Regulations and You Regulations and You

False Representation and Entries

by Jean-François Mathieu, LL.B., Chief, Aviation Enforcement, Standards Branch, Civil Aviation, Transport Canada

Aviation Enforcement has devoted many of its previous articles in this publication to information regarding the enforcement of the Canadian Aviation Regulations (CARs). The Aeronautics Act (AA) is the legislation that authorizes the creation of these regulations and also establishes specific and serious prohibitions and offences and the associated punishments for violations. The purpose of this article is to focus on subsection 7.3(1) of the AA, and specifically paragraphs 7.3(1)(a) and M7.3(1)(c) which, are very serious offences related to "False Representation" and "False Entries." Paragraph 7.3(1)(a) of the AA states: "No person shall knowingly make any false representation for the purpose of obtaining a Canadian aviation document or any privilege accorded thereby." Paragraph 7.3(1)(c) states: "No person shall make or cause to be made any false entry in a record required under this Part to be kept with intent to mislead or wilfully omit to make any entry in any such record." Offences in this subsection of the AA involve intent by the person, a deliberate act on the part of the offender to wilfully carry out an act or omission of an act.

In simple terms, we are referring to voluntary actions committed by a person that could be considered "fraud." The common understanding of "fraud" is dishonesty calculated for personal gain or advantage. Offences under 7.3(1)(a) and 7.3(1)(c) of the AA are two offences that have serious consequences, and a person who is found to be in contravention of these paragraphs is guilty of an indictable offence or an offence punishable on summary conviction. These offences could subject the person to a comprehensive investigation by Transport Canada, which may result in the person appearing in court. An individual who is convicted of this type of offence is punishable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding one year, or to both a fine and imprisonment. A corporation that is convicted of this type of offence is punishable on summary conviction to a fine not exceeding $25,000. Aviation Enforcement also has the option of assessing a punitive suspension of a Canadian Aviation Document (CAD) rather than proceeding by summary conviction or indictment, and depending on the circumstances and other factors surrounding the offence, may take this course of action.

Many of the most recent cases surrounding 7.3(1) offences of the AA typically involve pilots, student pilots and aircraft maintenance engineers. Some pilots and student pilots have knowingly falsified flight records and training records for the purpose of obtaining ratings or for upgrading licences. These individuals knowingly embellish their own flight times for the sake of simplicity or time constraints. A few pilots have also consciously made false declarations or have wilfully omitted critical information on their medical applications to hide certain medical facts. Some aircraft mechanics have purposely made false statements or declarations on their applications in the interest of obtaining a licence or rating. There have been some aircraft maintenance engineers that have signed another aircraft maintenance engineer's name in a maintenance release applicable to an independent inspection, when in fact the work was either not carried out or wasn't up to the applicable standard. Some corporations have also falsified training records for unqualified crew so they could carry out flight duties without going through the expense of qualifying them. These are all serious offences that were wilfully and knowingly carried out by the offenders for the purpose of obtaining some degree of personal gain or advantage.

While it may seem like a very innocuous and outwardly harmless act at the time, committing these fraudulent types of offences can, in fact, turn out to have very serious consequences down the road. Some of these consequences, upon conviction, can range from a record of the offence on the person's file, to imprisonment, fines, licence suspensions and even limitations to future employment opportunities.

Section 8.4 of the AA also stipulates that another person who has responsibility or influence over an individual who has committed an offence under 7.3(1) may also be proceeded against in respect of and found to have committed an offence under this section using the doctrine of vicarious liability.

The AA also requires, under section 7.31, that where the offence is committed or continued on more than one flight or segment of a flight, it shall be deemed to be a separate offence for each flight or segment of the flight. Therefore, multiple offences could be charged to a person for the sake of one act.

Aviation Enforcement has and will continue to rigorously investigate these serious allegations and determine the appropriate penalties that will deter others from embarking on this same path. Those few persons who elect to engage in these types of activities run the risk of not only tarnishing their own personal records, but could possibly be limiting their future job opportunities and advancement, and consequently their incomes.

We recognize that voluntary compliance with the regulations is the most progressive and effective approach to aviation safety. Voluntary compliance is based on the idea that members of the aviation community have a shared interest, commitment, and responsibility to aviation safety, and that they will operate on the basis of common sense, personal responsibility, and respect for others. When users fail to meet their obligations and contraventions occur, Aviation Enforcement is committed to enforcing the aeronautic legislation in Canada in a fair and firm manner.

Tribunal Case Review: Responsibility of Crew to Determine Fuel Quantity in Tanks

by Beverlie Caminsky, Chief, Advisory and Appeals, Policy and Regulatory Services, Civil Aviation, Transport Canada

In a decision of the Transportation Appeal Tribunal of Canada (TATC), on March 28, 2008, the tribunal pointed out the importance of properly functioning flight equipment in an airplane. In the case discussed below, a Cessna 172, according to the aircraft owner's manual, was equipped with two (2) fuel tanks, one in each wing. The Minister of Transport's witnesses confirmed that, at the time of the infraction, the left fuel gauge in the airplane was unserviceable while the right fuel gauge was operational.

The Minister assessed a monetary penalty of $750 against the pilot-in-command for a contravention of paragraph 605.14(j)(i) of the Canadian Aviation Regulations (CARs) which reads as follows:

605.14 No person shall conduct a take-off in a power driven aircraft for the purpose of day VFR flight unless it is equipped with

(j) a means for the flight crew, when seated at the flight controls to determine

(i) the fuel quantity in each main fuel tank.

The pilot-in-command had argued that there was only one fuel tank. His position was that the fuel system, as it appears in the owner's manual, does not include two fuel tanks but only one that is linked at the top and the bottom. The TATC Member, at the initial review hearing on January 28, 2008, determined that there were two (2) distinct fuel tanks, each one having its own gauge, which was clearly contained in the aircraft owner's manual, which described the FUEL SYSTEM. Neither the Minister of Transport, nor the pilot-in-command, had introduced an expert witness in the design and functioning of the aircraft's fuel tanks and fuel system. The TATC Member at the review level confirmed the $750 monetary penalty saying that the pilot-in-command had contravened CAR 605.14(j)(i) because he had not been able to determine the quantity of fuel in one of the main fuel tanks.

The pilot-in–command appealed the Review Member's decision to the appeal panel of the Transportation Appeal Tribunal of Canada (TATC). He argued that the Review Member had relied on inaccurate information about the Cessna 172. The three (3) members of the appeal panel stated that, on the day of the infraction, it was not contested that one of the two fuel gauges was not operating. The appeal panel also stated that CAR 605.14(j)(i) sets out the necessity of having a fuel gauge that allows the quantity of fuel in each tank to be determined. The appeal panel concluded that the Review Member's findings of fact were reasonable and his decision was confirmed.

In this case the Cessna 172 was forced to execute an emergency landing on a busy street in the city, possibly because it had run out of fuel.

The pilot-in-command at the time of the forced landing held the position of operations manager, chief pilot and maintenance coordinator within the company which was the registered owner of the aircraft. Evidence was given by the Minister's witnesses, at the review hearing, that the left fuel gauge had been unserviceable for almost a year prior to the forced landing. One of the Minister's witnesses pointed out that, with only one working gauge, the flight crew could never know if the weight was unbalanced or if more fuel was coming from one wing. The pilot-in-command had plenty of time to take action to ensure that the left fuel gauge was repaired before he took off.

The importance of aviation safety for the protection of the public cannot be understated. It is crucial that an aircraft is in condition for safe operation, which it was not in the facts of this case.

In the case described above, even when the fuel tanks are linked at the top and bottom, the crew members must be able to determine the fuel quantity in each fuel tank. The flight crew, with an unserviceable left fuel gauge, could not ascertain how much fuel was in the left wing tank and allowing the aircraft to remain in service in that condition presented a hazard that was unacceptable.

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