desmarais, to be on vacation for the summer since his company never received his letter of resignation and because the one sent to Transport Canada was written under pressure from an inspector. He feels that an exception is possible since Transport Canada has already done so for other carriers.

Under cross-examination, Mr. Tamborriello brought out the following points that Mr. Noël did not deny:

  • the delegation of responsibilities from the chief pilot to Mr. Noël would not be valid because he is not qualified according to the standards of subclause 723.07(2)(b)(i)(A)(III);

(III) where IFR is authorized by the air operator certificate, hold a valid Airline Transport Pilot Licence (Aeroplane) or in the case of an IFR single-engine operation, a valid Commercial Pilot Licence (Aeroplane) and a valid Instrument Rating appropriate for an aeroplane subject to this Subpart.

(Mr. Noël only holds a commercial pilot licence);

  • even if the company did not receive Mr. Desmarais' letter of resignation, he had informed Mr. Noël of his departure. On this subject, Mr. Noël first submitted that he had no contact with his chief pilot before he left for Greece. This was later contradicted. Mr. Desmarais allegedly explained the reasons for his departure (financial issues) adding that he would be ready to return in September. In this case, we are relying on Mr. Noël's statement since Mr. Desmarais did not testify.

ARGUMENTS

In their arguments, the representatives of both parties did nothing more than summarize the key issues while in the case of the Applicant, certain admissions substantially clarified the situation.

For the Respondent

The proof that the chief pilot, Sylvain Desmarais, resigned is confirmed in his letter of June 23, 1999 (M-2).

According to Inspector Devost's testimony, the request for a new chief pilot, Mr. Stéphane Ferrière, was refused by Transport Canada because he was not qualified according to the standards in effect.

The responsibilities normally devolved upon the chief pilot and delegated to Mr. Noël are not acceptable because he is not qualified either.

Even if chief pilot Desmarais did not send a copy of his letter of resignation to his employer, it does not prevent Transport Canada from acting, given the information in its possession, especially since the allegation that Inspector Marsan "forced" Mr. Desmarais to resign has not been proven.

For the Applicant

Mr. Noël finally confirmed that he knew his chief pilot had to leave his position for another temporary position during the summer.

Mr. Noël could have requested an exception from Transport Canada, but he admitted he did not do so due to his lack of experience. However, concomitantly, he said he knew that such exceptions had been granted to other carriers.

He also admitted that he did not have the qualifications to assume the responsibilities of chief pilot.

During his argument, Mr. Noël insisted that the money he would have to spend to hire a new chief pilot during the summer would be better spent elsewhere to ensure the proper functioning of the company's business and operational safety.

ANALYSIS AND CONCLUSION

The evidence of Transport Canada regarding the fact that the company's chief pilot resigned from his position is supported by the letter from Mr. Desmarais (M-2). This evidence is not very strong since it is not corroborated by anyone except Inspector Devost. Inspector Marsan, who received the letter in question, was not present and the document was only a photocopy and not authenticated by anyone. I do not suspect that Transport Canada would fabricate such evidence, but again, it is not very strong evidence. However, no other evidence contradicted the letter in question.

In addition, Mr. Noël admitted having been informed of Mr. Desmarais' departure for Greece, but on short notice, it seems.

Everything rests on the following question: what difference should be made between an absence and a resignation, even if temporary?

According to Inspector Devost's testimony, there is no definition of the word absence in the regulations. Moreover, Transport Canada has no official policy or guidelines on the matter. To meet the requirements of full-time employment (703.07(2)(b)), Transport Canada accepts, at its discretion, periods of absence of varying lengths. Nothing shows me that Transport Canada does not have the expertise and latitude required to respond favourably to requests from carriers regarding prolonged periods of absence for an employee. All that is required is that such a request be made.

In my opinion, during an absence, the position of the employee involved remains filled and meets the requirements of the regulations. On the other hand, a resignation makes the position vacant. This is very different and as such contravenes the regulations. Since the repercussions on proper functioning of operations can vary depending on the size of the company and on the aerial work it performs, it is up to Transport Canada, in the context of existing regulations, to decide what is acceptable or not as it concerns absences.

In this matter, I conclude that the letter of resignation from chief pilot Desmarais automatically makes the position vacant requiring the carrier to immediately cease operations.

Section 703.02 is very clear:

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.

Even without a notice of suspension, the Applicant should have stopped its operations on June 26, 1999, the date of the letter of resignation from its chief pilot. The only acceptable excuse for not having done so is that the carrier allegedly did not receive a copy of this letter. However, the fact of not having received a copy does not prevent Transport Canada from acting. Once informed, Transport Canada has no other choice than to require the carrier to make every effort to conform to the law or return its air operator certificate.

DETERMINATION

Based on a balance of probabilities, I confirm the Minister of Transport's decision to suspend the air operator certificate of Parachutisme Aventure Inc. / Aéro 3000.

Pierre Rivest
Member
Civil Aviation Tribunal