Decisions

CAT File No. C-2224-41
MoT File No. RAP5504-042836 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Skyward Aviation Ltd., Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 703.88(1)(d)
Commercial Air Service Standards, ss.723.88 and 723.98

PPC, Training, Pilot Proficiency Check, Air Operator


Review Determination
Philip D. Jardim


Decision: May 10, 2001

The case is dismissed, and the penalties are set aside.

A review hearing on the above matter was held Monday, April 30, 2001 at 10:00 hours at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

In September 2000, Transport Canada conducted an audit on Skyward Aviation and found some apparent infractions in Skyward's training practices, contrary to paragraph 703.88(1)(d) of the Canadian Aviation Regulations (CARs) between July 12, 2000 and August 28, 2000. An investigation ensued, and the Minister assessed monetary penalties (three counts) of $750.00 each totalling $2,250.00. These occurrences were in respect of Skyward having allowed three of its pilots to act as second pilots in Cessna 421 and Beech 200 aircraft, operated by the company, without proper training as set forth in the Skyward operations manual, its training matrix, and section 723.88 of the CARs and section 723.98 of the Commercial Air Service Standards (Standards).

Skyward Aviation did not pay the fine, and the Minister applied to the Tribunal for a review hearing, and this was scheduled by the Tribunal for April 30, 2001.

There was a pre-hearing agreement between Mr. Barnsley, counsel for Skyward, and Mr. Gagnon the Minister's case presenting officer. They agreed on a statement of "admitted facts" which forms part of Exhibit D-1. These facts relate to the criteria surrounding the enforcement action, the Notice of Assessment of Monetary Penalty, the times/dates of the alleged infractions, the pilots concerned, and the training requirements as set forth in section 723.88 of the Standards and section 5 of Skyward's operations manual.

The Admitted Facts in D-1 read:

The Minister and the Respondent, Skyward Aviation Ltd. admit the following facts at all relevant times (document reference numbers (#· ) refer to tabbing in the Agreed Documents Binder):

  1. Skyward Aviation Ltd. ("Skyward") carries out air taxi operations pursuant to Air Operator Certificate 3146 (#4).
  2. Skyward operates Beech 200 aircraft C-FCGL and Cessna 421 aircraft C-FGMO (#6).
  3. The C421 is certified for single crew IFR operations. Neither the C421 nor the B200 requires a type rating for its operation.
  4. The Minister issued a Notice of Assessment of Monetary Penalty to Skyward dated January 4, 2001 alleging that three (3) of Skyward's pilots, Hogan, Jakimovski and McMaster each acted as a flight crew member without having received required training, contrary to Canadian Aviation Regulation 703.88 1(d) (#1).
  5. In each case the pilot in question had received a Pilot Competency Check ("PCC") following these flight training times:

    Hogan 1.5 hours on July 11, 2000 (#7);
    Jakimovski 2.1 hours on July 21, 2000 (#8); and
    McMaster 1.2 hours on February 27, 2000 (#9).
  6. Each of Hogan, Jakimovski and McMaster acted as second in command on the relevant aircraft type following his respective PCC check consistent with the dates alleged in the Minister's Assessment of Monetary Penalty (copies of logs #10, 11 and 12).
  7. PCC training requirements are governed by CARS 703.88 (#2), CARS Standard 723.88 (#3) and Section 5 of Skyward's Operations Manual (#5).

THE LAW

Section 703.88 of the CARs states:

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

(a) holds the licence and ratings required by Part IV;

(b) within the previous 90 days, has completed at least three take-offs and three landings

(i) where a type rating for that aircraft is required, in an aircraft of that type, or in a flight simulator representing that type of aircraft that has been approved by the Minister under Subpart 6 of Part VI for take-off and landing qualifications, or

(ii) where a type rating for that aircraft is not required, in an aircraft of that category and class, or in a flight simulator representing that category and class of aircraft that has been approved by the Minister under Subpart 6 of Part VI for take-off and landing qualifications;

(c) has successfully completed a pilot proficiency check or competency check for that type of aircraft, the validity period of which has not expired, in accordance with the Commercial Air Service Standards as follows:

(i) in the case of the pilot-in-command of a multi-engined aircraft or of a single-engined aeroplane that is operated in accordance with subsection 703.22(2), a pilot proficiency check for that type of aircraft,

(ii) in the case of the pilot-in-command of a single-engined helicopter, a pilot proficiency check on one of the types of single-engined helicopters operated by the air operator,

(iii) in the case of the second-in-command of a multi-engined aircraft, a pilot proficiency check or a competency check for that type of aircraft, and

(iv) in the case of the pilot-in-command of a single-engined aeroplane that is not operated in accordance with subsection 703.22(2), a competency check for that type of aircraft; and

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

(2) An air operator may group similar aeroplanes as a single type for purposes of the pilot proficiency check referred to in paragraph (1)(c) if the air operator

(a) is authorized to do so in its air operator certificate; and

(b) complies with the Commercial Air Service Standards.

(3) No person shall act as the pilot-in-command of an aircraft with a person other than a flight crew member on board in night VFR flight unless the person acting as the pilot-in-command holds an instrument rating for that class of aircraft.

(4) No air operator shall permit a person to act and no person shall act as the pilot-in-command of an aircraft with passengers on board unless the person has acquired, prior to designation as pilot-in-command, the following flight time on that type and basic model of aircraft and in the pilot-in-command position:

(a) in the case of a single-engined aeroplane or a helicopter, five hours; or

(b) in the case of a multi-engined aeroplane, 15 hours.

(5) The flight time required by subsection (4) may be reduced by one hour for each take-off and landing completed, up to a maximum of 50 per cent.

(6) An air operator may permit a person to act and a person may act as a flight crew member in an aircraft if the person does not meet the requirements set out in paragraphs (1)(b) to (d) if the air operator

(a) is authorized to do so in its air operator certificate; and

(b) complies with the Commercial Air Service Standards.

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

This regulation does not cover the entire legal situation with respect to this issue; however, the Minister has used it to lay the charges under reference. One must also look at sections 723.88 and 723.98 of the Standards and Skyward's operations manual, specifically Page 5-11, paras. 5.19 and 5.20. These other regulations were brought forth during this hearing. To list them here would be impractical, and the reader is advised to refer to them as required. Quotations from the relevant sections of these regulations, and Skyward's operations manual will be made hereunder as the evidence and discussion thereof are presented.

EVIDENCE AND ORAL ARGUMENTS

In his opening statement, Mr. Gagnon simply stated that he would show that the Skyward pilots as listed in the Notice of Assessment of Monetary Penalty did not meet the training requirements set forth in the Skyward operations manual, as required by the regulations.

Mr. Barnsley alluded to differences in interpretation of the operations manual, section 703.88 of the CARs and sections 723.88 and 723.98 of the Standards. He freely admitted that the pilots named Messrs. Hogan (1.5 hours), Jakimovski (2.1 hours) and McMaster (1.2 hours) had indeed not completed the hours set forth in the operations manual. These requirements, Skyward interprets as being required by captains before they sit their pilot proficiency checks (PPC), and do not apply to co-pilots who sit their pilot competency checks (PCC) when they are competent. In all three cases under reference, the pilots had passed PCCs. Their competence is not an issue. Skyward's defence is that the hours of training set forth in its operations manual applies to command pilots in the left seat of the respective aircraft, not to second pilots, particularly as second pilots are not a legal requirement under the regulations in the Cessna 421 nor in the Beech 200. Skyward carries second pilots in these aircraft on occasion to assist in MEDEVAC and other Northern Operations from time to time.

Mr. Gagnon called his three witnesses in turn: Messrs. Douglas Moyse, Steven Morrison and Capt. Paul Risk. Fourteen (14) of the Minister's exhibits were presented during Mr. Moyse's testimony. Mr. Gagnon presented Exhibits M-15 and M-16 later during his cross-examination of Mr. Behrendt, President of Skyward Aviation.

Capt. Paul Risk was the Minister's second witness. He conducted the audit, starting on August 28, 2000, which resulted in the charges being laid. During this audit he had Skyward remove two co-pilots from flights as he interpreted that they had not done their minimum training. He explained that an operations manual is an agreement between the Minister and the Airline, and section 5 of the Skyward operations manual applies to training. Tab 5 of D-1 section 5, page 5-11 states, inter alia, as follows:

5.19 COMPETENCY CHECK

5.19.1 For a second-in-command of a multi engine aeroplane or a pilot in command of a single engine aeroplane flying Day VFR flight operations, the company check pilot, or a pilot designated by the chief pilot who meets the qualification for training, shall certify the competency of these pilots on the most complex single-engine or each multi-engine aeroplane to be flown. These pilots shall be certified as competent in the performance of those Pilot Proficiency Check items contained in the Air Taxi Standards for aeroplanes as appropriate to the operation.

5.20 PILOT PROFICIENCY CHECK

5.20.1 Following completion of the required training, the pilot-in-command of a multi engine or single engine aeroplane flown IFR or at night will satisfactorily complete a Pilot Proficiency Check conducted in accordance with Schedule I of the Air Taxi standards for aeroplanes. This check will be conducted by a Transport Canada Inspector or a Transport Canada approved Company Check Pilot.

Capt. Risk explained and this was later reinforced by all his colleagues on a number of occasions, that the only difference between a PPC and a PCC is who does the check. In the case of a PPC, a Transport Canada inspector, or a Transport Canada approved company check pilot must do the ride. In the case of a PCC, the chief pilot, or his suitably qualified, delegated training captain can do the ride.

In both cases, the syllabus for the checks is identical.

Mr. Barnsley in his cross-examination of Capt. Risk made out that while the Minister's view is that both captains and co-pilots must undergo the same amount of training, i.e., four hours for the Cessna 421 and five hours for the Beech 200 (see Exhibit M-4), Skyward's view is that this applies only to pilots-in-command, and that co-pilots are trained to the standard required to pass their PCC. The words in the operations manual were supplied by the Minister, and operators have been interpreting them literally as written - i.e., 5.19.1 PCC makes no mention of "completion of the required training." Whereas 5.20.1 does make mention of it. This state of affairs has been going on since 1996, when the CARs were first introduced, and only now is the Minister making an issue of it.

In reply to my question as to where the reference to minimum training which applies to a PCC is written, the reply from Transport Canada was that it is written in the company operations manual, and that there is no difference in the standard for PCC or PPC.

The third witness for Transport Canada was Mr. Steven Morrison. He is a business aviation operations inspector for Transport Canada, and is involved as a primary operations inspector (POI), for Skyward Aviation. He testified that he was invited by Skyward to do in-flight inspections in June 2000. He found "non-conformances" and expressed some concern at Skyward's operational control. One other finding of concern to him was pilot training, and he had verbal discussions with pilots.

Skyward discussed a request for changes to their operations manual and submitted a request subsequent to his POI. This was rejected later because the Minister deemed that it lowered the training standard without just reasons. The request was for two hours of training instead of the four hours, or five hours as in the case of the Beech 200. In his cross-examination of Mr. Morrison, Mr. Barnsley alluded to lower hours having been approved for other operators in the region, or adjacent regions. This was confirmed by Exhibits D-2 and D-4.

Mr. Barnsley further had Mr. Morrison confirm that the wording in the Skyward operations manual, specifically 5.19 through 5.20.1 was Transport Canada's suggestion for easing the approval of the operations manual, in the rush after the coming into force of the CARs in 1996. Those words were not Skyward's choice, they are the Minister's, and are reflected in the operations manuals of several other similar operators in the area.

In re-direct, Mr. Gagnon questioned Mr. Morrison on the criteria for the approval of training hour reductions granted to other operators: Mr. Morrison advised that these reductions were approved following a reduction in co-pilot responsibilities, and the use of a flight training device to augment pilots' experience. The name of an operator "Westwind" was cited in this regard.

Messrs. Gagnon and Morrison further confirmed that the wording earlier alluded to in Skyward's operations manual was used to help operators put together the new standards set forth in the CARs. These could be amended for cause but Mr. Morrison said that Skyward's request for amendments were not approved due to "insufficient reasons." This concluded the Minister's case.

Skyward's case was presented by Mr. Joseph Barnsley, and he called one witness - the President of the Airline — Mr. Frank Behrendt. Skyward is based in Thompson, Manitoba; it operates 21 aircraft, including the Cessna 421 and the Beech 200, and employs some 190 personnel, over 50 of which are flight crews. He confirmed, under oath, much of what previously came out of the cross-examination of the Minister's witnesses, by Mr. Barnsley, and the "Admitted Statement of Facts."

Mr. Behrendt confirmed that the pilots concerned had passed competency checks for co-pilot duties. Their competence is not at issue. Mr. Behrendt stated that he was fully aware of the wording differences between paras 5.19 and 5.20 under reference above. Skyward was in constant dialogue with Transport Canada about training issues. Skyward had been previously audited, since the new CARs came into being in 1996; Skyward has been observing these same standards since then, and only now has the Minister raised this issue. Other carriers are interpreting the same wording in their operations, in the same way, but only Skyward has now been sanctioned. Exhibits D-3 and D-4 were produced by Mr. Barnsley — D-3 is an internal TC memo by Mr. Morrison stating among other things that he had made "enough requests for detail, that it is not likely they will wish to proceed." D-4 contains requests to other regional operators for their practices in training co-pilots on their aircraft.

Mr. Behrendt further said that he has raised this issue three times with Transport Canada, but has received no reply.

In cross-examining Mr. Behrendt, Mr. Gagnon produced Skyward's amendment request (M-15) and Transport Canada's reply (M-16). These show Skyward's request, and Transport Canada's conditions for changes to their operations manual. Mr. Gagnon asked Mr. Behrendt where else he would obtain the standards for pilot training. Would he qualify a co-pilot after, say, 17 minutes of training? Mr. Behrendt replied in the negative, and that co-pilots were trained to the extent required for them to pass a PCC. The minimum training hours in the operations manual matrix (M-4) was interpreted as applying to captains prior to them taking their PPCs. Mr. Behrendt said that Skyward viewed the issue as an anomaly, an unresolved item, due to the ambiguity of the wording. Mr. Behrendt further stated that the seven operators he contacted are confused by the ambiguity of the wording.

In re-direct by Mr. Barnsley, Mr. Behrendt said that since the audit on August 28, 2000, Skyward has been completing full PPC training for all PCC pilots.

In his summary, Mr. Gagnon reiterated that the minimum training limits set forth in the operations manual had not been adhered to. The wording in the operations manual makes no mention of a reduction in the minimum training hours for a PCC. Skyward's application for a reduction in these training hours had not been approved, and the minimum training of these co-pilots had not been carried out.

Mr. Barnsley's summary highlighted the fact that the Minister was not questioning the competence of the pilots concerned. They had all passed their PCC checks. Skyward's interpretation of the standards the training matrix applied to PPC candidates, i.e., captains. Co-pilot training is that enough training has to be done to enable the candidate to successfully pass the PCC. He offered section 723.88 of the Standards, with particular reference to para. (2)(iv) which states that with respect to a pilot competency check:

(iv) the Chief Pilot or a pilot delegated by the Chief Pilot, shall certify the competency of the pilot immediately following completion of the last training flight before the pilot is released to line operations;

This was done with all three pilots. Further, para. 5.19.1 of the operations manual, which applies to PCCs makes no mention of "completion of the required training," which forms a vital part of para. 5.20 which is relevant to PPC checks on captains.

Further, para. 5.22.1(c) states with respect to "right seat conversion multi engine aeroplanes" the pilot must receive "sufficient flight or synthetic training device training to enable the Company Check Pilot, ... to certify in the pilot training records, the competency of the pilot to carry out pilot duties from the right seat."

Subparagraph 723.98(14)(a)(iii) of the Standards has the same wording as the operations manual para. 5.22.1(c) above.

Skyward's interpretation of these regulations and the operations manual in cross-reference is that the pattern is that for a PPC there is a requirement for specific training as laid down in the matrix (M-4), but for a PCC, training is required appropriate to allow the individual to successfully pass the PCC, appropriate to the circumstances of the operation.

DISCUSSION AND DETERMINATION

In my view, this case comes down to interpretation of wording used by the Minister in both the regulations - CARs 703.88(1)(d), Standards 723.88 and 723.98, and the operations manual training matrix paras. 5.19.1, 5.20, 5.20.1, 5.22.1(c) and 5.23.1. There are ambiguities in the legislation, which leave them open to interpretation. Further, the anomaly between para. 5.19.1 and 5.20.1 is an example of the maxim "expressio unius est exc/usio a/terius"which means that if a statute mentions a part of a whole and then defines a rule to be applied to that part, we may conclude that the rule does not apply to the unmentioned parts of the whole (from "The Interpretation of Legislation in Canada", by Cote). — "Completion of the required training" is not mentioned in 5.19.1. It is difficult to understand why the legislators have remained silent on the requirement for training in the case of a PCC, if they intended it to apply.

It is also apparent from the evidence that Skyward Aviation was duly diligent in attempting to resolve these issues: Mr. Behrendt sought opinions from Transport Canada - he said that he raised this issue three times with them and received no replies, and he sought opinions from other colleagues in the industry and found them similarly confused.

All three pilots concerned successfully passed PCCs, and neither the Beech 200 nor the Cessna 421 require type ratings. Further, the latter does not require a second pilot. Therefore, the safety of the travelling public was not compromised.

Accordingly, I find that the Minister's enforcement action in this case is unjustified, because the legislation is ambiguous and open to interpretation. I further believe that Skyward made no obvious intention to breach the regulations; indeed, its ongoing dialogue with the department demonstrates its desire to conform with the regulations. The open attitude of the airline in inviting Mr. Morrison in to do a POI and admitting to its pilots' hours of experience signify that it has nothing to hide.

I strongly recommend that Transport Canada takes immediate steps to resolve these anomalies in the legislation, and to advise all affected operators of the full intent of the law.

At the conclusion of this Review Hearing I have determined that due to the reasons given above the case is dismissed, and the penalties are set aside.

Philip D. Jardim
Member
Civil Aviation Tribunal