Decisions

CAT File No. A-2136-10
MoT File No. MA5260-8419

CIVIL AVIATION TRIBUNAL

BETWEEN:

Exploits Valley Air Services Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp.), s. 7.1 (1)b)
Canadian Aviation Regulations, SOR/99-158, ss. 700.02(1), 702.07(1)(e), 702.07(2)(b)(ii), 702.09(c), 702.09(i), 700.01

Suspension, Air Operator Certificate


Review Determination
Allister W. Ogilvie


Decision: December 15, 2000

The Minister has established on a balance of probabilities that Exploits Valley Air Services Ltd. did not comply with the conditions subject to which the air operator certificate was issued. The decision to suspend the certificate is confirmed.

A review hearing on the above matter was held Thursday, November 30, 2000 at 10:00 hours at the Town Hall in Gander, Newfoundland.

BACKGROUND

In August of this year, in preparation for an upcoming audit, Transport Canada personnel had reason to question the status of the chief pilot position at Exploits Valley Air Services Ltd. (Exploits Valley). Their inquiries lead them to conclude that the person who had held the chief pilot position had left the company previously.

Pursuant to some telephone conversations and correspondence with the company the Minister concluded that Exploits Valley was no longer in compliance with the conditions of issue of its air operator certificate. By notice dated August 30, 2000 the certificate was suspended in the following form:

Pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, the Minister of Transport has decided to suspend your Air Operator Certificate indicated above for the following reasons:

Failure to comply with Canadian Aviation Regulations (CARs) 700.02(1) and 700.02(2) in that

The air operator is not in compliance with Air Operator Certificate General Condition (as specified in CARs 702.09 and 703.09) which states:

'(c) the air operator shall employ managerial personnel who meet the Commercial Air Service Standards' in that the company does not have a Chief Pilot that meets the Commercial Air Service Standards.

Exploits Valley did not agree with that conclusion and applied for a review hearing, which was heard on November 30, 2000, in Gander, Newfoundland.

THE ISSUE

To justify the suspension of Exploits Valley's air operator certificate the Minister must prove that on August 30 the company no longer complied with the conditions of issue, specifically that it no longer had managerial personnel employed on a full-time basis performing the function of chief pilot.

THE LAW

Requirements for Air Operator Certificate

700.02 (1) No person shall operate an air transport service unless the person holds and complies with the provisions of an air operator certificate that authorizes the person to operate that service.

Issuance or Amendment of Air Operator Certificate

702.07 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner required by the Commercial Air Service Standards, issue or amend an air operator certificate where the applicant demonstrates to the Minister the ability to

[...]

(e) meet the Commercial Air Service Standards for the operation; and

[...]

(2) For the purposes of subsection (1), an applicant shall have

[...]

(b) managerial personnel who meet the Commercial Air Service Standards, are employed on a full-time basis and perform the functions related to the following positions, namely,

[...]

(ii) chief pilot, and

General Conditions of Air Operator Certificate

702.09 An air operator certificate shall contain the following general conditions:

[...]

(c) the air operator shall employ managerial personnel who meet the Commercial Air Service Standards;

[...]

(i) the air operator shall notify the Minister within 10 working days after any change in its legal name, trade name, base of operations or managerial personnel; and

Interpretation

700.01 In this Part,

[...]

"employed on a full-time basis" means working for an air operator on a continuous basis for at least the number of hours required to carry out the duties of the position for the safe operation of the commercial air service;

Similar provisions are included in Subpart 3-Air Taxi Operations.

DISCUSSION

Exploits Valley held Air Operator Certificate 8419. Among the conditions of issue was the requirement to employ managerial personnel who meet the Commercial Air Service Standards. At issue here is the position of chief pilot.

Mr. Winsor had been the chief pilot for Exploits Valley for some time. It had come to Transport Canada's attention in August of this year that he was employed at Prince Edward Air (PEA). Transport Canada thought that such employment was incompatible with his position as chief pilot at Exploits Valley and investigated his status.

According to three different Transport Canada witnesses—Mr. Tataryn, Mr. Pert and Mr. Allan—Mr. Winsor indicated to them that he was no longer at Exploits Valley but was employed at PEA.

Mr. Ed Tataryn had spoken to him by telephone on about August 23rd. He testified that Mr. Winsor said he left Exploits Valley about three months previously and had been working for PEA since then. When specifically asked if he had said that, Mr. Winsor rather equivocally stated that he may have.

Mr. Pert and Mr. Allan also spoke to Mr. Winsor, and both made handwritten notes of those conversations (Exhibits M-8, M-11). Both indicated that he was currently employed at PEA.

Although the testimony of Transport Canada personnel amounts to hearsay, the relaxed evidentiary rules of the Tribunal (s. 37 of the Aeronautics Act) permit it. Here three persons corroborate the same finding. Two have made notations of the conversations in the normal course of their business operations. Mr. Winsor was available to confirm or deny the testimony. As a result I find that Transport Canada personnel's testimony is reliable, relevant and necessary to the finding.

I take Mr. Winsor's statement at the hearing that he may have made such a statement to Mr. Tataryn to be a yes. I do so because he could have simply denied it but did not. As the evidence unfolded it became apparent that Mr. Winsor's statement to Mr. Tataryn that he had left Exploits Valley some three months prior caused his former employer some unintended consternation. I believe he tempered his answer at the hearing in an attempt to ameliorate that fact.

From August 23 through August 30 faxes and telephone calls were exchanged between the parties trying to clarify the issue. Mr. Winsor, by letter dated August 30, 2000 (fax date August 24) informed Mr. Tataryn that from August 30 until September 14 he appointed Mr. Patrick White as chief pilot. Operations manager, Mrs. White, submitted a chief pilot nomination form to Transport Canada with Mr. Patrick White as nominee.

Much evidence was adduced as to Mr. Winsor's status with Exploits Valley since joining PEA. It was asserted that he remained as chief pilot, although no longer a resident in Gander and flying for PEA out of St. John's. Evidence was also adduced as to his status at PEA, that he was a contract pilot, free to turn down trips. The implication being that he would be free to fulfill his functions at Exploits Valley. While flying for PEA, he was working to develop standard operating procedures for an Exploits Valley aircraft.

Evidence was also lead by both parties as to Mr. Patrick White's employment status as training pilot with the water bombing division of the Newfoundland Government, at the time that he was nominated for the chief pilot function.

CONCLUSION

Most of the evidence and argument just referred to is extraneous to the issue. By August 25, by Mr. Winsor's own albeit reluctant admission, he was not functioning as Exploits Valley chief pilot. Much of the evidence was adduced in an attempt to resurrect that status, after the fact.

I find his equivocal testimony in answer to Mr. Tataryn's evidence indicates as much. He was initially candid with Mr. Tataryn, but upon finding out that having been so, placed Mr. White in an awkward position, he did his utmost, short of refuting his statement, to ameliorate it.

As he was not functioning as chief pilot he could not place Mr. White in his position. I use the words not functioning as chief pilot rather than employed, as there was evidence of an ongoing relationship between Mr. Winsor and Exploits Valley but Mr. Winsor himself said that he no longer thought of himself as chief pilot.

Mrs. White as operations manager could nominate Mr. White to be chief pilot but she too was precluded from putting him in that position as the nomination needed the Minister's approval.

Having ascertained that Mr. Winsor was not the chief pilot at Exploits Valley on August 25 and no replacement having been approved, the Minister was justified in coming to the conclusion that Exploits Valley was not, at the time, in conformity with the conditions of issue.

However I do feel that this case is a tempest in a teapot. Here we are addressing what amounts to a one-man operation, as far as the section 703 operation is concerned. The "employed on a full-time basis" as defined applies to all commercial carriers. But, the number of hours required to carry out the duties, where essentially the chief pilot is supervising himself, needs to be regarded on a case by case basis. Although the Minister was technically justified in coming to the conclusion he did, it seems to me that this case should have been resolved between the parties.

DETERMINATION

The Minister has established on a balance of probabilities that Exploits Valley Air Services Ltd. did not comply with the conditions subject to which the air operator certificate was issued. The decision to suspend the certificate is confirmed.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal