Decisions

TATC File No. Q-3397-33
MoT File No. N5504-60553

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Alain Priem, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, 7.7
Canadian Aviation Regulations, SOR/96-433, 602.88(2)


Review Determination
Howard M. Bruce


Decision: June 25, 2008

Citation: Priem v. Canada (Minister of Transport), 2008 TATCE 27 (review)

[Official English Translation]

Heard at Bécancour, Quebec, on April 17, 2008

Held: The Tribunal dismisses the Minister's allegation. Consequently, the $1,000 monetary penalty assessed for contravention of section 602.88(2) of the Canadian Aviation Regulations is cancelled.

I. BACKGROUND

[1] On July 3, 2007, the Minister of Transport issued a notice of assessment of monetary penalty to the applicant, Alain Priem, under section 7.7 of the Aeronautics Act (Act), alleging that Mr. Priem had contravened section 602.88(2) of the Canadian Aviation Regulations (CARs).

[2] Annex A of the notice of assessment of monetary penalty states the following:

[Translation]

You have contravened section 602.88(2) of the Canadian Aviation Regulations.

On or about July 10, 2006, at approximately 6:30 p.m. local time, while at the controls of the aircraft registered as C-GAZJ, you left Lac Margane, Quebec, for Wabush, Newfoundland, without sufficient fuel to fly to the destination aerodrome and then to fly for a period of 30 minutes at normal cruising speed.

Penalty: $1,000

[3] On August 3, 2007, the Transportation Appeal Tribunal of Canada received a request for review from the applicant.

II. CANADIAN AVIATION REGULATIONS

[4] Section 602.88(2) of the CARs reads as follows:

602.88 (2) No pilot-in-command of an aircraft shall commence a flight or, during flight, change the destination aerodrome set out in the flight plan or flight itinerary, unless the aircraft carries sufficient fuel to ensure compliance with subsections (3) to (5).

III. EVIDENCE

A. Minister of Transport

(1) Umberto Tamborriello

[5] Umberto Tamborriello is a civil aviation inspector with Transport Canada. After receiving a civil aviation daily occurrence report (CADORS) from Nav Canada, he conducted an investigation to determine the circumstances which forced the aircraft registered as C-GAZJ (aircraft), piloted by the applicant, Alain Priem, to land on Lac Saint‑Ange on July 10, 2006. Inspector Tamborriello's investigation confirmed that the aircraft was owned by Aviation 2000 Inc. (exhibit M-1).

[6] Inspector Tamborriello contacted Marc Leclerc, principal and majority shareholder of Aviation 2000, to obtain excerpts from the aircraft journey log book (exhibit M‑2). He reviewed the excerpts and concluded that the aircraft ran out of fuel during the flight from Lac Margane to Wabush, Newfoundland, forcing the pilot to land on Lac Saint‑Ange.

[7] In a letter dated August 25, 2006 and a note dated June 25, 2007 (exhibit M-3), Mr. Priem explained what happened during the flight on July 10, 2006, from Lac Margane to Wabush. He contests the allegation that the aircraft ran out of fuel. He states that he switched to the aft tank, which still contained a legal reserve, so that he could safely make a precautionary landing on Lac Saint-Ange.

[8] An invoice dated July 10, 2006, (exhibit M-4) shows that Air Saguenay (1980) Inc. (Air Saguenay) sold 91.95 litres of fuel to the operator of the aircraft that day.

[9] An invoice and two fuel slips dated July 11, 2006, show that Labrador Air Safari (1984) Inc. sold 30 U.S. gallons of fuel and 136.5 and 212.30 litres of fuel to the operator of the aircraft (exhibit M-5).

[10] Under cross-examination, Inspector Tamborriello testified that the offence occurred on July 10, 2005. At that point, the hearing was interrupted. Counsel for the applicant filed a motion to dismiss, as Inspector Tamborriello had stated that the subject-matter of the offence had occurred in 2005 and that the notice of assessment of monetary penalty had been issued on July 3, 2007. The proceeding in this matter was therefore statute-barred.

[11] The applicant argued that on July 3, 2007, the date the notice of assessment of monetary penalty was issued, the only evidence the Minister had was the certificate of registration of the aircraft (exhibit M-1), the excerpts from the aircraft log book (exhibit M-2), and the letter dated August 25, 2006 and the note dated June 25, 2007 (exhibit M-3). The Minister received the invoices and the purchase orders (exhibits M-4 and M-5) after issuing the notice of assessment of monetary penalty.

[12] With respect for the applicant's claims, the Tribunal cannot conclude that the Minister's proceeding is statute-barred. The notice of assessment of monetary penalty clearly states that the contravention occurred on or about July 10, 2006. Further, the excerpts from the aircraft journey log book (exhibit M-2), to which Inspector Tamborriello made reference, also indicate that the incident occurred on July 10, 2006.

[13] Inspector Tamborriello's testimony was very halting and confusing. The fact that he stated that the date of the incident was July 10, 2005, must be considered in light of the excerpts from the aircraft journey log book (exhibit M-2), which indicate that the incident occurred on July 10, 2006. Consequently, the proceeding in this matter is not statute-barred.

[14] Still under cross-examination, Inspector Tamborriello initially stated that he did not know how he obtained the invoice that Air Saguenay had provided to the applicant (exhibit M-4). He later remembered that Aviation 2000 had sent it to him.

[15] Inspector Tamborriello's testimony regarding the documents he had requested from Mr. Leclerc in June 2007 was equally confusing. In the end, he agreed that the documents were the ones Aviation 2000 had given him.

[16] Inspector Tamborriello testified that his investigation was based on the journey log book entry indicating that the aircraft was carrying 300 pounds of fuel when it left Lac Margane for Wabush. According to his calculations, 300 pounds equals 41.6 imperial gallons, which would not have been enough to make the journey.

[17] Inspector Tamborriello stated that he had not asked Mr. Leclerc who had filled the tanks before the aircraft left the base in La Tuque for Lac Margane or how many imperial gallons of fuel were in the tanks at that time. He relied solely on the entry in the journey log book.

[18] Still under cross-examination, Inspector Tamborriello stated that he did not remember if he had checked the wind or other weather conditions for July 10, 2006.

[19] Finally, Inspector Tamborriello stated that he had not reviewed his notes thoroughly before the hearing.

[20] When questioned about the content of the letter and the note from the applicant (exhibit M‑3), Inspector Tamborriello confirmed that while the applicant's note stated that there were 570 pounds of fuel in the tanks before the aircraft left Lac Margane, he relied solely on the entry in the journey log book. He had not asked Mr. Leclerc for anything else.

(2) Laurent Bourdon

[21] Laurent Bourdon is a flight service specialist with Nav Canada. On July 10, 2006, Mr. Bourdon was on duty in Wabush. He confirmed that around 9:30 p.m. (EDT), he received a call from Mr. Priem saying that he was 50 miles from the airport and that everything appeared to be normal.

[22] Around 9:45 p.m. (EDT), the witness received another call from Mr. Priem saying that he was running out of fuel and would have to land on a lake. Mr. Priem's exact words were recorded on CD (exhibit M-8). The Minister also produced in evidence a written summary of the incident (exhibit M-6) and a weather report for July 10, 2006 (exhibit M-7).

[23] Under cross examination, Mr. Bourdon confirmed that during his first communication with Mr. Priem around 9:30 p.m. (EDT), no emergency had been declared. He also confirmed that there was no panic in Mr. Priem's voice and that the topic of conversation was Mr. Priem's location. Mr. Priem was trying to identify landmarks near Lac Saint‑Ange so that he would be easier to find.

B. Applicant

(1) Alain Priem

[24] The applicant, Alain Priem, testified that he has been a pilot since 1984. He was a pilot in the French army before he came to Quebec in 2001. Since 2002, he has been a commercial pilot with Aviation 2000.

[25] On July 10, 2006, Mr. Priem was supposed to fly French tourists to Wabush. Takeoff was scheduled for 9 a.m. Owing to poor weather, the principal of the company, Mr. Leclerc, and Mr. Priem agreed to delay the trip until 2 p.m.

[26] Before leaving the base in La Tuque for Lac Margane, Mr. Priem checked the amount of fuel in the aircraft's three tanks. The tanks were filled to the top and contained the following quantities: forward tank, 29 imperial gallons; centre tank, 29 imperial gallons; aft tank, 21 imperial gallons. The aircraft was therefore carrying a total of 79 imperial gallons of fuel.

[27] Mr. Priem used the aft tank first. When the tank was down to about 10 imperial gallons, he switched to the centre tank.

[28] Mr. Priem confirmed that the flight time between the base in La Tuque and Lac Margane was 1.7 hours, which is consistent with the entry in the journey log book. According to the applicant's calculations, the aircraft used 30.6 imperial gallons, as the fuel consumption was 18 imperial gallons an hour.

[29] After the aircraft landed on Lac Margane, the centre tank was filled to the top, that is, 20 imperial gallons of fuel were added, which is consistent with the invoice (exhibit M‑4).

[30] According to the applicant's testimony, therefore, when the aircraft left Lac Margane for Wabush, the forward and centre tanks were both filled to the top and contained a total of 58 imperial gallons of fuel. There were approximately 11 imperial gallons of fuel left in the aft tank, for a total of 69 imperial gallons. In response to his letter to Mr. Priem dated July 25, 2006 (exhibit R-1), Inspector Tamborriello received confirmation of that information.

[31] A document indicating the aircraft's normal fuel consumption (exhibit R‑2) supports the applicant's claims. Fuel consumption can range from 18.4 to 23.1 imperial gallons/hour. Even in the worst-case scenario, that is, if the flight time from Lac Margane to Wabush had been 3 hours and fuel consumption had been 23.1 imperial gallons/hour, the aircraft would have had the 69 imperial gallons needed to complete the flight.

[32] Mr. Priem testified that the wind was light following takeoff from Lac Margane and that he had to climb to an altitude of 7,500 feet in order to catch wind. A bit later during the flight, he noticed that a north headwind was increasing fuel consumption. At that point, he checked the geographic maps for a place to put down in case he had to go off course.

[33] Mr. Priem confirmed that around 8:30 p.m. (EST), when he was about 50 miles from Wabush, he spoke to Mr. Bourdon and gave him the usual information.

[34] Approximately 15 minutes later, Mr. Priem decided to change course and land on a lake. He saw that there were only 11 imperial gallons of fuel left in the aft tank for the 25 miles left to go. He contacted Mr. Bourdon again to tell him that he was running out of fuel and would have to land on a lake.

[35] The applicant produced in evidence a diagram of the aircraft cabin (exhibit R-3) and explained how he had landed on Lac Saint‑Ange. After making a pass over the lake to ensure it was clear to land, Mr. Priem put his aircraft down near a beach where the passengers could disembark safely. The aircraft did not run out of fuel.

[36] Mr. Priem told the Tribunal that he does not have a good command of English. He did not mean the engine of the aircraft was no longer running when he said, "engine is stopped now"; what he actually meant was that the engine had sputtered when he switched to the aft tank.

[37] Mr. Priem testified that when he landed on the lake, he had approximately 10 imperial gallons of fuel left. That assertion is based on the fact that while he was talking to Mr. Bourdon, he ran out of fuel in the centre tank and had to switch to the aft tank. Pumping had been required to start the flow of fuel.

[38] Mr. Priem stated that he spent the night under the stars with his passengers and received approximately 30 U.S. gallons of fuel the next morning (exhibit M-5). He then completed the trip to Wabush, where the three tanks were filled to the top.

[39] Finally, the applicant confirmed that the aircraft had never run out of fuel and that there had been enough fuel in the tanks to fly to the destination aerodrome and then to fly for a period of 30 minutes.

[40] The journey log book entry indicating 300 pounds of fuel was an error.

[41] Under cross-examination, the applicant confirmed once again that the journey log book entry indicating 300 pounds of fuel was an error. He did not attempt to make it to Wabush because he did not want to jeopardize the safety of his passengers.

(2) Marc Leclerc

[42] Mr. Leclerc is a pilot, a businessman and the owner of Aviation 2000. His testimony corroborated the testimony given by Mr. Priem to the effect that on July 10, 2006, the departure from the base in La Tuque had been delayed until approximately 2 p.m. and that, prior to takeoff, he had filled the 3 tanks to the top. The aircraft was carrying a total of 79 imperial gallons of fuel.

IV. ARGUMENTS

A. Minister of Transport

[43] The Minister's representative argues that he has shown all the elements of the contravention. On July 10, 2006, Mr. Priem was the pilot-in-command of the aircraft. He took off from Lac Margane for Wabush without enough fuel to fly to the destination aerodrome and then to fly for a period of 30 minutes at normal cruising speed. The Minister's representative specifies that in his communication with the Wabush tower around 8:45 p.m. (EST), the applicant had stated that he was low on fuel and that the engine had stopped. According to the Minister's representative, the phrase "engine is stopped now" means that the engine had in fact stopped.

[44] The Minister also cited the entry in the journey log book indicating that the aircraft had been carrying 300 pounds of fuel when it left Lac Margane for Wabush. He states that the journey log book entry was inconsistent with both the applicant's testimony and the applicant's note dated June 25, 2007 (exhibit M-3). This, according to the Minister's representative, creates a serious credibility problem.

[45] According to the Minister, the journey log book accurately indicates the amount of fuel the aircraft had been carrying when it took off. The Minister also states that the only conclusion the Tribunal can draw is that when the aircraft left Lac Margane for Wabush, it did not have enough fuel to meet the requirements of section 602.88(2) of the CARs.

B. Applicant

[46] According to the applicant, the investigation and its findings are based on the false assumption that the aircraft had run out of fuel. The aircraft had allegedly been forced to make an emergency landing on Lac Saint-Ange.

[47] At the time the notice of assessment of monetary penalty was issued, the only evidence the Minister had was the certificate of registration of the aircraft (exhibit M-1), the excerpts from the journey log book (exhibit M-2), and the applicant's letter dated August 25, 2006 and the note dated June 25, 2007 (exhibit M-3). In the applicant's opinion, this is a case of abuse of process.

[48] The applicant and Mr. Leclerc clearly testified that the three tanks had been full when the aircraft left the base in La Tuque for Lac Margane. Inspector Tamborriello never asked either of the two witnesses if the tanks were full.

[49] The applicant determined the fuel consumption as follows:

· When it left the base in La Tuque for Lac Margane, the aircraft was carrying 79 imperial gallons of fuel, as the 3 tanks were filled to the top. Since the flying time from La Tuque to Lac Margane was 1.7 hours and fuel consumption was 18 imperial gallons/hour, a total of approximately 31 imperial gallons of fuel was used;

· As confirmed by the invoice from Air Saguenay (exhibit M-4), 20 imperial gallons of fuel were added to the centre tank after the aircraft landed in Lac Margane. Consequently, when it left Lac Margane for Wabush, the aircraft was carrying approximately 69 imperial gallons of fuel, which was enough to meet the requirements of section 602.88(2) of the CARs in respect of the 2.3 hour trip to Wabush.

[50] Considering that Mr. Priem had to climb and encountered headwinds, it is reasonable to conclude that fuel consumption was closer to 23 imperial gallons/hour.

[51] When the aircraft landed on Lac Saint-Ange, there were approximately 10 imperial gallons of fuel left in the tanks. Since 25 imperial gallons of fuel were added on Lac Saint-Ange, the aircraft was carrying 35 imperial gallons of fuel when it took off for Wabush. Since the aircraft used approximately 5 imperial gallons of fuel for the trip from Lac Saint-Ange to Wabush, there were approximately 30 imperial gallons of fuel in the tanks when the aircraft landed in Wabush. In Wabush, the tanks were filled to the top, that is, 47 imperial gallons of fuel were added, for a total of 77 imperial gallons of fuel.

[52] To summarize, the applicant submits that the fuel consumption was consistent with the information on the invoices (exhibits M-4 and M-5). The applicant does not believe that the Minister discharged his burden of proof in this matter.

[53] The applicant asks the Tribunal to order to the minister to pay costs arising from this frivolous and abusive charge. At the time the notice of assessment of monetary penalty was issued, the only evidence the Minister had was the certificate of registration of the aircraft (exhibit M-1), the excerpts from the journey log book (exhibit M-2), and the applicant's letter dated August 25, 2006 and the note dated June 25, 2007 (exhibit M-3).

[54] In his statement, Pierre Shauvy, one of the passengers aboard the aircraft on July 10, 2006, stated that Mr. Priem had turned the aircraft around near Lac Saint‑Ange after the engine sputtered several times and made a textbook landing on the lake (exhibit R-4).

V. DISCUSSION

[55] The Minister is required to prove on a balance of probabilities each element of the contravention of section 602.88(2) of the CARs. The Minister's evidence regarding the amount of fuel in the tanks when the aircraft left Lac Margane for Wabush is based on the entry in the journey log book indicating that there were 300 pounds of fuel in the aircraft's tanks.

[56] Section 28 of the Act reads:

28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

[57] It is important to note that section 28 of the Act uses the phrase "in the absence of evidence to the contrary" in reference to journey log book entries.

[58] However, quantity of fuel is not one of the journey log book entries required under section 605.94 of the CARs. Even if it were a mandatory journey log book entry, the Tribunal concludes that the clear and uncontradicted testimony of Messrs. Priem and Leclerc regarding fuel consumption and the fact that the three tanks were full when the aircraft left La Tuque are credible and consistent with the information on the invoices (exhibits M‑4 and M‑5).

[59] The Minister's position that the aircraft was carrying 300 pounds or 41.6 imperial gallons of fuel when it took off from La Tuque is impossible. The 1.7 hour flight to Lac Margane would have used approximately 31 imperial gallons of fuel based on fuel consumption of 18 imperial gallons/hour. That means that when the aircraft landed on Lac Margane, there would have been 10.6 imperial gallons of fuel left in the tanks. The invoice from Air Saguenay (exhibit M-4) shows that 20.2 imperial gallons of fuel were added, bringing the total amount of fuel to 30.8 imperial gallons when the aircraft left Lac Margane for Wabush. If that were the case, the aircraft would have been carrying enough fuel for only 1.7 hours of flight time. It would not have been able to reach Lac Saint‑Ange, which was 2.3 hours away.

[60] The Tribunal therefore cannot accept the Minister's argument that the aircraft made an emergency landing on Lac Saint-Ange because it was out of fuel.

[61] The argument that the aircraft ran out of fuel is not only inconsistent with the information on the invoices (exhibits M-4 and M-5) based on fuel consumption, but is also at odds with the applicant's behaviour as he landed on Lac Saint‑Ange. The Tribunal was able to listen to the CD recording (exhibit M-8) of the conversations between Messrs. Priem and Bourdon while the aircraft was landing on Lac Saint-Ange. There was no panic or sense of urgency in Mr. Priem's voice.

[62] Moreover, the statutory declaration by Mr. Shauvy corroborates Mr. Priem's testimony. Mr. Priem turned the aircraft around near Lac Saint-Ange after the engine sputtered several times and made a textbook landing on the lake.

[63] While that statutory declaration may be considered hearsay evidence, it simply corroborates Mr. Priem's testimony in keeping with the principles of the Tribunal's recent decision in Sierra Fox Inc. v. Canada (Minister of Transport), [2005], appeal decision, O‑2997‑41 (TATC), [2005] C.T.A.T.D. no. 17 (QL).

[64] The Tribunal is of the opinion that the Minister did not prove on a balance of probabilities that the applicant left Lac Margane, Quebec, for Wabush, Newfoundland, without carrying enough fuel to fly to the destination aerodrome and then to fly for a period of 30 minutes at normal cruising speed.

[65] The Tribunal cannot grant the applicant's request for costs. When the Minister issued the notice of assessment of monetary penalty, the evidence he had was the journey log book indicating that the aircraft was carrying 300 pounds of fuel when it left Lac Margane for Wabush, which prima facie contravenes section 602.88(2) of the CARs. But for that incorrect entry in the applicant's log book, this proceeding could probably have been avoided.

VI. DETERMINATION

[66] The Minister's allegation is dismissed, and the $1,000 monetary penalty is cancelled.

June 25, 2008

Howard Bruce

Member