Decisions

TATC File No. P-3556-02
MoT File No. EMS 67221

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Gerald John Visser, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, subsection 602.88(2)


Review Determination
Elizabeth MacNab


Decision: October 26, 2009

Citation: Visser v. Canada (Minister of Transport), 2009 TATCE 29 (review)

Heard at Abbotsford, British Columbia, on May 28 and 29, 2009

and at Vancouver, British‑Columbia, on July 7 and 8, 2009

Held: The Minister has failed to prove, on a balance of probabilities, that the applicant, Gerald John Visser, has contravened subsection 602.88(2) of the Canadian Aviation Regulations. The 30-day suspension of the applicant's airline transport pilot licence, pursuant to section 6.9 of the Aeronautics Act, is cancelled.

I. BACKGROUND

[1] The issues in this matter arise out of a series of flights that took place between approximately 7:00 and 8:30 a.m. on September 2, 2008, during a trip from Abbotsford to Nanaimo, Nanaimo to Victoria and Victoria back to Abbotsford by a BCWest Air Inc. aircraft, registered as C‑GDFR, with Gerald John Visser as pilot‑in‑command. Later in the afternoon of the same day, the aircraft was fuelled and a total of 671.82 litres (L) were added. From calculations based on information from the Pilot's Operating Handbook (POH, exhibit M-12) that the total usable fuel for the aircraft was 693.3 L, it was concluded that at the time of fuelling there would have been 21.48 L remaining in the tanks. Based on information in the flight plans (exhibit M-3), the Minister of Transport also calculated that 71.82 L were necessary to meet the requirement that aircraft at take-off have enough fuel to fly for 30 minutes beyond the destination aerodrome at normal cruising speed. On the basis of these calculations, on January 13, 2009, the Minister issued a notice of suspension, pursuant to section 6.9 of the Aeronautics Act (Act) that imposed a 30‑day suspension of the airline transport pilot licence of Mr. Visser for a contravention of subsection 602.88(2) of the Canadian Aviation Regulations (CARs).

[2] Schedule A of the notice of suspension states as follows:

On or about September 2, 2008 at approximately 8:09 a.m. local time, at or near Victoria, British Columbia, as the pilot-in-command of aircraft bearing Canadian registration C‑GDFR, you, Gerald John Visser, commenced a flight when the aircraft did not carry sufficient fuel. Specifically, you operated the said aircraft in day VFR flight without carrying a sufficient amount of fuel to fly to the destination aerodrome and then to fly for a period of 30 minutes at normal cruising speed, thereby contravening subsection 602.88(2) of the Canadian Aviation Regulations.

Penalty assessed: 30 day suspension of Airline Transport Pilot Licence − Aeroplane (AA)

[3] On January 15, 2009, Mr. Visser requested a review of the Minister's decision. A stay of the suspension of his licence was granted until the review had been completed.

II. LAW

[4] The basis of the suspension is section 6.9(1) of the Act:

6.9 (1) If the Minister decides to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued has contravened any provision of this Part or of any regulation, notice, order, security measure or emergency direction made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at that person's latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

[5] It is alleged that the applicant contravened subsection 602.88(2) of the CARs. This subsection requires compliance with subsections 602.88(3) to (5) and the specific allegation related to subparagraph 602.88(3)(a)(i) of the CARs:

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).

(3) An aircraft operated in VFR flight shall carry an amount of fuel that is sufficient to allow the aircraft

(a) in the case of an aircraft other than a helicopter,

(i) when operated during the day, to fly to the destination aerodrome and then to fly for a period of 30 minutes at normal cruising speed, or

(ii) when operated at night, to fly to the destination aerodrome and then to fly for a period of 45 minutes at normal cruising speed; or

. . .

(5) Every aircraft shall carry an amount of fuel that is sufficient to provide for

(a) taxiing and foreseeable delays prior to take-off;

(b) meteorological conditions;

(c) foreseeable air traffic routings and traffic delays;

(d) landing at a suitable aerodrome in the event of loss of cabin pressurization or, in the case of a multi-engined aircraft, failure of any engine, at the most critical point during the flight; and

(e) any other foreseeable conditions that could delay the landing of the aircraft.

III. EVIDENCE

A. Minister of Transport

(1) Claudio Rosa

[6] Claudio Rosa is an aviation enforcement inspector with Transport Canada. He has held an aircraft maintenance engineer (AME) licence for 20 years and also holds a British Colombia accreditation as an investigator. He was assigned to investigate this matter based on a detection notice (exhibit M-1) dated September 17, 2008, and signed by Inspector Marc Perka of Transport Canada, concerning a recorded interview with Andreas Biela, a former employee of BCWest Air, that described the basis for the alleged contravention.

[7] Inspector Rosa's investigation showed that the aircraft journey log for aircraft C‑GDFR recorded three flights between 7:08 a.m. and 8:27 a.m. on the morning of September 2, 2008, from Abbotsford to Nanaimo, Nanaimo to Victoria and Victoria back to Abbotsford.

[8] Later in the afternoon, the aircraft was refuelled in two stages to a total of 671.823 L of fuel. Although the receipts for this refuelling were not produced, Mr. Visser supplied Inspector Rosa with a copy of the account statement (exhibit M-10) showing that his company, Godspeed Aviation Ltd. had billed BCWest Air, the owner of the aircraft, for that amount of fuel delivered on September 2, 2008.

[9] In the course of his investigation, Inspector Rosa interviewed a number of witnesses who also testified, including William Barrett, the manager of operations for the Abbotsford International Airport at the time of the alleged contravention. An email from Mr. Barrett was produced as evidence (exhibit M-11), confirming that there had been a fuel leak from the aircraft on September 2, 2008. The email stated that the leak was sufficient to be noticeable but not enough to cause extensive damage to the surface. He estimated the leak to be from ½ to 1 L.

[10] Inspector Rosa explained the calculations that led him to believe there was insufficient fuel on board the aircraft to meet the regulatory requirement. In reaching this conclusion, he relied on the fuel capacity statements in the POH and the following conversion values:

One US gallon (US gal) = 3.78 L

One US gal = 6 pounds

[11] On the basis of these values, he calculated that the total usable fuel established in the POH as 183.5 US gal would be 693.3 L, and that the amount remaining in the tanks at the time of refuelling would be 693.3 L minus 671.82 L equalling 21.48 L. On the basis of BCWest Air's weight and balance reports (exhibit M-3), which listed a cruising rate of 75 percent of engine capacity, he determined that 30 minutes at normal cruising speed would require 19 US gal of fuel or 71.82 L. Thus he calculated that a further 50.34 L would be necessary to meet the regulatory requirement in subparagraph 602.88(3)(a)(i) of the CARs (the 30‑minute rule). These calculations were set out on Inspector Rosa's calculation sheet (exhibit M-13). In his testimony, however, he pointed out that he had made an error in his calculations and that the correct amount of fuel that would be required to meet the requirement would be 50.01 L (exhibit M-14).

[12] Inspector Rosa introduced Google aerial maps showing Operational Stand 7 (OP stand 7, exhibit M-15). As a result of his investigation, Inspector Rosa recommended a punitive suspension of Mr. Visser's airline transport pilot licence (ATPL). As a result, the notice of suspension of the licence was issued on January 13, 2009.

[13] With regard to sanction, Inspector Rosa referred to the table in the Aviation Enforcement Procedures Manual which establishes a range of 14 to 30 days for a suspension for a first contravention of subsection 602.88(2) of the CARs. He listed the aggravating factors that influenced the choice of the maximum period as being:

- the flight was a commercial operation carrying passengers;

- the pilot held an ATPL licence, which is the highest level, and should have a higher duty of care;

-  the co‑pilot expressed concerns regarding the amount of fuel at Victoria where fuel was available;

- the pilot's statement that the fuel gauges and computer were unreliable.

[14] In cross-examination, Inspector Rosa agreed that Mr. Visser had been co-operative throughout the investigation, and that he had voluntarily provided the statement of account when the actual fuel receipts were unavailable (exhibit M-10). He acknowledged that he had made no allowance in his calculations for taxi time, engine cool down, any fuel leaks or taxi to the fuel stand. He added, however, that the fuel used in these activities would not have significantly affected his calculations.

(2) Andreas Biela

[15] Mr. Biela has a commercial pilot licence with multi-engine and instructor ratings. He worked for BCWest Air from November 1, 2007 to September 11, 2008. On September 2, 2008, he was co-pilot of the three morning flights. As part of his duties, he prepared the weight and balance reports for these flights beginning with a fuel weight of 450 pounds, as directed by Mr. Visser who was the pilot-in-command. He noticed that the fuel gauges read between ¼ and ⅓ full and suggested to Mr. Visser that more fuel should be added. He made the same suggestion in Victoria when the gauges read nearly empty. On both occasions, his suggestion was rejected.

[16] Upon returning to Abbotsford, Mr. Biela left the airport, and returned at around 3:45 p.m. to prepare for the afternoon flights. Andrew Yakiwchuk and Daniel Burpee, two newly hired pilots who were undergoing training were on board. When Mr. Visser arrived, he taxied the aircraft to the fuelling station and asked Mr. Biela to refuel while he carried out some training. The refuelling took place in two stages. First, Mr. Biela authorized 600 L, and when he realized that amount did not fill all the tanks, he authorized a further amount and, in fact, put in another 70 L or so. At this point, the tanks were full right up to the filler neck. Mr. Biela kept the fuel receipts and sent them with another pilot to the company's chief pilot because he was concerned that the aircraft had been operated with insufficient fuel. He also stated that he had not seen a fuel leak from the aircraft at any point during that day.

[17] In cross-examination, Mr. Biela acknowledged that his relationship with Mr. Visser had deteriorated over the last six months, and that both he and the chief pilot had submitted their resignation notices shortly before September 2, 2008. He denied that he was angry on that date or that he had deliberately spilled fuel in the course of refuelling. He said that the cruise power settings would have been 36 to 37 inches and 2300 revolutions per minute (rpm).

[18] Mr. Biela said that he was willing to continue with the flight after suggesting that fuel should be added because he did not want a further confrontation with Mr. Visser, and because Mr. Visser had greater experience. He could offer no explanation why Mr. Burpee, another pilot who was on the flight, had not heard his protests.

(3) Robert Sabyan

[19] Robert Sabyan was the chief pilot of BCWest Air on September 2, 2008. On September 3, 2008, he received a telephone call from Mr. Biela, concerning the amount of fuel for the flights. During the conversation, he did his own calculations and determined that there would have been approximately 5 US gal of fuel left in the tanks before they were refuelled. He requested the receipts, which he received on September 5, 2008, but they have since been misplaced. He discussed the matter with the company's operations manager, Ken Thorson, and told him that either Mr. Thorson must do something about it or he would.

[20] He said that the minimum the company recommended to comply with the 30‑minute rule was 19 US gal. He felt that this was a minimum amount since it would allow only 10 to 12 minutes of additional flying. He also mentioned that Mr. Visser told him that the fuel had leaked while the aircraft had been parked on the ramp.

[21] On cross-examination, Mr. Sabyan agreed that additional fuel would have been used in taxiing, engine cool down, a restart, run-up training demonstration and a second taxi to the fuel pumps, although he would not agree that it was substantial. He could not give an estimate of the possible amount of fuel that would be used. He agreed that there had been a problem with leaks from a fuel drain that had been fixed earlier but that he was not aware of any subsequent leak. Finally, he said that he was aware of problems with the company and that he had given his notice of resignation from his position at the end of August 2008.

(4) William Barrett

[22] Mr. Barrett has been a pilot since 1960. On September 2, 2008, he was the manager of operations for the Abbotsford International Airport. He was responsible for operational activities on the airside, including maintenance personnel and fire fighters.

[23] On the morning of September 2, 2008, he was informed of a fuel leak at OP stand 7. Upon investigation, he found a leak under the right wing of the aircraft that left a stain of 8 to 10 inches in diameter on the asphalt surface. He estimated that the leak would have amounted to ½ to 1 L. He stated that no report of the leak had been made but that OP stand 7 was located close to the area where fire fighters were stationed, and so there would have been at least a dozen patrols carried out that day.

[24] On cross-examination, Mr. Barrett stated that it looked as though the leak was from the right hand fuel drain and that he had experience with such leaks. He agreed that some such leaks could drip steadily for a period of time but he had never seen one that emptied a tank of fuel. He agreed that avgas evaporates more quickly than regular fuel and that a slow steady drip would leave a smaller stain on the tarmac than a leak that spills all at once.  He also pointed out, however, that although a drip would cause a smaller stain, it would also damage the asphalt and that any damage caused by this leak was minor enough to be left until the next routine resealing.

(5) Gregory Massey

[25] Gregory Massey is a fire fighter at the Abbotsford International Airport. He explained the procedures for dealing with fuel spills of various sizes at the airport. He also explained that a fuel spill would eat away at the asphalt degrading the surface and for that reason, it is important to contain and clean it up as quickly as possible. He was on duty on September 2, 2008, and did not see any spill at OP stand 7, although he made about six patrol circuits in a vehicle that would pass that area. He also testified concerning an earlier spill from an aircraft of BCWest Air that was parked at OP stand 7. The spill was noticed from the fire fighters' office and was cleaned up by fire fighters.

[26] Finally, he explained and showed photographs of an exercise carried out at the airport, as to the effects of a spill of 50 L of water (exhibit M-19). He acknowledged that aviation fuel would evaporate faster than water.

[27] On cross-examination, Mr. Massey repeated that aviation fuel would evaporate faster than water but that he could not estimate the percentage difference. He agreed that the experiment with 50 L of water was not similar to an equivalent spill of aviation fuel, whether the leak was a stream or a drip over a number of hours. He did point out, however, that a leak of 50 L would need to be a stream, not a drip. He also mentioned that the earlier leak of 4 L on a hot sunny day in July had left a stain.

(6) Stephen Hewitt

[28] Stephen Hewitt holds an airline pilot transport licence and has been employed as an inspector by Transport Canada since 2001. Before that, he held positions in commercial aviation. He testified as an expert witness.

[29] Inspector Hewitt first provided an analysis of section 602.88 of the CARs. He pointed out that, as well as the requirement in subparagraph 602.88(3)(a)(i) that aircraft in VFR flight carry enough fuel to operate for 30 minutes at normal cruising speed beyond the intended destination, subsection 602.88(5) also imposes fuel requirements. These include sufficient fuel for taxiing and dealing with meteorological conditions, foreseeable traffic delays and any other foreseeable delays that might delay the landing of the aircraft. To meet these requirements, he said that pilots would typically factor in an additional 30 to 45 minutes of fuel.

[30] Inspector Hewitt also discussed the concept of cockpit resource management (CRM) and how it could have been applied during the flight of September 2, 2008. One aspect of CRM is once a problem has been identified, it must be dealt with and it is the responsibility of the pilot‑in‑command to ensure that it is done. During that flight, once concerns about the amount of fuel had been raised, and bearing in mind the admitted inaccuracies of the fuel gauge and computer, there were two possible means of ensuring that the requirements were met. The tanks could either be completely filled or fuel to the amount established by the flight plan could be added.

[31] Inspector Hewitt also discussed fuel usage in the context of the flight plans (exhibit M‑3) and an alternative fuel calculation submitted by Mr. Visser (exhibit A-7). The first difference in the two bases for calculation was the percentage of power in the cruise portion of the flight. The flight plan established the power setting as 75 percent whereas Mr. Visser based his calculations on 65 percent, which would use less fuel. Inspector Hewitt felt that 75 percent power was more accurate. He noted that the flight plan established 75 percent as the power setting, and that pilots generally conform to the power settings established in the document since it would both be inconsistent with safety and with the estimates provided to air traffic control with regard to arrival time. He also pointed out that the times that the flights actually took, as established in the journey log, were consistent with a true air speed of 175 knots as listed in the flight plan, although he could not say whether 75 percent power would yield that air speed.

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[32] With regard to the statement in Mr. Visser's calculations that the aircraft used less fuel than provided in the flight plan because BCWest Air usually begins engine cool down of inches every 2 minutes beginning 10 minutes before landing, Inspector Hewitt agreed that making gradual power reduction would be an effective procedure, but that on a short flight at low altitude it would be odd to begin the descent at the midpoint of a 20‑minute flight.

[33] Inspector Hewitt also discussed the portion of Mr. Visser's analysis regarding an adjustment of fuel calculations, allowing for a temperature correction on a hot summer day. He agreed that the density of fuel varied according to the temperature but pointed out that most fuel delivery notices include net and gross quantity, so that the amount is corrected to 15º Celsius (C).

[34] Finally Inspector Hewitt reviewed the Minister's calculations and agreed with the methods used in reaching his conclusions. He noted that no allowance had been made for taxiing to the fuel stand and a possible run up but it was his opinion that these activities would consume between 3 and 6 L. Consequently, there would still be less fuel in the tanks than the Regulations would allow for an additional 30 minutes of flight at normal cruising speed.

[35] In cross-examination, Inspector Hewitt agreed that a prudent pilot would plan for contingencies but did not agree that such a pilot would not deliberately show a greater fuel burn on a flight plan than was anticipated. He agreed that the time taken in starting up in a training scenario would be longer than that taken by an experienced pilot. Finally, he agreed that fuel density changes with temperature but said that the refuellers that were used by Transport Canada adjusted for temperature.

[36] In response to a question from the member, Inspector Hewitt said that the operator would determine the air speed at 75 percent power, and that that conclusion would have been reached by performance information provided by the manufacturer.

B. Applicant

(1) Robert Blais

[37] Robert Blais, who testified as an expert witness holds an ATPL and has 700 hours of experience as a pilot on Navajo aircraft as well as on other types of aircraft. He had recently qualified as a chief pilot. His qualifications were challenged by the Minister's representative on the basis that he had failed a PPC on another type of aircraft, had misstated some of his experience while speaking from memory on cross-examination, and that the number of hours flown were not a sufficient qualification. I decided that he could testify as an expert but that I would later determine the weight to be given to his evidence.

[38] Mr. Blais first discussed the fuel flow chart from the POH (exhibit A‑1). He explained that in his experience, the normal cruising setting for a Navajo aircraft is 65 percent both for fuel conservation and for passenger comfort since at that power the propeller speed is 2300 rpm whereas at 75 percent the speed is 2400 rpm and is much noisier. His only experience of cruising at 75 percent was an occasion when the aircraft needed extra speed to outrun a storm. At that percentage rate, the chart provides for a fuel flow of 17.4 US gal (65.9 L) per hour. He took the position that figures used for flight planning were always more conservative than what happened in the actual flight.

[39] Mr. Blais also discussed leaks from the fuel drain. He testified that such leaks could be the result of some contaminant, such as a piece of grit being caught in the drain. He stated that this may happen on a recently installed fuel drain. Methods for correcting the leak would be to rid it of the contaminant by draining fuel, jiggling the valve or putting pressure on it.

[40] He agreed that avgas evaporated very quickly, much more so than water, and that depending on the rate of the drip, a fuel valve leaking over several hours would not leave a large stain on the tarmac. He thought, however, that to determine the exact amount of fuel leaked, the conditions, including weather at the time of the leak, would have to be reproduced. He described an experiment that he had carried out with a colleague where 500 millilitres of aviation gas and water had been spilled in parallel lines. The fuel had all evaporated within 2.5 minutes whereas most of the water remained after 5 minutes.

[41] Mr. Blais also examined the fuel calculations prepared by Mr. Visser (exhibit A-7). He said that in his experience, the normal practice was to allow 40 pounds (6.6445 US gal or 25.12 L) for each taxi segment for flight planning purposes. In terms of training, he agreed with the proposition that initial training on engine start-up procedures would take more time than normal thus using more fuel.

[42] Mr. Blais also reviewed another document prepared by Mr. Visser that compared the fuel usage on the flights on September 2, 2008, with three other flights with similar air time (exhibit A-8). The flights of September 2, 2008 used approximately 50 percent more fuel, a discrepancy that would have to be explained. He advanced several different possibilities, including fuel dripping or a mistake in the bill.

[43] On cross-examination, the Minister's representative showed that Mr. Blais could not properly define the term "flight time". He also showed that Mr. Blais had had to repeat some aspects of a pilot proficiency check (PPC), although Mr. Blais had not been told that he had failed. The Minister's representative also asked a number of questions concerning Mr. Blais' relationship with Mr. Visser. He found that Mr. Blais was staying in Mr. Visser's house and was hoping to get a job as chief pilot in an airline that Mr. Visser hoped to participate in.

(2) Nizar Janmohamed

[44] Nizar Janmohamed is an AME who owns and operates an air maintenance organization (AMO), Safari Express Aircraft Maintenance Ltd. (Safari Express). At Mr. Visser's request, he carried out a test on aircraft C-GDFR to determine if the fuel warning lights were functioning and the accuracy of the fuel gauges (exhibit A-3).

[45] In performing the test, all four tanks were first completely drained and then fuel was added to each of the tanks in 5 litre increments. At 10 L in each tank, the warning lights remained on and both fuel gauges read empty. At 20 L, the warning lights were extinguished and the right fuel gauge indicated nearly ¼ full for both inboard and outboard tanks whereas the left indicator read ⅛ for the inboard and 3/16 for the outboard tank. Consequently, there would be more fuel in the left tanks than it was shown on the indicators.

[46] Mr. Janmohamed also testified with regard to leaking fuel drains. He explained that they consisted of a valve that operated on a spring, and if a piece of debris was caught in the spring, the valve would leak at a rate determined by the size of the debris. The leak could be stopped by draining fuel until the debris was dislodged. While he could not speak to an actual amount, Mr. Janmohamed agreed that a leak over seven hours would drain a substantial amount of fuel.

[47] On cross-examination, it was established that this test was carried out in February 2009, and that Mr. Janmohamed was aware that there had been an incident on September 2, 2008. Mr. Janmohamed also explained how the low fuel warning lights were based on measuring fuel flow which is why he sometimes called them "fuel flow warning lights".

(3) William Frederick Dietrich

[48] William Frederick Dietrich is a school principal. He also holds a commercial pilot licence with a multi-engine rating and a class 3 instructor rating. He has approximately 100 hours of experience on a Navajo and had been employed by BCWest Air. Mr. Dietrich testified that on July 29, 2008, he flew the aircraft to Chilliwack, British Columbia, to have the fuel drain valve replaced. As he was taxiing to the maintenance hangar, the low fuel flow warning light came on. The fuel drain was being replaced because it had been leaking. He stated that he had noticed the fuel drain leaking at least twice.

[49] Mr. Dietrich stated that in the majority of cases he would choose 65 percent power as his cruising speed. He examined two documents from the POH, the fuel flow chart (exhibit A-1) and the power setting table (exhibit A-2) and confirmed that, according to the POH, the fuel flow would be 105 pounds per hour at that power.

[50] On cross-examination, Mr. Dietrich explained that he did not enter in the journey log the fact that the warning lights came on as a defect. It was not a defect but rather the correct operation of the lights. With regard to the fuel leaks he had noticed, he could give no estimate of the amount of fuel that had leaked but he indicated that there had been a stain of about two feet.

(4) Daniel Burpee

[51] Mr. Burpee has a commercial pilot licence with a multi-engine IFR rating and a flight instructor rating. He agreed that normal cruising power would be 65 percent and that power setting would burn about 100 pounds of fuel per hour. He could not recall any situation where he had flown a Navajo aircraft in cruise at any higher power. At that power, the aircraft could not have used nearly all its fuel in 3.4 hours. He said that the first time he did training on start up and check lists, it took considerably more time, about 30 minutes longer than it would by a more experienced pilot.

[52] Mr. Burpee was present as a passenger on the flights on the morning of September 2, 2008. Through the intercom, he could hear flight crew communications. He did not hear any conversations between Messrs. Visser and Biela concerning fuel. He was aware, however, of some conflict between the two men.

[53] Mr. Burpee recalled two occasions where, as co-pilot, he had made suggestions to Mr. Visser who was pilot-in-command, and both times his suggestions were acted upon. He recalled that Mr. Visser checked the accuracy of the fuel computer each time the aircraft was fuelled by comparing the fuel receipts with the amount of fuel the computer recorded as being in the tank before refuelling.

[54] Mr. Burpee stated that he had noticed the aircraft leaking fuel several times but could not say for certain whether one of those times was September 2, 2008.

[55] On cross-examination, Mr. Burpee confirmed that September 2, 2008, had been his first day of employment with BCWest Air. The Minister's representative pointed out a number of inconsistencies between the statement he gave to Inspector Rosa on November 18, 2008, and his statement of February 5, 2009 (exhibit A-4). These inconsistencies included a reversal of his recollection of the amounts showing on the right and left fuel gauges on September 2, 2008. He explained that on that date, he was continually in the company of Messrs. Visser or Biela since he did not have a security pass. He also said that he had left the airport around 10:00 or 10:30 a.m. and did not return that day. When it was pointed out that in his November statement, he had said that he remembered thinking that it was a bad idea to have fuel gauges showing so little fuel facing the passengers, he explained that, while he was not personally concerned, he thought that the passengers might be.

[56] In reviewing the weight and balance sheets (exhibit M-3), Mr. Burpee agreed that they were in the format used by the company, and that some of the information on them was standard and did not change including the 75 percent power listed for climb, cruise and reserve, so that the calculations made on the sheets would be based on these numbers.

[57] In re-examination, Mr. Burpee said that he had worked for another company at the Abbotsford International Airport before September 2, 2008, and was familiar with aircraft C‑GDFR. He might well have seen leaks from the aircraft before September 2, 2008, although he could not be certain of any dates. On cross-examination on this point, he said that he had seen leaks at both the fuelling station and at OP stand 7, and that he had seen actual fuel dripping and seen stains at OP stand 7.

[58] Mr. Burpee said that he remembered that he and Mr. Visser had been reprimanded by Mr. Barrett for a fuel leak and admitted that it might have been on September 2, 2008. On cross‑examination, he said that he remembered that the reprimand was given, at 7:00 a.m. in front of passengers. It could have been on September 2, 2008, even though he left the airport after the morning flights.

(5) Andrew John Yakiwchuk

[59] Andrew John Yakiwchuk holds a commercial pilot licence with a multi-engine rating and a Navajo PPC. He has undergone ground training on the Navajo twice, first with BCWest Air and second with Mr. Blais. He has also received flight training from Mr. Visser and found it to be very professionally done. He would describe Mr. Visser as being a safe and diligent pilot, and was confident that he would listen to any concerns raised during or before a flight.

[60] He testified that from his observations during flight training, and from his knowledge of the POH, normal VFR cruise setting would be 65 percent and 2200 rpm. He agreed that, according to the charts, at 65 percent, each engine would burn 105 pounds of fuel per hour, and at that rate the aircraft could operate for five hours.

[61] He recalled taxiing to the fuel pumps and that he had been trained on aircraft start up and checklist procedures but could not remember the exact date. He did agree, however, that if he had been on the aircraft that afternoon, it was likely that he received training that day. He stated that the training would take considerable time and that, when he had recently undergone similar training with Mr. Blais, it took 20 to 30 minutes.

[62] He stated that he had been aware of tension between Messrs. Biela and Visser, although he had never heard the latter say anything against Mr. Biela. It was his impression that Mr. Biela was disgruntled since he had not been made a captain because of insurance concerns.

[63] On cross-examination, when it was pointed out to him that he was listed as co-pilot on a flight on either September 5 or 7, 2008, he agreed that the training could have taken place on that day as his second flight but he would not agree that it could have taken place on September 8, 2008. He repeated several times that he could not remember whether certain events took place on September 2, 2008, but he did remember that he was trained during a taxi from the terminal to the pumps.

[64] With regard to flight plans (exhibit M-3), he stated that he had only done a mock up in training and he was aware that certain numbers were entered automatically by the computer, including the 75 percent power for cruise and reserve. He said that it was his understanding that the flight plan was calculated at 75 percent but that did not necessarily mean that the flight was actually operated at that power.

[65] On re-examination, he agreed that since it was shown in the journey log that he had flown on September 2, 2008, it would make sense that he had received training at that time. However, he could not specifically remember being trained on that date.

(6) Gerald John Visser

[66] Mr. Visser has been a pilot for 15 years and currently holds an ATPL. He has accumulated 3500 hours of flying time. The first matter that he discussed was the fuel leak on September 2, 2008. A letter from Mike Pastro, the general manager of the Abbotsford International Airport, was introduced as evidence (exhibit A-6). It stated that the fuel spill was noticed and no report was filed. Mr. Visser also referred to the email from Mr. Barrett to Inspector Rosa (exhibit M‑11). He stated that he was confronted by Mr. Barrett, concerning the leak, sometime before the afternoon flight, and that he observed a steady drip from the fuel drain. The fuel was evaporating quickly when it hit the ground but he observed a stain about two feet in diameter. Mr. Visser stopped the leak by draining about 2 L of fuel into an ice cream tub; the debris that was probably lodged in the drain was flushed out.

[67] Mr. Visser testified concerning the test carried out by Safari Express (exhibit A-3). He said that with 5 L in each tank, the gauges read empty and that when a further 5 L were added, for a total of 40 L, the gauges had started to move but still read empty and the warning lights remained on. These lights went out when a further 10 L were added to each tank, for a total of 80 L and, at that point, both fuel gauges for the right tanks read nearly ¼ while the left inboard indicator read ⅛ and the outboard about 3/16. With 25 L in each tank, the right fuel indicators read ¼ for both tanks and the left read ⅛ for the inboard and 3/16 for the outboard.

[68] He then went through the fuel calculation document (exhibit A-7) that he had put forward as an alternative to those presented by Inspector Rosa (exhibits M-13 and M-14). In making his calculations, Mr. Visser pointed out that he used the exact equivalent that is 6.02 pounds per US gal and 3.781 L per US gal. He repeated that, according to the POH, cruising at 65 percent uses 65.9 L per engine per hour (exhibits A-1 and A-2) and repeated that his normal VFR cruise power was 65 percent. He pointed out that it was the practice at BCWest Air, at 10 minutes before landing (approximately halfway through these flights), to begin engine cool down by two inches every two minutes thus reducing the fuel used.

[69] On his calculation document (exhibit A-7), Mr. Visser withdrew the calculation in the fourth paragraph relating to upper airwork training. In the next paragraph, he adds 30 to 50 L for taxiing to OP stand 7 and engine cool down after landing and another taxi to the fuel pumps that included time for training Andrew Yakiwchuk. He said that this amount was based on the industry standard of 25 to 30 L per taxi segment. Mr. Visser explained why so much fuel was allowed for the taxi segment. It included an allowance for the engine run-up, which was carried out at a high power setting in order to check gauges and test various instruments.

[70] Again on this calculation document, with regard to the engine leak (exhibit A-7), Mr. Visser suggested an amount of 20 to 40 L, based on his knowledge of the amount of fuel used by the aircraft on similar flights. He also suggested that there should be a temperature correction of 6.7 L. Essentially, this correction is based on the fact that fuel expands when it is hot, and it becomes quite warm when it is in an above ground tank. The final item listed was a correction of 3.5 L for +/- 5 percent accuracy of the pumps which is the Weights and Measurements Canada standard for pumps calibrated every 5 years. On the basis of these calculations, Mr. Visser concluded that the aircraft landed with over 100 L of fuel.

[71] The sample refuelling fillups (exhibit A-8) and fuelling statements (exhibit A-9) were introduced as evidence. Together with the journey log, these documents illustrated the air time/fuel ratio, and showed that, when the flight of September 2, 2008 took place, the ratio was much higher than usual for the period.

[72] Mr. Visser testified concerning personnel problems with BCWest Air and his difficulties in establishing a new airline. He perceived that Mr. Biela was upset and frustrated over his failure to be appointed as a captain, his consequent resignation on August 27, 2008, as well as the resignation of the chief pilot around the same time.

[73] Mr. Visser testified that when the aircraft landed at the Abbotsford International Airport on September 2, 2008, the fuel gauges read about ¼ on the right and between ⅛ and ¼ on the left as they had many times after similar flights.

[74] Mr. Visser then explained an experiment or test that was carried out by himself and others on July 5, 2009, at 9 a.m. The purpose was to show that the fuel tanks held more than the total usable fuel of 183.5 US gal (693.3 L) as stated in the POH. Because fuel expands in heat, the tanks must be sized to allow for temperature correction when fuel has expanded in hot conditions. In the test, all four fuel tanks were drained completely and then filled to capacity. Under the conditions at that time, the tanks held 707.243 L. He testified that, on September 2, 2008, he believed the temperature was 20 or 21 ºC.

[75] Finally, Mr. Visser testified concerning a written statement that he provided to Inspector Perka on September 22, 2008, giving his explanation of the events of September 2, 2008 (exhibit A-12). He repeated that before that morning, the aircraft had flown for 2.4 hours and there was a fuel leak. He explained that, because there was some discrepancy between the fuel computer and the fuel gauges, he advised the co-pilot, Mr. Biela, to show a lower amount of fuel in the weight and balance reports than that shown on the computer. At this point, he also stated that several days earlier, when the fuel showed lower than on September 2, 2008, he had added fuel because Mr. Biela had said he was uncomfortable with the amounts showing.

[76] In cross-examination, the Minister's representative asked Mr. Visser about his activities on September 2, 2008. Mr. Visser replied that no fuel leak was observed before the morning flight. He described more fully the refuelling in the afternoon. He was standing with Mr. Yakiwchuk between 30 and 50 feet away from the aircraft during the 15 minutes that it took to refuel. At the end of that period, he noticed a small splash of fuel on the wing. At that time, it was the company's practice not to fill the tanks completely but to leave some space for the fuel to expand, since earlier that year, a fuel spill had occurred, resulting from such expansion.

[77] It was pointed out to Mr. Visser that he had not made an entry in the journey log with regard to the training he gave to Mr. Yakiwchuk on September 2, 2008. He agreed and said that he had not made similar entries on other occasions, and that he had been criticized for it. He stated that entries had been made on the training records sheets (exhibit A-14). It was also pointed out that neither of his written statements (exhibits A-12 and M-9) to Transport Canada mentioned training. Mr. Visser said that after reviewing carefully the events of that day, he realized that it was Mr. Yakiwchuk's first flight and that he had been trained at that point.

[78] The Minister's representative pointed out that in his statement, Mr. Visser had said that fuel gauges could not be trusted, and that the fuel computer was faulty because it was intermittently over‑reading (exhibit M-9). While he said that his wording was unfortunate, Mr. Visser replied that he had adequate information on which to base his estimates of fuel, and that he made allowances for the faulty computer. He calculated the fuel on board by relying on the right fuel computer, which was accurate and the time flown since the last fill‑up of fuel, as the aircraft is consistent in the fuel it burns during VFR flight.

[79] In discussing the leak, Mr. Visser said that he had been informed of it by Mr. Barrett when he returned to the airport around 3:00 p.m. He said that Mr. Barrett was quite forceful in speaking to him, stating that if there was another leak, he would no longer be able to park his aircraft at OP stand 7. Mr. Visser disagreed with Mr. Massey's statement that it was a very busy area since only he and one other carrier parked there. He confirmed that he stopped the leak by draining about 2 L into a 4 L ice cream tub.

[80] The Minister's representative then suggested that on the test carried out on July 5, 2009, some of the usable fuel might have been drained. Mr. Visser replied that he was not an expert but that he had been taught that the unusable fuel always remained in the aircraft. The temperature on that date was 18 ºC. He also said he had been informed that, on that day, the temperature reached 20 ºC.

[81] In the re-examination, the aviation routine weather report (METAR) for July 5, 2009 was produced as evidence (exhibit A-13). Mr. Visser stated that it had been confirmed that the temperature reached 19 ºC on September 2, 2008. He also entered part of the training record for Mr. Yakiwchuk, showing the training that he was given on September 2, 2008 (exhibit A-14). The Minister's representative objected to this document being produced as evidence on the grounds that it could have been prepared at any time, and that it should have been given to Transport Canada during the investigation.

IV. EVIDENCE IN REPLY

A. Minister of Transport

(1) Patrick Davey

[82] Patrick Davey has been in the aviation industry for a total of 34 years and holds AME and private pilot licences. He has been employed by Transport Canada for 21 years. He testified as an expert witness.

[83] He was asked to comment on the report of Safari Express. He expressed concern that it was not done in accordance with the instructions in the Piper Airplane Service Manual (PASM, interim revision: December 2, 1994, exhibit M‑21) or calibrating fuel gauges. He noted that the PASM required 14 US gal (52 L) to be added to each outboard tank to indicate ¼ full whereas Safari Express only added 6.61 US gal (25 L). On this basis, he concluded that the gauge would need calibration. He also could not comment on the accuracy of the statement in the report from Safari Express that the left quantity indicator was under‑reading, since the report was not based on the procedures set out in the PASM. Finally, he said that unusable fuel is not available for power flight but it should be taken into account for weight and balance purposes.

[84] In cross-examination, Mr. Visser pointed out that the purpose of the test carried out by Safari Express was not to test the calibration of the gauges but to determine at what point the fuel warning lights would come on. In response, Inspector Davey replied that, since the test was not carried out in accordance with the PASM and since the manufacturer had not been consulted as to the proper procedure, he could not give an opinion as to its accuracy.

[85] In re-examination, Inspector Davey explained that a fuel flow warning light measured the flow of fuel rather than the amount, and it would illuminate when the flow of fuel was interrupted.

(2) Stephen Hewitt

[86] Inspector Hewitt was recalled specifically to challenge Mr. Visser's statement that he had been cooperative throughout the investigation. Inspector Hewitt had attended an inspection of BCWest Air at the Abbotsford International Airport with Inspector Perka, the principal operations inspector for the company. During the inspection, Mr. Visser supplied them with some flight plans and fuel tickets. When it was discovered that the fuel tickets for September 2, 2008 were missing, Mr. Visser went home to obtain a fuel summary for the fuel dispensed to the aircraft on that date. He returned approximately two hours later with a cut and paste spreadsheet summary that showed only the 600 L fill-up.

[87] At this point the member interrupted, asking how this refuted Mr. Visser's testimony that he had been cooperative. After some discussion, she agreed to accept it as background but not as proof. When asked specifically as to Mr. Visser's attitude, Inspector Hewitt stated that he had been very cordial but that the information provided had been misleading because he did not mention the second fuelling. He also agreed with the Minister's representative that it took longer than expected to provide the information.

B. Applicant

(1) Gerald John Visser

[88] In response, Mr. Visser explained that he had asked his wife to print out fuel receipts of September 2, 2008 for the aircraft and when they saw such a record for 600 L, she printed it. Once he was asked if there was any other fuelling that day, he offered the complete account statement which is in evidence.

[89] On cross-examination, Mr. Visser said that he asked his wife to print a receipt for the afternoon fill-up on September 2, 2008, and that he would not have referred to a specific amount.

V. MINISTER'S POSITION

[90] The Minister argued that it had been shown, on a balance of probabilities, that Mr. Visser had contravened subsection 602.88(2) of the CARs, by operating an aircraft in VFR flight between Victoria and Abbotsford, British Columbia, without adequate fuel on board to fly at normal cruising speed beyond the destination aerodrome.

[91] According to the minister's representative, evidence showed that the total usable fuel for the aircraft is 694 L and that 671 L had been added on the afternoon of September 2, 2008, so that there would have been approximately 23 L remaining in the tanks. Based on the information in the weight and balance reports from the flight plans (exhibit M-3), 72 L of fuel would be required for a further 30 minutes of flight beyond Abbotsford at normal cruising speed.

[92] Mr. Biela also testified that, at two occasions, he had expressed concerns over the amount of fuel during the flight but his concerns were ignored by Mr. Visser who was the pilot-in-command.

[93] With regard to the leak from the aircraft, the Minister's representative referred to the testimony of Mr. Barrett that, while he had noticed the leak, the amount was not significant, approximately ½ to1 L. This statement was corroborated by the testimony of Mr. Massey who neither noticed nor reported a leak although he had a good view of the aircraft from his office. The test done by Mr. Massey with 50 L of water shows that, even taking into account the differences between water and aviation fuel, a 50 L spill would have been noticed.

[94] In discussing the definition of "normal cruising speed", the Minister's representative referred to the testimony of Inspector Hewitt that a 65 percent cruising speed would result in a lower air speed than that shown in the flight plan at 75 percent, and that the flight plan speed was consistent with the time for the flight shown in the journey log. Further, although the Minister's calculations did not take into account the fuel used in taxiing, that amount would be negligible.

[95] Reference was also made to the testimony of Inspector Davey that fuel gauges indicated that there was more fuel than was actually in the tanks, and that fuel flow warning lights indicated that there was an interruption in the flow of fuel and did not necessarily indicate low fuel.

[96] The Minister's representative also referred to the many discrepancies and contradictions in Mr. Visser's testimony. He admitted that his estimates of fuel in the aircraft were based on previous flights and that the gauges and fuel computer were not working properly. He said that Mr. Burpee was with him when Mr. Barrett talked to him about the leak while Mr. Burpee's testimony was that he left the airport after the morning flights. He admitted that the fire fighters' office was close to OP stand 7 and that no record of the fuel leak was made that day. Finally, he admitted that his initial estimates of the amount of fuel leaked were probably wrong, and that it was more likely to be a smaller amount.

[97] With regard to the training carried out on September 2, 2008, the Minister's representative noted that it had not been mentioned in any of the three statements that Mr. Visser made to Transport Canada and was not entered in the aircraft journey log. He also argued that Mr. Yakiwchuk's testimony on this matter should be given very little weight since his initial testimony was that he could not remember any specific date on which he was trained.

[98] With regard to sanction, the Minister's representative argued that a 30-day suspension would meet the underlying principles of enforcement that are denunciation, deterrence and rehabilitation. The aggravating factors influencing the choice of sanction include the facts that fare paying passengers were aboard the flight, the admitted inaccuracy of the fuel gauges and computer, and the co-pilot's expressed concerns regarding the amount of fuel.

[99] Finally, the applicant's denial of the offence and the fact that he changed his position throughout the proceedings should be taken into account.

VI. APPLICANT'S POSITION

[100] The applicant referred to a number of points in the Minister's argument and denied that he had changed his position.

[101] The applicant argued that Mr. Yakiwchuk's testimony confirmed that he had been trained on September 2, 2008, and that he admitted this as soon as he saw the entry in the journey log. The training was also confirmed by the training records of BCWest Air. Consequently, he felt that Mr. Yakiwchuk's testimony should be given great weight.

[102] The applicant also argued that the test carried out by Safari Express should also be given great weight. He recognized that the test was not in accordance with the PASM for calibration but pointed out that the purpose of the test was to determine at what point the fuel flow warning light would come on. This test was important because it showed that the warning lights remained on until there were 20 L in each tank, and all the evidence was that the lights never came on September 2, 2008. He also referred to Mr. Dietrich's testimony that when he flew the aircraft to Chilliwack in July to have the fuel valve changed with purposely low fuel, the warning lights did come on.

[103] With regard to the fuel leak, the applicant suggested that considerable weight be given to the statement of Mr. Pastro, the Airport General Manager, that he was aware of the leak on September 2, 2008. Mr. Barrett also testified that he had noticed the drain and had reprimanded Messrs. Visser and Burpee concerning it. Mr. Burpee testified that he had left after the morning flights but that did not mean he did not return in the afternoon. While Mr. Barrett's best guess was that the leak was from ½ to 1 litre, but taking into account that it was a steady drip and that the aviation fuel evaporated quickly, it was probably much more. The applicant's initial estimate of 50 L was probably exaggerated but, based on all the other considerations such as the unusual rate of fuel burn, it could have been 30 L. Mr. Visser also suggested that, given the difference in the rate of evaporation of water and fuel, that little weight be given to the experiment carried out by Mr. Massey.

[104] The applicant also argued that his fuel calculations should be preferred to those of the Minister. He pointed out that his calculations used the correct conversion factors, made allowances for taxiing and temperature correction, time spent in training and for the leak from the fuel drain valve. He also calculated the required fuel on the basis of a normal cruising power of 65 percent rather than the 75 percent used by the Minister. He referred to evidence that although the flight plan used 75 percent as the cruise power, normal cruise was, in fact 65 percent and the flight plan referred to 75 percent to provide a safety margin. He elaborated on the temperature correction by referring to the experiment carried out on July 5, 2009, a day with a similar temperature to that of September 2, 2008, when a complete fill-up took 707 L.

[105] The applicant referred to his exhibit showing the amount of fuel used in similar flights and demonstrating that the average amount related to the flights of September 2, 2008, was much higher than that used on similar flights. The comparisons were based on similar flights listed in the aircraft journey log that took place between fill-ups indicated on fuel account statements printed by Godspeed Aviation. He noted that these were the same documents relied on by the Minister in making his case. He suggested that the cause for the discrepancy would be found in the time that the aircraft was running on the ground during training and in the leak from the fuel drain valve. He also suggested that some fuel might have been deliberately leaked by a disgruntled employee, although he admitted that there was no evidence that this had occurred.

[106] The applicant explained his understanding of the background of the allegations against him and the effect they were having on his current activities. He alleged that the original complaint was made by two disgruntled employees, and that he had been unable to find any case based on a contravention of subsection 602.88(2) of the CARs, where the aircraft in question had not actually run out of fuel. Because of these allegations against him, he was unable to continue with his application to expunge his five-year old record and to participate financially in a new airline that he and several colleagues were attempting to start up. He has already sustained substantial losses in relation to this airline.

VII. MINISTER'S ARGUMENT IN REPLY

[107] To support the contention that the applicant had changed his story, the Minister's representative pointed out that, at first, the applicant had said that the leak was 50 L and later, when he realized that this was not the case, he brought up the training that was done that day, although he had not mentioned it in any of the three statements he had made to Transport Canada on the matter.

VIII. ANALYSIS

[108] The sole issue in this matter is whether the aircraft was in compliance with subparagraph 602.88(3)(a)(i) of the CARs, when it took off from the Victoria International Airport. Mr. Visser laid some emphasis in his questioning of various witnesses, as to when the provision applied, but the wording is clear and the requirement is to have sufficient fuel to fly 30 minutes past the destination aerodrome both at the time of take-off and from any time during flight when the destination aerodrome is changed from that set out in the flight plan. This does not mean, however, that the amount of fuel in the aircraft at take-off cannot be calculated on the basis of the fuel remaining in the aircraft when it lands.

[109] In this case the Minister reached his conclusion by subtracting the amount of fuel put into the aircraft in the afternoon of September 2, 2008, from the total usable fuel established by the POH after converting that amount from US gal to L. On this basis, the Minister concluded that 21.48 L remained in the tanks at the time the fuel was added. To determine the amount necessary to operate the aircraft at normal cruising speed, the Minister determined that the normal cruising speed was at 75 percent power, as stated in the flight plan. The flight plan also stated that the reserve was calculated at 75 percent and allocated 19 pounds of fuel for the reserve. The Minister converted this amount, first into US gal using a conversion factor of 6 pounds per US gal and from US gal to L at a conversion factor of 3.78 L per US gal. He concluded that 71.82 L would be necessary to meet the requirements of subparagraph 602.88(3)(a)(i) of the CARs, and so the aircraft left Victoria carrying 50.01 L less than the minimum required.

[110] Mr. Visser challenged these conclusions on the basis that the Minister did not take into account activities that took place between the time the aircraft landed and was fuelled, including taxi time and training, a fuel leak and the total capacity of the fuel tanks. He also challenged the Minister's conclusion that "normal cruising speed" was at 75 percent power. Instead, he suggested that 65 percent should be considered the normal cruising speed and, based on tables in the POH, concluded that 65.9 L was the minimum reserve amount.

[111] Both parties raised a number of extraneous issues that are not of relevance to this matter. The Minister's expert witness pointed out other fuel requirements in subsection 602.88(3) of the CARs that may not have been met but no charge was made in connection with them. Mr. Visser spent considerable time explaining the effects the investigation had on his attempts to establish a new airline and the possible motives behind the original complaint, but, while it is understandable that these are of considerable importance to him, the matter before me must be determined on the basis of the evidence.

[112] The issues to be determined are the normal cruising speed of the aircraft and thus, the minimum amount of fuel needed to meet the regulatory requirement, the capacity of the fuel tank, the amount of fuel leaked and the amount of fuel used between the time of landing and the fuelling. This latter would include the amounts of fuel used in taxiing and training and the amount leaked.

A. Normal Cruising Speed

[113] The Minister based his position that normal cruising speed was 75 percent in the statements in the flight plan portion of the Weight and Balance Reports prepared by BCWest Air for the three flights on the morning of September 2, 2008 (exhibit M-3). In support, the Minister's expert witnesses pointed out that pilots generally flew in accordance with the flight plan and that the actual times of the flights, as recorded in the aircraft journey log (exhibits M‑2 and M‑20) were consistent with a true air speed of 175 knots, as set out in the flight plan. He could not say, however, that 75 percent would yield that speed.

[114] Mr. Visser acknowledged that the flight plan established 75 percent power to be used in the flight. He said, however, that this setting was chosen to provide a margin of safety and that the actual power setting used was 65 percent. His witnesses, Messrs. Blais, Dietrich, Burpee and Yakiwchuk testified either that they cruised at 65 percent or at 2200 to 2300 rpm with manifold pressure of 32. According to the charts in the POH (exhibit A-2), these numbers fall within the ranges given for 65 percent power. While I found that all these witnesses were credible on this point, I note that they were all colleagues of Mr. Visser. Their testimony, however, is also partly supported by the Minister's witness, Mr. Biela, who testified that when he was a pilot for BCWest Air he normally cruised at 2300 rpm with a manifold pressure of 36 to 37 inches. While 2300 rpm is consistent with 65 percent according to the POH charts, a manifold pressure of 37 is above any of the values on the charts, even for 75 percent power and a manifold pressure of 36 only applies at 75 percent at higher altitudes. While Mr. Biela was obviously mistaken in his recollection of the manifold pressure, I give credence to his assertion that normal cruising was carried out at 2300 rpm because it is consistent with that of other witnesses.

[115] Therefore, on a balance of probabilities, I find that "normal cruising speed" within the meaning of the regulation was 65 percent for the flights during the morning of September 2, 2008.

B. Minimum Amount of Fuel Necessary

[116] The Minister's calculations of the fuel necessary to meet the 30‑minute requirement were based on the flight plan amount of 19 US gal which he calculated to be 71.82 L. Mr. Visser based his calculations on the fuel flow chart from the POH (exhibit A‑1). According to this chart, at 2300 rpm and 65 percent power, fuel usage is 105 pounds per hour for each engine. Using slightly more accurate conversion factors than the Minister (6.02 pounds per US gal and 3.781 L per US gal), Mr. Visser calculated that 105 pounds equaled 17.4 US gal or 65.9 L per hour for each engine, or a total of 131.8 L per hour. He concluded, therefore, that the 30‑minute rule would require 65.9 L or 5.92 L less than that suggested by the Minister.

[117] Mr. Visser also prepared a chart that was introduced as evidence (exhibit A-8). It shows three samples of fuel consumption related to air time, the amount of fuel added to the aircraft and the air time flown between the fill-ups. The fuel amounts were confirmed by fuel statements (exhibit A-9) but, unfortunately, the entries in the journey log were not made available. Mr. Visser's viva voce evidence was that the flights concerned involved the same circuit as those on the morning of September 2, 2008. This seems credible since most of the flights in the journey log pages that were made available to the Tribunal involve such a series of flights. In any event, the consumption per hour in the three samples was 130.34, 127.29 and 125.99 L. I note that these averages are slightly lower than the average calculated on the basis of the POH, and I accept them as corroborative of the calculations to determine the amount of fuel necessary to meet the 30‑minute regulatory requirement. The Minister's witness, Mr. Sabyan, the former chief pilot of BCWest Airlines, confirmed that the company policy was to use 19 US gal for flight planning purposes. According to Mr. Sabyan, that amount would be the minimum since it would only allow for an extra 10 or 12 minutes in additional flying time. While it is clearly prudent to carry more fuel than is required to meet the Regulations, this testimony would seem to support Mr. Visser's contention that less than 71.82 L would be necessary to fly for 30 minutes at normal cruising speed.

[118] I find, on a balance of probabilities, that 65.9 L is the required amount to satisfy the Regulations.

C. Capacity of the Fuel Tanks

[119] Both parties agreed that 671.82 L of fuel were added to the tanks around 4:00 p.m. on September 2, 2008, and that the tanks were completely filled at that time. Subtracting this amount from the POH amount of 693.3 L of total usable fuel, the Minister's position was that 21.48 L remained in the tanks.

[120] Mr. Visser's position, however, was that while the POH established a figure for the total usable fuel, the capacity of the tanks was, in fact, greater than that figure to allow for variations in the density of the fuel according to the temperature. No witness disagreed with the proposition that fuel expands with heat. Mr. Visser explained that the tanks were sized so that they would hold the amount of fuel determined in the POH, even when it had expanded because of extreme heat. No evidence was offered to dispute this explanation. In his analysis of the fuel calculations (exhibit A-7) he suggested that correction of 1 percent or 6.7 L be added. Later, he presented evidence to show that this amount was underestimated. On July 5, 2009, he conducted an experiment in the presence of four witnesses. All the tanks of the aircraft were completely emptied and then filled to capacity. According to the fuel receipts (exhibit A-11), the amount of fuel put into the tanks was 707.243 L. While the temperature noted by Mr. Visser was 21 ºC, the information provided on the Nav Canada Aviation Weather Web site (exhibit A-13) gives the high as being 17 ºC. While no documentary evidence was filed, both parties agreed that the temperature on September 2, 2008, was around 18 ºC in the late afternoon. Given that there are variations in temperature within a single location because of factors such as the degree of shade and the presence of vegetation, I find, on a balance of probabilities, that on September 2, 2008, the fuel tanks held more fuel than 693.3 L.

[121] During the hearing, there was a great deal of discussion about the accuracy of the fuel gauges and the fuel computer. Mr. Visser admitted that both were inaccurate with regard to the left tanks. While operating an aircraft with inaccurate fuel gauges is clearly unwise and would negatively affect any argument of a due diligence defence, the issue in this matter is the amount of fuel actually in the tanks at the take-off from Victoria. The only evidence advanced with regard to the actual amount of fuel relative to the readings was that of Mr. Janmohamed, which is discussed below.

[122] The Minister's witness, Mr. Biela, who was the co-pilot on the flights, testified that he had told Mr. Visser there was inadequate fuel before the series of flights began and at Victoria, only to be told both times that there was enough. Mr. Visser challenged this statement and his witness, Mr. Burpee, who was present on the flights and wearing headphones so that he could hear the conversations between the two men, said that he had not heard the warnings given by Mr. Biela. Again, while evidence on this point might well affect a due diligence defence, it does little to help in determining how much fuel was in the tanks when the aircraft left Victoria. Nevertheless, there is a direct contradiction in the evidence available that goes to the credibility of the witnesses. I note in this connection that there was obvious tension between the two men. I note further that in the original detection notice (exhibit M‑1), it is indicated that in an interview on September 9, 2008, Mr. Biela stated that he had expressed concerns about the fuel prior to leaving Victoria. In addition, in his statement to Transport Canada (exhibit M‑7), which is undated but appears to have been received by fax on November 14, 2008, Mr. Sabyan stated that Mr. Biela had told him that he had warned Mr. Visser concerning low fuel, both before the flights commenced and at Victoria. While these statements are both hearsay, they are close in time to the actual event and offer some corroboration of Mr. Biela's recollection of events. Mr. Burpee's recollection of that day is somewhat imperfect, and he may well have forgotten the discussions on this matter. Consequently, on this point, I prefer the evidence of Mr. Biela to that of Mr. Visser and Mr. Burpee.

[123] While I believe that Mr. Burpee was a conscientious witness and I accept his testimony on matters where he was speaking of his general experience, I also believe that his memory of specific events on September 2, 2008, is uncertain. I note that there is conflicting testimony about his presence at the airport in the afternoon of September 2, 2008. While he stated that he was not there, both Mr. Biela and Mr. Visser testified that he was present.

[124] To my mind a more relevant aspect of the evidence is that relating to the low fuel warning lights, or more accurately, the low fuel flow warning lights. There is undisputed evidence that these lights did not come on during the flights. The Minister's witness, Mr. Biela, confirmed this in his statement to Transport Canada in answer to a direct question. Mr. Visser's witness, Mr. Dietrich, said that, on July 29, 2008, he had flown the aircraft, deliberately low on fuel, to the company's maintenance organization to have the fuel drain valve changed, and that the low fuel warning light came on as he was taxiing to the maintenance hangar. At Mr. Visser's request, Safari Express, a company that belongs to Mr. Janmohamed, performed a test to determine when the warning lights came on, sometime in February 2009. According to this test, after all the fuel was drained from the tanks, the warning lights remained on when there were 10 L in each tank and went off when there were 20 L in each tank, a total of 80 L. The same test also measured the amount of fuel in the tanks in relation to the amount shown on the fuel gauges.

[125] The Minister called an expert witness, Inspector Davey, to refute the validity of this test. The witness pointed out that the test was not carried out in accordance with the instructions in the PASM for calibrating the fuel gauges (exhibit M-21). He showed that the gauges were inaccurate in that they showed ¼ full when there was less fuel in the tanks than the PASM required for a correct calibration. Inspector Davey also explained that low fuel flow warning lights were based on the flow of fuel to the engine rather than the amount of fuel in the tanks, and so could be triggered by other circumstances.

[126] It seems clear that the fuel gauges were not accurate but it is also clear that the illumination of the warning lights do not depend on the amount of fuel showing on the gauges but rather on the flow of fuel to the engines. There is no reason to believe that there was any change in the basis on which these lights came on between July 2008 and February 2009. Therefore, I conclude that there were at least 80 L of fuel in the tanks when the aircraft landed after the flight from Victoria.

D. Fuel Usage after Landing

[127] Mr. Visser explained that after landing, there were three ways that fuel was used (1) in two separate taxis, (2) in training, and (3) through a leak in the fuel drain valve. None of these were included in the Minister's calculations. The Minister's witnesses acknowledged that his calculations had not taken fuel used in taxiing into account but that such usage would have been negligible. The Minister's witness, Mr. Barrett, said that he had noticed a leak but estimated that the amount would have been between ½ to 1 L.

[128] The taxi segments that were not considered by the Minister were the taxi to OP stand 7 after landing and the taxi to the fuel stand. I note that taxiing includes time for engine cool down in taxiing after landing and for engine start up before taking off. Mr. Visser's witness, Mr. Blais, testified that in his experience at other airlines using Piper Navajo aircraft, the practice was to allow 40 pounds or 6.44 US gal for the taxi segment both on take‑off and landing. This is substantially more than that allowed in the flight plans (exhibit M-3) which allocate three US gal for ground operations. I note that the Minister has relied on these documents in making his calculations, and so I propose to use them as a basis in my analysis. With a conversion factor of 3.78 L, 3 US gal equals approximately 11.3 L per taxi segment. This does not seem to me to be a negligible amount and so should have been included in the Minister's calculations.

[129] Mr. Visser suggested that a substantial amount of fuel was lost through a leak in the fuel valve drain. While a number of witnesses, including an airport fire fighter on duty, testified that they did not see a leak on that day, the fact of a leak was confirmed by the Minister's witness, Mr. Barrett. Mr. Visser also introduced a statement from Mr. Pastro, but I have given no weight to this statement since it is hearsay and Mr. Pastro was not called as a witness.

[130] I find that, on a balance of probabilities, there was a leak from the fuel drain valve and the issue concerns the amount of fuel actually leaked. Mr. Barrett testified that he noticed the leak in the morning. He gave no evidence of what action was taken towards the leak. Mr. Visser's position was that the drain had been dripping steadily, since the morning, until his return in the afternoon. He maintained that most of the fuel evaporated quickly because of the warm temperature and the fact that aviation fuel evaporates rapidly in any event. He gave various estimates of the amount that could have leaked, ranging from 20 to 50 L, although he acknowledged that the latter was probably an exaggeration and 20 to 30 L was probably more realistic.

[131] Mr. Visser testified that on his return to the airport around 3:30 p.m., he was met by Mr. Barrett who complained about the leak and that he corrected it by draining about 2 L of fuel into an ice cream tub thus dislodging the contaminant in the valve that had caused the drip.

[132] Mr. Visser also said that his witness, Mr. Burpee, was present when Mr. Barrett complained. Mr. Burpee did not remember that he had been at the airport that afternoon, although he did remember being present once when Mr. Visser was reprimanded by Mr. Barrett over a fuel leak. This was early in the morning and it could have been on September 2, 2008. I have not placed any emphasis on this testimony since, for it to be accurate, the leak would have to have been discovered and corrected before the morning flights, and there has been no other suggestion that this was the case.

[133] For the Minister, Mr. Massey testified that he had not noticed the leak even though the fire fighters' office had a direct view of OP stand 7. He discussed an experiment that he had carried out where he dumped 50 L of water on to the tarmac near OP stand 7, and noted how the water dissipated (exhibit M-18). I give no weight to his testimony because it was acknowledged that the fuel leak was less than 50 L, the leak was a drip as opposed to all 50 L being emptied at once and because of the difference in the rate of evaporation of water and aviation fuel.

[134] I find that, on a balance of probabilities, there was a leak of aviation fuel from the aircraft of an undetermined amount.

[135] The final use of fuel that Mr. Visser alleges was not taken into account by the Minister was the time taken in training his witness, Mr. Yakiwchuk, during the taxi to the fuel pumps. Although Mr. Yakiwchuk could not remember that he was on the aircraft on that specific day, he recalled being trained as the aircraft was being taxied to the fuel pumps. Once he had been shown the journey log, which showed that he was co-pilot on one of the afternoon flights on September 2, 2008, he agreed that it was probable that he had been trained on that date. The probability that he had received training on September 2, 2008, is reinforced by the testimony of the Minister's witness, Mr. Biela. Mr. Visser was training Mr. Yakiwchuk while he taxied the aircraft to the fuel pumps.

[136] The witnesses who testified concerning training all stated that initial training on taxi, check lists and engine start up would add to the time normally taken for such procedures. Mr. Yakiwchuk said that similar training he had undergone took between 20 and 30 minutes. Since this would have been very similar to the training provided by Mr. Visser and thus would be somewhat familiar to him, I am inclined to believe that the training on September 2, 2008 would have lasted closer to 30 than 20 minutes.

[137] The Minister's representative challenged Mr. Visser as to the date of the training. He pointed out that it was not mentioned in any of the statements given to the Minister by Mr. Visser in September 2008. He also noted that it was not mentioned in the journey log. The Minister's representative argued that Mr. Visser's testimony should not be given much credence because he had changed his story so often and advanced different theories to account for the finding of low fuel. Mr. Visser's response was that he had not changed his story but had not mentioned training because he was concentrating on other factors relating to fuel usage. He submitted the BCWest Air's training record for Mr. Yakiwchuk, which showed that there had been training on September 2, 2008 (exhibit A-14). I note that the entry in the journey log was, in fact, made by Mr. Biela who mentioned the training in his testimony.

[138] On the basis of all the evidence before me, and especially the training record and Mr. Biela's testimony, I find that, on a balance of probabilities, Mr. Visser was training Mr. Yakiwchuk during the taxi to the fuel pumps.

[139] In his chart (exhibit A-7), Mr. Visser's estimate of the fuel used in taxiing after landing, engine cool down, start‑up in the afternoon, additional time to demonstrate engine start in training and possible further time spent in training is 30 L. Given that the flight plan estimate for these operations on a normal basis is 3 US gal or 11.28 L, that this estimate may be low and that training time would mean that the engine would be running longer during training, I find that this is not an unreasonable amount and that it should be taken into consideration.

[140] Mr. Visser noted that he had been unable to find any matters heard by the Tribunal concerning subparagraph 602.88(3)(a)(i) where the aircraft had not actually run out of fuel. The cases referred to by the Minister in argument involved situations where the aircraft had, in fact, run out of fuel. The fact that neither party could give examples where a contravention had been based on calculations, made on the basis of fuel receipts provided some time after the aircraft had landed, does not mean that, in a matter where these clearly indicated that the aircraft took off with insufficient fuel, would not succeed.

[141] Subsection 15(5) of the Transportation Appeal Tribunal of Canada Act, L.C. 2001, c. 29 provides that the burden of proof in a matter before the Tribunal is on a balance of probabilities. In this matter, both parties based their arguments on suppositions or estimates calculated from fuel accounts, flight plans, the POH and, in Mr. Visser's case, a number of practical experiments. The only real factual evidence is that some seven hours after landing, 671.82 L of aviation fuel were added to the aircraft. There were contradictory estimates given of the amount of fuel in the tanks before refuelling, the amount needed to meet the regulatory requirement, the amount leaked from the aircraft and the amount used in activities between the time of landing and the refuelling. Indeed, the Minister's estimates did not include any amounts in respect of these last two items.

[142] While all of these estimates must, of necessity, be inexact, I find that Mr. Visser has shown that there are reasonable grounds for taking into account the factors that he has argued should affect the calculations of the fuel remaining at landing in Abbotsford after the flight from Victoria. While I cannot conclude that any specific amount advanced by either party is accurate, the cumulative effect of the evidence put forward by Mr. Visser, including that relating to the capacity of the fuel tanks, the warning lights and the average fuel usage, together with his evidence relating to the power setting for normal cruising speed, fuel used in taxi and training and the fuel leak, all of which were, to some extent corroborated by the Minister's witnesses, lead me to find that, on a balance of probabilities, there was a sufficient amount of fuel in the tanks when the aircraft left Victoria to meet the regulatory requirement.

IX. DETERMINATION

[143] The Minister has failed to prove that the applicant, Gerald John Visser, has contravened subsection 602.88(2) of the Canadian Aviation Regulations. The 30-day suspension of the applicant's airline transport pilot licence, pursuant to section 6.9 of the Aeronautics Act, is cancelled.

October 26, 2009

Elizabeth A. MacNab

Member


Appeal decision
Herbert Lee, J. Richard W. Hall, Stephen Rogers


Decision: August 24, 2010

Citation: Canada (Minister of Transport) v. Visser, 2010 TATCE 21 (appeal)

Heard at Vancouver, British Columbia, on March 18 and 24, 2010

Held: The appeal is allowed. The Appeal Panel overturns the Member's Review Determination and confirms the Minister's decision to suspend the Respondent's pilot licence for 30 days. This suspension will commence on the 35th day following service of this Appeal Decision.

I. BACKGROUND

[1] On January 13, 2009, the Minister of Transport ("the Minister") issued a Notice of Suspension ("Notice") to Gerald John Visser (the "Applicant" at the Review Hearing and the "Respondent" on this Appeal Hearing) suspending his airline transport pilot licence for a total of 30 days.

[2] Schedule A of the Notice reads as follows:

On or about September 2, 2008 at approximately 8:09 a.m. local time, at or near Victoria, British Columbia, as the pilot-in-command of aircraft bearing Canadian registration C‑GDFR, you, Gerald John Visser, commenced a flight when the aircraft did not carry sufficient fuel. Specifically, you operated said aircraft in day VFR flight without carrying a sufficient amount of fuel to fly to the destination aerodrome and then to fly for a period of 30 minutes at normal cruising speed, thereby contravening subsection 602.88(2) of the Canadian Aviation Regulations.

Penalty Assessed: 30 day suspension of Airline Transport Pilot Licence ─ Aeroplane (AA)

[3] The Review Hearing was held on May 28 and 29, 2009, in Abbotsford, British Columbia, and on July 7 and 8, 2009, in Vancouver, British Columbia.

II. REVIEW DETERMINATION

[4] In the Review Determination dated October 26, 2009, Elizabeth MacNab ("the Member") found that the Minister did not prove, on the balance of probabilities, that Mr. Visser contravened subsection 602.88(2) of the Canadian Aviation Regulations ("CARs").

[5] Consequently, the suspension assessed by the Minister against the Respondent was cancelled.

III. GROUNDS FOR APPEAL

[6] On November 30, 2009, the Minister filed a Notice of Appeal as follows:

  1. The Member erred in law in refusing to consider all the evidence put into the record.

2. The Member's following findings of fact regarding the alleged violation of subsection 602.88 of the Canadian Aviation Regulations were unreasonable and not based on all evidence put on the record:

a)  At paragraph 115 of the decision when the Tribunal found that the "normal cruising speed" within the meaning of the regulation was 65 percent for the flights during the morning of September 2, 2008;

b) At paragraph 118 of the decision when the Tribunal found that 69.5 L was the required amount of fuel necessary to satisfy the Regulations;

c) At paragraph 120 of the decision when the Tribunal found that the fuel tanks, on September 2, 2008, held more than 693.3 L;

d) At paragraph 126 of the decision when the Tribunal found that there were at least 80 L of fuel in the tanks when the aircraft landed after the flight from Victoria, on September 2, 2008;

e) At paragraph 134 of the decision when the Tribunal found that there was a leak of aviation fuel from the aircraft of an undetermined amount; and

f) At paragraph 138 of the decision when the Tribunal found that the Respondent was training Mr. Yakiwchuk during the taxi to the fuel pumps.

3. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

[7] It is the Minister's submission that the Member's Review Determination should be overturned by the Appeal Panel because the Member's findings of fact were unreasonable.

[8] The Minister submits that the Member did not consider all the evidence on the record.

[9] In addition, it is the Minister's submission that the Appeal Panel should consider all the evidence on the record and substitute its decision and uphold the Minister's decision to suspend the Respondent's pilot licence for 30 days.

IV. FACTS

A. Minister of Transport

[10] From the Minister's perspective for this Appeal, there are certain key facts that are relied upon.

[11] To begin with, the Minister states that there is no question that the Respondent was the pilot-in-command ("PIC") who flew an aircraft, Canadian registration C‑GDFR on September 2, 2008, from Abbotsford to Nanaimo, from Nanaimo to Victoria, and from Victoria to Abbotsford, British Columbia (Exhibits M‑2 and M‑20).

[12] In addition, the Minister relies upon the meeting that occurred with William Barrett, the Abbotsford Airport Operations Manager, the Respondent and Daniel Burpee concerning the fuel leak (transcript at pages 154, 155, 447, 448, 450, 491 and 625).

[13] As well, the Minister drew to the Appeal Panel's attention, that the aircraft in question was refuelled with a quantity of fuel totalling 671.23 L (Exhibit M‑10).

[14] In conjunction with these facts, the Appeal Panel is cognizant of the testimony of Gregory Massey, a firefighter at the Abbotsford Airport (transcript at pages 274 to 305).

[15] Lastly, it is the Minister's position that as the PIC, the Respondent landed aircraft C‑GDFR on September 2, 2008, with insufficient fuel to meet the 30-minute fuel reserve test as required by the Regulation.

B. Respondent

[16] The Respondent does not contest that he was not the PIC.

[17] In essence, the Respondent's position is that the Member did not make any errors that are sufficient to overturn the Review Determination. As well, the Respondent states that there was sufficient fuel to land the aircraft on September 2, 2008.

[18] Lastly, it is the Respondent's position that even if the Member made any errors in findings of fact, they are in and of themselves, insufficient to overturn the Review Determination.

V. ARGUMENTS

A. Minister of Transport

[19] The Minister urges the Appeal Panel to overturn the Review Determination on many grounds.

[20] In particular, the Minister argues that there was sufficient evidence to prove that, on the balance of probabilities, the offence had been committed.

[21] As correctly argued by the Minister, an Appeal Panel cannot overturn findings of fact unless there is an entire absence of evidence to support the conclusion reached by the original trier of the facts or, in the event there was some evidence concerning the Member's finding, it would be unreasonable to uphold that finding of fact and, overall, that finding would not be capable of being supported by the evidence introduced at the Review Hearing.

[22] For example, in Minister of Transport (Canada) v. Arctic Wings Ltd., 2006 TATC file no. W‑2899‑41 (Appeal Decision), at page 4, the Tribunal states:

Previous Tribunal jurisprudence has given guidance as to the standards of review. Our task is to assess whether the member's finding was 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 incapable of being supported by the evidence. 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. On questions of law the standard would still be correctness.

(1) First Ground of Appeal

The Member erred in law in refusing to consider all the evidence put into the record.

[23] As a consequence, from the Minister's perspective, the Member either misinterpreted or failed to consider evidence, and therefore, the Review Determination should be nullified.

(2) First Issue in the Second Ground of Appeal

At paragraph 115 of the decision when the Tribunal found that the "normal cruising speed" within the meaning of the regulation was 65 percent for the flights during the morning of September 2, 2008.

[24] The Minister asserts that the Member made an error when interpreting what Stephen Hewitt said in his testimony and that the Member should have determined that 75 percent cruise power will generate 175 knots. The Appeal Panel's attention was drawn to various pages of the Review Hearing transcript (at pages 30, 36, 330, 331, 347, 348, 358, 359, 360, 591 and 650). These particular pages address, in part, the aircraft journey logbook, the flight planning weight and balance reports and expert witness testimony.

[25] After a careful consideration, the Appeal Panel is of the opinion that the Member did make an incorrect finding of fact that was unreasonable and not based on all the evidence established as part of the record. The Appeal Panel finds that the normal cruising speed within the meaning of the Regulation was 75 percent for the flights during the morning of September 2, 2008, based on time and distance.

(3) Second Issue in the Second Ground of Appeal

At paragraph 118 of the decision when the Tribunal found that 69.5 L was the required amount of fuel necessary to satisfy the Regulations.

[26] The Minister argues that the 69.5 L finding of fact by the Member is an error of law.

[27] The Appeal Panel was invited by the Minister to read paragraphs [116] and [117] of the Member's Review Determination and to reach the conclusion that the Member misinterpreted the testimony of Robert Sabyan. That is, during Mr. Sabyan's testimony when he referred to 10 to 12 minutes of additional flight time, he was referring to 5 US gallons of fuel remaining in the fuel tanks. To support this, the Minister argues that the Member was incorrect in using 65 percent power to calculate the required 30 minute of reserve fuel amount required (transcript at page 30).

[28] The Minister paints a picture of two types of evidence in existence at the Review Hearing: the "objective testimony and documentary evidence" of the Minister and the "subjective testimony of the Respondent and his witnesses" (see Exhibits M‑2, M‑3 and M‑20).

[29] Therefore, the Minister submits that if the 75 percent power setting is indeed the correct power setting to use, then the figure of 72.2171 L for the 30 minute of fuel reserve is the correct amount of fuel, not the 69.5 L (transcript at pages 56, 57, 58, 59 and 190).

[30] When the Appeal Panel considers this portion of the Minister's argument, it is of the opinion that the 69.5 L finding of fact by the Member is incorrect and that the correct amount is 71.82 L.

(4) Third Issue in the Second Ground of Appeal

At paragraph 120 of the decision when the Tribunal found that the fuel tanks, on September 2, 2008, held more than 693.3 L.

[31] The Minister submits that the Member erred in finding that the fuel tanks held more than 693.3 L. He suggests that the Member erred in interpreting Mr. Visser's testimony and cites pages 515, 544, 546, 547, 548, 549, 550 and 685 of the transcript to support that the Member should have determined that the fuel tanks held more than 693.3 L in total fuel. But, it is the Minister's position that the additional quantity of fuel is unusable fuel and not relevant when calculating the 30‑minute fuel reserve required by the Regulations.

[32] As well, the Appeal Panel finds that the fuel required for the 30 minutes at cruise must be calculated on the basis of 75 percent power. Accordingly, the aircraft operator's manual must be the guide used in calculating fuel capacity.

[33] Consequently, the Appeal Panel has determined that the Review Member did err and the Appeal Panel agrees with the Minister on this part.

(5) Fourth Issue of the Second Ground of Appeal

At paragraph 126 of the decision when the Tribunal found that there were at least 80 L of fuel in the tanks when the aircraft landed after the flight from Victoria, on September 2, 2008.

[34] The Minister argues that the Member erred in concluding that there were at least 80 L of fuel in the tanks when the aircraft landed at Abbotsford Airport from Victoria. Indeed, it is the Minister's position that the Safari Express Test ("SET") was not proper to consider because it was conducted five months after the incident occurred on September 2, 2008. The expert witness testified that it was not in accordance with the Piper Manual (transcript at pages 686, 691 and 704) and the SET does not clearly establish when the fuel flow warning lights will extinguish. Consequently, it is not possible to specify that the aircraft had 80 L in its fuel tanks upon landing on the day in question.

[35] In the Appeal Panel's opinion, it is important to consider both the handling of fuel and the Piper PA‑31 fuel system. Exhibit M‑12 is the Piper Aircraft Corporation PA-31-325 Navajo C/R and the Federal Aviation Administration ("FAA") Approved Airplane Flight Manual.

[36] In addition, Exhibit M‑13 delineates the fuel calculations for the Piper Navajo PA‑31‑325 C‑GFDR, the aircraft that is the subject of the Review and Appeal Hearings. As well, Exhibit M‑21, the Piper Customer Service Information File, provides very detailed and important information that the Appeal Panel has reviewed in depth.

[37] It is an industry standard that a preflight check is done prior to the first flight of the day. If a spontaneous fuel leak had occurred, it would or should be noticed at this point. It is during this preflight check that the fuel drain is used and if it is not properly closed, it will drip until the drain is properly sealed.

[38] In reference to Exhibit M‑21, the Piper PA‑31‑325 CR fuel system has a total of four tanks, two for each wing. The fuel quantity is indicated by a pair of gauges located on the overhead panel. Each gauge reads the quantity of fuel in the selected tank only.

[39] The inner tanks are larger tanks. The low fuel flow warning is located in the inboard tanks (Exhibit M‑21, at 3A21, item 28). The outboard tank has no fuel probe (Exhibit M‑21, at 3A22).

[40] The low fuel warning probe is located above the lowest point in the main tank. If fuel is not present, the light will illuminate after a two‑second delay and stay on for 10 seconds. Its purpose is to alert pilots that:

(1) The aircraft altitude, such as when the aircraft climbs steeply in a "Go around", has caused the remaining fuel to move away from the drain;

(2) Immediate action is required because the aircraft is about to suffer a power loss from fuel starvation unless there is another tank with fuel to select.

[41] In the Appeal Panel's opinion, the suggestion that 80 L of fuel is remaining when the low fuel light comes on is based on incorrect information. The 80 L figure was reached by determining that the light went out when 20 L was put in one of the main tanks, and then multiplying that by four. However, there is no reason to accept or think that a similar amount of fuel was in the auxiliary tanks. The aircraft fuel system is designed to read the quantity while the aircraft is in straight and level flight. According to the evidence adduced at the Review Hearing, the SET was done when the aircraft was parked on the floor. To simulate straight and level flight, the aircraft would have to be suspended on jacks. This is a common practice in the industry. The Piper Manual (PA‑31‑325 Navajo C/R) makes no mention of the fuel remaining when the light is illuminated.

(6) Fifth Issue in the Second Ground of Appeal

At paragraph 134 of the decision when the Tribunal found that there was a leak of aviation fuel from the aircraft of an undetermined amount.

[42] The Minister submits that the Member erred in rejecting the testimony of Mr. Massey concerning a finding that there was a leak of aviation fuel of an undetermined amount (paragraph [133] of Review Determination).

[43] The Minister submits that the testimony of the firefighter clearly demonstrated that he did not see a fuel leak on the day in question (transcript at pages 275, 276, 277, 278 and 288). Further, because the airport firefighters patrol and pass in front of the Operational Stand 7 ("OP Stand 7") and that the firefighters can see the OP Stand 7 from their office confirms that there was no fuel leak (transcript at pages 281 and 287).

[44] However, the Minister submits that even if the Appeal Panel rejects this portion of its argument, the fuel leak could only have been very small (transcript at page 154 and Exhibit M‑11).

[45] Further, because the firefighter noticed a 4 L fuel leak from the same aircraft at the same location two months before the incident of September 2, 2008, this confirms that the alleged leak on September 2, 2008, was small (transcript at pages 281 and 282). Therefore, when reading paragraphs [130], [131] and [132] of the Review Determination, the Minister disagrees with the interpretation of the facts.

[46] According to the Minister, there are only two possibilities — the fuel leak was noticed either on the morning or afternoon of September 2, 2008, and it was impossible that a fuel leak was seen in the afternoon of that day. To support this supposition, pages 154, 155, 447, 448, 450 and 625 of the transcript are referenced, thus putting aside the discrepancy that Mr. Burpee testified that he was not present on the afternoon of September 2, 2008 (transcript at pages 414 and 433) and this was confirmed by the Respondent's testimony on pages 580 and 636 of the transcript.

[47] As a result, the Minister takes the position that the fuel leak, if it did occur, occurred in the morning and in all likelihood was dealt with as the Respondent indicated (transcript at pages 492, 556, 637 and 638 and Exhibit A‑12). Evidence to support that it was a small spill is then corroborated by the testimony of Mr. Barrett at page 157 of the transcript.

[48] Of note, if a larger fuel leak had occurred, the Minister submits that the asphalt surface would have received more damage than what was witnessed (transcript at pages 164, 165, 166 and 167).

[49] In light of all this testimony, the Minister submits that if there was a leak, it happened on the morning of September 2, 2008, and it was addressed that morning. Therefore, the Member's finding was unreasonable and should not be upheld by the Appeal Panel.

[50] The Appeal Panel concurs that, after a careful review of the evidence and the transcript, there is little or no evidence to support the Member's finding and consequently finds that an error was made by the Member.

(7) Sixth Issue of the Second Ground of Appeal

At paragraph 138 of the decision when the Tribunal found that the Respondent was training Mr. Yakiwchuk during the taxi to the fuel pumps.

[51] The Minister argues that the Member erred in finding that Andrew Yakiwchuk was training when the taxi to the fuel pumps took place (paragraphs [135], [136] and [137] of the Review Determination).

[52] It is noted at pages 460, 461, 467, 469, 474, 475 and 477 of the transcript that Mr. Yakiwchuk could not recall that he was being trained when he taxied to the fuel pumps.

[53] In addition, there is a contradiction in his testimony at page 478 of the transcript and in Transport Canada's opinion, the taxi training had likely occurred on the second flight that Mr. Yakiwchuk took and not on September 2, 2008. Consequently, the Member should not have taken the position that Mr. Yakiwchuk had a clear or sufficient recollection of the events of September 2, 2008.

[54] In the alternative, the Minister takes the position that the testimony of Mr. Biela confirms that Mr. Yakiwchuk did in fact receive training on September 2, 2008. Evidence to support this is found in Mr. Biela's testimony at pages 112 and 113 of the transcript which the Member failed to consider as well as not taking into account the testimony of the Respondent at pages 510, 605 and 606 of the transcript.

[55] Accordingly, the Minister's position is that it was the Respondent's usual practice to refuel the aircraft before training and run-ups but on the day in question, it appears that it was done after the training.

[56] In essence then, the Minister argues that this type of familiarization training did not result in a great or significant amount of fuel to be consumed. The Minister further draws to the Appeal Panel's attention that the Respondent was not even in the aircraft at the time of the refuelling (transcript at page 582 and Exhibit M‑9).

[57] Of concern to the Minister is that, prior to the Review Hearing, the Respondent made no reference to the alleged training session on September 2, 2008, for Mr. Yakiwchuk (transcript at pages 95, 603, 604 and 605 and Exhibits M‑9 and A‑12). In contrast, when training was taking place, it was recorded in the aircraft journey logbook (transcript at pages 595 and 596).

[58] Accordingly, the Minister submits that no training occurred on September 2, 2008, or if it did, it was a ground familiarization exercise or it was performed after the refuelling occurred.

[59] From the Appeal Panel's perspective, it is important that certain aspects of airmanship and aviation mechanics be stated. That is, the Appeal Panel is of the opinion that the air time registered in the journey log over the fixed distance flown on September 2, 2008, could only have been registered as such, if the aircraft was flying at a speed of 175 knots. In order to fly the aircraft at a speed of 175 knots, 75 percent cruise power would be required.

[60] The claim that the aircraft flew faster at a lower power setting was not supported by any evidence submitted at the Review Hearing. The Minister's expert said that it was not industry standard to flight plan at a speed higher than the planned cruising speed and the Appeal Panel accepts that.

[61] Therefore, the Appeal Panel has determined that the minimum fuel needed to land at Abbotsford from Victoria, based on the flights that had occurred on that day, had to be 71.82 L based on 75 percent cruise power and not the 69.5 L suggested by the Respondent.

[62] A review of the Pilot's Operating Handbook of the aircraft, it lists the total capacity of the tanks as 192 US gallons or 725.952 L and all fuel planning must use this number as the basis of fuel management even though it was claimed that the aircraft held more fuel than the aircraft manual indicated.

[63] The Appeal Panel has determined that the claim that the "low fuel light" came on when there was 80 L of fuel left in the aircraft was neither based on any known standard nor on the Piper Airplane Service Manual. There is no basis in any reference manual for the 80 L number.

[64] Consequently, the Appeal Panel cannot put any weight on the testimony of Nizar Janmohamed. He stated that the fuel probes are located outside the tank and that there were 20 L of fuel in each tank. From the Appeal Panel's perspective, we find that this calculation was made in error, based on an incomplete understanding of the function and purpose of the "low fuel warning probe".

[65] The Appeal Panel notes that nowhere in the Review Hearing transcript is there any reference by the Abbotsford Airport officials concerning any significant fuel leak associated with aircraft C‑GDFR.

[66] Concerning the leaking of fuel, the Appeal Panel is of the opinion that there are no log book entries regarding fuel leaks. In light of this, it is very difficult to accept that any significant amount of fuel spontaneously leaked from the fuel drain.

[67] In addition, from the Appeal Panel's perspective, it is disturbing that there is no mention of the training of Mr. Yakiwchuk while taxiing to the fuel pumps. This claim by the Respondent is highly suspect because it was neither mentioned in the log books nor in any statement made by the Respondent to Transport Canada officials.

[68] Lastly, the Appeal Panel finds that there is limited evidence to suggest that Mr. Yakiwchuk was in training during this taxi. Even if that were the case, we cannot accept that as much as 50 L of fuel were used to taxi from the stand to the pumps.

[69] The Minister submits that if the Appeal Panel finds in favour on even one of the grounds of appeal, then that is sufficient to overturn the Member's initial Review Determination.

B. Respondent

[70] The Appeal Panel was hampered because of the lack of any substantive submission, either orally or in writing, by the Respondent. Notwithstanding the paucity of information to support the Respondent's position, the Appeal Panel has carefully considered and reviewed the Respondent's submissions. At the same time, the Appeal Panel is cognizant that the Respondent does not have the Appellant's burden to convince the Appeal Panel to question the Review Determination.

[71] The Respondent argues that that there are sufficient reasons why the Appeal by the Minister should be dismissed.

[72] Firstly, four company pilots stated that 65 percent was the cruise power used by the company and that they flight planned at 75 percent for unforeseen events.

[73] Secondly, the aircraft held 707 L without draining the unusable fuel.

[74] Thirdly, the SET was done to establish that the low fuel warning lights work.

[75] The Respondent further stated that the left fuel gauge reads lower than the right for a similar quantity of fuel.

[76] The Respondent goes on to argue that it is important to note that the Member acknowledged that there was a fuel leak even though "no one knows how much fuel leaked".

[77] Lastly, because Mr. Yakiwchuk received training and the fact that he could not remember the exact date demonstrates his integrity during his testimony.

[78] In summary, the Respondent submits that the Member's Review Determination should be upheld, and even if the Member made certain errors in findings of fact and that evidence was not properly considered, those errors are not sufficient to be fatal to the Review Determination.

VI. SUMMARY OF FINDINGS

[79] The Appeal Panel is of the opinion that the Member's Review Determination should be set aside. In our view, the evidence clearly indicated that, on or about September 2, 2008, the Respondent's aircraft did not, at the commencement of the flight, carry a sufficient amount of fuel as required by subsection 602.88(2) of the CARs. Had the "normal cruising speed" of 75 percent, rather than 65 percent, been used to calculate the required fuel level, the Member would have concluded that almost 72 L of reserve fuel was required and not 69.5 L as found by the Member. There was no credible evidence to demonstrate that the required fuel reserve was present at the commencement of the flight on September 2, 2008. For the reasons discussed above, the SET testing relied upon by the Respondent and the Member was not an accurate measure of the fuel level and should be disregarded. Simply stated, when the aircraft's fuel capacity of usable fuel is considered with the above factors, the Minister's evidence demonstrated that the aircraft did not contain the required fuel reserve in accordance with the CARs.

VII. MOTION ON COSTS

[80] At the close of argument, the Respondent requested that the Tribunal consider that this case warranted the awarding of costs. Consequently, the Minister submitted on April 14, 2010, his reply to the request for costs. The Tribunal's Registrar provided the Respondent, on April 16, 2010, with the Minister's position on the awarding of costs and the Respondent was given until May 4, 2010 to respond. When the Respondent did not respond, the Tribunal's Registrar followed up with an email dated April 21, 2010, allowing for additional time to receive a response from the Respondent by May 4, 2010.

[81] The Respondent responded on April 28, 2010 advising the Tribunal that he would defer any further submissions on costs until the rendering of the Appeal Decision. He also requested the opportunity to claim costs if the decision was in his favour. The Appeal Panel is of the opinion that the Motion on Costs should be dealt with now.

[82] Section 19(1) of the Transportation Appeal Tribunal of Canada Act states as follows:

19.(1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

[83] From the Appeal Panel's perspective, this is not a case where costs are justified.

[84] Black's Law Dictionary (8th edition) defines "frivolous" as lacking a legal basis or legal merit, not serious, not reasonably purposeful". Vexatious is defined as "without reasonable or probable cause or excuse; harassing; annoying" and "vexatious lawsuit" as "a lawsuit instituted maliciously and without good cause".

[85] There is simply no evidence to suggest that the matter heard at the Review Hearing was frivolous or vexatious or that officials of the Minister acted in bad faith or exhibited any form of maliciousness in the performance of their duties and clearly paragraphs 19(1)(b) and (c) are of no import in this particular matter.

[86] The Respondent raised subsection 19(1) as being worthy of consideration but there is simply nothing to base this assertion on. It is clear to the Appeal Panel that there is no justification to award costs and the request for costs is dismissed.

VIII. DECISION

[87] The Appeal Panel has determined that the Minister of Transport has proven that the Member misinterpreted and/or failed to consider evidence to such a degree that justice requires that the Review Determination be overturned. As a result, the Appeal by the Minister of Transport is allowed.

[88] The Appeal Panel finds that the Minister has proven that Gerald John Visser has contravened subsection 602.88(2) of the Canadian Aviation Regulations. We uphold the Minister of Transport's decision to suspend Mr. Visser's pilot licence for 30 days.

August 24, 2010

Reasons for Appeal Decision: J. Richard W. Hall, Chairperson

Stephen Rogers, Member

Concurred by: Herbert Lee, Member