Decisions

TATC File No. Q-3152-10
MoT File No. 5258-4425

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Myrand Aviation Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)(b)
Canadian Aviation Regulations, SOR/96-433, s. 703.07(2)(b)(i) and (ii)

Training, Qualified Managerial Personnel, Operator Certificate


Review Determination
Suzanne Racine


Decision: January 11, 2006

TRANSLATION

We uphold the Minister's decision to suspend the air operator certificate of Myrand Aviation Inc.

A review hearing on the above matter was held August 17, 18, 19 and 31, and September 1 and 2, 2005, at the courthouse in the city of Québec. The hearing of September 14, 2005 was held in the Kent Room of the Marriott Hotel in the city of Québec.

The witnesses were excluded.

OBJECT OF THE REVIEW HEARING

On May 17, 2005, the Minister of Transport served the applicant with a notice of suspension of its air operator certificate pursuant to paragraph 7.1(1)(b) of the Aeronautics Act. This notice states that Myrand Aviation Inc. (Myrand Aviation) no longer meets the qualifications necessary for issuance of air operator certificate 6073 since this commercial air service no longer has a qualified operations manager and chief pilot pursuant to subparagraphs 703.07(2)(b)(i) and (ii) of the Canadian Aviation Regulations (CARs).

The appendix to the notice of suspension states that on May 11, 2005, Transport Canada revoked the approval of the appointment of André Cloutier as operations manager and chief pilot because of his past performance and his failure to fulfil his responsibilities as set out in subparagraphs 723.07(2)(a)(ii) and 723.07(2)(b)(ii) of the Commercial Air Service Standards (CASS).

Transport Canada imposed conditions for reinstatement of the applicant's air operator certificate: Myrand Aviation Inc. was to submit for approval by Transport Canada, Commercial and Business Aviation, the applications of one or more qualified and acceptable applicants for the positions of operations manager and chief pilot pursuant to paragraphs 723.07(2)(a) and (b) of the CASS.

The applicant's representative, Mr. Cloutier, appealed Transport Canada's decision to suspend the air operator certificate of Myrand Aviation Inc. The Transportation Appeal Tribunal of Canada heard the parties on the various dates mentioned above.

THE LAW

Paragraph 7.1(1)(b) of the Aeronautics Act states as follows:

7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that

(b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued ....

The Minister's representative, Normand Audet, called Patrick Kessler to qualify him as an expert witness to assist the member regarding the concept of cockpit crew management. The Minister intended to rely on this concept, among other things, to show that Myrand Aviation no longer had a qualified operations manager and chief pilot.

Mr. Kessler is an airline transport pilot. An instructor and chief instructor, he had accumulated over 3 000 flying hours in this capacity before joining Transport Canada, System Safety, where he was part of a national working group developing a course on cockpit resource management (CRM). As the person responsible for regional training workshops, he has given over 60 presentations on this concept and on the human factors. He is also responsible for setting up company safety management training programs (M-1).

Mr. Kessler's knowledge and expertise qualify him to appear as an expert and instruct the member about CRM.

THE FACTS

Applicant's Evidence

Mr. Audet called André Soucy to testify. Mr. Soucy was hired by Myrand Aviation as co-pilot of the Beechcraft King Air 100 (BE10) and the Cessna 401 (C-401), initially part-time from September 2002 to June 2003, then full-time until May 2004. At the time he was hired, Mr. Soucy undertook his own initial ground training by consulting the Pilot's Operating Handbook and the aircraft equipment list and by viewing a cassette on the phenomenon of icing. Following this training, which he described as "self-study", Mr. Soucy successfully passed the written exams. He received his initial in-flight training from Mr. Cloutier or Captain Germain Drolet on empty segments of the company's commercial flights, during which he practised steep turns and instrument approaches.

According to Mr. Soucy, his role as co-pilot on the BE10 was dropped because the aircraft could be flown by a single crew member. He was relegated, so to speak, to the duties of communication, loading baggage, cleaning the aircraft or altering its interior configuration. He said he was rather uncomfortable in this role and felt, as he put it, [translation] "like a sandbag."

The witness then said that communication between crew members left much to be desired. For one thing, crew members had no intercom in the BE10, a noisy aircraft. In order to understand each other, they had to gesture or speak loudly because of the noise from the engines next to the cockpit, unless one or the other removed his earphones. There was also very little exchange between himself and the captain about the various aspects of the flight, be it the route used, the in-flight weather, the choice of landing runway, or the action to be taken in the event of an engine failure. The ground and in-flight checklists were seldom used and on several occasions the weight and balance forms, normally completed on the ground before take-off, were completed during the flight and did not reflect the reality. These forms were in fact altered, in the case of overload, to deduct [translation] "on paper" the amount of excess fuel to bring everything to within the specified limits.

Mr. Soucy also argued that he used the GPS of the BE10, approved for VFR use only, to proceed directly to the destination and to perform instrument approach procedures. For example, while travelling from the city of Québec to Bonaventure, Mr. Soucy alleged that he flew directly from Fleur to Vodix instead of taking route V98 and an outbound radial from Rivière-du-Loup. The filed flight plan specified that the aircraft had a GPS, allowing them to be picked up by air traffic control, while saving time and money.

The witness told the member that Mr. Cloutier also did various work on his company's aircraft. He testified that Mr. Cloutier opened the engine cowling to work on the propellers and on parts of the autopilot system. According to him, Mr. Cloutier had enough tools [translation] "not for a major job but enough to spend a couple of hours". The work done was not recorded in the aircraft journey log. In this regard, the certificates signed by the Secretary of the Minister of Transport and filed as exhibit M-2 show that Mr. Cloutier does not hold an Aircraft Maintenance Engineer (AME) licence and that Myrand Aviation does not hold an Approved Maintenance Organization (AMO) certificate. Mr. Soucy did not know that, while he was employed at Myrand Aviation, Pierre Cloutier Jr. was the company's operations manager.

Finally, Mr. Soucy told the member about various air incidents that had punctuated his period of employment at Myrand Aviation. The most significant occurred April 19, 2004, when Mr. Cloutier was conducting an IFR approach using the GPS in uncontrolled airspace at Chibougamau.

After departing the city of Québec, the aircraft flew the direct route shown in ink on exhibit M-4, rather than taking V34 and proceeding via La Tuque and Parent. As Myrand Aviation's BE10 was approaching the Chibougamau airport, a Propair BE10 announced on frequency 126.7 that it was descending to land on runway 23 of that airport. Propair was arriving from the west, while the BE10 of Myrand Aviation was arriving from the south. Mr. Cloutier had initially planned to land on runway 23 and decided to give priority to Propair. Mr. Cloutier then said that he was heading towards OMOLI to fly an inbound track and then announced he would make an NDB landing on runway 5.

According to the witness, the force and position of the winds favoured a landing on runway 23 rather than on runway 5 with tailwind. Mr. Cloutier then asked Propair to indicate its position. Propair was ascending from 3 000 to 3 200 feet after a missed approach on runway 23 to attempt a second landing. At that point, Mr. Soucy said, [translation] "we were in a holding pattern at an altitude of 2 000 feet along the centre line of runway 5", that is, in Propair's line of ascent following its missed approach to runway 23. The BE10 of Myrand Aviation then prepared to land on runway 5. Mr. Soucy said that Mr. Cloutier maintained a speed of 110-120 knots once they had the runway in view, at about 3.1 DME (a half mile). According to the witness, there was another 532 feet to go before touching the runway. Mr. Cloutier then made a 10-degree turn at full throttle and [translation] "the nose dropped". Seeing he was continuing at full throttle, Mr. Soucy [translation] "jumped on the controls to put them into full reverse and applied the brakes". When the plane touched the ground at the place marked with an "A" by Mr. Soucy on exhibit M-5, it was still travelling at 70 knots and went off at the end of the runway.

The cross-examination of Mr. Soucy revealed no relevant information.

The Minister's second witness was Charles Henri Bréheret. He worked for Myrand Aviation part-time from early 2001 to January 2002 as pilot-in-command of the C-401 and as co-pilot of the BE10. Mr. Bréheret said he was satisfied with his in-flight training on the C-401. According to him, [translation] "I had real training". Otherwise, he was not satisfied with his training on the BE10. According to him, he received no training, either theoretical or practical, on this aircraft type. Mr. Cloutier went over his exam with him, but in a way that was rushed and too vague for his liking; he had not read the standard procedures for this aircraft. His in-flight training took place on empty segments of the company's commercial flights, considerably limiting the kinds of exercises since there was no need to change heading or altitude. He did not recall whether he had been given either a simulated engine failure during an IFR approach with go-around procedure or a simulated engine failure on take-off.

He served as crew on the BE10 with Captains Cloutier and Drolet, who concerned themselves exclusively with flight preparation and did not inform him of any flight details. If he wanted to know them, he had to get them on his own initiative. On the ground, his role as co-pilot was limited to greeting passengers and loading baggage. In flight, his duties consisted in handling radio communications and raising or lowering the landing gear unless, on rare exceptions, Mr. Cloutier or Mr. Drolet authorized him to be second-in-command on a flight segment.

As pilot-in-command of the C-401, Mr. Bréheret informed his co-pilots of his intentions before take-off, during descent and before landing. He ran through the checklists interactively and aloud. When Mr. Bréheret suggested that the second-in-command on the BE10 run down the checklist with the captain, Mr. Cloutier told him to [translation] "read it to himself". He described Mr. Drolet as not very talkative. According to the witness, the absence of an intercom in the BE10 made communication between crew members rather difficult, but this did not seem to worry Mr. Cloutier. Mr. Bréheret said that he prepared nearly all of his weight and balance forms during the flight, while it was quiet. He had never seen anyone weigh baggage or passengers: [translation] "It was done by guesswork". The BE10 technically flew with extra weight on several occasions since he reduced the total weight of the fuel to stay within the aircraft's limits. The witness added that he used a GPS approved for VFR use only to obtain direct routes which were shorter and more profitable for the company, and to conduct IFR approaches. The GPS database was not up to date, according to him.

Careful to avoid waste and save money, Mr. Cloutier [translation] "tinkered on his aircraft himself", which worried the witness because [translation] "he seemed to do quite a few things . . . sometimes made us walk for over an hour rather than take a taxi . . . avoided paying for hotel rooms during layovers that could exceed eight straight hours even though in some places there was nowhere to rest properly". Still in this vein, Mr. Bréheret pointed out that both Messrs. Cloutier and Drolet [translation] "rounded off" the flying hours recorded in the journey log in the company's favour. Sometimes, to save money, Mr. Cloutier went so far as to choose a faster runway even if conditions were not favourable. The witness told how Mr. Cloutier, in order to save time, chose to land on a runway despite winds of at least 30 knots and just missed the runway lights. The witness added that he thought he was going to be killed.

Occasionally, Mr. Cloutier could exceed the maximum number of hours on duty. The witness also saw Mr. Cloutier fly when tired. He remembered the time Mr. Cloutier took off from Toronto at 3:00 a.m. to go and deliver an aircraft part, even though he himself had refused to work that flight because of fatigue.

According to Mr. Bréheret, decisions affecting company operations were made by André Cloutier, not by his son Pierre. He always considered André Cloutier to be the operations manager of Myrand Aviation. The witness decided to leave Myrand Aviation first of all because it was difficult for him to support his family working part-time, and second, because he was afraid of the company's aircraft maintenance. He wanted to work for someone more serious-minded and more mindful of his responsibilities.

The cross-examination of Mr. Bréheret revealed the following facts:

  1. The Minister's representative had contacted him to come and testify.
  2. Pierre Cloutier had told him it was not necessary to be a pilot in order to be the operations manager of Myrand Aviation.
  3. Mr. Cloutier did not encourage running through checklists out loud.
  4. The witness did not know that Mr. Cloutier prepared the weight and balance forms in advance.
  5. The absence of an intercom in the BE10 was [translation] "annoying" in terms of communication.
  6. Mr. Drolet had behavioural problems, had difficulty communicating and was, in short, made to fly solo. The witness referred to him as [translation] "the autistic one".

A third pilot, who worked at Myrand Aviation from March 2000 to September 2001, was called to testify. Mr. Audet called Stéphane Wauthoz, who was hired as co-pilot on the BE10, the C-401 and the Citation 500. He had 500 flying hours to his credit and flew mainly with Messrs. Cloutier and Drolet. Mr. Wauthoz said that he did his initial ground training on his own because no theory courses were taught by Myrand Aviation. He took "hurried through" exams, only some of which were reviewed. He did not read the standard procedures for the C-401 and the BE10 and did not recall having seen the company's operations manual. He paid for his training on the Cessna Citation 500 ($10 000).

Mr. Cloutier explained the cockpit to him and his in-flight training on the BE10, an aircraft he had never flown before, took place on empty segments of commercial flights. The file on his initial BE10 in-flight training shows that all training exercises required by the standard procedures on this type were completed. However, he said there was no simulation of engine failure during the take-off or landing configuration, nor any other emergency scenario. He had not yet completed his initial in-flight training and he acted as co-pilot on company flights that carried passengers.

According to Mr. Wauthoz, Mr. Cloutier had difficulty accepting suggestions from his younger, less experienced pilots often just starting their careers. When he suggested the use of checklists on company flights, Mr. Cloutier told him he [translation] "knew them by heart". Mr. Cloutier apparently told him [translation] "do it in your head if you like, but I'm taxiing the plane and we're off". Mr. Cloutier prepared all flights without bothering to inform his co-pilot. If the witness wanted details about the planned flight, he had to try and get them himself, which he thought showed a lack of consideration towards him.

The witness argued that the Citation 500 sometimes took off with excess weight and that the data on the form had to be changed during the flight by [translation] "playing with the fuel". This was the case, according to Mr. Wauthoz, when Myrand Aviation transported three huge tool chests weighing at least 60 pounds each. At times, equipment that was difficult to stow beneath the seats, referring to land surveyor's stakes and tripods, were left unsecured in the aisle. The witness had not used the scale while employed by Myrand Aviation. Mr. Cloutier argued that he weighed passengers and baggage.

Asked by Mr. Audet about the use of the GPS on board company aircraft, Mr. Wauthoz argued that he used the navigation system approved [translation] "for VFR use only" anytime he could to obtain direct routes and conduct instrument approaches. The flight plan showed there was a GPS on board. The witness also said that he entered the coordinates for conducting instrument approaches into the GPS database. The GPS of the C-401 was not on the aircraft equipment list.

According to the witness, Mr. Cloutier often tried to repair certain parts of his aircraft on his own and in doing so performed maintenance he was not authorized to do. He said that Mr. Cloutier had tried to repair the autopilot of one of his aircraft and had replaced defective diodes and oil pressure sensors. He had also connected a defective portable battery-powered GPS to the aircraft's power. The work done by Mr. Cloutier was not recorded in the aircraft journey log. He also noticed that Mr. Cloutier did not enter all his flying hours. In order to save airframe hours, Mr. Wauthoz said that Messrs. Cloutier and Drolet recorded the time of departure in local time and the time of arrival in Greenwich Mean Time in the aircraft journey log. They both shamelessly engaged in this practice.

According to the witness, Mr. Cloutier often exceeded the specified speed limits. Mr. Cloutier removed the switch of the overspeed warning device to keep the alarm from going off in the cockpit on those occasions. As an example, he cited the time Mr. Cloutier was making a descent at an altitude of 9 000 feet with the Citation 500 towards Montréal. He maintained a speed of 290 knots, 28 knots over the maximum speed (262 knots) specified by the manufacturer for that altitude. Mr. Cloutier justified this practice on the pretext that [translation] "time is money".

Mr. Wauthoz then recounted how frightened, [translation] "paralyzed" as he put it, he had been when Mr. Cloutier had landed at Shefferville below the minimum descent altitudes, without a navigational aid in a thick cloud layer. Mr. Wauthoz stressed that none of the aircraft's ADF were working and the batteries of its GPS were so low that they were no longer reliable. In addition, Mr. Cloutier's GPS failed during the descent and a NOTAM advised that the Shefferville VOR was not working. All these factors combined were, in his view, a [translation] "perfect crash scenario". Luckily, a [translation] "hole in the clouds" opened up above the city, thus avoiding a worst case scenario.

The witness learned from Transport Canada that Pierre, André Cloutier's son, was the operations manager of Myrand Aviation. As far as Mr. Wauthoz knew, André Cloutier filled all the positions of first captain, chief pilot, maintenance coordinator and operations manager.

Currently an airline transport pilot with Skyservice, Mr. Wauthoz feels no resentment towards Myrand Aviation. He believes that Mr. Cloutier takes unnecessary risks, his lapses keep accumulating and he concluded that [translation] "Mr. Cloutier really has a lot of luck".

The following points emerged from the cross-examination of Mr. Wauthoz:

  1. Myrand Aviation gave Mr. Wauthoz a chance to work in his field.
  2. Mr. Wauthoz had 2 700 flying hours to his credit at the time of testifying.
  3. Mr. Wauthoz confirmed that Mr. Cloutier paid the costs of renewing his proficiency check on the Citation 500.
  4. The fact that Mr. Cloutier asked his co-pilot to calculate speeds does not mean he observes the principles of good communication management in the cockpit.
  5. The witness confirmed that a breakfast platter was provided when he worked and good meals in the hotels.
  6. The witness often made his complaints known to the health/safety officer of Myrand Aviation, Mr. Drolet.
  7. Mr. Wauthoz estimated that he experienced unusual situations on 12 percent of the flights on which he worked.
  8. Mr. Wauthoz needed better job coaching during his period of employment at Myrand Aviation.

Mr. Audet then asked Anne Josée Giroux to appear. She worked for Myrand Aviation for three months from April to June 2001. Coming from Saskatchewan, Ms. Giroux was first hired part-time as a co-pilot on the C-401 and the Citation 500 with a promise from Mr. Cloutier that he would eventually promote her to pilot-in-command of the Citation. She paid the costs of her training on the Citation 500. The witness was also the maintenance coordinator for Myrand Aviation during that period. Mr. Cloutier asked her to make sure that no unnecessary aircraft inspections were done. On reviewing the data from the time of the company's inception, she noticed that some regular inspections had not been done.

Ms. Giroux pointed out that she had flown only with Mr. Cloutier. She loaded the meals and baggage while he prepared the flight. The only information she usually had before the flight was the destination. She tried to get details about the flight on her own as she saw fit. Mr. Cloutier did not give her any more information about the flight either before take-off or landing, and preferred not to have to respond to the call-out of checklist items, so she did it alone. During the flight, she handled radio communications.

Ms. Giroux testified that Mr. Cloutier often exceeded the speed limits when preparing to land the Citation. She remembered one landing during which a controller had to ask Mr. Cloutier two times to reduce his speed. Seeing that he still did not slow down, Ms. Giroux said she became angry, took the controls and brought the speed to within the required parameters. After she did this, Mr. Cloutier pulled the switch of the overspeed warning device and started to laugh, saying that he [translation] "wanted to arrive today". Another incident of overspeed occurred during an approach to Amos. According to Ms. Giroux, Mr. Cloutier maintained a speed on final descent of over 200 knots. She was scared to death. During a visual inspection of the Citation, the witness noticed a bump, [translation] "the belly of the plane was crumpled". She thought this bump might have been caused by repeated overspeed.

Ms. Giroux also said that Mr. Cloutier sometimes completed the weight and balance forms once they were airborne. She pointed out that the aircraft was always filled to capacity with fuel, even if there were several passengers and a lot of baggage. The witness also testified that Mr. Cloutier sometimes did work on his aircraft that was usually reserved for specialists (AME), such as repairing the anti-icing device at the end of the propeller on the C-401. She told him, in vain, that he did not have the right to do such work. According to her, Mr. Cloutier also switched parts from one aircraft to another. Ms. Giroux had also asked Mr. Cloutier to replace her oxygen mask because the elastic straps were split and the inside was falling apart. Mr. Cloutier simply tied knots in the old elastic straps.

Ms. Giroux, the mother of a little girl, stayed just three months with Myrand Aviation because she was afraid something would happen to her.

The cross-examination of Ms. Giroux revealed the following facts:

  1. Ms. Giroux contacted Mr. Cloutier in 1998 or 1999 about getting a job.
  2. At the time she was hired by Myrand Aviation, Ms. Giroux had 1 300 flying hours, including 140 instrument flight hours.
  3. She agreed to pay the costs of her training because Mr. Cloutier had promised her she could be pilot-in-command of the Citation beginning in August 2001.
  4. Ms. Giroux received 1.9 hours of initial in-flight training on the C-401. The training did not take place on an empty segment of one of the company's commercial flights.
  5. She did not recall Mr. Cloutier simulating an engine failure on a return flight from Maine.
  6. She was well aware that one crew member must handle radio communications.
  7. She confirmed that she generally adjusted the speeds during take-offs but not during landings.
  8. She could not say whether or not the replacement of an on-board ADF constituted elementary work within the meaning of the regulations. She maintained, however, that removing seats from an aircraft is elementary work.
  9. She did not know that the Heat Air company did an x-ray inspection of the Citation 500 every year to check for cracks or bumps on the aircraft.
  10. She acknowledged that Mr. Cloutier paid for her hotel room.
  11. She again said that Mr. Cloutier intentionally exceeded the allowed speed.
  12. She loved flying the Citation 500 but did not feel safe. One month after starting work at Myrand Aviation, she took her father for a ride in the Citation.

Mr. Audet then called Dave Descormiers to testify. Mr. Descormiers, a resident of Fleurimont, is a pilot, holds a master's degree in business administration and owns an aircraft. He worked for Myrand Aviation from December 12, 2004, to May 11, 2005, first as co-pilot of the C-401 on a part-time basis, then full-time. He flew to the city of Québec with his aircraft. The witness testified he had never flown this aircraft before. He had never been trained in the standard procedures of the C-401, nor taken ground training courses on this aircraft type. He had studied everything on his own. On December 5 and 6, 2004, he received his initial in-flight training from Mr. Cloutier in the city of Québec. His training file shows 4.8 hours, but he doubted that was the actual number of hours of training. He said that with Mr. Cloutier, [translation] "you had to keep going". Although it was somewhat condensed, he said he was satisfied with his flight training. He would have appreciated that the training last longer, but Mr. Cloutier had judged it satisfactory. Mr. Cloutier told him that his insurance required him to fly the C-401 with a co-pilot.

Mr. Cloutier prepared the flight plans and the weight and balance forms without informing Mr. Descormiers, nor did Mr. Cloutier inform his co-pilot of important details about the flight or of his intentions. There was no briefing between the two crew members before take-off or initiating descent. When Mr. Descormiers took out the checklist at those times, Mr. Cloutier told him to do it for himself. The witness said that it was possible that the aircraft took off while overloaded because, according to him, [translation] "non-standard" baggage was not weighed. Neither he nor anyone else used the scale while he was working at Myrand Aviation.

The witness stated he had no GPS training. He therefore did not use this navigational aid of the C-401, approved for VFR use only. He told the member that Mr. Cloutier often used the GPS during instrument flights to obtain direct routes rather than the VOR and ADF, less reliable navigational aids than the GPS at the altitude of 9 000 feet usually preferred by the crew. Thus, instead of taking V98 which goes by Rivière-du-Loup and an outbound radial of this VOR bound for Bonaventure, Mr. Cloutier requested clearance to fly directly from Fleur to Vodix and directly from Vodix to Bonaventure. Mr. Cloutier also obtained direct routes from Albany, New York, to New York City. The witness mentioned that [translation] "we did not worry about it". Mr. Cloutier continued to do this despite knowing that Transport Canada did not allow him to do so. There were two portable GPS on board the C-401, one that was non-secured and placed on top of the instrument panel within the captain's view and another next to the co-pilot.

Mr. Descormiers testified that on February 17, 2005, with the temperature at -18°C on the ground, during a flight Québec-Gaspé-Bonaventure-Québec, the aircraft heater broke down upon arrival in Gaspé. The witness suggested taking the passengers to Mont-Joli to have the heater repaired, but because the aircraft had spent a good while in the sun in Gaspé, Mr. Cloutier decided to continue on to Bonaventure with no heater. He then decided to return to the city of Québec from Bonaventure with passengers, still with no heat on board. Mr. Cloutier offered blankets to the passengers, whose legs and thighs were freezing cold. Mr. Descormiers said that it was so cold in the aircraft during that night flight of one hour and 45 minutes that it was impossible to defrost the small heated pane at the front. The witness testified that [translation] "we were really in icing conditions" and admitted that he was afraid.

Mr. Descormiers also testified that Mr. Cloutier always put two drums of fuel of five gallons in a wing locker near the engine when flying to Gaspé so he would not have to stop along the way for fuel, because there are none located in Gaspé. Mr. Descormiers did not feel safe knowing that the gasoline drums were near a source of heat coming from the engine. He also said that Mr. Cloutier told him he had replaced the cables securing the door of the C-401 with cables from Canadian Tire. According to Mr. Cloutier, these cables were much better than those of the manufacturer.

The witness admitted that he had not found his work experience at Myrand Aviation very satisfying. He concluded that Mr. Cloutier had hired him in order to comply with his insurer's contract. He did not think he had contributed anything at all to the company. He would have liked better training, more consideration and better working conditions, proper places to rest, his own meal platters, taxis at the destination to go to a restaurant, especially in very cold weather. Mr. Descormiers also said he had been exploited financially.

On a return flight to the city of Québec, Mr. Cloutier started to [translation] "crack up," according to the witness, and to call him a spy for Transport Canada. Mr. Cloutier was coming out of a meeting in Montréal with Transport Canada that had apparently not gone well. He was disappointed that Mr. Descormiers had not gone with him to the meeting, and spoke against him and all the pilots who had worked for him. The witness realized that from that point on, the bond of trust between him and Mr. Cloutier was broken. Nevertheless, Mr. Cloutier still offered Mr. Descormiers the position of chief pilot of his company. Dumbfounded, the witness declined the offer. He would never have been able to get his decisions approved by someone who had lost trust in him.

Mr. Descormiers said he was disappointed with his experience at Myrand Aviation; he had placed his hopes in this job, sold his house in Fleurimont and left a well-paid job.

The cross-examination of Mr. Descormiers confirmed the following facts:

  1. Mr. Descormiers, accompanied by Mr. Cloutier, conducted training flights on December 5 and 6, 2004. He conducted an engine failure on take-off, tight turns with 45-degree inclines, rate one turns, an ILS landing approach, a landing without flaps and a landing with simulated engine failure, tailwind.
  2. Contrary to Mr. Cloutier's testimony, the heater was not working from Gaspé to Bonaventure on February 17, 2005. Mr. Cloutier flew the Bonaventure-Québec segment in a state of hypothermia.
  3. The witness had the key to Mr. Cloutier's residence where he could go and rest anytime.
  4. Mr. Cloutier paid the taxi fare to and from the airport to go and eat in Matane once.
  5. Mr. Cloutier had already cancelled a flight because of the weather.
  6. Mr. Descormiers did not know whether the gasoline drums were approved, as Mr. Cloutier alleged, to be transported in the wing locker of the aircraft.
  7. The flight to Albany may have taken place using VOR and ADF aids that were kept open and operational even though Mr. Cloutier used the GPS.
  8. Mr. Descormiers loved flying the C-401. He was comfortable at first but became more uneasy because he did not have all the relevant information regarding the flight. He obtained the weather only once.

On re-direct, he said that he had not taken any course on the transportation of dangerous goods. He again said that he had not received the initial 12 hours of ground training on the C-401 as prescribed in chapter 5 of Myrand Aviation's operations manual. He had no training in emergency procedures. He had prepared himself as best he could since Myrand Aviation had no instructor available.

Mr. Audet called Lionel Gillet, who worked for one year for Myrand Aviation, from June 2003 to June 2004, as co-pilot on the BE10 and the C-500. At the time he had accumulated 1 500 flying hours. It was agreed that the witness would pay for his training on the C-500. He invested over $25 000 in this training. He had no additional training on this aircraft type at Myrand Aviation.

Mr. Gillet undertook his own training on the BE10 by reading all the documentation available to him. He then wrote and passed his exams. He testified that Mr. Cloutier did not take the time to go over his results with him. His flight training was done on empty segments of company flights. He said that he had no practice on emergency manoeuvres or 45-degree turns, nor had any flight been devoted specifically to his flight training on this type.

On the ground he mainly looked after loading baggage and meal platters, and during the flight he looked after radio communication, the flaps and the landing gear. He pointed out that Mr. Cloutier gave him no details regarding the planning of flights, nor did he inform him of his intentions prior to take-off or landing. The crew did not call out the checklist items at these stages. Mr. Gillet pointed out that teamwork at Myrand Aviation was nonexistent. He had no say and could not assert himself without risking a confrontation with Mr. Cloutier. He felt useless, like [translation] "a sandbag". In the circumstances, Mr. Cloutier could very well fly solo; he did not need a co-pilot. This lack of dialogue between crew members caused needlessly stressful incidents. He said that Mr. Cloutier argued on a St-Augustin-Québec flight that it was not necessary to refuel in St-Augustin. He had miscalculated his fuel reserves, disregarding existing weather conditions. Mr. Gillet said that on that occasion they nearly ran out of fuel 10 minutes from their destination. According to the witness, Mr. Cloutier wanted to go too fast; this procedure caused him to forget to adjust the flaps for take-off two times. Fortunately, Mr. Cloutier had noticed and corrected the error after rotation.

Mr. Gillet told the member that the weight and balance forms were completed during the ascent. He said that [translation] "we were always overweight" because he had to underestimate the total weight of the baggage or fuel to fall within the parameters. He remembered in particular, flying the C-500 to Saskatoon on May 17, 2004, that Mr. Cloutier had to increase his take-off speed by 10 knots in order to complete the take-off, he indicated that [translation] "he used a lot more of the runway than usual". That time, seven rather stout aboriginals with heavy baggage were on board and the aeroplane was filled to capacity with fuel (3 200 lbs). Mr. Gillet admitted that he did not feel safe. He said there were also times when baggage did not fit into the back or front compartment of the C-500, it was stowed in the aisle, unsecured. This was the case during a flight to Shefferville on May 14, 2004, when heavy tool chests were left in the aisle completely unsecured.

Mr. Gillet testified that he heard the overspeed warning device quite often: [translation] "every other flight". To stop the noise, maintain his speed and save time, Mr. Cloutier disabled the switch responsible for the noise. In his view, Mr. Cloutier's overspeeds of about five knots were generally unintentional on his part.

The witness said that in order to save money, Mr. Cloutier carried out certain repairs or maintenance on his aircraft. He told how Mr. Cloutier had replaced a tube in the mechanism that shuts the door of the C-500 with a bathroom plumbing fitting purchased at the local Rona. The mechanism was repaired by a certified technician one month later because the genuine part was too expensive. Mr. Cloutier's wife sewed the netting for securing baggage at the rear of the C-500 using her sewing machine. According to Mr. Gillet, Mr. Cloutier took out the floor of his aircraft to check the fuses underneath. He would also switch equipment, such as ADF casings, from one aircraft to another.

Mr. Gillet said that Mr. Cloutier used the GPS, approved only for VFR use, to obtain direct routes to Bonaventure or Blanc Sablon and to conduct IFR approaches to those locations. He also said that Mr. Cloutier flew short of minimal descent altitudes in unfavourable weather conditions, sometimes forcing him to conduct missed approaches because he had not seen the runway.

The witness sometimes had to work without having been allowed a proper rest. He recalled leaving the hotel in Rimouski at 3:00 a.m. for the airport, preparing the BE10 and returning it to the city of Québec for 7:00 a.m. for another crew, then preparing the C-500 and conducting a flight Québec-Bonaventure-Québec and leaving the city of Québec airport at about 2:00 p.m. after a three-hour night. He admitted feeling tired. As there were just two co-pilots working at Myrand Aviation, they were much in demand and exceeded the maximum hours on duty. When Pierre Cloutier resigned from his position as operations manager of Myrand Aviation, André Cloutier asked the witness to replace him, but the witness said he had not passed the Transport Canada exam. According to the witness, flights at Myrand Aviation were becoming increasingly dangerous and he feared for his safety and his life. He left the company and looked for a job elsewhere.

The cross-examination of Mr. Gillet revealed the following facts:

  1. Mr. Cloutier dictated to the witness the text appearing under the heading "qualifications" on the witness' application for operations manager of Myrand Aviation, filed as exhibit D-1.
  2. He again said that there had been strong winds and turbulence on the St-Augustin-Québec flight, especially on approach to the city of Québec, and that the light indicating a low level of fuel went on three times.
  3. He admitted that Mr. Cloutier used the GPS during IFR approaches to Blanc Sablon as back-up to the two ADFs and the localizer. The filed flight plan showed there was a GPS on board.
  4. He said that episodes of overspeed set in gradually, particularly on descent, sometimes even to accommodate an air traffic controller, but that the aircraft never vibrated.
  5. Mr. Gillet believed the work of changing fuses under the floor of the BE10 was elementary, as was that of transferring or removing aircraft parts attached to a rack.
  6. The door of the C-500 closed properly after Mr. Cloutier repaired it.
  7. The netting for stowing baggage at the rear of the C-500 is located behind a wall.
  8. The standard procedures for the C-500 were in the aircraft and Mr. Gillet had read them.
  9. Myrand Aviation's operations manual specifies that approved standard weights can be used as weight; these weights do not take into account the passengers' baggage.
  10. Mr. Gillet said the scale was used three times to weigh baggage during the period he worked for Myrand Aviation.
  11. According to the witness, it is possible that heat and humidity can affect the distance required for the aircraft to take off.
  12. Mr. Gillet stated that [translation] "he was crazy to fly" with Mr. Cloutier.
  13. Mr. Gillet submitted his application for operations manager of Myrand Aviation on May 13, 2004 (document filed as exhibit D-1).
  14. Mr. Cloutier previously cancelled two or three flights because of unfavourable weather.

On re-direct, Mr. Gillet confirmed the following:

  1. One could not indicate in the flight plans that Myrand Aviation aircraft had GPS on board because these systems could not be used for IFR/RNAV purposes.
  2. Mr. Gillet had no idea of Mr. Cloutier's intentions with regard to any flight phases at all.
  3. Mr. Cloutier promised Mr. Gillet a full-time job. He did lay Mr. Gillet off during the month of December 2003, which had not initially been planned.
  4. There was no adherence to Myrand Aviation's standard procedures.
  5. The distance needed for take-off is not calculated according to the weather.

Jules Pilon, Regional Manager, Commercial and Business Aviation, Transport Canada, testified next. Mr. Pilon explained that the investigators in his section, Messrs. Bergeron and Blouin, paid a visit to Myrand Aviation's operations manager, Pierre Cloutier, on November 21, 2003. After asking him a few questions, they found that Pierre Cloutier was unable to answer them satisfactorily and made a report to this effect.

In January 2004, Mr. Pilon went to Myrand Aviation to meet with Pierre Cloutier. The witness said that Pierre Cloutier did not demonstrate to him that he had the qualifications necessary under the CASS to hold the position of operations manager (M-7). Pierre Cloutier did not have the slightest idea where Myrand Aviation's operator certificate was, nor what it said. Transport Canada therefore asked Myrand Aviation to propose a qualified candidate for this position.

In May 2004, Pierre Cloutier told him he was resigning from his position (M-8). André Cloutier proposed Mr. Gillet for the job. However, since Mr. Gillet did not pass the Transport Canada exam and left Myrand Aviation soon after, André Cloutier proposed himself (M-6). On June 25, 2004, Mr. Pilon told him it was not acceptable for André Cloutier to hold the position of operations manager of Myrand Aviation along with the positions he already held as chief pilot, training pilot and senior pilot in view of the [translation] "past performance and evolution" of the company in recent years (M-9 and M-10). The witness asked him to propose another candidate. André Cloutier then proposed cutting back on his duties and operating just one of his aircraft at a time. In that context, Mr. Pilon agreed to reconsider André Cloutier's nomination for the position of operations manager of Myrand Aviation. On July 15, 2004, after a risk assessment, he accepted the nomination of André Cloutier (M-11). The witness said he passed the Transport Canada exam with a grade of 90 percent.

Mr. Pilon then testified that Denis Paré, a Transport Canada investigator who was not in his section, had told him he had in his possession a letter from Mr. Gillet. This letter referred to numerous operational irregularities at Myrand Aviation, notably, incidents of overloading, overspeed and unlawful use of the GPS. Mr. Paré also had in his possession a copy of the Radex showing a dangerous approach conducted by Mr. Cloutier on April 19, 2004, to Chibougamau. The witness said that he spoke with Mr. Gillet to verify each element of his letter and at that point realized the extent of the problem with Myrand Aviation.

Mr. Pilon also spoke to Mr. Cloutier. He told him he had enough elements to convince him that Myrand Aviation's safety was compromised and on this basis he was removing him as operations manager and chief pilot of Myrand Aviation, and asked him to propose suitable candidates (M-12). Mr. Pilon also rejected the nomination of Mr. Jacques Lévesque, manager and chief pilot of an airline company in Sept-Îles, proposed by Mr. Cloutier, because of the distance separating the two companies and Mr. Lévesque's workload within that company.

Mr. Pilon said he had not asked anyone whatsoever to [translation] "infiltrate" Myrand Aviation, nor had his intention been other than to ensure aviation safety.

The following emerged from the cross-examination:

  1. The questions the Transport Canada investigators asked Pierre Cloutier, then operations manager of Myrand Aviation, were routine and quite normal. The manager does not need to do any preparation to be able to answer these questions since he is supposed to be very familiar with the operations of the company he manages. Mr. Pilon was 110 percent sure that Pierre Cloutier did not have the necessary qualifications to hold this position at Myrand Aviation.
  2. Mr. Pilon always confirms information he receives from the principals concerned.
  3. His mandate is to ensure safety and, to this end, he may verify any information likely to assist him.
  4. He learned of the letter from Mr. Gillet sometime in late April 2005.
  5. Mr. Pilon did not give Mr. Cloutier a copy of this letter from Mr. Gillet to Transport Canada, but he did go over each point with him when they met on May 11, 2005.
  6. He admitted that Mr. Gillet's letter had prompted his decision to remove Mr. Cloutier from the positions of operations manager and chief pilot of Myrand Aviation.
  7. Mr. Pilon felt he had waited too long to act in this case.
  8. His decision had not been influenced by the investigation report of the Transportation Safety Board of Canada regarding the 1999 accident involving Myrand Aviation.
  9. Mr. Pilon did not want to meet with Mr. Cloutier in the presence of his co-pilot out of respect for him.

Mr. Audet called Denis Paré, an investigator in the Aviation Enforcement section of Transport Canada. Mr. Paré has 30 years' experience in air traffic control, including 15 years as operations supervisor at the control tower in the city of Québec. He mainly investigates incidents relating to airspace breaches.

The witness addressed an offence of reckless or negligent operation by Mr. Cloutier while using the BE10 of Myrand Aviation on April 19, 2004, during a flight from the city of Québec to Chibougamau, and a second offence of wrongly stating in his flight plans that he had an RNAV

long-range navigation system on board his aircraft. Mr. Paré revealed a number of offences previously committed by Myrand Aviation, some related to maintenance control, airworthiness directives and about 20 offences spanning the period May 11, 2001, to August 28, 2001, involving the operation of aircraft above the allowable limits specified in the aircraft manual (M-13), for which he paid monetary penalties.

The witness obtained from NAV CANADA the 2002 and 2004 agreements concluded between NAV CANADA and Myrand Aviation (M-14). The main flight plan attached to each one clearly shows the letter "R", signifying that the equipment of the aircraft referred to is RNAV certified, allowing the aircraft to fly in RNPC airspace (M-16, M-17 and M-18). The witness said that in this airspace, controllers give these aircraft direct routes and apply reduced separation standards. The controller will not question the accuracy of the information entered in the flight plan because that is the company's responsibility.

The progress strips of various Myrand Aviation flights (M-15 in two sheets) obtained by Mr. Paré from NAV CANADA show the letter "R" (next to the C-401 aircraft type) which authorizes controllers to assign these "directs" to Myrand Aviation. Mr. Paré drew our attention to the progress strip shown on the first page of exhibit M-19 on which the controller had crossed out V314 and YLQ with a straight arrow indicating that he had assigned a direct route from V314 to Chibougamau without going through La Tuque (YLQ). Myrand's flight plan is on page 3 of exhibit M-19 and concerns the flight of April 19, 2004, on which there was recklessness on Mr. Cloutier's part.

Exhibit M-20 , filed by Mr. Paré, shows that at about 14:00Z in Chibougamau it was overcast, with a visibility of two and a half miles in light rain and fog.

Mr. Paré invited the member to view a Radex on the descent and landing manoeuvres of Myrand Aviation's BE10 in Chibougamau on April 14, 2004, just as a BE10 owned by the company, Propair, was calling in to land in Chibougamau. As a preamble, he explained that the Radex is an electronic readback file of the paths taken by the BE10 aircraft of Myrand Aviation and Propair towards the Chibougamau runway on April 19, 2004, on the NAV CANADA Auxiliary Radar Display System (NARDS). The NARDS system runs simultaneously with the NICE system, which reads the audio. Mr. Paré compared the integrity of the NARDS and NICE systems to that of black boxes, which cannot be altered. The NARDS and the NICE systems are accurate to within one tenth of a mile and one hundredth of a second, respectively. The audio file covers the conversations from the FIC of the city of Québec, located closer to Chibougamau and the specialist responsible for the MF covering the Chibougamau area.

Mr. Paré filed as exhibit M-22 the transcript of the conversations that took place between the Myrand Aviation and Propair BE10 aircraft and the FSS of the city of Québec. He also filed, in a bundle as exhibit M-25, 10 diagrams taken from the radar file (M-23) showing the paths of the Myrand Aviation and Propair BE10 aircraft, their altitudes and their speeds at various times. In addition, he filed as exhibit M-24 an instruction sheet for the member. With the aid of these documents, it is easy to follow the events as they occurred on April 14, 2004.

At 13:51:09Z, Myrand Aviation's BE10 (whose path deviated 45 degrees from the lines shown to the left of the diagram on page 1 of exhibit M-25, one representing a line from the city of Québec VOR to the Chibougamau NDB, and the other a line from the La Tuque VOR to the Chibougamau NDB) reported that it was at 50 DME south, southeast of Chibougamau and estimated reaching the airport in 18 minutes for an NDB/DME approach for runway 23. It left 15 500 feet in descent for 3 000 feet (M-25, page 1). Its speed was 170 knots. There is nothing to indicate that Propair was aware of this communication.

At 13:51:32Z, Propair's BE10 called in at 66 DME west of Chibougamau, leaving 15 000 feet in descent for an approach for runway 23, estimating arrival at the airport in 12 minutes. Its speed was 330 knots. Mr. Paré pointed out that Propair's speed was greater than that of Myrand at the same altitude, probably because of strong winds blowing west, northwest (M-25, page 1).

Myrand Aviation gave priority to Propair at 13:52:30Z.

At 13:57:32Z, Propair asked Myrand for its position and altitude.

At 13:57:40Z, Myrand said it was at an altitude of 11 800 feet at 35 DME to the south.

At 13:57:58Z, Myrand Aviation announced it was landing on runway 5 with NDB/DME approach.

Pages 3 and 4 of exhibit M-25 show that as early as 13:55:41Z Mr. Cloutier was heading for OMOLI (49 34 46/74 43 25 17 W), although he did not call this in until 14:01:28Z, saying [translation] "we're going to hold over the OMOLI fix on the inbound track . . . radial 051".

To reach the OMOLI point, Myrand Aviation flew a direct route (M-25, page 3). Mr. Paré said that Mr. Cloutier's aircraft had to use a long-range navigation system such as the GPS to do this. The witness said that there is actually no VOR in Chibougamau, the closest VOR being the one located in the city of Québec. According to him, it is not possible to shift the city of Québec VOR towards Chibougamau or OMOLI because of the distance and its range. Normally, Mr. Cloutier's aircraft, which has no GPS approved for IFR use, should have intercepted the 16 DME arc of the NDB approach to reach OMOLI (M-4, page 4). Thus, the diagrams on pages 6 and 7 of exhibit M-25 do not show us this curve but rather a straight line to OMOLI. The diagrams on pages 7 and 8 clearly show, according to the witness, that the inbound holding pattern from OMOLI that Mr. Cloutier said he would fly at 14:01:28Z is in fact an outbound track from OMOLI towards the airport. The limit of an inbound track from OMOLI is the OMOLI fix and cannot go beyond that point.

While Propair called in its final approach for runway 23 at 14:10:06Z, the BE10 of Myrand Aviation indicated eight seconds later that it was at three NM heading west for OMOLI for an NDB/DME 05 approach. At that moment, it was in the ascending axis of Propair. Propair reported at 14:14:20Z that it was leaving 3 000 feet to climb to 3 200 for a second approach. Ten seconds later, Mr. Cloutier said he was at 2 000 feet, approaching LÉGER.

According to the witness, when Mr. Cloutier began his approach, he had no idea of Propair's position, its distance or whether it was going to pull up. He should have requested this data before beginning his approach. Mr. Paré recalled that Mr. Cloutier entered Propair's protected pull-up airspace when he decided to begin his approach for the opposite runway. It should also be remembered, said Mr. Paré, that these manoeuvres took place in somewhat unfavourable weather conditions (M-20).

According to Mr. Paré, Mr. Cloutier was reckless not to clear that airspace. He could have climbed to at least 1 000 feet above Propair's pull-up altitude, i.e., to 4 200 feet, to ensure a minimum vertical airspace since Propair had priority in that airspace, including the missed approach airspace. Page 9 of exhibit M-25 shows that at 14:14:19Z, Propair was ascending at 2 900 feet with a ground speed of 120 knots, while Mr. Cloutier was at 2 100 feet with a ground speed of 160 knots. The distance between the two aircraft was 6.7 miles and at that precise moment, Mr. Cloutier did not know that Propair was ascending.

The cross-examination of Mr. Paré revealed the following:

  1. Mr. Paré has 50 hours of instrument flight time.
  2. As an air traffic controller, Mr. Paré is very familiar with holding patterns because he must ensure that there is airspace between the aircraft flying these patterns.
  3. Mr. Paré was surprised that a source of Mr. Cloutier, who works at the Transportation Safety Board of Canada, told him that no conversations were recorded between 14:07Z and 14:14Z on the CVR of Mr. Cloutier's aircraft. Mr. Paré said that communications on NICE audio tapes cannot be altered by Transport Canada or NAV CANADA or anyone other than the NICE company.
  4. Mr. Paré did not know if it would have been possible for Mr. Cloutier to use the ADF to correctly navigate his way to OMOLI.
  5. Mr. Paré agreed with Mr. Cloutier that an aircraft can fly IFR with two VORs, two ADFs and one DME and that it is not necessary to have a GPS for instrument flight.
  6. Mr. Cloutier was not entitled to use "R" (RNAV) in his flight plans because Myrand Aviation's operator certificate contains no such specification.
  7. In Mr. Paré's opinion, Mr. Cloutier did not need clearance to begin or continue an approach for runway 5.
  8. Mr. Paré pointed out that the problem was not just one of separation between the two aircraft, but lay primarily in the fact that Mr. Cloutier did not know where Propair was as he continued his approach for runway 5.
  9. Mr. Paré agreed that 1 000 feet of separation between two IFR aircraft was sufficient.
  10. Mr. Paré said that Propair did not call in at CHAPS as Mr. Cloutier and the FIC had asked them to do.

Martin Faucher testified next. He is a superintendent, Commercial and Business Aviation, Transport Canada. A commercial airline pilot, Mr. Faucher has 10 000 flying hours, including 2 800 hours on the C-550, an aircraft similar to the C-500 of Myrand Aviation. He is also a Transport Canada approved check pilot.

Mr. Faucher said that he was present at the meeting of Messrs. Pilon and Cloutier on May 11, 2005. He maintained that the job of operations manager is of great importance within an airline company. The operations manager is responsible for planning flights that are safe and in compliance with the regulations. He oversees the activities of the chief pilot as well as the pilots. The irregularities described in Mr. Gillet's letter (M-27) about Myrand Aviation's operations, such as exceeding aircraft limits, conducting approaches below the minimum descent altitudes, and poor fuel management, prompted him to confirm Mr. Pilon's decision.

Asked about the use of the GPS, Mr. Faucher said that neither Myrand Aviation's air operator certificate (M-29) nor the modifications (M-30) authorized the company to use the "R" suffix under the equipment heading of the flight plan (see M-14). The letter "R" indicates that the aircraft is RNPC certified, that is, the navigational equipment meets the CASS and that the crew is trained on the use of this equipment (M-17 and M-18). Only RNPC certified aircraft are authorized to use a long-range RNAV system such as the GPS (as opposed to conventional VOR/NDB-type navigational aids). According to Mr. Faucher, Myrand Aviation had not submitted any program for training its pilots on the use of the GPS. Myrand Aviation's operations manual makes no mention of a GPS training program for flight crews.

In addition, Mr. Faucher pointed out that an air operator that uses a GPS in IFR conditions must hold, for each of its aircraft, an operations specification in the types of performance airspace (M-31). Specification 0100 permits instrument approaches using a GPS (M-31). The GPS must also be TS0 C-129 approved or equivalent, which protects it in the event of a satellite malfunction (M-33), and the database must contain routine and up-to-date information. The use of a GPS approved solely for VFR use is not authorized in IFR mode. The witness explained that in those instances, Myrand Aviation cannot deviate from the air routes and must use conventional navigational aids. The operations manual provides no procedure allowing Myrand Aviation to establish company routes.

According to the witness, the overspeed warning device cannot be ignored because it protects the pilot and reminds him that he is exceeding the aircraft's limits. Pulling on the switch risks weakening it and making it less reliable. According to Mr. Faucher, if the crew hears this warning device often, that indicates poor speed management.

Mr. Faucher recalled that Mr. Cloutier was authorized to perform only elementary maintenance on his aircraft. The document filed as exhibit M-34 shows that he performed work on the instrument panel and signed his name in the aircraft journey log. Any work that is not elementary must be performed by qualified personnel.

According to the witness, the company must fulfil a role of "trainer" for its pilots and provide them with proper support. The operations manual sets out the nature and duration of ground and in-flight training courses. A portion of the training may be credited if the pilot has previously worked on the same type of aircraft, because his skills are transferable. However, these skills must still be examined in light of the company's standard procedures. The chief pilot must assess whether additional training is warranted. Mr. Faucher said it is not enough for the company to have the individual write an exam and then discuss it, because the exam is merely a sampling of the subject matter to be covered.

It is dangerous, according to Mr. Faucher, to leave baggage on the floor blocking the middle aisle of the aircraft should an evacuation prove to be necessary. The rear compartment of the C-500 should indicate the baggage weight it can hold. The netting that secures the baggage is aeronautical equipment that must meet precise standards and must be capable of withstanding 1.5G laterally.

Mr. Faucher also said that lack of communication in the cockpit greatly increases the risk of an accident. It is important that the crew systematically run through the relevant checklist out loud at every stage of the flight. According to him, it is conceivably difficult to do flight training on an empty return flight, particularly along an airway. A training flight must be a flight devoted entirely and exclusively to this purpose. He also found it difficult to think of an aircraft being able to conduct an approach at a speed of 100 knots without this producing a destabilizing effect.

The cross-examination of Mr. Faucher sheds light on the following:

  1. He said that Mr. Cloutier was entitled to conduct an approach towards Chibougamau with a tailwind of four knots.
  2. Mr. Faucher could not confirm whether Mr. Jacques Lévesque had previously been chief pilot at Grondair.
  3. Mr. Cloutier was authorized under Myrand Aviation's operator certificate to operate the BE10 in IFR flight with passengers on board and with no second-in-command.
  4. It is not prohibited for the second-in-command to touch the controls if he is practising, for example, "touch and go" exercises during training.
  5. Myrand Aviations' IFR flights, even in uncontrolled airspace, must be conducted along the air routes described in the operations manual using conventional navigational aids. Myrand Aviation's operator certificate contains no relevant operation specifications for the use of a GPS, either in flight or on approach (M-31).
  6. What is approved by the FAA in the United States is not necessarily approved in Canada.
  7. Mr. Cloutier was not authorized to remove the cannon plug from the instrument panel. This part, which is sometimes blocked, is screwed into the panel and connected by numerous wires. The work, requiring removal, does not qualify as "elementary" and must therefore be performed by a qualified AME.
  8. Mr. Faucher again stated that a pilot's flight training must be conducted on a flight devoted exclusively to his training for which various scenarios have been prepared and explained to the pilot beforehand. These scenarios are presented to him at various stages of the flight to verify his skills regarding the content of the operations manual and the company's standard procedures.

On cross-examination, Mr. Faucher said that the position of operations manager of an airline company is not an acquired right. Transport Canada can confirm at any time the skills and knowledge of the incumbent. He also said that a landing is conducted before the first third of the runway to facilitate, if necessary, the missed approach. With the winds at Chibougamau on

April 19, 2004, Mr. Cloutier was forced to use a GPS to make his way to OMOLI as precisely as possible.

Patrick Kessler, Inspector, Civil Aviation, System Safety, Transport Canada, was called as an expert witness. Like Mr. Faucher, he mentioned that a lack of communication between crew members often has disastrous consequences in terms of safety. According to him, the days of the captain acting as God are over. There is now a new dynamic in the cockpit. No crew member is more important than another, each has a role to play. The captain must manage the resources and capabilities of his crew and coordinate the actions taken during a flight to make it safe. This kind of CRM assumes exchange, sharing and effective communication between crew members.

According to Mr. Kessler, human performance problems are usually related to a lack of communication. They are also related to the way in which the crew members resolve problems and conflicts, their attitudes and behavioural styles, the lack of teamwork or the failure of individual crew members to exercise their respective leadership, the lack of a healthy division of labour, and to human factors such as stress and fatigue. It is essential that crew members be on the same wavelength. It is therefore inconceivable, in his view, for one crew member to be using a GPS to navigate while the other uses the VOR/ADF, or for one crew member to be unable to hear the other because of the noise in the cockpit and the earmuffs worn to muffle it.

According to Mr. Kessler, the culture of Myrand Aviation was not based on this sharing. Mr. Cloutier did not share flight data and the co-pilots knew virtually nothing of the context in which the flight was being conducted. Everything flowed one way. Mr. Kessler wondered how Mr. Cloutier could use the resources of his co-pilot if the latter did not know the details surrounding the operation, or the intentions and expectations of his captain. How would Mr. Cloutier's co-pilot be able to effectively assist him should Mr. Cloutier suddenly become incapacitated during the flight?

According to Mr. Kessler, it is the captain's duty to assign the tasks and the leadership each individual is to have and to coordinate the flight in accordance with the company's standard procedures. The workload that Mr. Cloutier assigned to his co-pilots was not shared in a way that enabled them to fully use their skills and to exercise their leadership. The captain running through checklists out loud with his crew is an example of this sharing, as is the captain's communication with his co-pilot before the various flight stages. According to Mr. Kessler, Mr. Cloutier had no intention, despite his co-pilots' suggestions, of engaging in this type of exercise with them, as essential as it is. Mr. Cloutier did not want to work with them as a team.

Mr. Kessler went on to say that a captain is a leader capable of setting the tone for proper teamwork. He must also be able to recognize the contribution of his crew's actions. Mr. Cloutier had not demonstrated this capability. The co-pilots' age and having less experience certainly played a part, at Myrand Aviation, in reducing the interaction between them and Mr. Cloutier, who was not only the chief pilot but also owner of the company. Several of them, like Messrs. Soucy, Wauthoz and Gillet, said they felt useless, [translation] "like sandbags". Some of them put up with or resigned themselves to situations that were uncomfortable or even in breach of the regulations in order to avoid a confrontation with Mr. Cloutier. Others, more daring, offered him suggestions or took control during the flight to a certain extent and confronted Mr. Cloutier.

Mr. Kessler felt that the overall testimony of the former Myrand Aviation pilots indicated there were enough factors present in the company to confirm that CRM was inadequate. The pilots were kept partially or completely in the dark about flights, experienced tense or conflicting situations with Mr. Cloutier or, attempting to avoid them, felt they were useless and were not fully appreciated. They experienced situations of non-compliance with the regulations (taking off even with a cracked windshield, overspeed, exceeded minima, maintenance discrepancies), and worked long hours, sometimes beyond the allowed limits and during unsuitable conditions (flight with no heat on board when the temperature was -18°C on the ground). Their salaries were low, and for some there was the added stress of having to pay back their training expenses.

The foregoing indicators, alongside the inadequate training of which the pilots complained, because of Mr. Cloutier's concern to save time and money, and the non-compliance with Myrand Aviation's standard procedures, are an "ideal" combination that will lead sooner or later to a dangerous act, a fear mentioned by some pilots to justify their departure from Myrand Aviation.

Called by Mr. Audet to comment on the content of the Radex (M-23), Mr. Kessler said that Mr. Cloutier proceeded, from OMOLI, along an inbound track to the Chibougamau airport rather than execute a holding pattern entry from that point. Mr. Kessler illustrated in orange marker on exhibit M-4 the route Mr. Cloutier should have taken according to the instrument approach chart, and in ink on the same exhibit, the one he actually took from that point. According to the witness, Mr. Cloutier, for his transition path, should have made a right outbound turn for one minute (M-26) at less than 10 NM before LÉGER, rather than a left turn outbound from the intersection of the 16 DME arc (M-25 at page 8).

Mr. Kessler said that in a holding pattern, an aircraft must remain in transition airspace away from the aerodrome's approach pattern. This approach segment is defined by an aid or final approach fix and ends at the missed approach point. While conducting his inbound track towards the aerodrome, Mr. Cloutier's aircraft was in Propair's missed approach airspace, an act Mr. Kessler described as reckless. In addition, pilots must themselves ensure their separation in Chibougamau's uncontrolled airspace. The holding pattern should have been flown 1 000 feet above the ascent altitude following a missed approach published in the approach chart (3 200 feet). He referred to a study he participated in on the hazards of air operations in the Blanc Sablon sector, a sector located in uncontrolled airspace and similar in many ways to the Chibougamau airspace (M-36). Pilots experienced in IFR flight unanimously reported rarely executing a holding pattern at Blanc Sablon, but if required to, they would execute it towards an inbound fix or facility and on the inbound heading while remaining at the last cleared altitude or 1,000 feet above the ascent altitude.

Mr. Kessler said that the speed of the aircraft on final approach towards the Chibougamau aerodrome was much too fast. The dive manoeuvre executed by Mr. Cloutier did not leave the crew much time to incorporate the visual references into the instrument cross-check and make any necessary corrections. Moreover, this manoeuvre is to be avoided in conditions of reduced visibility (M-37). The witness also picked up from Mr. Soucy's testimony that the rate of descent of Myrand Aviation's BE10 was 1 500 feet/minute. According to the approach chart, a rate of descent of 1 800 feet/minute is needed over a distance of one and three quarter miles for a stabilized descent. At his rate of descent, the aircraft touched the runway at a half mile (M-5). At that point, the aircraft should have been in missed approach because a safe landing was compromised.

The cross-examination of Mr. Kessler revealed the following:

  1. If the objective is to land and the captain has twice failed to respond to the co-pilot's remarks, the co-pilot is entitled to touch the controls, apply the brakes and raise the flaps, as Mr. Soucy did.
  2. Mr. Kessler has often flown in the left seat.
  3. Mr. Cloutier acted positively in increasing Mr. Soucy's salary to reward him for his performance.
  4. Mr. Cloutier could use the GPS of his aircraft in VFR mode provided the GPS was TS0 C-129 approved by Transport Canada.
  5. Mr. Kessler acknowledged that Propair also had not called in at CHAPS.
  6. If Propair and Myrand Aviation aircraft did maintain a constant separation of 10 DME, as Mr. Cloutier indicated, it was mostly by chance.

On re-direct, Mr. Kessler said that the law requires the pilot to contact air traffic control services five minutes before beginning his approach. Mr. Cloutier did not give his position in relation to CHAPS before beginning the approach.

Mr. André Cloutier of Myrand Aviation testified and gave his version of the facts regarding the various subjects touched on by the Minister's witnesses.

Pilot Training at Myrand Aviation

Mr. Cloutier told the member that the standard procedures of Myrand Aviation and the company's operations manual were available and accessible in the office library and on board the company's aircraft. He had no reason to discourage his pilots from reading them. The pilots also had access to the computer and to the CARs. According to him, pilots also must assume their responsibility and consult the documentation made available to them.

Mr. Cloutier said he had implemented the procedures for the ground and in-flight training of his co-pilots and to ensure their advancement. He asked Messrs. Wauthoz and Gillet and Ms. Giroux to pay the cost of their training on the C-500 because he had previously paid a co-pilot's training on the Citation 500 to find out later that the co-pilot had deserted Myrand Aviation. In exchange for this arrangement, Mr. Cloutier promised them work for at least one year or a position as captain.

Mr. Cloutier confirmed that Messrs. Soucy and Bréheret had received in-flight training on empty segments, and that Mr. Descormiers had received in-flight training on the C-401 during flights devoted to that purpose, training he said was appreciated. He said he showed his co-pilots how to use the checklists and did "standard briefings" with them. The CVR transcript, in the possession of the Transportation Safety Board of Canada, would show that he did indeed speak with Mr. Soucy before beginning the approach towards Chibougamau. The witness did not agree with the allegation of the co-pilots, Mr. Bréheret in particular, that there was [translation] "no briefing" and that he did not share flight information. According to Mr. Cloutier, these assertions were totally made up: [translation] "we sat down at the table to discuss weather"; he added [translation] "we may have missed a few times". He questioned the disappearance of the training file of Mr. Soucy, who works for his competitor, Aéropro.

Use of the GPS

He confirmed that the GPS on board Myrand Aviation aircraft was approved for VFR use only and that the equipment of the BE10 and the C-500 was RNAV certified. The use of the GPS in flight was an opportunity for the co-pilots to familiarize themselves with this system. On the way from Fleur to Vodix, he said, [translation] "it was good practice for him while I followed the route using the radial". The GPS was not used as the main system but rather as an additional aid. Mr. Cloutier told the member that standard TS0 C-129 was not yet in force. Myrand Aviation was entitled to establish its routes in accordance with its standard procedures.

Overspeed

It is important, in Mr. Cloutier's view, to teach less experienced co-pilots to distinguish between the overspeed alarm and the alarm indicating a stall. That is mainly why the co-pilots were able to hear this alarm during the flight. He did not recall hearing it as often as the witnesses maintained. He made it clear that the overspeed warning device always worked well.

Weight and Balance Forms

To prepare the weight and balance forms, Mr. Cloutier used "standard" weights. He said he left a copy of the form with dispatch before departure and completed the forms in flight. There was no evidence that the forms had been altered, as some pilots suggested. There was a scale at

Myrand Aviation.

Maintenance

Mr. Cloutier said that Myrand Aviation aircraft were well maintained. In 2001, he had two new Pratt & Whitney engines installed on the C-500. As maintenance coordinator, Mr. Cloutier had a corner workshop where he kept common tools such as a pair of pliers, a screwdriver, so he could do elementary work. He said he had never dismantled anything. He had opened a cowling using fasteners, but denied having installed an anti-icing device. He did not deny having some aircraft parts in his corner workshop. Checking the fuses under the floor of an aircraft and removing components secured by a rack from one plane to another qualify as elementary work. The door of the C-500 had never closed better than after he repaired it.

Cockpit Resource Management ()

Mr. Cloutier alleged that his management of Myrand Aviation crews was good. The pilots who worked at Myrand Aviation were generally young and inexperienced in instrument flying. He gave them all a chance and had them fly a lot. He is sorry today seeing them testify against him and against the company that had employed them. Because of their inexperience, they were afraid in some situations, but Mr. Cloutier believed he always had the situation under control.

Mr. Cloutier said it was wrong to assert, as Transport Canada did, that Myrand Aviation put its own interests before aviation safety. Mr. Cloutier wondered what had prompted Mr. Gillet to agree to take the Transport Canada exams to qualify as operations manager of Myrand Aviation if he was so afraid for his safety, and what had prompted Ms. Giroux to invite her father to go for a ride in one of Myrand Aviation's aircraft.

Safety of Myrand Aviation's Operations

The witness maintained that he had always been responsible. He had previously cancelled flights as a safety precaution and remained open to suggestions from Transport Canada. He admitted there was always room for improvement but felt that Transport Canada was ruining his company in wanting to ensure safety as it did. He retorted that had Mr. Pilon not taken the elevator with Mr. Paré, he would never have known about Mr. Gillet's letter. Mr. Faucher's visit took place soon after the Chibougamau accident which had upset his son Pierre. As for the Radex, Mr. Cloutier said it had been altered because it did not contain certain conversations he had and Mr. Soucy's voice could be heard instead of his own during conversations he was certain were his own.

The cross-examination of Mr. Cloutier revealed the following facts:

  1. The cable holding the door of the C-401 is not a cable recommended by the manufacturer. Mr. Cloutier admitted he should have replaced it with a cable that met Cessna requirements.
  2. According to Mr. Cloutier, it is sometimes complicated for the pilot to convert, during the flight, the speed shown in miles per hour in the panel into knots. That is why he ordered a panel showing speeds in both miles per hour and knots.
  3. At Transport Canada's request, on July 26, 2002, Myrand Aviation added the procedures to be followed in abnormal and emergency situations in the event of a pilot's sudden incapacity to its standard procedures manual, a bilateral communication rule, bomb threats and hijacking, aborted take-offs and chance encounters in flight with moderate or heavy icing conditions (M-40).
  4. The C-500 was voluntarily turned over to Citi Capital Ltd. on November 12, 2004, and the C-401, parked at the airport in the city of Québec, was subject to a lien in favour of Québec Maintenance.
  5. Mr. Cloutier's simulator and in-flight test reports, filed in a bundle as exhibit M-42 and covering the period 1998 to 2003, show that he worked alone and did not follow standard procedures. Mr. Cloutier called this remark ludicrous. He felt he had conducted very good flights and had covered the necessary corrective action under the heading "s/b" for "satisfactory with briefing". There were no failing grades.
  6. Mr. Cloutier said that the defects found on the C-401 during an inspection dated February 1, 2005 (M-43) had been properly corrected.
  7. Mr. Cloutier did not know why it took Transport Canada two years to approve changes made by his son Pierre, then operations manager of Myrand Aviation. He had stopped amending the operations manual of Myrand Aviation when he received the amended certificate, filed by the Minister as exhibit M-29.
  8. Mr. Cloutier said there was no need to "panic" about the overspeed alarm: [translation] "it's not a mortal sin if it goes off once or twice a month". Mr. Cloutier let the co-pilots hear the overspeed alarm so they could distinguish it from the stall alarm. It was a form of training.
  9. The speed of the C-500 is 262 knots at altitudes below 14 000 feet. Mr. Cloutier checks it when he has a chance.
  10. Mr. Cloutier said that, when preparing the weight and balance forms, he used the weights approved by Transport Canada. Large baggage were weighed and rounded out to the nearest pound. The nose compartment of the C-500 could take 200 pounds of baggage. The basic empty weight of the C-500 is 6 923 pounds.
  11. Mr. Cloutier said that the weight of the fuel on board can vary depending on the temperature.
  12. Mr. Cloutier transported fuel on a flight from the city of Québec to Gaspé because a NOTAM informed him there was no fuel available in Gaspé. He did not place the gasoline drums in the cabin but rather in the closed lockers located on either side of the wing near the engine. He believed he had done nothing considered to be dangerous and that his conduct was dictated by being practical. He could have stopped over at Mont-Joli, for example, but the clients would have had to absorb the costs.
  13. Mr. Cloutier again stated that the BE10 and the C-500 of Myrand Aviation were equipped for RNAV operations, but the C-401 was not.

MINISTER'S ARGUMENTS

Mr. Audet maintains that the Minister has proven, on the balance of probabilities, that Myrand Aviation no longer meets the qualifications necessary for issuance of its operator certificate since it no longer has an operations manager and chief pilot pursuant to subparagraphs 703.7(2)(b)(i) and (ii) of the CARs.

The Minister's representative has shown that Mr. Cloutier, who held these last two positions at Myrand Aviation, failed to ensure the safety of the company's flight operations and their compliance with the company's regulations, existing standards and policies.

In effect, the Minister has shown that:

Mr. Cloutier failed to implement the necessary ground and in-flight training programs for the company's flight crews.

Mr. Cloutier did not call out the checklist during any phase of a flight, or conduct the usual briefings with his crew, contrary to the provisions of the company's operations manual.

Mr. Cloutier breached the standards governing the flight plan and routes in uncontrolled airspace in allowing the use of the GPS on board the company's aircraft in RNPC airspace, even though the equipment of his aircraft was not RNAV certified.

Mr. Cloutier breached the standards governing weight and balance control and the provisions respecting the securing and stowing of carry-on baggage.

Mr. Cloutier breached the standards applicable to scheduling of the crew.

Mr. Cloutier failed to apply the CRM concept, which favours communication between flight crew members.

Mr. Cloutier exceeded the limits of the company's aircraft (overspeed), breached the minimum approach standards and contravened the Transportation of Dangerous Goods Act.

ANDRÉ CLOUTIER'S ARGUMENTS

Mr. Cloutier maintains that Transport Canada, through the intervention of Messrs. Pilon and Faucher, decided to ruin Myrand Aviation by zealously invoking the argument of safety. Transport Canada prevented him from having access to the data from the CVR for the flight of April 14, 2004, which would have allowed him to defend himself. Mr. Paré of Transport Canada [translation] "altered" the Radex data. Mr. Audet [translation] "directed" the testimonies of the co-pilots so that they corroborated each other. It should be remembered that Transport Canada, which represents no less than the [translation] "Lord," was able to intimidate them by asking them to testify against Myrand Aviation. The co-pilots who testified never felt [translation] "like sandbags," that being an invention Transport Canada dictated to them.

Concerning the incident of April 14, 2004, Mr. Cloutier insists there was always at least 1 000 feet of altitude separating him from Propair's BE10. While in his holding pattern, Mr. Cloutier asked Propair two times for its position. He decided to conduct his approach for runway 5 only once Propair had pulled up to an altitude of 3 000 feet.

Mr. Cloutier says that competition in the air transport industry is very stiff in the city of Québec. In his view, Transport Canada favours certain companies such as Aéropro over Myrand Aviation. Mr. Paillard of Aéropro, who attended Myrand Aviation's hearing, had [translation] "selected" Mr. Soucy to work for them.

Mr. Cloutier acknowledges there is always room for improvement but that in the circumstances, Transport Canada went too far in suspending Myrand Aviation's operator certificate.

DECISION

It is important to put the events back in their context. After his son Pierre resigned as operations manager of Myrand Aviation, Mr. Cloutier was obliged to propose a qualified candidate to assume this position. Transport Canada rejected in turn each candidate proposed by Mr. Cloutier, including himself because of his many duties at Myrand Aviation. Given the difficulty of recruiting an acceptable candidate, Mr. Cloutier reapplied for the position of operations manager of his company, this time proposing to Transport Canada that he operate only one aircraft.

On July 15, 2004, Mr. Faucher of Transport Canada announced to Mr. Cloutier that his qualifications, past performance and experience were deemed satisfactory for him to hold this position within the parameters he had proposed (operation of only one aircraft at a time, M-11), and Transport Canada issued the appropriate amendments to Myrand Aviation's certificate (M-30).

On May 11, 2005, not quite 10 months later, Mr. Pilon revoked Mr. Cloutier's appointment to the positions of operations manager and chief pilot of Myrand Aviation and asked him to submit the names of the full-time management personnel who would be carrying out the duties of these positions. Mr. Pilon's decision was based, notably, on a letter of March 29, 2005, signed and sent to Transport Canada by Mr. Gillet. This letter referred to irregularities in Myrand Aviation's operations between June 2003 and 2004. It was also based on the data viewed in the Radex copy of the approach conducted by Mr. Cloutier towards Chibougamau airport on April 19, 2004, sent to him by Mr. Paré of Transport Canada. Transport Canada was aware of this incident (M-9).

Mr. Pilon said he took the comments Mr. Gillet made in his letter very seriously. He acknowledged that this letter had triggered his decision to remove Mr. Cloutier from the positions of operations manager and chief pilot of Myrand Aviation.

On May 17, 2005, the Minister again suspended Myrand Aviation's air operator certificate on the grounds that the company no longer met the qualifications necessary for issuance of its operator certificate. In his opinion, Myrand Aviation no longer had a qualified operations manager or chief pilot because of their past performance and failure to fulfil their responsibilities. Mr. Pilon said on cross-examination that he [translation] "may even have made this decision a bit late".

We are surprised that the Minister, who was familiar with the aspects of the "past performance and evolution" of Myrand Aviation since 1999 (M-9) and who had the personnel and resources to delve into the events that occurred at Myrand Aviation, nevertheless took some 10 months to reverse its position on this matter. This reversal alleged by Mr. Cloutier is not, however, a defence he can validly invoke against the Minister, even though in our opinion the Minister should have been more diligent. The provisions of the Aeronautics Act and the CARs do not preclude the Minister from re-evaluating and substantiating information that is likely to compromise the operational safety of an air service and the public at any time. The Minister is in fact vested with this mission and ensuring control and regulation of aeronautics.

Let us now look at the respective responsibilities of the operations manager and the chief pilot of aircraft operations.

Operations Manager

723.07 Issuance or Amendment of Air Operator Certificate

. . .

(2) Qualifications and Responsibilities of Operational Personnel

(a) Operations Manager

. . .

(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 aeroplanes 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.

Chief Pilot

723.07 Issuance or Amendment of Air Operator Certificate

. . .

(2) Qualifications and Responsibilities of Operational Personnel

. . .

(b) Chief Pilot

. . .

(ii) Responsibilitiess

The Chief Pilot is responsible for the professional standards of the flight crews under his authority, and in particular:

(A) developing standard operating procedures;

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

(C) issuing directives and notices to the flight crews as required;

(D) the actioning and distribution of accident, incident, and other occurrence reports;

(E) the processing and actioning of any crew reports;

(F) the supervision of flight crew; and

(G) assuming any responsibilities delegated by the Operations Manager.

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 Chief Pilot qualifications may be demonstrated to the air operator rather than the Minister.

The primary responsibility of the operations manager is first and foremost to ensure safe flight operations. This is front and centre of the responsibilities listed in subparagraph 723.07(2)(b)(ii) of the CASS. The chief pilot is mainly responsible for the professional standards of the flight crews. These two positions ensure overall compliance with the regulations and standards issued and with the company's policy aimed at providing safe services.

One aspect the operations manager oversees is the training of flight crews, which comes under the authority of the chief pilot.

Ground Training

Myrand Aviation's operations manual states in chapter 5 (M-35) that the company will appoint a qualified individual to instruct flight crews, organize courses and the necessary material,[1] provide the trainee with the training manuals for the subjects taught,[2] and make course material adapted to the training program available.[3] Twelve and 25 hours of initial ground training are required for the C-401 and the BE10 respectively.[4]

Mr. Descormiers, who worked for Myrand Aviation from December 2004 to May 2005, testified that he received no training on the standard procedures of the C-401 and no ground training. He studied everything on his own. This does not seem to be a special case but rather common practice. The testimonies of the pilots who worked for Myrand Aviation speak volumes in this regard. Messrs. Soucy, Bréheret, Wauthoz and Gillet all said they did their own initial ground training on one or more aircraft types as applicable. They used the tools they found on site, some consulted the company's standard procedures, the operations manual, the aircraft equipment lists or audio cassettes. Messrs. Soucy and Wauthoz used the term [translation] "self-study".

On the whole, the testimonial evidence shows that the initial ground training provided by the company was deficient, if not almost nonexistent, especially for the C-401 and BE10. The pilots were not satisfied with their initial ground training, with the exception of those who had been called on to fly the C-500 as pilot-in-command (Ms. Giroux) or co-pilot (Messrs. Wauthoz and Gillet) and who paid the costs of their training on the Citation, either at Dallas-Fort Worth or with Flight Safety, in Paris, following an agreement with Mr. Cloutier.

The fact that the C-401 and BE10 are aircraft flown by one person may have something to do with why Myrand Aviation did not see fit to include the initial ground training program in its operations manual or the fact that Mr. Cloutier openly admitted to Mr. Descormiers that he needed a co-pilot only to meet the requirements of his insurers.

Each new flight crew member of Myrand Aviation was entitled to technical ground training covering, notably, the operation and parameters of the aircraft's on-board systems, the operation of all equipment, the standard and emergency procedures for each aircraft, the aircraft's performances and limits and the weight and balance control system procedures, as well as a detailed training program on each component of the aircraft.[5] Each candidate's written exam was to be corrected in its entirety with the candidate.[6]

The pilots' testimonies showed that Mr. Cloutier reviewed only a very small portion of the program content. He was too busy, in the view of some, to review and correct their written exam or reluctant to discuss it with them. Mr. Cloutier seemed more interested in having the candidate take responsibility for his own training with a minimum of supervision. It is essential that candidates have a good grasp of the ground training program before they begin their in-flight training. Self-learning is not the method of training stipulated in Myrand Aviation's operations manual. Mr. Cloutier failed to provide the detailed ground training and necessary support the new pilots were entitled to expect. He continued this modus operandi even after Transport Canada re-confirmed Mr. Cloutier as operations manager of Myrand Aviation in July 2004.

Initial In-flight Training

Chapter 5 of Myrand Aviation's operations manual prescribes four hours of initial in-flight training on the C-401[7] and five hours of training on board the aircraft to train a captain or co-pilot on the BE10.[8] The same manual also states that Myrand Aviation will organize training flights for all crew members on their aircraft type. The flight will include training in the coordination of crew members and in all kinds of situations: engine failure, malfunction, abnormal situation, fire, airframe concerns, etc.[9]

Mr. Descormiers said he was satisfied with his initial in-flight training on the C-401, although he maintained that the 4.8 hours shown in his training file does not reflect the actual hours of his initial training on this aircraft type. His training nevertheless took place on flights devoted to training, unlike that of the witnesses Soucy, Wauthoz, Bréheret and Gillet, who said they received their initial in-flight training as co-pilot on the BE10 on empty segments during company commercial flights, training they all described as incomplete, especially with regard to the simulation of emergency situations. Mr. Bréheret also said he was satisfied with his in-flight training, being assigned to the position of pilot-in-command. Ms. Giroux served as flight crew on the C-401 after just 1.9 hours of training during a flight made specifically for training purposes.

With the exception of pilots Wauthoz, Giroux and Gillet, who paid for and received their initial ground and in-flight training on the C-500 and who were fully trained at credible, specialized organizations, we note once again, as with the ground training, that Myrand Aviation did not always provide the in-flight training program on the BE10 and C-401 prescribed in the operations manual to the pilots assigned to act as second-in-command. The company quickly "confined" them to the rather ungratifying tasks of radio communications, raising and lowering the landing gear, loading baggage or cleaning the aircraft, since it was actually Mr. Cloutier's private intention to fly his aircraft solo. Mr. Cloutier could very well have flown solo under specification 011 of Myrand Aviation's air operator certificate had it not been for his insurance which required a second-in-command. This particular situation would explain the reason that prompted him to evade the training program requirements described in his company's operations manual. It became unnecessary to invest time and money in this activity which seemed to have no short-term pay-off for Myrand Aviation.

In-flight training must take place on a separate flight wholly devoted to this purpose during which, as Mr. Faucher told us, the trainer prepares scenarios and then comments on their execution with the pilot. The provision of in-flight training during empty segments of a commercial flight may be less costly for the company, but it considerably limits the types of exercises that can be practised. Myrand Aviation did not offer in-flight training consistent with the standards set out in its operations manual to its new flight crew members.

Mr. Cloutier did not refute the co-pilots' comments about their in-flight training. While pilots must take the success of their training into their own hands, the company also has an essential role to play. It must lend its support and assume its role as trainer in accordance with the standards it has undertaken to meet in its operations manual.

Use of Checklists

Subsection 723.98(10) of the CASS stipulates that the air operator shall train its flight crew in the use of checklists, including interior and exterior pre-flight checks. Myrand Aviation's operations manual effectively makes provision for this in its in-flight training program.[10] Every aircraft manufacturer also publishes a detailed list of checks to be made at various stages of a flight.[11]

The pilots who testified all said, without exception, that the checklist was seldom or never used at Myrand Aviation. Mr. Cloutier suggested they [translation] "run through it in their head, silently or to themselves," alleging he knew it by heart when they suggested running through it. Mr. Gillet added that because of this approach he had twice forgotten to adjust the flaps before take-off. It prompted three witnesses to say there were serious deficiencies in communication between crew members in the cockpit. Mr. Bréheret also said that Captain Drolet had such difficulty communicating that he had nicknamed him [translation] "the autistic one".

The checklist is a simple method put in place to ensure that each flight crew member redundantly takes note of each element on the list. One crew member calls out each of the appropriate elements and his counterpart responds to each out loud. The latter's vocal response confirms a status or value of the elements on the list. Strictly speaking, this list could be called the cross-check list. Running through this list silently and to oneself defeats the very principle of the list, whose vital purpose is to do a cross-check out loud.

The pilots all unanimously testified that Mr. Cloutier did not use the list as required, that is, so as to generate this redundancy. This approach leaves too much room for error and unduly risks causing or perpetuating unsafe situations. Moreover, the absence of an intercom on the BE10, referred to by Mr. Soucy as an [translation] "irritant" to communication in the cockpit, and which Mr. Cloutier has become used to, is a further unnecessary obstacle between flight crew members that is indicative of communication weaknesses at Myrand Aviation.

Mr. André Cloutier did not refute the above allegations. Mr. Cloutier is a captain who works alone, as reported by the witnesses Gillet and Wauthoz. He also refuses to work together with his crew members in a very basic exercise. In stating that he knew the list [translation] "by heart," he not only showed himself to be a loner on board, but dismissed this exercise as interfering with the operation of his aircraft, as though it were a waste of time. This kind of attitude can come from overconfidence that a pilot-in-command does not need to show, much less encourage. Although the pilots went along with the "non-use of the list" on board or its "silent use," they probably did not do so lightheartedly, having studied the merits of the checklist during their most recent pilot training. This unsatisfactory practice, which Mr. Cloutier does not dispute, went on for a number of years and became a pattern firmly established in his habits.

The Minister's evidence shows, on the balance of probabilities, that Mr. Cloutier failed to call out the checklist and to conduct proper briefings, the whole as prescribed by Myrand Aviation's operations manual.

Use of the GPS on Myrand Aviation Aircraft

Mr. Cloutier argued that the equipment of Myrand Aviation's BE10 and C-500 aircraft was RNAV certified (for surface navigation) and that he was entitled to use the GPS installed on these aircraft to obtain direct routes and conduct IFR instrument approaches.

RNAV certification allows the air operator to use direct routes in a larger airspace (required RNPC airspace) without having to fly over using a VOR-type navigational aid, for example. Using these more direct and faster routes allows the operator to save on fuel. It also facilitates pilot-controller communications because in RNPC airspace, the controller can use reduced separation criteria (A.I.P., M-18). The letter "R" under the "equipment" heading of the flight plan tells the controller that the aircraft has RNAV certification and the equipment prescribed for routes in RNPC airspace (M-14 and M-19).

Subsection 723.08(1) of the CASS respecting the navigation system (subparagraph 703.08(g)(i) of the CARs) stipulates that the GPS must meet specific minimum requirements and that the air operator cannot use the letter "R" authorizing him to fly RNAV routes in RNPC airspace unless the aircraft is equipped with at least two independent navigation systems, one of which must be a long-range surface navigation system which the flight crews have been trained to use.[12] GPS avionics must meet standard TSO C-129 or the equivalent and its installation must be approved by Transport Canada (M-33).

The air operator must dispense an approved qualification and training program to its crew members so that they are able to use an RNAV system in IFR flight. Subsection 723.98(21) of the CASS sets out in great detail that both ground and in-flight training must be provided. The air operator must also provide a qualification and training program for its flight crews who conduct instrument approach procedures based solely on GPS navigational data.[13] According to Mr. Faucher, Myrand Aviation had not submitted to Transport Canada such training programs for its flight crews. The area of geographical coverage of the system's database must be compatible with the nature of the company's operations and be up-to-date.[14] GPS tasks must not consume the attention of the pilot not flying during critical phases of the flight.[15]

An operations specification issued pursuant to section 703.08 of the CARs and section 723.08 of the CASS must appear on the air operator certificate authorizing the company's aircraft to operate in performance capability airspace, and another must authorize the aircraft to conduct instrument approaches in IFR using GPS. As the witness Faucher pointed out, neither Myrand Aviation's operator certificate nor the amendments state such specifications (M-31).

Although Mr. Descormiers had no GPS training, Mr. Cloutier often used this simple method of flying when with him. As Mr. Descormiers put it, [translation] "we didn't worry about it". Why navigate using conventional short-range aids when one can be assigned a direct, faster route? Mr. Cloutier even mentioned to Mr. Descormiers that Transport Canada did not agree with that approach.

Messrs. Soucy, Bréheret, Wauthoz, Descormiers and Gillet all maintained that the GPS installed in Myrand Aviation's BE10, C-401 and C-500 "approved for VFR use only" were used to justify being assigned direct routes by air traffic controllers (Fleur-Bonaventure, Albany-New York City, Fleur-Vodix, Fleur-Blanc Sablon). The same GPS were also used for instrument approaches. On looking at a few flight plans filed by Myrand Aviation, one can easily see the letter "R" in the "equipment" box, indicating that the equipment on these aircraft was certified for obtaining such routes (M-14 and M-19).

According to Mr. Bréheret, the GPS database was not up-to-date. Mr. Soucy said the GPS was used when crew members did not obtain the VOR signal and to conduct IFR approaches. Mr. Soucy then entered the data manually in the GPS. A special notice dated January 23, 2003, from the CAP (M-33) warned pilots of the danger of creating approaches by entering waypoints in the database without checking the coordinates of these points against the data on the charts. The GPS database must primarily allow the pilot to retrieve approaches, not create them as Mr. Soucy had done because this procedure took up too much of the co-pilot's attention during the descent and landing phase.

Even though Myrand Aviation aircraft are equipped with GPS and short-range navigational aids, as Mr. Cloutier pointed out, this does not mean that the equipment can comply with the regulations governing navigation. First of all, the long-range navigational system on each Myrand Aviation aircraft is restricted to VFR use, as neither the GPS nor its installation has been approved by Transport Canada for the use intended by Myrand Aviation. Secondly, neither Myrand Aviation's operator certificate nor the amendments authorize the company to operate its aircraft in RNPC airspace or to use the GPS to conduct instrument approaches in IFR (M-33). If Myrand Aviation's operator certificate does not authorize its aircraft to be operated in RNPC airspace, then one must conclude that the aircraft do not have the RNAV equipment needed for this purpose.

Mr. Cloutier's assertion that the equipment of Myrand Aviation's BE10 and C-500 was RNAV certified is unfounded. Moreover, Mr. Cloutier used the GPS on the C-401 as well as on the BE10 and C-500, even though he said the equipment on the C-401 was not RNAV certified. While he maintained that he did not use the GPS as the main aid but rather as a back-up, Mr. Descormiers, like the other pilots, said that Mr. Cloutier often used it to facilitate navigation, mainly when flying at altitudes that did not permit him to rely on short-range navigational aids such as the VOR/ADF. He also used it to obtain direct routes, save time, money and fuel, and to satisfy his clients.

The Minister's evidence shows on the balance of probabilities that Myrand Aviation was not authorized to use the GPS of its aircraft as it did.

Weight and Balance Control

Section 703.37 of the CARs sets out the necessary requirements regarding weight and balance control for commercial air services. It states that an air operator must specify a weight and balance system in its operations manual and that the captain must ensure compliance with the specified limits. The flight must not begin until the captain has calculated the weight and balance. The section reads as follows:

Weight and Balance Control

703.37 (1) No person shall operate an aircraft unless, during every phase of the flight, the load restrictions, weight and centre of gravity of the aircraft conform to the limitations specified in the aircraft flight manual.

(2) An air operator shall have a weight and balance system that meets the Commercial Air Service Standards.

(3) An air operator shall specify in its company operations manual its weight and balance system and instructions to employees regarding the preparation and accuracy of weight and balance forms.

Section 723.37 of the CASS stipulates the weight and balance system required under section 703.37 of the CARs. The weight of the aircraft is calculated based on the actual weight of cargo, the actual or standard specific gravity of the fuel, and the actual weight of passengers or approved standard or survey weights of stowed baggage in the lower cargo compartment.

Like his colleagues before him, Mr. Descormiers indicated being confronted with the problem of overloaded Myrand Aviation aircraft. He admitted that he had never used the scale. Messrs. Soucy, Bréheret and Gillet indicated that the weight and balance forms, normally completed on the ground before take-off, had been completed a number of times during the flight while it was quiet or during the initial climb. Messrs. Bréheret and Wauthoz had never seen anyone use the scale to weigh passengers or baggage. According to Mr. Wauthoz, Mr. Cloutier told him that he had weighed the passengers and baggage, and according to Mr. Bréheret [translation] "it was done by guesswork". Mr. Gillet used the scale only three times for baggage. Mr. Gillet asserted that it was rare for Myrand Aviation aircraft to take off and not be overloaded. On a flight to Saskatoon, the overload had reduced the aeroplane's climb performances, forcing Mr. Cloutier to increase his lift-off speed by 10 knots.

According to Ms. Giroux, the aircraft was always filled to capacity with fuel, even with a large number of passengers or heavy baggage on board. To bring the aircraft's weight to within the specified limits, the witnesses all maintained that the weight of the fuel had to be underestimated [translation] "on paper". The forms therefore did not reflect reality.

The weight of the aircraft affects the lift-off speed and the length of runway needed. Operating an aircraft with higher than the maximum weight allowed also reduces climb performances and may compromise the stability of the aircraft. It is therefore important to do the weight and balance control before the flight. In his defence, Mr. Cloutier said that he left a copy of the weight and balance forms with the company before departure, which Mr. Bréheret said he was not aware of. He explained that he used approved standard weights for passengers and stressed that the Minister had not proven that the forms had been altered.

The testimonies of the pilots have satisfied us, on the balance of probabilities, that Myrand Aviation did not do weight and balance controls in accordance with the regulations, nor did it file these forms duly completed at the appropriate time, that is, before the start of each flight. The evidence shows that over the years, Myrand Aviation has not corrected its ways in this regard.

Maintenance of Myrand Aviation Aircraft

The CARs specify two categories of work: maintenance and elementary work. Maintenance is performed by an AME licence holder or by someone working for an AMO. They must be subject to a maintenance release. Elementary work does not need to be performed by qualified technical personnel and is not subject to a maintenance release. The individuals who perform maintenance or elementary work must follow the manufacturer's recommendations or equivalent techniques.[16]

Appendix A of section 625 of the CASS provides an exhaustive list of what qualifies as elementary work. If a task is not on the list, it means that it is not elementary and must therefore be performed by qualified personnel and is subject to a maintenance release.

Section 605.94 of the CARs requires any task designated as elementary work to be recorded in the aircraft journey log.

All pilots stated that Mr. Cloutier performed various work on Myrand Aviation aircraft. Mr. Descormiers maintained that Mr. Cloutier replaced the cables holding the main door of the C-401 with cables from Canadian Tire instead of using the cables specified by the manufacturer. Mr. Cloutier did not deny it, explaining that the cables he had used were more effective than those of Cessna. Mr. Wauthoz said that [translation] "as soon as something broke, he [Mr. Cloutier] tried to repair it himself; if he was unable to, he had it done by an approved maintenance organization". According to Messrs. Bréheret, Descormiers and Gillet, Mr. Cloutier wanted to save money by trying to see if he could fix the situation himself first. Mr. Bréheret said that Mr. Cloutier seemed to [translation] "do a fair number of things" on his aircraft and that concerned him. Ms. Giroux was also concerned and told Mr. Cloutier he was doing work that should be carried out by AMEs.

The witnesses reported that Mr. Cloutier did the following work on Myrand Aviation aircraft:

  • opened the nose section of the aircraft to replace a part (faulty diode) of the autopilot system;
  • opened the engine cowling to instal an anti-icing device on the propeller of the C-401;
  • opened the left engine cowling of the aircraft to work on the sensors;
  • connected a failing (battery-powered) GPS to the aircraft power;
  • repaired the door mechanism of the C-500 with a bathroom plumbing fitting purchased at the hardware store;
  • tested and changed fuses under the floor of the aircraft; and
  • switched parts (ADFs) from one aircraft to another.

Also, Ms. Cloutier sewed the netting for securing baggage on the C-500 using her sewing machine.

The exhibit filed as M-34 shows that Mr. Cloutier sprayed contact cleaner on the rotary switch and cannon plug of the instrument panel.

Messrs. Soucy and Wauthoz stated that Mr. Cloutier did not record the work he did in the aircraft journey log as prescribed by the regulations.

We might point out first of all that Mr. Cloutier does not hold an AME licence and no AMO certificate has been issued to Myrand Aviation (M-2). Mr. Cloutier is therefore prohibited from performing maintenance other than elementary work. Moreover, on closely reviewing the list of elementary work in section 625 of the CASS and the work mentioned by the witnesses, we can see that much of the work does not appear on the exhaustive list in Appendix A and should not have been performed by Mr. Cloutier.

Thus, even allowing that Mr. Cloutier did not install an anti-icing device on the propeller of the C-401, working on the sensors of an aircraft engine, replacing a part of an autopilot system, connecting a GPS to the power of the aircraft and repairing an aircraft door mechanism are jobs Mr. Cloutier is not qualified to perform. Replacing a fuse provided at item 17 of Appendix A, and installing and replacing avionics (switching ADFs from one aircraft to another) provided at item 18, would be elementary work provided the avionics was mounted on racks or designed for quick replacement and required no dismantling. In addition, this same elementary work should have been recorded in the journey logs of the aircraft in question, which does not appear to be the case according to Messrs. Soucy and Wauthoz. We doubt very much that repairing the door mechanism of the C-500 with a bathroom plumbing fitting meets the manufacturer's requirements.

The evidence has shown that the maintenance irregularities at Myrand Aviation are not recent, from which we may affirm that the company does not comply with the requirements of the air regulations. Mr. Cloutier, as operations manager of Myrand Aviation and the main one responsible for the safety of the company's air operations, should have known that he had a duty to have maintenance repairs done by AMEs or an AMO. In attempting to repair his aircraft himself, Mr. Cloutier put saving money before the safety of his passengers and flight crews. Moreover, co-pilots Giroux and Bréheret left their jobs at Myrand Aviation because they were not confident with the aircraft maintenance.

Cockpit Resource Management (CRM)

Mr. Kessler prepared an interesting presentation on CRM and its merits. We can only support the need to effectively manage interactions between crew members. Good resource management leads to good communication, respect for procedures and company policies and ensures good decision-making.

Mr. Descormiers and his colleagues pointed out in their testimony the weaknesses in the area of CRM at Myrand Aviation. First, the pilots were virtually kept in the dark about flight details; second, Mr. Cloutier did not favour running through the checklists out loud with a response from the other crew member, or during pre-take-off, pre-descent or pre-approach briefings. Even during these important phases of the flight, the co-pilots remained in the dark as to the intentions of either Mr. Cloutier or Mr. Drolet. The latter, nicknamed [translation] "the autistic one," seemed to want to limit dialogue in the cockpit at all costs, according to Mr. Bréheret.

Keeping the other flight crew member in the dark about important information can cause that crew member to respond to a situation differently than his captain, since he does not have all the information the captain has. The failure to share information undoubtedly contributed to the missed landing on runway 5 at the Chibougamau airport.

Several pilots said there was no teamwork in the cockpit at Myrand Aviation, that Mr. Cloutier had difficulty taking suggestions from his co-pilots. According to the culture at Myrand Aviation, Mr. Cloutier took control of everything; the co-pilots had no say. Mr. Descormiers even said he was virtually [translation] "indebted" to him. This lack of communication must have weighed heavily on the co-pilots, who all appeared to be very articulate individuals, respectful of the rules, fully cooperative and concerned about the safety of Myrand Aviation's operations and for their own safety. We appreciated their honesty and the clarity of their comments made without vengeance against their former employer. Mr. Cloutier even said that some of them were good pilots.

Unlike Mr. Cloutier, we do not believe that sound CRM consists of sitting down with the co-pilot from time to time to discuss the weather, having him calculate speeds or even giving him a salary increase. In our opinion, and the testimony bears this out, Mr. Cloutier worked alone most of the time. He had probably developed a routine of flying solo on the BE10 and C-401 before his insurers required him to fly the aircraft with a second-in-command, he had not, however, changed his way of doing things. He kept the upper hand over the organization of flights and their conduct, relegating his co-pilots to tedious, rather ungratifying tasks that were at times in breach of the rules, at times dangerous. Mr. Gillet said [translation] "I was crazy to fly with you", and Mr. Wauthoz argued that Mr. Cloutier showed no respect for his co-pilots in treating them as he did.

Reckless Operation

A number of details were brought to our attention about the approach conducted by Mr. Cloutier on April 19, 2004 towards Chibougamau. In closely studying documents M-22 to M-25 filed in evidence, we can affirm that Mr. Cloutier's holding pattern path executed was not the one he called in, that is, an inbound track from OMOLI. The track was in fact outbound from OMOLI, i.e., between this last point and LÉGER, situated at 3.4 DME from Propair's missed approach. Propair, which had priority, therefore assumed that Myrand Aviation's BE10 was where it had said it was. When Propair called in on final for runway 23, Mr. Cloutier advised that he was three miles heading west for OMOLI (he was therefore clearly outbound from OMOLI) and once past this point, he would make an NDB DME approach for runway 5. About four minutes later, Propair, having missed its approach for runway 23, called in that it was at 3 000 feet climbing to 3 200 feet. Myrand Aviation's BE10 was then at 2 000 feet near LÉGER, with 1 000 feet between the two aircraft in Propair's ascending axis.

The Chibougamau airport is located in uncontrolled airspace. On April 19, 2004, two aircraft wanted to land at Chibougamau. It must be remembered that the weather conditions read as follows in the minute preceding the landing of the Myrand Aviation aircraft: winds 180 degrees at six knots, visibility 1.5 sm in mist and light rain, 300 feet overcast. In giving priority to Propair, Mr. Cloutier had to be sure to provide Propair with all the airspace required to land safely, including for an ascent, if need be. In our opinion, Mr. Cloutier did not provide this airspace to Propair. First of all, he misinformed Propair regarding the path of his holding pattern, which was bringing him closer to the aerodrome and therefore closer to Propair's missed approach airspace rather than away from it. The evidence shows that Myrand Aviation began its approach for runway 5 without knowing Propair's position, and without knowing whether there was a risk of obstructing the safe airspace required for Propair's manoeuvres.

Mr. Cloutier said that he requested Propair's position twice before beginning his approach for runway 23. The evidence filed does not show this and we have no reason to believe that the NICE and NARDS systems are unreliable or that these tapes were altered by Transport Canada to incriminate Myrand Aviation.

While Mr. Paré acknowledged on cross-examination that a separation of 1 000 feet between two IFR aircraft is sufficient, caution dictates that in such circumstances the aircraft that gives priority to another aircraft, moves off momentarily to provide the other with all the room required to conduct its manoeuvres.

Mr. Cloutier debates the wrong issue when he says there was always ample separation between the two aircraft (1 000 feet). The debate is more over the fact that Mr. Cloutier's aircraft obstructed Propair's airspace, airspace that he should instead have protected. In so doing, Mr. Cloutier took an unnecessary risk, notwithstanding the 1 000 feet in distance from Propair. Mr. Cloutier's recklessness is by being in that airspace. This is a major reason why in May 2005, the Minister revoked Myrand Aviation's air operator certificate.

Various other irregularities were presented during the pilots' testimonies in addition to the different points discussed above. One was the failure to record in the journey log the actual flying hours so as to postpone inspections. According to Mr. Wauthoz, Messrs. Cloutier and Drolet shamelessly engaged in this practice, which was not denied by Mr. Cloutier and was corroborated by the testimony of Mr. Bréheret. Messrs. Gillet and Wauthoz also testified about the approaches conducted by Mr. Cloutier below the applicable minima. Mr. Wauthoz said he was paralyzed with fear during a similar experience at Shefferville. Overspeed, poor fuel management, the questionable transport of dangerous goods, baggage blocking the aisle of the aircraft are other elements that emerged from the testimonies and the explanation provided did not convince the member.

On the whole, the Minister's evidence is overwhelming. The testimonies show us that Mr. Cloutier bypasses the safety aspect in favour of less costly, less tedious and above all, faster options, which has proven a rather unprofitable practice. As operations manager and chief pilot of Myrand Aviation, Mr. Cloutier is responsible for ensuring the safety of the company's air operations and he has failed to discharge that responsibility.

The Minister has shown, on the balance of probabilities, that Myrand Aviation no longer meets the qualifications necessary for issuance of its air operator certificate since this commercial air service no longer has a qualified operations manager and chief pilot pursuant to subparagraphs 703.07(2)(b)(i) and (ii) of the CARs.

DECISION

We uphold the Minister's decision to suspend the air operator certificate of Myrand Aviation Inc.

January 11, 2006

Suzanne Racine
Member
Transportation Appeal Tribunal of Canada


[1] Operations manual, Myrand Aviation Inc., at page 5-2, paragraph 5.1.8.

[2] Ibid. at page 5-1, paragraph 5.1.5.

[3] Ibid. at page 5-1, paragraph 5.1.6.

[4] Ibid. at page 5-8, paragraph 5.12.3 (C-401) and at page 5-12 (BE10).

[5] Ibid. at page 5.8, paragraph 5.12.2.

[6] Ibid. at page 5-12.

[7] Ibid. at page 5-26.

[8] Ibid. at page 5-29.

[9] Ibid. at page 5-2, paragraph 5.1.8.

[10] Ibid. at page 5-26, paragraph 5.16.1, 1(b)(c) and 2(b), for the C-401; at page 5-29, paragraph 5.16.2, 1(b)(c) and 2(a)(b), for the BE10.

[11] See exhibit D-4, checklist for the C-500.

[12] Subparagraphs 723.08(2)(a)(i) and (ii) of the CASS.

[13] Subparagraph 723.08(3)(a)(i) of the CASS.

[14] Subparagraph 723.08(3)(b)(i) of the CASS.

[15] Subparagraph 723.08(3)(b)(ii) of the CASS.

[16] Section 571.03 of the CARs.


Appeal decision
Faye H. Smith, Jean-Marc Fortier, Michel Larose


Decision: August 15, 2006

TRANSLATION

The appeal of Myrand Aviation Inc. is dismissed for the reasons provided.

The Tribunal sitting on appeal upholds the Minister of Transport's decision to suspend Myrand Aviation Inc.'s air operator certificate for the reasons set out in the notice of suspension of May 17, 2005, and those given by the member, Suzanne Racine, in her determination with reasons of January 11, 2006.

[1]     An appeal hearing on the above matter was held Thursday, June 29, 2006 at 10:00 a.m., at the Federal Court of Canada in Québec, Quebec.

BACKGROUND OF THE EVENTS

[2]     The appellant, Myrand Aviation Inc. (Myrand Aviation), was the holder of an air operator certificate (AOC) no. 6073 with the certification date of October 10, 1996. This AOC was subsequently amended to reflect changes in the appellant's operations, with the last amendment on March 18, 2005. (See exhibits M-29, M-30 and M-31 filed at the review hearing which led to the decision referred to in ¶ [7] below.)

[3]     On May 17, 2005, the Minister of Transport served Myrand Aviation with a notice of suspension of its AOC pursuant to paragraph 7.1(1)(b) of the Aeronautics Act. The notice of suspension stated that it no longer had a qualified operations manager and chief pilot and, therefore, no longer met the requirements necessary for issuance of AOC no. 6073, as set out in subparagraphs 703.07(2)(b)(i) and (ii) of the Canadian Aviation Regulations (CARs).

[4]     On May 11, 2005, Transport Canada revoked the approval of the appointment of André Cloutier as operations manager and chief pilot because of his past performance and his failure to fulfil his responsibilities, as set out in subparagraphs 723.07(2)(a)(ii) and 723.07(2)(b)(ii) of the Commercial Air Service Standards (Standards).

[5]     The notice of suspension of Myrand Aviation's AOC stipulates that this suspension is effective May 25, 2005, at 11:59 p.m. local time, and remains in effect until the conditions for reinstatement mentioned in the appendix are met and the document reinstated by the Minister.

[6]     The conditions for reinstatement of the AOC state that Myrand Aviation must submit for approval by Transport Canada, Commercial and Business Aviation, one or more qualified and acceptable candidates for the positions of operations manager and chief pilot, pursuant to paragraphs 723.07(2)(a) and (b) of the Standards.

[7]     A review hearing was held before the Transportation Appeal Tribunal of Canada in Québec, Quebec, on August 17, 18, 19 and 31 and on September 1, 2 and 14, 2005. On January 11, 2006, the member, Suzanne Racine, rendered a determination with reasons upholding the Minister's decision to suspend Myrand Aviation's AOC.

[8]     Myrand Aviation appealed this determination of January 11, 2006, by filing a notice of appeal with the Tribunal on February 10, 2006.

GROUND OF APPEAL

[9]     The ground raised by the appellant in its notice of appeal dated February 10, 2006, is the following:

[translation]

As it seems that the decision attaches considerable importance to an incident that occurred on April 19, 2004, in Chibougamau, and the goal is to demonstrate the whole truth, it is imperative that this be reviewed with, as evidence, the original recording from the CVR from C-FMAI for April 19, 2004.

With this original recording, the truth will be apparent and justice can then be restored.

[10]     The Tribunal notes that Myrand Aviation's only ground of appeal is based on the importance of obtaining the original recording from the cockpit voice recorder (CVR) of C-FMAI for April 19, 2004, regarding the incident that occurred in Chibougamau. The notice of appeal does not cite any other grounds based on the determination of January 11, 2006, by the member, Ms. Racine, upholding the Minister's decision to suspend the appellant's AOC.

APPELLANT'S SUBMISSIONS

[11]     Mr. Cloutier, the owner of Myrand Aviation, represented the interests of the company. He submits that Ms. Racine's determination of January 11, 2006 is based substantially on the responsibility attributed to Myrand Aviation for an incident that took place on April 19, 2004, during a landing at the Chibougamau Airport.

[12]     Mr. Cloutier submits that it is essential that the Tribunal obtain and examine the original CVR recording from C-FMAI for April 19, 2004, to set the record straight regarding the incident that took place on April 19, 2004, since it would enable the Tribunal to understand Mr. Cloutier's and André Soucy's actions, as pilot-in-command and co-pilot respectively, in the cockpit of C-FMAI.

[13]     Mr. Cloutier argues that the original CVR recording from C-FMAI would have enabled the Tribunal to see that co-pilot Soucy's actions seriously jeopardized the safe conduct of the flight when he took over control of the aircraft from the pilot-in-command, Mr. Cloutier, as the latter was preparing to abort the landing of C-FMAI in Chibougamau and push the throttle to execute a pull-up.

[14]     According to Mr. Cloutier, the actions of co-pilot Soucy, in taking over control, resulted in a landing that proved to be disastrous and caused C-FMAI to go off the end of the runway, but with no known consequences for the safety of the crew and passengers.

[15]     The Tribunal notes that the appellant did not raise any other ground of appeal nor was any submission made disputing the other reasons provided by the member, Ms. Racine, for upholding the suspension of the appellant's AOC.

[16]     The Tribunal therefore only needs to consider and render a decision on the single ground raised by the appellant, namely the need to obtain the CVR recording from C-FMAI for April 19, 2004, regarding the events that took place in Chibougamau.

RESPONDENT'S SUBMISSIONS

[17]     In response to the appellant's submissions, the respondent argues that it was Mr. Cloutier's responsibility to obtain the CVR recording from C-FMAI for April 19, 2004, and that the member, Ms. Racine, informed Mr. Cloutier of this several times during the hearing that led to the determination of January 11, 2006. According to the respondent, this evidence was available at the time of the review hearing. All Mr. Cloutier had to do was directly request it from the Canadian Transportation Accident Investigation and Safety Board, better known as the Transportation Safety Board (TSB), rather than ask the member, Ms. Racine, to obtain it.

[18]     In support of its submissions regarding the introduction, on appeal, of evidence not available at the review hearing, the respondent cites the following decisions of the Civil Aviation Tribunal and the Transportation Appeal Tribunal of Canada: Fraser v. Canada (Minister of Transport), [2003], appeal decision, TATC file no. P-2502-60; Kokoska v. Canada (Minister of Transport), [1989], appeal decision, CAT file no. P-0053-33, and Lawrence v. Canada (Minister of Transport), [1992], appeal decision, CAT file no. P-0097-04. Reference is made to these decisions in paragraph 14 of the respondent's written arguments submitted to the Tribunal at the hearing of June 29, 2006.

[19]     The respondent argues that the member, Ms. Racine, did not believe Mr. Cloutier's version nor did she find him credible regarding the incident of April 19, 2004, and the original CVR recording from C-FMAI would not add anything to the argument. Moreover, the respondent recalls that the revocation that took place on May 11, 2005, was only partly based on the Chibougamau events and that numerous other irregularities committed by Myrand Aviation and shown during the review hearing should be taken into account.

[20]     The respondent submits that the determination of the member, Ms. Racine, was reasonable in the circumstances and fully supported by the testimonies of six co-pilots who had previously been employed by Myrand Aviation between 2000 and 2005 and by the physical evidence filed at the review hearing.

COMMENTS CONCERNING THE GROUND OF APPEAL

Events of April 19, 2004

[21]     Section 14 of the Transportation Appeal Tribunal of Canada Act reads as follows:

14. An appeal shall be on the merits based on the record of the proceedings before the member from whose determination the appeal is taken, but the appeal panel shall allow oral argument and, if it considers it necessary for the purposes of the appeal, shall hear evidence not previously available.

[22]     The previous decisions of the Tribunal, that are cited by the respondent in paragraph 14 of its written arguments, shed some light on the principle of interpretation to adhere to regarding acceptance, in an appeal proceeding, of evidence not previously available at the review hearing.

[23]     The Tribunal acknowledges that the expression "evidence not previously available" may be given a broad interpretation depending on the circumstances of the case before the Tribunal and provided that such evidence, omitted or unknown when the party in question was originally adducing evidence, subsequently becomes essential to justify the appeal of a review determination. This is the position taken in Lawrence and Kokoska, cited above at ¶ [18].

[24]     Thus, it would not be sufficient for an interested party that wanted to introduce new evidence at an appeal hearing to argue that the evidence in question was difficult to obtain or not easily accessible, or even that, at the first proceeding, it could only be obtained following administrative, or even judicial, procedures.

[25]     The only ground referred to by Mr. Cloutier in his appeal proceeding is to attempt to obtain in evidence, through the Tribunal, the original CVR recording from C-FMAI for April 19, 2004, which he alleges is essential to his case.

[26]     Mr. Cloutier already made an identical request to the member, Ms. Racine, at the hearing on August 31, 2005. She reminded him that it was his responsibility to adduce this evidence and that he could not impose the burden of obtaining this evidence on the Tribunal, the sole basis of the appellant's right of appeal. The appellant therefore cannot succeed in using this strategy.

[27]     The Tribunal further noted from the hearing transcript of August 31, 2005, at page 144, that Mr. Cloutier already contacted a TSB officer and obtained certain information taken from the CVR transcript from C-FMAI for April 19, 2004, notably information regarding Propair's failure to call in on final. This information was submitted at the review hearing and the member, Ms. Racine, examined its relevance.

Recourse under the Canadian Transportation Accident Investigation and Safety Board Act

[28]     The appellant, who is an experienced operator in the field of aviation, knew or should have known the procedure used by the TSB pursuant to the Canadian Transportation Accident Investigation and Safety Board Act (TSB Act), particularly for the incident that occurred in Chibougamau on April 19, 2004.

[29]     The TSB Act contains provisions that strictly prohibit the use of information obtained by the TSB when preparing a report. Moreover, subsection 24(4.4) prohibits the use of representations made to the TSB in any legal, disciplinary or other proceedings.

[30]     The Tribunal also considered the arguments by Transport Canada's representatives at paragraph 21 of their written arguments. According to the respondent, Mr. Cloutier should have asked the TSB for a copy of the CVR recording in question.

[31]     Had the TSB turned down the request, the respondent states that Mr. Cloutier could have consulted section 28 of the TSB Act and filed a motion in the Superior Court of Quebec.

[32]     To support this contention, the respondent cites the Superior Court of Quebec ruling in Propair inc. et al. c. Goodrich Corporation, [2003] J.Q. no 243 at ¶ 6, upheld by the Appeal Court of Quebec in Canadian Transportation Accident Investigation and Safety Board c. Propair inc., [2003] J.Q. no. 2523 at ¶ 11.

[33]     Subsection 28(1) of the TSB Act defines "on-board recording" and subsection 28(2) stipulates that any recording is privileged and cannot be communicated or produced, nor can any evidence relating to it be given, in any legal, disciplinary or other proceedings, except as otherwise provided in this section.

[34]     Subsection 28(6) of the TSB Act, notwithstanding anything in this section, permits a court (or coroner) to examine an on-board recording further to a request for production and discovery, but only in proceedings before the court. Following this examination, the court may order the production and discovery of the recording and impose conditions or restrictions.

[35]     This is the interpretation adopted by the Superior Court of Quebec and the Appeal Court of Quebec in Propair and Canadian Transportation Accident Investigation and Safety Board, cited above in ¶ [32]. In Propair, the requests for production of the CVR recordings were made in the context of six liability actions brought before the Superior Court of Quebec against various defendants.

[36]     After examining the recording and hearing the representations of the parties, the trial judge found, at ¶ [6], that the recording

[translation]

... contains very important evidence that the parties could not obtain from any other source that is as reliable and precise. It is clear that a sound administration of justice requires, at the first review, that such important evidence be provided to the parties involved.

[emphasis added]

[37]     The justification for allowing production of the CVR recording was the need to provide this evidence to the parties involved in these six liability actions brought before the Superior Court of Quebec.

[38]     The Tribunal finds that the exemption remedy allowed under subsection 28(6) of the TSB Act is available only to parties that have earlier brought proceedings before a court, such as a provincial superior court or even the Federal Court of Canada.

[39]     Since the appellant is not involved in any proceeding before such a court, it cannot avail itself of the exemption remedy provided in subsection 28(6) of the TSB Act, contrary to the respondent's contentions.

[40]     If the appellant still wanted to obtain a copy of the CVR recording from C-FMAI for April 19, 2004, despite the TSB's refusal in this regard, it should have applied to a superior court and initiated exemption proceedings to force the TSB to produce the necessary recording and also to order the Tribunal to entertain it.

[41]     The Tribunal could then have admitted into evidence the CVR recording authorized by the superior court seized of the exemption proceedings, subject to any conditions, since this evidence would no longer have been inadmissible under the provisions of subsection 15(2) of the Transportation Appeal Tribunal of Canada Act.

Relevance of the CVR recording from C-FMAI

[42]     Had the CVR recording from C-FMAI been made available, the Tribunal would still have had to determine whether this evidence was previously available as stipulated by section 14 of the Transportation Appeal Tribunal of Canada Act. If it was not, the Tribunal would have had to determine whether this additional evidence was admissible for the appeal.

[43]     The Tribunal is not satisfied that a CVR transcript would substantiate the appellant's allegations in this appeal. In this regard, the Tribunal believes that the findings of the member, Ms. Racine, in her determination of January 11, 2006, regarding Mr. Cloutier's conduct in executing the approach towards Chibougamau on April 19, 2004, are sufficiently reasoned to show the preponderance of the testimonial evidence (including the co-pilot Soucy's testimony) and the documentary evidence (exhibits M-24 and M-25) adduced by Transport Canada as against the allegations of the appellant.

[44]     In the circumstances, the Tribunal believes that the transcript of the CVR recording from C-FMAI for April 19, 2004, would add little that is new to the detailed evidence adduced by Transport Canada about the events of April 19, 2004, in Chibougamau.

Other serious grounds

[45]     In addition, the determination rendered by the member, Ms. Racine, on January 11, 2006, is based on testimonial and documentary evidence, deemed serious, which showed considerable deficiencies on the part of the appellant regarding the ground training of its pilots, initial flight training, the use of checklists, the use of the global positioning system on the appellant's aircraft without the approved qualifications, weight and balance control, maintenance of the appellant's aircraft, and crew resource management.

[46]     The appellant has not appealed each and every piece of evidence (testimonial and documentary) adduced by Transport Canada. Therefore, the Tribunal need not comment further on them.

APPELLANT'S CONDUCT

[47]     The Tribunal also noted that more than a year has passed by since the notice of suspension of the AOC was served (May 17, 2005), pursuant to paragraph 7.1(1)(b) of the Aeronautics Act and the date of the appeal hearing on June 29, 2006.

[48]     In answer to a question from a member of the Tribunal, Mr. Cloutier, the owner of the appellant, confirmed that no meeting had taken place between the appellant and Transport Canada's representatives to discuss conditions that might have allowed the appellant's AOC to be reinstated. He also confirmed that the appellant had not submitted, or even proposed, to Transport Canada any qualified and acceptable candidates for the positions of operations manager and chief pilot, in accordance with paragraphs 723.07(2)(a) and (b) of the Standards.

[49]     The Tribunal is surprised by the appellant's conduct, which has not changed in over 12 months, and wonders what the appellant's true motives are in these proceedings.

[50]     Transport Canada's notice of suspension of the AOC reflects the Department's assessment of the appellant's operating methods, which were found wanting at the review hearing owing to its past performance and its failure to carry out its responsibilities as an air carrier.

[51]     It now falls to the appellant, and is in its interest, to submit to Transport Canada's representatives qualified and acceptable candidates for the positions of operations manager and chief pilot if the appellant wants to regain its privilege to operate its air transport undertaking in accordance with the provisions of the Aeronautics Act and the CARs.

DECISION OF THE TRIBUNAL

[52]     The appeal of Myrand Aviation is dismissed for the reasons provided.

[53]     The Tribunal sitting on appeal upholds the Minister of Transport's decision to suspend Myrand Aviation's AOC for the reasons set out in the notice of suspension of May 17, 2005, and those provided by the member, Ms. Racine, in her determination with reasons rendered on January 11, 2006.

August 15, 2006

Reasons for appeal decision by:

Jean-Marc Fortier, Member

Concurred by:

Faye Smith, Chairperson
Dr. Michel Larose, Member