Decisions

CAT File No. Q-2304-62
MoT File No. N5258-1-5813

CIVIL AVIATION TRIBUNAL

BETWEEN:

Jacques Paillard, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Pierre J. Beauchamp


Decision: May 3, 2002

TRANSLATION

It is my opinion that the Department acted judiciously in this matter, that it was justified in suspending the Applicant's approved check pilot privileges for the company Aéropro, and I uphold the decision to suspend the privileges until the conditions of reinstatement have been met.

A review hearing on the above matter was held October 12 and 13, 2001, at the offices of the Commission municipale du Québec in Quebéc City, Quebec, and October 26, 2001, in the Federal Court building in Montréal, Quebec.

BACKGROUND

Mr. Jacques Paillard is the registered CCP[1] for the company Aéropro of Quebec.

Following two regulatory audits of the company in the spring of 2001, the Minister sent him a notice of suspension of his approved check pilot authority, on July 9, 2001.

The notice of suspension reads, in part, as follows:

The last regulatory audit in May 2001 shows that the company check pilot (CCP) did not discharge his responsibilities related to this function.

and cites, as a supporting reason:

The many non-conformances noted during the last regulatory audit show that the CCP did not satisfactorily discharge responsibilities related to this function.

The Minister imposed the following conditions of reinstatement:

In order to have his CCP function reinstated, the company Aéropro must submit a request for his recommendation.

Mr. Paillard will have to demonstrate to Transport Canada, Commercial and Business Aviation, that he meets all the requirements pursuant to section 14.5 of the Approved Check Pilot Manual.

The Applicant has requested a review of the Minister's decision.

EVIDENCE

The Minister's representative, Mr. Umberto Tamborriello, called three witnesses to present the Minister's evidence, Messrs. Pierre Cloutier, Gilles Marsan and Jules Pilon, all of whom are Transport Canada inspectors.

PRELIMINARY OBJECTION TO THE EVIDENCE AND AGREEMENT

Inspectors Cloutier and Marsan were called to testify instead of Mr. Carol Bergeron, the Transport Canada manager who headed the team that carried out the regulatory inspection in May 2001 at Aéropro.

The Minister's representative, through the witness Cloutier, wanted first to file the aforementioned Aéropro company regulatory audit report; counsel for the Applicant objected.

It appears from the parties' representations that the said audit report was never conveyed (disclosed) to the Applicant, although a copy was sent to Aéropro in Quebec City.

The Minister's representative explained that, although he had mentioned the report in item 2 of his letter of disclosure, he had no copy of it available at the time, and therefore did not have it sent to the Applicant, thinking that the fact that Aéropro had a copy would suffice.

In this regard, Mr. St-Pierre raised three main points:

  • Aéropro, an incorporated company, is not the Applicant, Jacques Paillard;
  • Only copies of audit findings FO-6-01, 6-02, 6-03 in respect of the Applicant Paillard were enclosed with the letter of disclosure of October 2, 2001;
  • It would be unfair to admit the audit report, which contains 75 findings, when the Applicant is prepared today to defend himself only with respect to the findings disclosed to him.

In rebuttal, the Minister's representative said that the schedule of the aforementioned notice of suspension states "many non-conformances noted during the last regulatory audit" and that introduction of the report of the said regulatory audit is therefore justified.

DETERMINATION

The notion and requirement of disclosure of evidence derives from the right of an accused to a full answer and defence.[2] The Crown is therefore required to disclose to the defence all relevant elements of proof in its possession. This requirement has been confirmed in the decision R. v. Stinchcombe,[3] which establishes and explains the procedure to be followed for disclosure of evidence in a criminal matter.

The Tribunal, sitting in appeal in Baudisch v. Minister of Transport,[4] examined this requirement of disclosure in criminal matters, and found that this requirement applies also to the Minister of Transport's enforcement action in respect of the Aeronautics Act:

The Tribunal has not previously examined, in depth, the general duty of Transport to make disclosure to a document holder, under the Aeronautics Act. It may therefore be useful to examine whether all or part of the disclosure principles relating to indictable offences as set out in the Stinchcombe case should apply to proceedings before the Tribunal and then apply those principles to the case at hand.

[...]

It is difficult to rationalize why an accused's right to disclosure would be different depending on whether the Crown elected to proceed summarily or by indictment.

[...]

Some contraventions of the Aeronautics Act can result in a penalty to the document holder which is more severe than under some Criminal Code offences. Should a document holder who has been fined or suspended by way of an administrative penalty have less right to disclosure than a person charged under the Criminal Code?

The Aeronautics Act requires that the Tribunal afford a document holder "a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations".

Subsections 7(6) and (7) of the Aeronautics Act read as follows:

(6) At the time and place appointed under subsection (5) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner or operator affected by the decision, as the case may be, with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension under review.

(7) On a review under this section of a decision of the Minister to suspend a Canadian aviation document, the member of the Tribunal conducting the review may determine the matter by confirming the suspension or substituting the member's decision for the decision of the Minister.

The wording of subsections 6.9(7) and (8) and subsection 7.9(4) is similar.

The language used in the Aeronautics Act, requires the Tribunal member hearing the case to allow the document holder to present evidence and make representations consistent with procedural fairness and natural justice.

Implicit in the wording of the statute is the right to disclosure. Without timely disclosure of all evidence relevant to the administrative enforcement action taken by the Minister of Transport, a document holder's right to a fair hearing is compromised. Transport must play an important role in the truth finding function of the system.

The Aviation Enforcement Procedures Manual imposes this requirement on Department of Transport investigators, and this requirement has been confirmed by recent determinations of this Tribunal.[5]

The Minister's requirement of disclosure is matched by the equal requirement that the "accused," indeed the Applicant here, ensure that all the evidence has been disclosed to him.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.[6]

In a context where full disclosure has not been made, as in Stinchcombe, Dixon, Baudisch, Marsh and Northeast Air Services, supra, an appeal Tribunal must examine the undisclosed evidence in light of its impact on the overall fairness of the proceedings and its influence "on the reliability of the appellant's conviction"[7] and provide the appropriate redress, if need be. As a rule, the trial judge is at liberty, if evidence of non-disclosure is established and a request subsequently made, to adjourn the trial to allow the "accused" to consult the undisclosed evidence and prepare a "full answer and defence."[8]

In this case, the department had ample opportunity to disclose its evidence, and counsel for the Applicant is arguing that, at his request, he received the last documents only two days before the hearing in October, without ever receiving a copy of the said report. He added that up until that point, he had reason to believe that all documents mentioned in the letter of disclosure had been delivered to him.

The Minister's representative admits that inadvertently, the said report was not sent to the Applicant. It seems the document is a lengthy one that was sent to Aéropro, and it was felt that in the circumstances, it was not necessary to send a copy to the Applicant as well, thinking he knew the content. The Minister's representative explained that, at the time of disclosure, he had no copy of the said report when sending the letter of disclosure.

As Cory J. of the Supreme Court teaches, "In sum, all these factors must be appropriately balanced."[9]

What I recall from the arguments of the Minister of Transport's representative is that he wanted to file the results of a regulatory audit that took place at the Applicant's company as proof of the content and without having the investigators themselves appear. Also, the results of this regulatory audit had not been disclosed to the Applicant himself, and he therefore would not learn of their content until the hearing, with the difficulties inherent to his preparing a full answer and defence.

In this case, it is a question of balancing the Minister's duty to disclose and the Applicant's duty to be diligent in obtaining all relevant information to enable him to prepare to face the Minister's allegations against him. What the Applicant is charged with in the notice of suspension, and what justifies the suspension of his ACP privileges, are "the many non-conformances noted during the last regulatory audit, showing that the CCP [the Applicant] did not satisfactorily discharge responsibilities related to this function."

The Applicant was justified in believing that the "non-conformances noted" that had been disclosed (conveyed) to him were the ones on which the Minister was basing its decision to suspend his privileges.

It should be recalled that the alleged events were brought up (Minister's version) during the regulatory audit of May 2001, the notice of suspension dated July 9, 2001 was sent to the Applicant, a hearing date to review this decision was set for August 24, 2001, then September 13, 2001, and finally, this hearing was postponed until October 12, 2001.

In the circumstances, I determined that a further postponement to allow for disclosure of the said report, its review and the holding of a new hearing would not be in the interests of procedural fairness to which the Applicant was entitled (right to a review of the Minister's decision within a reasonable time).

The objection to producing the report was therefore allowed, and with consent, the breaches or "non-conformances" noted and disclosed, as well as the documentation related thereto, have been produced as Exhibits M-1 to M-13.

THE EVIDENCE

The Minister's representative called three witnesses, all Transport Canada inspectors. Two of them, Messrs. Pierre Cloutier and Gilles Marsan, are members of the team that carried out a regulatory audit in the offices of Aéropro during the spring of 2001. Mr. Jules Pilon is the regional manager of Commercial and Business Aviation for the Quebec region, and he is the one who decided to suspend the Applicant's CCP privileges and signed the notice of suspension.

As a result of this regulatory audit in May 2001, the inspectors made findings, four of which were duly conveyed to the Applicant and produced by consent at the hearing as exhibits:

M-1 : Finding FO-6-01, non-conformance with section 4.7.2 of the Approved Check Pilot Manual (ACP Manual).

M-3 : Finding FO-6-02, non-conformance with section 4.7.1 of the ACP Manual.

M-8 : Finding FO-6-03, regarding a non-conformance with the exemption of July 12, 2000, under subsection 703.91(1) of the CARs; and

M-10 : Finding FO-8-04, regarding a non-conformance with section 703.99 of the CARs.

Mr. Cloutier made and signed the finding of non-conformance (M-1) regarding the responsibility to maintain and submit a monthly schedule of flight checks to be conducted by the CCPs at least seven days before the scheduled date of the first check, as well as the responsibility of the operator to ensure "a CCP's authority is valid before scheduling them to conduct a flight check" (M-3).

According to him, the Applicant Paillard, as CCP, allegedly administered a PPC-type flight check to a pilot, Éric Pinard, on November 2, 2000, even though his own type rating had expired on September 1, 2000.

Referring to a letter of July 12, 2000 (M-7), from Mr. Art Laflamme, Director, Civil Aviation, he explained the change that this letter "of exemption from the application of subsection 703.91(1) of the Canadian Aviation Regulations (CARs)" made to the validity period of a PPC and the conditions required for its application.

It reveals that the validity period of a PPC is extended from 12 to 24 months provided,[10] as far as we are concerned here, that annual training is kept up as usual, and the chief pilot or his delegate gives the pilot a pilot competency check (PCC),[11] according to the appropriate pilot proficiency check (PPC) schedule, within 90 days before the end of the PPC validity period.

According to him, there is no difference between the content of a PPC and a PCC except that the PCC can be given by the company's chief pilot or his delegate.

Mr. Paillard's test report (PCC), completed by the "check pilot" O. St-Jean, has been filed.[12] This report shows a 35-minute flight test on September 29, 2000, that is, 29 days after the expiry date of the Applicant's PPC.

Moreover, the Applicant's training flight before his PCC was allegedly made with flying instructor F. Vachon, on August 14, 2000, and lasted one hour.[13] The time entered on the form (1.0 hour) does not match the time entered in the flight log of the aircraft used, which shows a total flight time of 50 minutes.[14] Also, the flight time appears to have been "falsified" and a note was made to this effect in the margin of the page of the said aircraft journey log during the inspection. The time entered in column six[15] (air time) was changed from 20 to 30 minutes, while the times entered in columns four (time up) and five (time down) are 16:30 hours and 16:50 hours respectively.

In addition, he believes that the name "Vachon" was added to column three of the same page.

Mr. St-Pierre's pressing cross-examination concerned primarily finding number FO-6-01. He pointed out to the witness that section 4.7.2 requires the "air operator," who is not the Applicant, to send the aforementioned schedule to the Minister of Transport.

The form required pursuant to section 4.7.2, which is Schedule D[16] for this purpose, is to be signed by the chief pilot. The witness said that according to him, this was still a requirement of the Applicant, who is both the chief pilot and the CCP. Moreover, in his view, the CCPs at other air carriers meet this requirement. This is the first time he has noticed that the chief pilot's signature is required, and he believes this must be a mistake on the form.

As for finding FO-6-02 mentioned earlier, namely, that Mr. Paillard had administered a PPC to Mr. Éric Pinard on November 2, 2000, even though his own had expired, he repeated that it was because the Applicant had undergone his own PCC 29 days late that his qualifications had expired, but he had indeed administered the test[17] to Mr. Pinard after taking his own test.

Mr. St-Pierre suggested there is nothing to allow him to conclude that Mr. Paillard was acting at that time as CCP rather than as chief pilot, as paragraph 3[18] of the exemption permits, which the witness concedes.

Finally, regarding falsification of the flight log entries, he admits that he did not check the flight manifest or talk with Mr. Vachon, "obviously" because his attention was focussed on Mr. Paillard as CCP.

Ultimately, the decision to cancel an ACP's privileges is made based on serious circumstances and in his view all the circumstances reported during the regulatory audit justified Transport Canada exercising its discretion to suspend the Applicant's CCP privileges.

Mr. Gilles Marsan, a Transport Canada inspector, was also on the team that carried out the week-long regulatory audit in May.

He testified that when going over the files of the various pilots, he noticed there were flight tests that had not been done according to the CARs standard in Schedule I[19] of section 723.88 of the Commercial Air Service Standards. This schedule sets out the compulsory elements of a competency check.

This is the subject of audit finding FO-6-03;[20] in fact, a review of the report of Mr. Racine's flight test[21] administered by Mr. Paillard clearly shows, as this finding states:

[...] only one instrument approach, whereas the standard calls for at least two. He did not ask for execution of a holding procedure, although the standard requires it. A missed approach was not done, and only one engine failure was done whereas the standard calls for two.[22]

A review of Mr. Racine's training file as noted during the inspection[23] and of his proficiency checks on August 24, 1999[24] and October 4, 2000,[25] shows, according to the witness, that he took his flight training on September 19, 2000, and his flight test on October 4, 2000. In order to benefit from the exemption mentioned earlier,[26] he had to have completed this training and this flight test within 90 days before the expiry date of his PPC, i.e., September 1, 2000. Also, the training information had to be entered in the training file, which was not the case,[27] and this was reported in audit finding FO-8-04.[28]

In cross-examination, he reiterated that finding FO-6-63 regarding Mr. Racine's flight test, which was not done in accordance with Schedule I, is related to the Applicant's check pilot status. The exemption permitting the
12-month extension of the validity period of a PPC, if a PCC is done within three months before its expiry, was signed by Mr. Art Laflamme, Director General, Civil Aviation, in July 2000, but he does not know exactly when this letter reached the air operators.

Mr. Racine's flight test was a PCC that can be administered by a CCP or the chief pilot. Moreover, asked about the explanation given on the back of the audit finding (M-10) that the manoeuvres were curtailed because of ATC restrictions, he stated this has never happened to him as a Transport Canada flight inspector, but that it can happen.

He did not follow up on the corrections made in this regard because his duties were confined to the audit.

The explanations for the corrections were accepted by Mr. Tidiannebah, Transport Canada inspector assigned to Aéropro, and Mr. Racine actually got back his rating, as indicated on his PPC report of May 13, 2001.[29]

Audit finding FO-8-04 relates to the requirement that an operator maintain its pilots' training and rating files. For example, in the aforementioned case, Mr. Racine could not benefit from the exemption for the following reasons:

  1. The annual training was done September 19, 2000, that is, 19 days after the expiry of his PPC;
  2. His file contains no information about the five touch-and-go landings in the previous six months as required by the regulations;
  3. His PCC was done October 4, 2000, that is, more than a month after his PPC had expired.

Regarding the aforementioned five touch-and-go landings in six months, Mr. Marsan explained that he checked and remembers that there were flight plans and flight manifests where he was the pilot in question. He could not say, however, whether there had been at least five in recent months. In fact, what he should have checked was whether the pilot had made the five touch-and-go landings in the six months and whether this was entered in the training file. He did not check who was responsible for keeping the training files, but this finding was ascribed to the Applicant as ACP, whose privileges were withdrawn.

This finding (FO-8-04) was made in respect of the same flight and candidate, Racine, as finding number FO-0-63, but here, it is the non-conformance of his training file that is in question.

Finally, he admitted that this cancellation of privileges is not a common procedure and he was not informed of it personally.

Mr. Jules Pilon

The Minister's representative concluded his evidence with the testimony of Mr. Jules Pilon who is the regional manager of the Commercial and Business Aviation section for Quebec. He has been delegated the authority to approve ACP privileges on behalf of the Minister and therefore he also has the authority to cancel or suspend these privileges. He signed the notice of suspension sent to the Applicant Paillard July 9, 2001.

He explained that he made the final decision to proceed with a suspension in this case, but that his decision was the result of the whole exercise regarding Aéropro and the Applicant.

Before a final decision was made, there was a meeting with the manager responsible for the regulatory audit in May and the previous one in March, and a meeting with Mr. Gosselin, civil aviation regional director. After this meeting, Mr. Gosselin decided to engage in a risk management exercise regarding Aéropro. One of the recommendations in the report issued following the exercise was to suspend the Applicant's ACP privileges. The four findings of non-conformances produced were among a series of factors leading to this decision, but there were others, including discussions he had with Mr. Gosselin, regional director, recommendations of the team that had done the Aéropro risk assessment, the company's record following the two regulatory audits in March and May 2001, its history, and so on.

Considering all these factors, he was not "comfortable" with the company operating with a CCP. The procedure of suspending the Applicant's ACP authority, and the choice of the conditions of reinstatement mentioned in the notice of suspension requiring the company to submit a new application for authority for the Applicant, gave Transport Canada an opportunity to reassess the safety record (accidents-occurrences) in accordance with the requirements of the ACP Manual with regard to pilot training and record keeping.

According to him, when the ACP privileges are granted to someone, they are also granted to their company. They are a whole. This is what sections 4.1.2 and 4.1.3 and 1.1.4 of the ACP Manual show.

Consequently, the Applicant's authority is valid only as long as he complies with the requirements of the ACP Manual and is employed by Aéropro. ACP privileges are therefore granted to both the individual and the company.

In cross-examination, he explained that in his view, the conditions of reinstatement of the privileges mentioned in the notice of suspension are identical to those of an initial granting of authority, and in the case of Aéropro, he was prepared to consider relaxing the requirements, although he never told the Applicant this.

He considered his decision part of a whole: They were dealing with a company that had an accident and two regulatory audits, and asking the company to submit a new application for authority allowed Transport Canada to see where the company was in terms of recovery.

He acknowledged that the Applicant's ACP authority had been renewed in May 2001,[30] that is, after the regulatory audit was done in May. As for the different notices of findings of non-conformances, he acknowledged that submitting the schedule discussed previously was the operator's responsibility, in this case Aéropro, not the ACP. The same was true of finding FO-6-02 regarding the keeping of proficiency records and the requirement to ensure that the ACP authority is valid before asking the ACP to conduct a flight check.

The requirement to conduct a pilot competency check (PCC) according to Schedule I (audit finding FO-6-03) applies to the Applicant as chief pilot, rather than as ACP.

The maintaining of flight crew training files, the subject of finding FO-8-04, is not a requirement of the ACP, but it is his responsibility to ensure that the candidate's file is complete at the time of the examination.

In conclusion, he said that any suspension is a final measure, but here, the decision was not made lightly. It followed discussions with his superior, an evaluation of the circumstances, and a risk management exercise. The decision was made in respect of Mr. Paillard and Aéropro; it affected Mr. Paillard only as ACP at Aéropro.

In the circumstances, it could have been decided to put an end to Aéropro's operations completely, but it was decided just to issue this notice of suspension affecting both the company and Mr. Paillard. In his view, if it were only a matter of the four factors mentioned earlier, a suspension of privileges would not be justified, but it was more than that, as he has already explained.

After hearing the Minister's witnesses, the Applicant offered no rebuttal.

ARGUMENTS

Mr. Tamborriello, for the Minister, reviewed the notices of findings of the regulatory audit and argued essentially that, since the company must qualify to obtain ACP privileges (sections 1.1.4 and 4.1.2 of the ACP Manual),[31] it must comply with the requirements of the said Manual and if breaches occur, it can lose its privileges.

The ACP privileges that are granted to the individual (the Applicant) are also granted to the company. As the Applicant also failed to meet the conditions of his check pilot authority, the suspension in this case, pursuant to subsection 7.1(1) of the Act, is therefore based on breaches by both the Applicant and Aéropro.

Regarding the first finding (FO-6-01), it is the operator's responsibility to submit to Transport Canada a monthly schedule of proposed flight checks to be conducted by CCPs. This schedule must be signed by the chief pilot. It is in evidence that this schedule was not submitted. The Applicant is both the chief pilot and the CCP. He therefore shares in this responsibility.

Similarly, regarding the fourth finding produced (FO-8-04),[32] the operator must maintain training files for its pilots. Regarding Mr. Racine's file, the evidence shows that his PPC had already expired (01-09-2000) when he took his annual training (19-09-2000) and his PCC (04-10-2000). Moreover, his training file contained no information about the five touch-and-go landings required in the previous six months by the regulations.

In the circumstances, the company failed to meet the requirements of the CARs (section 703.99) and the pilot, in the circumstances, could not be exempted from the requirement to have his PPC renewed by another PPC before it expired. The exemption[33] applies only if the required annual training, training and a PCC have all been completed within 90 days before the date of expiry of the candidate's PPC.

The CARs require the operator to maintain its training files and the Minister also requires this of the ACP, because the latter is obliged to correctly apply the exemption and to ensure that the proper training has been completed before conducting a PCC. The Applicant is therefore also affected by this finding.

Moreover, the Applicant's own PPC had expired when he administered the flight tests of the pilots Pinard,[34] the subject of finding FO-6-02,[35] and Racine.[36] In fact, the Applicant's PPC expired September 1, 2000,[37] and its renewal by a PCC[38] on September 29, 2000, did not meet the conditions of the exemption.

Also, the flight test[39] he administered to Mr. Racine did not even meet the standard (finding FO-6-03), that is, it did not comply with Schedule I of section 723.88 of the Standards.

Here again, it is the ACP's responsibility to meet the requirements of the regulations and the ACP Manual to continue to benefit from ACP privileges, which the Applicant did not do.

The last two points raised concern, firstly, the flight test for renewal of the ACP authority completed by the Applicant on March 1, 2000,[40] for which four SB ratings[41] were given; according to the Minister's representative, this was one of the factors considered when deciding to proceed with a suspension in this case. Also, regarding the corrections made by the operator in the Applicant's handwriting, which were accepted by the Minister on the back of the four findings, he argues that in all cases these entries had to be corrected, that the corrections were made July 16, 2001, that is, after the notice of suspension was issued (July 9, 2000), and that in any event, these corrections cannot change the conditions of reinstatement mentioned in the said notice of suspension.

In rebuttal, counsel for the Applicant, Mr. St-Pierre, also reviewed the evidence presented by the Minister's representative and distinguished between the allegations against the operator, that is, the findings pertaining to submitting the schedule and maintaining the aforementioned records, and those sent to the Applicant as an ACP. In his view, these audit findings cannot be applied to the Paillard matter referred to. Aéropro is not here to defend itself, and an attempt is being made to get at the Applicant "through" the operator.

Specifically, in reviewing the evidence, he argued that the operator's requirement to submit a schedule is the chief pilot's responsibility. Although Mr. Paillard is the chief pilot, this breach cannot be held against him as ACP.

As for the second finding regarding the requirement that the operator ensure that its ACP has the required qualifications, he admits that the Applicant's PPC had indeed expired at the time of its "renewal" by his PCC, four weeks late. He considers this a "technical" error and argues that it was simply a misinterpretation of the exemption on the part of the Applicant. According to him, Mr. Paillard is assumed to be honest and he thought that the PPC was valid for 24 months. What is important is aviation safety, and it is not as though he did not complete his PPC or failed the test.

He raised two points regarding the allegations in audit finding FO-6-03 of failing to administer Mr. Racine's proficiency check in accordance with Schedule I:

First, this was a PCC and the Applicant was therefore acting as chief pilot and not as ACP. Secondly, because it was a PCC and not a PPC, there has to be some discretion and latitude. He is the chief pilot, he represents the Minister, and if he is reasonably satisfied in exceptional circumstances, he can exercise his discretion and curtail the test. These are not grounds for a suspension.

The responsibility with respect to training files falls to the operator. Not only does this responsibility not concern the Applicant as ACP, it does not even concern him as chief pilot.

But that is not all. The renewal of the Applicant's ACP authority in 2001 is dated May 29, that is, after the flight competency check that gave rise to the four SB ratings, and after the regulatory audit of the same month. The breaches identified had already occurred and were known to the Minister. Moreover, Mr. Pilon's testimony is significant when he states that the suspension is the ultimate sanction and that, for the record presented, the suspension was not justified.

In rebuttal, the Minister's representative recalled, with regard to the Applicant's misinterpretation about the exemption, that there is no evidence that an expired PPC can, still according to the exemption, be renewed by a PCC, and that in the case of the "curtailed" flight test, the evidence is that the flight lasted an hour and a half.

As for the renewal of the Applicant's ACP privileges on May 29, he argues that the inspection test had not been completed and that the addition of a new aeroplane grouping to his privileges explains this designation.

THE LAW

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 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.

DISCUSSION

The problem to be resolved in the present case is whether the Minister has successfully established, on a preponderance of evidence before us, that his decision to suspend the Applicant's ACP privileges was justified.

The Applicant argues that the evidence presented did not justify such a harsh decision, the ultimate sanction, and even the official who signed the notice of suspension in this case would confirm this.

In fact, according to him, of the four findings of non-conformance filed, two do not apply to the Applicant, but are the operator's responsibility, who is not here to defend itself; and of the two that are attributable to Mr. Paillard, one concerns a non-conformance attributable to him as chief pilot, not as ACP, and only one concerns him as ACP, and the seriousness of the breaches in this case, that is, failing to conduct a flight test in accordance with the prescribed standard (Schedule I), does not at all justify the ultimate sanction, particularly since the flight in question was curtailed because of exceptional circumstances, which is within his discretion as ACP and chief pilot.

Finally, in any event, the explanations of the four findings of non-conformance provided to the Minister on the back of the audit findings were accepted by the Minister following the regulatory audit, and the Minister could not, in the circumstances, subsequently make such a decision and justify such a sanction.

What are we to make of this?

It should be recalled that the Applicant is the holder of an approved check pilot (ACP) authority following an initial delegation of authority granted to him on May 18, 1999.

This delegation of authority was granted to him subject to specific conditions of issuance:

CONDITIONS OF ISSUANCE

[...]

2. Meets the qualification and currency requirements specified in the ACP Manual, [...]

3. Valid authority for AÉROPRO [...]

4. The checks will be conducted in accordance with the provisions of the Canadian Aviation Regulations (CARs) and the ACP Manual [...]

Failure to meet any condition of issuance is grounds for suspension pursuant to section 7 or paragraph 7.1(1)(b) of the Aeronautics Act.

[...] This authority shall remain valid until the earliest of:

a. the date on which any condition of issuance is breached; or

b. the date on which this authority is revoked in writing by the Minister pursuant to section 7 or paragraph 7.1(1)(b) of the Aeronautics Act;[42]

These conditions of issuance were reiterated when this authority was superseded May 20, 2001, when the Minister extended this authority to include a new aircraft grouping. The said authority states:

CARs Subpart and Aircraft Types
This authority is applicable to operations conducted with the following aircraft types:
1) (BE10-BE20) 2) (BE10-BE90) 3) (C310-PA31)

Conditions of Issuance
The ACP referred to herein shall
a) abide by the policy and procedures specified in the Approved Check Pilot (ACP) Manual, [...] and continue to meet the qualifications, training and currency requirements established therein,
[...][43]

The same requirements governing the validity of the previous authority were continued:

Validity
Failure to meet any condition of issuance is grounds for suspension pursuant to section 7 or subsection 7.1(1) of the Aeronautics Act or revocation pursuant to subsection 2.5.1 of the Approved Check Pilot (ACP) Manual [...].
This authority supersedes and revokes all previously issued like authorities and shall remain valid until the earliest of:
a) the date on which any condition of issuance is breached;
[...][44]

This ACP designation or authority must be placed in the context of its practical application. A study of the relevant sections of the Approved Check Pilot Manual reveals:

1.1.1 The Approved Check Pilot (ACP) program allows an Air Operator [...] the opportunity to develop and maintain a program of flight checks independent of the availability of Transport Canada Civil Aviation Inspectors [...]

1.1.2 The ACP program consists of Company Check Pilots (CCPs) [...] who may be delegated the authority to conduct flight checks on behalf of the Minister.

[...]

1.1.4 To make application for a CCP, an Operator shall have demonstrated a satisfactory safety record and have in place satisfactory programs for training and record keeping.

[...]

1.1.6 The number of ACPs [...] are closely monitored by and at the option of Transport Canada. [...] [45]

It is therefore clear to me, as the Minister's representative argues, that the authority is granted to the individual only for as long as he continues to be employed by his company and the company continues to qualify for the functions and duties assigned to it.

What are these duties? Here again, the above-cited approval (D-3, page 3) answers this question:

Jacques Richard Paillard [...] is hereby approved as a Approved Check Pilot (ACP) [...] and is accorded the following privileges for the Operators indicated:
Company Check Pilot for Aéropro
[...]

Authority
The check pilot referred to above is authorized to conduct flight checks as indicated below on behalf of the Minister [...]
PPC (initial, upgrade, recurrent), including endorsement of a type rating and instrument rating
[...][46]

He must, as the approval states, conduct these flight tests in accordance "with the policies and procedures appearing in the Approved Check Pilot Manual," which includes the requirement to comply with Schedule I[47] of section 723.88 of the Standards when conducting a pilot proficiency check. His first duty is therefore to represent the Minister in the company that employs him, and to conduct competency checks of its pilots in the place of inspectors from the Department of Transport themselves. This duty must therefore be carried out responsibly, competently and in accordance with the regulations, policies and directives of the Approved Check Pilot Manual as though he himself were an inspector for the department.

In the Racine case mentioned earlier,[48] he far from complied with Schedule I as required. As the Minister's representative pointed out, and this is the content of non-conformance finding FO-6-03,[49] he made "only one instrument approach, whereas the standard calls for at least two. He did not ask for execution of a holding procedure, although the standard requires it. A missed approach was not done, and only one engine failure was done whereas the standard calls for two." And this evidence was not refuted.

I therefore can give no weight to the response noted on the back of this audit finding to the effect that the manoeuvres were "curtailed in part because of ATC restrictions". As Mr. Tamborriello points out, the flight actually lasted an hour and a half, giving him ample time to complete the drills required by Schedule I, unless the candidate experienced difficulties with his drills and was forced to repeat them, which obviously would have necessitated an entry in the flight test report, and none was made, or he had technical problems with the aeroplane, which also does not appear to have been the case, since none has been mentioned. For example, the reports for Paillard's own PPC conducted by Mr. Samson, a departmental inspector,[50] took only 1.2 hours, that of Éric Pinard conducted by the Applicant took an hour and five minutes,[51] and that of Racine[52] took an hour and five minutes as well. In all these cases, all the manoeuvres Mr. Paillard is accused of not covering were completed with numerous irregularities/emergencies in addition to the engine failure, namely, six, four and five respectively, versus just one in the case mentioned.

Counsel for the Applicant went on to say that when the Applicant acted in Racine's PCC case, he did so as chief pilot, not as ACP, and therefore cannot be held responsible. For the reason set out below, I do not agree with this distinction. The fact remains that Paillard's actions as chief pilot and as ACP are inseparable.

But there is more. The ACP must not only "abide by the policy and procedures specified in the ACP Manual." He must continue to meet the qualifications, training and currency requirements established therein."[53] This is also part of his duties, i.e., to be sure to maintain his own proficiency, and that he understands and applies the Minister's requirements with respect to proficiency and licence validity of the pilots under his authority, i.e., those employed by the company for which he is the approved check pilot.

The requirements of his own ACP rating require, among other things, that he be able to:

(e) demonstrate satisfactory knowledge of the contents and interpretation of the following publications:

[...]
(iv) CAR 703,
(v) Approved Check Pilot Manual,[54]
[...]

(g) meet the training and currency requirements specified in this Chapter.[55]

One of his duties is therefore to have sufficient knowledge of, among other things, the conditions and validity periods of the PPCs of his pilots. In the case of the aforementioned exemption,[56] which extended the validity period of a PPC from 12 to 24 months provided the required training and a competency check (PCC) was completed within 90 days before the thirteenth month of the PPC validity period, he therefore had to be sure to meet these conditions so that the pilots to whom he administered proficiency checks, on behalf of the Minister, were duly qualified.

It is clear that in Mr. Racine's case, and in the case of his own proficiency, neither the conditions of the exemption, nor the requirements of the ACP Manual with respecting the validity period of a PPC and respecting the required manoeuvres in Schedule I for a renewal, had been met.

It is clear, according to the said exemption, that an expired PPC cannot be renewed by a PCC. A rating on a given aeroplane can be reinstated only by a PPC and a PPC can only be conducted by the Minister (section 703.90 of the CARs) or an ACP in the context of the ACP program.

The Applicant therefore failed in his duties as ACP to understand and apply the regulations, policies and requirements of the ACP Manual.

But there is more. For, as mentioned earlier, and this is the subject of audit finding FO-6-02, he failed, as required by the above-cited conditions of issuance, to meet the requirements of his own rating. The evidence shows that he underwent a PCC competency check[57] on September 29, 2000, that is, nearly one month after the expiry of the validity period of his own PPC on September 1, 2000.[58] As mentioned earlier, an expired PPC can be revalidated only by another PPC; both the regulations and the exemption granted are clear on this. This PPC must therefore be conducted by a qualified check pilot and the content of the test must comply with Schedule I.

The PCC flight test by which the Applicant would like to renew his authority does not meet these requirements. The flight test report completed by Mr. Vachon, prima facie, no more than in the Racine case mentioned earlier and for the same reasons, does not meet even the minimal requirements for renewal of a PPC in terms of the manoeuvres done. Moreover, the ACP Manual stipulates:

6.2 ACP PPC Conducted by a TC Inspector

6.2.1 Subject to subsections 6.2.2 and 6.2.3, TC Inspectors shall conduct an annual PPC on CAR 703, 704 and 705 Type A CCPs [...]

There is no evidence in the record that Mr. Vachon was, at the proper time, a Transport Canada inspector, or even that he also held an ACP rating for Aéropro. The Applicant's PPC therefore expired September 1, 2000, with the result:

2.4 Expiration of ACP Authority

2.4.1 An ACP's privileges will cease to be in force when:

(a) the ACP's PPC on type or Instrument Rating has expired;
[...]
(c) the ACP's PPC has not been conducted by a TC Inspector within the period required by section 6.2 [...][59]

and the Applicant therefore could not exercise his ACP privileges, nor those of a qualified pilot-in-command, during Mr. Pinard's PPC flight tests on November 2, 2000 (finding FO-6-02), or even Mr. Racine's PCC on October 4, 2000 (finding FO-6-03), even assuming that this was the appropriate flight test for Mr. Racine, which I cannot accept. He therefore exceeded the authority granted to him.

These deviations from the requirements of the CARs and from the policy and requirements of the ACP Manual demonstrate either his lack of knowledge and/or understanding of its requirements, or even ignorance, wilful blindness or disobedience to its precepts.

2.6.1 The Minister may withdraw an ACP's authority by suspending or canceling his/her ACP Approval Letter pursuant to subsection 7.1(1) of the Aeronautics Act.

2.6.2 The issuing authority may withdraw an ACP's authority if evidence shows that the ACP

(a) ceases to have the qualifications necessary for issuance of the document or to meet or comply with the conditions subject to which the document was issued;
(b) at any time, acted in a manner which is in contravention of any of the requirements contained in this manual;"[60]

In the circumstances, I am satisfied that the Minister was therefore justified in issuing this notice of suspension. But there is more.

Counsel for the Applicant argues that both audit findings concerning the responsibility imposed on the operator:

  • to submit a monthly schedule of proposed flight checks to be conducted by CCPs (FO-6-01),[61] and
  • its failure to maintain training files for its pilots and, of particular concern to us, Mr. Racine's file (FO-8-04)[62]

can in no way be attributed to the Applicant as ACP.

Regarding the responsibility to submit the monthly schedule on the compulsory form, this form is to be signed by the company's chief pilot. According to Mr. St-Pierre, if the Applicant is at fault for Aéropro's failure to submit these schedules, it is as chief pilot, not ACP.

As for the responsibility to maintain training files, as in the Racine case, as noted in the above-mentioned audit finding, this again is a responsibility of the operator, not of the Applicant as ACP.

Respectfully, I cannot agree with counsel for the Applicant.

The Applicant was both chief pilot and ACP at Aéropro. As chief pilot he had to be aware of his obligations and responsibilities as set out in section 723.07 of the Standards:

[...]
(b) Chief Pilot:

[...]
(ii) Responsibilities
The Chief Pilot is responsible for the professional standards of the flight crews under his authority, and in particular:

[...]
(B) developing or implementing all required approved training programs for the air operator's flight crews;
[...]

He is responsible for all the professional standards of flight crew members. He must therefore ensure not only the training, but also verify the validity of their licence for the duties assigned to them. This is surely one of those responsibilities that fall within the phrase "professional standards."

As we have seen, the Minister or his delegate conducts flight tests to determine or renew pilot proficiency (PPCs) and this must be done in a timely fashion. In the context of the above-cited ACP program, the Minister's delegate at Aéropro is the Applicant. How can the responsibility for notifying the Minister, through the schedule of proposed flight tests, be dissociated from the responsibility of conducting these flight tests himself, when it is known that the Minister reserves the right at all times to itself conduct any flight test?

1.1.6 The number of ACPs [...] and their conduct of flight checks are closely monitored by and at the option of Transport Canada. A TC Inspector may conduct any of the flight checks referred to in this manual [...][63]

The Applicant, as ACP, could not be unaware of this condition of the ACP program, and as chief pilot he had to ensure that the Minister was in a position to exercise its discretion by submitting this schedule. This requirement therefore affects the Applicant in both capacities, since they are one and the same person.

Finally, regarding the responsibility to maintain training files, the ACP, before conducting a flight test, is required to examine and check the validity period of the pilot licence and, in the case of a PPC, the pilot training files.[64]

Regarding pilot Racine's training file, the evidence presented, which is not disputed, is that all the elements mentioned in audit finding FO-8-04 were missing and his file was incomplete.

One cannot dissociate the operator's responsibility to maintain the training files from the Applicant's responsibility, as ACP, to verify their content before conducting a flight check. This is to assure the ACP that the preconditions for the anticipated check are met. Let us again recall that he is also the chief pilot, who, as mentioned earlier, is responsible for the professional standards of the flight crews under his authority. One therefore cannot, as counsel for the Applicant would have it, separate the responsibility to maintain training files (responsibility of the operator and the chief pilot, the Applicant) from the Applicant's responsibility as ACP to check the said training file beforehand.

As for the Applicant's final argument that his four breaches alone did not justify the notice of suspension issued in this case, let us recall Mr. Pilon's undisputed testimony, cited by counsel for the Applicant, Mr. St-Pierre.

Mr. Pilon places these four breaches identified and filed in evidence in the operational context of the operator "benefiting" from an ACP program:

1.1.1 The Approved Check Pilot (ACP) program allows an Air or Private Operator [...] the opportunity to develop and maintain a program of flight checks independent of the availability of Transport Canada Civil Aviation Inspectors [...][65]

The decision was to suspend the authority of the Applicant's privileges in the context of the breaches mentioned earlier, during a regulatory audit done at Aéropro. It seems that this was the second such audit in the spring of 2001, that there had been an aeroplane accident, and subsequently, regulatory audits and findings, risk management exercises, discussions at the department among the officials concerned, and that the decision was made on the strength of this whole assessment. It was, according to him, the mildest sanction he could impose in the circumstances, since he testified the Minister also had the authority to suspend the operating certificate of the operator, Aéropro. This route was chosen to allow, in the context of a new application for authority, for the company's safety record to be re-evaluated and for action to be taken accordingly.

As we saw earlier, ACP authority is granted in the context that an ACP will exercise his privileges on behalf of the Minister, within the scope of the above-cited program and within the company. It is part of a whole which, in the circumstances of this case, is inseparable.

Moreover, the Minister is responsible, under the Aeronautics Act, for ensuring the aviation safety of Canadians.

The Aeronautics Act and Regulations made thereunder if not explicitly imposing a duty of care of the general public, at least do so by implication in that this is the very reason for their existence. The flying public has no protection against avaricious airlines, irresponsible or inadequately trained pilots, and defective aircraft if not the Department of Transport and must rely on it for enforcement of the law and regulations in the interest of public safety. Its expressed policy is, as it must be, to enforce these regulations, but when the extent and manner of the enforcement is insufficient and inadequate to provide the necessary protection, then it becomes more than a matter of policy but one of operation and must not be carried out negligently or inadequately. While there may be no contractual duty of care owed to the public, as plaintiff suggests, this does not of itself protect Defendant from liability in tort.[66]

Without in any way attaching these terms to the operator Aéropro which, as counsel for the Applicant argues, "is not here to defend itself," or the Applicant, I believe that Walsh J. of the Federal Court in this case very clearly defined the responsibilities of supervision and control imposed on the department by the Aeronautics Act in order to avoid incurring the liability of the state through its inaction in a given situation.

We must recognize, as Walsh J. does, the dilemma the government faces between unhealthy interference in the conduct of the affairs of citizens, and the need for supervision and enlightened decision making:

Transport Canada has a very difficult task to enforce the regulations strictly in the interest of public safety without at the time at interfering unduly with commercial aviation which often has to be carried out under difficult conditions. A fine balance must be maintained, but if there is any doubt emphasis must be placed on public safety as the Dubin inquiry clearly indicated.[67]

DETERMINATION

For all these reasons, it is my opinion that the department acted judiciously in this matter, that it was justified in suspending the Applicant's approved check pilot privileges for the company Aéropro, and I uphold the decision to suspend the privileges until the conditions of reinstatement have been met.

Pierre J. Beauchamp
Member
Civil Aviation Tribunal


[1] CCP - Company Check Pilot. The term ACP (Approved Check Pilot) is also used.

[2] Section 7 of the Canadian Charter of Rights and Freedoms.

[3] R. v. Stinchcombe, [1991] 3 S.C.R., page 326.

[4] Norman Albert Baudisch v. Minister of Transport, CAT File No. W-0182-02.

[5] See 641296 Ontario Inc. (North East Air Services) v. Minister of Transport, [1998] appeal, CAT File No. O-1342-37; and Leslie G. Marsh v. Minister of Transport, [1996] appeal, CAT File No. C-1095-02.

[6] R. v. Dixon, [1998] 1 S.C.R. 244.

[7] Id., page 246.

[8] Id.

[9] Id, paragraph 39, page 267.

[10] See M-7: CONDITIONS

This exemption is subject to the following conditions:

1. When an air operator has been authorized for an aircraft grouping for the purposes of a PPC (renewal only), the validity period of the grouping for PPC purposes shall extend to the first day of the twenty-fifth month following the month in which the party in question underwent the proficiency check subject to paragraph 2.

2. Annual training will be required pursuant to sections 703.98 and 723.98, and for aircraft, pursuant to subparagraph 723.88(1)(i)(ii) of the CARs.

3. The chief pilot, or his delegate, must administer, and the crew member must undergo, a pilot competency check (PCC) within 90 days before the first day of the thirteenth month of the validity period. The PCC shall be added to the period specified in condition 2 above, and shall be in accordance with the appropriate pilot proficiency check schedule for the aircraft type and according to the category and type of operation.

[...]

5. The pilot training file shall be signed by the chief pilot or his delegate to attest that "a PCC, rather than a PPC, has been administered". The pilot must carry this document, attesting to his pilot rating, with him at all times when exercising the privileges granted by this exemption.

[11] Pilot Competency Check.

[12] M-5: Flight test - pilot competency check, candidate: Jacques Paillard, dated 29-09-00.

[13] See M-15, page 1.

[14] See M-5, page 3, column Flight Time - temps de vol.

[15] Id.

[16] See M-14, page 4.

[17] See M-6: Flight test report of the pilot proficiency check of November 2, 2000.

[18] See note (M-7) above.

[19] See M-16: Schedule I - Pilot Proficiency Check.

[20] M-8.

[21] M-9.

[22] See M-8.

[23] See M-13.

[24] M-11: Report of candidate Racine's PPC flight test administered by Pierre Doucet.

[25] M-12: Mr. Racine's PCC flight test administered by Jacques Paillard.

[26] See M-7.

[27] See M-13: Inspection and audit (checklist) manual, flight crew training form ....

[28] See M-10.

[29] See D-1.

[30] See D-3.

[31] M-18.

[32] M-10.

[33] See M-7.

[34] M-6.

[35] M-3.

[36] M-9.

[37] M-4.

[38] M-5.

[39] M-9.

[40] D-3, page 3.

[41] Satisfactory with briefing. See ACP Manual, 10.2.2.

[42] D-2.

[43] D-3, page 3.

[44] id.

[45] See M-18.

[46] D-3, page 3.

[47] M-16.

[48] M-8.

[49] See M-8.

[50] See M-24.

[51] See M-6.

[52] M-11 and D-1.

[53] See D-3.

[54] ACP Manual, Chapter 14, section 14.1; Exhibit M-20 produced is to the same effect.

[55] M-20.

[56] See M-7.

[57] M-5.

[58] See M-4.

[59] Approved Check Pilot Manual, 7th edition.

[60] id., page 25.

[61] M-1.

[62] M-10.

[63] See M-18, extract from the ACP Manual, section 1.1.6.

[64] See Approved Check Pilot Manual, 7th edition, section 8.6.1:

8.6 Documentation to be verified before a Flight Check

8. 6.1 Prior to commencing a flight check, the ACP will examine and verify the validity of the following:

(a) pilot licence;

[...]

(d) for PPCs, pilot training files [...].

[65] See M-18.

[66] Swanson v. Canada, [1990] 2 F.C. 619, page 634.

[67] id. page 639.