Decisions

TATC File No. W-3195-41
MoT File No. SAP-5504-56609 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Weber Aviation Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 401.62(b)


Review Determination
Tracy Medve


Decision: May 2, 2006

Weber Aviation Inc. did not contravene paragraph 401.62(b) of the Canadian Aviation Regulations and the Notice of Assessment of Monetary Penalty is therefore dismissed.

A review hearing on this matter was held on Tuesday, March 14, 2006 at the Federal Court of Canada in Edmonton, Alberta at 10:00 hours.

BACKGROUND

The applicant, Weber Aviation Inc. ("WAI") is a fixed wing flight training unit (FTU) which received its operating authority on December 14, 2004. The company is based in Lac La Biche, Alberta. At all relevant times, Mr. Matthew Griffin was the chief flight instructor (CFI) for WAI and Mr. Chris Weber was a WAI owner and Class 4 flight training instructor.

During a post-certification audit of WAI in February 2005, Transport Canada auditors confirmed that Mr. Griffin, who was also employed by Alberta Central Airways Ltd. ("ACAL") as a medevac pilot, had been on duty or flying with ACAL on some occasions when Mr. Weber was conducting flight training for WAI. Mr. Griffin was responsible for supervising Mr. Weber's flights pursuant to paragraph 401.62(b) of the Canadian Aviation Regulations (CARs). Transport Canada concluded that this was, initially, a contravention of CAR 426.11(c)(ii) which requires that:

426.11 Issuance or Amendment of Flight Training Unit Operator Certificate

(1) An applicant shall have:

[...]

(c) a chief flight instructor who:

[...]

(ii) is employed on a full-time basis during flight training operations, and

[...]

A finding form to this effect was issued and a follow-up investigation of this finding resulted in the issuance of the Notice of Assessment of Monetary Penalty dated August 22, 2005. The Notice alleges that pursuant to section 7.7 of the Aeronautics Act a monetary penalty in the amount of $2,500.00 is assessed against the applicant on the following grounds:

Offence #1 – CARs 401.62(b), vicarious liability in accordance with section 8.4(2) of the Aeronautics Act.

On or between the 11th day of February 2005 and the 20th day of February 2005, at or near Lac La Biche, Alberta, being the holder of a Class 4 flight instructors rating, did exercise the privileges accorded by that rating, without being under the supervision of a supervising instructor of the flight training unit, an offence under section 401.62(b) of the Canadian Aviation Regulations, in accordance with section 8.4(2) of the Aeronautics Act.

The applicant requested a review of the decision on September 26, 2005.

THE EVIDENCE

The Minister's first witness, Mr. Mitch Paulhus, is a civil aviation safety inspector with Transport Canada delegated authority to conduct investigations. He had received a copy of a detection notice (Exhibit M-1) prepared by Inspector Suze Detombe alleging a violation by WAI of subparagraph 426.11(1)(c)(ii). Also attached to Exhibit M-1 is a copy of a finding form dated February 24, 2005, also prepared by Inspector Detombe, outlining dates between January 7 and February 20, 2005 where Mr. Griffin was on duty at ACAL while Mr. Weber was conducting flight training. Inspector Paulhus prepared and sent a letter dated May 6, 2005 (Exhibit M-3) to WAI advising of the alleged violation. In the letter WAI was invited but not required to respond to the allegation and informed that a recommendation would be forthcoming after June 15, 2005. Mr. Paulhus testified that the charge was later changed to a violation of CAR 401.62(b) as this more closely reflected the situation that Transport Canada found following its investigation of the matter.

On June 8, 2005, Mr. Weber sent a response letter to Transport Canada (Exhibit M-4). Although the letter was based on the initial allegation that WAI had no full-time CFI and therefore generally not relevant to this matter, there are some passages in the letter pertaining to the type of supervision by Mr. Griffin that are germane to the allegation contained in the Notice of Assessment of Monetary Penalty. In particular:

[...] In conversations with Mr. Wayne Todd, we were told that the CFI did not have to be at the airport while training flights were being conducted, but we had to be able to be in contact with each other. With that being said, along with the briefing I received from Matthew prior to any flights, at no time were we not able to contact each other, either via pager or telephone, or pilots cell phone.

[...]

[...] Every flight had a briefing of what training was being conducted, where it was going to take place, and when. Furthermore, a follow up meeting was conducted between myself and Matthew to discuss any questions, concerns, and quality of the instruction given for each lesson, as our Instructor Under Supervision records show.

Mr. Paulhus highlighted in his testimony two excerpts from Mr. Weber's letter as follows: "[w]e are not disputing the fact that we were breaking the law"; and further "[y]es, we were in the wrong and No, it won't happen again."

These excerpts were highlighted by Mr. Paulhus as Mr. Weber's confirmation that he had in fact been in violation of the CARs. However, since the alleged violation at the time was of CAR 426.11(1)(c)(ii) and the Notice of Assessment of Monetary Penalty was for an alleged violation of CAR 401.62(b), these excerpts cannot be relied upon as Mr. Weber's confession of a contravention.

Mr. Paulhus also introduced Exhibit M-5 which contains copies of journey logs received from WAI for aircraft C-GNJC ("NJC") and C-GIGQ ("IGQ") indicating that Mr. Weber was giving flight instruction on dates between February 11, 2005 and February 20, 2005. It was also established from various documents entered into evidence (Exhibit M-6) that the individuals with whom Mr. Weber was flying were students of WAI and that WAI was the registered owner of NJC and IGQ (Exhibit M-7).

Mr. Paulhus also reviewed journey logs provided by ACAL (Exhibit M-10) indicating occasions on February 11, 12, 13, 14 and 20, 2005 when Mr. Griffin was logged as a crew member for ACAL flights occurring on those dates. It was Mr. Paulhus' contention that if Mr. Griffin was flying at the same time Mr. Weber was giving flight instruction, he could not dedicate his full time to Mr. Weber if there was an in-flight emergency nor could he dedicate 100% of his concentration to Mr. Weber at the time.

As part of his investigation pursuant to the detection notice, Mr. Paulhus spoke to Mr. Griffin by phone on June 27, 2005. Much of the conversation related to the issue of Mr. Griffin's full-time employment with WAI which is not relevant for the purposes of this hearing. However, Mr. Paulhus' telephone notes also make reference to a letter dated February 5, 2005 (Exhibit M-9) from Mr. Griffin to Mr. Wayne Todd on the matter of a "supervision schedule" which the letter sets out as follows:

[...] The supervision occurs on a weekly and a flight-by-flight basis. Chris completes a proposed lesson plan sheet...while I answer any questions he has and then approve his proposal. This is done up to a week prior to the actual training flight. The day of the training flight Chris also informs me (usually by phone) of his plans for the flight(s) and asks any questions he has at that point. At the end of the flight we communicate again and clear up any questions/concerns. In the event Chris is flying when I get a MEDEVAC callout, I reach Chris via radio and have him terminate the training flight.

During their conversation of June 27, 2005, Mr. Griffin advised that he could recall only one occasion when he tried all frequencies and could not contact Mr. Weber.

Mr. Paulhus concluded his examination-in-chief by indicating that the reason the Minister elected to move on this matter against WAI by way of the vicarious liability provisions of the Aeronautics Act was that Chris Weber was listed in the Transport Canada database as a person of responsibility for WAI, as was Mr. Griffin. Both worked for the company and acted with the knowledge of others in the company.

The Minister's second witness was Wendy Renneberg, a civil aviation safety inspector for Transport Canada. She was involved in the pre-certification inspection of WAI on July 14, 2004. She met with Mr. and Mrs. Weber and Mr. Griffin to discuss the fact that Mr. Griffin was working for another company and although she indicated the FTU application was acceptable, Mr. Griffin was asked to provide an operational control and supervision plan for WAI for those times when he was working at ACAL.

Later in 2004, Ms. Renneberg did a liaison visit in advance of Mr. Weber's Class 4 flight test and she acted as the audit manager for WAI's post-certification audit in February 2005. She testified that Mr. Griffin knew about the Transport Canada guidelines for supervision of a Class 4 instructor and understood that he would have to work closely with Mr. Weber. The expectation is that the FTU must maintain a daily flight record (DFR) and that the CFI will exercise his duties during the time any training flights are being conducted. The DFR is a tool for the CFI to maintain operational control. Ms. Renneberg confirmed that during the post-certification audit there was no evidence that the DFRs were being used incorrectly and had no recollection of any findings to the contrary. Ms. Renneberg confirmed that there are no regulations which prohibit the supervisor of a Class 4 instructor from flying at the same time as the Class 4 instructor. She also confirmed there is no regulatory requirement for the supervisor to be at the airport during the operating hours of the FTU but he does have to be in contact at all times. It was Transport Canada's view that Mr. Griffin could not meet his operational control requirements as CFI if he was employed by another carrier while flight operations were being conducted at WAI.

Inspector Renneberg was the author of an e-mail dated May 11, 2005 (Exhibit M-11) which confirms that Transport Canada became aware at the pre-certification audit that Mr. Griffin was employed by ACAL and that it was made clear to Mr. Griffin, Mr. and Mrs. Weber that the FTU could not operate when Mr. Griffin was working for ACAL. She also confirmed that she had asked for a supervision plan to be submitted to Mr. Gerald Weighill. Her e-mail suggested that this document was never submitted but a letter dated July 19, 2004 (Exhibit M-12) addressed to Mr. Weighill from Mr. Griffin, would appear to contradict this as it sets out the following:

My plan for Weber Aviation Inc. is to give dual instruction or authorize solo practice only when I am NOT on call. ... During my 8 days off call, I plan on carrying out full time hours of operation at Weber Aviation Inc. No students will be flying solo unless I authorize the flight. I will be waiting for the student's safe return or have Chris Weber or Liane Weber on flight watch duty.

The Minister's representative elected not to call Mr. Weighill as a witness in this case. There was no evidence presented that Mr. Weighill did not accept this letter as an appropriate plan for Mr. Griffin's supervision of WAI.

Suze Detombe was the third witness for the Minister. She is a civil aviation safety inspector and participated in the post-certification audit of WAI. It was Inspector Detombe's job during the audit to check the DFRs for WAI against flight logs for ACAL. She confirmed that on February 12, 2005 there was a 25-minute overlap when Mr. Weber was involved in airborne flight instruction while Mr. Griffin was also flying for ACAL.

Wayne Todd also testified for the Minister. He is a civil aviation safety inspector who participated in the certification of WAI as well as some post-certification activities and flight testing. He represented that as the principle operations inspector for WAI he had a good relationship with the company. When WAI was first certified, Mr. Griffin was the only instructor on staff so the issue of supervision did not come up. In October 2004, the company hired a Class 3 instructor so some supervision was required by Mr. Griffin. Mr. Todd indicated that he had phone calls and written communication with Mr. Griffin on the matter of supervision. He had further discussions with him when Mr. Weber was applying for his Class 4 privileges. At the request of Ms. Renneberg, Mr. Todd asked Mr. Griffin to provide a written plan of supervision for Mr. Weber. The letter of February 5, 2005 was provided and according to Mr. Todd, Mr. Griffin's plan exceeded the regulatory requirements for supervision. However, it was Mr. Todd's contention that if Mr. Griffin was unable to communicate with Mr. Weber the plan would not be acceptable. There was no evidence as to whether this fact was ever communicated to WAI.

Following the post-certification audit and the issuing of the finding form and detection notice, WAI submitted a corrective action plan ("CAP") (Exhibit M-13). Mr. Todd had indicated on the CAP that the short-term plan pertaining to Mr. Griffin's "full-time" requirement was acceptable but the long-term portion was unacceptable because it did not assure that Mr. Griffin could maintain operational control. Mr. Griffin was to provide a new long-term CAP by May 31, 2005 but subsequent to that request, Mr. Griffin left WAI and Mr. Weber obtained his Class 3 instructor rating and took over as CFI. There were no other instructors to supervise so the requirements were no longer an issue.

Mr. Todd confirmed under cross-examination that he did say that Mr. Griffin's physical presence at the airport was not required but that he had to be able to get to the airport or he had to have unfettered access to the airport.

Mr. Griffin, the former CFI for WAI was the Minister's final witness. He confirmed that he had discussed with Wayne Todd, Suze Detombe and Wendy Renneberg his duties as a supervisor for Mr. Weber. He confirmed that before each flight he knew what Mr. Weber had planned for each student, including the flight plan, and that a sheet had to be completed for each solo flight and each qualifying flight.

Mr. Griffin testified that the letter dated July 19, 2004 to Mr. Weighill (Exhibit M-12) was approved by Mr. Weighill. No evidence was presented to contradict this. He also confirmed writing the February 5, 2005 letter (Exhibit M-9) as an operational plan as CFI for WAI. He acknowledged that the plan did not contain a contingency in the event Mr. Griffin could not contact Mr. Weber, and that on at least one occasion he could not fulfill the plan as he was unable to contact Mr. Weber by any of the normal means. Mr. Todd testified that he could not say whether the occasion when Mr. Griffin could not contact Mr. Weber amounted to a safety infraction.

Mr. Griffin was examined on the flight logs for ACAL and confirmed that they accurately represented information about when he was flying for ACAL.

On cross-examination Mr. Griffin was unequivocal that he had met the requirements of supervision of Mr. Weber as a Class 4 instructor.

Mr. Weber was the only witness to testify on behalf of WAI. He read into the record the entirety of the letter Exhibit M-4 which was his response to Mr. Paulhus' initial indication that WAI was being investigated for a violation of CAR 426.11(1)(c)(ii). It was his evidence that he believed WAI was doing everything "by the book". It was his evidence on cross-examination that there was no CARs requirement specifying that Mr. Weber and Mr. Griffin could not be in the air at the same time, but that they had agreed by virtue of Mr. Griffin's letter of February 5, 2005 that they would be in contact to avoid such a circumstance. He also confirmed that on one occasion he could not be contacted by Mr. Griffin.

THE LAW

Weber Aviation Inc. received a Notice of Assessment of Monetary Penalty pursuant to section 7.7 of the Aeronautics Act on the grounds of a contravention of CAR 401.62(b), which reads as follows:

401.62... no holder of a Class 4 flight instructor rating - aeroplane... shall exercise the privileges accorded by that rating unless the holder[...]

(b) is under the supervision of a supervising instructor of the flight training unit.

Other sections of the CARs pertaining to instructor supervision include:

401.63(1) Where the holder of a Class 1 or Class 2 flight instructor rating - aeroplane supervises the holder of a Class 4 flight instructor rating - aeroplane, the holder of the Class 1 or Class 2 rating shall do so in accordance with the personnel licensing standards.

421.62 Class 4 Supervision Requirement

The holder of a Class 4 Flight Instructor Rating shall be under the supervision of the holder of a Class 1 or 2 Flight Instructor Rating, in the applicable category, and shall submit for review to the supervising instructor the following:

(1) the training program for each student undergoing training by the holder of a Class 4 Flight Instructor Rating;

(2) flight progress checks for each student at intervals to be specified by the supervising flight instructor, but at least once before the first solo flight and once before the flight test for issue of the pilot licence;

(3) a record of results on the form "Instructor's Training Record While Under Direct Supervision"; and

(4) the student's pilot training record for each first solo flight and for each flight test recommendation for approval.

421.63 Class 1 or 2 - Supervision of the Holder of a Class 4 Flight Instructor Rating -

Aeroplane and Helicopter

When providing direct supervision to the holder of a Class 4 Flight Instructor Rating, the holder of a Class 1 or 2 Flight Instructor Rating - aeroplane or helicopter shall:

(1) review and approve the holder of the Class 4 Flight Instructor Rating's proposed training program for each student to ensure conformity with the Flight Training Manual and Flight Instructor Guide;

(2) specify the intervals at which progress checks are required, which shall be at least once before the first solo flight and once before the flight test for issue of the pilot licence;

(3) conduct the progress checks specified in (2) above;

(4) approve and countersign the student's pilot training record for each first solo flight authorized and for each flight test recommended by the holder of a Class 4 Flight Instructor Rating; and

(5) review and certify the holder of a Class 4 Flight Instructor Rating's "Instructor's Training Record while under Direct Supervision" form, as to the student's competency with respect to first solo flights and flight tests for issue of licences.

WAI became the recipient of the Notice of Assessment of Monetary Penalty by virtue of subsection 8.4(2) of the Aeronautics Act as follows:

8.4(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

DISCUSSION

There are two issues to be addressed in this case. First, did Mr. Griffin fail to supervise Mr. Weber as required by the CARs and the personnel licencing standards such that there has been a contravention of CAR 401.62(b)? Second, if such a contravention is proven, does this create a circumstance where the provisions of vicarious liability are applicable?

There are three main elements which must be proven with respect to this first issue. It must be established that there was a Class 4 rated flight instructor. The evidence on this is clear and undisputed. Mr. Chris Weber was the holder of a Class 4 flight instructor rating. It must also be established that Mr. Weber was exercising the privileges accorded to a Class 4 instructor. The evidence on this is also clear and undisputed. The flight logs and other exhibits presented indicated unequivocally that Mr. Weber was acting in the capacity of a Class 4 instructor on the dates in question (i.e. February 11-20, 2005). Finally, it must be shown that while Mr. Weber was exercising the privileges of his Class 4 rating he was not under the supervision of a supervising instructor.

It is this last element which requires further exploration. The Minister's position is that on those occasions when Mr. Griffin was on call or flying for ACAL while Mr. Weber was providing in-flight instruction, Mr. Griffin could not be said to be "supervising" Mr. Weber. This is the alleged violation of paragraph 401.62(b). The Minister's position is based on the "supervision plan" presented by Mr. Griffin in February 2005. It is important to note that the Minister's representatives were aware that Mr. Griffin was employed by ACAL prior to the issuance of WAI's FTU authority in July 2004. Furthermore, there is uncontroverted evidence that Mr. Griffin's plan to "give dual instruction or authorize solo practice only when I am NOT on call" was acceptable to Transport Canada (see Exhibit M-12). That appears to have been the plan in place up until February 5, 2005 when Mr. Griffin provided another letter to Transport Canada (Exhibit M-9) whereby he established that "in the event Chris is flying when I get a MEDEVAC callout, I reach Chris via radio and have him terminate the training flight."

The flight logs presented indicate the following information about concurrent flight times for Mr. Griffin and Mr. Weber:

Date

Out

In

C. Weber

M. Griffin

C. Weber

M. Griffin

Feb 11/05

9:18

 

10:00

 
 

12:40

 

13:30

 
 

16:15

16:37

17:10

17:04

   

18:06

 

18:43

   

23:55

 

00:27

         

Feb 12/05

 

00:45

 

01:16

 

10:10

 

11:16

 
 

15:30

17:24

17:25

17:50

   

21:12

 

21:36

         

Feb 13/05

9:40

 

10:40

 
 

12:05

 

13:05

 
   

23:03

 

23:33

         

Feb 20/05

9:55

 

10:45

 
   

10:52

 

11:17

   

14:19

 

14:44

The areas highlighted indicate two occasions where there was some overlap in the flight times of Mr. Griffin and Mr. Weber, although on one occasion the overlap was only a minute. This would in turn appear to accord with the evidence that there was one occasion when Mr. Griffin could not contact Mr. Weber to advise him to terminate his training flight as he was called out for a medevac flight.

If we accept that there was at least one occasion when Mr. Weber was conducting a training flight while Mr. Griffin was flying a medevac flight, the question then becomes whether this amounts to an infraction of the requirements of paragraph 401.62(b). For an answer to this question it is important to establish what regulatory requirements exist. Standard 421.62 provides the requirements. The Minister did not provide evidence that any of the requirements contained in the standards were not met by Mr. Weber. Furthermore, there was no evidence presented by the Minister that Mr. Griffin failed to meet the requirements of Standard 421.63 with respect to his regulatory obligations for the supervision of Mr. Weber. Consequently, can it be said that because Mr. Griffin developed a "supervision plan" which by the Minister's own admission exceeded the regulatory requirements and then failed on one occasion to meet that heightened standard that Mr. Weber is now in contravention?

It was clear from the evidence of the Minister's witnesses that there is no regulatory prohibition against the CFI conducting flight duties at the same times as a Class 4 instructor is conducting flight training duties. It was also established by the Minister's witnesses that they were of the opinion that Mr. Griffin could be away from the airport premises while Mr. Weber was exercising the privileges of his Class 4 licence. It does not appear from the evidence that the Minister took issue with Mr. Weber conducting training flights while Mr. Griffin was on duty, only when he was called out to do a flight. Therefore, in the absence of a specific regulatory requirement to the contrary, it is difficult to see how a single overlap of flying between Mr. Weber and Mr. Griffin could amount to a violation of CAR 410.62(b) on the part of Mr. Weber.

The Minister's witnesses provided evidence about Mr. Griffin's requirement to have "operational control" over WAI's FTU in his capacity as CFI. They also provided evidence pertaining to the initial allegation that Mr. Griffin was not a full-time employee of WAI during flight training operations. However, that evidence is not relevant to the charge that has been leveled against WAI in this instance. The Minister elected to impose a fine on the basis of Mr. Weber's alleged exercising of Class 4 flight training privileges when he was not properly supervised. Consequently, it is only evidence relating to this allegation which can be considered by the Tribunal. It is important that the Minister set forth clearly in the Notice of Assessment of Monetary Penalty all the grounds relied upon to impose the penalty in order that the applicant has full opportunity to address those grounds. To do otherwise would not be in keeping with the principles of fairness.

Although the Tribunal is not bound by its own prior decisions, it is important to note that the specific issue of what constitutes appropriate "supervision" of a Class 4 rated instructor has not previously been addressed by the Tribunal and therefore we are not in a position to take any guidance from the Tribunal on this issue.

On the basis of the foregoing, I find that the Minister has failed to prove on a balance of probabilities that Mr. Weber was in violation of CAR 401.62(b). Having made this finding it may not be necessary to make a determination on the matter of the Minister's allegation of vicarious liability. However, as it may become relevant in the context of a possible appeal of this decision, I believe it is important to address this element of the Minister's assessment.

The concept of vicarious liability has been raised in a number of previous Tribunal decisions. Most notably, the case of Minister of Transport v. Lindbergh's Air Service held that the purpose of what was then section 7.3 (now section 8.4) of the Aeronautics Act was set out at page 5 of that decision as follows:

We find that the real purpose of Section 7.3 of the Act is to provide a means whereby a form of coercion can be brought to bear upon the operator (owner) of an aircraft. This might include disclosing the name of the pilot or the person who had possession of it at the time when a violation is alleged to have occurred, or to provide the necessary incentive to ensure that employees or operators of aircraft flown for commercial purposes are flown within the guidelines established by corporate policy and more importantly, by the Act and Regulations. In this sense, the legislation attempts public-welfare type sanctions upon the owners and operators of aircraft, where their pilots contravene the Legislation. It may be rationalized in large measure by the necessity of ensuring that owner/operators are ever vigilant of their pilots to ensure the highest degree of professionalism possible in the interests of flight safety.[1]

Black's Law Dictionary defines "vicarious liability" as the "indirect or imputed legal responsibility for acts of another, for example, the liability of an employer for the acts of an employee".

In this case Mr. Weber and WAI are in effect the same person as Mr. Weber is an owner and director of the company (see Exhibit M-6). It hardly appears to serve the deterrent purpose inherent in the concept of vicarious liability to impose a sanction against a corporate employer when that "employer" is the same physical person as the "employee". Had the Minister proven the allegation of contravention of paragraph 401.62(b) in the first instance, I would not have been inclined to agree that the concept of vicarious liability was proper or indeed necessary in this case. Consequently, the magnitude of the monetary penalty would have been substantially reduced. Mr. Curtain, on behalf of the Minister, provided the Tribunal with a copy of the Transport Canada Sanctions Schedule relating to a contravention of section 401.62. It indicates that the fines range from $500.00 (for an individual) to $2,500.00 (for a corporation) for a first occurrence. Therefore, had the contravention been proven a more appropriate penalty would have been the lower amount.

DETERMINATION

I find that the Minister of Transport has failed to prove on a balance of probabilities a contravention of CAR 401.62(b) and consequently the Notice of Assessment of Monetary Penalty is dismissed.

May 2, 2006

Tracy Medve
Member
Transportation Appeal Tribunal of Canada


[1] Minister of Transport v. Lindbergh's Air Service, [1987], CAT File No. O-0025-10, appeal determination.