Decisions

CAT File No. Q-1903-12
MoT File No. 5008-GGYQ

CIVIL AVIATION TRIBUNAL

BETWEEN:

Benoit Demers, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.1(1)(b), 8.7(1)
Canadian Aviation Regulations, SOR/96-433, s. 605.85(2), SOR/2000-404, s. 571.06, 571.10, 571.10(1)

Certificate of airworthiness, Suspension, Conditions of issuance


Review Determination
Carole Anne Soucy


Decision: March 21, 2000

TRANSLATION

I confirm the suspension of the certificate of airworthiness for the aircraft registered C-GGYQ for the period of September 15, 1999 to October 29, 1999, the date on which the Applicant met the conditions for reinstatement.

A Review Hearing on the above matter was held December 6, 1999 at 10:00 hours at the Federal Court of Canada premises in Montréal, Quebec.

PURPOSE OF THE REVIEW HEARING

Pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, the Minister of Transport has decided to suspend the certificate of airworthiness, the special certificate of airworthiness or the flight permit in respect of an aircraft type Bellanca 7GCBC Citabria, registered C-GGYQ, on the grounds that said aircraft does not comply with conditions subject to which the document was issued for the following reasons:

Unacceptable response to letter of notification 24-0019 dated July 27, 1999 regarding unapproved float configuration following installation of modifications Q90-085A and Q90-086A.

The effective date of the suspension was September 15, 1999.

On October 1, 1999, the owner of the above-mentioned aircraft filed a request for review with the Civil Aviation Tribunal on the following grounds:

  1. Sending an "acceptable" response to a letter of notification (form 24-0019) is not one of the conditions to which the certificate of airworthiness was issued;
  2. The approvals Q90-085A and Q90-086A allow for the installation of the modifications in question at the same time as the floats.

Consequently, the aircraft registered C-GGYQ continues to comply with conditions subject to which the certificate of airworthiness was issued.

THE FACTS

The Applicant, Mr. Benoit Demers, is the owner of aircraft type Bellanca 7GCBC Citabria, registered C-GGYQ.

On March 8, 1990, Transport Canada approved two modifications to the aircraft's equipment. The modifications consisted of installing auxiliary dorsal fins on the horizontal stabilizer as well as installing "Crosswinds". The approvals bear numbers Q90-085 and Q90-086.

On March 20, 1990, Transport Canada added new details to the approval documents. With these details, approval became applicable only when the aircraft was equipped with wheels or skis of an approved type and eventually floats when flight tests would be carried out. The approvals subsequently bear numbers Q90-085A and Q90-086A.

Contrary to the Applicant, Transport Canada submits that these were major modifications.

On September 21, 1998, the Applicant wished to have the installation of floats on the modified aircraft approved and asked Transport Canada about the requirements to that effect.

On September 23, 1998, Transport Canada responded that in order to remove the float limitation, a proposed flight test program as well as evaluations and recommendations were required. The Applicant refused to comply with the program and submitted that the flight tests carried out after the modifications made in 1990 were sufficient. Transport Canada suspended the certificate of airworthiness. The suspension which was effective September 15, 1999 was lifted October 29, 1999 since Benoit Demers had complied with the conditions for reinstatement of the certificate.

PRELIMINARY COMMENTS

No preliminary agreement was made between the parties.

Mr. Brian Jenner, the Applicant's representative, made a preliminary motion citing the invalidity of the suspension because of the nonconformity of the notice. According to him, the lack of details and reasons provided in the notice, namely the "Unacceptable response to letter of notification 24-0019 dated July 27, 1999 regarding unapproved float configuration following installation of modifications Q90-085A and Q90-086A," is not a condition for suspension for not complying with conditions governing the issuance of the flight authority.

The Tribunal, having taken this request under advisement, rules as follows: the formulation of reasons provided for suspending the certificate of airworthiness reflects the very text of the letter of notification directly related to the notice of suspension. The first paragraph of the letter of notification reads as follows:

Pursuant to Section 8.7(1) of the Aeronautics Act, the aircraft described above has been inspected and the following defects or deficiencies have been noted: float configuration not approved following the installation of modifications Q90-085A and Q90-086A.

The last paragraph in the letter of notification stipulates that if an acceptable response is not received by the response date indicated, the aircraft flight authority will be suspended pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, on the grounds that the aircraft has ceased to comply with the conditions subject to which the flight authority was issued or the aircraft may be detained.

Since semantics are not the focus of this case, I believe that the substance should rule over the form.

Furthermore, paragraph 7.1(2)(a) of the Aeronautics Act stipulates:

(2) A notice under subsection (1) shall be in such form as the Governor in Council may by regulation prescribe and shall, in addition to any other information that may be so prescribed,

(a) indicate, as the case requires,

(i) the medical grounds on which the decision of the Minister is based,

(ii) the nature of the incompetence of the holder of the Canadian aviation document that the Minister believes exists, the qualifications necessary for the issuance of the document that the Minister believes the holder of the document or the aircraft, airport or facility in respect of which the document was issued ceases to have or the conditions subject to which the document was issued that the Minister believes are no longer being met or complied with, or

(iii) the elements of the public interest on which the decision of the Minister is based;

By way of notice, the Minister is clear in indicating to the document holder that the float configuration of the aeroplane was not approved following the modifications and consequently did not meet the conditions subject to which the document was issued.

For these reasons, the motion was dismissed.

EVIDENCE

The Minister's representative presented his evidence first by calling two witnesses.

The first witness, Mr. Pierre Richard, is an engineer and has been certifying aircraft for 12 years. He is an airworthiness engineer for the Department of Transport and his role consists of approving modifications and/or major repairs on aircraft in Canada.

He testified that the procedure for issuing approvals is a two-step process. First, the request for modifications must be documented and must meet the requirements for the basic certificate, the document which shows the aeroplane is certified. Secondly, the Minister of Transport must approve "design" changes as in documents M-1 and M-2. These two documents each have an approval number, Q90-085 and Q90-086, and were approved on March 8, 1990 by Mr. Richard.

Included is a brief description of the modifications made to the aircraft, the installation of horizontal stabilizer tip fins. Also mentioned is the fact that the document entitled "Airplane Flight Manual Supplement" (Exhibit M-3) supersedes the basic "Airplane Flight Manual" regarding the information related to modifications and must be attached to the basic manual.

Mr. Richard emphasized that document M-2 refers to the modifications approved March 20, 1990. In both cases, there was an addition in the section entitled "limitations & comments" including the following details:

This approval is presently applicable only when the aircraft mentioned above is equipped with wheels or skis of an approved type and eventually with floats when flight tests are carried out.

With these details, the approvals subsequently bear numbers Q90-085A and Q90-086A. According to Mr. Richard, major modifications must be approved. The Minister produced the relevant documentation to that effect, with the definition of major modifications taken from the Engineering and Inspection Manual, Parts I and II (Exhibit M-4):

1.12.2 A major modification is an alteration which appreciably affects one or more properties of an aeronautical product which must conform to approved airworthiness standards; after alteration, it must be recertified by a competent authority as meeting the appropriate standards in its new form.

Mr. Richard explained that if changes could potentially have different effects on the airworthiness of the aircraft and/or on its method of landing, additional restrictions or tests, such as flight tests, must be imposed.

In this case, the flight tests were performed with wheels only. According to the witness, it is necessary to perform additional flight tests that focus on the landing gear and evaluate the landing speed when the aeroplane is on floats.

Mr. Richard also mentioned the various steps required for approval.

  1. request for approval revisions;
  2. submission of a flight test program on floats;
  3. request for a flight permit after modifications;
  4. Transport Canada's recommendation to the maintenance division to issue the flight permits;
  5. flight test;
  6. submission of the flight test report;
  7. if the report is accepted, the Minister may revise the approval for modifications to floats.

In a letter dated September 21, 1998, Mr. Gary Milot, director of maintenance for Air Melançon inc., where the Applicant has maintenance performed on his aircraft, sent a letter to Transport Canada (Exhibit M-5) asking about requirements for validating the certificate of airworthiness of the aircraft with installation of the floats following the modifications made to the wings in 1990.

On September 23, 1998, the response from Transport Canada to Mr. Milot (Exhibit M-6) states that a proposed flight test program should be submitted and, when evaluated and found acceptable by Transport Canada, will lead to a recommendation to the maintenance division.

On December 16, 1998, Transport Canada sent a letter to Mr. Benoit Demers (Exhibit M-7) informing him that after verification, the conformity certificate of September 17, 1998 was incomplete. Information about the flight tests which were required for approvals Q90-085A and Q90-086A were not provided.

Mr. Pierre Lambert, who works as an aircraft maintenance engineer at Air Melançon, signed the conformity certificate, certifying that the work detailed on the reverse side of the sheet (24-0045) was accomplished in accordance with data either approved by or specified by the Minister. Mr. Richard then referred the matter to the maintenance division who concluded that the certificate of airworthiness was invalid for floats.

On July 27, 1999, a letter of notification from Mr. Vianney Paradis, Superintendent of the maintenance division of the Dorval district for Transport Canada (Exhibit M-8), was subsequently sent to Mr. Benoit Demers, asking him to confirm his compliance with Transport Canada's requirements prior to August 27, 1999 and that if he failed to do so, the aircraft flight authority would be suspended.

On August 9, 1999, Mr. Milot sent to Transport Canada a full report of a flight test done on October 3, 1998. According to Mr. Richard, this document was not acceptable because Transport Canada's procedure had not been followed. The aircraft on floats was not authorized to carry out flight tests because it had no flight authority. The request for a flight permit had not been made. There had been no recommendation or consultation as required in the procedure.

Under cross-examination, Mr. Richard specified that documents M-1 and M-2 are approval documents and that he had signed them himself thereby approving the modifications made to the aircraft in question.

He specified that the documents were delivered to Mr. Pierre Lambert since he was the applicant on the request for approval. He added that the approvals for modifications Q90-085A and Q90-086A replaced and superseded approvals Q90-085 and Q90-086. Under re-examination, he specified that the letter A adds a privilege rather than placing a restriction. He further testified that it is the prerogative of the airworthiness engineer to decide on the acceptability of the modifications made as well as the flight test.

With the Minister's evidence completed, Mr. Brian Jenner, the Applicant's representative, called Mr. Gary Milot as a witness. Mr. Milot, director of maintenance at Air Melançon, testified that he has communication problems with Transport Canada.

He stated that he supervised the installation of floats on Mr. Benoit Demers's aircraft. He referred to document M-7, the conformity certificate signed by Mr. Pierre Lambert. He also completed the reverse side of said document (24-0045) and understood that a flight test had to be carried out following the modifications made to the aircraft. However, he submitted that Transport Canada not only required flight tests, but also a substantial amount of information about these tests.

According to the witness, there was no conflict between the horizontal stabilizer tip fins and the installation of floats.

He added that the flight test report submitted in 1990 (Exhibit T-3) was almost word for word identical to the text in the report of 1998 (Exhibit M-9). This was the same document, except for some of the data. In 1990, the flight test was conducted on wheels and in 1998 on floats.

Referring to Exhibit M-1, Mr. Milot specified that the fins are necessary when the aircraft is on floats, not on wheels, and submitted that flight tests are more difficult on wheels. Therefore, if the tests are successful on wheels, they are automatically successful on floats.

Under cross-examination, Mr. Tamborriello, referring to Mr. Milot's letter to Transport Canada dated September 21, 1998 (M-5), asked Mr. Milot to explain the purpose of the question "What is the requirement of Transport Canada to validate this installation on floats because of previously modified wings"? Mr. Milot simply answered that he needed help because he was not familiar with the 85-86 modifications (M-1 and M-2). Mr. Lambert, his employee, was aware, but he was not. Since he was unsure, he asked for help from Transport Canada.

Transport Canada answered that they required a flight test program, and Mr. Milot did not agree with this. He said that the answer from Transport Canada does not refer to obligations, but rather suggestions because the word "should" is used.

Mr. Richard was re-examined by Mr. Tamborriello for clarification after Mr. Milot's testimony.

Referring to document T-4 filed earlier, Mr. Richard made a distinction between aircraft on floats as mentioned and that of Mr. Demers with regard to fins. In the case of Mr. Demers's aircraft, the fins were installed on the tips of the horizontal stabilizer creating a larger surface. Mr. Richard testified that a larger surface affects the aircraft's stability and, under the circumstances, one or more flight tests were necessary.

THE LAW

Subsection 7.1(1) of the Aeronautics Act stipulates:

7.1 (1) Where the minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

Subsection 8.7(1) of the Aeronautics Act stipulates:

8.7 (1) Subject to subsection (4), the Minister may

(a) enter any aircraft, aerodrome, facility relating to aeronautics or any premises used for the design, manufacture, distribution, maintenance or installation of aeronautical products for the purposes of making inspections relating to the enforcement of this Part;

(b) enter any place for the purposes of an investigation of matters concerning aviation safety;

(c) seize anything found in any place referred to in paragraph (a) or (b) that the Minister believes on reasonable grounds will afford evidence with respect to an offence under this Part or the causes or contributing factors pertaining to an investigation referred to in paragraph (b); and

(d) detain any aircraft that the Minister believes on reasonable grounds is unsafe or is likely to be operated in an unsafe manner and take reasonable steps to ensure its continued detention.

RESPONDENT'S ARGUMENT

According to the Minister's representative, the issue is whether flight tests approved by Transport Canada must be carried out with the aircraft as modified before it can be used with floats. The documentary evidence shows that there is a limitation for the float configuration following the modifications made. The limitation calls for a flight test before the aircraft may be used as modified.

Mr. Milot requested a clarification of the interpretation of modifications and Transport Canada's requirements. The response given to Mr. Milot was clear and showed that a flight test program had to be produced and a flight permit issued. Mr. Tamborriello argued that Mr. Milot understood the response, but did not comply because he did not agree.

For safety reasons, the Minister's representative emphasized that the airworthiness engineers must impose limitations and requirements when there is a doubt. Once the flight test program has been submitted, they must evaluate whether it is acceptable or not. A flight permit must also be requested after the modifications. Recommendations are made to Transport Canada's maintenance division for issuance of said permit. Once the first flight test has been carried out, the test report must be submitted to Transport Canada. If it is accepted, the Department of Transport may then extend the approval to include the float modifications.

Regarding the sanction, Mr. Tamborriello explained that the suspension was the most appropriate sanction for ensuring safety given the fact that despite the imposed restrictions, the conditions had not been met.

APPLICANT'S ARGUMENT

Mr. Jenner insisted that a flight test with floats was carried out and that it was practically the same as the flight test carried out in 1990 with wheels, which had been accepted at the time.

He added that the modifications to the aeroplane had already been approved, that they were minor and that a flight test should not be required.

According to him, Exhibit M-6 has no status in law since the document was Transport Canada's response to Mr. Milot's question regarding Transport Canada's requirements that the aircraft Bellanca model 7GCBC equipped with wheels or skis could be operated on floats once the flight test procedure has been followed.

Mr. Jenner referred to the Canadian Aviation Regulations, and more specifically, to subsections 571.06(1), 571.10(1) and 605.86(2). These sections stipulate the following:

571.06 (1) A person who performs a major repair or major modification, or signs a maintenance release in respect of such a repair or modification, shall ensure that the major repair or major modification conforms to the requirements of technical data that have been approved or the use of which has been approved within the meaning assigned to the term "Approved Data" in section 571.06 of the Airworthiness Manual.

571.10 (1) No person shall sign a maintenance release required pursuant to section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

605.85 [...]

(2) Where a maintenance release is conditional on the satisfactory completion of a flight test pursuant to subsection 571.10(4), the aircraft may be operated for the purpose of the test flight if no person is carried on board other than flight crew members and persons necessary for the purpose of making observations that are essential to the test flight.

Mr. Jenner submitted that this was elementary or minor work, contrary to the Minister, and that it was not necessary to apply Transport Canada's policies on the flight test program.

For these reasons, the Applicant asked that the suspension of the certificate of airworthiness be cancelled and sought to be compensated for expenses incurred as a result of the suspension.

THE ISSUES

The Tribunal must decide whether it allows the review as requested and evaluate:

  1. whether sending an "acceptable" response to a letter of notification (form 24-0019) is not one of the conditions subject to which the certificate of airworthiness was issued;
  2. whether approvals Q90-085A and Q90-086A allow for the installation of the modifications in question at the same time as the floats.

The first point was covered in a preliminary motion which I dealt with in the Preliminary Comments section of this determination. The argument is rejected.

Regarding the second point: by carefully studying both approval documents, it is difficult for me to subscribe to the Applicant's theory. In fact, in the Limitations & Comments section, it is stated:

This is a 'one-off' approval that cannot be extended nor transferred to any other aircraft without a subsequent approval. This approval is presently applicable only when the aircraft mentioned above is equipped with wheels or skis of an approved type and eventually with floats when flight tests are carried out. This approval has been revised to add the above supplemental limitation concerning the landing gear type permitted on this aircraft.

(my underlining)

The text is clear. Flight tests are necessary if the aircraft is to be equipped with floats. It should be borne in mind that these documents are dated March 1990.

Exhibit M-6 , the letter from Mr. Richard Fortier, Regional Manager, Aircraft Certification, Québec Region, provided a detailed explanation of the requirements for validating the aircraft in question as modified when equipped with floats.

This is what he wrote:

The 'One-Off' Approval Nos. Q90-085A and Q90-086A dated March 20, 1990 are presently applicable only when the subject aircraft is equipped with wheels or skis of an approved type. They both state that the subject aircraft would be able to be operated with floats, of an approved type, when the appropriate flight tests are carried out. To date, we do not have any record of any flight tests that were performed to substantiate the 'one-off' modifications on the subject aircraft, in the floatplane configuration, with EDO Model 89A-2000 seaplane floats.

Therefore, if it is further desired by the owner to operate the subject aircraft in the floatplane configuration, a formal request for the subsequent revision of both these 'one-off' approvals should be submitted to this Office in order to be able to remove this limitation. The application should include a proposed flight test program which, when evaluated and found acceptable by this Office, will lead to our recommendation to our Maintenance Division for the issuance of an appropriate flight test permit to carry out the proposed flight tests in the floatplane configuration.

(my underlining)

This document is dated September 23, 1998.

In the document produced as M-9, here is what Mr. Milot wrote to Transport Canada on August 9, 1999:

It is our opinion that the EDO 89A-2000 float installation is approved as per the requirements of T.C.A.-749 and also conforms fully to the requirements of Q90-85A and Q90-86A, as flight tests were carried out on Oct. 03-98 before the aircraft was returned to service, acknowledging the limitation and comment section of E.O. Q90-85A and Q90-86A. Furthermore it has been demonstrated by the installer that the interrelationship between the approved modifications will introduce no adverse effect upon the airworthiness of the subject aircraft.

Careful reading of these documents raises these two points:

  1. Transport Canada required, as early as 1990, flight tests if the aeroplane was equipped with floats. In 1998, Transport Canada still required flight tests, but with additional specifications. These tests are part of an approval program developed by Transport Canada and consisting of various steps.
  2. As for the Applicant, he believed his aircraft complied with the requirements of approval documents Q90-085A and Q90-086A and therefore refused to submit to additional requirements. While he understood Transport Canada's new requirements, he refused to comply.

The Tribunal is of the opinion that the Department of Transport's representatives are required to enforce compliance with the Act and everyone is required to comply with it. If there is any doubt, the imposition of stricter measures is necessary because safety is the first priority.

Under the circumstances and considering the evidence submitted, the Tribunal is of the opinion that approvals Q90-085A and Q90-086A allowed the use of the modified aircraft when it was equipped with wheels or skis. The float limitation is clear and was clearly explained to the personnel responsible for the aeroplane's maintenance. Unfortunately, because the engineer and director of maintenance did not feel it was necessary to comply with Transport Canada's requirements, Mr. Demers's certificate of airworthiness was withdrawn.

DETERMINATION

The Minister has proven on a preponderance of probabilities that the aircraft type Bellanca 7GCBC Citabria, registered C-GGYQ, belonging to Mr. Benoit Demers, no longer met the conditions subject to which the document was issued when it was equipped with floats. The decision to suspend the certificate of airworthiness was justified.

I therefore confirm the suspension of the certificate of airworthiness for the aircraft registered C-GGYQ for the period of September 15, 1999 to October 29, 1999, the date on which the Applicant met the conditions for reinstatement.

Carole Anne Soucy
Member
Civil Aviation Tribunal


Appeal decision
Caroline Desbiens, Faye H. Smith, Michel Larose


Decision: September 18, 2000

TRANSLATION

The Tribunal confirms the review determination and maintains the decision of Transport Canada to suspend the airworthiness certificate of aircraft C-GGYQ from September 15, 1999, to October 29, 1999.

An appeal hearing on the above matter was held June 19, 2000, at 10:30 hours at the Federal Court of Canada, in Québec City, Quebec.

BACKGROUND

The appellant is appealing the determination of member Carole Anne Soucy, dated March 21, 2000, made pursuant to a review hearing.

The member confirmed the decision of the Minister of Transport to suspend the airworthiness certificate of aircraft registered as C-GGYQ for the period September 15, 1999, to October 29, 1999, the date on which the appellant met the conditions of its reinstatement.

The Minister of Transport served notice of this suspension on September 15, 1999, pursuant to section 7.1(1) of the Aeronautics Act

Unacceptable reply to letter of notification 24-0019 dated July 27, 1999, configuration of floats not approved following installation of modifications Q90-085A and Q90-086A.

for the Bellanca 7 GCBC Citabria type aircraft registered as C-GGYQ owned by Mr. Benoît Demers.

GROUNDS OF APPEAL

The appellant asked that this decision be overturned on the following grounds, contained in his request for appeal, filed with the Tribunal on March 30, 2000:

  • The member erred in law in granting the Minister of Transport powers not stipulated in the Act.
  • Furthermore, she obviously erred in her understanding of the facts, among other things in ruling that the aircraft in question had not undergone a flight test.

The authority of the Tribunal's Appeal Panel to refer the case back to the Minister for reconsideration is stipulated in subsection 7.2(5) of the Aeronautics Act.

The Civil Aviation Tribunal has already established the elements which give rise to this.

Thus, it is recognized that an error of law is one such criterion. An error of fact provides the right to an appeal provided it is palpable and flagrant, unless it concerns the issue of jurisdiction, in which case the Tribunal must decide to resolve the appeal and avoid a denial of justice.

A breach of the rules of natural justice and the discovery of new evidence existing at the time of the review hearing, but which a party was unable to provide and which would be likely to change the ruling handed down, are also reasons that may give rise to the appeal of a review determination.

In addition, the Civil Aviation Tribunal must not allow the reopening of a debate that would lead it to substitute a new assessment of the initial evidence based on the same elements of proof, nor must it allow a party to add to or make up for incomplete evidence it presented at the review hearing.

In the case of this review hearing, the member obviously exercised her discretionary power to assess the evidence, and preferred, on several grounds, not to accept the applicant's claims.[1]

Having established these parameters, the Appeal Panel of the Civil Aviation Tribunal must review the facts.

THE FACTS

The facts are taken from the written representations for the oral argument of Transport Canada, from the exhibits of record and from the review determination:

[...]

Mr. Benoît Demers is the owner of a Bellanca 7GCBC Citabria type aircraft registered as C-GGYQ.

[...]

On March 8, 1990, Transport Canada approved two aircraft equipment modifications. Approval number Q90-085 consists in the installation of vertical vanes on [the] horizontal stabilizer. Approval Q-90-086 consists in the installation of a "Crosswinds Inc. STOL kit." These are major modifications.

[...]

On March 20, 1990, Transport Canada added further information to these approval documents. As a result, the approvals became applicable only when the aircraft was fitted with wheels or skis of an approved type, and possibly on floats when the flight tests were made. The approvals bear numbers Q90-085A and Q90-086A.

[...]

On September 21, 1998, Mr. Gary Milot, director of maintenance at Air Melançon Inc. where the appellant has his aircraft maintained, sent Transport Canada a letter inquiring about the requirements for obtaining approval of the installation of floats on the aircraft following the modifications made to the wings in 1990.

[...]

On September 23, 1998, Transport Canada replied that in order to remove the restriction concerning floats, the appellant first was to submit a request for revision of approvals Q90-085A and Q90-086A. The request was to include a program of flight tests to be evaluated by Transport Canada. Once the program was approved, a recommendation would be made to the maintenance division to issue a flight permit to conduct the flight tests on floats.

[...]

On or about September 28, 1998, Transport Canada received a certificate of compliance [dated] on September 17, 1998, stating that EDO 89A-2000 floats had been [installed] on aircraft C-GGYQ.

[...]

On December 16, 1998, Transport Canada informed the appellant that after inspection, the certificate of compliance of September 17, 1998, was incomplete. The information about the flight tests required for approvals Q90-085A and Q90-086A had not been provided.

[...]

On July 27, 1999, the Minister of Transport sent the appellant a letter of notice asking him to comply with the requirements of Transport Canada before August 27, 1999; otherwise, the aircraft's flight authority would be suspended.

[...]

On August 9, 1999, Mr. Gary Milot sent Transport Canada a report of a flight test conducted October 3, 1998.

[...]

In effect, Transport Canada deemed the report inadmissible because the appellant had not followed the required procedure. The aircraft was not authorized to conduct flight tests because there was no valid flight authority. No request for a flight permit had been made. No program of flight tests had been submitted.

On September 15, 1999, the Minister of Transport suspended the airworthiness certificate of the aircraft registered as C-GGYQ.

On October 29, 1999, Transport Canada reinstated the airworthiness certificate, the appellant having met the conditions for reinstatement.

The appellant acknowledged, at the appeal level, that both modifications made to the aircraft in 1990 were, indeed, major modifications.

RELEVANT LEGISLATION

Aeronautics Act

7.1 (1) Where the Minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

the Minister shall, by personal service or by registered mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

(2) A notice under subsection (1) shall be in such form as the Governor in Council may by regulation prescribe and shall, in addition to any other information that may be so prescribed,

(a) indicate, as the case requires,

(i) the medical grounds on which the decision of the Minister is based,

(ii) the nature of the incompetence of the holder of the Canadian aviation document that the Minister believes exists, the qualifications necessary for the issuance of the document that the Minister believes the holder of the document or the aircraft, airport or facility in respect of which the document was issued ceases to have or the conditions subject to which the document was issued that the Minister believes are no longer being met or complied with, or

[...]

8.7 (1) Subject to subsection (4), the Minister may

(a) enter any aircraft, aerodrome, facility relating to aeronautics or any premises used for the design, manufacture, distribution, maintenance or installation of aeronautical products for the purposes of making inspections relating to the enforcement of this Part;

(b) enter any place for the purposes of an investigation of matters concerning aviation safety;

(c) seize anything found in any place referred to in paragraph (a) or (b) that the Minister believes on reasonable grounds will afford evidence with respect to an offence under this Part or the causes or contributing factors pertaining to an investigation referred to in paragraph (b); and

(d) detain any aircraft that the Minister believes on reasonable grounds is unsafe or is likely to be operated in an unsafe manner and take reasonable steps to ensure its continued detention.

Canadian Aviation Regulations (CARs)

Certificate of Airworthiness

507.02 Where an application for a flight authority is made pursuant to section 507.06, the Minister shall issue a certificate of airworthiness in respect of an aircraft

(a) for which an aircraft type design has been certified pursuant to Subpart 11 and the certification is not restricted or provisional;

(b) that conforms to its certified type design; and

(c) that is safe for flight.

Duration of a Flight Authority

507.11 Unless surrendered , suspended or cancelled, a flight authority issued pursuant to this Subpart remains in force during the period or for the number of flights specified in it or, where no limit is specified, indefinitely, if the aircraft continues to meet the conditions subject to which the flight authority was issued.

[...]

FIRST GROUND OF APPEAL

The member erred in law in granting the Minister of Transport powers not stipulated in the Act.

APPELLANT'S ARGUMENTS

First, Mr. Jenner wants the notice of suspension of the certificate of airworthiness of aircraft C-GGYQ for non-conformity, to be declared invalid.

He claims that the notice of September 15, 1999, refers to the letter of notice (M8240019 – 1999-07-27) and a notice of suspension makes no reference to a letter of notice within the meaning of paragraph 103.06(3) of the CARs:

Notices of Suspension, Cancellation or Refusal to Renew

103.06 [...]

(3) A notice issued by the Minister pursuant to subsections 7.1(1) and (2) of the Act shall include

(a) where the Minister has decided to suspend or cancel a Canadian aviation document, a statement of the effective date of the suspension or cancellation;

(b) where the Minister has decided to suspend the Canadian aviation document, a statement of the duration of the suspension or the conditions under which the suspension is terminated; and

(c) a statement that a request for review by the Tribunal does not operate as a stay of the suspension, cancellation or refusal to renew.

Secondly, Mr. Jenner claims that the notice of suspension must include the details and conditions allegedly not met, as well as reference to a specific CAR. To this effect, he submits to the Tribunal a decision of the Federal Court of Canada Trial Division, under the hand of Mr. Justice Denault.[2] Mr. Jenner refers to page 7 of this ruling, where it states "[...] refers the case to the Civil Aviation Tribunal and orders it to reconsider its decision taking into account the Minister's obligation to state, pursuant to paragraph 7.1(2)(a) of the Aeronautics Act, the conditions of issuance which, according to the Minister, the plaintiff no longer meets" [translation].

Thus, according to Mr. Jenner, the notice of suspension refers to paragraph 7.1(1)(b) which exists only in the English text, and no unmet condition is specified therein for non-conformity with the conditions governing issuance of the flight authority.

RESPONDENT'S ARGUMENTS ON THE FIRST GROUND OF APPEAL

Mr. Béland, in his written observations, points out that what is considered to be reasonable or sufficient notice depends on the circumstances of each case and will be determined according to the principles of equity in common law.

Moreover, the right to be heard inherent to natural justice assumes that the courts must ensure that their hearings grant the parties the full possibility:

(i) of knowing the case brought against them;
(ii) of disputing, correcting or refuting anything that may be prejudicial to them; and
(iii) of presenting arguments and evidence to support their own defence.[3]

Thus, according to Mr. Béland, the appellant knew full well the nature of the suspension and had sufficient information to properly prepare his defence to the said suspension.

The notice is consistent with the principle of procedural fairness and natural justice.

Finally, the Minister of Transport did not appropriate powers not stipulated by the Act, as the suspension of the certificate of airworthiness is consistent with subsections 7.1(1) and (2) of the Aeronautics Act, since the aircraft no longer met the conditions of issuance of the certificate of airworthiness.

To this effect, Mr. Béland states that the aircraft on floats with modifications Q-99-085A and Q-99-086A no longer met the conditions of the certificate of airworthiness pursuant to section 507.02 of the CARs.

The aircraft was therefore no longer in conformity with the certified type design and was not safe for flight. Thus, with respect to the two major modifications mentioned earlier, it was the prerogative of the Minister of Transport to impose restrictions or require flight tests to ensure aviation safety.

SECOND GROUND OF APPEAL

The member erred in her understanding of the facts, in ruling that the aircraft in question had not undergone a flight test.

APPELLANT'S ARGUMENTS

Mr. Jenner, representing the owner, Mr. Benoît Demers, wished to make the following points:

  • He acknowledged, at the appeal level, that the two modifications, Q90-085 and Q90-086, as well as Q90-085A and Q-90-086A, were major repairs or modifications (March 8 and 20, 1990 – M-1 and M-2);
  • That the flight test conducted February 3, 1990, was valid on wheels, on skis and on floats, as modifications Q90-085 and Q90-086 made no mention of the "floats" restriction;
  • That once the floats (EDO2000) were installed in 1998, the certificate of compliance was signed September 17, 1998, by Mr. Pierre Lambert and the flight test was done October 3, 1998, according to standards and form 240045 was sent to Transport Canada (Airworthiness Manual Advisory (AMA)).

The purpose of this flight test of October 3, 1998, was to verify the compatibility of several modifications and this was allegedly done pursuant to subsection 571.10(4) of the CARs — Maintenance Release:

[...]

(4) Where a person signs a maintenance release in respect of maintenance performed on an aircraft, the satisfactory completion of which cannot be verified by inspection or testing of the aircraft on the ground, the maintenance release shall be made conditional on the satisfactory completion of a test flight carried out pursuant to subsections 605.85(2) and (3), by the inclusion of the phrase "subject to satisfactory test flight".

[...]

and subsection 605.85(2) of the CARs—Maintenance Release and Elementary Work:

[...]

(2) Where a maintenance release is conditional on the satisfactory completion of a test flight pursuant to subsection 571.10(4), the aircraft may be operated for the purpose of the test flight if no person is carried on board other than flight crew members and persons necessary for the purpose of making observations that are essential to the test flight.

[...]

Secondly, Mr. Jenner questions the prerogative of Mr. Richard (M-2) and his superior, Mr. Fortier, (M-6) to make [the] new requirements "application for flight authority for the test and application of approval for the flight test" for the floats configuration (cf. M-6 — 1998-09-23 and M-2 — 1990-03-20 with its limitations and comments). Or more precisely, under which CAR does the Minister delegate such authority to this airworthiness engineer and his superior?

Thirdly, Mr. Jenner claims that Mr. Milot, in his letter of September 21, 1998 (M-5), inquired only about Transport Canada's requirements regarding modifications Q-90-085A and Q-90-086A, but this was in no way an application for approval, as he had had his STC (supplemental type certificate) since 1990.

Finally, Mr. Jenner claims that Mr. Richard (pp. 57 and 97 of the transcript) and Mr. D. Ladouceur, inspector, Civil Aviation – Maintenance (M-7 – 1998-12-16), had no power to declare "inadmissible" the certificate of compliance of September 17, 1998, with the satisfactory flight test of October 3, 1998, which was similar in nearly all respects to that of February 3, 1990 (T-3).

RESPONDENT'S ARGUMENTS

Mr. Béland, for the Minister of Transport, wants to point out the following:

The floats restriction: The section "Limitations and comments of approvals Q90-085A and Q90-086A" reads as follows: (M-2)

[...]

This is a one-time approval that cannot be extended or transferred to any aircraft without a subsequent approval. This approval is currently applicable only when the aforementioned aircraft is equipped with approved type wheels or skis and possibly on floats when the flight tests are done. This approval has been revised to add the above additional limitation concerning the type of landing gear allowed on this aircraft . (emphasis added)

[...]

This being the case, the approval of these two major modifications Q90-085 and Q90-086 (M-1) was valid only if the aircraft was on wheels or skis (cf. M-3 – 1990-03-08, art. 1.3 in the DOT Approved Airplane Flight Manual Supplement).

As for modifications Q90-085A and Q90-086A, Mr. Milot was well aware of their existence as he himself asked Transport Canada on September 21, 1998, about the requirements related to both these Engineering Orders (M-5 and transcript pp. 156-157) and the fax of September 23, 1998, from Transport Canada to Mr. Milot (M-6) very clearly established the parameters required for these flight tests.

This correspondence notwithstanding, Mr. Milot sent a reply, on August 9, 1999 (M-9), to the letter of notice of July 27, 1999, enclosing a report of a flight test done October 3, 1998, but he did not want to comply with the requirements of Transport Canada (cf. pp. 159, 160 and 161 of the transcript).

This flight test is inadmissible as the aircraft had no authority for flight on floats with these two major modifications and the procedure required by Transport Canada had been circumvented (cf. p. 57 of the transcript).

As for subsections 605.85(3) and 571.10(4) of the CARs, they do not apply since the work in question here is not elementary work, but rather two major modifications that can invalidate a certificate of airworthiness.

Mr. Béland also mentions that even though Mr. Demers had no airplane flight manual (cf., p. 56 of the transcript), while section 1.3 of the Airplane Flight Manual Supplement stipulates "valid on wheels only," this did not cause a problem, since paragraph 4(a) of the AMA very clearly states that a supplement may be added to another document such as an owner manual.

Finally, Mr. Béland pointed out to the Tribunal that the requirements of Transport Canada regarding the methods or the flight test program are at the engineer's discretion and that these powers are delegated to him by the Minister of Transport. This claim is supported by the Aeronautics Act, by section 571.06 of the CARs and by the standards of the Airworthiness Manual, which read as follows:

Paragraph 4.2(o) and subsection 4.3(1) of the Aeronautics Act stipulate as follows:

4.2 The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics and, in the discharge of those responsibilities, the Minister may

[...]

(o) undertake such other activities in relation to aeronautics as the Minister considers appropriate or as the Governor in Council may direct.

Ministerial delegation:

4.3 (1) The Minister may authorize members of the Royal Canadian Mounted Police or any other person to exercise or perform, subject to such restrictions or limitations as the Minister may specify, any of the powers, duties or functions of the Minister under this Part except, subject to subsection (3), any power conferred on the Minister by the Governor in Council to make regulations or orders.

Section 571.06 of the CARs:

Repairs and Modifications

571.06 (1) A person who performs a major repair or major modification, or signs a maintenance release in respect of such a repair or modification, shall ensure that the major repair or major modification conforms to the requirements of technical data that have been approved or the use of which has been approved within the meaning assigned to the term "Approved Data" in section 571.06 of the Airworthiness Manual.

[...]

Finally, the standards (Chapter 571 of the Airworthiness Manual) define "approved data" as follows:

"approved data" - includes:

(a) type certificates, supplemental type certificates, limited supplemental type certificates, or repair design approvals, including equivalent foreign documents which have undergone the familiarisation or validation process set-out [sic] in Subpart 511 of the CARs, or are otherwise accepted in Canada; and

(b) other drawings and methods approved by the Minister or a delegate in conformity with paragraph 4.2(o) and subsection 4.3(1) of the Aeronautics Act.

DISCUSSION

The Tribunal rejects the first ground of appeal for the following reasons:

The letter of notice refers to subsection 8.7(1) of the Act with a deadline of August 27, 1999, and in the event of no acceptable response, it is subsection 7.1(1) or even 7.1(2) of the Aeronautics Act that applies for the notice of suspension.

Section 103.06 of the CARs invoked by Mr. Jenner makes no reference at all to the letter of notice; neither does it exclude it.

The abundant correspondence over the period March 8, 1990, to September 15, 1999, and the letter of notice (M-8) to which the notice of suspension refers set out several reasons and particulars of which the appellant was well aware.

The review member did not err in finding that the notice of suspension was sufficiently detailed for the applicant to be reasonably aware of the reasons why the conditions of issuance of his certificate of airworthiness were no longer met and to prepare his defence with full knowledge of the case. Sections 507.02 and 507.11 of the CARs therefore apply.

Concerning the second ground of appeal, the Tribunal dismisses it as well as, since the approvals of aircraft modifications/repairs/equipment Q90-085A and Q90-086A are major repairs and the limitations and comments, under the hand of Mr. Pierre Richard, dated March 20, 1990, are very clear. In this regard, referring to the dictionary Le Petit Robert[4] the word "seulement" is defined thus: "Sans rien d'autre que ce qui est mentionné" ("with nothing other than what is stated"); the word "éventuellement" is defined as: "D'une manière éventuelle," that is to say, "that may occur if certain conditions exist." What is "éventuel" is expressed verbally by conditional.

Secondly, according to paragraph 4.2(o) and subsection 4.3(1) of the Aeronautics Act and section 571.06 of the CARs, Messrs. Richard, Fortier and Ladouceur had all been delegated authority by the Minister of Transport to approve the use of floats according to the requirements of September 23, 1998, and these requirements were met to the letter by Mr. Milot, on behalf of the owner, Mr. Benoît Demers.

To this effect, Mr. Milot understood very well the requirements of Transport Canada but did not wish to comply with them.

Thus, the conditions of issuance and the maintaining in force of the certificate of airworthiness dated March 15, 1990, were no longer met. These conditions and requirements in article 6 of the said certificate read as follows:

Pursuant to the Aeronautics Act, unless there is a suspension or cancellation, this certificate remains in effect provided the abovementioned aircraft is maintained and certified in accordance with the relevant provisions of the Canadian Aviation Regulations.

In the case at issue, the conditions required by Transport Canada were circumvented or disregarded and aircraft C-GGYQ therefore no longer had flight authority for the flight test conducted October 3, 1998.

CONCLUSION

For all these reasons, the Tribunal confirms the review determination and maintains the decision of Transport Canada to suspend the certificate of airworthiness of aircraft C-GGYQ from September 15, 1999, to October 29, 1999.

Reasons for the appeal determination:

Dr. Michel Larose, Member

Concurring are:

Faye Smith, Chair
Caroline Desbiens, Member


[1] Case law cited by the Minister of Transport: Findings of fact or credibility must not be overturned unless they are unreasonable: Trent Wade Moore v. Minister of Transport, CAT File. No. C-0138-33, 1991-02-14 (appeal); Thomas Ritchie Phillips v. Minister of Transport, CAT File No. C-0014-33, 1987-01-26 (appeal).

[2] Aviation Québec Labrador Ltée v. Minister of Transport, file T-595-98, 1998-10-07.

[3] Practice and Procedure Before Administrative Tribunals, MacCaulay and Sprague, p. 12-5.

[4] June 2000 edition.