Decisions

TATC File No. O-2807-02
MoT File No. PAP 5504-049238

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Nicholas Anthony Booth, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.3(1)(a)


Review Determination
Allister W. Ogilvie


Decision: November 24, 2003

I find that the term "solo" at the time of the allegation meant, for a student pilot permit holder, sole occupant of the aircraft. I find that the Minister proved Mr. Booth knowingly made a false representation which is a serious matter worthy of a 30-day suspension. The thirty-day suspension imposed by the Minister is upheld and will begin on the fifteenth day following service of this determination.

A review hearing on the above matter was held Tuesday, September 30, 2003, at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

BACKGROUND

Mr. Nicholas Booth is a flight instructor on rotary wing aircraft. He had worked as a flight instructor in the USA before coming to Canada in January of 2000. At that time he settled in Newfoundland where he continued his career teaching student pilots on helicopters. Later he moved further west, settling in Ontario where he found employment with National Helicopters Incorporated [hereinafter National Helicopters].

At National Helicopters he was assigned a student, Mr. Brandon Gardner. During the course of Mr. Gardner's training a certain methodology was adopted regarding "solo" flight time on the Bell 206 helicopter. Mr. Gardner was to fly the helicopter but was to be accompanied by his instructor, Mr. Booth. When the student had reached a degree of competency suitable for a commercial flight test, the instructor, Mr. Booth, signed his student's recommendation for flight test attesting to the student's flight experience which included 40 hours of "solo".

Mr. Gardner was presented for his commercial pilot check ride. The methodology used to accumulate "solo" flight came to the attention of the Transport Canada inspector who was to conduct the flight test. He was of the opinion that Mr. Gardner did not have the required number of hours for solo flight because he had always been accompanied on those flights that were recorded as solo.

Consequently the Minister of Transport made the following allegation against Mr. Booth:

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):

Charge #1:

Section 7.3(1)(a) of the Aeronautics Act, no person shall (a) knowingly make a false representation for the purpose of obtaining a Canadian aviation document or any privilege accorded thereby;

Offence #1:

On or about October 30, 2002, you knowingly made a false representation on a document for the purpose of obtaining a Canadian Aviation Document. Specifically, you knowingly signed a "Recommendation for Flight Test", recommending a flight test for Mr. Brandon Gardner for a Commercial Rotorcraft Pilot Licence that stated Mr. Gardner had 40 hours of solo flight experience when he did not.

Suspension Assessed:

Offence #1   30 days   Private Pilot Licence
Total   30 days   Private Pilot Licence

Preliminary Motion

Mr. Shimmin, the Minister's case presenting officer, moved to amend the Notice of Suspension, Schedule A wherein the suspension assessed referred to a private pilot licence. He asked that it be amended by substituting commercial pilot licence for private pilot licence. Mr. Clark, representative for Mr. Booth, agreed. The motion to amend was granted.

Agreed Statement of Facts

The parties submitted an agreed statement of facts. Mr. Booth admits to signing the "Recommendation for Flight Test" dated October 30, 2002. He agrees that he was on board the helicopter on all flights indicated in Mr. Gardner's Pilot Training Record under the category "pilot/pilote" as of October 30, 2002.

ISSUES

The agreed statement of facts alleviates the calling of evidence regarding those facets which are stipulated above. The element that still needs to be established is whether Mr. Booth "knowingly" made a false representation for the purpose of obtaining a Canadian aviation document. It is alleged that the statement is false because the Recommendation for Flight Test form signed by Mr. Booth states that Mr. Gardner had 40 hours of "solo" time. Transport Canada's position is that the term solo for a student pilot permit holder means sole occupant of the aircraft. Mr. Clark submits that, as there was no definition of solo in the legislation at the time of the occurrence, there is no authority for the proposition that solo means sole occupant of the aircraft.

The statement would be false if it is established that solo meant sole occupant as the student was accompanied by Mr. Booth during the 40 hours stipulated on the recommendation form.

If solo means sole occupant in the aircraft it would then have to be established that Mr. Booth "knowingly" made the false representation.

Thus the issues are twofold, for a student pilot permit holder:

  1. does "solo" mean sole occupant?
  2. if so, did Mr. Booth knowingly make a false representation?

Held

  1. I find that the term "solo" at the time of the allegation meant for a student pilot permit holder, sole occupant of the aircraft.
  2. I find that the Minister has proven that Mr. Booth knowingly made a false representation.

DISCUSSION

On October 30, 2002 when the recommendation for flight test was signed the Canadian Aviation Regulations (CARs) did not define the term "solo". An amendment was issued June 1, 2003 adding the definitions of both dual and solo to section 400.01 of the CARs. Both parties alluded to a definition of solo existing prior to the inception of the CARs in 1996 but did not provide the source.

A review of the legislation in place prior to the CARs (the prior legislation October 1994) shows that the Aeronautics Act of the day authorized the making of regulations and subsection 403(2) of the Air Regulations provided the authority for the issuance of the Personnel Licensing Handbook (PLH) Part IV of that manual under "Standards and Procedures for Flight Training Units" provided the definition. It stated:

"solo flight time" - with respect to flight time necessary to acquire a licence or rating means flight time during which a pilot is the sole flight crew member and, in the case of a student pilot permit holder, is following an authorized practice schedule while being the sole occupant of an aircraft. [emphasis added]

That may be compared to the present version in section 400.01 of the CARs which states:

"solo flight time" means, with respect to flight time necessary to acquire a permit, licence or rating,

(a) [not applicable]

(b) in the case of a student pilot permit holder, the flight time during which the holder is the sole occupant of an aircraft while under the direction and supervision of the holder of an instructor rating for the appropriate category of aircraft [emphasis added]

The definitions are the same in regards to the requirement for a student pilot permit holder to be the sole occupant of the aircraft. In the former section the student was to be following an authorized practice schedule whereas in the later he is under the direction and supervision of an instructor. The words differ, but I find that the concept is the same.

Mr. Clark submits that in the interval between the operation of these definitions there existed a lacuna and thus the meaning of solo was not established. He also argues that the Pilot Training Record — Helicopter, the document in which student pilots' flight times are to be recorded, contains no ability to record solo pilot time as the columns in which times are recorded are entitled either Dual or Pilot. He posits that there is a concept that could be termed "supervised solo" whereby the student is at the controls but is accompanied in the aircraft by his instructor.

I have come to the conclusion that, for a student pilot permit holder, solo meant sole occupant in the aircraft. I have come to that conclusion based on four separate facets:

  1. the usual and ordinary meaning of the word — dictionary definition,
  2. reasonable inference from reading the Act and regulations,
  3. expert testimony,
  4. the operation of an international treaty.

Plain and ordinary meaning

Mr. Clark points out that as of October 30, 2002 the regulations did not define the word solo. As an aid in statutory construction, when a word is not defined, courts have utilized dictionaries to find the usual and ordinary meaning of an undefined word.[1] The Oxford Concise Dictionary, Seventh Edition, defines solo as "[...] 3. an unaccompanied flight by pilot in aircraft."

Reasonable Inference

From the reading together of salient sections of the Aeronautics Act (the Act) and the regulations, I conclude that the regulations at the time of the occurrence were still to be understood as providing for solo as being sole occupant of an aircraft. The absence of a definition with the inception of the CARs did not have the effect of deleting a known meaning.

Training flight is defined at section 400.01 of the CARs. It addresses two separate types of training flights. Training flight means either a dual instruction flight or a solo practice flight that is conducted under the direction and supervision of a flight instructor. In the normal parlance of aviation, dual would indicate two and solo one, but Mr. Clark resists that notion as neither dual nor solo was then defined.

The definition of solo practice flight is qualified by the words – under the direction and supervision of a flight instructor.

Those words are utilized in the privileges accorded to a student pilot permit holder. That section of the CARs states:

401.19 The holder of a student pilot permit may, for the sole purpose of the holder's flight training or flight test, act as pilot-in-command of any aircraft of the category to which the permit relates, where

(a) the flight is conducted in Canada under day VFR;

(b) in the case of flight training,

(i) it is conducted under the direction and supervision of the holder of a flight instructor rating for that category of aircraft, and

(ii) no passenger is carried on board; and

(c) in the case of a flight test,

(i) it is conducted in accordance with section 401.15, and

(ii) no passenger other than the person referred to in paragraph 401.15(1)(a) is carried on board.

The student can be the pilot-in-command of a flight conducted under the direction and supervision of the instructor as noted at (b)(i). Thus during a solo practice flight the student is the pilot-in-command. That term is defined in the Act to mean having the responsibility and authority for the operation and safety of the aircraft during flight time. The inference is that the student is the sole occupant as he exercises the pilot-in-command authority and no passengers are to be carried. When a student is receiving instruction it is the instructor who exercises pilot-in-command authority as can be seen by the crediting of time provisions.

Mr. Clark brought the Aeronautical Information Publication A.I.P. Canada to our attention. The A.I.P. Canada in the Licensing, Registration and Airworthiness Chapter LRA 3-10 provides the guidance.

3. 7 Crediting of Time

3. 7.1 Operation of Dual Control Aircraft

(a) The pilot-in-command of a flight or any portion of a flight in a dual control aircraft shall be designated prior to takeoff.

(b) There shall be a satisfactory method of intercommunication between pilots in all aircraft under dual control.

(c) Flight time for pilots may be credited either as dual, pilot-in-command (solo) or co-pilot.

(d) Only the pilot designated as pilot-in-command may be credited with pilot-in-command (solo) flight time.

As can be seen flight time may be credited either as dual or pilot-in-command (solo), 3.7.1(c). Co-pilot is not applicable here.

3. 7.2 Inflight Instruction (Dual): Non-licensed Pilots

(a) Holders of pilot licences may give initial (ab initio) flight instruction provided they are in possession of a valid Instructor Rating.

(b) When receiving in-flight instruction from an authorized flying instructor, a student pilot may be credited with dual time only.

(c) An instructor may be credited with pilot-in-command time when giving in-flight instruction to a student pilot.

When receiving in-flight instruction from an authorized instructor, a student pilot may be credited with dual time only, 3.7.2(b). Therefore when he is on a training flight but not receiving in-flight instruction from an authorized instructor, he is pilot-in-command solo per 3.7.1(c) above.

The distinction is clear. Time can be credited either as dual or pilot-in-command solo. Dual is receiving in-flight instruction from an authorized flying instructor. That is the instructor and student are onboard (dual). That is to be distinguished from pilot-in-command of a flight under the direction and supervision of a flight instructor. The in-flight instruction portion is absent which infers that the instructor is also absent from the aircraft, i.e. the student is its sole occupant(solo). It is the distinction between in-flight instruction as compared to under the direction and supervision of an instructor that delineates the difference in the type of training flights.

That too is reflected in the privileges accorded to helicopter flight instructors. Mr. Booth is a Class 1 instructor. Class 1 instructors may exercise the privileges of instructors in classes below them. At section 401.77 of the CARs it provides that:

401.77 The holder of a Class 4 flight instructor rating [...] may

(a) conduct dual flight instruction in respect to the issuance of a pilot permit [...]

(b) authorize a trainee to conduct a solo flight in a helicopter;

It is of interest for comparison purposes that the sections of the predecessor legislation addressing the same subjects, when solo was defined, are the same in substance as those sections in effect at the time of the occurrence.[2]

This case reveals a circumstance which illustrates the impracticality of the interpretation put forward by the Applicant. Mr. Gardner was allowed by the terms of the student pilot permit privilege to be the pilot-in-command of the aircraft and in the original Pilot Training Record listed himself as such. These were his "solo" flights. Mr. Clark has argued that there is no place to record "solo" in the Pilot Training Record, but when one reads across the page the entries for the exercises are entered as s–solo or d–dual and they may be read in conjunction with the times column. Mr. Gardner did enter an "s" in the exercises for which he claimed pilot-in-command time.

Although Mr. Gardner was ostensibly the pilot-in-command, Mr. Booth was also on board, but in what capacity? The pilot-in-command of an aircraft as defined in the Act has the responsibility and authority for the operation and safety of the aircraft during flight time. But Mr. Booth testified that on numerous occasions he took over from the student during "solo" flight which would indicate that he viewed himself as the pilot-in-command.

Both Mr. Gardner and Mr. Booth stated that he never took over during the 40 hours of "solo" that are in question. Nothing turns on that as it was his presence that negated the "solo" quality of the flight not whether or not he took over control.

Expert Testimony

Inspector Lindsay Cadenhead was accepted as an expert witness. He has extensive experience and credentials in the flight training field. Presently he is the Superintendent for General Aviation for Transport Canada, a function formerly called aviation licensing.

Inspector Cadenhead gave testimony and was cross-examined on numerous facets of the case before me. I need not refer to all of them for this decision. He conceded that at the occurrence no definition of solo existed in the legislation but it was his opinion that the term solo meant flight training time acquired as the sole occupant of the aircraft.

For pilot training a student could not exercise pilot-in-command privileges unless he were the sole occupant of the aircraft as that was stipulated in the student pilot privileges.

I accept his testimony on those points as I find that they corroborate what I find to be a reasonable inference in the reading of the CARs.

Inspector Cadenhead provided expert testimony on the purpose of solo flight i.e. sole occupant of the aircraft. It was to develop the pilot's experience, confidence, and to develop decision making capability when facing them in an environment on his own. That testimony provides the "why" of the interpretation of sole occupancy. One can see that the rationale would be defeated when accompanied by an instructor. The point is amply illustrated in this case where Mr. Booth said that he took over from his student quite often during the course of his student's "solo".

International Civil Aviation Organization (ICAO)

Canada is a contracting state to the Convention on International Civil Aviation (the Chicago Convention). Under the convention the ICAO adopts international standards and recommended practices dealing with aviation matters and signatory countries are bound by its standards unless a difference is filed (Article 37,38).

Inspector Cadenhead was accepted as an expert witness and the scope of his expertise extended to Transport Canada's relation to the ICAO. He stated that Transport Canada was compelled to subscribe to the standards in terms of minimum standards for the purpose of pilot licensing. In absence of a definition in the CARs he would look to ICAO for the definition. An excerpt from the ICAO Standards, Definitions provides at section 1.1: "Solo flight time. Flight time during which a student pilot is the sole occupant of an aircraft."

He also stated that he was not aware of Transport (i.e. Canada) having filed any difference to that definition.

Held

For the reasons stated above I find that solo meant, for a student pilot permit holder, sole occupant of the aircraft.

Issue Two

Did Mr. Booth knowingly make a false representation on the Recommendation for Flight Test Form?

Most offences pursuant to the Act and regulations are offences of strict liability. That is the Minister has no need to prove the existence of a state of mind of an alleged offender. The doing of the prohibited act imports the offence.

However section 7.3 is an exception to that general rule. Each prohibited act in section 7.3 imports some state of mind. In this instance it is "knowingly" making a false representation for the purpose of obtaining a document.

It is incumbent on the Minister to prove that Mr. Booth knowingly made the representation.

Held

I find that the Minister proved Mr. Booth knowingly made a false representation.

Reasons

Mr. Booth specifically denies that he made a false statement. He says that he would not knowingly have done so had he known the exact requirements that Transport Canada was looking for.

Based on the analysis above and the testimony of Inspector Cadenhead coupled with the Personnel Licensing and Training Standards, I find his assertions not to be credible. Mr. Booth's own testimony is at times evasive and contradictory such that I have little faith in what he has said.

Mr. Booth is a Class 1 flight instructor. That is the highest category instructor rating. He is experienced, having attained that status in November of 2000. Inspector Cadenhead has testified that to achieve that class of licence one has to complete a course and pass written exams and those exams do deal with Transport Canada's interpretation of solo.

The inspector's testimony is then confirmed by the knowledge component stipulated in the Standards for Flight Instructor Rating – Helicopter, at section 421.77. It states in part:

(2) Knowledge

(a) An applicant shall have completed a minimum of 25 hours of Instructor Rating ground school instruction which shall include:

[...]

(vii) the use of Transport Canada Helicopter Flight Instructor Guide, Flight Training Manual, Personnel Licensing Handbooks, and the Flight Test Guide, Private and Commercial Pilot Licences - Helicopter Category.

Inspector Cadenhead stated that the Flight Training Manual was the evolution of all the exercises in the syllabus approved by Transport Canada. It is simply not credible that a man of Mr. Booth's experience and status can claim not to know what was expected regarding solo flight given his mandatory exposure to Transport Canada's point of view through the licensing process.

I also give little weight to Mr. Booth's testimony because it was, in part, evasive and contradictory.

In cross-examination he was asked if he knew the purpose of solo flight. He did not manage to state the purpose of solo in his answer. I take it that he did not know or that he was being evasive. I am of the opinion that it is the latter as I would expect a Class 1 instructor to be able to articulate the purpose of solo flight. As well, if the purpose was stated in terms close to that expressed by Mr. Cadenhead it would go contrary to his actions in conducting "supervised solo". His answer was similarly evasive when asked if he, as a Class 1 flight instructor, had a duty to be fully conversant with the CARs. Rather than answer directly, he posed questions back to the case presenting officer.

"Supervised solo" is a term used by Mr. Clark in his questioning of witnesses. Mr. Booth agreed that he had been made aware of the concept from a Transport Canada examiner while he was on the east coast. He was told that you fly with students, dual flight time but log it as solo. It was known for instructors to log solo time when they actually go out and fly dual with students.

Mr. Booth testified that he thought that was standard practice. However, he goes on to say that, Mr. Gardner aside, he had done supervised solo with only one other student for .5 flight time. He was not aware of it happening at National Helicopters, agreeing that it was an isolated incident. I find it contradictory to profess that you believe something to be standard practice while stating that you only observed it as an isolated incident.

Inspector Beck, an experienced flight test examiner, said that he had never heard of it before which also makes me question the reasonableness of viewing it as standard practice.

When asked if he had believed that he was acting within the regulatory structure, Mr. Booth said yes while qualifying the statement by saying he was only doing what he was told by the company.

I believe that that is the heart of the matter. Mr. Booth was following company policy rather than the regulations. When Mr. Gardner was asked if he had an explanation as to why he was accompanied by an instructor on his solo flights he said it was company policy on the 206.

This case is not an interpretation problem but a company policy problem driven by insurance issues. That is brought to light by Mr. Munro's testimony. He is a principal of National Helicopters and is its operations manager. He quite candidly stated that the insurance company had cautioned him about the risk of having some of the flight training students flying the turbine equipment (the 206) on their own. He made a decision that Mr. Gardner would be monitored by an instructor at all times when on turbine equipment to mitigate the risk.

He says that he thought that would be an acceptable procedure as he had consulted with some of the instructors, and he had witnessed Transport Canada inspectors flying with students and allowing the student to log the time as solo. But the student logging pilot-in-command while on a flight test is explicitly provided for in the student pilot privileges, paragraph 401.19(c) of the CARs, as noted earlier. I find it surprising that the personnel of a company that provides flight training would not also be aware of a procedure explicitly provided for by the student pilot privilege regulation.

DETERMINATION

I find that for a student pilot permit holder, solo means sole occupant of the aircraft. Mr. Booth's experience and status as a Class 1 instructor would have made him aware that such an interpretation was held by Transport Canada. Therefore, when he signed the Recommendation for Flight Test form attesting to the fact that Mr. Gardner had accumulated 40 hours of solo flight time he was knowingly making a false representation for the purpose of obtaining a Canadian aviation document.

Sanction

Mr. Clark has argued that the sanction should not stand. The penalty outweighs the magnitude of the offence in his opinion. Further he asserts that the company, National Helicopters, has already suffered as they paid the additional training costs to give Mr. Gardner his 40 hours of solo.

As National Helicopters is not a party before me, I cannot take into consideration their supposed penalization. But Mr. Booth knowingly made a false representation which is a serious matter worthy of a 30-day suspension. I uphold the sanction.

Allister Ogilvie
Vice-Chairperson
Transportation Appeal Tribunal of Canada


[1] R. Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (Toronto and Vancouver: Butterworths, 1994) c. 1 at 11-13.

[2] See Personnel Licensing Handbook (PLH) Vol 1, Part I, paragraphs 6(a), (b) and Air Navigation Order (ANO) IV, No. 2/CRC c.-54, section 11.