Decisions

TATC File No. Q-3980-33
MoT File No. 5504-77991

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Yassine Soualy, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
paragraph 602.07(a) of the Canadian Aviation Regulations, SOR/96 433, pursuant to section 7.7(1) of the Aeronautics Act, R.S.C. 1985, c. A-2


Review Determination
Suzanne Racine


Decision: August 12, 2014

Citation: Soualy v. Canada (Minister of Transport), 2014 TATCE 29 (Review)

[Official English translation]

Heard in: Montreal, Quebec, on April 23 and 24, 2014

REVIEW DETERMINATION AND REASONS

Held: The Tribunal considers that the Minister has proven, on a balance of probabilities, the elements of the offence under review at this proceeding. The Tribunal upholds the fine of $1,500 for a contravention of paragraph 602.07(a) of the Canadian Aviation Regulations.

The total amount of $1,500 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this determination.

I. BACKGROUND

[1] Yassine Soualy is contesting a Notice of Assessment of Monetary Penalty dated June 25, 2013 in the amount of $1,500 for a contravention of paragraph 602.07(a) of the Canadian Aviation Regulations, SOR/96‑433 (CARs).

[2] According to Schedule A to the Notice of Assessment of Monetary Penalty, Mr. Soualy flew an aircraft with registration C-GVLT, on or around June 30, 2012 at approximately 4:00 p.m. UTC, in the vicinity of Saint‑Mathieu-de-Belœil airport, in a way that did not comply with the restrictions specified in the aircraft's flight manual; namely, it exceeded the maximum permitted take-off weight of 1,600 pounds.

II. STATUTES AND REGULATIONS

[3] Subsection 7.7(1) of the Aeronautics Act, R.S.C. 1985, c. A-2, establishes the following:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

[4] Section 602.07 of the CARs provides that:

602.07 No person shall operate an aircraft unless it is operated in accordance with the operating limitations

(a) set out in the aircraft flight manual, where an aircraft flight manual is required by the applicable standards of airworthiness;

[...]

III. EVIDENCE             

A. Minister

(1) Jimmy Cancino

[5] Mr. Cancino was the inspector responsible for Mr. Soualy's case before leaving Transport Canada in April 2013 for the Transportation Safety Board.

[6] The Minister's representative firstly enters into evidence a report from the Civil Aviation Daily Occurrence Reporting System (CADORS) relating to an event that occurred on June 30, 2012 at around 4:00 p.m. UTC in the vicinity of Saint‑Mathieu-de-Belœil airport (Exhibit M-1). Mr. Cancino testifies that this event involved a Grumman model AA-1C aircraft with registration C-GVLT and belonging to the Fous de Bassan flying club, which crashed on that day on Highway 20 soon after take-off.

[7] The Minister's representative then submits 24 photographs listed from “a” to “x” which Mr. Cancino took on July 4, 2012 in the presence of the representative of the insurance company Airclaims International (Exhibit M-2). These photographs show the wreckage of the aircraft and various documents found inside, including the aircraft's log book (photograph “m”). Mr. Cancino testifies that photograph “n”, showing a page from the aircraft's log book, indicates that the maximum permitted gross weight of the Grumman with registration C-GVLT and serial number AA1C-0155 is 1,600 pounds. The certificate of airworthiness (photograph “r”) indicates that the aircraft with serial number AA1C-0155 is a Grumman model AA-1C bearing registration C‑GVLT. Photograph “s” shows a weight and balance report for the Grumman AA-1C where, under number 1 in the table in the upper part of the photograph, it is recorded that the empty weight of the aircraft is 1,111.07 pounds and, under number 2, that the weight of the oil is 9.38 pounds. These two pieces of information also appear in photograph “t”.

[8] The report from Transport Canada's Continuing Airworthiness Web Information System (CAWIS) for the aircraft with registration C-GVLT (Exhibit M-4) indicates a maximum take-off weight of 1,598 pounds or 724.9 kilograms, which is 2 pounds off the maximum permitted gross weight on the certificate of airworthiness (Exhibit M‑2, photograph “r”), and an empty weight modified from 1,104 to 1,111 pounds, which is the empty weight of the aircraft appearing in photographs “s” and “t”.

[9] The reports from the Distributed Air Personnel Licensing System (DAPLS, Exhibits M-5 and M-6), also taken from the Transport Canada database, indicate to the witness that Mr. Soualy is a commercial pilot for single- and multi-engine land aircraft and that Hamed Afifi, a passenger on board the aircraft on June 30, 2012, is a private pilot for single-engine aircraft.

[10] Mr. Cancino reports that he had decided to focus his investigation on the possibility that the aircraft may have taken off with excess weight because, from reading the accident report by the Sûreté du Québec [the provincial police of Quebec] (Exhibit M-3), it would appear that the aircraft was struggling to take off. The witness states that the insurer's representative, Mr. Routhier, told him that Mr. Soualy weighed 231 pounds and the passenger, Mr. Afifi, 220 pounds. Mr. Routhier got this information from the Sûreté du Québec. Mr. Cancino's notes indicate that the weight of the baggage recovered from the wreckage by the Sûreté du Québec and weighed by Mr. Routhier was 56 pounds, maybe 52 pounds. The witness recorded this information in his personal notes (Exhibit M-8).

[11] The weight of the passengers and their baggage was 507 pounds (451 + 56) which, added to the modified empty weight of 1,111 pounds, brings the aircraft's weight to 1,618 pounds, not including fuel and oil, while the maximum permitted take-off weight for this type of aircraft is 1,600 pounds. This weight is also confirmed on page 2-6 of the flight manual for the Grumman model AA-1C (Exhibit M-7).

[12] The witness has not met the applicant. He has, however, received a written statement from the passenger, Mr. Afifi, relating the events that occurred on June 30, 2012 (Exhibit M-9).

[13] During cross-examination, the witness explains that he has received neither the photographs nor the list of objects weighed by Mr. Routhier. He does not remember whether the information concerning the weights of 231 and 220 pounds was given to him by telephone by the insurer or whether he got it from the Sûreté du Québec report.

(2) Yves Thibodeau

[14] Mr. Thibodeau, an inspector at Transport Canada, took over Mr. Soualy's case when Mr. Cancinco left the Department. He confirms that the maximum modified empty weight for the aircraft C-GVLT is 1,111 pounds and that the maximum take-off weight is 1,600 pounds (Exhibit M-7). In his opinion, the maximum take-off weight recorded in Exhibit M-4 should have read 1,600 instead of 1,598 pounds.

[15] Mr. Thibodeau states that he obtained written confirmation from Mr. Routhier of the fact that that objects inside the aircraft had been placed in a large bag to be weighed. The bag and its contents weighed approximately 52 pounds. Mr. Routhier also sent him the weight and balance report completed by Mr. Soualy (Exhibit M-10). He points out that the weight of the baggage recorded in this report is 20 pounds, 32 pounds less than that recorded by the insurer. The combined weight of the pilot and the passenger is 400 pounds rather than 451 pounds, which is the sum of the weights of 231 and 220 pounds declared to the Sûreté du Québec. According to the witness, the weight of 400 pounds was probably calculated using the standard weight of 200 pounds established on page 219 of Transport Canada's Aeronautical Information Manual (Exhibit M‑11) for a male aged 12 years or older during summer.

[16] The difference of 32 pounds between the weight of the baggage recorded in the report and that weighed by the insurer is sufficient to raise the take-off weight in excess of the maximum permitted. Mr. Thibodeau has therefore come to the conclusion that the applicant flew the aircraft outside the standards for use prescribed in the flight manual. He even recommended a fine of $3,000, taking into account aggravating factors such as the personal injuries caused to the passenger during the accident.

[17] Cross-examination revealed that Mr. Thibodeau had neither photographs nor a list detailing the objects weighed by the insurer. In his opinion, the figures recorded in the weight and balance report (Exhibit M-10) are incorrect and do not reflect reality. The aircraft would therefore have taken off with excess weight.

(3) Mathieu Lécuyer

[18] Mr. Lécuyer testified in place of his colleague, Mr. Routhier. The witness is a claims adjuster at Airclaims International. He helped his colleague, Mr. Routhier, to weigh the objects collected by the Sûreté du Québec from the wreckage of the aircraft. These objects, including a backpack, were placed in a hockey-style bag to facilitate weighing. He placed the hockey-style bag over one of his shoulders and held a pilot-style briefcase in his other hand. He weighed himself with the items, then deducted his own weight to reach the result of 52 pounds. His colleague did the same and the results matched. There was no list of the objects recovered and weighed in Mr. Routhier's file, but there was a note specifying that everything, except the fire extinguisher, was recovered.

[19] During cross-examination, Mr. Lécuyer stated that he had not seen all the objects contained in the hockey-style bag because it was only partially open during the weighing. He weighed himself, square on the scales, with the hockey-style bag over one shoulder and the briefcase in his other hand. The weight of the hockey-style bag containing the objects was not deducted from the total weight of 52 pounds. He did not see any pieces of Plexiglas or metal in the bag containing the objects recovered from the wreckage. He did, however, see a bottle of water.

(4) Simon Fortier

[20] Mr. Fortier is a qualified technician at the Bombardier business aviation training centre. He is also a commercial pilot for multi-engine aircraft with instrument flight rating. He has 750 flight hours. The witness is familiar with the aircraft bearing registration C-GVLT, having flown it for approximately 15 hours. On June 28, 2012, Mr. Fortier took a short leisure flight (0.5 hours according to the page in the aircraft's log book appearing in photograph “q” of Exhibit M‑2) on the aircraft C-GVLT departing from Belœil airport, flying to Mount Saint-Hilaire and back. He recognizes his signature and licence number CA 730918 in the last entry in the aircraft's log book.

[21] The witness believes that he took off on June 28, 2012 with a weight of approximately 1,380 pounds. He consistently produces a weight and balance report before each take-off. According to the witness, there was “a quarter of an inch below the half-tank mark” of fuel when he took the aircraft, which is around 10 gallons or 60 pounds of fuel (a US gallon of fuel is equivalent to around 6 pounds). On his return, there were between 5 and 6 US gallons of fuel left, which is around 30 to 36 pounds. He thinks he used around 5 pounds (less than a gallon) to get to the engine test point, carry out the necessary pre-flight checks and take off. The aircraft flight manual (page 5-19 of Exhibit M-7) indicates that 5 pounds of fuel are needed for run-up and take-off. The witness adds that the weight of the oil must be included in the weight and balance report.

[22] Mr. Fortier states during cross-examination that he did not put any fuel in the aircraft and that he did not know whether the previous pilot had done so.

(5) Hamed Afifi

[23] Mr. Afifi is a teacher at Collège Lasalle in Montreal. He has held a private pilot's licence since 2010 and has 170 flight hours. On June 30, 2012, the witness and Mr. Soualy, an acquaintance he met in 2011, had arranged to depart from Saint-Mathieu-de-Belœil airport to go to the Lachute flight school. They had agreed that Mr. Soualy would fly the plane and he would board as a passenger. Once at the airport, the witness headed towards a Cessna 172 that he had often flown, thinking that this was the one that Mr. Soualy would fly. The latter told him that he would take the Grumman instead. Mr. Afifi then asked him if it was not too windy to use this small aircraft. He had noticed that the wind indicator was at 90 degrees.

[24] Mr. Soualy inspected the aircraft and Mr. Afifi sat on his right. Mr. Soualy started up the aircraft and positioned himself near the runway threshold to fuel up. Mr. Afifi actually saw Mr. Soualy put fuel in the aircraft's tank and asked him if he had filled it up. Mr. Soualy replied that he had not completely filled the tank. Mr. Afifi tried to look under the bonnet to see how much fuel was in the tank, but he stated that it was quite difficult to verify compared to other types of aircraft. Mr. Soualy pointed out that the only way of knowing how much fuel was in the tank was to check the on-board indicator.

[25] The witness then recounts that Mr. Soualy restarted the aircraft, taxied to the engine test point and conscientiously carried out the necessary pre-flight checks. The aircraft took off from runway 33 heading north-north-west towards Highway 20, which stretches across just beyond the end of the runway, some 7 or 8 metres higher.

[26] When the aircraft took off, the stall alarm sounded. The aircraft was approximately 3 metres from the ground. The aircraft pitched violently to the right for the first time and Mr. Soualy tried to steer it to the left. The aircraft then pitched to the right a second time and the wing-tip touched the runway. The aircraft began to climb slightly, the stall alarm still sounding. The witness felt it brush against a truck on the highway travelling towards Quebec City. The aircraft then crashed on Highway 20, on the Montreal-bound side. The witness was trapped inside the aircraft. Mr. Soualy found himself outside. Once the first responders arrived, the witness and Mr. Soualy were taken to hospital.

[27] Mr. Afifi was questioned by Officer Gosselin from the Sûreté du Québec a few hours after the accident. He stated that he weighed 220 pounds (reverse side of Exhibit M-12). He mentioned to the Tribunal that his weight had always been 220 pounds. Mr. Afifi does not remember whether Mr. Soualy had asked him his weight previously, before a flight or at any other time, nor whether he had carried out the weight and balance calculations in front of him before the flight on June 30, 2012. According to the witness, Mr. Soualy asked him to tell the insurer that he weighed 200 pounds. Mr. Afifi estimates that Mr. Soualy weighed between 200 and 220 pounds and that their combined weight was between 420 and 440 pounds.

[28] Cross-examination of Mr. Afifi revealed the following facts:

Regarding the fuel:

  • The witness did not notice the amount of fuel remaining in the aircraft's tank before Mr. Soualy went to the fuel station;
  • The witness recalls that Mr. Soualy showed him the fuel gauge, but he does not recall what it indicated.

Regarding the baggage on board:

  • The baggage belonging to the witness weighed 5-10 pounds “at the absolute most”;
  • The backpack that he found close to the fuel station also weighed, according to him, 5-10 pounds “at the absolute most”;
  • He has no idea how much Mr. Soualy's baggage weighed.

Regarding the events that occurred between take-off and the accident:

  • Mr. Soualy announced take-off at 11:45 a.m.;
  • The aircraft did not pitch, but rolled;
  • The stall alarm sounded as soon as the aircraft lifted off the ground and continued throughout the short flight;
  • The aircraft lifted off the ground at the approximate height of the hangars located at the airport, on the pilot's side;
  • The aircraft was not on the runway centre line, the right-side wing extending out beyond the runway;
  • Mr. Afifi closed his eyes after passing over the Quebec City-bound side of Highway 20;
  • The last thing he saw was a milk tanker on the highway heading towards Quebec City;
  • According to the witness, the aircraft touched the median of Highway 20 before crashing on the Montreal-bound side of Highway 20.

Regarding the weights of the pilot and the witness:

  • The witness told Mr. Cancino that Mr. Soualy must weight around 200 pounds;
  • The witness stated that he had lost a lot of weight in hospital, but had regained his usual weight of 220 pounds.

Regarding the photographs in Exhibit M-2:

  • The witness recognized, on the left of photograph “j”, his flight calculator with a sticker bearing his initial, a letter “A”;
  • The calculator appearing in photograph “i” might be his, but he cannot be certain;
  • The witness does not use this type of calculator for his weight and balance calculations because he produces the report on paper.

Mr. Soualy told the witness that the aircraft's take-off weight was within the maximum take-off limits and that he had 300 pounds to work with.

(6) Sonia Gosselin

[29] Ms. Gosselin is a police officer with the Sûreté du Québec in the Saint-Hyacinthe area. She arrived on the scene of the accident at around 2:10 p.m. and then made her way to where the aircraft had been towed. She and another police officer recovered the objects that were found inside the aircraft, including three briefcases, a flight plan and the aircraft registration certificate. These objects were stored in a locker and later given to Mr. Routhier.

[30] The witness subsequently met Mr. Afifi and Mr. Soualy at the hospital. Firstly, she checked their personal details. To the question “what is your weight?”, Mr. Afifi replied 220 pounds and Mr. Soualy, 105 kilograms. She then took their statement and had them read it back and sign the incident report.

[31] She noted in the report concerning Mr. Soualy (Exhibit M-3) that he had stated having filled up the fuel tank, but that he had 50 pounds to work with.

[32] During cross-examination, Mr. Soualy asked Ms. Gosselin whether he had not actually said that he had filled the tank to the maximum allotment of fuel, but she did not remember this detail.

B. Applicant

(1) Yassine Soualy

[33] Mr. Soualy presented his version of the events.

[34] As the Cessna 172 was not available, Mr. Soualy decided to take the Grumman. He wanted an aircraft that was not filled to the maximum to enable him to top up the fuel residue with just enough fuel to get him and his passenger to Lachute. When he took possession of the Grumman, there was only 10 percent of residual fuel on board, compared to the 5-6 gallons alleged by Mr. Fortier, which would represent 25 percent of the tank's capacity.

[35] Before leaving for the airport, the witness did a weight and balance evaluation at home on his calculator using the Excel software. He explains that the calculator appearing in photograph “j” (Exhibit M-2) is not his because it lacks a label with his name and certain distinctive features.

[36] Mr. Soualy estimates that he needed at least 2 gallons (12 pounds) of fuel to do the run‑up. In contrast to the 5 minutes reported by Mr. Afifi, the run-up took between 10 and 15 minutes because he took the time to clean a dirty magneto in addition to carrying out the standard pre-flight procedures.

[37] Mr. Afifi's testimony assessing the weight of the baggage on board to be 20 or 25 pounds is realistic, according to Mr. Soualy. The latter characterizes the weight of 52 pounds recorded by the insurer's representative as excessive.

[38] Mr. Soualy weighs 95 kilograms (209 pounds). He made a mistake when he converted 200 pounds to 105 kilograms in hospital, probably because he was still in shock.

[39] The following facts were revealed during Mr. Soualy's cross-examination:

  • The witness has around forty flight hours on the Grumman AA-1C;
  • He did not use the standard weight of 200 pounds per person in his weight and balance report;
  • He has always allocated a fuel consumption of 12 pounds (2 gallons) for the run-up with this aircraft;
  • He did not know that the flight manual for the Grumman AA-1C (Exhibit M-7) indicated a fuel consumption of 5 pounds for the run-up;
  • He reiterates that the run-up lasted at least 10 minutes;
  • He assumed that the weight of the oil was included in the aircraft's empty weight of 1,111.04 pounds, but he did not check the aircraft's flight manual to see whether that was indeed the case (Exhibit M-7);
  • He thinks he had already asked Mr. Afifi his weight;
  • During the last medical examination required by Transport Canada, prior to the accident, the witness weighed 106 or 109 kilograms;
  • In March 2013, the witness weighed 112 or 113 kilograms;
  • Mr. Soualy cannot coherently explain why he told Ms. Gosselin that he weighed 105 kilograms, apart from the fact that he was in shock;
  • He thinks he told Ms. Gosselin that he had filled the tank to the “maximum allotment” [translation] and not that he had “filled the tank” [translation];
  • The witness does not recall having told Ms. Gosselin that he had a margin of 50 pounds to work with. He thinks he told her 5 pounds instead;
  • The witness concludes that he should not have given a statement to Ms. Gosselin in hospital because he was not his normal self and the statement wrongly incriminates him.

IV. ARGUMENTS

A. Minister

[40] According to the Minister's representative, all the elements of the offence have been proven on a balance of probabilities. The evidence has shown that:

  • The empty weight and the maximum weight of the aircraft with registration C-GVLT were 1,111.04 and 1,600 pounds respectively;
  • The weight declared by Mr. Afifi to the Sûreté du Québec was 220 pounds and that of Mr. Soualy, 105 kilograms;
  • The weight of the baggage recovered from the wreckage of the aircraft by the Sûreté du Québec and given to the insurer was 52 pounds;
  • The weight of the residual fuel present in the aircraft's tank on June 28, 2012 was 36 pounds;
  • There are no more entries in the aircraft's log book after that of June 28, 2012, the date on which Mr. Fortier flew the aircraft.

[41] The Minister's representative presents to the Tribunal five different scenarios combining the data that she entered into evidence regarding the weight of the pilot and the passenger, the baggage, the residual fuel, the fuel needed for the run-up, the oil and those alleged by the applicant. These five cases suggest scenarios ranging from the least favourable to the most favourable for the applicant. In all of the cases, the maximum take-off weight was exceeded, by 142 pounds in the worst case and 4 pounds in the best case. She stressed that the preliminary weight and balance report suggested an excess when the weight of the oil was added.

[42] Contrary to the claims made by the applicant, there could not have been any margin to work with in regard to weight. Mr. Soualy took off, on June 30, 2012, with a take-off weight above the maximum permitted.

B. Applicant

[43] Mr. Soualy submits to the Tribunal that the weight and balance report that he prepared at home before the flight (Exhibit M-10) was the only proof he could give to the insurer to show that he had carried out this evaluation. He modified this evaluation after finding the backpack and before adding the fuel. The modified report was on his flight calculator, which he later recovered after the accident, but which had been rendered unusable.

[44] Mr. Soualy then decided to take around 48 gallons of fuel, which is around half as much fuel as planned in his preliminary report. When he took possession of the aircraft, on June 30, 2012, there was very little fuel in the tank. Mr. Fortier testified that he had not added any fuel on June 28, 2012 when he flew the aircraft. On June 23, 2012, Mr. Soualy put 50.4 pounds of fuel in the tank of the Grumman with registration C‑GVLT, as appears in his entry on the sheet depicted in photograph “l” (Exhibit M-2). Over the following week, the aircraft flew for 4.2 hours, according to the entries appearing on photograph “q” (Exhibit M-2). This flight duration corresponds to the maximum range of the Grumman and corroborates, in his opinion, the fact that the aircraft's fuel tank was undoubtedly empty because there are no other fuel refill entries after June 23, 2012.

[45] The baggage on board did not weigh more than 25 pounds. This fact is further corroborated by Mr. Afifi's testimony. When he told Officer Gosselin his weight, the applicant made a conversion error by trying to give his weight in kilograms. He should have said 95 kilograms instead of 105.

[46] In reply, the Minister's representative points out to the Tribunal that the evidence put forward by the applicant, according to which the Grumman's tank was practically empty when he took possession of the aircraft on June 30, 2012, is very unreliable. In fact, Mr. Soualy put fuel in the tank on June 30, 2012, but did not record it. It may be that other pilots who had used the aircraft had forgotten to record their refuelling on the form, just like Mr. Soualy.

[47] In rebuttal, Mr. Soualy stresses that he never tried to encourage Mr. Afifi to lie about his weight. The applicant only discussed the issue when he told him that he had assessed the same weight for both of them, namely 209 pounds.

V. ANALYSIS

[48] The Tribunal must determine, in light of the evidence presented by the parties, whether the applicant:

  • on or around June 30, 2012,
  • at around 4:00 p.m. UTC,
  • in the vicinity of the Saint-Mathieu-de-Belœil airport (CSB3),
  • flew the aircraft with registration C-GVLT,
  • while exceeding the maximum permitted take-off weight of 1,600 pounds.

[49] Firstly, it is important to emphasize that the role of the Tribunal is not to determine whether the crash of the aircraft with registration C‑GVLT that occurred on June 30, 2012 was the result of the offence reported by the Minister.

[50] There is no doubt that the Minister has met the burden of proof incumbent upon him for the first four elements of the offence of which the applicant is accused. The CADORS incident report (Exhibit M-3) and the testimonies heard, particularly that of the applicant and his passenger, Mr. Afifi, confirm the date, time, place and use of the Grumman model AA-1C aircraft with registration C-GVLT.

[51] The dispute relates to the last element of the offence.

Maximum take-off weight

[52] The Minister has demonstrated to the Tribunal that the empty weight of the Grumman model AA-1C with registration C-GVLT appearing in the SWIMN report was modified to 1,111 pounds (503.9 kilograms) (Exhibit M-4). According to Mr. Thibodeau, an inspector at Transport Canada, the maximum permitted take-off weight of the aircraft appearing in the SWIMN report should be 1,600 pounds rather than 1,598 pounds, in accordance with the flight manual for the Grumman AA-1C (Exhibit M-7, page 2-6).

[53] According to the Transport Canada Aeronautical Information Manual in force at the time of the alleged offence (Exhibit M-11, sections 3.5.1 (g)(iv) and (v)), the unusable fuel and oil may be included in the empty weight. Moreover, the flight manual for the Grumman model AA‑1C contains an example of a weight and balance report (Exhibit M-7, page 6-7) where it is indicated that the following must be considered: the weight of the oil and fuel “in excess of unusable”, which is 2 US gallons of fuel (Exhibit M-7, page 1-4), the weight of the pilot and co‑pilot and their baggage. The sum of these weights must not exceed 1,600 pounds.

[54] The testimonies focused on different aspects of the events that occurred on June 30, 2012, but the Tribunal's analysis concerns facts which are likely to cause a fluctuation in the maximum permitted take-off weight, such as the weight of the pilot-in-command and his passenger, the weight of their baggage and that of the fuel and oil.

Weight of Mr. Soualy and Mr. Afifi

[55] Mr. Soualy explained to the Tribunal that the weight and balance report (Exhibit M-10) that he gave the insurer was prepared at home to give him an idea of the maximum amount of fuel that he could put in the aircraft's tank. This report was inaccurate and did not reflect reality. Mr. Soualy modified his weight and balance report after finding a backpack near the fuel pump before adding fuel. It is impossible to verify the applicant's claims and modified calculations because they were on his flight calculator, which was rendered unusable as a result of the accident.

[56] However, the Tribunal fails to understand why the applicant recorded a combined weight of 400 pounds which did not reflect reality. The applicant testified that he had asked Mr. Afifi his weight, but the latter does not remember Mr. Soualy asking him that question. Regardless, Mr. Afifi told Officer Gosselin that he weighed 220 pounds and the Tribunal that he had almost always maintained this weight, except during his stay in hospital. Mr. Afifi's testimony was consistent and assured. He has nothing to gain from this case because he has chosen not to make a claim following the events. Given Mr. Afifi's weight of 220 pounds, Mr. Soualy would therefore weigh 180 pounds (81 kilograms)? Mr. Afifi estimates, moreover, that he and Mr. Soualy weighed at least 420 pounds and at most 440. The applicant could have produced his weight and balance report at home using more reliable data, especially if he wanted to give himself a realistic idea of the maximum quantity of fuel that he could put in the tank. Why compile inaccurate data in a report that would inevitably produce inaccurate results? Such an evaluation is not fit for purpose and the recording of 400 pounds is not accepted by the Tribunal.

[57] The applicant claimed during his testimony that he weighed 95 kilograms and that he had made a conversion error from pounds to kilograms when he told Officer Gosselin that he weighed 105 kilograms. During cross-examination, Mr. Soualy said that he was proficient in converting from kilograms to pounds, but not the other way round.

[58] The Tribunal has difficulty finding this explanation reasonable. It fails to understand why the applicant would have tasked himself with the unfamiliar mental exercise of converting his weight in pounds into kilograms, especially since he knew his weight in kilograms. The Tribunal understands that the applicant was distressed, but not to the point where he would have been incapable of correctly providing personal information to Officer Gosselin. Why would personal information regarding his weight be more difficult to give than other details, especially since this tends to be expressed spontaneously? The Tribunal is of the opinion that, when one knows one's own weight, one can state it easily and clearly, especially in the way that is most familiar.

[59] The Tribunal considers the weight of 105 kilograms given to Officer Gosselin to be more likely. It is, incidentally, close to the 106 or 109 kilograms noted during his most recent medical examination prior to the incident by a doctor authorized by Transport Canada.

[60] Mr. Soualy also claimed that he did not use standard weights to record 400 pounds in his preliminary weight and balance report. Rather, he estimated that each of them weighed around 95 kilograms (around 209 pounds) and recorded a total weight of 418 to 420 pounds or 209 to 210 pounds each in his modified report on his calculator. Why did he not take advantage of Mr. Afifi's presence beside him at the time to record the real weight of his passenger on his calculator?

[61] Table 2 on page 219 of Exhibit M-11 indicates that for an aircraft carrying up to four passengers, it is necessary to use the real weight of the passengers, the weight given voluntarily or the estimated weight. If he did not have scales at his disposal, as was the case at the Saint-Mathieu-de-Belœil airport, Mr. Soualy should have again asked Mr. Afifi his weight.

[62] The Tribunal is of the opinion that the Minister has proven, on a balance of probabilities, that Mr. Soualy's weight was 231 pounds (105 kg converted into pounds) and the passenger's, 220 pounds.

Weight of the baggage

[63] Ms. Gosselin testified that she and a fellow police officer recovered objects from the aircraft at the site where it had been towed. She listed the six items recovered in a list entitled “Review of exhibits” [translation] appearing in the police report (Exhibit M-3). The following articles appeared on the list:

  • Aviation licence and permit no. 911079
  • 1 SMAP 296 GPS
  • 3 briefcases containing various aviation documents
  • 1 flight plan

[64] These objects were sealed, each with their own number, and placed in locker A-5 at the station in MRC Les Maskoutains. On the copies of the photographs taken by the Sûreté du Québec shortly after the accident (Exhibit M-13), we can see the briefcases (photographs “i” and “j”) and the GPS (photographs “k” and “l”). The Sûreté du Québec sent the GPS by mail to Marc Perrault at the Transportation Safety Board and delivered the five items by hand to Mr. Routhier at Airclaims.

[65] Once returned to Airclaims, the objects were placed in a hockey-style bag to be weighed by Mr. Routhier and Mr. Lécuyer. The latter stated that he had not seen the objects contained in the bag because it was only partially open during the weighing. He also testified that there was not a list of the recovered objects in Mr. Routhier's file and that neither he nor Mr. Routhier had deducted the weight of the hockey-style bag used to weigh the recovered objects. Mr. Lécuyer stated that the bag and its contents weighed 52 pounds. His colleague Mr. Routhier arrived at the same result. Airclaims confirmed all this with Mr. Thibodeau. Mr. Soualy finds this weight to be exaggerated. According to Mr. Afifi, his baggage and the backpack found weighed at most 10 to 20 pounds. Could Mr. Soualy's baggage have weighed around thirty pounds? Mr. Afifi provided no information on this matter. 

[66] The Tribunal is surprised that the insurer did not draw up its own list of the objects recovered from the aircraft. Did the company rely on the list from the Sûreté du Québec? Could the bag have contained anything other than the five items returned to the insurer by the Sûreté du Québec? Mr. Soualy seemed to imply that the bag could have contained pieces of metal or Plexiglas, without presenting evidence to that effect to the Tribunal. Mr. Lécuyer saw nothing in the half-open bag except a bottle of water.

[67] Mr. Soualy questioned the way in which the objects were weighed. In his opinion, using scales to weigh oneself at the same time as the baggage distributed on both sides of one's body could have shifted the centre of gravity and distorted the result. The Tribunal is of the opinion that the method used by Mr. Lécuyer and Mr. Routhier to weigh the baggage is not as accurate as if they had used a load cell, but it is nevertheless sufficient to give an idea of the weight to within a few pounds. On its own, this weighing method cannot make the weight vary by around thirty pounds. It is true that Mr. Lécuyer should have deducted the weight of the hockey bag, but again, the weight of such a bag cannot explain the difference.

[68] The Tribunal has no evidence to indicate that the scales could have been faulty. Mr. Afifi and Mr. Soualy estimated during their respective testimonies that the baggage weighed around 25 pounds. The Tribunal has no reason to believe that they were not telling the truth, but the evidence from the weighing carried out at the Airclaims office seems more tangible. The Tribunal therefore trusts the list of recovered items drawn up by Ms. Gosselin and the weight of 52 pounds obtained through the weighing method used by Airclaims.

Weight of the fuel

[69] In preparing his weight and balance report, the applicant intended to take a maximum of 78 pounds of fuel (13 gallons). He then assessed the weight of the occupants to be 400 pounds and that of the baggage to be 20 pounds. Once in place, Mr. Soualy, before adding the fuel, revised the quantity of fuel to around 48 pounds on his flight calculator. Mr. Afifi did not see him revise his calculations.

[70] The Minister was unable to prove the quantity of fuel put in the tank that day by Mr. Soualy because there was no entry in this regard in the fuel record for the Grumman C‑GVLT and there was no concrete way to verify this. Mr. Afifi also did not notice the quantity of fuel added to the aircraft's tank by the applicant and does not remember what the on-board fuel gauge displayed.

[71] Moreover, Mr. Fortin stated that there was still fuel on board when he returned the Grumman on June 28, 2012. There were no other entries in the log book for the aircraft C-GVLT after that of Mr. Fortin dated June 28, 2012. Mr. Fortin states that there was a little under half a tank of fuel, around 36 pounds (6 gallons), in contrast to Mr. Soualy's claim that the tank was practically empty.

[72] Officer Gosselin indicated that Mr. Soualy had told her that he had filled the fuel tank. Mr. Soualy tried to have her recall that he had actually reported putting in “the maximum allotment of fuel” [translation] (according to the weight and balance report), but Ms. Gosselin did not remember this detail. The applicant also told her that he still had a margin of 50 pounds before reaching the maximum permitted take-off weight. This statement is also called into question by the applicant, who states that he actually said that he had 5 pounds to work with. It is also important to remember that Mr. Afifi testified that Mr. Soualy had stressed to him, in hospital, that there had probably not been excess weight because he had margin of 300 pounds before reaching the maximum take-off weight. Mr. Soualy claimed that he had actually said 3 pounds.

[73] Mr. Soualy stated that he always planned a fuel consumption of 12 pounds to get to the engine test point and carry out the necessary pre-flight checks when he flew a Grumman. Witness Fortier believes it is unreasonable to plan 12 pounds of fuel for this operation, especially since the distance to the engine test point is very short at Saint-Mathieu-de-Belœil airport. Furthermore, the flight manual for the Grumman explains in diagrams 5-10 on page 5-19: “Note: Add 5 pounds of fuel for start-up, taxi and take-off.”

[74] An extra five pounds of fuel would therefore have been sufficient to get to the engine test point and carry out the necessary pre-flight checks. The applicant stated that he had never seen this note before, even though he had already flown the Grumman for around forty hours. Mr. Soualy states that getting to the engine test point took 10-15 minutes because he had to clean a magneto in addition to carrying out the various checks. Mr. Afifi, also a pilot, testified that Mr. Soualy performed the run-up conscientiously, “with great passion”, for 5-10 minutes, but he did not notice that Mr. Soualy had cleaned a magneto. Mr. Soualy did not draw Mr. Afifi's attention to this.

[75] There are several contradictions between Mr. Soualy's testimony and that of the Minister's witnesses, both regarding the residual fuel present in the tank of the Grumman on June 30, 2012 and the remaining weight available reported to Officer Gosselin and Mr. Afifi, as well as the time spent on the run-up.

[76] The Tribunal accepts the testimony of Mr. Fortier, also a commercial pilot, regarding certain details concerning the Grumman aircraft that the applicant failed to verify, such as the need to include the weight of the oil in the weight and balance report and the quantity of fuel necessary for the run-up. Furthermore, he remembers having seen the quantity of residual fuel with reasonable accuracy, stating that there was a quarter of an inch less than half a tank.

[77] Mr. Soualy's words as reported by witnesses Gosselin and Afifi regarding the respective margins of 50 and 300 pounds leave the Tribunal puzzled. Why did Mr. Soualy indicate, on his own initiative, to Officer Gosselin that he had a 50‑pound margin and to Mr. Afifi, a 300‑pound margin? The Tribunal is surprised that there is such a discrepancy on this key element. Mr. Afifi recalls very well the exchange he had on this subject with Mr. Soualy at the hospital, and the latter has not succeeded in undermining his credibility. In light of the evidence presented in this case, it is impossible that the take-off weight was only 1,300 pounds or 1,550 pounds, which are the weights obtained by subtracting from the maximum permitted weight the various margins given by Mr. Soualy, according to the witnesses. The Tribunal believes that Mr. Soualy attempted to minimize the gap between these two margins by changing his version of the events, thereby bringing the estimated weight of the aircraft to a more realistic total of 1,595 or 1,597 pounds, as the case may be.

[78] Mr. Afifi was unable to corroborate the fact that Mr. Soualy had spent more than 10 minutes carrying out the run-up, cleaned the magneto and modified his weight and balance calculations using his flight calculator. He did, however, indicate that the run-up was performed in accordance with regulations. The Tribunal favours the versions of witnesses Gosselin and Afifi, who seem to have been more objective in their ability to recall the events. The Tribunal considers that the way in which Officer Gosselin and especially Mr. Afifi described the events in detail and with unshakeable certainty, as well as the fact that none of the possible outcomes in this case represent an advantage or disadvantage for them, makes their testimony more credible that Mr. Soualy's.

[79] Analysis of the various elements that make up the maximum take-off weight tends to demonstrate that there was an excess. Even if the Tribunal agreed with the modified calculations made by the applicant using his flight calculator, there would still be an excess. Indeed, the parallels between the two hypotheses of weight and balance demonstrate that there was bound to be an excess.

  Favoured version (in pounds) Applicant's version (in pounds)
  • Empty weight

1,111

1,111

  • Weight of occupants

451

418

  • Weight of baggage

52 (1)

25

  • Weight of fuel

48

48

Subtotal 1,662 1,602
  • Weight of oil

9.38

9.38

  • Weight of residual fuel

36

13.2 (2)

  • Weight of run-up fuel

(5)

(12)

Total 1,702.38 1,612.58

(1) The weight of the hockey-style bag needed to be deducted.

(2) 10% of 132 pounds (22 gallons × 6) = 13.2 pounds (according to Mr. Soualy's testimony)

[80] Calculation of weight and balance is necessary to determine the quantity of fuel or baggage that it would be possible to take on board in order to stay within permissible limits. The pilot must therefore check his calculations before filling the fuel tank in order to ensure that the maximum take-off weight of the aircraft is within the authorized limits so as not to affect or reduce its performance, particularly when climbing. The applicant checked his calculations before the flight but, because he forgot to include the weight of the oil for this type of aircraft, he henceforth overloaded the aircraft.

VI. DETERMINATION

[81] The Tribunal considers that the Minister has proven, on a balance of probabilities, the elements of the offence under review at this proceeding. The Tribunal upholds the fine of $1,500 for a contravention of paragraph 602.07(a) of the Canadian Aviation Regulations.

August 12, 2014

Suzanne Racine

Member