Decisions

CAT File No. Q-2116-10
MoT File No. 5258-1-11009

CIVIL AVIATION TRIBUNAL

BETWEEN:

Centre École de Parachutisme Para-nord Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)


Review Determination
Michel G. Boulianne


Decision: July 18, 2001

TRANSLATION

The Tribunal confirms the decision of the Minister of Transport to suspend the applicant's air operator certificate.

A review hearing on the above matter was held October 6, 2000, at 9:00 hours at the Palais de justice in Rouyn-Noranda, Quebec.

PRELIMINARY REMARKS

The hearing of this matter took place in Rouyn-Noranda after discussion between the parties and a date was agreed on to allow the witnesses for both sides to be present. The witnesses were excluded from the hearing.

GROUNDS OF THE REVIEW

This case concerns a suspension of the applicant's air operator certificate. The notice of suspension reads as follows:

[Translation]

Pursuant to subsection 7.1(1) of the Aeronautics Act, the Minister of Transport has decided to suspend your abovementioned air operator certificate, for the following reasons:

Centre école de parachutisme Para-Nord Inc. is not able to conduct the operation safely as stipulated in sections 703.07(1)(f) and 702.07(1)f) of the Canadian Aviation Regulations.

This suspension takes effect September 14, 2000, at 23:59 hours, local time, and will remain in effect until such time as the conditions of reinstatement mentioned in the attachment are met and the document is reinstated by the Minister.

Should you wish to have the Minister's decision reviewed by the Civil Aviation Tribunal, you must apply in writing to the Tribunal before the date shown below. Applications may be filed with the registrar of the Civil Aviation Tribunal, 333 Laurier Avenue West, Suite 1201, Ottawa, Ontario, K1A 0N5. The telephone number is (613) 990-6906. The Civil Aviation Tribunal has prepared a booklet entitled Guide to Applicants obtainable from the registrar.

Your application for review must reach theTribunal by no later than 23:59 hours on September 30, 2000.

The filing of a review application with the Civil Aviation Tribunal does not prevent the suspension from taking effect.

You must submit, by no later than the effective date of this notice of suspension, your air operator certificate, in person or by mail, to the regional office of Transport Canada, at the address shown above. Failure to return a suspended Canadian aviation document to the Minister constitutes a violation of section 103.03 of the Canadian Aviation Regulations.

The particulars stated herein are also available in the other official language from the regional office of Transport Canada at the address shown above.

Attached to this notice of suspension was a notice concerning the conditions of reinstatement, namely, that Centre école de parachutisme Para-Nord Inc. must submit for approval by Transport Canada, Commercial and Business Aviation, a new qualified candidate in accordance with the Commercial Air Service Standards; CAR 723.07(2)(a), 723.07(2)(b) and CAR 722.07(2)(a), 722.07(2)(b). The applicant exercised its application for review within the time period allowed by the Act, and the present hearing is being held accordingly.

THE LAW

Paragraph 702.07(1)(f) states as follows:

702.07 (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

[...]

(f) conduct the operation safely.

Paragraph 703.07(1)(f) states as follows:

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

[...]

(f) conduct the operation safely.

EXHIBITS FILED AT THE HEARING

The Minister of Transport filed five (5) documents, namely:

  • M-1 : Notice of suspension sent by Transport Canada to the applicant on August 25, 2000, concerning certain defects found on aircraft C-FIHZ, specifically the unauthorized installation of equipment on the aircraft, namely a foot step, together with a request for reinstatement following removal of the faulty equipment, a letter from Aviamax Inc., the Transport Canada inspection report for the aircraft at that time, a reply to letter of notification 24-0019 confirming that the work had been done by Aviamax Inc., and a letter of May 26, 1998, confirming that a complaint had previously been made to the applicant concerning the installation of this non-conforming equipment.
  • M-2 : Background document from the manufacturer and the FAR (Federal Aviation Regulations) concerning the aircraft specifications and specifying the conditions and restrictions for issuance of the type certificate to ensure it meets the conditions of airworthiness.
  • M-3 : The applicant's air operator certificate containing the general conditions of the certificate issued November 4, 1998.
  • M-4 : Letter of May 18, 2000, sent to the applicant, to the attention of Mr. Louis Desrochers, sending him a new certificate of specialized air operations applicable to making parachute jumps in controlled airspace or over an air route. This document, to which we will return later, states in great detail all the operating conditions, even including, in Appendix A, a scale map of the landing area for parachutists at the Rouyn-Noranda airport.
  • M-5 : Document concerning the duties, responsibilities and line of authority of management and operational personnel of a holder of an operator licence.

Exhibit produced by the applicant:

The applicant, through its president, produced a document marked as I-1, namely, the June 2000 issue of the Canadian parachutists' journal CANPARA. This document was filed by Louis Desrochers to show, according to him, the growth of parachuting and the evolution of mass jumps. He also wanted to use it to show that there should be some flexibility in the interpretation of the rules and its alleged breach of these rules.

THE FACTS

The Minister of Transport called several witnesses to establish the charges against the holder.

The first witness was Mr. Kevin Treggey, a flight service specialist at NAV CANADA, domiciled in Rouyn-Noranda. In his opinion, the aircraft registered as C-FIHZ, on July 16, 2000 (while he was on duty), dispatched parachutists at different altitudes, namely, at around 4,000 and 10,000 feet a number of times that day. The ceiling was lower than the altitude at which the parachutists were dispatched, and he placed it at between 3,000 and 8,000 feet.

At 21:22 hours Z (17:22 hours in Rouyn-Noranda), he noticed the aircraft above the cloud layer. He went outside to make his weather observations and at that point saw three (3) parachutists emerge in free-fall from the cloud layer, almost directly over the airport; he saw them open their parachutes. At that time, the ceiling was at about 7,000 feet.

Regarding the events of July 30, 2000, the same witness noted a few clouds at 4,000 feet with a broken ceiling at 7,000 and at 12,000 feet with a visibility of 15 miles. He saw showers nearby and the wind was from 140° at 6 knots. He noted there was 3/10 cumulus cloud cover, 6/10 altocumulus cloud cover and 1/10 stratocumulus cloud cover. He said that a bit of blue could be seen through the clouds. His vantage point was that of the weather observer and on that day he had also worked at the air-ground position at the console, on communications; Stéphane Scherrer was at the air-ground console while he was on weather. So they were alternating. When questioned about the events of July 16, he said that the main layer was at 7,000 feet when the parachutists came out of the clouds. He also said that they landed on the airport fields in the spots designated for this purpose and that the landing seemed proper to him. Mr. Desrochers then asked very few questions about this.

The second witness was Mr. Stéphane Scherrer, a flight information specialist domiciled at Rouyn-Noranda. On July 16, 2000, he was on duty from 07:30 to 19:30 hours local time, and C-FIHZ dispatched parachutists at the airport all day long. This dispatching occurred between 4,500 feet and 10,000 feet. He said that according to the regulations and operator certificates of the school holding the licence, jumps are not to be made above a cloud layer that constitutes a ceiling, that is, that covers the sky to more than 6/10.

On several occasions, he pointed out that he or his department had mentioned to the pilot the existence of these ceilings and that they were to be respected. The pilot acknowledged receiving these comments and dispatched anyway. That day at about 18:00 hours, when dispatching, so it was at the end of the day; during a planned jump at an altitude of 10,000 feet, the witness asked the pilot to wait because an Air Nova aircraft was preparing to taxi for a departure. Impatient, the pilot told him he did not have to ask him to wait. Mr. Scherrer asked the pilot to confirm that he was in VFR under the clouds. The pilot responded: "VFR on top ... it's not your business!". The witness coordinated with the Montreal control centre and once the conflict situation with the Air Nova aircraft had passed, the witness notified the pilot that he could proceed to dispatch at his discretion, which the latter did. The witness did not see the dispatch take place, but saw the parachutists once they got close to the ground, as they could not be seen before.

Another time, on June 25, 2000, the applicant made dispatches without personnel on the ground, contrary to the requirements of the operator certificate. This personnel must always be in contact with the tower or the control centre by radio during operations and must keep to the right close to the tower. He confirmed, however, that the coordination between the pilot and the tower was fine and complied with the certificate. On that occasion, he also reconfirmed the altitude of 10,000 feet and explained that there was no ceiling in the "weather" sense to his recollection. In cross-examination about the events of July 16, he reconfirmed that it was early in the afternoon, that he was outside the tower, on the bridge, and that he saw C-FIHZ enter a cloud and saw two (2) parachutists emerge from the base of the cloud. He did not, however, hear the communications because he was outside.

The third witness was Mr. Éric Turcotte, a flight service specialist with the aircraft advisory service, domiciled at Rouyn-Noranda. He is a supervisor. On July 15, he was on duty from 07:30 to 19:30 hours, he worked at the weather post in the morning until 13:30 hours, but saw parachutists emerge from the clouds in the morning. He acknowledged that there had been breaks in the clouds.

On May 21, 2000, he was at the air-ground position and at about 20:30 hours Z, C-FIHZ wanted to dispatch three (3) parachutists at 10,000 feet. He told the pilot to call him before making the dispatch as there was an inbound helicopter to the north. At 20:35 hours, C-FIHZ notified him on frequency 126.7 that he had dispatched three (3) parachutists at 10,000 feet, although he had not contacted him to this effect as had been agreed. The witness told him he should have called him before making the dispatch, as requested, to which the pilot answered that he was too busy and had not had time to call. The witness then informed the helicopter pilot of the situation, who in turn informed him he had parachutists within view and skirted around them. C-FIHZ was at that time in VFR flight conditions.

The witness related another event concerning VFR flight. On July 9, 2000, he was called at home by the specialist on duty about C-FIHZ and the applicant admits to the events. At 17:33 hours Z on that day, C-FIHZ requested special VFR clearance for thirty (30) minutes in order to make a local flight in the Rouyn-Noranda area. Following take-off, there was no contact for sixty (60) minutes. An intensive search was begun, which turned up nothing. About an hour later, C-FIHZ called and confirmed its return. No approach or departure had been available during this period of sixty (60) minutes owing to this lack of two-way communication, and the pilot had been advised to review these "special VFR" procedures. After a period of thirty (30) minutes, he was considered missing as it was not known where he was; as a result, Montreal control did not clear any approaches.

The next witness, Mr. Jean-Denis Haran, domiciled in Saint-Eustache, is a civil aviation investigator with Transport Canada, Aviation Enforcement division.

He made the administrative inspection at the premises of the applicant, Centre école de parachutisme Para-Nord Inc., and travelled to Saint-Bruno-de-Guigue together with Pierre Cloutier, Diane Holmes and Julien Laroche. He was there on an investigative matter.

During this meeting of Mr. Cloutier's debriefing with Mr. Desrochers, defects were mentioned in the applicant's operations, specifically non-conforming pilot records, pilot records that fail to reflect training in accordance with the standard (records of unused flying time, etc.), company orientation course (incomplete training).

During the aircraft inspection, note was made of a lack of safety harnesses for parachutists in the back, contrary to the standard, and the non-regulation installation of a homemade foot step for mounting the wheel on the right-hand side of the plane. There were no questions for the witness.

Next, Mr. Jean-Pierre Charland, a flight service specialist domiciled at Rouyn-Noranda, was also heard.

His testimony reveals that on May 6, 2000, at about 18:20 hours, local time, at an altitude of at least 5,000 feet, C-FIHZ was making parachute drops while an aircraft (Propair) was entering the area from the north to land. In such cases, the two (2) aircraft and their activities must be coordinated. The pilot of C-FIHZ was to hold back his parachutists, which he did not do despite being given notice to do so. The other aircraft landed cautiously and had to come to a stop quickly, as one of the parachutists that had jumped from the dispatch aircraft had "swept" in front of the landing aircraft, about 150 feet in front of it. This was a doubly perilous situation as C-FIHZ was already on final while the other aircraft had not fully cleared the runway after coming to a stop. When the witness asked the pilot to keep back its parachutists until the King Air of the Propair company had landed, the pilot responded, "Ah! I have time!" On cross-examination, he also said that C-FIHZ requested permission to dispatch and was clearly asked to wait; at that point, the Propair aircraft was 18 miles north of the runway and not yet on final, but was already in advisory service with the airport.

Mr. Roch Raymond, superintendent of the Transport Canada district office, domiciled at Val-d'Or, was then heard and his testimony concerned mainly the inspection of August 24, 2000, done by Julien Laroche, in which he did not take part.

He said, however, that the summary of the three (3) inspections is found in the document filed as M-1, and that on August 24 there were no other irregularities other than the major modifications that had been made to the aircraft. As for documents M-3 and M-4, the first allowing the commercial operation and the other allowing parachuting activities, these two (2) documents are necessary for commercial activity such as the appellant's. The air operator certificate M-3 had been suspended, although the licence holder could continue to operate [under] licence M-4 on a private basis. Document M-5 is an excerpt from the applicant company's operations manual.

The Tribunal asked a number of questions to obtain further details, as the applicant was not represented by counsel.

EVIDENCE OF THE DEFENCE

The first witness heard was Mr. Christian Béland, a mining foreman. He testified that he has never jumped through clouds. He is a pilot as well as a jumper and never jumps directly above the target. He had been there every weekend and said that it is not possible to land from the other side of the runway. He said that jumps are made at between 3,500 and 9,000 feet and never below a minimum of 2,800 feet.

The second witness, Mr. Daniel Parent, a machine operator, domiciled at Amos, said that he jumped the day of May  21, 2000, but did not see the helicopter and he was the last to jump. On July 15, 2000, he was not there, and on July 21, 2000, he made two or three jumps.

Ms. Rosanne Gélinas was the next witness. She is a waitress, domiciled at Amos. On July 16, 2000, she made four jumps and did not come through the clouds. She could not say exactly how many parachutists there were that day.

Finally, Mr. Desrochers was the last witness to testify. He mentioned briefly that he was not familiar with "special VFR" conditions and prerequisites for jumps above clouds. He said they had never dispatched directly over the tower, that there was always safety personnel on the ground, equipped with a radio. Without reviewing his entire testimony about VFR flight conditions, he said he was not entirely familiar with them and did not know what obligations were attached to "special VFR" in a control area. He thus confirmed the criticism levelled against him that he should review the relevant sections of his flight manual. Regarding installation of the foot step, he confirmed that this had been done the following week; he knew that this was non-conforming and did not want to pay $2,000.00 for new, conforming equipment. With regard to maintenance of the aircraft, he claims there is an operations manager, a senior pilot, that the administration is carried out, that the maintenance is done by Aviamax and that Michel Bégin coordinates this maintenance with Aviamax.

Finally, about the flight of July 9, 2000, and the failure to respect the "special VFR" flight restriction, requested for 30 minutes, he acknowledged this, adding that this was merely an oversight.

ARGUMENTS

The arguments were fairly brief. The Transport Canada representative said that all the facts had been proven, that the documents produced, from M-1 to M-5, clearly showed that the aircraft had defects, that meetings had taken place, in short, that every attempt had been made to correct the situation, but that the applicant was playing a kind of hide-and-seek with Transport Canada, in the sense that it removed pieces, replaced them, and so on, that there were no safety harnesses in the back whereas on other occasions there had been, that the flying conditions, specifically those for VFR and "VFR OTT" (Over-the-Top) flight, were not respected and that this could be dangerous mainly in flight conditions in the vicinity of an airport. This is a preventive action owing to the failure to meet the general conditions of issuance of the certificate.

ANALYSIS OF THE EVIDENCE

The analysis of the evidence is fairly straightforward. It is evident that on several occasions, jumps were made even though weather conditions did not permit this, control tower instructions were not followed, and there was risk to both the jumpers and the applicant's pilots, as well as to pilots of other commercial operators; that certain flight conditions had not been met, to the point of paralyzing airport operations for a one-hour period; and finally, that the technical requirements for the aircraft (foot step, safety harness, etc.) had not been met. According to Mr. Desrochers' testimony, he was not familiar with certain statutory provisions, did not know that he was not in compliance, and on other occasions was unaware of certain flight situations and the restrictions these could entail. This denotes a certain carelessness, perhaps with no ill intent, but the risk was there.

The Tribunal considers these facts, but also to a point a certain lack of concern on the part of the applicant and its representative with regard to certain facts, a number of which we review here:

  • The aircraft's specifications do not allow for a homemade foot step. This was noted in 1998, and at the inspection in August 2000 it was noted that it had been replaced with another.
  • The applicant and its president therefore proceeded with the removal quite likely in 1998 and replaced it the following season.
  • The applicant was aware of this, since Mr. Desrochers told us it was not about to pay $2,000.00 to comply with the regulations.
  • On at least two (2) occasions, the applicant's pilot or pilots flouted the instructions of the personnel on duty in the control tower of the Rouyn-Noranda airport, by dispatching parachutists despite the formal temporary ban issued them, priority, in one case, having been given to a helicopter or to a departing or arriving aircraft.
  • The evidence showed that an aircraft already in contact with the advisory service had priority. The applicant's pilot nevertheless proceeded with the dispatch, believing he had time despite being formally forbidden from proceeding with the dispatch.
  • This meant there was a double danger of an accident, since the landing aircraft had to slow down or stop its turn off the active runway because parachutists had "swept" in front of it, while the applicant's aircraft was already on final and the Propair aircraft had not turned off the active runway.

At no time did the applicant's witnesses dispute these assertions.

All these facts, these situations show careless operation and a breach of the standards stipulated, specifically in documents M-3 and M-4.

The general conditions set out in M-3 are as follows:

An air operator certificate is issued subject to the following conditions and remains valid, subject to subsection 6.71(1) of the Aeronautics Act, as long as the following conditions have been met:

(a) the air operator conducts the operation in accordance with the company's operations manual;

(b) the air operator maintains an appropriate organizational structure;

(c) the air operator has in its employ management personnel who meet the Commercial Air Service Standards;

(d) the air operator provides training in accordance with the training program approved in application of this subpart;

(e) the air operator has aircraft that are equipped with equipment appropriate to the area of operation and the type of operation;

(f) the air operator has in its employ crew members who are qualified for the area of operation and the type of operation;

(g) the air operator carries out aircraft maintenance in accordance with the requirements of Subpart 706, Part VII of the Canadian Aviation Regulations;

(h) the air operator maintains services and operational support equipment that comply with the Commercial Air Service Standards;

(i) the air operator informs the Minister of any change made to its legal name, its business name, its base of operation or its management personnel within 10 business days following the change;

(j) the air operator conducts its operation safely.

We cite a few significant paragraphs in document M-4:

1. This certificate:

(a) is issued to CENTRE ÉCOLE DE PARACHUTISME PARA-NORD INC.;

(b) may be suspended or cancelled at any time by the Minister should the Minister deem it necessary, owing, notably, to the failure of the holder, its employees or its representatives to comply with the provisions of the Aeronautics Act and the Canadian Aviation Regulations (CARs);

(c) may not be transferred or remains valid until November 1, 2000, or until it is suspended or cancelled.

2. Nothing in this certificate releases the holder from the obligation to comply with the provisions of Canadian aviation documents issued pursuant to the Aeronautics Act.

[...]

5. Before authorizing a parachute jump, the certificate holder must ensure that the pilot-in-command of the dispatching aircraft and anyone who is to make a parachute jump:

(a) have been informed of the terms of the certificate;

(b) have been informed of their duties and responsibilities with respect to parachute jumps;

(c) are able to fulfil their duties and responsibilities.

[...]

7. No parachute jump may be made:

(a) without the authorization of the pilot-in-command of the dispatching aircraft;

(b) when any part of the descent, including the free fall, will be made through clouds;

(c) when another aircraft present in the area constitutes a danger.

[...]

17. Parachute jumps, from 4,000 feet ASL to 10,000 feet ASL:

(a) the pilot-in-command of the dispatching aircraft must comply with the following air traffic control procedures:

[...]

(4) When the Rouyn Flight Service Station reports traffic and this traffic appears to conflict with the aircraft that is dispatching parachutists, the pilot of the dispatching aircraft must establish two-way radio communication with this traffic on the appropriate frequency (for example: if the traffic is on the en-route frequency 126.7 MHz à in direct mode);

The breaches pointed out in the evidence contravene nearly all the above provisions, noted in the company's official document.

The evidence is sufficiently abundant and undisputed to be deemed reliable and accorded all the necessary credibility, in view of the Minister's decision. It is a pity that the applicant did not provide different, more complete evidence. Several times, Mr. Louis Desrochers told the Tribunal that he could have provided this or that additional evidence, but nothing came of this. The Tribunal even offered, and was refused, to allow him to complete his evidence another day if need be, with witnesses or documentation. Mr. Desrochers' testimony alone is not enough to overturn one iota of the evidence established by Transport Canada and by, among others, the ground observers on duty at the Rouyn-Noranda airport on the various dates. His witnesses are imprecise. This or that witness may not have jumped through the clouds, but this does not establish that others did not do so, and the fact that these witnesses say it is illegal to jump through clouds does not prove that this was not done, when the eyewitnesses confirm that it did.

The evidence has not shown that the applicant continually flouted the law, but it has been clearly established that from the standpoint of both administration and air operations, the applicant did not always abide by the law and its personnel were not familiar with the various facets of the air operations of a permit holder.

The evidence shows an evident carelessness, which could have endangered the life of not only the applicant's pupils, but also that of passengers of airlines like Air Nova and Propair on two (2) specific occasions which were related at the hearing.

For these reasons, the Tribunal cannot allow the applicant's request.

CONCLUSION

The Tribunal confirms the decision of the Minister of Transport to suspend the applicant's air operator certificate.

Michel Boulianne
Member
Civil Aviation Tribunal