Decisions

TATC File No. W-3375-41
MoT File No. SAP 5504-61590 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

102643 Aviation Ltd., Applicant

- and -

Minister of Transort, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, sections 700.15(1)(c), 700.19(1)(b) and 703.88(1)(d)


Review Determination
Arnold Price Vaughan


Decision: June 15, 2009

Citation: 102643 Aviation Ltd. v. Canada (Minister of Transport), 2009 TATCE 15 (review)

Heard at Saskatoon, Saskatchewan, on March 4, 5 and 6, 2009

Held: I confirm the decision of the Minister of Transport set out in the notice of assessment of monetary penalty dated April 30, 2007. The total amount of $13 750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

Files Nos.: W-3373-33

W-3375-41

I. BACKGROUND

[1] On April 30, 2007, the Minister of Transport assessed monetary penalties against the applicant, Blair William Jensen (file W-3373-33), for contraventions of paragraphs 700.15(1)(c) and 703.88(1)(d) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act). Schedule A of the notice of assessment of monetary penalty states the following:

#1 − CARs 700.15(1)(c)

On or about the 27th day of August 2006, at or near Tulita, Northwest Territories, as a flight crew member, you did accept a flight crew assignment, when your total flight time conducted in all flights exceeeded 120 hours in a 30-day consecutive period, on or between the 30th day of July 2006 and the 28th day of August 2006, thereby contravening section 700.15(1)(c) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,000.00

#2 − CARs 703.88(1)(d)

On or about the 6th day of September 2006, at or near Tulita, Northwest Territories, you did act as a flight crew member in Canadian registered aircraft C-GJUB, when you did not comply with 102643 Aviation Ltd.'s ground and flight training program, thereby contravening section 703.88(1)(d) of the Canadian Aviation Regulations.

MONETARY PENALTY - $1,000.00

TOTAL MONETARY PENALTY - $2,000.00

[2] In addition, on April 30, 2007, the Minister of Transport assessed monetary penalties against the applicant, 102643 Aviation Ltd. d.b.a. Ursus Aviation, for contraventions of paragraphs 700.15(1)(c), 700.19(1)(b) and 703.88(1)(d) of the CARs, pursuant to section 7.7 of the Act. Schedule A of the notice of assessment of monetary penalty states the following:

#1 − CARs 700.15(1)(c)

On or about the 27th day of August 2006, at or near Tulita, Northwest Territories, you, as an air operator, did assign flight crew member Blair Jensen for flight time, when the flight crew member's total flight time conducted in all flights exceeded 120 hours in a 30-day consecutive period, thereby contravening section 700.15(1)(c) of the Canadian Aviation Regulations.

MONETARY PENALTY - $5,000.00

#2 − CARs 700.19(1)(b)

On or about the 10th day of September 2006, at or near Tulita, Northwest Territories, you as an air operator, did fail to provide flight crew member Blair Jensen, with three 24-hour periods of rest within a 30 day consecutive period, thereby contravening section 700.19(1)(b) of the Canadian Aviation Regulations.

MONETARY PENALTY - $3,750.00

#3 − CARs 703.88(1)(d)

On or about the 6th day of September 2006, at or near Tulita, Northwest Territories, you, as an air operator, did permit Blair Jensen to act as a flight crew member, in Canadian registered aircraft C-GJUB, when the flight crew member did not comply with 102643 Aviation Ltd.'s ground and flight training program, thereby contravening section 703.88(1)(d) of the Canadian Aviation Regulations.

MONETARY PENALTY - $5,000.00

TOTAL MONETARY PENALTY - $13,750.00

II. CANADIAN AVIATION REGULATIONS

[3] Paragraphs 700.15(1)(c), 703.88(1)(d) and 700.19(1)(b) of the CARs read as follows:

700.15 (1) Subject to subsection (2), no air operator shall assign a flight crew member for flight time, and no flight crew member shall accept such an assignment, if the flight crew member's total flight time in all flights conducted by the flight crew member will, as a result, exceed

. . .

(c) 120 hours in any 30 consecutive days or, in the case of a flight crew member on call, 100 hours in any 30 consecutive days.

703.88 (1) Subject to subsections (6) and (7), no air operator shall permit a person to act and no person shall act as a flight crew member in an aircraft unless the person

. . .

 (d) has fulfilled the requirements of the air operator's ground and flight training program.

700.19 (1) Subject to subsection (2), an air operator shall provide each flight crew member with the following time free from duty:

(b) where the operation is conducted under Subpart 2 or 3 or is conducted using a helicopter, one period of at least 24 consecutive hours 13 times within each 90 consecutive days and 3 times within each 30 consecutive days.

III. EVIDENCE

A. Minister of Transport

(1) Mitch Paulhus

(a) Paragraph 700.15(1)(c) of the CARs

[4] Mitch Paulhus is a civil aviation safety inspector. He has eight years of experience at Transport Canada and 23 years in the aviation industry. He is a licensed aircraft maintenance engineer (AME).

[5] In October 2006, he was assigned the files related to Mr. Jensen and Ursus Aviation. These files were the result of a specialty audit conducted during the period of September 11 to 13, 2006. Inspector Paulhus sent to Ursus Aviation a letter dated October 4, 2006 (exhibit M‑1), in which he delineates the deficiencies which he investigated. The audit team found that Mr. Jensen flew more than 150 hours in any 30 consecutive days during the period of July 30 to August 28, 2006. He also exceeded 210 hours in any 42 consecutive days during the period of July 30 to September 9, 2006. He did not receive three periods of 24 consecutive hours free from duty from August 13 to September 10, 2006. He did not meet the flight-training program related to the annual recurrent training on single engine aircraft to wit the Cessna 172M aircraft registered as C-GJUB.

[6] In his registered letter of November 20, 2006, addressed to Ursus Aviation (exhibit M‑2), Inspector Paulhus informed Mr. Jensen that he was investigating the allegations and advised him of the standard cautions. On January 23, 2007, he addressed another letter to Mr. Jensen (exhibit M‑3), in which his review of the audit findings revealed that Mr. Jensen had completed 157.7 flight hours within the 30-day period and 223.1 flight hours in the 42‑day period. Finally, it was alleged that on or about September 6, 2006, Mr. Jensen acted as a flight crew member in the C-172 aircraft when training had not been done. As a result, Inspector Paulhus would be making recommendations to the regional manager of the Aviation Enforcement Branch.

[7] The Ursus Aviation operations manual was produced as evidence (exhibit M-4). Sections 5.20 and 5.32 relate to the required flight training. The air operator certificate (AOC) was also produced as evidence (exhibit M‑5). It provides for the legal and trade names for the company, the authorized aircraft types and the authorization for increased flight time of 150 hours as per standard 720.15 of the CARs. The names of the aircraft registered to the company were cross-referenced in the NACIS printout (exhibit M-6).

[8] In his reply to Inspector Paulhus on February 21, 2007 (exhibit M-7), Mr. Jensen stated the following: "I cannot confirm or deny your figures", relating to flight time. He also indicated that he had completed the training as required by subsection 703.88(7) of the CARs and that he never believed he had violated that regulation.

[9] Since Mr. Jensen could not confirm nor deny the flight time, Inspector Paulhus sent him a letter (exhibit M-8) requesting photocopies of the aircraft journey log books in the NACIS printout for the period in question (exhibits M-9, M-10, M-11 and M-12). From the journey log books, Inspector Paulhus then constructed a spreadsheet (exhibit M-13), using Microsoft Excel.

[10] Inspector Paulhus discovered an anomaly with the log books. For aircraft C-GJTE (exhibit M-9), there is a record of the flight time in column 8 and another for air time in column 9 (exhibit M-9). He noticed a pattern where 0.2 of an hour was the difference between flight time and air time, except for August 11, 2006, when the times were the same. However, the journey log books for aircraft C-FWHV (exhibit M-10), C-GJUB (exhibit M‑11) and C-GJUB (exhibit M-12) contain only a column for recording air time.

[11] Inspector Paulhus was obliged to estimate flight time for the company's aircraft during the relevant period. This was needed because standard 720.15 of the CARs is based on flight and not on air time. Flight time means the time from the moment an aircraft first moves under its own power for the purpose of taking off until it comes to rest at the end of the flight. Whereas air time means the time from the moment the aircraft leaves the surface until it comes in contact with the surface at the next point of landing.

[12] When he prepared the spreadsheet, Inspector Paulhus used Mr. Jensen's practice of adding 0.2 to the air time. These times appear under the columns labeled "Estimated Flight Time". The running totals for 30 and 42 days appear on the last row of pages 3 and 5, with explanatory footnotes on page 5.

[13] A copy of the flight and duty records for Mr. Jensen (exhibit M-14) is part of the evidence that Inspector Paulhus received from the audit. It is certified to be a true copy of flight and duty records for Mr. Jensen. The data was supplied from the company's operational control system.

[14] In cross-examination, Inspector Paulhus was asked about discrepancies in the spreadsheet and the flight duty records he provided. He was also asked if it was the industry standard to increase air time by 0.2 to obtain flight time.

[15] During re‑examination, he was asked again if the addition of 0.2 was the industry standard. Inspector Paulhus reiterated that there was no such standard. He explained that, given the relatively short runways for northern airports, the taxi time before take-off and after landing would be brief. The aircraft types used by Ursus Aviation would mean that safety checks prior to take-off could be accomplished relatively quickly.

(b) Paragraph 700.19(1)(b) of the CARs

[16] Inspector Paulhus testified about his investigation into the matter of days off. He referred to the flight and duty records for Mr. Jensen (exhibit M-14) and found that there was an apparent typographical error for the entries in August. There were two entries for August 16, 2006. Therefore, Mr. Jensen should have made the notation that there was a day off on August 15, 2006. Nevertheless, in the 30-day consecutive period from August 11 to September 9, 2006, the air operator, Ursus Aviation, did not grant three periods of 24 consecutive hours free from duty. He concluded that a breach of paragraph 700.19(1)(b) of the CARs had occurred.

[17] In cross-examination, Inspector Paulhus was asked if he had erred in choosing the 30-day period. Mr. Jensen explained the different period which he used for his calculation. During re‑examination, he confirmed how he selected the 30-day period and concluded he had made no error. The regulation clearly pertains to any 30‑day consecutive period.

(c) Paragraph 703.88(1)(d) of the CARs

[18] Inspector Paulhus explained that the pilot training records for Mr. Jensen (exhibit M-18) indicated that under the column for Cessna 172, the row concerning the aircraft flight training (initial/recurrent) was blank because no record of annual training had been found. He reviewed the journey log book entries of aircraft C-GJUB for the time in question and confirmed there was no entry for training. He referred to the AOC which mandates the training to be carried out. His attention was directed to the company's operations manual. He indicated that section 5.20 states that the annual pilot training had to be given to ensure a level of competency. He explained that the minimum training time of one hour for the Cessna 172 could be found on page 5-15.

[19] Finally, Inspector Paulhus referred to the penalties imposed for the various infractions. He commented on the table found in the aviation enforcement procedures manual (exhibit M‑20). It contains the recommended monetary penalties. In each case, the minimum amount of penalty was chosen because there were neither previous offences nor any aggravating factors. In cross-examination, he was asked if he had not made a mistake in assessing monetary penalties for both, Mr. Jensen and Ursus Aviation, because Mr. Jensen had been charged twice. He replied that Ursus Aviation, a corporation, was treated as an entity separate from Mr. Jensen personally.

(2) Rick Martin

[20] Rick Martin is the superintendent of certification, Commercial and Business Aviation. He has been in the aviation industry for 41 years and with Transport Canada since 1992. He has completed the audit procedures course, and he is the audit team leader for the Prairie and Northern Region.

[21] From the NACIS printout, he determined that Ursus Aviation was due for a specialty audit in September 2006. Consequently, he sent a letter dated August 28, 2006 to the operations manager of Ursus Aviation (exhibit M-15). In it, he outlined the audit schedule, procedures and areas to be evaluated.

[22] As a result of the team visit to the main base of Ursus Aviation in Tulita, Northwest Territories, on September 11 to 13, 2006, Mr. Martin forwarded his audit findings to the Enforcement Aviation Branch (exhibit M-16). These included the flight time which exceeded the 30-day consecutive limit. He supported his conclusion from calculations which appear in the flight and duty records for Mr. Jensen (exhibit M-14).

[23] The Minister's representative asked him if his calculation of 157.7 flight hours met the regulations. He said they did not. He was asked to explain the period he used for his calculations. He also pointed out the flight time limits along with the extension, as they relate to the AOC and associated regulations.

[24] Mr. Martin was asked about the 0.2 difference between flight time and air time which appears in the aircraft journey log book of aircraft C-GJTE. He felt it was reasonable. A zero difference would not be possible, unless it involved a skid-equipped helicopter. When his audit findings were completed, he sent a letter dated October 4, 2006 to the operations manager of Ursus Aviation, in which he provided details on the corrective action plan. Since two of the findings in management personnel and operations coordination affected flight safety, Mr. Martin stated that Mr. Jensen, as chief pilot, was to cease commercial flight operations with single engine aircraft until he complied with the regulations. He referred these two findings to the Aviation Enforcement Branch.

[25] When cross-examined, he was asked if there was an acceptable standard for adding to air time in order to derive flight time. He said there was no standard. He was then asked how he would record the time. He replied with a number of options. He said, in referring to the aircraft journey log book of aircraft C-GJTE, that the use of 0.2 would be reasonable, given the distance of the ramp from the runway and time to perform aircraft checks, as required by the manufacturer or the company. He was questioned about the flight and duty records (exhibit M‑14). He said that he had turned the information over to the Aviation Enforcement Branch, and that he had nothing to do with the files since 2006. During re-examination, he reiterated that there was no industry standard such as the use of 0.2. He also stressed that he made all possible efforts to ensure that the record was correct.

(a) Paragraph 700.19(1)(b) of the CARs

[26] The Commercial and Business Aviation Advisory Circular entitled Monitoring of Flight Time and Flight Duty Time (no. 0207, May 13, 2002, exhibit M‑17) was introduced as evidence. It provides further explanation on compliance with the flight and the flight duty times. During the audit, Mr. Martin found a disconnect for August 19, 2006 because of the notation of a day off. Yet, it showed 0.8 of flying time. However, it made no difference as far as the regulation is concerned because the requisite of three days off was not indicated (exhibit M‑14).

(b) Paragraph 703.88(1)(d) of the CARs

[27] Mr. Martin elaborated on the pilot training record for Mr. Jensen (exhibit M-18). He said that he had searched the records and other documents in the applicant's possession, but could not find any evidence for training on the Cessna 172. On the back side of the exhibit, Mr. Martin wrote why he thought there was no compliance with this regulation. He thought it was due to a misinterpretation of subsection 703.88(7) of the CARs which relieves the chief pilot of the requirement to have a competency check for a single engine aircraft. Mr. Jensen equated a competency check and training as the same. Explanation on competency check can be found under section 5.21 of the operations manual, whereas annual flight training is covered under section 5.20.

[28] A Commercial and Business Aviation Advisory Circular entitled Pilot Self-Training for Canadian Air Operators Operating under Subparts 702 and 703 of the Canadian Aviation Regulations (no. 0249, December 21, 2005, exhibit M-19) with a similar function as the circular mentioned above (exhibit M-17), was also introduced as evidence. This directive states that, under sections 702 and 703 of the CARs, air operators need to conduct annual training with a qualified training pilot. Since there was no evidence that training required by regulation had taken place, he concluded that Mr. Jensen must have one hour of flight training on the Cessna 172.

[29] The Minister's representative asked him if the exemption under subsection 703.88(7) of the CARs applied to Mr. Jensen in his capacity as chief pilot. Mr. Martin said it did not, as it applies to a competency check, not to the annual training.

[30] As a final instruction, Mr. Martin advised Mr. Jensen that he was not to fly commercially until the required training had been done. Evidence from the journey log book of aircraft C‑GJUB indicates six flights for September 6, 2006. None was annotated as training.

[31] Mr. Martin explained that a competency check is not needed for a chief pilot. However, training and competency checks are two separate events. He repeated that the regulation requires one hour of training per year. When that is completed, the pilot's competency is signed off for the applicable aircraft type.

B. Applicant

(1) Blair Jensen

[32] Mr. Jensen has been 40 years in the aviation industry. He has experience as an AME and as a commercial pilot with instrument and instructor ratings. He and his wife bought Ursus Aviation in 1991. The company has been operating in the North since 1978, strictly for on‑demand charters serving the native community in the Fort Norman area.

[33] Mr. Jensen provided details related to the use of 0.2 for calculating flight time. He said it had been the industry standard for his 40 years in the aviation industry. Air time was readily and accurately available in the cockpit from several instrument sources, such as the GPS or the automatic direction finder display. He recorded flight time in his pilot log book. He explained the nature of northern operations where airports are small and therefore ground times are brief. The first flight of the day would have an engine run-up on a steel pad to protect the propellers from stone damage. This time-consuming process would not be repeated on subsequent flights. He said he never had a problem when he exceeded the 150-hour limit in the past.

[34] Another spreadsheet concerning flight time calculations was introduced as evidence (exhibit A‑1). It was similar to the spreadsheet prepared by Inspector Paulus (exhibit M‑14), but with Mr. Jensen's corrections to flight time. Through later monitoring of the actual difference between flight time and air time, he found that the difference of 0.1 was more accurate. He took into account the first flight of the day, where a run-up had occurred. For subsequent flights, the difference could be explained by much less time needed to taxi between the steel pad and the runway. As a result of this study, he had been mistaken with previous entries.

[35] Mr. Jensen subtracted another 2.5 hours from the flight time on August 13 because he was a passenger in aircraft C-FWHV (exhibit A‑1). The log entry shows Dunn as the pilot; Mr. Jensen as the co‑pilot. However, that is not possible because aircraft C-207 is a single pilot type. Taking into account all these corrections, his flight time for all aircraft in the 30‑day period was 144.6 hours. Therefore, he was not in violation of the CARs.

[36] In cross‑examination, he was asked if, when he submitted the journey log entries to Inspector Paulhus, he had attested that they were accurate representations of entries which he made. He said they were. He was asked about apparent errors and inconsistencies which appear in the journey log books. He admitted there were errors for August 11 in the journey log book of aircraft C-GTTE. As well, he had departed from his standard decimal addition for August 19.

[37] When questioned about his new adjustment of 0.1 for air time, he said that he had been concerned previously with air time only. For the new calculations, he started to track air time with the GPS which begins recording when the aircraft speed reaches 20 miles per hour on take‑off. After landing, he allowed for the turbo charger to cool down for three minutes on the steel pad. As a result, he found that the change from 0.2 to 0.1 should be applied to 133 flights. He said he prepared his spreadsheet concerning flight time calculations in March 2009, from memory. Therefore, entries in the journey log book were not correct.

(a) Paragraph 700.19(1)(b) of the CARs

[38] Mr. Jensen explained how he concluded that he had not breached the regulation regarding the rest periods. His complete flight and duty records were produced as evidence (exhibit A‑2). This document is similar to the flight and duty records for Mr. Jensen that was presented in evidence by the Minister (exhibit M‑14), except that it provides further clarification. It reveals a longer flight and duty records beginning in January 2006. It shows that August 15 and 19 were his days off and that August 22 was scheduled as a day off. He claimed that he was unable to take August 22 as a day off due to a maintenance and manufacturing audit. To confirm the date of that visit, the first page of a letter dated October 13, 2006 was produced in evidence (exhibit A‑3). He explained that his days off were scheduled when it was technically convenient. In cross-examination, when asked which spreadsheet (exhibit A-2 or M-14) was the true copy, he replied that it was the one submitted by the Minister.

(b) Paragraph 703.88(1)(d) of the CARs

[39] A copy of paragraph 8.1.1 e) of the operations manual entitled, Ursus Aviation Single Engine Flight Training Record, was introduced as evidence (exhibit A‑4). Mr. Jensen used this form to clarify his understanding of the difference between training and competency. He pointed out that the signature block states "Certified Competent by". It is signed and filled out by the chief pilot or the qualified designate. He also referred to the journey log book of aircraft C‑GXWN (exhibit A‑5) and particularly to the entry of February 23, 2006. It proves that he completed .8 hours of continuation training, using aircraft G-GXWN, being the most complex single engine aircraft flown by Ursus Aviation.

[40] During cross-examination, Mr. Jensen was questioned on the requirement of section 5.20 in the operations manual. It refers to flight training in section 5.30 for each type of aircraft. It also indicates that training must conform to the flight-training syllabus. According to Mr. Jensen, section 5.30 only applies to reduced visibility in uncontrolled airspace. Therefore, it is not applicable. When asked about his training of September 6, 2006 on the Cessna 172, Mr. Jensen replied that he did not receive it.

IV. ARGUMENT

A. Minister of Transport

[41] The Minister submits that on a balance of probabilities, he has proven the elements for all five infractions under the CARs, relating to Mr. Jensen and Ursus Aviation.

(a) Paragraph 700.15(1)(c)

[42] Oral and documentary evidence indicates that Ursus Aviation assigned flights in excess of 120 hours in a 30-day consecutive period between July 30 and August 28, 2006, and that Mr. Jensen accepted the flights. The standard for increasing the flight time maximum allowable to 150 hours in any 30-day consecutive period, as found in paragraph 720.15(1)(c) of the CARs, was also exceeded.

[43] Evidence from Inspector Paulhus shows a total of 157.7 flight hours in the relevant period for aircraft C-GJTE and C-FWHV. Mr. Martin examined flight time for these aircraft and found that the limit was exceeded.

[44] In cross‑examination, Mr. Jensen indicated that he believed that his entries in the journey log books were accurate. The issue of credibility was raised when two and a half years later he altered the times for 133 different flights, that is 82 percent of all flights. Times for only 29 flights were not modified. Yet, he claimed he used a more accurate calculation for flight time.

[45] The Minister's representative pointed out that section 28 of the Act provides that, in any action, an entry in any record required under the Act is proof of the matters stated therein as against the person who made the entry.

(b) Paragraph 700.19(1)(b)

[46] This section refers to the three 24-hour periods of rest in a 30-day consecutive period. Inspector Paulhus stated that Mr. Jensen had one day off on August 15. Mr. Martin indicated that Mr. Jensen had two days off, that is on August 15 and 19, and did not find any authority for Ursus Aviation to deviate from these regulatory requirements. In cross‑examination, Mr. Jensen agreed that he had only two days off.

(c) Paragraph 703.88(1)(d)

[47] On September 6, 2006, Ursus Aviation permitted Mr. Jensen to act as a flight crew member without the required flight training. Evidence was shown from the journey log books and was confirmed by Mr. Martin who examined the annual flight training records and found there was no authorization to deviate from the regulations. In cross‑examination, Mr. Jensen admitted that, on September 6, 2006, he did not conduct flight training as required. According to the Minister's representative, the monetary penalties are fair for deterrence and rehabilitation.

B. Applicant

[48] Mr. Jensen argues that the alleged infractions caused him to reevaluate his flight time entries. This resulted in a more accurate representation as he subtracted 2.5 hours in flight time. In the Cessna 207, flight time could only be logged by the captain. He was not the captain. His spreadsheet for flight time calculations was more accurate and showed that he was under the 150-hour maximum. Mr. Jensen claimed that at no time was safety compromised.

[49] Regarding the issue of days off, he said he had two days off but the third was compromised by the surprise visit of the auditors. Therefore, in Mr. Jensen's view, the auditors contributed to his inability to take off the third day. Since he had taken days off previously, there was no compromise to safety.

[50] Regarding training, he questioned the value of training for a pilot with 10 000 hours of flight time in a Cessna 172. If there was nothing to teach, the one hour would therefore not serve as training. As chief pilot, there was no need of the one hour of training to be competent. Again, safety was not compromised.

[51] He argues that the monetary penalties were not appropriate because he was fined twice. It should be one person, one fine. There was no blatant disregard of regulations, just a poor number keeping system.

V. DISCUSSION

[52] The alleged infractions for Mr. Jensen and the air operator, Ursus Aviation, are strict liability offences, leaving it open to avoid liability if the applicant can show that it exercised due diligence, pursuant to section 8.5 of the Aeronautics Act. There is no suggestion of official induced error. Due diligence and mistake will weigh heavily in the discussion. Consideration will also be given to the breach of regulations falling within the ambit of public welfare related to flight safety.

(a) Paragraph 700.15(1)(c) of the CARs

[53] The first infraction under paragraph 700.15(1)(c) of the CARs will be discussed jointly for Mr. Jensen and Ursus Aviation. The issue is one of calculation of flight time. In addition, there is the issue of honest mistake in the method used for calculating flight time. The Minister proved all the elements of the infraction for Mr. Jensen and Ursus Aviation through oral and documentary evidence.

[54] I placed the most weight on the spreadsheet and the flight and duty records provided by Inspector Paulhus (exhibits M‑13 and M‑14), and particularly on the latter. During the audit, Mr. Martin chose a 30-day period from July 30 to August 28, 2006. Exhibit M-14 was certified as a true copy and the data was taken from the aircraft journey log books. Mr. Jensen testified that it was an accurate representation. Inspector Paulhus double-checked the times from the journey log books, and I confirmed Mr. Martin's calculated total of 157.7 hours.

[55] Although the source data does have some entry errors, I did not consider this to have a significant outcome in the determination. The spreadsheet provided by Inspector Paulhus has a different total flight time of 156.4 hours for all aircraft. The totals still exceed the 150‑hour maximum. In this document produced from the company's records, I found that the column labeled "personal log Blair Jensen" confirmed the exceeded 150‑hours for the period. In testimony, Mr. Jensen said that he kept a record of flight time in his log book. Elsewhere, the emphasis was placed on tracking air time.

[56] I also placed weight on the Act which says in part that, in any action, an entry in any record required under the Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated against the person who made the entry. I interpreted this to give primacy to the Minister's evidence, based on log books taken at the time of the audit. There was no evidence from the applicant to contradict the original entries or support his replacement system of adding 0.1. The applicant alleges an honest mistake. He provided his own spreadsheet for flight time (exhibit A‑1) and his flight and duty records (exhibit A‑2) to prove that his flight time was 144.6 hours, therefore under the 150‑hour maximum. The discrepancy is based on a record which was kept for the flight time for aircraft C‑GJTE only. That flight time is only accurate depending on which method is used, 0.1 or 0.2. The other journey log books only had a column for air time.

[57] In order to meet the regulation for tracking flight time, the applicant used what he called the industry standard. In fact, it does not exist. He vociferously argued that this industry standard was valid, even though it could produce two different outcomes. Rather than accuracy, the advantage of this system was convenience. It was a simple method for a pilot, who in the course of a day's flying, had many take‑offs and landings. He did not have to record all the times when he started to taxi or when he shut down. He merely added an estimate of 0.2 to each air time.

[58] Using a decimal system instead of recording the actual minutes requires a rounding convention. Six minutes can be interpreted to be 0.1 with three minutes rounded down to the even hour. Likewise, 0.2 is 12 minutes with a three-minute rounding frame, either up or down as the case may be.

[59] It is conceivable at small airports with no conflicting traffic, when flying a small and relatively simple aircraft like a Cessna 207 or 172, to add 0.1 to airtime and still be accurate. It is even possible, though improbable, that with rounding down, a Cessna 172 starting and stopping near the runway could round down the three minutes to show that air and flight times are the same.

[60] Unfortunately, the Minister did not provide any evidence, such as airport diagrams, traffic volumes or even descriptions of such log book destinations as EB3, FN, GH, CREZ. The Minister argued that the change from 0.2 to 0.1 is not credible and not accurate, especially after two and a half years for over 100 entries. However, without diagrams showing runway length, taxiway turn‑offs, apron, terminal and run‑up locations, this assumption has no supporting data.

[61] Mr. Jensen, with his intimate knowledge of these airports and over a decade of experience with operations in the local area, could make an argument for the change. Therefore, I have given him the benefit of this familiarity with his operations. I do not accept the Minister's argument that he is not credible in making this change from memory over two years later. I do not find that entry errors or other discrepancies in his flight and duty records lend support to questioning his credibility. In fact, I found that his admissions on allowing flawed records and practices were adding to his credibility.

[62] Nevertheless, in practical terms, for 125 of the 162 entries the aircraft involved was the larger, heavier, more complex twin engine, that is aircraft C‑GJTE. Mr. Jensen testified that a three‑minute cool down time was used. No mention was made of a warm-up period prior to take‑offs. Large piston engines would, in all probability, require a warm-up phase before application of take‑off power. Mr. Jensen, being an AME, would know that a hasty take‑off would compromise engine life. He did say that a run-up time was added for the first flight of the day. His entire defence is based on his flight time calculations (exhibit A‑1) where the overwhelming majority of entries uses his new convention of a 0.1 difference instead of 0.2 between air and flight times. There is no allowance for waiting of landing or departing aircraft or any other, even that may impede an expeditious departure or arrival. Therefore, there are just too many variables or improbable factors to place more weight on the use of the 0.1 system.

[63] Taking into consideration these operational variables, the 0.2 system is a conservative representation for all of the flights. However, on a balance of probabilities, and in the absence of contrary evidence, its use is appropriate. I found the spreadsheet and the duty and flight records provided by Inspector Paulhus (exhibits M‑13 and M‑14) more credible than the same documents provided by Mr. Jensen.

[64] With respect to due diligence to avoid the issue of liability, the test is two‑fold. There must be a standard in place and reasonable actions to meet special circumstances.

[65] I find that the applicant's words confirm that there was no plan or system in place at Ursus Aviation to ensure regulatory compliance. In his letter to Transport Canada on February 21, 2007 (exhibit M‑7), he states "I cannot confirm or deny" the flight time totals provided in the letter of Inspector Paulhus, dated January 23, 2007 (exhibit M‑3). Transport Canada inspectors informed him that he might be over his flight time. This indicates a passive oversight to the issue of time management.

[66] In later testimony, Mr. Jensen said that he was "mostly concerned with air time" and that he was "focused on air time". However, the regulatory standard is based on flight time. To meet this requirement, he used estimates, but apparently never kept a running total. When I asked Mr. Jensen questions about the nature of his flight operations, he replied that the issue of exceeding the time limitations had never been a problem in past years. The difference in the summer of 2006 was an accident involving his competitor. Consequently, Ursus Aviation was meeting the community needs which had been formerly provided by two carriers.

[67] In these special circumstances, I would find that the actions of a reasonable owner‑operator would be one of caution. It would be reasonable to anticipate that the extra on‑demand charters would quickly add to the flight time. This would dictate an actively pursued policy of tracking this time to avoid the risk of an infraction. I heard no such degree of care. A software program was implemented but used only after the audit.

[68] Mr. Jensen asked Inspector Paulhus if the objective was to promote aviation safety. The concern for fatigue is applicable in this situation, where Mr. Jensen is not only the owner‑operator with all of the management responsibilities but also the sole pilot. In addition, he has the management responsibility for an approved maintenance organization, and he carries out the maintenance for all four of his aircraft located at two widely separated bases. His workload is described in the flight and duty records (exhibit M‑14). It indicates a duty day of 12.5 hours ending at 10:30 p.m. on August 23. This is followed by starting the next morning at 7:50 a. m. and accruing 12.6 of flight time hours. As another example, Mr. Jensen had 11 take‑offs and landings on August 11 and his duty day ended at 1:00 a. m. the next day.

[69] The regulator makes few distinctions in maximum flight hours which can be flown. There may well be a difference in the effects of fatigue between a pilot who makes numerous VFR take‑offs and landings with air time of short duration in a localized region and another who may fly one cycle of 14‑hours duration across multiple time zones, followed by one instrument landing at a high‑density international destination. The overall concern related to maximum flight time and duty limitations is inferred by the precision of the regulations. Therefore, accurate tracking of flight time does relate to public welfare and flight safety.

[70] For the above reasons, I find that the Minister of Transport has proven that Mr. Jensen and Ursus Aviation have contravened paragraph 700.15(1)(c) of the CARs.

(b) Paragraph 700.19(1)(b) of the CARs

[71] With respect to the infraction of paragraph 700.19(1)(b) of the CARs, it relates only to the air operator. The issue is the method of calculating rest periods. The applicant mistakenly used a system of calculating backwards into July from a day off in August and then tried to project forward. The onus for the Minister to prove all the elements of the infraction for Ursus Aviation was satisfied.

[72] In my determination that all the elements had been proved, I placed the most weight on the flight and duty records provided by Inspector Paulhus (exhibit M‑14). There was far less conflict in data between the Minister and the applicant than with the previous charge. When cross‑examined, Mr. Jensen could see that the wording of the regulation relates to any consecutive 30‑day period. Even with the complete flight and duty records that he presented as evidence (exhibit A‑2), there were only two days off.

[73] I also placed emphasis on the Commercial and Business Aviation Advisory Circular (exhibit M‑17) which related to flight and duty time. It states, "All flight time and flight duty time is inherently fatiguing." Therefore, under the CARs, air operators must have a system for monitoring flight time, duty time and rest periods. This system must be described in the operations manual. Mr. Jensen had access to this circular on the Transport Canada Web site. He told me that his base of operations had Internet access.

[74] In testimony, Mr. Jensen said that he took time off when it was convenient. This falls far short of the due diligence test. It may be a challenge for a northern owner‑operator during the peak flying season with long flying days and the burden of extra charter demands to have many days off. Nevertheless, there was no evidence presented of assiduous tracking, care sufficient to meet the imposed standard, scheduling flexibility or provision for a relief pilot.

(c) Paragraph 703.88(1)(d) of the CARs

[75] With the infraction related to paragraph 703.88(1)(d) of the CARs, the first issue concerns the question if the training on the Cessna 172 was required for Mr. Jensen in his capacity of chief pilot. The second was that if any training was done on or about September 6, 2006. This section of the CARs requires that the flight crew member fulfills the air operator's flight training program. The table found on page 5‑15 of the operations manual seems to be the complete outline of that training.

[76] I found that the subject was not fully and clearly explained in that table. It simply says that the flight crew is required to complete one hour of recurrent training on a single engine aircraft. Below that line is the reference for another hour of annual training needed for low visibility flight. This suggests that two hours of training must be provided to each pilot every year.

[77] The table on page 5‑15 has no clarifying footnotes as to the application of the requirements training. Without clarification one is forced to presume that it applies to all pilots to complete all the minimum recurrent training each year.

[78] The Minister referred to section 5.30 of the operations manual, as reinforcement that flight-training exercises had to be completed with this annual training. Yet, the applicant argued that section 5.30 only applied to reduced visibility training which was not part of the annual training, even though it appears in the table. Paragraph 5.30.1(b) explains the syllabus for this training and paragraph 5.30.1(c) refers to the procedures found in paragraph 3.5.3(c) of the operations manual that was presented as evidence by the Minister. It failed to include the first eight pages of chapter 3 concerning VFR operating requirements. In addition, it excluded all of chapter 8 which gave examples of all the company forms. Therefore, it was impossible to conclude if the operations manual required one or two hours of training.

[79] I could indeed see that in his argument the applicant was confused over the issue of training and competency check. The wording in the operations manual simply states that annual training is given to ensure competency. The applicant indicated that the signature block on the copy of paragraph 8.1.1 e) of the operations manual (exhibit A‑4) used the wording "Certified Competent by". Therefore, this form relates to competency. Since subsection 703.88(7) of the CARs provides an exemption for the chief pilot under specified conditions, Mr. Jensen drew the conclusion that he was exempt.

[80] As the operations manual lacks clarity, I therefore placed considerable weight on the best evidence. That was Mr. Martin's testimony. He testified that competency check and training were two separate events. I found his testimony to be credible and unwavering during the cross‑examination and the re‑examination.

[81] The wording found in the Commercial and Business Aviation Advisory Circular (exhibit M‑19) lends support to Mr. Martin's interpretation of the regulations. It refers to one pilot on staff and the need for that person to complete annual training. He could be in a similar situation as the chief pilot of Ursus Aviation.

[82] The second issue is the need to complete this training by the required date. This was better explained in the circular. The journey log book for aircraft C‑GJUB and the applicant's testimony indicated that he did not complete this training on or about September 6, 2006.

[83] Regarding due diligence, again I found an absence of reasonable care to avoid the liability. The Minister introduced the advisory circular (exhibit M‑19) which clarified self‑training. It states that air operators are required to describe their training programs in their operations manual. I did not find that Ursus Aviation provided the required level of detail or clarity in its operations manual.

[84] Section 1.5.2 of the operations manual delegates the responsibility of developing the training to the chief pilot. With any questions of interpretation, I would have thought that the actions of a reasonable chief pilot would be to contact the principal operations inspector and ask for clarification. If there was any ambiguity about training, an amendment could be made. Mr. Jensen has ultimate control over the drafting of the operations manual, its wordings and forms.

[85] Once the training standards had been clarified in the operations manual, a reasonable course of action would be to have a tracking system in place. This would red flag all of the training that has to be done for all the various aircraft types. It would then be an issue of scheduling that training in the year before an operator's busy season. No such system was used.

[86] I took into consideration the applicant's argument regarding questionable training value on a simple type of aircraft, such as the Cessna 172. I do agree that the syllabus found in paragraph 8.1.1 e) of the operations manual is basic for a pilot with 10 000 hours of flight time. Unfortunately, the regulator mandates that it still must be done.

[87] The applicant stated that the journey log book of aircraft C‑GXWN (exhibit A‑5) proved that he had completed continuation training in the more advanced single engine Maule. However, it still did not meet the standard. It was 0.8 and not one hour. It was done solo and not with a qualified training pilot, contrary to the directives provided in the Commercial and Business Aviation Advisory Circular (exhibit M‑19).

[88] In summary, the absence of any such assiduous tracking for flight time, rest periods and training leaves the impression that only lip service was paid to the requirements of the regulation and the operations manual.

VI. SANCTIONS

[89] I considered the applicant's argument that the sanctions were onerous, given that the considerable sum, was in essence, coming out of the same pocket. However, Inspector Paulhus said that the amounts represent the minimum for a first offence.

[90] I found factors which supported the applicable sanctions in the letter of October 4, 2006, addressed to Ursus Aviation. It indicates that improvements were only incremental. It implies that previous concerns were expressed over record keeping and the operations manual. It states that some records were in a "disorganized state". In contrast, I could find little evidence to suggest other than a laissez‑faire approach to record keeping.

VII. DETERMINATION

A. TATC File No. W-3373-33

[91] I find that the Minister of Transport has proven the allegations that the applicant, Mr. Jensen, has contravened paragraphs 700.15(1)(c) and 703.88(1)(d) of the CARs. I confirm the assessed monetary penalty of $1000 for each contravention, for a total of $2000.

B. TATC File No. W-3375-41

[92] I find that the Minister of Transport has proven that the applicant, 102643 Aviation Ltd. d.b.a. Ursus Aviation, has contravened paragraphs 700.15(1)(c), 700.19(1)(b) and 703.88(1)(d) of the CARs. I confirm the respective monetary penalties of $5000, $3750 and $5000, for a total of $13 750.

June 15, 2009

Arnold P. Vaughan

Member


Appeal decision
Howard M. Bruce, Dr. Trevor Allan Gillmore, Franco Pietracupa


Decision: May 4, 2010

Citation: 102643 Aviation Ltd. v. Canada (Minister of Transport), 2010 TATCE 11 (appeal)

Heard at Saskatoon, Saskatchewan, on February 3, 2010

Held: The Appeal is dismissed. The Appeal Panel upholds the review determination, confirming the Minister's decision to assess respective monetary penalties of $5 000, $3 750 and $5 000 against the Appellant, for a total of $13 750.

The total amount of $13 750 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Decision.

File Nos.: W-3373-33

W-3375-41

I. BACKGROUND

[1] A specialty audit of 102643 Aviation Ltd. d.b.a Ursus Aviation was conducted during the period of September 11 to 13, 2006. During the audit and investigation, the audit team found that Blair William Jensen had flown more than 150 hours in a 30-day consecutive period from July 30 to August 28, 2006, and also had exceeded 210 hours in any 42 consecutive days during the period of July 30 to September 9, 2006.

[2] In addition, Mr. Jensen had not received three periods of 24 consecutive hours free from duty in a period of 30 consecutive days between August 13 and September 10, 2006, and he did not meet the flight-training program related to annual recurrent training on single engine aircraft, the Cessna 172 aircraft registered as C-GJUB.

A. File No. W-3373-33 (Blair William Jensen)

[3] On April 30, 2007, the Minister of Transport assessed monetary penalties against Mr. Jensen, for contraventions of paragraphs 700.15(1)(c) and 703.88(1)(d) of the Canadian Aviation Regulations ("CARs"), pursuant to section 7.7 of the Aeronautics Act ("Act").

B. File No. W-3375-41 (Ursus Aviation)

[4] On April 30, 2007, the Minister of Transport assessed monetary penalties against Ursus Aviation, for contraventions of paragraphs 700.15(1)(c), 700.19(1)(b) and 703.88(1)(d) of the CARs.

II. STATUTES, REGULATIONS AND POLICIES

[5] Paragraphs 700.15(1)(c), 700.19(1)(b) and 703.88(1)(d) and subsection 703.88(7) of the CARs provide the following:

700.15(1) Subject to subsection (2), no air operator shall assign a flight crew member for flight time, and no flight crew member shall accept such an assignment, if the flight crew member's total flight time in all flights conducted by the flight crew member will, as a result, exceed

. . .

(c) 120 hours in any 30 consecutive days or, in the case of a flight crew member on call, 100 hours in any 30 consecutive days;

. . .

700.19(1) Subject to subsection (2), an air operator shall provide each flight crew member with the following time free from duty:

. . .

(b) where the operation is conducted under Subpart 2 or 3 or is conducted using a helicopter, one period of at least 24 consecutive hours 13 times within each 90 consecutive days and 3 times within each 30 consecutive days; and

. . .

703.88 (1) Subject to subsections (6) and (7), no air operator shall permit a person to act and no person shall act as a flight crew member in an aircraft unless the person

. . .

(d) has fulfilled the requirements of the air operator's ground and flight training program.

703.88(7) Subparagraph (1)(c)(iv) does not apply in the case of a chief pilot who acts as pilot‑in‑command of a single-engined aeroplane that is not operated in accordance with subsection 703.22(2).

[6] During the Review Hearing, the Member heard the testimonies of Mitch Paulhus, a Civil Aviation Inspector with Transport Canada, Rick Martin, a Superintendant for certification with Transport Canada, as well as Mr. Jensen. The Review Member was also able to consider the documentary evidence provided by the parties (Exhibits M-1 to M‑20 and A-1 to A-5).

[7] At the Review Hearing, after having considered the oral and documentary evidence and heard the arguments presented by the parties, the Review Member confirmed the Minister's decisions, in both files, on all counts.

III. GROUNDS FOR APPEAL

[8] On July 17, 2009, the Appellants filed a request for appeal on the two determinations by the Review Member, raising the following grounds:

The Review Hearing did not address the Minister's interpretation of CARs 703.88(1)(7) which made for the alleged violation ─ Nor did it address the fact that the Minister's interpretation caused the violation of CARs 700.19(1)(b). The Minister also groups all time as flight duty time when it is not.

IV. ARGUMENTS

A. Appellant

[9] During the Appeal Hearing, the Appellants were able to elaborate on their reasons for appeal.

[10] The first ground for appeal is that the Minister did not consider the application of subsection 703.88(7) of the CARs. According to the Appellants, the fact that Mr. Jensen was a chief pilot allowed the application of subsection 703.88(7) of the CARs and gave the Appellants an exemption from the application of paragraph 703.88(1)(d) of the CARs.

[11] The second ground for appeal submitted is that the Minister conducted an audit on one of Mr. Jensen's days off, which caused him to have to come to work, thereby the air operator contravening paragraph 700.19(1)(b) of the CARs.

[12] Finally, the third ground for appeal is that the Review Member erred in his evaluation of the facts in the computing of flight time and air time. The Appellants indicated that they presented their estimation of flight time as far as they could deem correct, and that the Review Member should have given more weight to their scenario.

B. Minister of Transport

[13] The Minister's representative submits that the evidence presented at the Review Hearing clearly established that the Appellants contravened the applicable provisions of the CARs.

[14] The Minister's position is that subsection 703.88(7) of the CARs is not applicable to the present matter, given that the contravention is under paragraph 703.88(1)(d) and not subparagraph 703.88(1)(c)(iv), which is what subsection 703.88(7) makes reference to.

[15] With respect to paragraph 700.19(1)(b), the Review Member's interpretation is correct and need not be modified. The Review Member found the evidence presented to him to be credible and sufficient to meet the burden of proof resting on the Minister.

[16] Finally, the findings made by the Review Member regarding the contravention of paragraph 700.15(1)(c) of the CARs were reasonable, considering the evidence presented, and should not be overturned.

V. STANDARD OF REVIEW

[17] With respect to the standard of review applicable to the evaluation of oral and documentary evidence presented to the Member at the review hearing, it is vital to review and apply the principles stated by jurisprudence. When considering the conclusions of fact made by a Member during a review hearing, the appeal determination, Moore v. Canada (Minister of Transport), 1991 CAT file no. C-0138-33, confirms the principle that an appeal tribunal should not overturn conclusions of fact made by the Member during the Review Hearing.

I have no difficulty therefore in finding that the Member took into account evidence which was properly considered by him and his decision in this regard, should not be reviewed by the Appeal Tribunal. Were it otherwise, that is, if the Member took into account improper material and therefore does not act judicially (re: Swan and Tavrydas, Ex parte SYME (1979), 48 C.C.C. (2nd) 501), his decision would be reviewable by an Appeal Tribunal and the member could be compelled to exercise his discretion according to proper principles.

I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law, (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is none the less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearings officer.

This distinction may be subtle, but it is vital both to the preservation of the integrity of the Appeal process and the safeguarding of the fundamental rights of the individual.

[18] In Long v. Canada (Minister of Transport), 2004 TATC file no. O‑2824‑02 (appeal decision), the Tribunal states the following concerning the applicable review and appeal criteria to be applied by the Tribunal:

As the Aeronautics Act and its subordinate legislation are generally concerned with aviation safety we do not think that a decision which may have safety consequences should have to be patently unreasonable, i.e., clearly irrational before it may be found wanting.

We find that the standard of review as between the determination at first instance and that on appeal in Transportation Appeal Tribunal of Canada proceedings is whether the findings are "unreasonable."

[19] Finally, these principles are reiterated in Minister of Transport (Canada) v. Arctic Wings Ltd., 2006 TATC file no. W‑2899-41 (appeal decision):

Previous Tribunal jurisprudence has given guidance as to the standards of review. Our task is to assess whether the member's finding was unreasonable. 1 A finding of fact should not be overturned unless there is an entire absence of evidence to support it, or notwithstanding that there is some evidence concerning the finding it is an unreasonable finding incapable of being supported by the evidence. 2 Regarding credibility issues, it has been recognized that the hearing officer is in the best position to be able to determine which evidence he prefers and which evidence, when in conflict, he is prepared to accept. In the result, unless findings of credibility are patently unreasonable, not being supported by testimony under oath, we as an appeal panel should be loath to substitute our own findings for the member's.3 On questions of law the standard would still be correctness.

1 William R.T. Long v. MoT, appeal decision, [2004], O-2824-02.

2 Trent Wade Moore v. MoT, appeal determination, [1991], C-0138-33.

3 Minister of Transport v. Thomas Ritchie Phillips, appeal determination, [1987], C-0014-33.

[20] We must thus apply these principles in the evaluation of the Appellants' reasons for appeal.

VI. DISCUSSION

A. Ground  1

Application of subsection 703.88(7) of the CARs

[21] The Appellants contend that because Mr. Jensen is a chief pilot, subsection 703.88(7) of the CARs exempted him from the application of paragraph 703.88(1)(d).

[22] In fact, subsection 703.88(7) of the CARs that clearly states the following: "a chief pilot who acts as pilot‑in‑command of a single-engined aeroplane that is not operated in accordance with subsection 703.22(2)", is exempted from the application of subparagraph 703.88(1)(c)(iv) and not paragraph 703.88(1)(d) of the CARs. The Appellants thus cannot rely on subsection 703.88(7) of the CARs, as the alleged contravention in the present matter is based on paragraph 703.88(1)(d) of the CARs.

[23] We find that, in both files, the Review Member's determination with respect to this question was correct and reasonable. We dismiss this ground of appeal and confirm the findings of the Review Member's determination.

B. Ground  2

Contravention of paragraph 700.19(1)(b) of the CARs (File No. W-3375-41)

[24] The Appellant contends that the Minister conducted an audit on one of Mr. Jensen's days off and that he was thus obligated to come in to work, which in effect caused the contravention of paragraph 700.19(1)(b) of the CARs.

[25] The fact that the Minister conducted an audit on Mr. Jensen's day off, which necessitated that he come in to work, is not the cause of the contravention of paragraph 700.19(1)(b) of the CARs. It is the Appellant's duty to act in conformity with the applicable legislation at all times, regardless of the personal circumstances that may require his presence at work during a scheduled day off. Mr. Jensen could have taken other measures to ensure that he respected paragraph 700.19(1)(b) of the CARs, such as taking another day off.

[26] We find that the Review Member's findings, with respect to this question are correct and reasonable, considering the evidence before him. Consequently, we dismiss this ground of appeal and confirm the Review Member's determination.

C. Ground 3

Error in the evaluation of the facts in the computing of flight time and air time

Contravention of paragraph 700.15(1)(c)

[27] The Appellants contend that the Review Member erred in his evaluation of the facts in the computing of flight time and air time, and that he should have given more weight to the evaluation presented by Mr. Jensen.

[28] In accordance with the principles enunciated in the Tribunal's decisions, Moore, Long and Arctic Wings Ltd., cited above, our task is to assess whether the Review Member's findings were unreasonable. A finding of fact should not be overturned unless there is an entire absence of evidence to support it, or notwithstanding that there is some evidence concerning the finding, it is an unreasonable finding that cannot be supported by the evidence.

[29] In the present file, the Review Member heard three witnesses, including Mr. Jensen, and was able to consider documentary evidence, as stated in Minister of Transport (Canada) v. Arctic Wings Ltd., 2006, TATC file no. W-2899-41 (appeal decision):

. . . [I]t has been recognized that the hearing officer is in the best position to be able to determine which evidence he prefers and which evidence, when in conflict, he is prepared to accept. In the result, unless findings of credibility are patently unreasonable, not being supported by testimony under oath, we as an appeal panel should be loath to substitute our own findings for the member's. . . .

[30] We must also consider that the fundamental documents used by the Minister to compute the total flight time were the aircraft journey logs. These documents constitute proof of the matters stated therein against the person who made the entry.

[31] Section 28 of the Act states as follows:

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.

[32] It is the Appellants' responsibility to ensure that the information recorded in the aircraft journey logs is accurate. This information is not to be an estimation that can be readjusted at a later date once a potential infraction is discovered.

[33] Accurate record keeping in such documentation is at the root of maintaining optimal security standards, which are vital for all actors involved in the aeronautics industry.

[34] We find that the findings of fact made by the Review Member are reasonable, and he was in the best position to evaluate all the evidence presented.

VII. DECISION

A. File No. W-3373-33

[35] We uphold the review determination, confirming the Minister's decision to assess a monetary penalty of $1 000 for each contravention, for a total of $2 000.

B. File No. W-3375-41

[36] We uphold the review determination, confirming the Minister's decision to assess respective monetary penalties of $5 000, $3 750 and $5 000 against the Appellant, for a total of $13 750.

May 4, 2010

Reasons for Appeal Decision: Mr. Howard M. Bruce, Member

Concurred by: Dr. Trevor Allan Gillmore, Member

Mr. Franco Pietracupa, Member