Decisions

CAT File No. Q-2140-10
MoT File No. N5258-1-8114

CIVIL AVIATION TRIBUNAL

BETWEEN:

Parachutisme Aventure Inc./c/o/b/ Aéro 3000, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Suzanne Racine


Decision: October 18, 2000

TRANSLATION

The Minister has proven, on a balance of probabilities, that the applicant's air safety is compromised by the repeated contraventions and the attitude of its operations manager. I confirm the decision of the Minister of Transport to suspend the air operator certificate of Parachutisme Aventure Inc/Aéro 3000 until the conditions of reinstatement stated in the notice of suspension are met and the document is reinstated by the Minister.

A Review Hearing on the above matter was held October 5, 2000, at 10:00 hours at the courthouse in Montréal, Quebec.

PRELIMINARY REMARKS

No preliminary agreement was reached between the parties.

At the start of the hearing, Mr. Tamborriello, representing the respondent, delivered to the applicant the documents used to establish its evidence and said he had not had time to do so beforehand as the applicant had asked that a hearing be held as soon as possible. The applicant did not object to the filing. The member believes, however, that it would have been preferable for the Minister to give the applicant its evidence earlier to allow him to read it over.

Mr. Tamborriello then made corrections to documents M-2 and M-4, explaining that section of the Canadian Aviation Regulations (CARs) which is the object of this correspondence is 723.07(2) rather than 724.07(2).

OBJECT OF THE REVIEW HEARING

On September 14, 2000, Transport Canada served the applicant, Parachutisme Aventure Inc., with a notice of suspension of its air operator certificate stating that it is incompetent to conduct its air operation safely as stipulated in paragraphs 703.07(1)(f) and 702.07(1)(f) of the CARs. The notice states that the suspension would take effect on October 16, 2000, at 23:59 hours, local time, and would remain in force until such time as the conditions of reinstatement mentioned in its attachment were met and the document (air operator certificate) was reinstated by the Minister.

The reasons for the suspension and the conditions of reinstatement set out by the Minister are the following:

Grounds for the Suspension or Cancellation

Raison de la suspension ou de l'annulation

Conditions for reinstatement

Conditions pour rétablissement

Aéro 3000 is incompetent to conduct its air operation safely.

The past record shows that the current operations manager has been unable to conduct an air operation safely, as stipulated in paragraphs 703.07(1)(f) and 702.07(1)(f) of the Canadian Aviation Regulations.

Aéro 3000 must present for approval by Transport Canada, Commercial and Business Aviation, a new candidate qualified in accordance with [the] commercial air service standards; CAR 723.07(2)(a) and 722.07(2)(a). The candidate must demonstrate that he is able to conduct an operation safely.

The applicant is appealing this decision before the Civil Aviation Tribunal.

THE LAW

Paragraph 7.1(1)(b) of the Aeronautics Act stipulates:

7.1 (1) Where the Minister decides

[...]

(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,

[...]

the Minister shall by personal service or by registered mail ...

Paragraphs 702.07(1)(f) (Aerial Work) and 703.07(1)(f) (Air Taxi Operations) of the CARs stipulate:

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.

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.

The responsibilities of the operations manager (Subpart 2—Aerial Work) are set out in subparagraph 722.07(2)(ii) of the Commercial Air Service Standards (Standards):

(ii) Responsibilities

The operations manager is responsible for safe flight operations. In particular, the responsibilities of the position include:

(A) control of operations and operational standards of all aircraft operated;

(B) operations co-ordination functions which impact on operational control (eg. maintenance, crew scheduling, load control, equipment scheduling);

(C) contents of the air operator's Company Operations Manual;

(D) the supervision of, and the production and amendment of, the Company Operations Manual;

(E) training and qualifications of flight operations personnel;

(F) liaison with the regulatory authority on matters concerning flight operations including any variation to the Air Operator Certificate;

(G) liaison with any external agencies which may effect air operator operations;

(H) ensuring that the air operator's operations are conducted in accordance with current regulations, standards and the Company Operations Manual;

(I) ensuring that crew scheduling complies with flight and duty time regulations;

(J) ensuring that all crew members are kept informed of any changes to applicable regulations and standards;

(K) the receipt and actioning of any aeronautical information affecting the safety of flight;

(L) dissemination of flight operations safety information;

(M) qualifications of flight crews;

(N) maintenance of a current operations library; and

(O) ensuring that responsibilities for operational control functions are delegated to qualified personnel.

The responsibilities of the operations manager (Subpart 3—Air Taxi) are set out in subparagraph 723.07(2)(ii) of the Standards:

(ii) Responsibilities

The operations manager is responsible for safe flight operations. In particular, the responsibilities of the position include:

(A) control of operations and operational standards of all aircraft operated;

(B) the identification of operations coordination functions which impact on operational control (eg. maintenance, crew scheduling, load control, equipment scheduling);

(C) supervision, organization, function and manning of the following:

(I) flight operations;

(II) cabin safety;

(III) crew scheduling and rostering;

(IV) training programs; and

(V) flight safety;

(D) the contents of the air operator's Company Operations Manual;

(E) the supervision of and the production and amendment of the Company Operations Manual;

(F) liaison with the regulatory authority on all matters concerning flight operations, including any variations to the air operator's Air Operator Certificate;

(G) liaison with any external agencies which may affect air operator operations;

(H) ensuring that the air operator's operations are conducted in accordance with current regulations, standards and air operator policy;

(I) ensuring that crew scheduling complies with flight and duty time regulations;

(J) ensuring that all crew members are kept informed of any changes to the regulations and standards;

(K) the receipt and actioning of any aeronautical information affecting the safety of flight;

(L) the dissemination of aeroplane safety information, both internal and external;

(M) qualifications of flight crew member; and

(N) maintenance of a current operations library.

NOTE:

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 Operations Manager qualifications may be demonstrated to the air operator rather than the Minister.

THE FACTS

Evidence of the Respondent

The Minister's representative called Messrs. Gilles Marsan and Marcel Devost of Transport Canada, Civil Aviation, respectively to testify.

In accordance with section 16 of the Civil Aviation Tribunal Rules, the member ordered the exclusion of the witnesses until called to give their respective evidence, to prevent one witness influencing the other, as their testimonies are based essentially on the facts.

Mr. Marsan filed as Exhibit M-1, operator certificate no. 8520 of Parachutisme Aventure Inc. approved by Transport Canada on August 13, 1999, and as Exhibit M-7, a true copy of the original journey log of aircraft
C-GAFG for the period July 4, 1999, to September 19, 2000. The manufacturer's model designation appearing in the said log is PA-31P and the serial number is 31P-76.

Mr. Marsan testified that, according to the information on file, the applicant's chief pilot in December 1999 was Mr. Dale Propp. He said he received at that time a call from Mr. Desmarais expressing his interest in becoming the applicant's chief pilot, Mr. Propp having left for Calgary. Mr. Marsan waited in vain for confirmation that Mr. Demarais would be replacing Mr. Propp in his duties. Mr. Desmarais did notify Mr. Marsan, however, in about May 2000, that he had not assumed the duties of chief pilot for the applicant.

Mr. Marsan said he then contacted the operations manager, Mr. Noël, by telephone and in writing on May 12, 2000, to ask him for the address of Mr. Propp, still the applicant's chief pilot until notice to the contrary (Exhibit M-8). He said he subsequently received a letter from Mr. Noël dated May 20, 2000 (Exhibit M-10), refusing to disclose Mr. Propp's address and formally forbidding him from speaking to his chief pilot without his consent.

Mr. Marsan then told the member that in the meantime, he had received a letter from Mr. Noël dated May 17, 2000 (Exhibit M-9), asking him to consider his candidacy for the position of chief pilot for the applicant though he was aware that he did not meet the requirements set out in subdivision 723.07(2)(b)(A)(III) of the Standards. Transport Canada rejected Mr. Noël's candidacy on May 29, 2000, telling him to submit the name of another candidate in order to keep the applicant's operator certificate valid and in force (exhibits M-12 and M-13), as the applicant no longer had a chief pilot, contrary to the requirements stipulated in the CARs.

When cross-examined by Mr. Noël, Mr. Marsan again said he had been informed of Mr. Propp's departure by Mr. Desmarais who offered to replace him. Mr. Marsan said he tried unsuccessfully to confirm this information with the applicant's operations manager, Mr. Noël. Mr. Marsan disputed the allegations of having prompted or called for the resignations of former chief pilots Messrs. Guérin (which occurred in late 1998) and Desmarais (which occurred in June 1999) or of having intimidated them in this regard.

Mr. Devost, the Minister's second witness, told the member that Transport Canada had already notified Mr. Noël in writing, on August 18, 1998, that the applicant's operations were not being conducted in accordance with the air operator certificate and that Transport Canada therefore had to withdraw the privileges of the operations manager until it was informed of an acceptable candidate for these duties (Exhibit M-2).

In his reply of August 25, 1998 (Exhibit M-3), Mr. Noël acknowledged several irregularities (the chief pilot was not available at the time of the first two flights; the crew had exceeded the maximum flight time allowed and the operations manager had, for reasons of economy and without being qualified, served as co-pilot on a night flight), but asked Transport Canada to reassess its decision and to confirm him in his duties as operations manager, assuring them that operations would be conducted in accordance with the applicant's operator certificate.

In a letter of September 21, 1998, Mr. Devost confirmed Mr. Noël in his duties, but informed him that Transport Canada would tolerate no breach in the conduct of the air operations of which he was manager; a breach would result in steps being taken to withdraw its privileges again (Exhibit M-4).

Mr. Devost then said that Transport Canada suspended for a second time, on July 16, 1999, the applicant's air operator certificate as it had no chief pilot, contrary to the requirements of subparagraph 703.07(2)(b)(ii) of the CARs (Exhibit M-5). The suspension was lifted August 13, 1999, the applicant having complied with the conditions of reinstatement set out by the Minister in proposing Mr. Propp for the position of chief pilot (Exhibit M-6).

In May 2000, when Mr. Marsan tried in vain to obtain Mr. Propp's address from Mr. Noël, Mr. Devost testified that he wrote to Mr. Propp on May 26, 2000, at his last known address in Ville Lasalle, but that the letter was returned unclaimed to Transport Canada (Exhibit M-11). Mr. Devost finally traced Mr. Propp's address in Calgary through an in-flight test the latter had taken in June 2000 (Exhibit M-15). Mr. Devost said that Mr. Propp then confirmed to him in a letter dated August 9, 2000, that he had not worked for the applicant since December 15, 1999, and forwarded him a copy of his letter of resignation to Mr. Noël dated November 18, 1999 (Exhibit M-16).

Mr. Devost was at pains to say he did not receive confirmation that the applicant had ceased operations when there had been no chief pilot since December 15, 1999.

He went on to say that his inspector, Mr. Cossette, at the end of a report of an inspection of aircraft C-GAFG done August 9, 1999, noted several irregularities having to do with the overdue inspection of the emergency locator beacon, an incomplete first-aid kit, the co-pilot's damaged and musty oxygen mask, protective goggles with holes, no inspection date recorded on the two extinguishers, and an inaccurate list of on-board equipment (Exhibit M-18).

He himself, on conducting an in-flight test with the applicant's pilot Mr. Guérin in August 2000, found several defects in the aircraft's on-board equipment, specifically, that the cowl flap indicators malfunctioned and could not be used in accordance with the manufacturer's standard operating procedures (Exhibit M-21).

When cross-examined by Mr. Noël about the role of the operations manager, Mr. Devost said that the latter is responsible, among other things, for aircraft maintenance personnel and for ensuring that any irregularities found, by both the approved maintenance organization (AMO) and Transport Canada, are noted and corrected to ensure the safety of air operations. It is also important, in his view, for the operations manager to ensure that regular inspections are done of the on-board equipment (notably, the emergency locator beacon). Mr. Devost said it is essential that Transport Canada establish partnership relations with the directors and employees of air carriers to encourage transparency and co-operation between the parties involved as well as the air safety of their operations.

Evidence of the Applicant

It is important to note, at this stage, that the Minister's representative admitted in evidence that Mr. Noël's qualifications and knowledge are not in question and that the object of the dispute concerns his responsibilities for ensuring the safety of the applicant's flight operations.

In this regard, Mr. Noël argued that he performs his job as operations manager in a professional manner, based on the following:

  1. He adequately controls operations and operational standards, particularly those concerning aircraft maintenance.
  2. The entries made in the aircraft journey log show that the irregularities found were corrected in accordance with the standards.
  3. He ensures that all company pilots comply with flight and duty time regulations.
  4. Safety precautions are demonstrated before every flight.
  5. He adheres to the crew training programs.
  6. The customers are loyal to the applicant because its activities inspire their confidence.
  7. He is familiar with the applicant's operations manual because he wrote it.
  8. He provides liaison with the regulatory authorities of Transport Canada, though his relations with the latter are rather difficult.

In this regard, Mr. Noël testified that he has had serious problems with Transport Canada since the applicant began its operations. In his opinion, Transport Canada does not treat his requests fairly, even misleads him by telling him that the position of chief pilot is a full-time position, claiming that the applicant is not large enough (200 hours of flight/year) or have the organizational structure to hire, train and employ a full-time chief pilot. Mr. Noël also wondered about breaches of the CARs allowed by Transport Canada that permit some pilots with other companies to wear the hats of both pilot and chief pilot.

Mr. Noël's avowed aim was to become chief pilot of the applicant and he testified that he firmly intends to qualify, as various chief pilots of the applicant have either resigned because of intimidation by Transport Canada, or left after a time because they found the position did not pay enough.

While he admitted having made mistakes in conducting the applicant's operations, Mr. Noël acknowledged that they were not committed in bad faith, that he personally had them corrected, that he complied with the maintenance standards laid down by the applicable regulations, some inadvertent oversights notwithstanding, and that he had never endangered the life of either passengers or crew.

When cross-examined by the Minister's representative, Mr. Noël admitted that he had not amended the applicant's operations manual to reflect the changes in the chief pilot since Mr. Desmarais' resignation in June 1999. He said he was satisfied with the relations he had with Mr. Bernard Henry of Transport Canada.

ARGUMENTS

Mr. Tamborriello, for the Minister of Transport, pointed out that all the facts placed in evidence support the argument that Mr. Noël failed, on a number of occasions, to fulfil his responsibilities set out in section 723.07(2) of the Standards and that he is incompetent to carry out the duties of operations manager and to ensure the safety of the applicant's air operations for the following reasons:

  1. Mr. Noël admitted, in his letter of August 25, 1998, having committed several irregularities.
  2. Mr. Noël did not notify Transport Canada that the applicant's chief pilot would no longer be performing his duties after December 15, 1999, which is contrary to paragraph 703.09(i) of the CARs which stipulates that Transport Canada shall be notified of any change in management personnel within 10 working days.
  3. The flight log of aircraft C-GAFG shows that the applicant had continued its operations since the end of December 1999, even though it did not comply with the conditions and operations specifications in the air operator certificate, contrary to section 703.02 of the CARs.
  4. Mr. Noël refused to co-operate with Transport Canada by withholding essential information about the chief pilot, contrary to his responsibilities set out in division 723.07(2)(ii)(F) of the Standards.
  5. Mr. Noël was careless about his duties of control of operational standards and co-ordination, contrary to his responsibilities set out in divisions 723.07(2)(ii)(A) and (B) of the Standards. He acknowledged, among other things, not having used the cowl flaps, contrary to the requirements stipulated in the standard operating procedures of the PA-31P type aircraft.
  6. Mr. Noël represents a risk for the applicant's air safety. The aviation track record of Mr. Noël, as the applicant's operations manager, attests to his incompetence to perform these duties effectively.

Mr. Noël, for the applicant, pointed out that he is competent to perform the duties of operations manager and that Transport Canada prevents him from doing his job effectively. Relations have become so poisoned that he believes the bond of trust between them has been broken. Frustrated by Transport Canada's lack of co-operation, he asked that another inspector be assigned to the applicant in order to continue on a better footing.

REASONS

Subsection 7.1(1) of the Aeronautics Act permits the Minister to suspend the air operator certificate when the holder of a Canadian aviation document is incompetent, if he deems it to be in the public interest, and notably, if the aviation track record of the holder or its directors requires it.

Also, the applicant's air operator certificate no. 8520, filed as Exhibit M-1, specifies that the Minister of Transport may suspend the said certificate if the air operator fails to conduct its air operation safely. Operator certificate no. 8520 further stipulates that for it to remain valid, the following conditions must be met:

[...]

(c) the air operator employs management personnel that meet the Commercial Air Service Standards;

[...]

(i) the air operator is to notify the Minister within 10 working days of any change in its [...] management personnel.

[...]

Section 703.02 of the CARs stipulates that an air operator is forbidden to operate an aircraft unless the operator complies with the conditions and operations specifications in the air operator certificate issued to it by the Minister pursuant to section 703.07.

The burden of proof, for suspension of the air operator certificate, rests with the Minister. The Minister must show, on the balance of probabilities, that the applicant is incompetent to conduct its air operation safely.

The evidence shows, and the applicant has acknowledged, that it committed a number of irregularities in 1998 in violation of the operations conditions stipulated in air operator certificate no. 8520, and that its operations manager, Mr. Noël, had his privileges withdrawn as a result.

The good faith of the applicant's operations manager does not excuse the fact that irregularities were indeed committed during the first two flights, specifically, that the chief pilot was not available, that the crew exceeded the maximum flight time and that the operations manager, for reasons of economy and knowing he was not qualified, acted as co-pilot on a night flight.

These events notwithstanding, in September 1998, Transport Canada granted Mr. Noël's request to be confirmed in his duties as operations manager, but reminded him of the importance of fulfilling the responsibilities delegated to him pursuant to subsection 703.07(2) of the CARs. The applicant was then informed that Transport Canada would tolerate no further breach in the conduct of its operation; a breach would result in its privileges being withdrawn again.

Despite this warning, in July 1999 Transport Canada again had to suspend the applicant's operator certificate, this time because it did not have a chief pilot, contrary to the requirements of the CARs and its air operator certificate. The applicant's operator certificate was reinstated August 13, 1999, after Transport Canada approved Mr. Propp's candidacy.

Mr. Marsan, however, was informed by Mr. Desmarais of Mr. Propp's departure for Calgary in December 1999. The evidence shows that Transport Canada received no official confirmation of this until August 8, 2000, and from Mr. Propp himself, Mr. Noël having formally refused to give Transport Canada his address despite its repeated requests. Nor did Transport Canada receive confirmation from Mr. Noël that Mr. Desmarais would replace Mr. Propp in his duties. On the contrary, Transport Canada was not informed until after the fact by Mr. Desmarais, in May 2000, that he had decided not to take over Mr. Propp's duties as chief pilot for the applicant.

The Tribunal has good reason to believe that Mr. Noël failed to send Transport Canada Mr. Propp's letter of resignation dated November 18, 1999, or to give it sufficient advance notice of the changes in chief pilot that occurred in late December 1999. The Tribunal is of the opinion that Mr. Noël thus flouted his responsibilities to ensure proper liaison with Transport Canada, by withholding information that was to be declared to the authorities within 10 days.

While it is the Tribunal's opinion that Transport Canada could have cleared up this matter much earlier than it did, section 703.02 of the CARs is clear in this regard:

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 had there been no notice of suspension, the applicant should have immediately ceased its operations, which it did not do. In fact, the log book for aircraft C-GAFG shows that the applicant operated many flights after December 15, 1999, without Transport Canada having approved or been informed of the formal candidacy of a chief pilot.

Moreover, the Tribunal is satisfied with the respondent's evidence showing that the applicant, through its operations manager, was careless about its control and maintenance co-ordination functions. Although the applicant's manager acknowledged during the hearing that he had inadvertently violated these standards, the fact remains that these standards were violated.

The manager must ensure that all air operations are conducted without benefit of a margin of error, in order to ensure maximum safety. His role must therefore be far more proactive than reactive. It is therefore not sufficient merely to correct irregularities when they arise, as Mr. Noël seems to suggest, but above all to prevent them. To this end he must be especially vigilant if he wants to keep his privileges. The Tribunal considers that Mr. Noël did not demonstrate this vigilance, although he had the opportunity a number of times to prove his good faith to Transport Canada, i.e., when the applicant's certificate was suspended first, in August 1998, and a second time, in July 1999.

The Tribunal is convinced that the Minister has shown, on the balance of probabilities, that the applicant's air safety is compromised by the repeated contraventions and the attitude of its operations manager. He has repeatedly flouted his responsibilities of control of operations and operational standards, co-ordination of maintenance control operations, and liaison with the regulatory authority concerning flight operation, including any variations to the applicant's air operator certificate.

The Tribunal is therefore of the opinion that the operations manager has not performed his duties in accordance with the Standards and that, as a result, the applicant is incompetent to conduct the operation safely.

DETERMINATION

The Minister has shown, on the balance of probabilities, that the applicant's air safety is compromised by the repeated contraventions and the attitude of its operations manager. I confirm the decision of the Minister of Transport to suspend the air operator certificate of Parachutisme Aventure Inc/Aéro 3000 until the conditions of reinstatement stated in the notice of suspension are met and the document is reinstated by the Minister.

Ms. Suzanne Racine
Member
Civil Aviation Tribunal