Decisions

TATC File No. O-3073-27
MoT File No. 5802-811375 (PAR)

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Nicholas Tyler Trinacty, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 3(1), 6.71(1)(b)
Canadian Aviation Regulations, SOR/96-433, s. 401.06(b)(iv)

Commercial Pilot Licence


Review Determination
William H. Fellows


Decision: May 12, 2005

The Minister's refusal to issue Mr. Trinacty a commercial pilot licence is upheld in accordance with paragraph 6.71(1)(b) of the Aeronautics Act. The Minister has proven that Nicholas Tyler Trinacty failed to meet pilot-in-command experience requirements as required by subparagraph 401.06(b)(iv) of the Canadian Aviation Regulations.

A review hearing on these matters was held Wednesday, March 16, 2005 at 9:00 hours, at the Village Inn, in Sarnia, Ontario.

BACKGROUND

There are two notices of refusal to issue. They both provide that, pursuant to paragraph 6.71(1)(b) of the Aeronautics Act, the Minister twice refused to issue Mr. Trinacty a commercial pilot licence – aeroplane, based on Mr. Trinacty's two commercial pilot licence applications, first application dated August 17, 2004, and a second application dated November 15, 2004.

These notices of refusal to issue are summarized as follows:

In its first refusal to issue to Mr. Trinacty dated October 27, 2004 (TATC File No. O-3073-27), the Minister stated in part:

[...]
According to your personal logbook, you conducted a solo flight in aircraft C-GUJR for the issuance of a seaplane rating – aeroplane on August 11, 2003. The application for endorsement of a rating reflects that temporary privileges were awarded to you on that date.
[...]

Referring to flights that took place on August 11, 18, 19, 20, 23, 24, and 25, 2003:

[...]
Subsequent flights in aircraft C-GUJR while on floats and accompanied by instructor Paul Tymstra did not meet the regulatory requirements for the logging of pilot-in command. Pilot-in-command is defined as "the pilot having the responsibility and authority for the operation and safety of the aircraft during flight time" (Section 3.(1) of the Aeronautics Act refers). Therefore, ... you were not lawfully pilot-in-command of aircraft C-GUJR.
[...]

Total hours recorded in Mr. Tymstra's personal logbook for these flights is 26.5 hours.

In its second refusal to issue to Mr. Trinacty dated January 5, 2005 (TATC File No. O-3094-27), the Minister states, in part:

During the period of August 13, 2003 - August 18, 2003, you logged a number of flights in aircraft C-FSMS. According to your revised personal logbook, these flights have been amended to indicate pilot-in-command flight time.

Pilot-in-command is defined as "the pilot having the responsibility and authority for the operation and safety of the aircraft during flight time" (Section 3.(1) of the Aeronautics Act refers). According to records, you were not the pilot-in-command and do not meet the regulatory requirements for the logging of pilot-in-command. Therefore, the flights of August 13, 2003..., August 14, 2003..., August 16, 2003..., August 17, 2003... and August 18, 2003..., you were not lawfully pilot-in-command of aircraft C-FSMS.

Total hours recorded in Mr. Trinacty's personal logbook for these flights is 9.8 hours.

This is a compliance issue, in that the Minister refused to issue a commercial pilot licence – aeroplane in both instances because Mr. Trinacty did not meet pilot-in-command experience requirements as required by subparagraph 401.06(b)(iv) of the Canadian Aviation Regulations (CARs).

In both instances, it was determined by the Minister that Mr. Trinacty's personal logbook contained a number of inaccuracies, and because of that, Mr. Trinacty was not lawfully pilot-in-command during the specified flights listed in both of the Minister's refusals, and therefore did not meet experience requirements of subsection 421.30(4) of the CARs.

THE LAW

Subsection 3.(1) of the Aeronautics Act, defines "pilot-in-command" as follows:

"pilot-in-command" means, in relation to an aircraft, the pilot having responsibility and authority or the operation and safety of the aircraft during flight time;

Paragraph 6.71(1)(b) of the Aeronautics Act states:

The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

[...]
(b) the applicant or any aircraft, aerodrome, airport or other facility in respect of which the application is made does not meet the qualifications or fulfil the conditions necessary for the issuance or amendment of the document; or
[...]

Subparagraph 401.06(b)(iv) of the CARs states:

401. 06 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner specified in the personnel licensing standards, issue a flight crew permit or licence to the applicant or endorse the applicant's flight crew permit or licence with a rating if the applicant provides documentation to the Minister that establishes
[...]
(b) that the applicant meets the applicable requirements set out in the personnel licensing standards in respect of

[...]
(iv) experience, and
[...]

Standard 421.30(4)(a) of the CARs states:

[...]
(4) Experience

(a) An applicant shall have completed, subject to clause (b)(i)(C), a minimum of 200 hours flight time in aeroplanes, of which a minimum of 100 hours shall be pilot-in-command time including 20 hours cross-country pilot-in-command flight time; and

The Aeronautical Information Publication (AIP), LRA 3-10, section 3.7 (Crediting of Time) states, in part:

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.

[...]

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

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

[...]

PRELIMINARY ISSUE

The Minister's representative, Mr. Rick Schobesberger, asked that one witness be qualified as an expert. Mr. Duncan Chalmers, a Civil Aviation Safety Inspector with Transport Canada, Ontario Region, presented expert witness qualifications summarized as follows: A.T.P. Licence, with Transport Canada since 1995, over 7,000 hours flight time, Class 1 Instructor, extensive C.F.I. experience at a variety of flight schools, D.F.E. for Transport Canada with 600 flight test/all ratings, and is currently responsible for auditing 10 flight training units in Ontario.

The applicant's agent, Mr. Dennis Ryan, did not dispute Mr. Chalmers' qualifications. I allowed Mr. Chalmers' qualifications as an expert witness.

THE MINISTER'S CASE

Mr. Schobesberger called his sole witness, Duncan Chalmers, and presented a document he intended to show as evidence. I allowed this document as Exhibit M-1.

It is a spiral bound folder containing 16 index-tabbed sections, numbered 1 through 16. Each of the tabbed and numbered sections contain documents which Mr. Schobesberger asked Duncan Chalmers to explain.

In his testimony, Mr. Chalmers addressed in detail certain tabbed sections in Exhibit M-1, as follows:

Tab 1     Inspection report, Huron Flight Centre, shows examples of trainees logging pilot-in-command (PIC) flight times prior to issuance of a seaplane rating.

Tab 2     Huron Flight Centre Red Lake sign-out sheets show Nicholas Trinacty as P.I.C. in aircraft C-GUJR on flights of August 11, 18, 19, 20, 23, 24 and 25, 2003, and shows Paul Tymstra as student/passenger.

Tab 3     Duncan Chalmers' notes re: telephone discussion with Paul Tymstra on December 9, 2003, where Tymstra is alleged to have stated that students "never go solo", and "almost impossible not to do some instruction".

Tab 6     Copy of Paul Tymstra's logbook where record of flights on August 18, 19, 20, 23, 24 and 25, 2003 shows "Self" as P.I.C., and student/passenger as "Trinacty".

Tab 7     Huron Flight Centre insurance policy, where on endorsement number 3 it stipulates, in part, "With respect to Cessna 172 on floats: ...If a student pilot ... and is directly supervised by an instructor pilot in his use of the aircraft".

Tab 9     Nicholas Trinacty's record of training time, showing "Self" as P.I.C. of aircraft C-GUJR during flights on August 11, 18, 20, 23, 24 and 25, 2003. The record of training also shows "Self" as P.I.C. of aircraft C-GSMS during flights on August 13, 14, 16, 17 and 18, 2003. (Note transposition of G for F.)

Tab 11     Nicholas Trinacty's original personal logbook shows "Self" as P.I.C. of aircraft C-GUJR, and "Tymstra" as copilot/student/passenger, during flights on August 11, 18, 19, 20, 23, 24 and 25, 2003. Also shows "Self" as co-pilot/student/passenger of aircraft C-FSMS during flights on August 13, 14, 16, 17 and 18, 2003. Two names appear as P.I.C. of C-FSMS on these dates, "Robertson" on August 13, 14, 17 and 18, 2003, and "Cowden" on August 16, 2003.

Tab 14     Nicholas Trinacty's revised personal logbook shows "Tymstra" as P.I.C. of aircraft C-GUJR and "Self" as co-pilot during flights on August 11, 18, 19, 20, 23, 24 and 25, 2003. It also shows "Self" as P.I.C. of aircraft "SMS" during flights on August 13, 14, 16, 17 and 18, 2003. The two names, Robertson and Cowden are shown as "co-pilot" during these flights.

Tab 15     Aircraft journey log for C-FSMS shows "Robertson" as Captain for specific flights of C-FSMS on August 13, 14, 17 and 18, and a corresponding statement which reads "Training for Nick Trinacty" with each flight. It also shows "Cowden" as Captain for specific flights on August 16, 2003, and a corresponding statement which reads "N. Trinacty training" with each flight.

CROSS-EXAMINATION

Mr. Chalmers agreed that flight time logged by Mr. Trinacty in C-GUJR would have added enough to his earlier P.I.C. time to qualify for application for a commercial pilot licence, had Transport Canada allowed it.

Mr. Chalmers confirmed Mr. Trinacty had indeed revised his personal logbook (Tab 14) to correspond with his Training Record (Tab 9), as requested by Transport Canada in the first refusal of his commercial pilot licence application.

Mr. Ryan questioned Mr. Chalmers about any known complaints re: Huron Flight Centre prior to his audit in 2003. Mr. Chalmers replied there were none that he knew of.

REDIRECT

Mr. Schobesberger clarified a question raised in cross-examination re: solo flights by Mr. Ryan and concerning Tab 4, Chalmer's letter to Ryan December 30, 2004. This letter, among other issues, states:

There is no such thing as "supervised solo". Consequently, all solo flight times acquired with an instructor onboard, will not be eligible for the acquisition of any licence or rating.

As a result, the administrative procedures that have been used for issuance of temporary privileges (seaplane) must be amended, as well as the logging of flight times to meet the requirements of the Aeronautics Act and Canadian Aviation Regulations.

THE DOCUMENT HOLDER'S CASE

Mr. Ryan called his first witness, Mr. Paul Tymstra, an instructor at Red Lake, and asked him to outline his actions and experiences in this matter.

Before testimony by Mr. Tymstra, Mr. Ryan asked to submit three documents, and suggested these were evidence supportive of Mr. Tymstra's testimony. I allowed these as Exhibits D-1, D-2 and D-5, as follows:

Exhibit D-1     Photocopy of Transport Canada's approval of Nicholas Trinacty's application for seaplane rating.
Date of application August 11, 2003.
Date of Certification by Authorized Person – S. Finn – August 11, 2003.
Received and date stamped by Transport Canada – October 14, 2003.
Approved by Transport Canada – October 24, 2003.

Exhibit D-2     Insurance policy amendment dated March 14, 2005.
This relieves Huron Flight Centre of requirement for instructor to be a passenger during student
solo flights.

Exhibit D-5     Copy of Nicholas Trinacty's private pilot licence.
Seaplane rating endorsed by Shawn Finn CA392361, dated August 20, 2003.

Mr. Tymstra reviewed training of Mr. Trinacty on C-GUJR, culminating in his solo flight and float endorsement on August 11, 2003.

He stated that on Tab 9, Mr. Trinacty's Training Records, he had substituted the words "dual/solo" for the column marked "night" on the form, and Mr. Trinacty's flights in C-GUJR from August 11, 2003 onward were entered as "solo".

Mr. Tymstra confirmed that he had gone along on flights in C-GUJR as a passenger strictly because of insurance requirements. Mr. Tymstra confirmed that his personal log (Tab 6) showed himself as P.I.C. for the flights in question in C-GUJR; but that he had written a letter to Transport Canada on April 13, 2004 (Tab 5) clarifying who was P.I.C. of C-GUJR during the flights in question. He stated the Red Lake sign-out sheets (Tab 2) showing himself as passenger were a correct record of what occurred during C-GUJR flights in question. Mr. Tymstra stated he had logged P.I.C. time in his personal log for those flights in error, and that he had done so to add experience to his record.

CROSS-EXAMINATION

Mr. Schobesberger noted a December 9, 2003 telephone conversation Mr. Tymstra had with Mr. Chalmers (Tab 3), with specific reference to Mr. Tymstra's statement he always accompanied students on "solo" flights.

Mr. Tymstra described his routine when he accompanied pilots such as Mr. Trinacty on flights. He stated it was his practice to ride along as passenger, answer questions, and would, for example, confirm a clear view to the right when asked. Mr. Tymstra confirmed he was a passenger under these circumstances only because of insurance requirements. Mr. Tymstra stated he believed the insurance requirements mandated Huron Flight Centre policy for a second pilot to be on board.

Mr. Tymstra stated he would take over as P.I.C. if a hazard occurred, advise Mr. Trinacty not to land on a lake, or help Mr. Trinacty if needed. Mr. Tymstra qualified these remarks, stating he would take action only in a life-threatening situation.

When asked if Nicholas Trinacty was P.I.C. at all times during all C-GUJR flights in question, Mr. Tymstra repeated that was correct, that he would assume P.I.C. only in a grave emergency, and that insurance requirements were the reasons he was there. When Mr. Tymstra was asked if he was paid to be a passenger in that context, he responded that he was paid a salary while on duty at the Red Lake Flight Training Unit.

REDIRECT

Mr. Tymstra confirmed that he was aware of the insurance stipulation for aircraft C-GUJR.

Mr. Tymstra responded "yes" when asked if he would assume P.I.C. of C-GUJR if he felt his or Nicholas Trinacty's life was in danger.

DIRECT – DOCUMENT HOLDER

Mr. Ryan called Nicholas Trinacty as his second witness. During testimony, Mr. Ryan asked to submit two documents, and suggested these were evidence supportive of Mr. Trinacty's testimony. Contents of these documents do not speak directly to the matter before the Tribunal, and are therefore not direct evidence; however, I allowed them as Exhibits D-3 and D-4, as follows:

Exhibit D-3     Photocopy of document, undated, stating Air Canada Jazz policy for pilots in type training, i.e. consolidation period, logging P.I.C. time; and supportive opinion for more experienced pilots or instructors toaccompany less experienced pilots who log P.I.C. time.

Exhibit D-4     Photocopy of supportive comments by Mr. Jeff Karelson dated March 11, 2005, concerning Nicholas Trinacty v. Minister of Transport.

Mr. Trinacty stated "no" when asked if Mr. Tymstra was on board during his solo flight in

C-GUJR which concluded his float training. Mr. Trinacty confirmed he received a facsimile from Shawn Finn, on August 11, 2003, which approved his float endorsement on C-GUJR.

Mr. Trinacty understood what a P.I.C. was when questioned about his awareness of Huron Flight Centre policy requiring instructors as passengers. Mr. Trinacty also understood the policy and reasons for it. Mr. Trinacty was not aware that Mr. Tymstra was logging P.I.C. time while as a passenger with him. He understood who was P.I.C. on flights in C-GUJR with Mr. Tymstra as a passenger.

Mr. Trinacty responded to the first refusal of his commercial pilot licence application by recopying his original into an entirely new logbook; correcting only entries Transport Canada had requested be changed, specifically those discrepancies which Mr. Chalmers had identified in his first letter of refusal to him.

Mr. Trinacty assumed that if he corrected his logbook for C-GUJR flights identified by Mr. Chalmers in his first letter of refusal, those changes would be acceptable to Transport Canada for his second commercial pilot licence application. He had no intentions to cheat in making any of the questioned logbook entries.

CROSS-EXAMINATION

Mr. Trinacty stated Mr. Tymstra rode with him in C-GUJR "for insurance purposes, probably because an 18-year old kid was at the controls of a hundred thousand dollar aircraft".

Mr. Trinacty stated, "I was P.I.C. of C-GUJR", and that Mr. Tymstra was with him in C-GUJR to "see I didn't do anything stupid".

Mr. Trinacty stated he "didn't know" when asked why an instructor went along in float plane flights because there might be greater risk with that type of aircraft.

Mr. Trinacty stated he "didn't make those entries, just signed them", when asked why he logged flights in C-FSMS as P.I.C. in his Pilot Training Record (Tab 9).

When asked who was P.I.C. in C-FSMS when instructor Robertson was on board with him, Mr. Trinacty stated "I thought I was, but can't say for sure".

Mr. Trinacty stated that his original personal logbook (Tab 11) showed him as student/passenger in C-FSMS, and his revised personal logbook (Tab 14) showed him as P.I.C. in C-FSMS for the same flights.

Mr. Trinacty stated "there were questions, but I thought that was CRM (Cockpit Resource Management)", when asked if there were any instructions given when Mr. Tymstra was with him in C-GUJR.

CLOSING ARGUMENTS

Mr. Schobesberger presented one item of jurisprudence, Nicholas Anthony Booth v. Minister of Transport[1], which deals with an instructor accompanying a student helicopter pilot where the student logged P.I.C. time. This case is somewhat different than the matter before me, in that logging P.I.C. time as a student helicopter pilot to qualify for a licence versus logging time as a licenced pilot to accumulate flight time, are not quite the same. It does, however, have appropriate ruling concerning what conditions must determine how "solo" versus "dual" flight training should be logged in pilot training.

Mr. Ryan, in his presentation, stated this matter is one of honest error, not intentional deception. He also pointed out that CARs contain no specifics regarding "make up time" flights where licenced pilots are accompanied by instructors as passengers, and cannot log P.I.C. time. Nicholas Trinacty is a licenced pilot, and simply because an instructor was with him as a passenger, should not restrict him from logging P.I.C. time accordingly.

DISCUSSION

This hearing concerns a compliance matter arising from Transport Canada's allegations that the applicant logged pilot-in-command time when it was not clear, during flights of aircraft C-GUJR and C-FSMS, who was actually pilot-in-command, Nicholas Trinacty or flight instructors in the aircraft with him.

The key issue in this matter, simply put, is to answer one question, "Who was pilot-in-command of these aircraft?" In reviewing the evidence and testimony in this matter, I find myself confronted with a number of additional questions arising from that one question. There is significant contradictory evidence arising from documents contained in Exhibit M-1:

  • Why were C-GUJR flights in Trinacty's original logbook (Tab 11) recorded as P.I.C., and subsequently changed to show himself as co-pilot in a revised logbook. This goes to admission by Mr. Trinacty that Transport Canada was correct in its reasons for refusal of his first commercial pilot licence application.
  • Why, in August 2003, do Red Lake sign-out sheets (Tab 2) show flights of C-GUJR on August 11, 18, 19, 20, 23, 24 and 25, with Trinacty as P.I.C. and Tymstra as co-pilot, when Trinacty's revised logbook (Tab 14) shows the opposite. I find this casts doubt on either party's statement about who was P.I.C. during those flights.
  • Why, in his original personal logbook (Tab 11) did Trinacty log "self" as copilot/student/ passenger of C-FSMS on August 13, 14, 16, 17 and 18, 2003, with flight instructors Robertson and Cowden as P.I.C. Trinacty's revised personal logbook (Tab 14) then shows the opposite. This revision was not asked for in Transport Canada's first refusal, and was done prior to the second refusal. This action leads me to believe Mr. Trinacty made the change knowing his original entries as co-pilot/student/passenger during these flights would be questioned by Transport Canada in a second commercial pilot licence application.
  • Why did Paul Tymstra show himself as P.I.C. in his own logbook (Tab 6) during flights with Trinacty in C-GUJR in August 2003, yet both Trinacty's original logbook and Red Lake sign-out sheets show Trinacty as P.I.C. Although this was professed to be "an error" in testimony, I find Mr. Tymstra's actions point directly to misunderstanding as to who actually was P.I.C. in that aircraft.
  • Why do journey log entries for C-FSMS (Tab 15) show August 2003 flights with Mr. Trinacty as "N. Trinacty Training" and Red Lake instructors as "Captain" for the flights. In my opinion, this is a clear indication that a Red Lake instructor was P.I.C. during these flights.
  • Furthermore, in testimony, Messrs. Tymstra and Trinacty each provided vague and conflicting statements about who was P.I.C. during the flights in question. I am of the opinion these responses indicate there was no specific understanding by either party.
  • Mr. Tymstra stated in his responses that he was a passenger at all times, but did provide some assistance and advice, and would have taken over as P.I.C. in event of an emergency. In my opinion, he was more an instructor than passenger in this context.
  • Mr. Trinacty stated, "I thought I was P.I.C. but couldn't say for sure". When asked about entries in his Pilot Training Record showing him as P.I.C.: "didn't make those entries, just signed them". These statements are clear evidence that Mr. Trinacty did not know who was P.I.C. during these flights.

In finding answers to questions arising from the key issue in this review, i.e. "Who was P.I.C.?", a significant number of inconsistencies and contradictions are present in the referenced documents contained in Exhibit M-1 and in testimony. Note that each of the referenced documents is a certified true copy of original, hence I have assigned considerable weight to the contents of these documents as evidence in this matter. I am convinced neither party had a clear understanding of whose role was what during these flights. My findings of misunderstanding, inconsistency, and contradiction are further validated in that the applicant did not dispute contents of any referenced documents presented by the Minister of Transport.

Testimony by witnesses for the applicant also provides weight to this Tribunal's assessment. In testimony, Mr. Tymstra and Mr. Trinacty each spoke to conflicting opinions and different understanding of which role they possessed during flights in question.

It is clear the applicant was at the controls of C-GUJR and C-FSMS during the flights in question in this matter, but was not identified as P.I.C., nor did he understand who was P.I.C. It is clear the applicant is a licenced pilot, accumulating flight time towards meeting P.I.C. requirements for a commercial pilot licence. It is also clear that the applicant had persons on board accompanying him during the flights. While it is acceptable for a licenced pilot to carry passengers and claim P.I.C. time leading to a commercial pilot licence, in this case the passengers were flight instructors with whom the pilot had just completed type endorsement training on aircraft being flown.

Relationships between instructors and students, plus dependencies by students upon their instructors, do not change quickly. An actively involved instructor cannot become a passive passenger in a matter of hours. In this matter, it is apparent neither party knew who was P.I.C., and neither party can state definitively that he was P.I.C. When an instructor becomes a passenger in such circumstances, it is of utmost importance that a key issue be very clearly resolved. There must not be any misunderstanding or confusion as to what their respective roles are when the instructor becomes a passenger, i.e. who is pilot-in-command. In my opinion, this was not understood nor agreed to by either party.

In the matter before me, both in evidence and in testimony, I find that Mr. Trinacty's role was not made clear, giving rise to confusion and contradiction with information logged by Mr. Trinacty in his personal logbook, and in documents held by Huron Flight Centre. Transport Canada had no choice in the matter. The key question of "who was P.I.C." was not clearly and consistently articulated in all documents they examined when they concluded Mr. Trinacty was not pilot-in-command in the aircraft in question.

I further believe this matter developed as a consequence of the Huron Flight Centre policy at the time, where instructors were required to accompany flights of float equipped aircraft. This policy was confirmed in evidence and testimony by the parties. I am obliged to express my concern that Huron Flight Centre personnel would not have been more rigorous in clarifying implications of their policy with those using these aircraft for accumulating P.I.C. time.

It is unfortunate that Mr. Trinacty's role during these flights was not defined. Nevertheless, as the holder of a pilot licence, Mr. Trinacty is solely responsible for his actions in respect to use of that licence. Transport Canada cannot overlook failure to abide by that responsibility if and when the holder of a pilot licence does not comply with regulatory requirements.

DETERMINATION

I find the Minister's refusal to issue Mr. Trinacty a commercial pilot licence on October 27, 2004 and January 5, 2005 is upheld in accordance with paragraph 6.71(1)(b) of the Aeronautics Act. The Minister has proven that Nicholas Tyler Trinacty failed to meet pilot-in-command experience requirements as required by subparagraph 401.06(b)(iv) of the Canadian Aviation Regulations.

May 12, 2005

William H. Fellows
Member
Transportation Appeal Tribunal of Canada


[1] Review Determination, [2003], O-2807-02.


Appeal decision
Faye H. Smith, Frank Morgan, Hebb C. Russell


Decision: February 23, 2006

We refer the matter back to the Minister for reconsideration of its Notice of Refusal to issue dated October 27, 2004.

The appeal hearing in the above matters was heard on October 19, 2005 at the premises of Victory Verbatim, Ernst & Young Tower, 222 Bay Street, in Toronto.

BACKGROUND

The Minister of Transport decided, pursuant to paragraph 6.71(b) of the Aeronautics Act, to refuse to issue a Commercial Pilot Licence - Aeroplane to the appellant Nicholas Tyler Trinacty on two occasions, evidenced by Notices of Refusal to Issue dated October 27, 2004 and January 5, 2005. The Minister's reasons for refusal stated that Mr. Trinacty did not meet the pilot-in-command and instrument experience requirements as required by subparagraph 401.06(b)(iv) of the Canadian Aviation Regulations (hereinafter the CARs) as Mr. Trinacty's personal logbook contained errors resulting in the allegation that Mr. Trinacty did not meet the required number of hours of flight.

Specifically, the Notice of October 27, 2004 states as follows:

According to your personal logbook, you conducted a solo flight in aircraft C-GUJR for the issuance of a seaplane rating - aeroplane on August 11, 2003. The application for endorsement of a rating reflects that temporary privileges were awarded to you on that date.

Subsequent flights in aircraft C-GUJR while on floats and accompanied by instructor Paul Tymstra did not meet the regulatory requirements for the logging of pilot-in-command. Pilot-in-command is defined as "the pilot having the responsibility and authority for the operation and safety of the aircraft during flight time" (Section 3.(1) of the Aeronautics Act refers). Therefore, the flights of August 11, 2003 (2 flights totalling 2.7 hrs), August 18, 2003 (1 flight of 1.8 hrs), August 19, 2003 (1 flight of 4.1 hrs), August 20, 2003 (1 flight of 2.6 hrs), August 23, 2003 (1 flight of 2.3 hrs), August 24, 2003 (3 flights totalling 5.3 hrs) and August 25, 2003 (3 flights totalling 7.8 hrs) you were not lawfully pilot-in-command of aircraft C-GUJR. You are required to correct your personal logbook accordingly. Once the experience requirements of Subsection 421.30(4) of the CARs have been met, you may re-submit your personal logbook and application for processing.

Consequently, the Minister asserted that a number of the flights entered as meeting the requirements for the licence failed to do so as Mr. Trinacty was not the pilot-in-command of aircraft C-GUJR during those 12 flights and hence he was not "the pilot having the responsibility and authority for the operation and safety of the aircraft during flight time" as required by sub-section 3.(1) of the Aeronautics Act.

The Notice dated January 5, 2005 states:

During the period of August 13, 2003 - August 18, 2003, you logged a number of flights in aircraft C-FSMS. According to your revised personal logbook, these flights have been amended to indicate pilot-in-command flight time.

Pilot-in-command is defined as "the pilot having the responsibility and authority for the operation and safety of the aircraft during flight time." (Section 3.(1) of the Aeronautics Act refers.) According to records, you were not the pilot-in-command and do not meet the regulatory requirements for the logging of pilot-in-command. Therefore, the flights of August 13, 2003 (1 flight of .3 hrs), August 14, 2003 (3 flights totalling 2.8 hrs), August 16, 2003 (4 flights totalling 2.8 hrs), August 17, 2003 (2 flights totalling 2.8 hrs), and August 18, 2003 (2 flights totalling 1.1 hrs) you were not lawfully pilot-in-command of aircraft C-FSMS. You are required to correct your personal logbook accordingly. Once the experience requirements of Subsection 421.30(4) of the CARs have been met, you may re-submit your personal logbook and application for processing.

Additionally, the Minister asserted that the 12 flights cited as meeting the requirements for the licence failed to do so as Mr. Trinacty was not the pilot in command of aircraft C-FSMS during those 12 flights and hence was not the pilot-in-command as required by the legislation mentioned above. On this basis, the Minister concluded that Mr. Trinacty's personal logbook contained errors and thus Mr. Trinacty did not meet the experience requirements of subsection 421.30(4) of the CARs and consequently was refused issuance on both commercial pilot licence applications.

The Minister states at page two of the Notice of January 5, 2005 as follows:

Furthermore, your Commercial pilot flight test was conducted on December 7, 2003. Subsection 421.30 (5) of the Canadian Aviation Regulations states in part "Within 12 months preceding the date of application for the licence, an applicant shall successfully complete a flight test to the standard...". You will need to successfully complete a Commercial Pilot flight test to meet the skill requirements for the issue of the Commercial Pilot Licence.

The matter was heard before Tribunal Member at review on March 16, 2005. Following the review hearing the Tribunal Member upheld the Minister's refusal to issue a commercial pilot licence to Mr. Trinacty, in accordance with paragraph 6.71(1)(b) of the Aeronautics Act, on the basis that the Minister had proved that Mr. Trinacty had failed to meet the pilot-in-command experience requirements as required by subparagraph 401.06(b)(iv) of the CARs.

GROUNDS FOR APPEAL

Mr. William F. Clark, counsel for the appellant, requested an appeal of the above-referenced determination on the following grounds:

  1. That the Tribunal Member erred as follows:

    a.    by allowing unproven evidence to be put into the Review Record some of which evidence was relied upon by the Tribunal member as the basis for his decision;

    b.    by relying on records altered by the Appellant and others subsequent to the alleged contravention having occurred, which records were only altered due to the request of Transport Canada, which alterations were relied upon by the Tribunal member as an admission by the Appellant of guilt;

    c.     by relying upon extensive evidence created either at the specific request of Transport Canada, or created by the parties in the assumption that altered evidence would satisfy Transport Canada and the Tribunal member applying that altered evidence as prove of guilt and proof of lack of prior determination of the Pilot-in-Command;

    d.     by relying upon internally generated Transport Canada policy documents (Aeronautical Information Publication) which are advisory and not a matter of law and applied that advisory as law by determining that the Pilot-in-Command of a flight must be determined prior to take-off;

    e.     by making a determination of Pilot-in-Command on the flights in question solely on the basis of the altered evidence rather than the verbal evidence of the participants in the flights in question;

    f.     by equating the term "Solo" with the term " Pilot-in-Command" in the Canadian Aviation Regulations.

APPELLANT'S SUBMISSIONS

Counsel for Mr. Trinacty asserted that Transport Canada refused Mr. Trinacty a licence based on 36.3 hours that he flew in aircraft C-GUJR and C-FSMS which was the total time disallowed on his applications. The second denial was based on the same contention that the former instructor was in the cockpit at the time of his logging this 36.3 hours. The Minister's representative has asserted that pilot-in-command time cannot be logged when the instructor is in the cockpit. However, the appellant's counsel submits that Mr. Trinacty can log the hours as pilot-in-command time, but there is a superior duty to determine who is the pilot-in-command. Pursuant to subsection 3(1) of the Aeronautics Act, the pilot-in-command is the pilot having responsibility and authority for the operation and safety of the aircraft during flight time, and there is nothing in the definition regarding the predetermination of who is the pilot-in-command. The AIP says there is, but that document is advisory only. Mr. Trinacty's counsel states that based on the evidence of who flew the aircraft and as was subsequently substantiated, this is a good practice, but it is not the law. He states that there is no denial that Mr. Trinacty flew 36.3 hours, and there is no evidence that Mr. Trinacty did not have operational authority of the aircraft.

The decision of the Review Member states there is confusion with the result that no one was pilot-in-command. The record shows that the other person on board says that it was not him. If we go to the record, the first two decisions are based on Transport Canada policy that no one can log pilot-in-command time: [1]

It is clear the applicant was at the controls of C-GUJR and C-FSMS during the flights in question in this matter, but was not identified as P.I.C., nor did he understand who was P.I.C. It is clear the applicant is a licenced pilot, accumulating flight time towards meeting P.I.C. requirements for a commercial pilot licence. It is also clear that the applicant had persons on board accompanying him during the flights. While it is acceptable for a licenced pilot to carry passengers and claim P.I.C. time leading to a commercial pilot licence, in this case the passengers were flight instructors with whom the pilot had just completed type endorsement training on aircraft being flown.

Relationships between instructors and students, plus dependencies by students upon their instructors, do not change quickly. An actively involved instructor cannot become a passive passenger in a matter of hours. In this matter, it is apparent neither party knew who was P.I.C., and neither party can state definitively that he was P.I.C. When an instructor becomes a passenger in such circumstances, it is of utmost importance that a key issue be very clearly resolved. There must not be any misunderstanding or confusion as to what their respective roles are when the instructor becomes a passenger, i.e. who is pilot-in-command. In my opinion, this was not understood nor agreed to by either party.

In the matter before me, both in evidence and in testimony, I find that Mr. Trinacty's role was not made clear, giving rise to confusion and contradiction with information logged by Mr. Trinacty in his personal logbook, and in documents held by Huron Flight Centre. Transport Canada had no choice in the matter. The key question of "who was P.I.C." was not clearly and consistently articulated in all documents they examined when they concluded Mr. Trinacty was not pilot-in-command in the aircraft in question.

I further believe this matter developed as a consequence of the Huron Flight Centre policy at the time, where instructors were required to accompany flights of float equipped aircraft. This policy was confirmed in evidence and testimony by the parties.

Mr. Clark for the appellant is stating that the Tribunal Member is setting a different standard. The date of August 11, 2003 is pivotal as that is the date that the student started as pilot-in-command. Mr. Trinacty has a private licence, he is concluding his float endorsement and they do a ground briefing and he goes out at 17:00 hours. From 11:30 to 17:00, the paperwork indicated his flight as a float endorsed pilot. At 17:00 two qualified pilots go out and one is his former instructor. The only reason for the flight was for him to start as pilot-in-command. Otherwise there would be no reason for that flight or any other of the 36.3 hours.

Mr. Clark states that to say now that they did not know he was pilot-in-command is absurd. The purpose of the flight was that Mr. Trinacty was building time. That is to say that the acknowledgment that he was flying with the school was good for including the time as building time as pilot-in-command. There was no other reason for his being on that flight. The decision says that there was confusion. The Tribunal Member relies on the second pilot log, i.e. the revised pilot log. The Minister and the Tribunal Member relied upon the re-created evidence which the person in authority on behalf of the Minister had asked Mr. Trinacty to change. The student relied on the guidance of Transport Canada and then, they turned on him and used their direction to him as an admission of guilt on his part.

These are the records: Tab 2 being the sign-out sheets starting with August 11, 2003; Tab 9 is the pilot training record, at August 11, 2003; and Tab 11, student pilot logbook re date of August 11, 2003. The decision to not give the licence was made on policy. Mr. Tymstra was logging pilot-in-command time (Tab 6) and he gave evidence under oath at the review hearing that he was double-dipping and he wrote a letter to Transport Canada as set out in Tab 5 as follows:

After the issue of the student's Seaplane privileges and during time building towards the students Commercial Pilot-In-Command time requirements, I would regularly ride along as a passenger during the flight. Prior to those flights and as per AIP LRA 3.7.1 the Pilot-In-Command was established prior to the flight commencing and at no time was any dual flight instruction taking place. Any flight that dual flight instruction took place was logged as "Dual".

Furthermore, on occasion, I failed to complete and forward the appropriate paperwork required to facilitate licencing for the Seaplane rating. I would like to apologize for any shortcomings on my behalf and encourage Transport Canada not to hold the individual student's licencing back but to process them without prejudice.

Mr. Trinacty signed as pilot-in-command in three of the records cited above. His evidence was that he did not look at sign-out sheets but he just signed out. After receiving his seaplane endorsement he was pilot-in-command. At page 11 of the Member's decision, midway down the page, the Member states:

...neither party had a clear understanding of whose role was what during these flights. My findings of misunderstanding, inconsistency, and contradiction are further validated in that the applicant did not dispute contents of any referenced documents presented by the Minister of Transport.

The appellant's counsel states that Mr. Trinacty changed his log to comply with Transport Canada's request. Also at page 11, at the fourth bullet, Mr. Trinacty says that he thought he was pilot-in-command. The Tribunal Member was wrong. Look to the decision at page 9 and to the transcript at page 3 of Mr. Trinacty's evidence at line 18 and following where he answered: "The procedures for that at Huron flight Centre were to sign out sign out sheets and enter into the aircraft logs as me as P.I.C. and whoever I was carrying as passenger, as passenger." Further continuing on, the Minister's representative asked: "Uhm, it shows here very clearly that you did that on all your P.I.C. flights, so we don't have to go back into those logs again. Uhm, did you realize that Paul was logging as P.I.C. too?" Mr. Trinacty answered , "No, I did not." The Minister specifically asked, "Prior to takeoff, did you and Paul have conversations who was going to be P.I.C.?" Mr. Trinacty answered "Yes, we did." Next question, "I assume you were?" Answer by Mr. Trinacty: "Yes. I was P.I.C." The following pages 3, 6, 8, 10 of the transcript confirm additional conversations regarding Mr. Trinacty's assertion that he was pilot-in-command.

Mr. Clark for Mr. Trinacty states that Mr. Tymstra was double-dipping when he logged those flights on C-GUJR (Tab 6). He refers to page 3 and following of the transcript of Mr. Tymstra's evidence where Mr. Tymstra specifically stated that Mr. Trinacty was pilot-in-command of those flights and that he himself was the passenger and he further stated at page 3 that he did not act as an instructor and did not give dual exercise. He made the same admission at line 48 on page 7 of his evidence. He further referenced line 82 at page 12 of the transcript where Mr. Tymstra was asked, "You realize that once you signed them off as a float rated pilot that they were going to log P.I.C.?", to which Mr. Tymstra answered "Yes."

Finally, Mr. Clark addresses the issue of solo versus pilot-in-command. He refers to Tab 4 being the letter from Transport Canada referring to solo time and argues that the issue is not about solo time and the appellant had completed his 30 hours of solo before. As well, in his decision, at page 6, the Tribunal Member also errs in equating solo time to pilot-in-command time. Appellant's counsel submits that it is not supervised solo but supervised pilot-in-command time and that the Booth decision referred to in the summation of the Minister's representative was irrelevant to the case at hand. In the matter before us there is no law that says the student cannot be pilot-in-command when an instructor is on board.

RESPONDENT'S SUBMISSIONS

Ms. Caminsky for the Minister submits that the findings of the Tribunal Member are reasonable. The key is that Mr. Trinacty did not have pilot-in-command requirements. The total hours recorded in Mr. Trinacty's logbook for the flights referred to in the first notice were 26.5 hours. The summary is on the record as Exhibit M-1(B). There is the evidence of Mr. Chalmers. There is the conversation of December 9, 2003. Notes and verbal testimony from Mr. Chalmers indicated that Mr. Tymstra stated that students "never go solo" and that it was "almost impossible not to do some instruction". Ms. Caminsky further stated that in Mr. Tymstra's personal logbook (prior to his communication with Transport Canada on April 13, 2004) there was a record of the flights on August 18, 19, 20, 23, 24, and 25, 2003. Prior to his communication with Transport Canada, the record shows "self" as pilot-in-command. The record of Mr. Trinacty said he was pilot-in-command and he later said "I made a mistake" and the de facto pilot-in-command was the instructor for the insurance policy. See Exhibit D-2 in the record which states "... this clause does not restrict students enrolled in the Huron Flight Centre program to dual only on C-GUJR. They may log PIC time if they are operating solo under the direct supervision of an instructor".

Ms. Caminsky further asserts that Mr. Tymstra was being paid as instructor when he flew with Mr. Trinacty. He flew with Mr. Trinacty for insurance purposes. He qualified the remarks later by saying that he said that he would take over later if a hazard occurred and qualified these remarks by stating that he would take action only in a life-threatening situation and only in a grave emergency. Mr. Trinacty was asked why the instructor was there, responding "so that he wouldn't do anything stupid."

The Minister's representative stated that the second Notice dated January 5, 2005 stated in part that the decision not to issue the licence was because Mr. Trinacty did not meet the experience requirements as required by the CARs. The Notice stated that it had been determined that his personal logbook contained a number of errors. The Notice also stated that in 12 instances (12 flights over 5 days) Mr. Trinacty was not lawfully the PIC of aircraft C-FSMS. The total hours recorded in Mr. Trinacty's logbook for the flights referred to in the above paragraph was 9.8 hours.

Mr. Trinacty had revised his log to show "self" as PIC of aircraft C-FSMS during flights on August 13, 14, 16, 17 and 18, 2003. The two names, Robertson and Cowden, are shown as co-pilots during these flights.

The aircraft journey log for C-FSMS showed "Robertson" as Captain for specific flights of C-FSMS on August 13, 14, 17 and 18 and a corresponding statement which reads "Training for Nick Trinacty" with each flight. It also showed "Cowden" as Captain for specific flights on August 16, 2003 and a corresponding statement which reads "N. Trinacty training" with each flight.

In response to Mr. Clark's submission, the Minister's representative states that to answer the question of whether the instructor being there taints the time, we must look to all the circumstances, who is acting as pilot-in-command? Is there a different standard when the instructor is on board? We must look to the true relationship. Ms. Caminsky also stated that records are extremely important to Transport Canada and they are given weight by reason of section 28 of the Aeronautics Act.

DISCUSSION

The facts disclose that the student was logging pilot-in-command time after having received his float endorsement on August 11, 2003. It was Mr. Trinacty's evidence that he was pilot-in- command. There is no evidence that he was a passenger other than the instructor's log (Tab 6). Mr. Trinacty does change his logbook entries at the request of Transport Canada which in fact, as was stated by Mr. Clark, was later used against him in calculating his total number of hours logged as pilot-in-command. In reality we have Mr. Trinacty, logging time as pilot-in-command, who testified that he believed that he was pilot-in-command when he flew the aircraft, and who subsequently changed his logbook entries based on the interpretation of the regulator that his logbook contained errors as set out in Mr. Chalmers' letters to Mr. Trinacty. The Minister also urges that Mr. Trinacty admitted that Mr. Tymstra had to be there for insurance purposes.

Additionally, we have the evidence of Mr. Tymstra who said under oath that he was not pilot-in-command and he admitted at that time that he had been double-dipping (see transcript pages 1-14 of Mr. Tymstra's testimony). There is no requirement that Mr. Trinacty fly solo to accumulate these hours. Transport Canada states that the issue is confusing that we do not know who was pilot-in-command because the instructor made entries in his logbook that he was the pilot-in-command. However, this is disputed by the evidence of the instructor under oath when he stated that he was not pilot-in-command but was there for insurance purposes. Evidently, the confusion arose as to the interpretation of the policy of insurance. It is possible that the instructor and even the principals at the flying school were unclear as to the requirements under the policy of insurance. That is perhaps why after the fact, an interpretation was sought from the insurance company. This interpretation confirmed that the student could fly as pilot-in-command with an instructor as long as the flight was supervised – meaning conducted under the authority of the instructor.

This of course makes it abundantly clear that when two qualified pilots are in the cockpit, it is a good idea if they pre-determine who is logging the flight as pilot-in-command as is advised by the AIP. The flight centre now has an interpretation that should enable them to solidify their policy. While this makes sense proactively, the question is who believed that they were pilot-in- command at the times of the flights in question?

Looking to Mr. Trinacty, at the time of the flights, did he believe he was flying those hours as pilot-in-command? We see the affirmative proof of this in the student pilot log, the flight records, and the training records. Does Mr. Trinacty subsequently change his mind about who was pilot-in-command? We do not know but he did change his record in his log. It would appear that he did so on the basis that the person in authority, being the Minister's representative, told him to in the letter dated October 27, 2004. There is no other reason. He does not say that he thought he was wrong. Looking now to Mr. Tymstra, the instructor at the time, did he believe that he flew those hours as pilot-in-command? We do not know. His personal log said "yes", which he later in oral testimony changed (at page 3 of his testimony) : "at the time I was under the assumption that I was to be on the flights for issue or for the insurance purposes and I was to go on as a passenger for all flights". The cases cited relating to solo flights are irrelevant as this was never an issue. The issue was who was pilot-in-command and the flight centre had no policy on it and after writing to the insurance company in March, it would appear that the roles would be clarified and the pilot-in-command would be declared at the outset.

We do not feel that the Minister can take great comfort in basing its case on the fact that the young pilot made the changes as directed by the Minister's officials. The fact of changing the flight times does not mean that he did not believe that he was pilot-in-command. He does not agree that he was a passenger at the time of these flights. As Mr. Clark submits, his evidence is clear on this point. This is also consistent with the oral testimony of the instructor that he logged pilot-in-command time when he should not have. It is not really relevant to determine why the instructor thought he needed to be on the flight. This is true most specifically in the light of the fact that the student could have a passenger with him as the regulation permits as long as he was the pilot-in-command.

We agree with the Member at review in his acceptance of the facts and the testimony. However, we disagree with the conclusions reached. We believe that the issue of who was pilot-in- command only became fuzzy when the Minister's officials looked to Mr. Tymstra's logbook. Mr. Tymstra's entries that he was pilot-in-command were accepted by the Minister as evidence of their content, pursuant to section 28 of the Aeronautics Act. However, that same section also states that these entries will be valid in the absence of evidence to the contrary. Such evidence to the contrary comes in the form of Mr. Tymstra's oral testimony at page 5 wherein he admits that he was not really pilot-in-command of those flights but was in fact double-dipping or as he referred to it in his testimony as "cheating". At this point, the Minister's officials must realize that the entries in Mr. Trinacty's logbook were correct and were not required to be changed to reflect the errors in the instructor's logbook. Rather the instructor's logbook should be corrected.

Looking to the summary filed by the Minister's representative at the review hearing as Exhibit M-1B, it would appear that on the first application the time logged as set out in the application was PIC day 122.5 plus PIC night 5.0 equals 127.5; this same record is found in Mr. Trinacty's pilot training record; Mr. Trinacty's pilot logbook is PIC day 110.5 and PIC night 5.0 equals 115.5.

However, if the entries in Mr. Tymstra's logbook as PIC of C-GUJR were in error as admitted by Mr. Tymstra under oath in his testimony and in his letter filed as Tab 5, then those 26.5 hours which were deducted by the Minister should be reinstated. After all, at the time of Tab 5, the Minister was questioning the ability to log pilot-in-command time when accompanied by the flight instructor at the time. This is clear from Mr. Schobesberger's summing up at the conclusion of the review:

We were able to demonstrate, we believe, that he had acquired approximately 26.6 or .5 hours of experience in an aircraft called Uniform Juliet Romeo, while an instructor was on board the aircraft and had logged a time as pilot in command, notwithstanding the fact that that instructor was on board.

Mr. Ryan, in his submission at review, refutes the assertions of the Minister stating that the issues have become confused: the difference between PIC time and solo time. PIC, being pilot-in-command time, has nothing to do with the time needed to be a commercial pilot. A commercial pilot licence is broken down into 200 hours total time with 100 hours being PIC time. He further stated that the flight school submits to Transport Canada 65 hours of training, 35 hours of dual and 30 hours of solo time. Mr. Trinacty took his 30 hours of solo time. He took his 35 hours of dual. The float time portion of it has nothing to do with the solo requirements so that he can make these command decisions on his own. On the facts of this matter, Mr. Trinacty did his float rating on August 11, 2003. He did his 10 hours, his touch and go solo and got his float rating (see pages 16-17 of transcript of review of Mr. Ryan's submissions).

Now, at this point as Mr. Clark has indicated in his submissions, we have two pilots on board the aircraft C-GUJR both of whom are qualified to fly float planes. The pilot-in-command is to be determined prior to take-off. They did that. See the evidence of Mr. Trinacty at page 3 of his testimony in the transcript. See also the evidence of Mr. Tymstra at the top of page 3 of his evidence and as well as question 65 at the top of page 10 of the Minister's cross-examination of Mr. Tymstra. In both references, Mr. Tymstra states that Mr. Trinacty was pilot-in-command of the whole flight for the flights in question and that Mr. Tymstra was the passenger.

At pages 47 to 49 of the transcription of Mr. Duncan Chalmers' evidence, there is a discussion of the Minister's Exhibit M-1B. At question 118, under cross-examination, Mr. Chalmers in response to the question that "if the UJR times were to have been accepted as PIC, would he have had enough time to get his commercial licence?" – to which he answered – "Yes. I believe on that first application, yes."

In the circumstances of this case, it is the opinion of this panel that the 26.5 hours deducted in the first application be reinstated thereby providing Mr. Trinacty with sufficient hours to meet the requirements for issue of his commercial pilot licence - aeroplane. In the circumstances, it is not necessary for the panel to consider the 12-month requirement for taking the flight test, as on the facts of the first application, the 12 months had not run its course.

And as a consequence, we have found that Mr. Trinacty in being given credit as pilot-in- command of flights in C-GUJR meets the experience requirements for his commercial licence at the time of his first application. It would naturally follow that he would have the required number of pilot-in-command hours for this second application without reference to the 9.8 hours flown in aircraft C-FSMS, being the subject of the second application.

DETERMINATION

We refer these matters back to the Minister for reconsideration as on the facts of this case we find that the evidence of Mr. Tymstra under oath was evidence to the contrary as contemplated in section 28 of the Aeronautics Act and hence negates the entries in the logbook made by Mr. Tymstra indicating that he was the pilot-in-command of those flights in aircraft C-GUJR.

February 23, 2006

Reasons for Appeal Decision by:

Faye Smith, Chairperson

Concurred:

Frank Morgan, Member
Hebb C. Russell, Member


[1] Review Determination at bottom of page 11 and page 12.