Decisions

CAT File No. O-1335-09

CIVIL AVIATION TRIBUNAL

BETWEEN:

Dundas Flying School, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Loi sur l'aéronautique, L.R.C. 1985, c. A-2, art. 7.1(1)b)
Manuel de licences du personnel, vol. 1, partie IV, chap. 4, al. 4a)

Cancellation of a Flight Training Operating Certificate, Flying School


Review Determination
David W. Hurst


Decision: February 4, 1997

I have determined that this matter be referred back to the Minister for reconsideration.

The Review Hearing on the above matter was held Wednesday, January 22, 1997 at the Hamilton Convention Centre, in the city of Hamilton, Ontario.

BACKGROUND

The matter at hand was a letter to Mr. T.W. Butterworth of the Dundas Flying School, Waterdown, Ontario from Mr. Schobesberger. This letter indicated that Mr. Butterworth's flying school did not have an aircraft suitable for flight training as required by the Personnel Licensing Handbook, Volume 1, Part IV, Chapter 4, section 2. Therefore, the school no longer met the qualifications for issue of the Flight Training Operating Certificate. This letter indicated that, pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, Operating Certificate No. 007790 issued to Dundas Flying School on April 27, 1992 was cancelled. Mr. Butterworth was informed that this decision could be reviewed by the Civil Aviation Tribunal.

PRESENTATION BY TRANSPORT CANADA — MR. SCHOBESBERGER

Mr. Schobesberger outlined the activities of the Dundas Flying School which had operated out of the Brantford Airport with one light training aircraft suitable for private, commercial and instrument flight training. Eleven students were involved. He maintained that, with the sale of this sole aircraft which was not replaced and with closure of the facility in Brantford, the school did not meet the standards of Transport Canada.

He then presented in evidence as Exhibit M-1 a letter to Mr. Butterworth of this cancellation. Presented as Exhibits M-2 and M-3 were copies of the Air Regulations and Aeronautics Act highlighting the pertinent excerpts applicable in this ruling by Transport Canada.

With reference to the Personnel Licensing Handbook, Volume 1, regarding flight crew, he highlighted the standards required by the Minister applying to ground and flight training and the demand that sufficient aircraft for all training be available. In Personnel Licensing Handbook, Volume 1, Part IV, Chapter 4, paragraph 4(a) he stressed the importance of the Flight Training Unit having continuous use of adequate accommodation and facilities for flight planning and briefing or debriefing of flight trainees.

He then called Mr. Joe Szwalek, Superintendent, Hamilton, General Aviation, Transport Canada who was duly sworn and was accepted by the Tribunal as an expert witness.

Mr. Szwalek explained that a Flight Training Operating Certificate determines that the company is, to Transport Canada's standards, a safe operation. He stated that for minimum standards a flying school must have suitable facilities, equipment, including an aircraft and personnel and that an instructor must have a rating of Class 1, 2 or 3. The facility must be on a licensed airport, maintenance must be up to air worthiness standards, and there must be a certified flight instructor (CFI) with suitable facilities. Failure to meet these standards would result in suspension of the Operating Certificate. A copy of the Operating Certificate Application by the Dundas Flying School was introduced as Exhibit M-5. It describes the facility, aircraft, personnel and maintenance people. This application had been accepted and approved by Transport Canada.

Mr. Szwalek stated that in April 1996 he discovered that an aircraft thought to be the property of the Dundas Flying School actually belonged to a company called Aero Futures. He reviewed the certificate of ownership and found that Mr. Butterworth did not own the aircraft. He tried to reach Mr. Butterworth through numerous phone calls, but had no success. At one point he did speak with his wife. He then introduced as Exhibit M-6 a letter to Mr. L. Gillespie of Transport Canada from Mr. Butterworth. This letter indicated that the lease agreement between the Dundas Flying School and NJB Enterprises Ltd. (his wife's company), regarding C-152, CG-GED was terminated. Mr. Szwalek's final document entered as Exhibit M-7 was a copy of an aircraft bill of sale. It indicated that NJB Enterprises Limited had sold the aircraft CG-GED to Aero Futures of Ancaster, Ontario on December 23, 1995 which was the same date as the end of the lease.

Mr. Szwalek went on to explain that, having had no success in reaching Mr. Butterworth by phone, he contacted the Airport Manager at Brantford. He was told that there had been no activity by the flying school in their facility at Brantford for some time. In fact, he had not seen Mr. Butterworth for months. He stated that Mr. Butterworth said he did not need the space. The Airport Manager indicated that the flying school's activities were tied to that airport and that they did not have another aircraft. On direct questioning by Mr. Schobesberger, Mr. Szwalek felt that, if the school were functioning at another airport with a different aircraft, this would be an offence.

Mr. Szwalek then sent a letter recommending suspension of the pertinent Operating Certificate.

Mr. Butterworth interjected at this point asking why no attempt had been made to reach him by letter. Mr. Szwalek felt that, because such a long time had gone by with no success by phone, there was no need to issue a letter.

This ended the presentation by Transport Canada.

APPLICANT'S PRESENTATION

Mr. Butterworth represented the Dundas Flying School and was sworn as a witness.

He pointed out that the Dundas Flying School had a good record. He quickly made it clear that he felt that Transport Canada was too heavy handed with the application of "the Regulations" and that Transport Canada simply wanted full control.

He felt that Transport Canada was applying rigid military standards with bureaucrats, making unfair decisions which were discriminatory, depriving many people of careers. He added that Transport Canada's rulings have been changed before after strong protests by the industry.

Mr. Butterworth went on to state that his needs were modest. He was not involved in a large money making scheme but was capable of running a quality low-cost operation. He felt that Transport Canada, with its rigid application of the Regulations, was capable of running up thousands of dollars of costs in their application.

He clearly felt that the Regulations show no consideration of the ability of a small operation to be operated properly.

He then went on to explain that when Mr. Szwalek had tried to reach him by phone he had spoken to his wife instead. His wife informed Mr. Szwalek that they intended to move the Flying School to the Dundas Airpark. Mr. Butterworth explained that the nature of his work with the Ministry of Education required him to be in many parts of the province, and he was rarely available by phone.

He added that this new two-year contract offered him an opportunity to change the location and the aircraft required for his flying school. He said he had completed the training of the students that he had and simply wanted an interval to reorganise in the new location. He felt that the change of the locale was more of a problem for Transport Canada then for him. He described one phone call from the Toronto office of Transport Canada regarding insurance on his Cessna 152. He explained that it had been sold and that he was about to acquire a Cessna 172. He complained that this phone call was more in the nature of political harassment and deception.

At this point the Tribunal questioned Mr. Butterworth directly as to what he actually had to operate a flying school according to the Regulations. He stated that he is a certified CFI and is the General Manager.

The maintenance is done by Dundas Aviation at the Dundas Air Plaza. He has a 35-foot wide lighted runway of 3,000 feet with a cleared 5,000-foot departure strip. There is a hangar with maintenance facilities. His ground facility is a trailer in which he conducts the ground school, but he has similar space available through the Wentworth Board of Education in Flamboro. He said he was negotiating for a new aircraft, and he has been without an aircraft since December 19, 1995. He stated that this is not a large dollar operation being a very small flying school and that it takes time to arrange financing of a plane.

Mr. Butterworth was quite emphatic that Transport Canada failed to notify him in writing and felt that Transport Canada is confrontational and obstructive.

SUMMARY

Mr. Schobesberger stated that Transport Canada has no problem with the quality of the school and that Mr. Butterworth's record was good. He felt that the school's financing did not represent a problem to Transport Canada. Transport Canada's concerns were that the Operating Certificate was issued when the flying school met the standards. One condition was for the school to have an aircraft, and this was no longer the case. He felt that the school must be capable and equipped, and without these standards the Certificate could not be issued. He stated that, while there might have been a problem with the telephone messages, there in fact is no aircraft, and the operation at Brantford does not exist.

Mr. Butterworth in conclusion felt that Transport Canada was applying the regulations too rigidly.

DISCUSSION

In considering the genesis of this problem, it is apparent to the Tribunal that there has been a serious lack of communication.

With the change of venue of this flying school from Brantford to Dundas and the sale of its sole aircraft, it would seem logical and important that Mr. Butterworth inform Transport Canada of these events. He has been derelict of his responsibilities in this area.

At the same time one can easily understand the concern of Transport officials on discovering that the flying school no longer had an aircraft and indeed was no longer operating at Brantford with no explanation having been forwarded from the flying school. Transport Canada, on the other hand for unexplained reasons, failed to express its concerns in writing.

Transport Canada has no concern about the quality of this flying school. The requisites are an approved aircraft, certified flight instructor, ground school facilities, a suitable airport and maintenance facilities with certified mechanics. The only thing missing here is an aircraft, but certainly communication has been abysmal on both sides.

CONCLUSION

While understanding the reaction of Transport Canada to this situation, cancellation of the certificate represents an excessive penalty. With better communications and the acquisition of an approved aircraft the problem is virtually resolved.

DETERMINATION

I have determined that this matter be referred back to the Minister for reconsideration.

D.W. Hurst, MD
Member
Civil Aviation Tribunal