Decisions

TATC File No. Q-4067-33
MoT File No. 5504-080984

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Brigitte Nantel, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Franco Pietracupa


Decision: May 19, 2016

Citation: Nantel v. Canada (Minister of Transport), 2016 TATCE 14 (Review)

Heard in: Montreal, Quebec, on February 16 and 17, 2016

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on a balance of probabilities, that the applicant, Brigitte Nantel, contravened subsection 602.88(2) of the Canadian Aviation Regulations. However, due to mitigating circumstances, the monetary penalty is reduced to $700 from $1,000.

The total amount of $700 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] On June 6, 2014, the Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty (Notice) in the amount of $1,000 to the applicant, Mrs. Brigitte Nantel, pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act), for a contravention to subsection 602.88(2)of the Canadian Aviation Regulations, SOR/96-433 (CARs). On June 16, 2014, the Transportation Appeal Tribunal of Canada (Tribunal) received Mrs. Nantel's request for a review of the Minister's decision.

[2] Schedule A to the Notice sets out the charge as follows:

[Translation]

On or about June 10, 2013, at approximately 21:00 hours UTC, in the vicinity of St. Hubert airport (CYHU), St. Hubert, Quebec, you, as pilot-in-command of registered aircraft C-GJSU, commenced a VFR flight without sufficient fuel onboard to assure compliance with subsections 602.88(3) and 602.88(5) of the Canadian Aviation Regulations (CARs), thereby contravening subsection 602.88(2) of the CARs.

Penalty: $1,000.00

II. STATUTE AND REGULATIONS

[3] Subsection 7.7(1) of the Act provides 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] The regulations allegedly breached by the applicant are set out in subsection 602.88(2) of the CARs as follows:

Fuel Requirements

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

(b) in the case of a helicopter, to fly to the destination aerodrome and then to fly for a period of 20 minutes at normal cruising speed.

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

(a) in the case of a propeller-driven aeroplane,

(i) where an alternate aerodrome is specified in the flight plan or flight itinerary, to fly to and execute an approach and a missed approach at the destination aerodrome, to fly to and land at the alternate aerodrome and then to fly for a period of 45 minutes, or

(ii) where an alternate aerodrome is not specified in the flight plan or flight itinerary, to fly to and execute an approach and a missed approach at the destination aerodrome and then to fly for a period of 45 minutes; or

(b) in the case of a turbo-jet-powered aeroplane or a helicopter,

(i) where an alternate aerodrome is specified in the flight plan or flight itinerary, to fly to and execute an approach and a missed approach at the destination aerodrome, to fly to and land at the alternate aerodrome and then to fly for a period of 30 minutes, or

(ii) where an alternate aerodrome is not specified in the flight plan or flight itinerary, to fly to and execute an approach and a missed approach at the destination aerodrome and then to fly for a period of 30 minutes.

(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.

[5] Section 703.14 of the CARs states:

703.14 (1) An air operator shall ensure that all operations personnel are properly instructed about their duties and about the relationship of their duties to the operation as a whole.

(2) The operations personnel of an air operator shall follow the procedures specified in the air operator's company operations manual in the performance of their duties.

[6] CARs standard 723.16(1)(b) states:

(b) Responsibility and Authority

Operational control is delegated to the pilot-in-command of a flight by the Operations Manager who retains responsibility for the day-to-day conduct of flight operations.

III. EVIDENCE

A.  Minister of Transport

1) Stephen Hewitt

[7] Mr. Stephen Hewitt is an experienced civil aviation flight operations inspector working in Abbotsford, British Columbia. He joined Transport Canada in 2001 in the Aviation Enforcement section. He is a subject matter expert on a variety of aircraft types and was introduced as an expert witness by the Minister. His credentials include 7,500 hours of flight experience, predominantly on the Beechcraft series turbo props; a background in tier three schedule airline operations; pilot examiner oversight; and approved charter pilot line checks. His status as an expert witness was accepted by both the Tribunal and the applicant, and his résumé was entered into evidence as Exhibit M-1.

[8] Mr. Hewitt introduced 27 documents to the Tribunal as part of his expert report, Analysis of Flight Planning/ Fuel on Board (Exhibit M-10). His expert testimony focused almost entirely on the fuel consumptions (Exhibits M-27, M-28), load sheets (Exhibits M-14, M-16, M-18, M‑21, M-23, M-25) and flight planning (Exhibits M-13, M-15, M-17, M-19, M-20, M-22, M-24) for the Beechcraft aircraft C-GJSU, for flights starting Friday June 7, 2013 through to June 10, 2013, the day of the crash. These flights were all flown by the applicant as pilot-in-command.

[9] Mr. Hewitt began his testimony by commenting on the pilot proficiency check ride (Exhibit M-26) that had been conducted on Mrs. Nantel, dated March 18, 2013. The test was performed by Transport Canada on the Beechcraft B100 aircraft and deemed successful. Based on the candidate's individual check details, his opinion was that although the applicant had passed the overall check ride, the pass was borderline.

[10] In using standard NAV CANADA navigation charts, fuel consumption charts, the Beechcraft King Air 100 Raisbeck Engineering pilot's operating handbook, fuel conversion charts and the Flycie Aviation (Flycie) company operating manual, he was able to determine the required fuel load and fuel burn for each leg flown by C-GJSU leading to the day of the crash (Exhibits M-11, M-29, M-30, M-31, M-32, M-33). In total, Mr. Hewitt was able to provide the calculated and estimated required fuel, fuel burn and remaining fuel onboard for seven flight legs. The data provided the Tribunal with the estimated fuel onboard the airplane when it departed St. Hubert on June 10, 2013.

[11] The calculations made by Mr. Hewitt in regard to the fuel consumption/uplift and burn shed light to the Tribunal as to the planned fuel burn used by the applicant, as pilot-in-command, and the estimated fuel burn that should have been used. The trend during the days leading to the June10, 2013 flight indicated an overestimation of fuel onboard and an underestimation of the required fuel burn. As an example, Mr. Hewitt explained that the applicant had been calculating 40 lbs of fuel used for engine start, run-up and take-off acceleration, when in fact she should have been using 60 lbs as per the aircraft manufacturer's charts.

[12] Mr. Hewitt went on to explain the role of a chief pilot in CAR 704 operations. The chief pilot is responsible for the professional standards of the flight crews under her authority. This includes developing standard operating procedures (SOP) and implementing all training programs. The Flycie SOP (Exhibit M-12) states that the pilot-in-command is responsible for the operations and safety of all personnel onboard. The pilot-in-command is the ultimate authority onboard. It is his/her responsibility to ensure weight and balance calculations, preparation of the aircraft for flight, ensuring all documents are onboard and the use of approved checklists.

[13] Mr. Hewitt went on to explain that item 22 of the Flycie checklist, under pre-flight check, states: “Fuel quantity”. In the company SOP, this check is expanded to include that the check on pre-start reads: “Fuel quantity”and the response from the crew is “SUFFICIENT”. This call ensures that the crew has the required fuel to conduct the flight according to the standards detailed in the company manual.

[14] He went on to explain his calculations in regard to the fuel burn onboard the aircraft C‑GJSU. The six flight legs prior to the flight that resulted in the violation flew a total airtime of 7.8 hours. The company manual (Exhibit M-11) provides the crew with guidance and requirements in terms of the fuel required prior to each flight. It specifically states that no one shall operate an aircraft if the following fuel calculation requirements are not met: enough fuel to fly to destination; fly the applicable approach at destination; fly the missed approach; fly to alternate and land at alternate; and then fly for a period of 45minutes.It also goes on to specify that sufficient fuel should be carried for taxiing and foreseeable delays, and weather conditions.

[15] It was pointed out to the Tribunal that the actual fuel requirements listed in the Flycie Company Operations Manual were more stringent than the ones specified by the CARs section 703.14. This added an additional layer of safety.

[16] In analyzing the last six legs prior to the crash and in the flight plan filed by the pilot-in-command on that day, the applicant indicated one hour and 30 minutes of fuel onboard (Exhibit M-24). Yet, on the previous evening when she flew the aircraft from Montreal to St. Hubert (Exhibit M-22), she had indicated one hour of fuel onboard. Since no fuel load or fuel slip indicated any fuel uplift in Montreal, the fuel stated on the flight plan was flawed.

[17] He went on to clarify that she had one hour of fuel the previous day, and when subtracting the 30 minutes of flight to return the aircraft to St. Hubert, she would have had approximately 30 minutes of fuel left to operate on June10, 2013. That would equate to approximately 500 lbs of fuel.

[18] Mr. Hewitt testified that she did not meet either the CARs 703.14 or her own company's minimum fuel requirements for either the latter leg into St. Hubert on June 9, 2013 or the flight conducted on the next day. At the very least, under CARs, she would have required 480 lbs of fuel. Again, using the applicant's filed flight plan, she had stated that she had one hour and 30 minutes of fuel on June10, 2013 and planned an estimated flight of only 11 minutes (Exhibit M‑24). Yet, her actual weight and balance indicates 580 lbs of fuel. This cannot equate to the one hour and 30 minutes of fuel onboard filed.

[19] On a technical question, the illumination of the yellow right hand (RH) or left hand(LH) Nacelle Not Full annunciatorwas explained. This light will illuminate when there is approximately 760 to 780 lbs of fuel remaining in the aircraft. Based on Mr. Hewitt's system expertise, it was stated that these lights would have been illuminated on the June 9 flight from Montreal to St. Hubert and would have remained on for the departure on June10. As per her flight plan stating 580 lbs of fuel and understanding the aircraft's fuel indication system, she would have been expecting this annunciator to be on.

[20] Mr. Hewitt also raised doubt as to the applicant's weight and balance data on departure from the Montreal to St. Hubert leg on June 9. She had filed a fuel load of 1100 lbs prior to departure. Based on the logbook entry of two hours and 42 minutes for the leg from Charlottetown to Montreal on June 9 (Exhibit M-2) and an initial departure fuel from Charlottetown of 1860 lbs, the applicant would have burned approximately 1367 lbs of fuel, leaving her with approximately 500 lbs of fuel in Montreal. Again, he re-iterated that since no fuel uplift was noted or seen, that would be what she would have had for the repositioning of the aircraft back to St. Hubert. The only way to have had 1100 lbs of fuel on departure on that evening would have been to have had taken on fuel. Nothing indicated that this occurred. As such, she would also not have complied with the CARs minimum fuel requirements for that leg on June 9, 2013.

[21] Finally, Mr. Hewitt explained that his calculations would be consistent with the fuel starvation scenario as they would correlate with the approximate time the aircraft had run out of fuel on June 10.

[22] He went on to explain that the Low Pressure lights would also corroborate the fuel starvation scenario. These lights will illuminate if the fuel pump has failed or if it is cavitated, that is no fuel left for it to provide any pumping and thus a drop in pressure in the system and a fail light. He did state that a pilot must always use all the tools at his/her disposal when estimating fuel onboard. Situational awareness as to the fuel state of the aircraft must be based on fuel burn calculations, time airborne and counter-checked against actual data in order to always have a clear picture of what is remaining.

[23] The Transport Canada Aeronautical Information Manual (TC AIM) (Exhibit M-34) clearly states that the pilot must carry the required fuel to comply with CARs 602.88. Mr. Hewitt read out loud the following extracts from the manual:

In addition to VFR and IFR fuel requirements, every aircraft shall carry an amount of fuel that is sufficient to provide for: taxiing and foreseeable delays prior to take-off; meteorological conditions; foreseeable air traffic routings and traffic delay; landing at a suitable aerodrome in the event of a loss of cabin pressurisation, or in the case of a multi-engine aircraft, failure of any engine at the most critical point during the flight; and any other foreseeable conditions that could delay the landing of the aircraft.

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 …when operating during the day, to fly to the destination aerodrome and then to fly for 30 minutes at normal cruising speed…

[24] Mr. Hewitt was asked to explain to the Tribunal what a type D dispatch system in commercial operations signifies (Exhibit M-35). He explained that in small commercial operations, the pilot-in-command can be delegated operations and dispatch control by the operations manager in the day to day flights. He went on to clarify the Nacelle Not Full light annunciator. In short, it signifies to the pilot that he/she is on the last 780 lbs of fuel onboard. Normally, this signifies that you have exhausted your wing tanks and have approximately one hour of fuel remaining, based on an average of 800 lbs of fuel burn per hour. This should not be interpreted as a low fuel indication warning.

[25] In Mr. Hewitt's opinion, having had the light come on the previous day, and during the last leg between Montreal Trudeau airport and St. Hubert airport, would signify that the crew did not meet the minimum fuel requirements as approved in the Flycie Company Operations Manual. He could not speculate as to why the lights had or had not come on the day of the accident.

Cross-examination of Mr. Hewitt

[26] On cross-examination, Mr. Hewitt was asked by the applicant if she was the chief pilot at Flycie. He responded that yes she was listed in the Transport Canada database as chief pilot. When asked how fuel is checked onboard the aircraft, he responded that one way to verify fuel is to measure your progressive fuel state, comparing the fuel burn to your operational flight plan. Another way is through the fuel indication system.

[27] Mr. Hewitt confirmed the annunciator panel is in the pilot's primary field of view on the Beechcraft King Air. He was asked to confirm if any light were to illuminate, it would be visible from either the left or right side of the cockpit. He confirmed this to be the case. The applicant did agree with the expert witness's fuel calculations but then asked why the Nacelle Not Full light did not appear on June 10, 2013 based on the fuel that would have been left onboard. He responded that assuming the annunciator light bulbs were not burnt out, it may be conceivable that the system was defective.

[28] Mr. Hewitt was asked if the primary fuel information used inflight is from the fuel gauges. He agreed with this statement but clarified that this information should always be confirmed with actual fuel burn and uplift. The gauges should reflect what you would expect based on these calculations. Any variations would point to a defective system. Same thing for the Nacelle Low Fuel lights. The pilot should understand the system and know when to expect them to come on.

2) Yves Thibodeau

[29] Mr. Yves Thibodeau is employed by Transport Canada as an inspector in the Aviation Enforcement branch. He was not the investigating inspector for this contravention, since the inspector originally assigned has since retired. He is familiar with the documents pertaining to this contravention.

[30] Mr. Thibodeau explained that a CADORS (Civil Aviation Daily Occurrence Reporting System) report had been issued with respect to this accident (Exhibit M-3). It specified that the Beechcraft 100 had crashed on approach to Beloeil airport on June 10, 2013. Four passengers were injured. He went on to state that the aircraft was based in St. Hubert, Quebec (Exhibit M-4) and was owned and operated by Aviation Flycie. Several other documents were entered by the witness confirming that the applicant, Mrs. Brigitte Nantel, was the holder of an Airline Transport Pilot Licence (Exhibit M-5) and listed as the chief pilot of Flycie from March 26, 2013 through October 16, 2013 (Exhibit M-6).

[31] Mr. Thibodeau testified that a Notice of Assessment of Monetary Penalty (Exhibit M-7) had been issued to the applicant on June 6, 2014, in which she was assessed a monetary penalty of $1,000 for having contravened provision 602.88 of the CARs; that is to have acted as pilot-in-command of an aircraft, C-GJSU, on June 10, 2013, without carrying sufficient fuel for the VFR (Visual Flight Rule) flight planned. The monetary penalty levied against the applicant was the minimum and in line with an individual having contravened the regulations for the first time.

Cross-Examination of Mr. Thibodeau

[32] On cross-examination by the applicant, Mr. Thibodeau acknowledged that he was only asked to identify the documents being presented in evidence, since he is familiar with the format and information documents being presented. This was necessary since the initial investigating inspector had retired and was unable to attend the hearing. He went on to explain that the actual Notice is decided by another branch within Transport Canada after having received recommendations by the investigating officer.

[33] As to why only the pilot had been assessed the Notice and not the operator, Mr. Thibodeau explained that he was unaware as to why this was the case.

3) Gregory Blanc

[34] Mr. Gregory Blanc owns a company specializing in technical and maintenance support and training, as well as conducting internal audits for maintenance companies in the aviation industry. He worked for Flycie from May 2013 to March 2014 as the PRM (person responsible for maintenance). His role and responsibility included planning the required scheduled and unscheduled maintenance for aircraft in the company.

[35] Mr. Blanc stated that he was onboard the aircraft on June 10, 2013 and was seated in right co-pilot seat at the time of the crash. He stated that he was onboard that day to carry out a flight test on some snags that had been reported on the aircraft. The flight, in part, involved capturing a VOR (VHF Omni Directional Radio Range) signal inbound and outbound of a VOR, and verifying a GPS /HSI (Global Positioning System/ Horizontal Situation Indicator) signal capture on the aircraft. He confirms that along with the captain, Mrs. Nantel, two other passengers were onboard. He was unsure if passengers were normally allowed onboard a flight-test flight.

[36] On the day of the flight, Mr. Blanc explained that he made his way to the aircraft located on the ramp at CMP Aviation in St. Hubert. After briefing with everyone regarding what was to be performed, he proceeded to the hangar to speak with the maintenance staff at CMP Aviation. This took approximately five to 10 minutes. He then proceeded to the aircraft and conducted a quick visual inspection of the aircraft prior to boarding.

[37] The witness explained that the taxi and take-off were uneventful. He could not recall if a checklist was conducted or not. Once airborne, they proceeded to the St. Jean VOR to conduct the testing and snag verification. The flight proceeded over St. Hilaire and then turned near Beloeil to capture a long final to land in St. Hubert.

[38] Mr. Blanc testified that a Low Pressure Fuel annunciator flashing caution light illuminated in front of the cockpit. He stated that the captain had seen the light and proceeded to verify the cause. He could not recall if the light was accompanied by an aural chime. The pilot then proceeded to turn to her left where the fuel panel is located. He was unable to say what the pilot may have been doing on the panel as it was outside his visual reference field.

[39] He explained that within a minute or two after the initial master caution, a second Low Pressure Fuel flashing light illuminated. The witness testified that he heard the pilot say they would try to land in a field, as they were too low to attempt to land at the Beloeil airport. Both engines had ceased to operate at this time. He went on to explain that both engines had failed almost simultaneously.

[40] Mr. Blanc testified that he was unaware if these lights had illuminated at any other time within the previous few weeks or if they had ever been reported coming on by any pilots on this aircraft. He confirmed that although the aircraft had been operated by Flycie over the previous six or seven months, he himself had only started working with this aircraft in the previous few weeks. He was unaware of any historical data pertaining to issues with the aircraft until then.

[41] After the crash, Mr. Blanc began looking into known technical issues with this aircraft, and reviewing if any type of fuel issues were known on this type of aircraft. He stated that after his questioning of colleagues and researching the issue, he came to the conclusion that they had undertaken the flight without sufficient fuel.

Cross-examination of Mr. Blanc

[42] On cross-examination, the witness was asked if any other light had been illuminated prior to the flashing master caution Low Pressure Fuel. He testified that, to his memory, he had not seen any other light illuminated.

[43] Mr. Blanc was asked if his predecessor had conducted the required work on the aircraft prior to his arrival as PRM. He responded that he was unaware of the work done on C-GJSU prior to his arrival, as he had just started in his role. He did state that, from memory, the company had used at least two maintenance companies as AMO (Approved Maintenance Organization) for this airplane. When asked if in fact there could have been three different companies maintaining this airplane, the witness responded that that could be possible.

[44] The witness was asked if he could recall the power settings on the engine when the plane was flying towards St. Hubert; specifically, if the engines were being run at full power or reduced power settings. He responded that he could not recall. He did state that the two passengers onboard at the time of the crash were the applicant's daughter and her boyfriend. Asked to rate the overall management of Flycie, Mr. Blanc responded that he would rate it as average.

[45] The applicant asked Mr. Blanc to elaborate as to the overall management of the company. He could not speak for the operational side of the company but stated that at no time did the company ever refuse to conduct the required maintenance work that he had asked or demanded.

[46] When asked about any prior issues or knowledge of issues with the Beechcraft fuel indication system, the witness explained that he was unaware although he would not be surprised if there may have been some issues. He went on to explain that for the actual aircraft they had, the fuel indication system was quite antiquated, and some issues were raised in regard to the fuel probes and the effect of humidity in the tanks if they are not filled up during overnights, particularly during the winter months.

[47] He did recall a conversation about this issue with the applicant but specified that the issue centered on another series Beechcraft B100. He said that these series airplanes are equipped with capacitance probes, as opposed to the older models such as the one they operate that have floats and plugs. Finally, he did confirm that filling up the tanks to capacity overnight during the winter months was good practice in order to avoid moisture build-up.

[48] When asked if the aircraft operated by Flycie was normally kept in a hangar, he responded that it was, but not necessarily when outside its home base. He also confirmed that pilots were authorized to use iPads for flight planning, and for weight and balance purposes.

[49] Mr. Blanc was asked if there had been issues withanother aircraft of similar type that had issues with fuel gauge indication and what may have actually been in the tanks. He specified that he could not recall what the other aircraft's serial number was. What he did state was that the fuel indication system changed from the older type Beechcraft 100 serial number 88, as operated by Flycie, to a different system from serial number 89 onwards.

[50] On re-examination, the Minister's representative asked Mr. Blanc to confirm that another aircraft that was used after the crash had a different fuel indication system than the model involved in the accident. He did confirm this.

[51] He also stated that the aircraft was outside when he arrived on the day of the accident, and he was unsure if it had been hangared at any time prior to departure.

4) Alain Côté

[52] Mr. Alain Côté is a part-time captain-ranked fireman employed by the City of McMasterville. He has been in this function since 1991. He has also been employed at Pratt & Whitney since 1985 as a machinist. Mr. Côté filed a report (Exhibit M-8) in regard to the crash that occurred on June 10, 2013. He was onsite the day of the accident, which occurred in a field along Highway 20 near the town of Saint-Mathieu-de-Beloeil.

[53] Mr. Côté testified that upon his arrival at the crash site, the first responders had already arrived. Ambulance, firefighters and police had set up a safety perimeter around site and were administering medical aid. His first task was to deploy firefighters, secure the site and protect the area against any possible risk of fire.

[54] He testified that no fire, explosion or fuel leak was observed or detected. Finally, he explained that no fuel contamination or leak was detected on the ground in or around the airplane.

B. Applicant

Brigitte Nantel

[55] The applicant represented herself and took the witness stand. She began her testimony in wanting to clarify some points as per the testimony heard by the expert witness in regard to the pilot proficiency check. She noted that it had been completed in only one hour and went on to clarify that the actual inflight portion only lasted approximately 42 minutes. Based on the number of items evaluated in the time frame allocated, the resulting pass was, in her view, not a borderline pass.

[56] Mrs. Nantel explained that she began her piloting career in 1994. She has never been subject to any aviation-related infraction or convictions either in Canada or in the United States. As a Class I instructor, she has never had any of her students fail a check ride under her recommendation.

[57] Operating often as a single pilot, all operational decisions were her responsibility. She went on to explain that in a commercial operation, some work-related tasks are done by the operator. Mrs. Nantel referred to the Flycie Company Operations Manual (Exhibit R-1) and explained that, as per that document, she was accountable to the operations manager at Flycie. In referencing this manual, the applicant explained that the operations manager had the duty and responsibility to make the necessary liaison with each external agency that affects the operations, such as maintenance, fueling and catering services, as well as ensuring that flight planning and aircraft loading is correct for every departure.

[58] She stated that often the company would refuel the aircraft when it had returned to its home base. On the day of the accident, she had accepted to do the flight and had asked permission to take her daughter and a friend, since the scope of the flight was to verify a problem with the GPS and not a safety verification of systems.

[59] On arrival at the CMP Aviation ramp, she proceeded to the aircraft parking position. It was in the same place that it had been parked the evening prior; it had obviously stayed outside overnight. Both the director of operations, Matthias Counquet, and the director of maintenance, Gregory Blanc, were exiting the aircraft at about the same time that she was arriving. She stated that at that time, a pre-flight briefing took place as to what would be done. She continued with the external and internal aircraft checks and took down from the instrument gauges the amount of fuel onboard the aircraft. This was the amount used for the weight and balance calculations.

[60] Mrs. Nantel then explained that she began her verifications and checks, and at no time did the Nacelle Not Full light illuminate or any other warning indications present. This was confirmed earlier in testimony by Mr. Blanc.

[61] Once airborne, she recalls looking at the fuel gauges and seeing nothing abnormal. Once the testing was completed, she purposely requested a long final into St. Hubert airport. The applicant re-iterated in her testimony that no warning lights were illuminated on the annunciator panel indicating a low fuel condition, which was also corroborated by the Minister's witness, Mr. Blanc.

[62] After the accident, the applicant did raise issues in regard to Flycie that showed unstable operational practices; high turnover rate of the maintenance managers and frequent changes of maintenance providers were some examples mentioned. This made proper follow-up in regard to maintenance difficult. Mrs. Nantel stated that had she not been in a commercial operation and had the sole responsibility of managing the aircraft, this accident would not have occurred.

[63] Finally, Mrs. Nantel confirmed that on the last flight conducted from Montreal back to St. Hubert on June 9, the Nacelle Low Fuel lights were illuminated. The only warning lights that did come on in regard to fuel were the Warning Fuel Pressure lights.

Objection by the Minister: Admissibility of Evidence (Exhibit R-2)

[64] The applicant submitted in evidence a safety memo dated May 27, 2015, in which pilots are warned of properly planning fueling requirements in order to take into consideration discrepancies between the amount of fuel left onboard aircraft and what the fuel gauges were indicating. In reviewing this document, I made the decision not to attach any weight to it for the following reasons:

  1. The memo relates to issues that had occurred a few weeks prior to the issuance of the alert. It relates to a possible issue with fuel indications onboard.
  2. The memo does not make any reference to which aircraft type, model, or serial number may be affected.

Cross-examination of Mrs. Nantel

[65] Under cross-examination, the applicant was questioned as to what a type D dispatch system employed by Flycie signifies. She explained that this would signify that the company has dedicated staff to prepare, file and support flight planning tasks for the pilots.

[66] The Minister's representative then questioned the applicant as to the specific practice of Flycie to fuel their aircraft overnight so as to minimize condensation in the reservoirs. He asked if this was always done. She responded that it was a common practice.

[67] The applicant, under cross-examination, testified that the Nacelle Low Fuel message had been illuminated on the last flight prior to the June 10 accident. She went on to clarify that the light actually illuminated during the flight leg between Charlottetown and Montreal. It illuminated on the approach to Dorval sometime after passing Quebec City. The light stayed on during the departure from Dorval back to St. Hubert.

[68] Mr. Hewitt testified that the Nacelle Not Full light should be viewed and interpreted by the pilot that the aircraft is approaching a low-fuel condition. Since the light had been on for two legs the previous day, Mrs. Nantel was asked what her thought was when the light did not illuminate the next day. More specifically, did she assume that the aircraft had been fueled? She responded that she had not questioned anyone as to the status of the fueling that day. Since the flight was planned by the director of operations and the director of maintenance, she did not question either one if they had fueled the aircraft prior to departure.

[69] The Minister then asked the applicant specifically if the pilot-in-command must always assume the responsibility for each flight. She responded that in commercial operations, the overall responsibility is with the director of operations and that there is a shared level of responsibility. The Minister then raised the issue that legally, under Canadian aviation regulations, much of the responsibility of a flight rests with the pilot-in-command. The applicant agreed that yes, much is placed on the pilot-in-command, but not all.

[70] Under continued cross-examination, the applicant was asked if she agreed with the fuel consumption calculations made by the expert witness. Mrs. Nantel responded that she did not dispute the calculations provided by the expert witness.

IV. ARGUMENTS

A.  Minister of Transport

[71] The Minister's representative submits that he has proven, on a balance of probabilities, that the applicant conducted a flight on June 10, 2013 without the required fuel to fly to destination and fly an additional 30 minutes as per the requirements in CARs 608.22, and this was corroborated by the applicant's testimony in that she did not check the fuel prior to departure.

[72] As infractions in the Aeronautics Act are strict liability infractions, the Minister does not need to prove intent but only that the infraction took place. The applicant has also agreed with the testimony of the expert witness as to the fuel consumption calculations provided. Although she may not have intentionally planned and began the flight without the required fuel load, the fact remains that the flight operated with insufficient fuel. In fact the Minister also believes, based on testimony and evidence, that the applicant had operated illegally as well the previous day, on the last leg between Montreal and St. Hubert, without having the required fuel to meet CARs 602.88. The Minister, however, chose not to issue a notice of infraction for that flight.

[73] He pointed out that the applicant had been pilot-in-command of the last six flight segments on this aircraft and should have been fully aware of the fuel status prior to the flight on June 10. The Minister's representative also raised the issue of the Nacelle Not Full indication light. He stated that although the light may have been illuminated on the last leg flown the previous day and may not have been on prior to departure the next day, it should have raised a red flag to any prudent pilot. It should have triggered the pilot to question if in fact the aircraft had been fueled. The applicant should have used this situation to carry out the required due diligence and verify the actual fuel load onboard that day.

[74] The Minister's representative went on to argue that as a chief pilot of the company, the applicant should be setting the standard as to adherence to the standards and regulations of the company. The pilot-in-command should not be referencing only one fuel indication system onboard; they should also be properly calculating the fuel required for a test flight. According to the expert witness, it is common for the pilot-in-command to always plan more fuel than expected, and prepare for a longer flight mission. This responsibility clearly falls on the pilot-in-command of a company approved in type D dispatch operations.

[75] Ultimately, the Minister's representative does not question or state that the applicant is irresponsible as a person or individual, but submits that as a strict liability infraction and on a legal basis, the applicant did commence a flight without the required fuel onboard. Although she may not have had any intention that day of departing without sufficient fuel, as pilot-in-command the legal responsibility to ensure sufficient fuel falls on her.

[76] The Minister's representative acknowledges that the fine imposed on Mrs. Nantel is of a first offence nature and that the applicant had never had any other infractions or notices of monetary penalty imposed. However, in his opinion, there are no mitigating circumstances that would warrant any reduction in the monetary amount imposed. He argues that the Minister was lenient in imposing the amount of $1,000, as the circumstances surrounding the crash could have resulted in much more serious consequences, including fatalities onboard or on the ground.

B. Applicant

[77] The applicant submits that the company did in fact employ a dispatcher and this may have led to some confusion as to the fueling onboard. She stated that relying on information from others has at times led to errors.

[78] She argues that the Nacelle Not Full light, as well as the fuel gauges indicating there was fuel, led her to believe the aircraft did have fuel onboard. Testimony from Mr. Blanc also points to the fact that fuel indication systems were flawed and that although not on the same type of aircraft as the one she was operating, these anomalies do occur. She argues that although aircraft may have different serial numbers, they may have the same fuel indication systems.

[79] The applicant submits that an accident is often the result of several factors leading to the event. The fact that the warning lights did function the evening prior and not the next day; that her fuel gauges were overestimating the fuel on board; as well as the practice of the company to fuel the aircraft during overnights; all led her to believe the aircraft was fueled.

[80] The applicant stated that in hindsight, after the crash, she should have questioned the fact that the aircraft had been to several maintenance providers. Also, the fact that the insurance company settled with the operator within three weeks but left the crew without any protection or coverage was unacceptable.

[81] The applicant argues that she believed the company was a safe operator but that in questioning several practices and procedures after the accident, she determined that this was questionable. She also stated that Transport Canada may have been misled by the operator who has since ceased operations.

[82] In closing, the applicant finds it deplorable the she is the only one facing charges in regard to this accident and that the operator should have been investigated as well. She stated that her trust in small aviation is non-existent today.

B.   Minister's Reply

[83] The Minister's representative responded by saying that:

[translation]…this is really not an action that has been taken against the person of Mrs. Nantel, but simply against the pilot-in-command. [It is the Minister's] responsibility to regulate … aviation companies and pilots-in-command, managers, etc…. It is the goal and the objective to ensure that there is safety for all in the air.

[84] As to the interpretation of CARs standard 723.16.1(b), the Minister submits that it was well defined and explained by the expert witness as to the responsibility of the day to day operations being delegated to the pilot-in-command. The argument raised by the applicant as to the reliability of systems onboard and equipment malfunctions should also be dismissed. The applicant was aware that if a system warning light comes on the day prior, and not on the day of the accident, then it should have been raised or flagged to the company.

[85] In the matter of the company having used several AMOs, this can very well be explained in that many AMOs are specialized in specific aircraft systems, such as engines or electrical systems. Based on the maintenance required, this would make sense and require the operator to go to various AMOs.

[86] Finally, the Minister's representative submits that the applicant's argument that part of the fault should be attributed to the company, is unfounded. She had no issue working for the company and believed it to be a safe operation up to the time of the accident. She then testified that it was an incompetent operation. This is simply to deflect the blame. Although the company may be partly responsible, the Minister has decided to send a notice of contravention to the applicant only. It is the Minister's decision as to who to pursue.

V. ANALYSIS

A. Elements of the Offence

[87] The standard of proof imposed on the Minister is the standard specified in the Transportation Appeal Tribunal of Canada Act, subsection 15(5), proof on the balance of probabilities.

[88] As such, the Minister must prove the elements of the alleged contravention on the Notice that specifically relates to CARs 602.88(2).

[89] The central issue at stake is: Did the applicant commence a flight on June 10, 2013 with sufficient fuel to ensure compliance with subsections (3) to (5)? The elements of the violation can be broken down as follows:

  • Was Brigitte Nantel the pilot-in-command of aircraft C-GJSU on June 10, 2013?
  • On that same date, did Brigitte Nantel commence a VFR flight without sufficient fuel?

[90] The requirements are as follows: CARs 602.88(3) stipulates that an aircraft operated in VFR conditions shall carry an amount of fuel that is sufficient to allow the aircraft, during the day, to fly to the destination aerodrome, then fly for a period of 30 minutes at normal cruising speed. Subsection (5) goes on to specify that the aircraft shall carry an amount of fuel that is sufficient to provide for taxiing and foreseeable delays prior to take-off; meteorological conditions; foreseeable air traffic routings and traffic delays; landing at a suitable aerodrome in the event of loss of cabin pressurization or, in the case of a multi-engine aircraft, failure of any engine, at the most critical point during the flight; and any other foreseeable conditions that could delay the landing of the aircraft.

[91] Also, as per the evidence and arguments at the hearing, it is worth considering the following questions in analyzing the issue at stake and the elements of the contravention:

1- Who has the ultimate responsibility in ensuring that an aircraft carries sufficient fuel to ensure compliance with CARs 602.88(2), subsections (3) to (5)?

2- Did the Beechcraft Series 100, C-GJSU, with the applicant as pilot-in-command on June 10, 2013, have sufficient fuel to meet this standard?

3- What factor, if any, did the yellow RH or LH Nacelle Not Full annunciators have on the pilot's fuel load decision on June 10, 2013?

I will proceed to deal with these questions, and concurrently analyze the issue and the elements of the contravention.

Question One

[92] There is no question, based on testimony from the applicant, that she was the pilot-in-command of the aircraft on the day of the accident. The first element of the violation has been proven. CARs 602.88(2) is very clear in that “(n)o pilot-in-command of an aircraft shall commence a flight…unless the aircraft carries sufficient fuel to ensure compliance with subsections (3) to (5)”.

[93] The Tribunal's interpretation of CARs 602.88 leaves no doubt as to the ultimate responsibility in regard to fuel load decisions onboard. The applicant has testified and referred to Exhibit R-1 as proof that the duty and responsibility in regard to the fuel onboard falls to the operations manager. In reviewing this document, I would disagree.

[94] The document does mention certain flight planning responsibilities attributed to the operations manager, including “make the liaison with each external agency that affects the operations (Maintenance Company, Fueling, Catering…)”. I can certainly see where the airplane's captain, and to a certain extent the operations manager, may have shared responsibility for determining how much fuel to load onto an aircraft, but the captain ultimately determines whether a plane can be safely flown in the conditions and parameters that particular day.

[95] Furthermore, the applicant's explanation that the actual fuel required for flight is a joint responsibility is contradicted by the Minister's Exhibit M-11. The Flycie Company Operations Manual, in chapter 2, section 2.2, clearly states that the flight preparation, in order to ensure the maximum safety of flight, is to be conducted by the pilot-in-command, and if applicable, assisted by the co-pilot. In the various tasks to be completed by the pilot-in-command, “fuel requirements” is listed.

[96] For this reason, the Tribunal does not share the applicant's opinion that the ultimate decision as to the amount of fuel required for a flight is a joint responsibility. The pilot-in-command has the final responsibility and ability to affect the margin of safety of flight, and this includes determining the fuel load for the mission at hand in order to not only ensure legal compliance to CARs 602.88, subsections (3) to (5), but also the company's own fuel requirements as per its operations manual.

[97] Only the pilot-in-command on the day of operation can reasonably take into account the variables and nuances that will come into play in the process of planning the required fuel as they prepare for a flight. The airplane's captain ultimately determines whether a plane can be safely flown and must assume responsibility as to the fuel required in order to ensure the margin of safety for the mission is met.

Question Two

[98] The applicant has not disputed the testimony and evidence in regard to the fuel consumption provided by the expert witness. Mr. Hewitt provided the Tribunal mathematical fuel burn calculations of aircraft C-GJSU for the previous six flight legs prior to the actual flight that took place on June 10, 2013.

[99] Based on the previous six legs prior to the June 10, 2013 flight, Mr. Hewitt calculated that the aircraft arrived back in St. Hubert on Sunday, June 9, 2013 with approximately 158 lbs of fuel onboard. In summarizing the evidence provided and cross referencing Mr. Hewitt's calculations, it would seem realistic to then conclude that based on the previous six legs (see below) the aircraft did depart on June 10 with insufficient fuel to meet CARs 602.88 requirements. The chart further below, summarizing some of the evidence, would certainly seem to illustrate this.

[100] The “Fuel Onboard Planned” column references the flight plans filed by Mrs. Nantel. The next two columns indicate the actual estimated fuel onboard and estimated fuel burn as calculated by Mr. Hewitt. It does indicate that on June 10, 2013, the estimated fuel onboard the aircraft prior to departure would have been approximately 158 lbs, compared to what the applicant had filed as being 580 lbs. To comply with CARs 602.88(2), the applicant would have had to have approximately 822 lbs. Furthermore, an additional 15 minutes of fuel would have been required in order to comply with the Flycie operational fuel requirements, based on the flight plan she had filed, which indicated:

  1. a CYHU – CYHU flight itinerary;
  2. an estimated time en route of 11 minutes;
  3. 240kts cruise speed at an altitude of 2,500 ft. and four passengers; and
  4. fuel onboard for one hour and 30 minutes.
Date Leg Fuel Onboard Planned Fuel Onboard Estimated Fuel Burn Planned Fuel Burn Estimated Uplift
June 07.2013 1-CYHU-CYUL 2524.5 lbs 2524.5 lbs 240 lbs 278 lbs (+38 lbs)  
June 07.2013 2-CYUL-CYRI 2265 lbs 2,246.6 lbs 565 lbs 574 lbs 848.6 lbs
June 07.2013 3-CYRI-CYFC 2524.5 lbs 2,521.1 lbs 690 lbs 528 lbs  
June 07.2013 4-CYFC-CYYG 2040 lbs 1993.1 lbs 444 lbs 444 lbs  
June 09.2013 5-CYYG-CYUL 1860 lbs 2049.1 lbs 1140 lbs 1618 lbs 500 lbs
June 09.2013 6-CYUL-CYHU 1100 lbs 431.1 lbs 240 lbs 273 lbs  
June 10.2013 7-CYHU-….. 580 lbs 158 lbs 275 lbs    

[101] Mr. Hewitt's calculations would indicate that to meet the requirement of CARs 602.88, the aircraft, on the day of the accident, would require onboard, at a minimum, approximately 820 lbs of fuel. This equates to a one-hour flight, plus start, taxi and acceleration on take-off. I agree with this assessment.

[102] The flight plan completed by the applicant indicates having one hour and 30 minutes of fuel onboard, which would thus indicate she believed she would have had approximately 1, 230 lbs of fuel. This assumption is flawed and clearly contradicts what she filed as fuel onboard, and the fuel amount she used for her weight and balance load sheet of 580 lbs. This clearly shows a level of confusion as to the amount of fuel she actually had onboard.

[103] A report by the first responders after the crash and evidence provided by the Minister's witness (Exhibit M-8) corroborates the fact that no fuel, fuel spillage or post-crash fire was detected on arrival at the scene. Evidentiary photographs (Exhibit M-9) clearly show no fire, smoke or fuel spill around the crashed aircraft.

[104] Furthermore, both the applicant and the Minister's witness, Mr. Blanc, did testify to a Fuel Pump Fail message illuminating just prior to the flame-out of both engines. This message would illuminate if the pump has actually failed or if the pump fuel pressure drops below a set pressure value and the motive flow of the system is interrupted, such as in the tanks running dry.

[105] Based on the evidence and testimony, it is my view that the Minister has proven on probability that the aircraft departed June 10, 2013 with insufficient fuel to meet the CARs 602.88(2) requirements. The second element of the violation has been proven.

Question Three

[106] The Tribunal must consider the problem relating to the RH or LH Nacelle Not Full annunciator's yellow warning message. I would agree with the Minister that a pilot-in-command must ensure, by multiple independent sources of information, a sufficient amount of fuel onboard the aircraft. Each system, such as fuel gauges, annunciator warning lights, fuel uplift slips or visual confirmation, can serve as backup for the others.

[107] From the evidence and testimony provided by the applicant and as per the flight plan filed that day, her decision may have been based on an assumption that the fueling was done by the operations manager, either on the day of the test flight or overnight, as was sometimes done.

[108] This assumption may have been confirmed, since Mrs. Nantel and Mr. Blanc testified that the RH or LH Nacelle Not Full did not illuminate during the start-up and initial flight leg on June 10. As testimony from both was credible, I would have to agree. Based on these two factors, the operational practice of normally fueling the aircraft overnight and the Nacelle Not Full light extinguished, one can see how it may have led Mrs. Nantel to believe that the aircraft had been fueled.

[109] The flight plan filed by the applicant that day indicated a fuel load of 580 lbs. Knowing that this light illuminates when the nacelle is at approximately 780 lbs or less, one would expect illumination at start-up. Testimony from the expert witness did not shed much light as to why it may or may not have come on. It is also worthwhile to note that the applicant, given that she had filed her fuel load to be 580 lbs, should have expected this light to come on. Again, it would point to the fact that she did not have an accurate understanding of what the fuel load was that day.

[110] Having fully established the elements of the contravention in the two previous questions, it can be argued that the non-illuminated Nacelle Not Full annunciator, coupled with the assumption that the aircraft is at times fueled during overnights at home base, may have contributed to the applicant believing that the aircraft had been fueled. This mitigating factor must be taken into consideration, although it does not in any way release her of the responsibility of a pilot-in-command confirming the fuel state of the aircraft.

C. Sanction

[111] The Minister has assessed a monetary penalty of $1,000. This amount was based on policy guidelines that suggest that this amount should be the penalty for a first offence. These policy guidelines were not entered as evidence, however, and policy as such has no binding legal status.

[112] Consequently, based on the applicant's unblemished aviation record with both Transport Canada and the Federal Aviation Administration, and the mitigating factors mentioned above, the assessed penalty in respect of the charge is reduced to $700.

VI. DETERMINATION

[113] The Minister of Transport has proven, on a balance of probabilities, that the applicant, Brigitte Nantel, contravened subsection 602.88(2) of the Canadian Aviation Regulations. However, due to mitigating circumstances, the monetary penalty is reduced to $700 from $1,000.

May 19, 2016

Franco Pietracupa

Member