Today I read a curious decision handed down by the Transport Appeal Tribunal of Canada. That’s the body to which pilots can appeal if Transport Canada fines them (officially, issues an administrative monetary penalty) for breaking one of the Canadian Aviation Regulations. If the appeal is successful, the fine is cancelled and the pilot’s reputation remains unblemished.

The facts

This case concerns the three pilots on board a Cessna 172 during a series of four flights. Two of the pilots were PPL-holders, gaining experience towards their CPLs. The third was an instructor from their flight school. On each flight one CPL-holder sat in the front left seat and flew the plane, and the other sat in the back as a passenger. The instructor sat in the front right seat.

On the fourth flight, the airplane suffered a catastrophic loss of power and the instructor (in the right seat) took the controls and made a successful emergency landing with no injuries and minimal damage. (‘Bravo!’ said the Tribunal, quite reasonably – and the Transport Canada inspector agreed, apparently oblivious to the irony that this was the pilot whom he was prosecuting at the time.)

The charge was due to the following set of facts, as best as I can make them out from the report (which itself is not entirely clear):

On the penultimate flight of the series, the pilots noticed an “unstable RPM”. At the start of the fourth and final flight they conducted a runup (a normal occurence, except this time they had the assistance of a mechanic from home base, whom they called on FaceTime). They detected no issue and concluded that the issue during the previous flight was due to carburetor icing.

Some time after takeoff on the fourth flight the engine failed, leading to the emergency landing.

The charges and outcome

Transport Canada alleged that one of the CPL students – the one who was PIC for the third flight – was guilty of an infraction for failing to record in the journey log the details of the unstable RPM, and that the supervising instructor (who took the controls after the engine failure and according to the Minister must therefore have been PIC for that flight) was guilty of an infraction for not entering the details of the pre-flight run-up and the subsequent loss of power in the journey log.

The tribunal said that Transport Canada had offered no evidence that the RPM instability was due to anything other than carburetor icing which itself was neither an “abnormal occurence” nor a “defect”. Therefore on the balance of probabilities there was nothing that was required to have been entered in the journey log about it.

As to the second charge, against the instructor on board, this was not upheld either. The tribunal found that despite the facts that he was the most senior pilot on board and that he took the controls for the emergency landing, he was still not the Pilot in Command, and he himself had no obligation to make any entries in the journey log in respect of the flight or the ocurences.

As it turned out, the engine failure was due to a push rod/rocker arm failure, which was most unlikely to have caused the previous RPM instability. The two issues were not related.

Discussion

I find this case interesting for two reasons. Firstly that the tribunal agreed that an anomaly (let’s call it) that is likely or probably caused by some normal condition, such as carburettor icing, need not be entered as a defect in the journey log, even if you’re not 100% sure that’s the cause.

Secondly, that even if a more experienced instructor is on board and seated next to a student, that student can still be Pilot In Command of the airplane for the flight. The tribunal member wrote:

The Cessna 172 aircraft is a single pilot/single engine certification aircraft. Although three pilots were onboard that day, only one, when designated, can act as pilot-in-command. There is no doubt in my mind that [the instructor] took control of the aircraft on September 1, 2019, near Pointe-aux-Outardes. As a commercial flight instructor pilot, he would have been the most experienced pilot onboard to handle the engine failure emergency. I would expect no less. But this does not automatically make him pilot-in-command. The pilot-in-command on this leg was [the CPL student].

The tribunal even went so far as to describe the instructor’s as role as that “of a safety/supervising pilot passenger”, which is not a position recognized in law or anything I’ve heard a pilot described as before. I wonder if Transport Canada will appeal.

If you want to read all the details yourself, you’ll find the judgement here:

Horia Sucuturdean and Shuang Li v. Canada (Minister of Transport), 2022 TATCE 56 (Review)