Decisions

CAT File No. O-1474-33
MoT File No. PAP6504-P-040145-028265

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Peter George Dmytriw, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7
Air Navigation Orders, VII, No. 2, s.41.1(3), (5)

Maximum Flight Duty Time


Review Determination
Allister W. Ogilvie


Decision: October 15, 1997

The Minister of Transport has established on a balance of probabilities that Mr. Dmytriw contravened Air Navigation Order Series VII, No.2, subsection 41.1(3) on or about May 29, 1996. In the result I confirm the assessed monetary penalty of $100.00. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this Determination.

A Review Hearing on the above two matters was held September 23, 1997 at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

BACKGROUND

On May 29, 1996, Captain Frederick Martin and First Officer Peter Dmytriw acted as flight crew members on aircraft C-GQBO, a Convair 580, which operated as DBD 900. On board the aircraft was Inspector D. Grant. His function on that trip was to conduct a pilot proficiency check (hereafter PPC) on First Officer Dmytriw and then continue with the aircraft for its entire journey to do a line check. The PPC was accomplished on the first leg of the flight, between Toronto and Hamilton. Inspector Grant left the aircraft in Hamilton as he suspected that it would not be able to return to Toronto that day. The flight crew continued with the itinerary.

The inspector having noticed the aircraft on the ramp the next morning, suspected that the crew may have exceeded their duty time limitation. A subsequent investigation resulted in the Minister of Transport issuing to each crew member a Notice of Monetary Penalty in the following form:

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):

Air Carriers Using Large Aeroplanes Order (Air Navigation Order, Series VII, No.2), s.41.1(3) in that on or about May 29, 1996 at or near Toronto, Ontario you flew an aircraft, identified as C-GQBO, for a total flight crew duty time in excess of 15 hours in a period of 24 consecutive hours.

The monetary penalties were not paid. A Notice of Review Hearing was issued to each pilot, establishing September 23, 1997 as a date for the hearing.

As the allegations were identical and arose out of the same fact situation, the parties and the Tribunal agreed that both matters would be heard together.

The Minister of Transport was represented by Case Presenting Officer, Mrs. Oonagh Elliott, and the Respondents, Captain Martin and First Officer Dmytriw, were represented by Counsel, Mr. Shailesh Dubey.

AGREED STATEMENT OF FACT

The parties entered two agreed statements of fact, one regarding the pilots, the other regarding the aircraft maintenance engineer, Mr. Carey. Those agreed facts salient to the matters being heard are as follows:

    1. On May 29, 1996, Captain Frederick Martin and First Officer Peter Dmytriw acted as flight crew members on C-GQBO, operating as DBD 900;
    2. The entries in the Aircraft Journey Log book for C-GQBO on May 29, 1996 are correct.
    1. Mr. Carey spoke to both Martin and Dmytriw on the evening of May 28, 1996, and advised them that the aircraft would not be ready for 0830 the following morning.
    2. Mr. Carey worked on C-GQBO on the evening of May 28, 1996, by himself, and went home late in the evening. He finished the work on the aircraft on the morning of May 29, 1996, including the large volume of paperwork associated with the maintenance carried out on the aircraft.
    3. Mr. Carey stated that he was under pressure from Air Niagara Express, Inc. management to get the aircraft ready for its flights on May 29, 1996. He knew the aircraft would not be ready for 0830, but he felt that he had to aim for that time to appease management, even though he felt it was unrealistic.
    4. Mr. Carey stated that he believed that the flight crew were also under pressure from management to be ready to go as soon as the aircraft was ready. The flight crew and flight attendant arrived at approximately the same time early in the morning of May 29, 1996.

THE EVIDENCE

Inspector Grant was a Civil Aviation Inspector, Ontario Region, qualified as a type specialist on the Convair 580 aircraft. He was to do a PPC on First Officer Dmytriw on the morning of May 29, 1996 and then continue on the flight to accomplish a line check from Toronto to Minneapolis, Minnesota, Kenora, Ontario, Red Lake, Ontario, returning to Toronto.

He testified that he arrived at the airport at 07:30 for a scheduled departure of 08:30. There he observed Captain Martin flight planning. He commenced the briefing for First Officer Dmytriw's PPC. Inspector Grant said that Mr. Cooper advised at about that time that the aircraft was not yet serviceable, but hoped that it would be by 09:30. The flight was finally underway at about 11:30.

Inspector Grant stated that, during this period of delay of almost four hours, the flight crew was on stand-by time. Further he stated that they would have been on duty from their arrival at the airport at 07:30. His testimony was that the duty time limitations of Air Navigation Order (ANO) Series VII, No. 2 governed, thus limiting the crew to a maximum of 15 hours in any consecutive 24 hours. As the inspector responsible for Air Niagara Express Inc., he had a familiarity with their operating specifications and was not aware of any authorization that allowed that figure to be exceeded.

The almost four-hour delay, coupled with a fairly lengthy planned flight, caused him concern for the length of the duty day. As he had plans for the following day, he did not want to be forced to remain with the aircraft at some point on its itinerary. He testified that he made the concern known to the crew. He advised them that he would conduct the PPC at Hamilton. That was accomplished, including debriefing by about 13:15. The aircraft departed Hamilton, and Inspector Grant returned to Toronto.

He next saw the aircraft on the ramp in Toronto the next morning, causing him to suspect the crew may have exceeded their duty day. He enquired of the tower and was told aircraft C-GQBO's arrival time in Toronto was 00:17 local. Therefore, he estimated the duty day to be about 16 hours and 46 minutes.

Upon cross-examination, Inspector Grant reiterated that the captain was doing flight planning while he checked First Officer Dmytriw's licence for the PPC. He remained adamant that the crew was present for the purpose of the flight at 07:30 and that flight planning began; therefore, duty time had started.

The Minister next called Mr. Jim Corbett, a Civil Aviation Inspector with Transport Canada, serving in the Enforcement Branch. It was Inspector Corbett's testimony that he had investigated the alleged violations. In doing so, he had procured the aircraft journey log, for the day in question. The log (Exhibit M-2) showed the crew to be Captain Martin and First Officer Dmytriw. It indicated the time out at 15:37 U.T.C., and time in at 04:24 U.T.C. (11:37 until 00:24 local) and therefore a flight time of 9.4 hours. It was his opinion that the crew had exceeded their duty day. He came to that conclusion based on the log combined with information from Inspector Grant.

Captain Martin gave evidence on his own behalf. This was accomplished by means of a telephone link between him and the Tribunal as he was unable to be present. Captain Martin was represented by Counsel. Both parties consented to this procedure.

Captain Martin stated that, through conversation with the aircraft engineer working on the aircraft, he knew that the aircraft would be unlikely to be ready at the scheduled departure time. Nevertheless, he did arrive at the airport early, about 07:00–07:30. His testimony is that he did not flight plan at that time, as it was too early. The task was accomplished about half an hour before departure.

He stated that Inspector Grant did not tell him he would exceed his duty day, but conceded that Inspector Grant did state that it could be a long day. Captain Martin testified that he regarded his duty day to start one hour before departure. Also, Captain Martin stated that Mr. Cooper was not present when he arrived, but was some time later.

Upon cross-examination, Captain Martin stated that he also brought the flight attendant with him, arriving between 07:00–07:30. He stated that on arrival he had coffee, watched TV, and sauntered around. He was not aware when the first officer was being briefed for the PPC. On redirect, he stated that, although he could not remember, he probably had been involved in the briefing. Further, he testified that he was not prepared to depart then as he had yet to go to the bank machine.

When questioned as to why Inspector Grant departed the aircraft in Hamilton, when the plan had been for him to continue for the entire flight, he stated that he thought the inspector was tired of hanging around.

Mr. G. Cooper testified on behalf of the Respondents. He was the Director of Flight Operations, having considerable experience in the aviation industry. He said that when he left the airport on May 28, 1996, he still thought an 08:30 or 09:00 departure on May 29 was possible. He arrived back at the airport at 10:00 or 11:00 a.m. of May 29. Although he spoke to Inspector Grant, he did not recall being informed of any crew duty time concerns. It was only later that he became aware that Inspector Grant had gotten off the aircraft in Hamilton.

Mr. Cooper was of the opinion that the crew had shown up at 07:30 on the premise of an 08:30 departure. However, after that time, they encountered what Mr. Cooper characterized as a "creeping delay."

First Officer Dmytriw was also vice-president of Air Niagara Express Inc. He stated that he knew the aircraft would not go at 07:30 as there was more paper work to be done. He did not inform anyone as he had previously planned to meet the inspector at 07:30 in any case. On arrival at the airport, the crew "officially" heard that there would be a delay. He stated that Mr. Cooper was not present at that time.

First Officer Dmytriw denied that Inspector Grant had raised crew time limitations with him. As well he stated that Inspector Grant did not say why he departed the aircraft in Hamilton.

He admitted on cross-examination that the PPC briefing began when Inspector Grant arrived at 07:30.

ARGUMENT

Mrs. Elliott argued that she had proven the constituent elements of the case in that the flight crew had been identified, and they had exceeded the maximum prescribed duty time.

She asserted that it was proven because Inspector Grant, upon arriving at 07:30 on May 29, observed the captain flight planning and initiated the PPC briefing with the first officer. The time of return early the next morning was verified by an enquiry of the tower and was consistent with the journey log. Therefore, this elapsed time exceeded the limits in the ANO. She necessarily argued that the time between 07:30 and departure was to be characterized as stand-by time, a constituent part of duty time.

Mr. Dubey, on behalf of the Respondents, denied that the Minister's onus had been met. He did not question that the crew had arrived at 07:30, but asked why they did? He argued that it was not clear when the duty day started and points to the inconsistent testimony of Inspector Grant and Captain Martin, as to when flight planning took place. He argued that the PPC briefing does not initiate the duty day.

It was his assertion that the duty day did not commence until shortly before departure. Given the in and out times in the log, he argued that the duty time would have been about 14 hours and 3 minutes. Therefore, no violation of the section occurred.

LAW

ANO Series VII No. 2 at the interpretation section proves the pertinent definitions.

"crew member" means a person assigned to duty in an aeroplane during flight time;

"flight duty time" means the total time, including stand-by time, required to prepare for, carry out and complete

(a) a flight or series of flights; and

(b) the administrative functions associated with the flight or series of flights;

"stand-by time" means any time during which a flight crew member is required to be available at an aerodrome for flight duty;

Subsection 41.1(3):

(3) No person shall act as a flight crew member where he will

(...)

(b) exceed the maximum flight duty time prescribed by subsection (5)

Subsection 41.1(5):

(5) The maximum flight duty time for a flight crew member is 15 hours in any period of 24 consecutive hours.

The Air Regulations state the following definition at the interpretation section:

"flight time" means the total time from the moment the aircraft first moves under its own power for the purpose of taking off until the moment it comes to rest at the end of the flight;

DISCUSSION

The facts of the case that are not in issue are:

  1. Captain Martin and First Officer Dmytriw acted as flight crew members on the flight in question.
  2. The flight crew arrived at the Toronto airport at 07:30 on May 29, 1996.
  3. The aircraft, and hence the crew, arrived back at the Toronto Airport at 00:24 of the next morning.

The elapsed time with those parameters is 16 hours and 54 minutes.

At issue is whether the flight crew exceeded the maximum flight duty time of 15 hours in a 24-hour period as provided by the ANO Series VII No. 2. To decide this it must be established when the duty day began.

The evidence adduced from the witnesses is replete with contradictions.

Captain Martin admitted to arriving at 07:30 but denied commencing flight planning at that time.

Inspector Grant testified to arriving at about 07:30 and observing Captain Martin flight planning. He also testified to having been informed of the flight delay at about that time by Mr. G. Cooper. However, Mr. Cooper and the flight crew all say that Mr. Cooper did not arrive at the airport until midmorning.

Inspector Grant stated that sometime after the delay progressed he made his concerns regarding the length of the duty day known to the crew. Captain Martin denied that the conversation included the possibility of exceeding the duty day but conceded that Inspector Grant had mentioned a long day. First Officer Dmytriw said the conversation never happened. Inspector Grant took action on his concern by departing the aircraft in Hamilton as he feared that staying with the aircraft would result in a disruption of his schedule the next day. Both crew members profess no knowledge of why he left the aircraft in Hamilton.

Although those contradictions are troubling, they do not go to the crux of the issue. The consistencies in the testimony are more telling and are of assistance in resolving the issue.

Inspector Grant testified that he began the briefing for the PPC on his arrival (i.e., 07:30). Upon cross-examination, First Officer Dmytriw concurred that the briefing began when the inspector arrived. Captain Martin said he did not remember being part of the briefing but qualified the statement by stating he probably was.

In testifying generally, the captain professed to remember few details on most issues raised. I find it peculiar that a captain who was scheduled to be accompanied by a Transport Canada inspector, on all legs of a long day, showed little interest and no concern for the reason that the inspector made an early exit.

Inspector Grant testified that the captain was flight planning at about 07:30, but the captain refutes that. I find it more credible that a pilot would arrive at 7:30 a.m. to start flight planning than to arrive at that hour with the intention of sauntering around, watching television and drinking coffee, which was the captain's testimony. When there is a conflict between the testimony of the captain and the inspector, I prefer the latter.

The Director of Flight Operations, Mr. Cooper, testified that the crew showed up for 07:30 as it was not conclusive that there would be a delay. It was his position that they came to work on a premise of an 08:30 departure. This is consistent with First Officer Dmytriw's statement that he "officially" was notified of the delay at 07:30.

Mr. Cooper, during cross-examination, reiterated that he felt the aircraft could have left at 08:30 but encountered what he characterized as "a creeping delay" at that point.

CONCLUSION

The definition of flight duty time includes at (b) "the administrative functions associated with the flight or series of flights." The first flight of the series of flights planned for May 29, 1996 was to conduct a PPC on First Officer Dmytriw. To prepare for that flight, Inspector Grant initiated the briefing for the PPC at 07:30. First Officer Dmytriw concurred with that. I accept Inspector Grant's evidence that the captain had initiated flight planning at that time.

In this instance, the flight duty time for the crew commenced with the briefing for the PPC and the flight planning as both were administrative functions associated with that particular flight. In this instance they commenced at the same time. I believe that this finding is further shown by the character of the time between commencing duty and departure.

The definition of duty time specifically includes stand-by time. As noted, that means "any time during which a flight crew member is required to be available at an aerodrome for flight duty." I find that the time between the initiating of the briefing and planning at 07:30 and the eventual take-off was stand-by time. The crew was at the airport in anticipation of a departure. Inspector Grant testified that, for a portion of that time, they were actually in the aircraft. I believe this is consistent with the testimony of the Director of Flight Operations, Mr. Cooper. He characterized it as a creeping delay, not a rescheduling. The crew was at the airport, ready to go whenever the aircraft became serviceable. That the crew was to be ready when the aircraft was ready is compatible with the statement of Mr. Carey in the second agreed statement of fact.

The same issue was addressed in CAT File No. W-0204-02 Thomas Edward Matiuskyk v. Minister of Transport.

Mr. Matiushyk had his licence suspended for an alleged breach of ANO Series VII No. 3, subsection 42.1(5).

The suspension arose from an audit of the company Alta Flights. An aircraft journey log indicated that Mr. Matiushyk flew the aircraft on a series of flights originating in Edmonton at 07:03 hours and terminating in Edmonton at 10:10 hours. Later that day the same pilot departed Edmonton at 17:17 hours and performed a series of flights ending at 02:01 hours of the next morning. That indicated a total duty time of 18 hours 58 minutes in the 24-hour consecutive hour period.

The evidence showed that, after the morning flight, the pilot returned home, ate, watched TV and slept. He was not carrying a pager and was not on call. He believed that he was not obliged to be available, having been released from duty until 17:00 hours. The Tribunal found that between 10:10 and 17:17, the pilot was not on stand-by time; therefore, the flight duty time was not exceeded.

In a contradistinction, the crew in this instance had begun their duty day with the PPC briefing and flight planning, and then endured a creeping delay. Rather than being released from duty, they remained at the airport, ready for departure whenever the aircraft became serviceable.

DETERMINATION

For the foregoing reasons, the Minister of Transport has established on a balance of probabilities that Captain Martin and First Officer Dmytriw contravened ANO Series VII, No.2, subsection 41.1(3) on or about May 29, 1996. In the result I confirm the penalty of $100.00 in each case.

Allister W. Ogilvie
Vice-Chairperson
Civil Aviation Tribunal