Decisions

CAT File No. H-2109-02
MoT File No. 5504-041490

CIVIL AVIATION TRIBUNAL

BETWEEN:

John Williams, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 6.9, 7.3(1)(a)
Canadian Aviation Regulations, SOR/96-433 ss. 604.66(a)(iii), 604.73(3)(a), 604.05, 604.80, 604.81

PPC, Private operator, Suspension, Pilot qualifications, Operation manual, Operating certificate conditions, Notice of Suspension, Motion, Flight training program, Inadequate training


Review Determination
Allister W. Ogilvie


Decision: August 28, 2001

The Minister has not met the burden of proof. The allegation is dismissed.

A review hearing on the above matter was held July 4, 5 and 6, 2001, at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

BACKGROUND

A regulatory audit of Canadian Warplane Heritage (CWH) had been scheduled for February of 2000. CWH had received notice of the impending audit.

The attending inspector, Mr. Kaufman, found that CWH's paperwork was in some disarray. In consultation with the Regional Manager, a decision was made to reschedule the audit to allow CWH to put its records into proper order. It had agreed not to operate in the interim.

The rescheduled audit took place on March 15, 2000 and was conducted by Inspector Kaufman and Superintendent Gordon Hill. Serious problems still existed regarding the records. Among other things, the audit team was unable to match correctly the journey log entries with corresponding pilot records. The audit resulted in the voluntary surrender of CWH's private operator certificate.

Inspector Kaufman and Superintendent Hill were previously aware that some Transport Canada personnel were active in CWH in various roles. In the audit some of the deficiencies in the records of these individuals caused them to believe that regulatory infractions may have occurred. After further investigation, an allegation was made against Mr. John Williams, a Transport Canada inspector who was involved with CWH's operations. It took the following form:

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):

Schedule A – Annexe A

[...]

Canadian Aviation Regulations section 604.66 (a) iii, in that on or about June 04, 1999 on a flight between Hamilton, ON and London, ON, you acted as second-in-command of aircraft C-GCWM at a time when you had not fulfilled the requirements of Canadian Warplane Heritage's flight training program referred to in CARS 604.73(3)(a). A 15-day suspension is levied for contravention of CARS 604.66 (a) iii and is to be in effect consecutive to the above-mentioned 30-day suspension.

This allegation was heard on July 4, 5, 6 in Toronto, Ontario.

PRELIMINARY MOTION

Prior to the hearing, Mr. von Veh had notified Transport Canada and the Tribunal that he intended to bring a preliminary argument and had provided the premise and the law upon which he relied. Briefly, he submitted that as the existence of an approved operations manual was the cornerstone of the allegation and as no approved manual existed, the allegation must be dismissed.

I ruled that I would not hear the submission as a preliminary argument as I found it to be a defence to the allegation and the Minister first had the burden of proving the alleged contravention, leaving it open for Mr. von Veh to make his submission after the Minister's case.

The hearing then proceeded in the normal sequence, Mr. Hector appearing for the Minister and Mr. von Veh appearing for Mr. Williams.

EVIDENCE/DISCUSSION

It is incumbent upon the Minister to prove on a balance of probability each element of the offence. In this instance it must be proven that Mr. Williams acted as second-in-command of aircraft C-GCWM on June 4, 1999 on a flight between Hamilton and London, Ontario, when he had not fulfilled the requirements of CWH's flight training program referred to in paragraph 604.73(3)(a) of the Canadian Aviation Regulations (CARs).

The journey log book of aircraft C-GCWM was accepted in evidence (Exhibit M-7). The log reveals that Mr. Williams did act as second-in-command on June 4, 1999 of a flight in C-GCWM between Hamilton and London, Ontario. That flight was logged as .7 hours. A further review of the log shows that prior to that flight, Mr. Williams had completed an earlier flight that day as second-in-command with a flight time of .8 hours. Prior to that the log shows Mr. Williams doing a flight of one hour on August 26, 1998. The log, in column 8, total persons on board, shows that on each flight persons other than a crew of two were carried. Thus, the evidence establishes that, as of the flight on which the allegation was made, he had a total of 2.5 hours, all flown with passengers.

The flight training program referred to in paragraph 604.73(3)(a) is a private operator's ground and flight training program. A detailed syllabus of the program is to be included in its operations manual [604.73(2)(b)]. Two operations manuals were entered into evidence (Exhibits M-6 and M-8). They are the subject of controversy. However, for discussion purposes only, both documents contain an identical chapter 5 – Training. At 5.26, Training Matrix, it is provided that initial training on a B-25 aircraft requires 3 hours in the aircraft.

On June 4, 1999, Mr. Williams had accumulated only 2.5 hours but was acting as second-in-command, carrying passengers. The requirements for training found in the operations manual were not met. If the training requirement is properly proven, each element of the offence will have been met and Mr. Williams will be found to have contravened the section.

ISSUE

The issue remaining to be decided is whether there is in evidence an approved operations manual.

As noted, two versions of a manual were entered as exhibits. They are not identical. A great deal of time and effort was expended addressing and questioning the differences. The evidence adduced through testimony and documentation shows that in the process to approve an operations manual, Transport Canada keeps a finalized version of a proposed manual and the operator receives an identical finalized version. It could be said that there are two master copies. The purpose of this procedure is to enable Transport Canada, when later doing an audit, to compare the operator's master copy to Transport Canada's master to see if there have been any unauthorized alterations. There is a procedure in place for approving amendments.

As the two copies in evidence did not match, the question was, which one, if either, was the "approved" manual.

A thorough review of the exhibits provides a rational explanation for the differences. They are different documents in support of different operating certificates.

The private operator certificate itself, a four-page document, is found in each operations manual (s. 5.4.2 of the Air Carrier Inspector Manual).

In Exhibit M-6, the document is found at the end. It is made out to Canadian Warplane Heritage Inc. On the bottom left is the approved date 1997.04.24. It is signed by what appears to be B. G. for the Minister. Each page of the certificate is dated and signed in a like manner.

In Exhibit M-8, after the pages with roman numerals is found a letter dated July 27, 2000 to CWH from a J. F. Pengelly, acting Certification Officer, Commercial and Business Aviation. The letter informs CWH that its reinstated private operator certificate is enclosed. After the letter is found a four-page private operator certificate made out to Canadian Warplane Heritage. The "Inc." is absent. Nothing turns on that; I merely point out the difference. The approved date on the bottom left is also 2000.07.27 which coincides with Mr. Pengelly's letter. The note indicates that its certificate supersedes the one approved 2000.02.01. I note an anomaly, in that the fourth page approval date purports to supersede the one approved 1997.04.24. All pages of the certificate are signed by a Mr. Welsh.

I conclude that the operations manual, Exhibit M-8, in which the above-noted documents are found, was approved on July 27, 2000 when CWH's private operator certificate was reinstated. The occurrence that is the subject of this hearing was alleged to have occurred in June of 1999. Therefore the operations manual of July 2000, Exhibit M-8, has no bearing on the issue.

The allegation stipulates that Mr. Williams had not fulfilled the requirements of the flight training program. That program is to be found in the operations manual. The Minister must produce the operations manual that was in effect at the time of the allegation.

The operations manual (Exhibit M-6) has attached to it private operator certificate P-9024 with the approved date 1997.04.24.

Exhibit M-11 is a letter of December 15, 1997 to CWH from Mr. G. R. Hill, which states that its recently submitted company operations manual was approved. What manual was approved by that letter? In cross-examination, when asked if the letter was approval for manual Exhibit M-8 he replied that it looks like it.

The letter that is Exhibit M-11 was forwarded to counsel for Mr. Williams with Exhibit M-8 as part of the disclosure. However, as previously noted, the approval letter for Exhibit M-8 is actually attached to that document, that is the letter dated July 27, 2000 from Mr. Pengelly. Therefore, Mr. Hill's letter of December 15, 1997 cannot refer to that manual.

I could speculate that it applies to the manual Exhibit M-6 as it is closer in date to that document but the letter's author, Mr. Hill, inferred that it applied to Exhibit M-8. Or, I could speculate that it applies to a manual submitted and approved after Exhibit M-6, but not entered into evidence. If so, perhaps that manual would have been in effect at the time of the occurrence as it would be antecedent to Exhibit M-6, but precede Exhibit M-8. However, it is not for me to speculate but for the Minister to prove which manual containing the training program was in effect.

The Minister must approve the manual. The Minister issues the private operator certificate. The Minister's policy manual stipulates that the regional office will retain a copy of the manual. How is it then that the Minister cannot table before the Tribunal the operations manual that was in effect at the time of the occurrence, the operations manual for which Transport Canada bears regulatory responsibility?

The audit team, when inspecting CWH, said that it was a mess. That may be said of Transport Canada's regional office in this case. Testimony during the hearing reveals practices that may contribute to disorder. Exhibit M-8 was said to have been "retrieved" from the desk of a retired inspector. Regarding manual comparisons during an audit, the inspector said he only looked at the amendment page to see if there were changes. That methodology presupposes that the personnel of the operator faithfully filled in the amendment page. The inspectors doing the audit were firm in their view that the Air Carrier Inspector Manual was only a guide. The inference that I received was that they did not feel bound to follow it. The CWH audit report stated that compliance was found regarding operator certificates and company manuals, a surprising finding in light of the material before me.

CONCLUSION

From the material in evidence, I have determined that Exhibit M-8 was not in effect at the time of the allegation. I cannot determine if manual Exhibit M-6 was in effect as Exhibit M-11 leaves open the possible existence of another manual between the two in evidence. I conclude that the Minister has not met the burden of proof on that element of the offence. Therefore, the allegation against Mr. Williams is dismissed.

I reach that conclusion reluctantly as the evidence shows Mr. Williams' conduct bears scrutiny. If either manual had been established to have been in effect, the allegation would have been proven.

Mr. Williams' views are remarkable. He chose not to give evidence as is his right, but, I have in evidence his statements to Inspector Miles (Exhibits M-1 and M-3). He took on the mantle of operations officer to be able to fill in for the Director of Flight Operations but stated that he had not read the operations manual. He was recommending pilots for type rating, but did not know how much training time was required. He then stated that throughout all this he was acting as a Transport Canada inspector!

DETERMINATION

The Minister has not met the burden of proof. The allegation is dismissed.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


Appeal decision
David Lloyd Eckmire, Faye H. Smith, Suzanne Racine


Decision: March 25, 2002

TRANSLATION

The appeal is allowed. The Appeal Panel confirms the Minister's decision to suspend the Respondent's pilot licence for having contravened subparagraph 604.66(a)(iii) of the Canadian Aviation Regulations. The fifteen-day suspension levied by the Minister of Transport will commence on the fifteenth day following service of this determination.

An appeal hearing on the above matter was held before three designated Tribunal Members on Thursday, January 17, 2002 at 10:00 hours at the Victory Verbatim premises, in Toronto, Ontario.

BACKGROUND

The Appellant is appealing the determination of Vice-Chairperson Allister Ogilvie, rendered August 28, 2001 following a review hearing in Toronto on July 4, 5 and 6, 2001. After an audit conducted by Transport Canada on March 15, 2000, the Minister of Transport had decided to suspend Mr. John Williams's pilot licence on the grounds that he had contravened subparagraph 604.66(a)(iii) of the Canadian Aviation Regulations (CARs) pursuant to section 6.9 of the Aeronautics Act.

The notice of suspension, dated August 30, 2000, reads as follows:

[...] in that on or about June 04, 1999 on a flight between Hamilton, ON and London, ON, you acted as second-in-command of aircraft C-GCWM at a time when you had not fulfilled the requirements of Canadian Warplane Heritage's flight training program referred to in CARS 604.73(3)(a). A 15-day suspension is levied for contravention of CARS 604.66(a)iii [...]

The Member concluded that, although Mr. Williams did not meet the requirements for training found in the operations manual, the Minister had not met the burden of proof on that element of the offence by failing to prove the existence of an operations manual in effect at the time of the offence.

GROUNDS FOR APPEAL

The Minister appeals the determination on the following grounds:

  1. The Member erred in law in interpreting subparagraph 604.66(a)(iii) of the Canadian Aviation Regulations;
  2. The Member erred in law in interpreting paragraph 604.73(3)(a) of the Canadian Aviation Regulations;
  3. The Member's finding that the operations manual, Exhibit M-8, was approved only on July 27, 2000 is patently unreasonable;
  4. The Member's finding that the operations manual, Exhibit M-8, was not in existence at the time of the offence was patently unreasonable;
  5. The Member's finding that the operations manual, Exhibit M-6, was not in existence at the time of the offence was patently unreasonable;
  6. The Member erred in law in finding that the Minister was required to prove the existence of an approved operations manual as part of the proof of the alleged contravention;
  7. The Member erred in law in holding the Minister to a burden of proof, which was analogous to, or exceeded, the standard of proof 'beyond a reasonable doubt', in finding that the Minister did not prove that the operations manual, Exhibit M-8, was the approved operations manual in effect at the time of the contravention;
  8. The Member erred in law in holding the Minister to a burden of proof, which was analogous to, or exceeded, the standard of proof 'beyond a reasonable doubt', in finding that the Minister did not prove that the operations manual, Exhibit M-6, was the approved operations manual in effect at the time of the contravention;
  9. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

THE APPELLANT'S ARGUMENT

The Appellant submits that the Member erred in interpreting subparagraph 604.66(a)(iii) and paragraph 604.73(3)(a) of the CARs for the following reasons:

(1) there is no requirement in the legislation that the Minister approve an operations manual;

(2) the requirement of an approved operations manual is not an element of the offence.

  • There is no requirement in the aeronautics legislation, according to the Appellant, that the Minister approve an operations manual and that therefore there can be no requirement that proof of an operations manual be a part of the elements of the offence.
  • By requiring proof of an approved operations manual, the Member required the Minister to answer a question which he was not legislatively authorized to ask and thereby exceeded his jurisdiction.
  • The Appellant submits that the Minister must only prove that there was a flight training program in existence and, having proven that on a balance of probabilities, then prove on a balance of probabilities what the requirements of that training program are.
  • The Minister has proven on a balance of probabilities the existence of a training program.
  • The Minister has proven on a balance of probabilities the training program requirements.
  • The Member's determination asserting that the operations manual, Exhibit M-8, was approved on July 27, 2000 when the Canadian Warplane Heritage's private operator certificate was reinstated is patently unreasonable because there was no evidence before the Member that relates the letter of July 27, 2000 contained in Exhibit M-8 and the private operator's certificate to the approval of the manual.

THE RESPONDENT'S ARGUMENT

  • In order to determine that there was a violation of a flight training program requirement, an approved operations manual must be shown to have been in existence at the time of the alleged violation. Canadian Warplane Heritage did not have, according to the Respondent, a properly approved operations manual at the time of the alleged infraction.
  • The Member was right in concluding that the Minister had not met its burden of proof with regard to each element of the alleged offence because there was a lack of clear evidence in regard to one element: the existence of an approved Canadian Warplane Heritage operations manual.
  • The role of the appeals Tribunal is to determine if an obvious and material error was made at first instance and to determine if the assessment of the evidence was irrational and contrary to common sense. The Member did not commit any error of law or fact which would warrant his determination being overturned.

DISCUSSION OF THE GROUNDS FOR APPEAL

The Appellant's representative submitted nine (9) principal grounds for the appeal. However, before the Appeal Panel, he focused his argument on those grounds that allege that the Member had, on the one hand, made a first mistake by requiring that the Minister prove the existence of the operations manual that contained the requirements for the training program. The second mistake was maintaining that the operations manuals, submitted as Exhibits M-6 and M-8, stating these requirements, were not in force at the time of the alleged offence.

The first point at issue was the necessity of proving the existence of the operator's operations manual containing the requirements of the training program.

The notice of suspension dated August 30, 2000 reads as follows:

Schedule A

Canadian Aviation Regulations section 604.66(a)iii, in that on or about June 04, 1999 on a flight between Hamilton, ON and London, ON, you acted as second-in-command of aircraft C-GCWM at a time when you had not fulfilled the requirements of Canadian Warplane Heritage's flight training program referred to in CARS 604.73(3)(a). A 15-day suspension is levied for contravention of CARS 604.66(a)iii and is to be in effect consecutive to the above mentioned 30 day suspension.

The Minister has the burden of proving the alleged offence and this applies to all elements of the offence. The evidence in the review proceeding clearly showed in this case that Mr. Williams acted as second-in-command of aircraft C-GCWM on June 4, 1999, on a flight between Hamilton and London, Ontario. Furthermore, after hearing and analysing the evidence submitted to him, the review hearing Member concluded that Mr. Williams had not met the requirements of the flight training program for a private operator required in paragraph 604.73(3)(a) of the CARs. However, while the requirements of this training program are stipulated in the Canadian Warplane Heritage operations manual, the Member dismissed the Minister's allegation because he had not proven the existence of the operations manual that contains the said requirements.

According to the Respondent's counsel, the Member was correct in dismissing the Minister's allegation. The Respondent's counsel maintained that the content (requirements of the training program) is closely related to the source (operations manual) in such a manner that the proof of the requirements of the training program would inevitably involve proving the existence of the operations manual that contained them. The Minister was unable to show, to the satisfaction of the Member, which of the two versions of the operations manual submitted as evidence (Exhibit M-6 or M-8) contained the requirements of the training program mentioned in the notice of suspension.

To support his contention, the Respondent's counsel strongly urged that an operator must comply with a series of requirements provided in section 604.05 of the CARs to obtain a private operator certificate.

Section 604.05 of the CARs provides as follows:

604.05 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Private Operator Passenger Transportation Standards, issue or amend a private operator certificate where the applicant demonstrates to the Minister the ability to
(a) meet training program requirements;
(b) comply with maintenance requirements;
(c) meet the Private Operator Passenger Transportation Standards for the operation; and
(d) conduct the operation safely.

(2) For the purposes of subsection (1), an applicant shall have
(a) aircraft that are properly equipped for and crew members who are qualified for the proposed operation;
(b) managerial personnel who meet the Private Operator Passenger Transportation Standards and perform the functions related to the following positions, namely,

(i) operations manager,
(ii) chief pilot, and
(iii) the person responsible for the maintenance control system;

(c) a maintenance control system that meets the requirements of Division VI;
(d) a training program that meets the requirements of section 604.73; and
(e) an operations manual that meets the requirements of sections 604.80 and 604.81.

The Respondent's counsel emphasized that the operator must demonstrate that he has an operations manual that meets the requirements described and stipulated in sections 604.80 and 604.81 of the CARs if he wants to obtain a private operator certificate.

Section 604.80 of the CARs lists the requirements relating to an operations manual:

604.80 (1) Every private operator shall establish and maintain an operations manual that meets the requirements of section 604.81.

(2) A private operator shall submit its operations manual, and any amendments to that manual, to the Minister.

(3) Where there is a change in any aspect of a private operator's operation or where the operations manual no longer meets the Private Operator Passenger Transportation Standards, the private operator shall amend its operations manual.

(4) The Minister shall, where the Private Operator Passenger Transportation Standards are met, approve those parts of an operations manual, and any amendments to those parts, that relate to
(a) the take-off minima referred to in section 604.14;
(b) the flight crew member and flight attendant training required by paragraphs 604.73(3)(a) and (b); and
(c) the maintenance control system required by section 604.48.

Section 604.81 of the CARs specifies the required contents of the operations manual:

604.81 (1) A private operator's operations manual, which may be issued in separate parts corresponding to specific aspects of an operation, shall include the instructions and information necessary to enable the personnel concerned to perform their duties safely and shall contain the information required by the Private Operator Passenger Transportation Standards.

(2) A private operator's operations manual shall be such that
(a) all parts of the manual are consistent and compatible in form and content;
(b) the manual can be readily amended;
(c) the manual contains an amendment control page and a list of the pages that are in effect;
(d) the manual has the date of the last amendment to each page specified on that page.

According to the Respondent's counsel, the regulations cited above, also cited in the Air Carrier Inspector Manual for Transport Canada inspectors, highlights all of the requirements the operator must meet to have its operations manual approved by Transport Canada. Does the system implemented in the aviation legislation require that the Minister prove the existence of the operations manual of operator Canadian Warplane Heritage, including the requirements of its training program, in order to prove that the said requirements were not met?

The terms of the legislation must be interpreted in their overall context, in accordance with the spirit of the Aeronautics Act, its mission being to promote aviation safety as intended by the legislator. The Minister is not necessarily required to express an opinion on each and every part of the operations manual. The regulations in fact only require the Minister to exercise due caution regarding three fundamental parts of the operations manual provided by the operator.

The wording of subsection 604.80(4) of the CARs specifies that if the following parts:

(a) the take-off minima referred to in section 604.14;
(b) the flight crew member and flight attendant training required by paragraphs 604.73(3)(a) and (b); and
(c) the maintenance control system required by section 604.48.

of the operations manual provided by the operator are acceptable to him, the Minister shall approve those parts of the manual and any amendments to those parts, as long as the Private Operator Passenger Transportation Standards are met. He will then make a decision as to whether the desired operator certificate should be issued or not.

The three specific parts of the operations manual described in subsection 604.80(4) of the CARs are central to the legislator's concerns and are in accordance with the spirit of the Aeronautics Act—aviation safety. The Minister cannot issue an operating certificate to the operator if he is not first and foremost convinced that the three crucial parts of the manual comply with and respect the intent of the Act. This does not mean that the other parts of the manual are not necessary or useful, and that this distinction relieves the operator from his obligation to provide to the Minister a manual that complies with all points of the regulations, to keep it up to date and inform the Minister of changes or amendments.

The requirements from these three parts of the operations manual are different from the other regulatory requirements in subsection 604.81(2) of the CARs, which relate more to "form" than fundamental requirements for content (basic). In fact, if the operator fails to meet one of the fundamental requirements described in subsection 604.80(4) of the CARs and for which an operator certificate was issued, that certificate shall be withdrawn. However, a penalty would be assessed against the operator for a strict liability offence if, on inspection by Transport Canada, it is found he contravened the other requirements, which are perhaps less fundamental, but just as important.

The requirements regarding content, form and distribution of the operations manual represent an elaborate and necessary regulatory system, developed primarily to ensure that all private operators follow a consistent procedure. This procedure would ultimately allow Transport Canada, during an inspection, to verify whether the manuals in the possession of the operator and Transport Canada are truly identical. The copy of the operations manual in the operator's possession must in fact be identical to the copy submitted to Transport Canada.

However, contrary to the submission of the Respondent's counsel, an omission or breach in terms of requirements related to form do not invalidate the manual. The argument raised by the Respondent's counsel was that pages 5-16 and 5-17 of the operations manual regarding personnel training requirements were not included in the introduction of the "List of Effective Pages" page of the said manual. According to the Appeal Panel, this does not invalidate the manual nor this crucial part of the manual. This is instead a breach of "form" and does not necessarily affect the "fundamental" or "basic" requirements under the terms of which the operating certificate was issued to the operator by Transport Canada. The information on pages 5-16 and 5-17 is available on page 5-15 in any event. This page is included on the "List of Effective Pages" page in the introduction.

Counsel further emphasized that the parts of the operations manual shall be considered an inseparable entity. According to him, the Minister can only approve a manual in its entirety. The Appeal Panel cannot agree with this submission. Subsection 604.81(1) clearly stipulates that an operator's operations manual may be issued in separate parts corresponding to specific aspects of an operation. Furthermore, subsection 604.82(1) stipulates that an operator shall provide to each of its crew members and to ground operations and maintenance personnel, a copy of the appropriate parts of its manual and amendments. Specifically, we noted this situation regarding Chapter 6 of the operations manual submitted as Exhibit M-6. In fact, this copy of the operations manual submitted to a Transport Canada inspector by the operator during the first inspection does not contain Chapter 6, which refers to the maintenance control system. It may have been given to operations and maintenance personnel in compliance with the provisions of subsection 604.82(1) of the CARs. This does not invalidate the operator's operations manual.

The legislator's intent and the spirit of the Aeronautics Act, the purpose of which is to ensure aviation safety, make it possible to determine that the parts of an operations manual described in subsection 604.80(4) first and foremost represent the elements considered fundamental to aviation safety and can be separated from the "other parts" that make up the operations manual. Proof of the requirements of the training program therefore do not necessarily involve a requirement to prove the existence of an operations manual, as submitted by the Respondent's counsel.

The Appeal Panel concluded that the aviation legislation does not require that each and every part of the operator's operations manual be approved by the Minister. The Minister is only required to examine the parts of the manual mentioned in subsection 604.80(4) of the CARs before deciding whether or not he can issue an operating certificate to the operator.

The Appeal Panel agreed with the argument of the Appellant's representative in that the Minister did not have to demonstrate the existence of the operator's operations manual to prove that the requirements of the training program it contains were contravened.

In his determination of August 28, 2001, the Member recognized that Mr. Williams had, on June 4, 1999, flown as second-in-command on aircraft C-GCWM between Hamilton and London, Ontario, even though he had not accumulated, in compliance with section 5.26 in Chapter 5 of the operator's operations manual, the three hours flight training required on a B-25 type aircraft, thereby contravening subsection 604.66(a)(iii) of the CARs.

Subparagraph 604.66(a)(iii) of the CARs stipulates the following:

604.66 No private operator shall permit a person to act and no person shall act
(a) as the pilot-in-command or second-in-command of an aircraft unless the person

(i) holds the licence and ratings required by Part IV,
(ii) has successfully completed a pilot proficiency check, the validity period of which has not expired, for an aircraft of that type, in accordance with the Private Operator Passenger Transportation Standards, and
(iii) has fulfilled the requirements of the private operator's ground and flight training program referred to in paragraph 604.73(3)(a);

Subsection 604.73(3) of the CARs reads as follows:

(3) A private operator's ground and flight training program shall include
(a) for flight crew members,

(i) upgrading training, and
(ii) initial and annual training, including

(A) aircraft type training,
(B) emergency procedures training, and
(C) aircraft surface contamination training;

(b) for flight attendants, initial and annual training, including

(i) aircraft type training,
(ii) safety procedures training,
(iii) emergency procedures training,
(iv) aircraft surface contamination training, and
(v) first aid training;

(c) training for other personnel who are assigned to perform duties on board an aircraft; and
(d) any other training required to ensure a safe operation under this Subpart.

Since the first two elements of the offence were demonstrated in the review proceeding, subparagraph 604.66(a)(iii) of the CARs provides the onus for the Minister to prove, on a balance of probabilities, that the individual acting as second-in-command, Mr. Williams, had not met the requirements of the private operator's ground and flight training program required in paragraph 604.73(3)(a) of the CARs.

The Appeal Panel has already concluded that the regulations do not provide that the Minister prove the existence of the operations manual. Second, proof of the existence of an operator's training program, and proof that the requirements of this program have not been met by the contravenor, are sufficient to satisfy the burden of proof required for the third element of the offence.

Before the Panel, the Minister's representative highlighted various elements of the evidence that demonstrated that the operator had such a training program at the time of the alleged offence. Indeed, in his opinion, there is no doubt that a training program was in effect at the operator's place of business because the operator would not have been able to carry out flight operations without an operating certificate. The existence of a training program, considered adequate by Transport Canada, is one of the key conditions for a certificate to be issued.

On the other hand, Mr. Williams probably knew, or should have known, what the requirements for this program were since he signed no fewer than 13 certificates (Exhibit M-9 filed in a bundle) attesting that the operator's pilots had, as of September 4, 1999, completed the "annual academic refresher training" on various types of aircraft. Mr. Williams should also have been aware of these requirements when he applied (endorsement of a rating) to obtain the right to pilot CV-14 and AV 83 type aircraft in July 1998, and a B-25 in October 1998 (Exhibits M-2 and M-4). Mr. Williams should also have been familiar with the requirements when, as an inspector for Transport Canada, he signed the PPC for Mr. Fukumoto on the B-25 on July 13, 1999. This was the same type of aircraft that lead to his notice of suspension.

The Appeal Panel is of the opinion that the Minister's representative demonstrated on a balance of probabilities, in the review proceeding, the existence of a training program at the operator's place of business.

The second point at issue was that the operations manuals submitted as Exhibits M-6 and M-8 were not in force at the time of the alleged offence.

The Minister's representative maintained that he not only demonstrated the existence of a training program, but also the substance of the program. In fact, he filed two operations manuals in the review proceeding. The first manual, submitted as Exhibit M-6 by Mr. Miles of Transport Canada, a witness qualified as credible by the Respondent's counsel, who had obtained it from the operator during the first inspection in February 2000. The second manual, submitted as Exhibit M-8, was the copy first held by Mr. McAskill and then transferred to Mr. Kaufman, both with Transport Canada. Both manuals contain an identical version of the requirements of the training program in Chapter 5. This fact was acknowledged in the determination of the Member of the review proceeding. Both manuals actually contain the same requirements for initial ground and flight training, in section 5.26, which calls for initial flight training of three (3) hours and sixteen (16) hours for ground training for the type of aircraft mentioned in the notice of suspension (B-25).

The Minister's representative confirmed that Chapter 5 of the operations manual, identical in both versions, was, contrary to the conclusion of the Member of the review proceeding, in force in June 1999 at the time of the offence since the manual had been approved on December 15, 1997 as being compliant with the regulations by Transport Canada (Exhibit M-11). In fact, Mr. Hill, one of the Minister's witnesses in the review proceeding, maintained that he confirmed in a letter dated December 15, 1997, addressed to the operator's chief pilot, that the manual submitted by Canadian Warplane Heritage and entered as Exhibit M-8 was approved in compliance with subsection 604.80(4) of the CARs as of that date. Mr. Hill reconfirmed this allegation while being cross-examined by counsel for Mr. Williams[1] in the review proceeding.

The Member of the review proceeding nevertheless concluded, despite uncontradicted proof submitted before him, that the operations manual (M-8) was only approved on July 27, 2000, when the operator certificate for Canadian Warplane Heritage was reinstated by Transport Canada, after the inspections carried out by Transport Canada.

The operator's operating certificate had to be in force for inspector Kaufman from Transport Canada to suspend it following inspections carried out in February and March 2000. Those inspections showed significant abnormalities and discrepancies between the training files of operating crew and information in the journey logs for the operator's various aircraft. If the operator's operating certificate was in force in March 2000, there had to be an operations manual describing the requirements of the training program. No evidence submitted in the review proceeding suggested that these requirements had been modified or amended since there were no amendments in the copy obtained from the operator (M-6) or in the copy held by the Minister (M-8).

The evidence shows that the requirements of the training program in Chapter 5 of the manuals submitted as Exhibits M-6 and M-8 were approved by Mr. Hill of Transport Canada as compliant with subsection 604.80(4) of the CARs on December 15, 1997 (Exhibit M-11). The operator's certificate No. P-9024 was in force until the operator returned it to Transport Canada following the inspections carried out in February and March 2000. The said operating certificate was later reinstated on July 27, 2000 by Mr. Pengelly of Transport Canada after a conclusive re-examination. The alleged offence occurred on June 4, 1999, or over eight (8) months before the inspections by Transport Canada, while the operator's operating certificate was in force. The evidence submitted in the review proceeding did not allow the Member to dismiss the letter of December 15, 1997 in favour of the letter dated July 27, 2000 since the evidence did not establish that the letter of July 27, 2000, included with Exhibit M-8 and the private operator certificate, related to the approval of the operator's operations manual.

The role of the Appeal Panel is not to substitute its assessment of the facts for that of the Member at first instance, unless the Member's assessment was unreasonable. The review Member had the advantage of hearing the Applicant and the Respondent, analysing both the documentary and testimonial evidence and reviewing the evidence provided during the review hearing.

In this case, the Member erred in his conclusion of fact since the evidence showed that the operator's operations manual containing the requirements of the training program in Chapter 5 had been approved by Transport Canada on December 15, 1997, before the offence occurred. According to the panel, the Minister's representative not only demonstrated the existence of the training program at the operator's place of business, but also was able to prove that the requirements of that program were in effect at the time the alleged offence was committed.

DETERMINATION

The Appeal is allowed. The Appeal Panel confirms the Minister's decision to suspend the Respondent's pilot licence for having contravened subparagraph 604.66(a)(iii) of the Canadian Aviation Regulations. The fifteen-day suspension is upheld.

Reasons for the appeal determination:

Suzanne Racine, Member

Concurred:

Faye Smith, Chairperson
David L. Eckmire, Member


[1]See transcript for July 5, 2001 starting at page 17.