CAT File No. H-0037-02
MoT File No. 6504-Z-2-23887
CIVIL AVIATION TRIBUNAL
Rick James McFarlane, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, S.C., c.A-2, s.6.9
Air Navigation Orders, IV, No.2, s.9(b)(ii)
Regency Requirements, Interpretation of the ANO, Flight at Night on which Passengers are Carried, Applicant Civil Aviation Inspector
Robert L. Mortimer
Decision: May 9, 1997
I have determined that Air Navigation Order, Series IV, No. 2, subparagraph 9(b)(ii) requires a pilot to have flown a minimum of five take-offs and five landings by night in the six-month period preceding any flight at night on which passengers are carried. I find that the Applicant did not meet that requirement. I confirm the Minister's decision to assess a seven-day suspension which shall begin on the fifteenth day following the service of this determination.
A Review Hearing on the above matter was held Wednesday, April 23, 1997 at 10:00 hours at the Federal Court of Canada in the city of Edmonton, Alberta.
A Notice of Suspension of his Airline Pilot Licence was forwarded to Mr. Rickey James McFarlane from Mr. G. Mazowita, Director, Legislation and Compliance, Transport Canada, on August 17, 1994. The Notice reads in part:
Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):
Flight Crew Member Licences Privileges (ANO Series IV, No. 2, s. 9 (b) (ii).
In that on or about January 18, 1994, at approximately 1825 hours local, on a flight from Brooks, Alberta to Edmonton, Alberta, you as a holder of an ATP Licence, did exercise the privileges of this licence (acting as a crew member on a flight carrying passengers at night) when within the six months preceding this flight, you had not completed at least five night take-offs and landings.
This suspension comes into effect on Sept. 26 1994, and remains in effect until Oct. 2 1994.
On September 9, 1994, the Civil Aviation Tribunal granted a stay of that suspension until the Review Hearing Consideration and Determination.
AGREED STATEMENT OF FACTS
At the outset of the Review Hearing the two parties presented an Agreed Statement of Facts which read:
- At all times material to this hearing, Rickey James McFarlane and Ian MacLeod were Civil Aviation Inspectors employed by the Regulatory Compliance Branch of Transport Canada.
- Inspector McFarlane, on January 18th, 1994, was the holder of an Airline Transport – Aeroplane Licence, bearing licence number A170328, while Inspector MacLeod was the holder of licence number A247208.
- On January 18th, 1994, Inspectors McFarlane and MacLeod conducted a flight from Brooks, Alberta (CYBP) to Edmonton, Alberta (CYXD). Both inspectors had conducted a flight from Edmonton to Brooks earlier the same day, as indicated by the flight authorization and a request form, and the flight report.
- The flight was conducted on a DHC-6 aircraft, being a Western region Transport Canada Twin Otter, bearing registration marks C-FCSX. Inspector MacLeod acted as pilot-in-command, occupying the right-hand seat of the aircraft, and Inspector McFarlane acted as co-pilot, occupying the left-hand seat of the aircraft. (See Transport Canada Aviation Aircraft Services Flight Report and Transport Canada Aircraft Services Aircraft Journey Log)
- Official night occurred at 1721 hours on January 18, 1994. The flight in question originated in Brooks at 1655 hours local time, and the estimated time of arrival, as indicated in the Flight Authorization and Request Form completed by Inspector MacLeod, was 1800 hours local time. Actual arrival time in Edmonton on January 18, 1994 was 1825 hours local. Part of the flight was therefore carried out during the hours of darkness.
- Three passengers were carried on the flight from Brooks to Edmonton. None of the passengers were, however, a flight test examiner.
- The Civil Aviation Inspector Pilot Flying Time Record by Aircraft Type for Rick McFarlane shows that for aircraft type DHC6, he conducted 4 night landings in the period from April 24-25, 1993 to December 21, 1993. Records for the same period show that Inspector MacLeod conducted 3 night landings.
- Transport Canada Aviation Aircraft Services Flight Reports for October 16, 1993, November 1-5, 1993, and for December 18-21, 1993 correspond with the number of night landings recorded in the Civil Aviation Inspector Pilot Flying Time Record referred to in paragraph 7.
- As a result of the January 18, 1994 flight, an Aviation Enforcement Preliminary Report Form was filed on January 21, 1994 by the Acting Regional Director of Western Aircraft Services, Robert McGimpsey.
With reference to paragraphs 7 and 8 of the Statement, however, the parties stated they had some differences, specifically with regard to the exact total of night take-offs and night landings conducted by the document holder in the six months prior to the date of the alleged offence. Nevertheless, it was agreed by both parties that on November 3, 1993, Mr. McFarlane made one night landing, and on December 19, 1993 he made one night take-off.
Air Navigation Order, Series IV, No. 2, subparagraph 9(b)(ii) states:
9. No holder of a pilot licence or a private pilot permit (tourist) shall exercise the privileges of the licence or permit for the purpose of conducting a flight in an aircraft unless
(b) where passengers other than a flight test examiner authorized by the Minister are carried on board the aircraft, the holder has, within the six months preceding the flight, completed at least five take-offs and landings in aircraft of the same category and class as that aircraft
(ii) by night, if the flight is conducted in whole or in part by night.
A number of documents were entered in evidence by the Minister. Exhibits M-1 and M-2 are respectively the Flight Authorization and Request, and the Flight Report for the subject flight of January 18, 1994.
Exhibit M-3 is the Civil Aviation Inspector Pilot Flying Time Record by Aircraft Type for Mr. McFarlane for the period April 24 to December 21 which indicates under the column "Number of Landings" that on October 16 he recorded 3 night landings, and during the period November 1-5 one night landing.
Exhibit M-4 is an Aviation Enforcement Preliminary Report Form dated January 21, 1994 which states in part:
Review of SAFE records reveal neither Inspector (MacLeod and McFarlane) had completed the required number of landings required for night before carrying PAX (passengers).
Exhibit M-5 , M-6, and M-7 are respectively excerpts from Sunrise and Sunset Tables; the Personnel Licensing Handbook Volume 1, Air Navigation Order, Series IV, No. 2, Aeronautical Information Circular; and a Regulatory Impact Analysis Statement.
Exhibit M-8 is four Flight Reports showing Mr. McFarlane's flight times for the periods of November 1-5, 1993 and December 18-21, 1993.
Mr. Covlin entered as Exhibit D-1 a Transport Canada Aviation Flight Report for October 16, 1993 which recorded seven flights of which Mr. McFarlane was the pilot in the left seat for four of them. Exhibit D-2 is an excerpt from Part IV of the new Canadian Aviation Regulations (CARs), containing the regulation replacing the subject Air Navigation Order (ANO).
Mr. McFarlane testified that on October 16, 1993 he flew three night landings and three night take-offs. In response to questioning on how many night take-offs and landings he participated in as a crew member on that date, he stated six night take-offs and six night landings.
Under cross-examination by Ms. King, Mr. McFarlane further explained that on October 16, 1993 Mr. MacLeod flew three night take-offs and three night landings, and that he (McFarlane) also flew three night take-offs and three night landings on that date.
Counsel for the Minister of Transport declared the facts clearly show that Inspector McFarlane was in violation of the subject ANO requirement. Ms. King then stated the Minister's position that the ANO in question must be read to mean that the recent experience requirement is for five night take-offs and five night landings to be flown by a pilot during the six-month period preceding a passenger carrying flight at night. Moreover, to receive credit for a night take-off or a night landing, the pilot must be actually flying the aircraft during the sequence. A pilot acting as a co-pilot or first officer cannot also receive credit for purposes of currency for any night take-off or landing that is actually flown by another pilot. She suggested Exhibit M-7, a Regulatory Impact Analysis Statement, supported that interpretation of the requirement.
In considering the ANO recent experience requirement, Ms. King stated that Inspector McFarlane had flown only three night take-offs and four night landings during the six months (July 18, 1993 to January 17, 1994) preceding the subject flight. Of that total of seven night manoeuvres, two take-offs and three landings were flown on October 16, 1993, one landing on November 3, 1993, and one take-off on December 19, 1993.
On behalf of the document holder (DH), Mr. Covlin stated that the subject ANO does not say what the Minister has interpreted it to say. Mr. Covlin pointed out the regulation does not state the requirement as five night take-offs and five night landings during the six-month period, but rather a requirement of "five take-offs and landings ... by night." He argued that take-offs and landings were separate and different manoeuvres, and that a take-off cannot always be connected to a corresponding landing for recency purposes. What the ANO calls for in recent experience, he suggested, can be determined by a simple common sense interpretation of what is stated, and that is a total of five night manoeuvres, either take-offs or landings.
Mr. Covlin suggested Transport Canada (TC) may have wished the regulation called for five take-offs and five landings, but it did not say that. In a situation such as this, where the regulation is unclear or ambiguous, he argued that the person against whom the allegation of contravention is made should receive the benefit of the doubt in the interpretation of that regulation, in keeping with the rule of "contra proferentem." In this case the DH had flown three or possibly four night take-offs and four night landings in the preceding six-month period, for a total of seven or eight night manoeuvres, which is two or three more than the required five. Mr. McFarlane, therefore, had met the recent experience requirement when he flew the aircraft with passengers aboard at night on January 18, 1994, and he did not contravene the order as alleged.
Mr. Covlin further contended that TC had in fact recognized the ambiguity of the subject order by revising the wording in the new CARs to specify five take-offs and five landings (Exhibit D-2). This wording of the new regulation was an acknowledgment of the ambiguity of the previous regulation, and of the problem of interpreting just what the requirement was.
Mr. Covlin then put forward a second, alternative defence with the contention that a co-pilot should receive recent experience requirement credit for every take-off and landing flown, even though he may not be moving the controls himself. He pointed out that many aircraft require two pilots, and the concept of crew cooperation and cockpit management are well established. Those concepts and the associated procedures are promoted by TC in the interests of aviation safety, and the co-pilot or first officer's role of assistance and monitoring is critical in that regard. Thus, the co-pilot should receive the same credit as the pilot for each night take-off or night landing.
Mr. Covlin pointed out the ANO specifies a pilot must have "completed" the specified number of take-offs and landings, but it also leaves "completed" undefined and open to interpretation. While TC would interpret "completed" to mean having actual physical control of the control column and rudder pedals during the manoeuvre, he suggested that is not necessarily what completed means in a two or three crew environment. Thus, in the case at hand, Mr. McFarlane should be credited with those night take-offs and landings during which he was the co-pilot for Inspector MacLeod, which would mean he had a total of at least six night take-offs and seven night landings during the six-month period.
If the maintenance of night recency requirements for the carrying of passengers as detailed in ANO Series IV, No. 2, subparagraph 9(b)(ii) is interpreted to be five night take-offs and five night landings in the preceding six-month period, Mr. McFarlane did not meet the requirement. He actually flew only three or four night take-offs and four night landings. If, on the other hand, the requirement is interpreted as a total of five night manoeuvres which can be either take-offs or landings, Inspector McFarlane did meet the requirement. The primary issue then is whether or not the ANO is ambiguous, and what requirement Mr. McFarlane was obliged to meet in accordance with that ANO.
A second issue is whether or not a pilot should be credited with having flown a night take-off or a night landing for recency requirement purposes when he is the co-pilot or first officer in a two-pilot crew.
The purpose of ANO Series IV, No. 2, subparagraph 9(b)(ii), which is not in dispute, is to specify the recent experience requirements for a pilot to operate an aircraft at night with passengers aboard. Such a requirement is meant to ensure the associated pilot skills are sufficiently practised that they are of a suitable standard to ensure aviation safety. A literal reading of that order, however, may lead to the conclusion that it is somewhat ambiguous. The order could be interpreted as a requirement for five night take-offs and five night landings during the preceding six-month period, as TC insists it should, or it could be interpreted to mean a total of five night manoeuvres, either take-offs or landings, as the DH contends. In the latter interpretation, the same meaning could also be expressed as five night take-offs and/or landings. That interpretation of the order, however, requires further consideration in the context of this case.
Mr. Covlin's contention that night take-offs and night landings are not necessarily linked in pairs is agreed. A pilot may execute a take-off in daylight and then land the aircraft at night or vice versa. Also on a given flight one pilot may take off and another pilot land the aircraft. Thus, for recent experience requirement purposes, when a pilot performs a take-off at night it does not necessarily follow that he will also make a night landing on that same flight. Each of these two types of night manoeuvres should be separately accounted for, and therefore the requirements should be separately specified as a number of take-offs and a number of landings, as it now is in the CARs.
If five night take-offs and/or landings are deemed to satisfy the order, then the requirement could be met with five take-offs and no landings. Night landings, however, generally require more skill than night take-offs, and in any event they are deemed more critical than take-offs as reflected in the TC Civil Aviation Inspector Pilot Flying Time Record by Aircraft Type form (Exhibit M-3), on which there is a column to record "number of landings" but no column for take-offs. Also, the Aviation Enforcement Preliminary Report Form in this case (Exhibit M-4) refers to "the required number of landings required for night before carrying pax," but makes no reference to take-offs. Thus, to have a night recent experience requirement that could be satisfied by meeting the required number of night manoeuvres with only take-offs and no landings, or even four take-offs and one landing, is not reasonable.
The fact that Mr. McFarlane was a TC Civil Aviation Inspector at the time of the alleged contravention must also be considered. The DH in this case is not a relatively inexperienced pilot who made an honest interpretation of a somewhat ambiguous order that is at a variance with TC's interpretation, but rather he is an experienced TC pilot in a position of authority in the Regulatory Compliance Branch. For Inspector McFarlane to have served in his capacity as a Civil Aviation Inspector while holding an interpretation of the subject ANO that was in a direct variance with the Department's interpretation, and that would allow the requirement to be met with take-offs only and without any ongoing practice of night landings is difficult to believe. If that was in fact the case, some evidence of using that interpretation in other currency periods might have been presented, but none was. It should also be noted that, in his testimony, Mr. McFarlane stated it had been Inspector MacLeod's and his intention to re-qualify at night during their flights on October 16, 1993, but he did not assert that intention had been met. He testified only that he made three night take-offs and three night landings on that date.
The "contra proferentem" rule that Mr. Covlin suggested should apply is defined in Black's Law Dictionary as "Used in connection with the construction of written documents to the effect that an ambiguous provision is construed most strongly against the person who selected the language." In light of the other factors just discussed, however, I do not think it has application in this case.
The second or alternative argument put forward by the Applicant suggests both pilots in a two-pilot crew should receive full night recent experience credit for every take-off and landing performed, regardless of who is actually flying the aircraft and who is acting in a support role as the co-pilot or first officer. Such an interpretation of the order would mean one pilot could maintain his currency without ever actually flying a night take-off or landing, simply by being the co-pilot for the requisite number of take-offs and landings. That pilot could then theoretically officially maintain the privilege of carrying passengers at night even though he had not actually flown – with his hands and feet on the flight controls – any night take-offs or landings for six months or more. That clearly would not be in the interests of aviation safety.
Performing co-pilot duties for five night take-offs and five night landings in a six-month period would presumably qualify a pilot to be a co-pilot on a night flight carrying passengers, but no order specifies such a recent experience requirement, and such a qualification is not an issue in this case. Performing co-pilot duties does not ensure pilots will have the requisite skills to actually fly the aircraft themselves, which can reasonably be assumed as the intent of the subject ANO.
The number of night take-offs and night landings that must be flown for a pilot to meet the recent experience requirement to carry passengers at night, as stated in ANO Series IV, No. 2, subparagraph 9(b)(ii), is somewhat ambiguous. The order does not state precisely the requirement that TC claims it does. On the other hand, the interpretation suggested by the Applicant is flawed and unreasonable, particularly when it is held by a TC Civil Aviation Inspector.
The interpretation that the night recent experience requirement could be satisfied by a total of five night manoeuvres in any combination of take-offs and landings, including the possibility of all take-offs and no landings which such an interpretation would permit, is not credible in an aviation context, despite the literal merits of such an interpretation. To find in favour of the Applicant on the basis of the somewhat ambiguous statement in the ANO would be to ignore the greater importance given to the requisite number of night landings than to night take-offs by TC as discussed above, and the generally more demanding nature of landings as compared to take-offs. It would also mean accepting that Inspector McFarlane was not aware of what the recent experience requirement really was. I do not believe the degree of ambiguity in the ANO and the circumstances of this case are such that they should be the basis of finding in the Applicant's favour. The only reasonable interpretation of that order is a requirement to fly five take-offs and five landings at night.
While he had flown four night landings and three or four night take-offs during the period, Inspector McFarlane had not flown the minimum recency requirement of five night take-offs and five night landings in the six months preceding his January 18, 1994 flight at night with passengers aboard.
Mr. Covlin's argument that full currency credit for night take-offs and night landings should be given to both the pilot and the co-pilot is not consistent with the purpose of ensuring that one's piloting skills, not co-piloting skills, are sufficiently practised and up to a satisfactory standard that will permit the safe carriage of passengers at night. That argument therefore is rejected.
I have determined that Air Navigation Order, Series IV, No. 2, subparagraph 9(b)(ii) requires a pilot to have flown a minimum of five take-offs and five landings by night in the six-month period preceding any flight at night on which passengers are carried. I find that the Applicant did not meet that requirement. I confirm the Minister's decision to assess a seven-day suspension.
Robert L. Mortimer
Civil Aviation Tribunal
 H.C. Black, Black's Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1990) at 327.
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