Decisions

TATC File No. O-3707-41
MoT File No. PAP 5504-069727

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

ALCI Aviation Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433; paragraph 103.02(2)(a)


Review Determination
Franco Pietracupa


Decision: March 25, 2011

Citation: ALCI Aviation Ltd. v. Canada (Minister of Transport), 2011 TATCE 6 (Review)

Heard at Oshawa, Ontario, on January 25, 2011

Held: The Minister of Transport has proven, on the balance of probabilities, that the Applicant, ALCI Aviation Ltd., has contravened two counts of paragraph 103.02(2)(a)of the Canadian Aviation Regulations. Accordingly, the amount of $5 000 per count, for a total amount of $10 000, as set out in the Notice of Assessment of Monetary Penalty by the Minister of Transport, is upheld. This amount is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this determination.

I. BACKGROUND

[1] The Applicant, ALCI Aviation Ltd. ("ALCI"), is an Ontario commercial operator with its principal base of operations in the Antarctic. It was authorized to operate its Douglas DC3C‑BT67 aircraft, bearing registration marks C‑GEAI and C‑GEAJ, under section 704 of the Canadian Aviation Regulations ("CARs"). These Authorizations (Exhibits M‑3 and M‑4) allow ALCI to operate under paragraph 704.01(c) of the CARs in respect of operation of a Canadian air operator in an air service or in aerial work involving sightseeing operations.

[2] These Authorizations were subject to several conditions of which state in part:

b)    An additional crew member shall be assigned to all passenger-carrying flights to assist the air operator in fulfilling the passenger safety responsibilities under sections 704.33 and 704.34 of the CARs and associated Commercial Air Services Standards. The air operator shall also demonstrate compliance with the additional regulations, standards and guidance provided at Annex A to this authorization;

f)  All flight crew member training shall be conducted in accordance with the requirements of Subpart 704 of the CARs.

[3] Annex A to these Authorizations, pursuant to paragraph 704.01(c) of the CARs, reads in part:

CAR

Requirement

Remark

704.33

Apron Cabin Safety Procedures

The DC3C-BT67 is configured in such a way that the flight crew cannot comply with paragraph 704.33(1)(e). This has necessitated the need for a crew member to be carried in the cabin.

The crew member shall receive training in accordance with subsection 704.33(3). The training requirements referenced in 704.115(2)(d) shall be supplemented by the associated elements of TP 12296, Flight Attendant Training Standard.

[4] Upon completion of a scheduled Program Validation at ALCI on May 5, 2009, Teresa (Terry) Long, Regional Superintendent, Cabin Safety, Transport Canada, who was appointed Program Validation Manager, identified issues of concerns in regard to two flight attendant training records (additional crew members) that could not be produced. A Confirmation Request Form was issued (Exhibit M-10) to Manny Rosario, Director of Flight Operations at ALCI, in which it was requested that ALCI provide a copy of the flight attendant training records of Daniel Levert and Miroslaw Leopold Budzinski. A Detection Notice was completed by Ms. Long on August 26, 2009, when the records could not be produced (Exhibit M-12).

[5] On March 18, 2010, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("Notice"), pursuant to section 7.7 of the Aeronautics Act, ("Act") against ALCI. Schedule "A" of the Notice reads as follows:

1. On or about May 12, 2009, at or near Oshawa, Ontario, you, being the holder of Air Operator Certificate Number 11028, did not produce a document for inspection in accordance with the terms of a demand made by the Minister on May 5, 2009. Specifically, you did not produce the training records of Mr. Daniel Levert, thereby contravening paragraph 103.02(2)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY ASSESSED- $5,000.00 (Canadian Funds)

2. On or about May 12, 2009, at or near Oshawa, Ontario, you, being the holder of Air Operator Certificate Number 11028, did not produce a document for inspection in accordance with the terms of a demand made by the Minister on May 5, 2009. Specifically, you did not produce the training records of Mr. Miroslaw Leopold Budzinski, thereby contravening paragraph 103.02(2)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY ASSESSED- $5,000.00 (Canadian Funds)

II. STATUTES AND REGULATIONS

[6] Paragraph 103.02(2)(a) of the CARs provides as follows:

103.02 (1) The owner or operator of an aircraft shall, on reasonable notice given by the Minister, make the aircraft available for inspection in accordance with the notice.

(2) Every person who

(a) is the holder of a Canadian aviation document,

shall produce the Canadian aviation document, technical record or other document for inspection in accordance with the terms of a demand made by a peace officer, an immigration officer or the Minister.

[7] Section 704.117 of the CARs provides as follows:

Training and Qualification Records

704.117 (1) Every air operator shall, for each person who is required to receive training under this Subpart, establish and maintain a record of

(a) the person's name and, where applicable, personnel licence number, type and ratings;

(b) if applicable, the person's medical category and the expiry date of that category;

(2) An air operator shall retain the records referred to in paragraphs (1)(c) and (d) and a record of each pilot proficiency check for at least three years.

(3) An air operator shall retain a copy of the most recent written examination completed by each pilot for each type of aircraft for which the pilot has a qualification.

III. EVIDENCE

A. Minister of Transport

(1) Teresa (Terry) Long

[8] Terry Long was assigned to conduct a Program Validation of ALCI. A letter confirming this Program Validation was sent to Mr. Rosario, Operations Manager, on March 11, 2009 (Exhibit M-1).

[9] Ms. Long testified that the DC3C-BT67 is normally operated under section 705 of the CARs, but that ALCI had requested and received authorization to operate aircraft C‑GEAI and C‑GEAJ under section 704 of the CARs. This privilege was granted with specific conditions specified under paragraph 704.01(c) of the CARs. (Exhibits M‑3 and M‑4).

[10] One of the conditions specified and required under paragraph 704.01(c) was for ALCI to assign an additional crew member on all passenger-carrying flights. The ALCI Additional Crew Member Training Syllabus for the DC3C-BT67 (Exhibit M‑5) was in accordance with paragraph 704.115(1)(b) of the CARs. As such, each additional crew member is required to undergo flight attendant training under sections 704.33 and 704.34 of the CARs.

[11] On May 5, 2009, during the Program Validation of ALCI, Ms. Long testified that Mr. Rosario was unable to provide a copy of the additional crew member training records of Mr. Levert and Mr. Budzinski. A Confirmation Request Form requesting ALCI to provide the additional crew member training records of these two individuals was then submitted to ALCI on May 5, 2009 (Exhibit M-10).

[12] Ms. Long testified that Mr. Rosario responded on May 5, 2009, that ALCI was in the process of locating these records. Mr. Rosario requested until May 12, 2009, to respond. On May 13, 2009, Ms. Long received an email from Mr. Rosario (Exhibit M‑11) stating that the original records were not found. An effort by Mr. Rosario to duplicate the records was unsuccessful. A Detection Notice recommending further investigation was then completed by Ms. Long (Exhibit M‑12).

[13] In cross-examination by Mr. Rosario, clarification was made on the charges against ALCI. It was explained that the alleged violations centered on records not being produced, not the fact that the training had not occurred.

[14] Ms. Long did give ALCI the opportunity to reproduce and/or reconstruct the records to show that the training had taken place.

(2) James McCoig

[15] James McCoig is a Civil Aviation Inspector, Commercial and Business Aviation, at Transport Canada. He testified as to the confirmation and verification of flight logs and documents pertaining to two passenger-carrying flights that took place on November 22, 2008 and January 20, 2009 (Exhibits M‑8 and M‑9). On aircraft C-GEAJ, Mr. Levert was identified as an additional crew member (November 22, 2008), and on aircraft C-GEAI, Mr. Budzinski was entered as an additional crew member (January 20, 2009).

(3) Audra Oakes

[16] Audra Oakes is a Civil Aviation Safety Inspector, Aviation Enforcement, Transport Canada who was assigned to investigate the alleged violations against ALCI. In testimony, Ms. Oakes explained the requirements to operate under section 704 of the CARs.

[17] ALCI had been approved to operate under this section but with conditions to operate passenger flights on aircraft C-GEAJ and C-GEAI with an additional crew member to act as a flight attendant. She reiterated that this authorization is based on the company adhering to the conditions imposed.

[18] A letter dated October 9, 2009, was sent to ALCI to the attention of Mr. Rosario informing him that Transport Canada, Aviation Enforcement, was investigating possible violations of the CARs pertaining to the retention of additional crew member training and records (Exhibit M‑17).

[19] Ms. Oakes also testified to a telephone conversation with Mr. Rosario that had taken place on October 26, 2009, in which he stated that he understand the Letter of Investigation. Mr. Rosario also stated during this conversation that the training records had been lost in transit, ALCI had ceased all passenger-carrying flights until everyone was trained, and that the practical training had been done.

[20] Ms. Oakes confirmed that training records may be reconstructed and/or reproduced if required but only if the training event can be proven to have taken place. Neither was produced by Mr. Rosario.

[21] In cross-examination, Mr. Rosario reiterated in his response in the Confirmation Request Form, that training had taken place but the records could not be located (Exhibit M- 10). He questioned the witness as to the right to duplicate the training records if lost and Ms. Oakes clarified that they can, but that the event must be documented to have taken place via invoices or attendance records.

B. Applicant

(1) Manny Rosario

[22] Mr. Rosario testified that during the Process Verification Inspection some training records were missing. Through the Flight Attendant Initial Training Program provided by ALCI (Exhibit A‑1), some records were reproduced. Mr. Rosario indicated that these records were based on recollection and data, and others would be more difficult to reproduce as dates and times were missing.

[23] As he continued to submit the required documentations to Inspector Long, Mr. Rosario testified that a search for the missing records for Mr. Levert and Mr. Budzinski was undertaken. The records had been sent to the Antarctic and Mr. Rosario indicated that this was not the ideal solution.

[24] Mr. Rosario testified that the Flight Attendant Initial Training for Mr. Levert and Mr. Budzinski had been outsourced.

[25] In cross-examination, Mr. Rosario claimed to have submitted all required documentation but that they may have been mishandled by Transport Canada.

[26] Mr. Rosario was questioned regarding the Flight Attendant Initial Training Program (Exhibit A-1). This document was duplicated by Mr. Rosario for Flight Attendant, Jamie Lee, and submitted to Transport Canada. The document, however, is only part of the required training records (Section 7 – The Drills). The remainder of the required documentation was not located.

IV. ANALYSIS

[27] There is no question that ALCI, Air Operator Certificate Number 11028, was the registered owner of aircraft C-GEAI and C-GEAJ at the time of the alleged violations. Furthermore, ALCI had been granted authorization to operate both DC3C‑BT67 aircraft, pursuant to paragraph 704.01(c) of the CARs.

[28] The responsibility of the operator under these Authorizations (Exhibits M‑3 and M‑4) is to ensure that in aerial work involving sightseeing, for example, passenger‑carrying, the following conditions are adhered to:

b)    An additional crew member shall be assigned to all passenger-carrying flight to assist the air operator in fulfilling the passenger safety responsibilities under section 704.33 and 704.34 of the CARs and associated Commercial Air Services Standards. The air operator shall also demonstrate compliance with the additional regulations, standards and guidance provided at Annex A to this authorization;

f)  All flight crew members training shall be conducted in accordance with the requirements of Subpart 704 CARs.

[29] ALCI did have an approved Additional Crew Member Training Syllabus (Exhibit M-5) in accordance with paragraph 704.115(1)(b) of the CARs.

[30] Based on evidence submitted by the Minister, and not disputed by ALCI, two flights on two specific dates were conducted in which an additional crew member was required to be on board.

[31] On November 22, 2008, a passenger-carrying flight was conducted. Mr. Levert was identified on Flight Authorization documents as an additional crew member as per section 704 of the CARs (Exhibit M‑8). On January 20, 2009, a passenger-carrying flight was also conducted. Mr. Budzinski was identified on flight authorization documents as an additional crew member (Exhibit M-9).

[32] Under subsection 704.117(1) of the CARs, the operator must establish and maintain a training record for each of its additional crew member. Mr. Rosario did testify that he was aware of this requirement. The training documents and records are a critical component of assuring that all required training is completed. These documents prove to regulators, industry and the travelling public that crews have been trained to the required standards set forth by Transport Canada.

[33] During a properly scheduled Program Validation, ALCI was unable to produce the training records for Mr. Levert and Mr. Budzinski.

[34] Several plausible explanations were raised during the Review Hearing. The Member agrees that operating in the Antarctic does have its challenges, and that records can be misplaced, lost or destroyed. However, the opportunity to duplicate or reproduce the training records is an option. Based on the actual training having taken place, the operator would be able to trace invoices of third‑party providers of said training, a schedule of the event and/or an attendance records. Based on the evidence submitted by Mr. Rosario (Exhibit M‑11), he was unable to locate, duplicate or reconstruct the training event. The Tribunal is not questioning whether the training occurred, but the fact that the records could not be produced when requested.

[35] Mr. Rosario testified that all requested records had been submitted to Transport Canada. Based on evidence and testimony, ALCI has failed to make a compelling case for this possible scenario.

[36] I have no doubt that both ALCI and the Minister operate with safety as paramount in all flight operations, more so in areas such as the Antarctic. Safety compliance specified in the CARs is based on operators being able to produce the required documentation in relation to all safety training. On the basis of the evidence, I have come to the conclusion that the training records were not produced when requested. Ultimately, it is the training records that prove that the required training is completed and an air operator is complying with regulatory requirements.

[37] Definitive evidence was presented that proves, on the balance of probabilities, that ALCI had operated two passenger-carrying flights with additional crew members on board. When requested by Transport Canada, no training records for the two additional crew members assigned to these flights could be reproduced by ALCI in order to validate the required training.

[38] The maintaining, retaining, and documenting of required qualification records is the responsibility of ALCI. As stated, records can be lost, destroyed or misplaced. The due diligence in being able to confirm training is the responsibility of the air operator. Date of training, invoicing from third‑party providers, or any other document that can assert that the training was conducted by ALCI would have allowed for the reproduction of the training records. However, no records could be found by ALCI.

[39] Aviation safety and the protection of the travelling public are key elements in determining the enforcement action taken by Transport Canada. As such, the Tribunal confirms the monetary penalty of $5 000 for each of the two counts, as assessed by the Minister.

V. DETERMINATION

[40] The Minister of Transport has proven, on the balance of probabilities, that the Applicant, ALCI Aviation Ltd., has contravened two counts of paragraph 103.02(2)(a)of the Canadian Aviation Regulations. Accordingly, the amount of $5 000 per count, for a total amount of $10 000, as set out in the Notice of Assessment of Monetary Penalty by the Minister of Transport, is upheld.

March 25, 2011

Franco Pietracupa

Member