CAT File No. C-2314-41
MoT File No. RAP5504-043798
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Farm Air Ltd., Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Air Service Standards, s. 722.07(2)(b)(i)(A)(I)
Canadian Aviation Regulations, SOR/96-433, s. 702.02, 702.07
Unqualified managerial personnel, Pilot qualification, Pilot licence, Air operator certificate
Allister W. Ogilvie
Decision: December 3, 2001
I uphold the Minister's decision. Between July 1, 2000 and September 29, 2000, Farm Air Ltd. was in contravention of section 700.02 of the Canadian Aviation Regulations. I confirm the monetary penalty of $5,000. The payment shall be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.
A Review Hearing on the above matter was held Friday, November 16, 2001 at 10:00 hours at the Provincial Court Building, in Regina, Saskatchewan.
Farm Air Ltd. is an agricultural spray operation based in Lumsden, Saskatchewan. Further to an investigation, Transport Canada made the following allegation:
Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):
COUNT #1: Canadian Aviation Regulation 702.02, in that, between July 01, 2000 and September 29, 2000, at or near Regina, Saskatchewan, being an air operator, you did operate an aircraft, to wit, an Air Tractor AT-301 bearing Canadian registration marks C-FARM under subpart 2 of Part VII of the Canadian Aviation Regulations when you did not comply with general condition (c) in your air operator certificate issued by the Minister pursuant to Section 702.07, more specifically, you did fail to employ managerial personnel who met the Commercial Air Service Standards, namely, Norman Edward COLHOUN (Airline Transport Pilot Licence Number 88574). Mr. COLHOUN did not meet the requirements of 722.07(2)(b)(i)(A)(I) of the Commercial Air Service Standards, more specifically, he did not hold a valid Airline Transport Pilot Licence or Commercial Pilot Licence for the category of aircraft operated.
Evidence accepted at this hearing establishes that Farm Air Ltd. holds an air operator certificate number 8646. That certificate was issued pursuant to Part VII of the Canadian Aviation Regulations (CARs). It stipulates that the type of service to be provided is aerial work. Farm Air is authorized to operate several types of aircraft, including an AT301, Air Tractor by day visual flight rules (VFR).
Farm Air is the registered owner of Air Tractor C-FARM, that aircraft being registered for commercial purposes.
A printout of NAV CANADA aircraft movement statistics for Regina registers VFR movements of aircraft C-FARM between July 1, 2000 and September 29, 2000 at the Regina Airport.
Documentary evidence in the form of two Distributed Air Personnel Licensing System (DAPLS) forms and a Secretary's certificate establishes that between July 1, 2000 and January 24, 2001, no medical certificate was issued to Mr. Norman Edward Colhoun that would have authorized him to exercise the privileges of an airline transport or commercial pilot licence.
Mr. Colhoun is listed in Farm Air's operations manual as President, Operations Manager and Chief Pilot.
The responsibilities of Chief Pilot are addressed in the manual at 1.4.2 in the following way:
1.4.2 Chief Pilot
The Chief Pilot, who must also meet the qualifications and perform the duties as outlined in the Commercial Air service Standard, is responsible to the Operations Manager for the professional standards of the flight crews under his/her authority.
Note: In the absence of the Chief Pilot, his/her responsibilities and duties will be assumed by another person who also meets the above Standard and who has been appointed by the company for that purpose.
Mr. Colhoun entered evidence that established that Civil Aviation Medical Examiners (CAMEs) living outside Canada are able to conduct medical examinations of pilots for Canadian pilot licences.
An Aeronautical Information Publication (AIP) excerpt reveals that CAMEs are permitted to renew medical certificates for the full validity period.
Regarding medical examinations outside of Canada, a printout from Transport Canada's website states, in part:
Medical Examinations Outside of Canada
Applicants living outside of Canada may have the required flight crew medical examination conducted by either a designated CAME or by an Aviation Medical Examiner designated by the Licensing Authority of a Contracting State of ICAO. In either case, the examination findings should be recorded on Transport Canada Medical Examination Report forms and the results forwarded to Transport Canada, Personnel Licensing, 330 Sparks St., 6th floor, Ottawa, Canada K1N 0N8.
Mr. Patrick Donohue appeared as a witness for Mr. Colhoun. He has been a pilot for Farm Air for about four years. It was his testimony that during the period between July 2 and September 29, 2000, he acted as Chief Pilot for that firm. Mr. Colhoun described various duties, such as the interviewing, training and overseeing of pilots and the initiating of safety practices and asked whether Mr. Donohue had performed those functions. Mr. Donohue agreed that he had done so.
Mr. Donohue allowed that Mr. Colhoun was physically present in that time period but was very busy, attending to other business.
The Minister is required to issue an air operator certificate where the applicant has submitted an application in the required form and manner (section 702.07 of the CARs).
For that purpose the applicant must have managerial personnel, including a chief pilot, who meet the Commercial Air Service Standards (subparagraph 702.07)(2)(b)(ii) of the CARs).
The Commercial Air Service Standards outline the requirements for complying with the Regulations. To comply with regulatory requirements, the Standards stipulate the following for chief pilot:
722.07 Issuance or Amendment of an Air Operator Certificate
(2) Qualifications and Responsibilities of Operations Personnel
(b) Chief Pilot
(A) If the Air Operator Certificate authorizes:
(I) VFR day only - hold a valid Airline Transport Pilot Licence or Commercial Pilot Licence for the category of aircraft operated;
(II) VFR at Night - hold a valid Airline Transport Pilot Licence or Commercial Pilot Licence valid for night and a valid Instrument Rating for the category of aircraft operated. Where the Air Operator Certificate authorizes VFR at night only without an instrument rating, the chief pilot need not be instrument rated;
(III) IFR - hold a valid Airline Transport Pilot Licence or Commercial Pilot Licence and a Valid Instrument Rating for the category of aircraft operated;
(B) if applicable, hold a type rating for one of the aircraft operated;
(C) have at least 500 hours of flight time, of which 250 hours were acquired within the preceding three years on the category of aircraft operated by the air operator;
(D) be qualified in accordance with the air operators training program to act as pilot-in-command on one of the types operated by the air operator;
(E) have demonstrated knowledge to the air operator with respect to the content of the operations manual, provisions of the regulations and standards, and if applicable, the company check pilot manual and standard operating procedures.
(ii) Responsibilities The chief pilot is responsible for the professional standards of flight crew and in particular:
(A) developing standard operating procedures;
(B) developing or implementing all required crew member approved training programs;
(C) issuing directives and notices to the flight crews as required;
(D) the actioning and distribution of accident, incident, and other occurrence reports;
(E) the processing and actioning of any crew reports;
(F) the supervision of flight crews;
(G) assuming responsibilities delegated by the Operations Manager; and
(H) ensuring that duties are delegated to qualified individuals.
That a person may not exercise the privileges of a licence unless a person holds a valid medical certificate is provided at section 404.03 of the CARs.
The Minister must prove each element of the offence on a balance of probability. In this case, it must be established:
- that Farm Air is an air operator which operated an Air Tractor, C-FARM, near Regina, Saskatchewan between July 1 and September 29, 2000;
- that while operating, Farm Air was not in compliance with conditions of its air operator certificate.
To establish that facet, the Minister must establish that Farm Air did not employ managerial personnel who met the Commercial Air Service Standards. In this instance, the Minister has specified that Mr. Colhoun failed to hold a valid licence for the category of the aircraft operated.
The evidence accepted established each element of the offence. Farm Air was an air operator which operated Air Tractor C-FARM out of Regina during the pertinent time period.
Farm Air did not employ managerial personnel who met the Commercial Air Service Standards. The DAPLS printouts and Secretary's certificate prove that Mr. Colhoun did not have a valid licence and was thus precluded from acting as chief pilot. I have made a finding that Mr. Donohue was not appointed as chief pilot in his stead.
Mr. Colhoun sought to raise the spectre of doubt regarding the validity of his licence. In cross-examination, he queried whether a medical would be valid if the pilot had successfully undergone an examination, had his licence stamped, but the doctor failed to submit to Transport Canada the required documentation. He proffered an excerpt from the AIP, LRA 3-7, to establish that medical examiners were now permitted to renew a certificate for the full validity period.
He also established that it was possible to receive a medical validation outside of Canada. In conjunction with that he provided an excerpt from a Transport Canada website entitled: "Medical Examinations outside of Canada" (noted previously). In that excerpt, it states that "examination findings should be recorded on Transport Canada Medical Examination Report forms and the results forwarded to Transport Canada..." Mr. Colhoun asserts that findings should be forwarded, not that they must be forwarded.
The foregoing arguments were presented to raise doubt as to the Minister's evidence regarding the validity of Mr. Colhoun's medical certificate.
I reject each of the assertions. The Aeronautics Act provides that in a proceeding under a designated provision, the alleged contravenor is not required to give evidence or testimony. Mr. Colhoun exercised that right.
In the result I have from the Minister reliable evidence that Mr. Colhoun's medical was not valid and from Mr. Colhoun only arguments designed to raise doubt. Even if he were to have had a medical examination outside of the country, I reject his interpretation of the requirement to report. The "should" in the excerpt refers to the "should be recorded on Transport Canada's Medical Examination form", not that it "should" as opposed to must be forwarded to Transport Canada.
I find that during the period of July 1 and September 29, 2000, Mr. Colhoun did not have a valid medical certificate so, could not exercise the privileges of a pilot licence. Therefore, he could not function as chief pilot for Farm Air in that period. However, that does not decide the issue in this instance.
Mr. Patrick Donohue testified that during the period in question, he was appointed and acted as chief pilot. Mr. Donohue possesses the appropriate credentials to meet the standards. The operations manual allows that in the absence of the chief pilot, the position's responsibilities can be assumed by another person who also meets the standard and who has been appointed by the company for that purpose. It was established that a company need not advise Transport Canada of the company's appointing another to act in the chief pilot's absence.
Mr. Donohue's testimony seemed straightforward, direct. Normally, I would have accepted it at face value. However, in this circumstance, I must reject it.
I do so for two reasons. Firstly, if Mr. Donohue were acting as chief pilot during the pertinent period, then the validity of Mr. Colhoun's licence is irrelevant. Yet, Mr. Colhoun first vigorously pursued that avenue. Had he succeeded in convincing me that he had a valid licence, what would have become of Mr. Donohue's "appointment"?
Secondly, the evidence of Mr. Donohue was not in his own words. Mr. Colhoun stated the scenario for a chief pilot and asked if that was what Mr. Donohue had done. Mr. Donohue agreed that he had. Mr. Colhoun's question, really in the form of a statement was very nearly a quotation from the manual, leaving me with the impression that it was contrived.
I find that Mr. Donohue's testimony is unreliable. I do not believe that he was actually appointed as chief pilot. Rather I find that he, as a loyal employee, has engaged in a rather misguided attempt to come to the aid of his employer.
I uphold the Minister's decision. Between July 1, 2000 and September 29, 2000, Farm Air Ltd. was in contravention of section 700.02 of the CARs for the above-noted reasons.
Civil Aviation Tribunal
David Lloyd Eckmire, E. David Dover, Sandra Lloyd
Decision: April 19, 2002
The appeal is allowed and the sanction cancelled.
An appeal hearing on the above matter was held Thursday, March 7, 2002 at 10:00 hours at the Provincial Court Building in Regina, Saskatchewan.
The Appellant was alleged to have violated section 702.02 of the Canadian Aviation Regulations (CARs) in that between July 1 and September 29, 2000 it operated an aircraft when it failed to employ managerial personnel who met the Commercial Air Service Standards. Specifically, the charge was that the person named in the company operations manual as chief pilot, Mr. Norm Colhoun, did not have the required valid Airline Transport or Commercial Pilot Licence during the relevant time period because his medical had expired.
Farm Air Ltd.'s operations manual at 1.4.2 provides that "In the absence of the Chief Pilot, his/her responsibilities and duties will be assumed by another person who also meets the above Standard and who has been appointed by the company for that purpose." At the review hearing of this matter, Mr. Colhoun for Farm Air called one witness, Mr. Donohue. Mr. Donohue testified that he had been appointed to assume the duties of chief pilot during the relevant period. The Hearing Officer said in his review determination that if Mr. Donohue were acting as chief pilot during the relevant period, then the validity of Mr. Colhoun's licence would be irrelevant. This view was not challenged by either party on the appeal.
The Hearing Officer found that Mr. Colhoun did not have a valid medical certificate and rejected Mr. Donohue's testimony that he was appointed in Mr. Colhoun's place. He therefore upheld the Minister's decision that Farm Air had contravened CARs 702.02 and confirmed the assessed penalty of $5,000. Farm Air appealed.
The central issue in this appeal was the Hearing Officer's finding that the testimony of the Appellant's witness, Mr. Donohue, was not credible. The Hearing Officer stated in his review determination that he rejected this testimony for two reasons. The first was because Mr. Colhoun vigorously pursued the issue of the validity of his licence, in spite of its irrelevance if Mr. Donohue had been appointed as chief pilot. The second reason given was that the evidence of Mr. Donohue was not in his own words. However the Hearing Officer, who of course had the opportunity to observe the demeanour and conduct of the witness, Mr. Donohue, also said that the testimony seemed straightforward and direct, and that normally he would have accepted it at face value.
SUBMISSIONS AND DISCUSSION
On appeal, Mr. Colhoun challenged the Hearing Officer's finding that Mr. Donohue's testimony was not credible. Mr. Colhoun stated that the reason he had vigorously pursued the medical issue was because (he believed) the Minister of Transport was putting in false information. He said that if he had not had to do that, the Hearing Officer would not have had his first reason for rejecting Mr. Donohue's testimony. At the appeal hearing, Mr. Colhoun said that Farm Air's defence was that the medical validity was irrelevant (since Farm Air had appointed Mr. Donohue to assume the chief pilot duties).
Mr. Béland, for the Minister, submitted that an appeal panel should not interfere with a Hearing Officer's findings of fact or credibility unless the findings are patently unreasonable and cannot be supported by the testimony. We agree with that submission. He also submitted that the Minister's position was that the Hearing Officer's findings of credibility were reasonable based on the evidence on the record and should be upheld.
Mr. Colhoun referred to the transcript of the review hearing proceedings and pointed out that the Hearing Officer was mistaken in his review determination when he said that during Mr. Colhoun's direct examination of Mr. Donohue:
Mr. Colhoun stated the scenario for a chief pilot and asked if that was what Mr. Donohue had done. Mr. Donohue agreed that he had. Mr. Colhoun's question, really in the form of a statement, was very nearly a quotation from the manual, leaving me with the impression that it was contrived.
An examination of the transcript reveals that the Hearing Officer did indeed err in those statements. We cannot see from the transcript that Mr. Colhoun asked such a question, although Mr. Welwood, case presenting officer for the Minister at the review hearing, did refer Mr. Donohue to Farm Air's operations manual during cross-examination.
Mr. Colhoun also submitted that the Hearing Officer was mistaken when he said in his review determination that:
Mr. Colhoun described various duties such as the interviewing, training and overseeing of pilots and the initiating of safety practices and asked whether Mr. Donohue had performed those functions. Mr. Donohue agreed that he had done so.
According to the transcript, the evidence on this topic was as follows:
Colhoun: What were your duties as chief pilot?
Donohue: I have interviewed and selected new pilot candidates, I've implemented ground examination training and air training for all pilots, including Mr. Colhoun, I have implemented safer practices for Farm Air operations in spill response, transportation of dangerous goods and have had the opportunity to oversee up to and including - Mr. Colhoun has four pilots.
While we agree with Mr. Béland that the evidence about chief pilot duties is on the record, we think it is key to the issue of credibility that the evidence was not in fact adduced in Mr. Colhoun's form of question, but was given by the witness, Mr. Donohue, in answer to an open question from Mr. Colhoun.
Mr. Béland correctly pointed out that the Hearing Officer would not have had the opportunity to read the transcript of the review hearing. Rather, he would have been relying on his own hand-written notes and his recollection of the proceedings when he made his review determination.
Mr. Béland also took the position that the following answer of Mr. Donohue could be seen as contrived and therefore the finding on credibility was not patently unreasonable and should not be overturned.
Colhoun: During the time period July 1, 2000, until September 29, 2000, had you been assigned or assumed the duties of chief pilot?
Donohue: I did in - I did during that time period in accordance with the Farm Air Operations Manual, Section 1.4.2, in Mr. Colhoun's absence or when required to do so.
Mr. Colhoun submitted that we "cannot detract" from Mr. Donohue because he knows the manual. We do not find it surprising that a witness who had worked for a company for four years and who had assumed the duties of chief pilot on more than one occasion would quote in testimony a section of the company operations manual that pertained to his appointment. This question and answer are markedly different from the evidence described by the Hearing Officer upon which he said he relied in forming the impression that Mr. Donohue's evidence was contrived.
We find the differences between the transcript evidence and its characterization by the Hearing Officer to be sufficient to conclude that the finding of a lack of credibility is not supported by the evidence.
We agree with the Hearing Officer that at the review hearing the Minister proved, on a balance of probabilities, that Mr. Colhoun did not have a valid medical certificate during the period in question, in spite of Mr. Colhoun's unsuccessful attempts to discredit the Minister's witness. However, we do not agree that Mr. Colhoun's pursuit of the medical issue can reasonably be tied to the issue of the credibility of Mr. Donohue, a sworn witness who, the Hearing Officer observed, gave testimony that seemed straightforward and direct.
In his review determination, the Hearing Officer asked what would have become of Mr. Donohue's appointment if Mr. Colhoun had succeeded in convincing him that he had a valid licence. One answer is that Farm Air would then have had two defences to the charge against it, and we do not find it unusual that a person charged should seek to raise more than one defence. While we do not admire Mr. Colhoun's conduct of the case with respect to the medical issue, and agree with Mr. Béland's submission that Mr. Colhoun's argument with respect to the medical certificate was merely an attempt to discredit the Minister's witness, we do not see a connection between that and Mr. Donohue's evidence that would reasonably give rise to a finding of lack of credibility on the part of Mr. Donohue.
In summary, we find we must accept Mr. Donohue's evidence as given in the transcript of the review hearing for three reasons:
- The Hearing Officer who observed Mr. Donohue's testimony found his testimony to be straight forward and direct;
- We find it unreasonable to reject Mr. Donohue's evidence on the basis of Mr. Colhoun's vigorous pursuit of the medical issue with the Minister; and
- The Hearing Officer's second stated reason for finding a lack of credibility is not supported by the evidence. We note that the Hearing Officer would not have had the advantage, as we have had, of reviewing the transcript prior to preparing his determination.
As stated above, we agree with the Hearing Officer that the Minister proved on a balance of probabilities that Mr. Colhoun did not have a valid medical certificate during the period in question. We also agree that if Mr. Donohue was appointed as chief pilot during the period in question, then the medical validity is irrelevant. However, since we find that we must accept Mr. Donohue's testimony that from July 1, 2000 to September 29, 2000, he was appointed by Farm Air to assume the duties of Farm Air's chief pilot, then the offence as alleged by the Minister is not made out.
The appeal is allowed and the sanction cancelled.
Reasons for the appeal determination :
Sandra K. Lloyd, Member
E. David Dover, Member
David L. Eckmire, Member
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