Decisions

CAT File No. A-2364-41
MoT File No. MA5504-45526

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Provincial Airlines Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR-96/433, s. 704.20

IFR Flight, Responsibility of pilot-in-command, Fuel on board, Defence of due diligence


Review Determination
Ronald E. McLeod


Decision: April 19, 2002

The defence of due diligence has been made out. For this reason, notwithstanding the admission of contravention by the pilot-in-command who paid the penalty assessed against him, Provincial Airlines Limited should not be held responsible for the contravention of section 704.20 of the Canadian Aviation Regulations. I dismiss the monetary penalty that had been assessed by the Minister of Transport.

A review hearing on the above matter was held Wednesday, March 27, 2002 at 9:00 hours at City Hall in the city of St. John's, Newfoundland.

BACKGROUND

The Notice of Assessment of Monetary Penalty in this matter states:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Schedule A

Canadian Aviation Regulations section 704.20, in that at approximately 15:31 hours UTC on or about March 14, 2001, at or near Nain, Newfoundland, you as an air operator, authorized a flight when the aircraft did not carry sufficient fuel to meet the fuel requirements of part VI. Specifically, a DeHavilland DHC-6-300 aircraft bearing Canadian registration marks C-FWLG, operating as SPR 961, was authorized and did commence an IFR flight from Nain to Goose Bay when it did not carry an amount of fuel sufficient to fly to and execute an approach and missed approach at the destination aerodrome of Goose Bay, to fly to and land at the alternate aerodrome at Nain and then to fly for a period of 45 minutes.

The foregoing provision(s) has/have been designated pursuant to the Designated Provisions Regulations, SOR/96-433 (Canadian Aviation Regulations, Part I General Provisions, Division IV— Designated Provisions) and the procedures in sections 7.7 to 8.2 of the Aeronautics Act respecting monetary penalties apply.

A monetary penalty of $1,250 has been assessed.

Both parties were instructed regarding the format of the hearing. The Minister of Transport would present their case first, followed by the Respondent, Provincial Airlines Limited [hereinafter PAL]. Both would have an opportunity to cross-examine the other's witnesses and be allowed the opportunity to present a closing summation.

The Respondent, PAL, was informed of the possible outcomes of this hearing. This review hearing deals with a monetary penalty. As Hearing Officer at the conclusion of this hearing I have the power to either agree with the monetary assessment, in which case the monetary penalty would stand; or depending on the case I could either raise the amount of the monetary penalty or dismiss the monetary penalty entirely.

THE MINISTER'S CASE PRESENTATION

Acting on behalf of the Minister, Mr. Terry Thompson, Civil Aviation Safety Inspector, Transport Canada stated that he would be presenting his case through a number of exhibits as well as a presentation of three witnesses to support the allegation as described in Schedule A. Based on an alleged contravention of section 704.20 of the Canadian Aviation Regulations (CARs), PAL under section 7.7 was assessed a monetary penalty of $1,250 on October 9, 2001. Mr. Thompson then called as his first witness Mr. Gary Noel.

Mr. Noel identified himself as a Civil Aviation Safety Inspector, Aviation Enforcement, Transport Canada. He stated that as an enforcement officer he was assigned to investigate a possible violation of section 704.20 of the CARs by PAL in regards to an IFR flight conducted by a PAL Twin Otter aircraft March 14, 2001.

Minister's Exhibit M-1 was identified by Mr. Noel as a photocopy of the registration of a Twin Otter Canadian registration C-FWLG Serial number 731, Model DHC-6 series 300 showing the owner to be PAL, PO Box 29030, Hangar 2, St. John's Airport, St. John's Newfoundland A1A 5B5.

He identified Exhibit M-2 as a letter sent by him to PAL dated July 6, 2001. This letter stated that he was investigating a possible violation of section 704.20 of the CARs which states that no air operator shall authorize a flight and no person shall commence a flight unless the aircraft carries sufficient fuel to meet the fuel requirements of Part VI. Mr. Noel outlined in his letter that he would be making a recommendation regarding the case to the Regional Manager, Aviation Enforcement on August 5, 2001, and PAL would be informed of the outcome in writing.

Exhibit M-3 was identified by Mr. Noel as a letter of response to himself from Mr. G. J. Furey, director of flight operations, PAL dated July 26, 2001:

Reference your letter of July 6, 2001 with respect to the possible violation of Canadian Aviation Regulations 704.20. I was made aware of this situation shortly after it occurred. Since then I have interviewed and counseled both crew members on a number of occasions. There has also been consultation with the Operational Base Supervisor at Goose Bay with respect to this matter. The Pilot In Command Responsibilities Section 1.5.4 and Flight Planning Section 2.3 of the approved Company Operations Manual clearly outline and define responsibilities.

Frequent communications and visits are maintained with the Operations Base Supervisor by the undersigned and the Chief Pilot. We have had no problems of any nature with this particular crew. The only conclusion that I can reach is that the crew were somewhat [intimidated] by the presence of a Transport Canada Inspector, why this was I fail to understand.

This concluded Mr. Noel's testimony on behalf of the Minister.

In cross-examination Mr. Vaillancourt asked Mr. Noel "Did you receive good cooperation from PAL in this investigation?" Mr. Noel answered in the affirmative.

Called as a second witness on behalf of the Minister was Mr. Robert Gladney. Mr. Gladney identified himself as an employee of Transport Canada. He is a Regional Superintendent for certification, Commercial and Business Aviation. He stated that his responsibilities included air operator certificates, amendments, check rides on commercial pilots and audits of commercial operations.

Mr. Gladney was asked if he was familiar with the operation of a Twin Otter aircraft and he stated that he had more than 6,000 hours of flight time in Twin Otters.

Exhibit M-4 was identified by Mr. Gladney as a copy of an air operator flight inspection conducted by himself on PAL flight #961. He stated that he introduced himself to the pilots as a Transport Canada inspector conducting an in-flight inspection. The inspection consisted of multiple segments of a flight originating at CYYR (Goose Bay) and terminating back at CYYR. The leg of the flight in question is identified as the IFR flight from Nain, Labrador to Goose Bay. M-4 identifies the flight as PAL #961 showing the segment from Nain to Goose Bay being the last segment flown. The inspection was routine and the pilots were identified as Duane Blake and Todd Furey. The exhibit indicates that the flight was conducted in a satisfactory manner except for a problem which is identified in attachment. The attachment was discussed by Mr. Gladney as a description of what happened during the flight, and this has been attached to the detection notice which would be submitted as part of the detection notice.

Mr. Gladney identified Exhibit M-5 as a copy of the flight plan as filed by PAL. It identifies Mr. Blake as pilot-in-command. The point of origin of the flight is identified as CYDP (Nain, Labrador) and the destination of the flight is identified as CYYR (Goose Bay). Flight time filed was 1 hour 25 minutes. Fuel on board was filed as 3 hours 30 minutes.

Mr. Gladney identified Exhibit M-6 as a copy of a detection notice which was sent by himself to the detection branch of Transport Canada in which he describes in an attachment to the detection notice his concerns regarding the IFR flight of a Twin Otter, Canadian registration marks FWLG:

I questioned the pilots on the dispatch procedure from Goose Bay and was told it was pilot self dispatch, and that the pilots completed all the required paperwork (NOTAMs were provided from St. John's) and faxed copies to St. John's. The following sequence references the Type "C" pilot self dispatch system.

In CYDP, I overheard the co-pilot request that an IFR be filed from Nain to Goose Bay. I believe this request was made with company dispatch. On the ground in Nain the fuel gauges indicated 1900 lbs. When enroute, I questioned the captain, and was told that CZUM was the alternate. Upon landing in CYYR I noted 950 lbs. fuel remaining. I questioned the captain, and he said there was a tail wind, so this was sufficient fuel to get to CZUM and have the required 45-minute reserve remaining. After returning to Moncton I checked further on this leg. Copies of the filed flight plan indicate the alternate was CYDP. Copies of the weather indicate that CYDP did not meet the requirements of Canadian Aviation Regulations (CARs) 602.123. The noted fuel figures indicate there was insufficient fuel to meet the requirements of CARs 602.(88)(4)(a)(i). The captain did not know the filed alternate, and therefore did not meet the requirements of Commercial Air Service Standard 724.15 Type "C".

Mr. Gladney was asked if he was familiar with the fuel management system of a Twin Otter. Mr. Gladney replied that yes, he was quite familiar with it as one of his responsibilities for Transport Canada was doing pilot proficiency checks on the Twin Otter.

Regarding the flight plan, Mr. Gladney could not state with certainty who actually filled out and filed the flight plan. He went on to state that as part of the routine inspection during the flight from Nain to Goose Bay he questioned the pilot-in-command, Mr. Blake, regarding how much fuel was available. Mr. Blake said that based on present fuel consumption of 600 pounds per hour there was adequate fuel to proceed to Goose Bay and then to his alternate, which he said was Churchill Falls, and still have a 45-minute reserve remaining. Mr. Gladney stated that assuming the alternate was Churchill Falls, there was adequate fuel on board.

While completing the inspection form following the flight, Mr. Gladney did a routine check of the weather for Churchill Falls and found that it was below acceptable minimum to be used as an alternate. He then requested a copy of the flight plan, which had been filed through the PAL office in St. John's with NAV CANADA. As already entered as M-5, the flight plan shows that the alternate was filed as Nain and not Churchill Falls. Based on this finding it would appear that there were inconsistencies and that the pilot-in-command did not know what alternate had been filed. In addition, there did not appear to be enough fuel on board to fulfill the requirements of the IFR flight plan as filed.

Copies of the CARs Part VII, Commercial Air Service Standards 724, reference Type C, and a copy of PAL operations manual with reference to section 2.1.4 were then introduced as Exhibits M-7 and M-8 respectively. Mr. Gladney indicated that these exhibits confirm that PAL flights operated under a Type C dispatch system which allowed for operational control of the flight to be delegated to the pilot-in-command of the flight by the operations manager who retained overall responsibility for the day-to-day conduct of flight operations.

Exhibits M-9 and M-10 were identified by Mr. Gladney as copies of PAL operations manual in which M-9 identifies the title of operations manager being changed to director of flight operations. M-10 is a listing of management/supervisory personnel and their positions. The position of director of flight operations is identified as Mr. George Furey. Mr. Gladney agreed that part of M-10 identifies Mr. George Furey in his capacity of director of flight operations to be responsible for ensuring that the air operator's operations are conducted in accordance with current regulations, standards and air operator policy.

Mr. Gladney identified Exhibit M-11 as an air operator certificate #4303 for PAL. Mr. Gladney was asked to highlight under "general conditions" paragraph (a) "the air operator shall conduct flight operations in accordance with its company operations manual" and paragraph (b) "the air operator shall maintain an adequate organizational structure". Mr. Gladney identified Part II of this exhibit as listing all aircraft operated by PAL and specifically identified reference 006 DHC6 type design DH6 as operating under CAR 704.

Exhibit M-12 was submitted in its entirety, 704.15 operational control system. Mr. Gladney was asked if Mr. George Furey could be considered the operations manager. Mr. Gladney replied in the affirmative that based on previous exhibits showing that Mr. Furey's title had been changed to that of director of flight operations that yes, they are one and the same. Mr. Gladney was asked whether he was satisfied that PAL maintained an adequate organizational structure, and he replied in the affirmative and that the director of operations was Mr. George Furey.

Mr. Gladney identified Exhibit M-13 as CARs, Part VII, Subpart 4, section 704.20 Fuel Requirements:

704.20 No air operator shall authorize a flight and no person shall commence a flight unless the aircraft carries sufficient fuel to meet the fuel requirements of Part VI and to allow the aircraft

(a) in the case of an aeroplane operated in IFR flight,

(i) to descend at any point along the route to the lower of

(A) the single-engined service ceiling, or
(B) 10,000 feet,

(ii) to cruise at the altitude referred to in subparagraph (i) to a suitable aerodrome,

(iii) to conduct an approach and a missed approach, and

(iv) to hold for 30 minutes at an altitude of 1,500 feet above the elevation of the aerodrome selected in accordance with subparagraph (ii); and

[...]

and he identified Exhibit M-14 as CARs, Part VI, Subpart 2, section 602.88:

602.88 [...]

(4) An aircraft operated in IFR flight shall carry an amount of fuel that is sufficient to allow the aircraft

(a) in the case of a propeller-driven aeroplane,

(i) where an alternate aerodrome is specified in the flight plan or flight itinerary, to fly to and execute an approach and a missed approach at the destination aerodrome, to fly to and land at the alternate aerodrome and then to fly for a period of 45 minutes, or

(ii) where an alternate aerodrome is not specified in the flight plan or flight itinerary, to fly to and execute an approach and a missed approach at the destination aerodrome and then to fly for a period of 45 minutes; or

[...]

Mr. Gladney was asked by the Hearing Officer if the pilot-in-command had made any change in the flight plan while en route. Mr. Gladney responded that he had no reason to believe that there had been a change to the flight plan.

This concluded Mr. Gladney's testimony on behalf of the Minister.

On cross-examination by Mr. Vaillancourt, Mr. Gladney was asked to describe what he had observed of the pilot and the first officer while at Nain. Mr. Gladney stated that the pilot-in-command was refuelling the aircraft himself, and he observed the first officer using a telephone in the terminal building, and he assumed that the first officer was either obtaining weather information or filing a flight plan.

Responding to a question concerning the gross weight of the aircraft, Mr. Gladney replied that there were two passengers on board, himself plus one other passenger. Based on the number of passengers and baggage, the plane was certainly under gross weight and could have taken a full load of fuel which, in his experience, would be approximately 2,400 pounds for flight endurance of four hours. Mr. Gladney stated that the weather at the time appeared to be VFR, and he believed the weather for Goose Bay was marginal VFR.

Mr. Gladney was asked to describe the flight from Nain to Goose Bay. He stated that prior to leaving Nain he observed the pilot refuelling the aircraft, and it appeared that the first officer had gone into the terminal building to file a flight plan. He was sitting just behind the cockpit and was able to view the cockpit quite easily. Prior to leaving Nain he noted that the fuel gauges indicated 1,900 pounds of fuel. Approximately half way into the flight he asked the pilot about his destination and alternate and whether or not he had enough fuel. The pilot told him that, the destination being Goose Bay and the alternate Churchill Falls with a flight time of 1 hour 30 minutes to Goose Bay, there was adequate fuel to proceed to Churchill Falls and still have 45 minutes reserved, and he agreed with this. On landing in Goose Bay he noted that there was 950 pounds of fuel remaining, as indicated on the fuel gauges. With the completion of the flight in Goose Bay, the flight was considered to be uneventful based on the information provided to him by the pilot. Assuming the alternate was Churchill Falls there was adequate fuel remaining.

It was only on further investigation while completing his report of the flight that he noted that the weather at Churchill Falls was not acceptable as an alternative. Based on this, on acquiring a copy of the flight plan, he discovered that the actual alternate filed was Nain and that the pilot-in-command was not aware of the alternate filed.

Mr. Gladney responded to a question regarding the authority under which the flight was conducted and replied that it was under Type C dispatch in which the pilot-in-command had the authority to authorize the flight.

In response to a question regarding fuel burned by a Twin Otter, Mr. Gladney responded that in his experience normal fuel burn for a Twin Otter was approximately 600 pounds per hour.

This concluded Mr. Gladney's testimony.

Mr. Paul Bennett

Mr. Bennett identified himself as an employee of Transport Canada, Atlantic Region. Mr. Bennett is Regional Superintendent for aeroplanes, Commercial and Business Aviation. He stated that he had greater than 3,000 hours of Twin Otter time as well as experience flying in Labrador and was quite familiar with flight operations along the Labrador coast. He stated that for flight planning purposes, the fuel requirement for a Twin Otter was 550-600 pounds per hour with a true air speed of 145-155 knots.

Exhibit M-15 was identified by Mr. Bennett as a compilation of fuel burn calculated by himself based on a Twin Otter flight from Nain (CYDP) to Goose Bay (CYYR) using Nain as the alternate and including a 45-minute reserve. Calculated minimal total fuel required was 1,950 pounds, and he concluded that using these figures the minimal acceptable fuel load for departing CYDP for CYYR IFR with CYDP as an alternate airport would be between 1,950 and 2,130 pounds, not accounting for any additional contingency fuel.

Identified by Mr. Bennett as Exhibit M-16 is a copy of the journey log for aircraft type: DHC-6, registration: C-FWLG, captain: D. Blake, co-pilot: T. Furey, date: 2001/03/14. Mr. Bennett referred to flight #961 segment CYDP to CYYR with an air time of 1:34 and a total flight time of 1:44, fuel load: 1,850 pounds, passengers: 2, baggage: 55 pounds, gross weight: 10,149 pounds, which he stated was well below gross weight, and there was no reason not to load additional fuel. Indicated air speed was 146 knots at an outside temperature of -10 degrees. Fuel burns were indicated at 290 pounds per hour for number one engine and 300 pounds per hour for number two for a total fuel burn of 590 pounds per hour. Using these fuel burns, Mr. Bennett stated that based on a return flight to Nain plus 45 minutes alternate that one would require 2,150 pounds of fuel.

On cross-examination by Mr. Vaillancourt, Mr. Bennett was asked whether or not the actual speed across the ground may have been higher, based on the outside air temperature, and he agreed that true air speed could have been higher. Mr. Bennett also agreed that flight operations in northern Labrador made it difficult to communicate, and allowances had to be made for this.

PROVINCIAL AIRLINES LIMITED, Respondent

Case Presenter: Mr. Tim Vaillancourt

Mr. Blake, the first witness, identified himself as the pilot-in-command of Twin Otter C-FWLG, PAL flight #961 Nain (CYDP) to Goose Bay (CYYR) March 14, 2001.

He stated that this was the final leg of a round trip commencing in Goose Bay and terminating in Goose Bay. He had initially checked the weather that morning and saw that Churchill Falls could be used as an alternate. Although the weather in Nain was VFR, he decided to file IFR in order to get above turbulence for the comfort of the passenger and also in hopes of picking up a tail wind, thus reduce the flight time to Goose Bay as the passenger had concerns about making a flight connection in Goose Bay.

He stated that he refuelled the aircraft himself. Refuelling facilities at Nain were quite primitive requiring manual pumping of fuel, making fuel transfer slow. In order to speed up the departure time in order to get his passenger to Goose Bay and also perhaps to increase aircraft speed, he took on minimal fuel rather than filling the tanks. In order to get on top of the turbulence at lower altitudes he instructed the first officer to file an IFR flight plan to Goose Bay for an altitude of 8,000 feet using Churchill Falls as the alternate.

Approximately half way into the flight Mr. Blake said he was questioned by the Transport Canada officer, Mr. Gladney, regarding fuel requirements and his alternate and told Mr. Gladney that he had used Churchill Falls as his alternate. Following the discussion with Mr. Gladney, in a private conversation with the first officer, the first officer told him that he had actually filed Nain as the alternate and not Churchill Falls as the weather in Churchill Falls had deteriorated in the interim.

Mr. Vaillancourt asked Mr. Blake whether or not PAL applied any undue pressure on the pilots not to carry enough fuel or disregard safety procedures. Mr. Blake responded that they did not and quite the contrary encouraged them to always carry additional fuel whenever possible.

On cross-examination Mr. Thompson asked Mr. Blake why, upon learning that Nain was their alternate, he did not contact FSS (flight service station ) to change the alternate. Mr. Blake responded that he did not want to draw attention to this. Mr. Thompson asked Mr. Blake if he had been penalized by Transport Canada regarding this flight. Mr. Blake responded that yes he had been penalized and assessed a monetary penalty and had paid the fine.

Mr. Todd Furey

Mr. Furey identified himself as the first officer of the Twin Otter C-FWLG, PAL flight #961 CYDP to CYYR March 14, 2001. He stated that he had approximately 600-700 hours total time. He stated that he was instructed by the pilot-in-command, Mr. Blake, to file an IFR flight plan from Nain to Goose Bay, using Churchill Falls as the alternate. While doing so and checking on the weather, he found that the weather for Churchill Falls was below limits and could not be used as an alternate, but the weather for Nain was not, and Nain could be used. He assumed that Mr. Blake, while refuelling the aircraft, was going to fill the tanks and therefore assumed that Nain could be used as an alternate, assuming full tanks have fuel endurance of 3 hours 30 minutes for the flight plan. In preparation for departure he forgot to mention to Mr. Blake that he had changed the alternate to Nain. Halfway into the flight, in conversation between Mr. Gladney and Mr. Blake, he realized that he had not told Mr. Blake of the change in alternate and told him at this time.

Mr. Furey was asked if PAL had ever suggested carrying less fuel or operating outside safety limits and he answered "no". Mr. Furey was asked whether he was familiar with in-flight Department of Transport inspections. He said that this was only the second one he had taken part in and perhaps being nervous may have forgotten to inform the captain of the change in the alternate.

Cross-examination

Mr. Thompson asked Mr. Furey why they filed IFR. Mr. Furey stated that it was to avoid turbulence and perhaps pick up a tail wind, although in actual fact there was no tail wind. The alternate was changed because the weather for Churchill Falls was below limits, but he did not tell Mr. Blake until halfway into the flight. Mr. Furey was asked if he was aware of the fuel requirements for an IFR flight. He responded appropriately that it required enough fuel to get to the destination plus to the alternate plus a 45-minute reserve. When asked if they had enough fuel to complete the IFR flight as filed, Mr. Furey replied no, that they would have been dipping into their alternate fuel in order to get back to Nain.

On redirect Mr. Vaillancourt asked Mr. Furey if he knew he was not meeting the fuel requirements necessary when filing the IFR plan. Mr. Furey responded that he assumed that the tanks were being filled and therefore they would be meeting the IFR requirements when he filed the IFR plan.

Mr. George Furey

Mr. Furey identified himself as director of flight operations with over twenty years of flight experience, particularly in northern Labrador. He stated that he was familiar with Type C dispatching and also was familiar with the operations manual for PAL as he was its author. He stated that senior management use due diligence in carrying out flight operations and used delegated authority through the chief pilot and area pilots while conducting flight operations. He stated that they maintain an adequate organizational structure which is approved by Transport Canada. The type of operation was under a Type C dispatch with flight plans faxed to the operations office in St. John's, Newfoundland and then forwarded to NAV CANADA. Over 1,000 flight plans are filed on a year-to-year basis.

In answer to a question posed by the Hearing Officer, he stated that there was no audit system in place to review the flight plans as filed.

SUMMATION

Mr. Thompson for the Minister and Mr. Vaillancourt for PAL were allowed to present their closing remarks.

Mr. Thompson stated that the Minister had presented evidence to show that PAL authorized a commercial flight from Nain, Labrador to Goose Bay, Labrador on March 14, 2001 when the aircraft did not carry sufficient fuel to meet the requirements of Part VI (CARs 704.20).

Testimony was presented on behalf of the Minister by Messrs. Noel, Gladney and Bennett. Testimony and exhibits show that a Twin Otter aircraft registration marks C-FWLG owned and operated by PAL conducted a flight from Nain, Labrador to Goose Bay, Labrador on March 14, 2001. The pilot of this flight was identified as Mr. Blake and the co-pilot as Mr. Furey. An IFR flight plan filed as M-5 shows that fuel on board was noted as 3 hours 30 minutes with the alternate as Nain, Labrador. It has been shown through testimony and exhibits that the amount of fuel carried by the aircraft was insufficient to comply with the requirements of the IFR flight plan.

Mr. Gladney also testified that he was told by the crew of the inspected aircraft that they were operating under a Type C dispatch system and then went on to explain to us the meaning of a Type C dispatch system. He stated that the PAL company operations manual contains guidance to show that Type C operational control addresses flight authorization, control and release.

The company operations manual clearly defines the management and supervisory personnel of PAL. The duties of the director of flight operations include ensuring that the air operator's operations are conducted in accordance with current regulations, standards and policies. The Minister, through the testimony of Mr. Gladney, has shown on a balance of probability that the operational control may be delegated to the pilot-in-command of the aircraft but that it is the director of flight operations who maintains responsibility for the day-to-day conduct of flight operations. Section 704.15 of the CARs clearly states that the air operator must maintain an operational control system that meets the Commercial Air Service Standards and is under the control of its operations manager. The Minister contends that operational control remains the responsibility of the operations manager and that although he may choose to delegate the control of the dispatching of aircraft to the pilot-in-command, the ultimate responsibility remains his. In this case, both the pilot-in-command and the operations manager could have stopped the flight from being dispatched. We have shown that PAL is an air operator, that the company authorized the flight and that the flight failed to carry the fuel as required under Part VI (CARs 704.20).

Mr. Vaillancourt stated that PAL would never authorize a flight without sufficient fuel. Senior management of PAL practice due diligence through operational control via their operations manual and through the attitude of managing personnel. We would never suggest or condone flying without adequate fuel or with equipment failures and do everything possible to make our employees aware of proper operational procedures. Approximately 1,000 flight plans are filed per month and over 20,000 hours per year are flown by PAL.

DISCUSSION

PAL is being assessed a monetary penalty for authorizing an IFR flight which did not carry sufficient fuel to meet the requirements of the IFR flight as filed.

Through not only testimony but exhibits, the Minister has shown that a Twin Otter, registration marks C-FWLG, owned and operated by PAL did conduct an IFR flight from Nain, Labrador to Goose Bay, Labrador on March 14, 2001. This flight was shown to be conducted under IFR flight rules. Testimony also indicated that the amount of fuel on board was indicated on the flight plan as 1,850 pounds at Nain with approximately 900–1,000 pounds remaining at Goose Bay. It has been shown that the amount of fuel on board was insufficient to meet the requirements of the IFR flight plan as required. The Minister's case has been proven that the flight was in contravention of section 704.20 of the CARs.

Both testimony and exhibits show that PAL flight 961 did operate under a Type C dispatch system. This type of dispatch system allows for operational control of the flight to be delegated to the pilot-in-command by the operations manager (director of flight operations) who retains responsibility for the day-to-day conduct of flight operations. The Minister has alleged that PAL, as the holder of the air operator certificate and the owner of the aircraft, is in fact the authorizing authority for this flight and if so should be held responsible for the contravention of section 704.20 of the CARs.

Testimony from both Mr. Blake and Mr. Furey indicated quite clearly that there was a breakdown in communication between the pilot and the first officer regarding two important factors: (1) the amount of fuel that could be loaded on the aircraft, Mr. Furey assuming that the tanks were to be filled and more importantly (2) the change in alternate destination as filed on the IFR flight plan from Churchill Falls to Nain by Mr. Furey.

Although one can assume that overall responsibility for the flight has to be with PAL as the owner of the aircraft and the holder of the air operator certificate, as with any flight the ultimate responsibility for the flight always rests with the pilot-in-command, although some of the responsibility would have to be shared with Mr. Furey for the breakdown in communication. Nevertheless it was the responsibility of the pilot-in-command, Mr. Blake, to ensure that he had all relevant information and that he was fully aware of the IFR flight plan that had been filed on his behalf. If Mr. Blake had been made aware of the change in alternate, he may have added the extra fuel necessary to conform with the IFR flight plan as filed. The Type C dispatch system clearly places the on-site responsibility with authorization of the flight with the pilot-in-command. In this particular instance, as the flight was being conducted from a remote region, even though there was a land line communication with the operations centre in St. John's, Newfoundland, it would be quite difficult for the director of flight operations to maintain a direct supervision of the dispatch of this flight compared to if the flight was originating from a more central location. This again suggests that the actual dispatching of the flight is more the responsibility of the pilot-in-command.

Mr. Vaillancourt stated that PAL never encouraged its pilots to take on less fuel or operate outside safety parameters, and both Mr. Blake and Mr. Todd Furey agreed with this.

Mr. George Furey also indicated that as director of flight operations he ensured the proper conduct of operations of PAL according to regulations and through the chief pilots and senior pilots in the region that the conduct of flight operations was carried out according to regulations. It was also indicated in the letter of response from PAL to Mr. Noel concerning the alleged infraction of section 704.20 of the CARs that, having been made aware of the occurrence, they had interviewed and counseled the crew members on a number of occasions and had consulted with the operational base supervisor at Goose Bay concerning this. This would suggest that PAL did react in a responsible fashion to the initial inquiries of Transport Canada regarding a possible violation of section 704.20 of the CARs. This would appear to be an appropriate response that one would expect from the director of flight operations in order to maintain overall supervision and operational control of a Type C dispatch system.

From the evidence and testimony provided, there appears to be agreement, not only from Transport Canada but also from PAL, that fuel requirements for the IFR flight as filed were not met and that the flight was in violation of section 704.20 of the CARs.

Also from testimony provided by Mr. Blake, as pilot-in-command he has been assessed a monetary penalty by Transport Canada and has paid this penalty. In paying this fine Mr. Blake has assumed responsibility as pilot-in-command for the infraction of section 704.20 of the CARs. The question is, should PAL, as the holder of the air operator certificate and the ultimate authority for the flight, be held equally responsible?

In order to be held equally responsible one would have to question could PAL senior management have done more to oversee this flight to allow more active participation in the dispatch of every individual flight? Even if an audit system were in place, the IFR flight plan was filed incorrectly in that a flight endurance time of 3 hours 30 minutes was given on the flight plan by Mr. Furey. This was because he assumed that the fuel tanks were to be filled. As the flight plan was filed from a remote location, there would be no way for flight operations in St. John's, Newfoundland to know that the tanks had not been filled. Even if the flight plan was scrutinized by senior operations personnel in St. John's with a fuel endurance of 3 hours 30 minutes assumption would have been made that the flight had adequate fuel, and the flight would have been authorized based on that. It would therefore appear that even if PAL were auditing every single flight plan that was filed, if they had audited this plan based on the information on the flight plan and the amount of fuel indicated, the flight plan would have been authorized as they would not have known that only 1,850 pounds of fuel were on the aircraft which is less than 3 hours 30 minutes endurance.

Further, the Type C dispatch system clearly states that the authority has been delegated to the pilot-in-command, which in practicality is required for remote operations. Although there was land line communication with PAL operations centre in St. John's, Newfoundland, it would be very difficult for their operations centre in St. John's to maintain direct control of every flight they had leaving from remote locations, hence the requirement for a Type C dispatch system.

CONCLUSION

The Minister has proven that a Twin Otter aircraft, C-FWLG operated as flight 961 from Nain, Labrador to Goose Bay, Labrador on March 14, 2001 did contravene section 704.20 of the CARs. Testimony has indicated that the pilot-in-command of this flight, Mr. Blake, was assessed a monetary penalty, and this penalty has been paid. The Minister has also alleged that PAL, as the holder of the air operator certificate operating under a dispatch C system, is also in violation of section 704.20 of the CARs and has been assessed a monetary penalty of $1,250.00.

As discussed above, the dispatch C system gives authority for the flight dispatching to the pilot-in-command who has assumed responsibility for the violation of section 704.20 of the CARs by paying the fine. Notwithstanding, the IFR plan as transmitted to PAL headquarters in St. John's for filing with NAV CANADA was incorrect. The amount of fuel indicated on the flight plan was 3 hours 30 minutes, although the aircraft did not carry this much fuel, and there would be no way for senior management to have known this.

Accordingly the defence of due diligence has been made out. For this reason, notwithstanding the admission of contravention by the pilot-in-command who paid the penalty assessed against him, PAL should not be held responsible for the contravention of section 704.20 of the CARs. I dismiss the monetary penalty that had been assessed.

Dr. Ronald McLeod
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Philip D. Jardim, Suzanne Racine


Decision: September 17, 2002

We deny the appeal and confirm the review Member's decision to dismiss the monetary penalty that had been assessed by the Minister of Transport.

An appeal hearing on the above matter was held Wednesday, August 21, 2002 at 10:00 hours at City Hall in St. John's, Newfoundland.

BACKGROUND

As a part of its oversight duties Transport Canada conducted an in-flight inspection on Provincial Airlines Limited (PAL) flight 961 on March 14, 2001. The flight was found to be satisfactory except for a problem that became evident on the Nain to Goose Bay Labrador leg. The captain of the Twin Otter aircraft assumed the fuelling duties on the ground in Nain and instructed the first officer to file an instrument flight rules (IFR) flight plan for the Nain to Goose Bay sector with Churchill Falls as the alternate. The captain refuelled the aircraft with the appropriate quantity of fuel for that plan.

PAL employs a pilot self dispatch system, known as a "Type C", which requires the pilots to complete all the required paperwork which then gets relayed to the company in St. John's. Upon checking the weather prior to filing the flight plan the first officer ascertained that Churchill Falls' weather was below the weather limits that would have been acceptable for use as an alternate. He changed the flight plan to utilize a return to Nain as the alternate destination. That alternate required more fuel than did the Churchill Falls selection.

It was later revealed that the first officer did not communicate to the captain this change in the flight plan. Only in-flight when the Transport Canada inspector queried the crew as to the fuel load did the captain become aware of the change. However, he did not take any action to rectify the situation.

Transport Canada investigated the circumstances of the occurrence and eventually alleged violations of regulations against both the captain and PAL.

A hearing of the allegation against PAL was conducted on March 27, 2002 in St. John's Newfoundland. The Hearing Officer concluded that, notwithstanding the admission of contravention by the captain, the company should not be held responsible for a contravention of section 704.20 of the Canadian Aviation Regulations (CARs) as it had exercised due diligence.

The Minister has brought an appeal from that finding.

GROUNDS OF APPEAL

The grounds of appeal are as follows:

  1. The Member erred in law in interpreting the law of due diligence;
  2. The Member erred in law in applying the law of due diligence to the facts of the case;
  3. The Member's finding, that the Respondent exercised due diligence, was patently unreasonable as there was no evidence to support it; and
  4. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

SUBMISSIONS

The Minister's arguments were presented by Mr. Hector. He stated that the Member had found that a contravention of section 704.20 of the CARs had occurred. That finding was based on testimonial and documentary evidence including the admission of the pilot-in-command. Therefore the finding was reasonable and should not be disturbed.

The written grounds of appeal regarding due diligence were further addressed with reference to pertinent jurisprudence. The Minister asks that the decision be overturned and the monetary penalty of $1,250.00 be upheld.

PAL was represented by Mr. Thomas Kendell. In his opinion the Member did not err in his interpretation of nor application of the law of due diligence as his reasoning was consistent with the interpretation in jurisprudence such as the Shermet case.[1]

Further it was submitted that whether the evidence relates to the due diligence taken to avoid the commission of the offence or whether enough evidence was adduced to establish the defence are questions of fact.

It was argued that there was factual evidence in the record which supported the Member's conclusion. Thus the appeal panel should be reluctant to overturn those findings as the findings could not be said to be unreasonable.

PAL requests that the Minister's decision be dismissed with costs.

THE LAW

The Aeronautics Act provides at section 8.5:

8.5 No person shall be found to have contravened a provision of this Part or any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

This Part refers to Part I of the Aeronautics Act. The CARs are regulations made under Part I.

THE ISSUE

Section 8.5 of the Act codifies the defence of due diligence. The seminal case regarding the concept of strict liability offences in regulatory matters was Sault Ste. Marie.[2] In Civil Aviation Tribunal jurisprudence the Shermet case is most often relied upon for guidance on the subject. There the appeal panel stated that:

Once the party alleging contravention has proved the constituent elements of a strict liability offence on a balance of probabilities, the onus then shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid commission of the offence.

In this case the Member had found that the Minister proved a contravention of section 704.20 of the CARs. He also found that PAL should not be held responsible for the contravention as the defence of due diligence had been made out.

The issue is did the Member properly interpret and apply the law of due diligence to the facts of the case.

DISCUSSION

The hearing Member did not expressly address due diligence in his determination other than to state that the defence had been made out. However from a reading of the determination we find that he did put his mind to the concept.

The determination of what diligence would be in a specific instance depends on the circumstances that prevail.[3] The evidence of the due diligence must relate to the action taken to avoid the commission of the offence.[4] Here the offence was the authorization of a flight by PAL when the aircraft did not have sufficient fuel to meet the requirements. It must be viewed in the circumstance of a "Type C" dispatch system that was then in place.

It is apparent that the Member was cognizant of the concepts of due diligence as he queried what more could have been done by PAL senior management to oversee the flight. He found that with a Type C dispatch even if an audit system for flight plans had been in place the error still would have gone unchecked.

Mr. George Furey testified that the company exercised control over the operations through the operations manual. However the Minister argues that PAL had to show that it established a proper system to prevent the offence and that it had taken reasonable steps to ensure the effective operation of the system.

The actions taken must have been to prevent the occurrence from happening, that is, taken prior to the occurrence rather than after. Evidence such as Exhibit M-3 which outlines Mr. Furey's actions after the occurrence would not constitute due diligence. However there is evidence that PAL did take steps to ensure the effective operation of the system prior to the occurrence. It issued operational directives, conducted meetings with the pilots, conducted proficiency checks, line checks as well as base and enroute inspections.[5] That was evidence upon which the Member could conclude that the company did take steps to ensure the effective operation of the system. The Member concluded that there was no more that the company could have done to prevent the occurrence.

It is unfortunate that the Member did not identify the facts upon which he based his findings of due diligence. However we find that his conclusion is reasonably supported by the evidence.

Although we may have come to a different impression on the facts, his conclusion is not so unreasonable that we could not have come to the same one.

CONCLUSION

We deny the appeal and confirm the review Member's decision to dismiss the monetary penalty that had been assessed by the Minister of Transport.

Reasons for Appeal Determination by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Philip D. Jardim, Member
Suzanne Racine, Member


[1] Harry Edward Joseph Shermet v. Minister of Transport, CAT File No. C-1021-02.

[2] R. v. Sault Ste. Marie [1978] 2 S.C.R.

[3] Leslie Gerald Marsh v. Minister of Transport, CAT File No. C-1095-02.

[4] Minister of Transport v. NAV CANADA, CAT File No. C-1941-41.

[5] Transcript of the review hearing, pages 114-117.