Decisions

CAT File No. Q-1963-41
MoT File No. N5504-C-8520-40061

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Parachutisme Aventure Inc./e.s.a. Aéro 3000, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 605.84(1)(b)


Review Determination
Michel Larose


Decision: May 5, 2000

TRANSLATION

Parachutisme Aventure Inc./e.s.a. Aéro 3000 did not comply with two airworthiness directives and its explanations are unacceptable. The Tribunal, in weighing the evidence, has decided to assess two monetary penalties of $5,000 each to prevent a subsequent offence, to serve as a deterrent, and to allow for rehabilitation to ensure aviation safety. The total monetary penalty of $10,000 made payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A review hearing on the above matter was held Friday, March 3, 2000, at 10:00 hours at the Federal Court of Canada in Montréal, Quebec.

PRELIMINARY REMARKS

The procedure was explained to both parties, no preliminary motions were presented and the parties did not reach a pre-hearing agreement.

At this point in the hearing, Mr. Umberto Tamborriello, representing the Applicant, pointed out to the Tribunal, firstly, that the notice of assessment for the second charge bears no. 96-20-07, not 98-20-07, and that he had so informed the Respondent. Secondly, Mr. Tamborriello mentioned that this airworthiness directive 96-20-07 was missing a page, which page had been sent to the Respondent. Finally, he said that he had sent a copy of the inspection report, signed by Mr. Mario Noël, which had been returned to Transport Canada.

PURPOSE OF THE REVIEW HEARING

On December 8, 1999, the Minister of Transport issued a Notice of Assessment of Monetary Penalty for a contravention of the Aeronautics Act to Parachutisme Aventure Inc./e.s.a. Aéro 3000 for having contravened paragraph 605.84(1)(b) of the Canadian Aviation Regulations (CARs):

[...]

Between December 18, 1998, and January 19, 1999, you permitted aircraft C-GAFG to take off when the aircraft was not maintained in accordance with airworthiness directive 98-08-18 of "The New Piper Aircraft Inc."

Monetary penalty of $1,000

Between December 18, 1998, and January 19, 1999, you permitted aircraft C-GAFG to take off when the aircraft was not maintained in accordance with airworthiness directive 96-20-07 of JANAERO DEVICES.

Monetary penalty of $1,000

As the registered owner of this aircraft, you are being proceeded against pursuant to subsection 8.4(1) of the Aeronautics Act.

The foregoing provision(s) has/have been designated pursuant to section 103.08 of the Canadian Aviation Regulations, and the procedures in sections 7.7 to 8.2 of the Aeronautics Act respecting monetary penalties apply.

The total assessed penalty of $2,000 must be paid on or before January 12, 2000 to the Regional Manager, Aviation Enforcement at the address above. Payment may be made in cash or by certified cheque or money order payable to the Receiver General for Canada.

[...]

If the full amount of the penalty has not been received on or before January 12, 2000, a copy of this Notice will be forwarded to the Civil Aviation Tribunal. [...]

The deadline for payment of the monetary penalty, i.e., January 12, 2000, was not met, hence this review hearing.

THE LAW

Subsection 7.7(1) of the Aeronautics Act stipulates as follows:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

CARs, Division III – Aircraft Maintenance Requirements, subsection 605.84(1), stipulates as follows:

Aircraft Maintenance — General

605.84 (1) Subject to subsections (3) and (4), no person shall conduct a take-off or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, unless the aircraft is maintained in accordance with

[...]

(b) the requirements of any airworthiness directives issued by the Minister pursuant to section 593.02; and

[...]

Section 103.08 of the CARs reads as follows:

103.08 (1) The provisions set out in column I of the schedule to this Subpart are hereby designated as provisions the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2 of the Act.

(2) The amounts set out in column II of the schedule are the maximum amounts payable in respect of a contravention of the provisions set out in column I.

(3) A notice issued to a person by the Minister pursuant to subsection 7.7(1) of the Act shall specify

(a) the designated provision that the Minister believes has been contravened;

(b) the particulars of the alleged contravention;

(c) that payment of the amount specified in the notice will be accepted by the Minister as and in complete satisfaction of the amount of penalty for the alleged contravention and that no further proceedings under Part I of the Act will be taken against the person in respect of that contravention;

[...]

BACKGROUND

Following a visit from three Transport Canada - Maintenance Inspectors, Messrs. Bernard Laporte, Bruno Landry and Michel Lebrun, on January 19, 1999, two non-conformities with the airworthiness directives were noted on aircraft C-GAFG. A notice of assessment was sent December 8, 1999, to Parachutisme Aventure Inc./e.s.a. Aéro 3000, whose owner/president is Mr. Mario Noël.

THE FACTS (Documentary and Testimonial Evidence)

Evidence relating to the first charge, namely, airworthiness directive (AD) 98-08-18

Applicant's Evidence

Mr. Tamborriello called Mr. Bernard Laporte to testify. Mr. Laporte is one of the three inspectors who visited Parachutisme Aventure Inc./e.s.a. Aéro 3000 on January 19, 1999. His testimony may be summarized as follows:

1. The journey log of aircraft C-GAFG was filed (Exhibit M-1 or R-2), and covered the period July 2, 1998 to January 19, 1999. The manufacturer's designation is PA31P-425HR. The number of the certificate of approval is A8EA. The manufacturer's serial number is 31P-76.

2. A certificate of registration of aircraft (Exhibit M-7 or R-4):

  • Nationality and Registration Marks: C-GAFG
  • Aircraft Manufacturer: Piper Aircraft Corporation
  • Manufacturer's Designation of Aircraft: PA-31P
  • Aircraft Serial Number: 31P-76
  • Name(s) of Owner(s): Parachute Aventure Inc. (Aéro Nolisé)
  • Owner Registration Date: March 17, 1998
  • Certificate Issue Date: March 17, 1998.

3. The part in question is clearly identified on the document (Exhibit M-4) "Piper Pressurized Navajo Parts Catalog, Card 1 of 2, PA-31P Pressurized Navajo, Piper Aircraft Corporation": Serial numbers of the 1972 PA-31P Pressurized Navajo Models are 31P-67 to 31P-109 inclusive. The part is identified under item 39 and bears number 42377-02, SPRING – Elevator bungee.

4. Directive 98-08-18 (Exhibit M-6):

"Airworthiness Directives – 98-08-18 – 05/26/1998

To prevent failure of the elevator bungee spring, which could result in a reduction in elevator control and, contd.

98-08-18

THE NEW PIPER AIRCRAFT, INC. (formerly Piper Aircraft Corporation)

Amendment 39-10467 Docket No. 90-CE-65-AD

Supersedes 79-01-04, Amendment 39-3381.

Applicability: The following airplane models and serial numbers, certificated in any category:

Models               Serial Numbers

[...]

PA-31P               31P-1 through 31P-7730012

NOTE 1: This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (g) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.

Compliance: Required as indicated in the body of this AD, unless already accomplished.

To prevent failure of the elevator bungee spring, which could result in a reduction in elevator control and consequent loss of control of the airplane, accomplish the following:

(a) For any affected airplane incorporating a Piper part number (P/N) 42377-02 (or FAA-approved equivalent part number) elevator bungee spring where the elevator bungee spring has 900 hours TIS or less, accomplish the following:

(1) Within the next 100 hours time-in-service (TIS) after the effective date of this AD, unless already accomplished (compliance with AD 79-01-04), and thereafter at intervals not to exceed 100 hours TIS until the replacement required by paragraph (b) of this AD is accomplished, inspect the elevator bungee spring for cracks or surface deformities in accordance with the ACCOMPLISHMENT INSTRUCTIONS section of Piper Service Bulletin No. 626C, dated February 28, 1997.

NOTE 2: The 100-hour TIS repetitive inspection compliance time is the same as that in AD 79-01-04 (superseded by this action). This compliance time is being retained to provide credit and continuity for already-accomplished and future inspections.

NOTE 3: Piper Service Bulletin No. 626C, dated February 28, 1997, lists Piper Models PA-31, PA-31-300, PA-31-325, and PA-31-350 airplanes in the Models Affected section. For purposes of this AD, the inspection procedures included in this service bulletin also apply to the Piper Model PA-31P airplanes.

(2) If any cracks or surface deformities are found during any inspection required by paragraph (a) (1) of this AD, prior to further flight, accomplish the following:

(i) For all affected Models PA-31, PA-31-300, PA-31-325, and PA-31-350 airplanes, replace the elevator bungee link with a Piper P/N 71086-03 (or FAA-approved equivalent part number) elevator bungee link;

(ii) For all the affected airplanes, replace the elevator bungee spring with a Piper P/N 71056-02 (or FAA-approved equivalent part number) or Piper P/N 71056-03 (or FAA-approved equivalent part number) elevator bungee spring. Accomplish this in accordance with Section IV, Surface Controls, of the applicable maintenance manual.

(b) Upon accumulating 1,000 hours TIS on a Piper P/N 42377-02, 71056-02, or 71056-03 (or FAA-approved equivalent part number for any of the above) elevator bungee spring or within the next 100 hours TIS after the effective date of this AD, whichever occurs later, accomplish the following:

(1) For all affected Models PA-31, PA-31-300, PA-31-325, and PA-31-350 airplanes, replace the elevator bungee link with a Piper P/N 71086-03 (or FAA-approved equivalent part number) elevator bungee link in accordance with Section IV, Surface Controls, of the application maintenance manual, unless already accomplished.

(2) For all affected airplanes, replace the elevator bungee spring with a Piper P/N 71056-02 (or FAA-approved equivalent part number) or Piper P/N 71056-03 (or FAA-approved equivalent part number).

(i) For all affected Models PA-31, PA-31-300, PA-31-325, and PA-31-350 airplanes, accomplish this replacement in accordance with Section IV, Surface Controls, of the applicable maintenance manual.

(ii) For the affected Model PA-31P airplanes, accomplish the replacement in accordance with the INSTRUCTIONS section in Piper Service Bulletin No. 1002, dated June 5, 1997.

(c) For all affected airplanes, repetitively replace the elevator bungee spring with a Piper P/N 71056-02 (or FAA-approved equivalent part number) or Piper P/N 71056-03 (or FAA-approved equivalent part number) elevator bungee spring at intervals not to exceed 1,000 hours TIS.

(1) Accomplish the repetitive replacements in accordance with the applicable service information specified in either paragraph (b) (2) (i) or (b) (2) (ii) of this AD.

(2) If an affected airplane already had the elevator bungee spring and link replaced as specified in paragraphs (b) (1) and (b) (2) of this AD, then only the repetitive replacements of the elevator bungee spring as specified in paragraph (c) of this AD are required.

(d) The repetitive inspections required by paragraph (a) of this AD may be terminated when the replacements specified in paragraphs (a) (2) and (b) (1) and (b) (2) of this AD are accomplished.

(e) As of the effective date of this AD, no person shall install either a Piper P/N 42377-02 (or FAA-approved equivalent part number) elevator bungee spring or a Piper P/N 42376-02 (or FAA-approved equivalent part number) elevator bungee link.

[...]

(i) This amendment supersedes AD 79-01-04, Amendment 39-3381.

(j) This amendment becomes effective on May 26, 1998.

[...]"

5. Document M-8 :

"Piper

MANDATORY

PIPER CONSIDERS

COMPLIANCE MANDATORY

June 5, 1997

SERVICE BULLETIN

No. 1002

SUBJECT: Elevator Down Spring Inspection/Replacement

MODELS AFFECTED:                                                 SERIAL NUMBERS AFFECTED:

PA-31P, Pressurized Navajo                                       31P-1 through 31P-7730012

COMPLIANCE TIME:

Within the next one hundred (100) hours time in service or at the next scheduled inspection event, whichever occurs first and as noted below, each one thousand (1000) hours time in service thereafter.

APPROVAL:

The technical contents of this Service Bulletin have been approved by the Federal Aviation Administration (F.A.A.).

PURPOSE:

During the recent revision of Piper Service Bulletin 626C (Elevator Down Spring Inspection and Replacement) it was noted that the PA31P Pressurized Navajo was not included on the publication as originally issued. Since the function of the elevator down spring is the same as on the other PA31 series aircraft, the condition of damaged or broken springs and links which developed on those aircraft have the possibility of occurring on the Pressurized Navajo. Left uncorrected, a broken or damaged spring or link may result in loss of elevator down spring tension which will cause a variation in longitudinal control input force requirements.

This Service Bulletin requires the replacement of the existing elevator down spring with an improved Elevator Down Spring and a replacement Link and announces a life limit of 1000 hours time in service on current Elevator Down Springs.

[...]"

6. Exhibit M-10 represents the airworthiness directive (AD) and was issued by Transport Canada on April 30, 1998, coming from the American FAA, bearing directive number 98-08-18, and pertaining to the Piper PA31; this directive was sent to 152 owners of this aircraft type. On the second-last page is the name Parachute Aventure Inc. (hangar 4, Chemin de l'aéroport, St-Jean-sur-Richelieu, Quebec J3B 7B5) for aircraft C-GAFG.

7. In M-11 was filed the Index of Airworthiness Directives Applicable in Canada dated October 4, 1999 (available to the public):

FOREWORD

The Index of Airworthiness Directives Applicable in Canada provides a list of all airworthiness directives (ADs) and equivalent instructions, which are known to Transport Canada to be applicable to aircraft in the Canadian Civil Aircraft Register on the date of publication.

[...]

Compliance with the requirements of the notices listed in this index is mandatory, where applicable, for all approved type designs registered in Canada. Canadian requirements respecting airworthiness directives and equivalent notices are prescribed in Subpart 593 and section 604 [sic – s. 605.84] of the Canadian Aviation Regulations (CARs) and in their respective standards, Chapter 593 of the Airworthiness Manual and CAR Standard 625 Appendix H.

[...]

AVAILABILITY OF AIRWORTHINESS DIRECTIVES

[...]

Applicable ADs issued by a foreign airworthiness authority are copied by TC to the affected Canadian owners as they are received.

[...]

Miscellaneous ADs

[...]

INDEX OF AIRWORTHINESS DIRECTIVES APPLICABLE IN CANADA

INDEX DES CONSIGNES DE NAVIGABILITÉ EN VIGUEUR AU CANADA

MAKE / CONSTRUCTEUR

MODEL / MODELE

(SERIES / SERIE)

ORIGIN

ORIGINE

AD NUMBER

NUMERO DE CONSIGNE

SUBJECT

SUJET

REFERENCE SERVICE BULLETIN

BULLETIN DE SERVICE DE REF.

PIPER

PA31

 

[...]

US 98-08-18

ELEVATOR BUNGEE SPRING

626C

[...]

 

JANAERO

 
US

96-20-07

MODELS B1500, B2030, B3040 & B4050 COMBUSTION HEATERS TSO C20 INSP IAW 0/H MANUAL 24E25-1

[...] »  

8. Letter of notification from Transport Canada of January 20, 1999 (Exhibit M-9 or R-5), with its inspection record form:

98-08-18 OK c/o 25/01/99 (to be completed by 27/01/99) Mr. Noël

96-20-07 OK c/o 25/01/99 (to be completed by 27/01/99) Mr. Noël

9. Exhibit M-5 or R-3, the Airframe Log (Section II) was filed, namely, the Record of Installations and Modifications to Aircraft, which document covered the period May 1, 1998, to December 22, 1998, still pertaining to aircraft
C-GAFG, PA31P, but this document refers more to the second airworthiness directive, 96-20-07, which will be discussed later.

10. The CARs, Part VI, Subpart 5 – Aircraft Requirements (Exhibit M-3) was also filed:

Journey Log Requirements

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

[...]

Requirements for Technical Records Other Than the Journey Log

605.96 (1) The particulars set out in column I of an item in Schedule II to this Division shall be recorded in the appropriate technical record at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

[...]

11. Under Exhibit M-2 — General Operating and Flight Rules 625 – Aircraft Equipment and Maintenance Standard:

APPENDIX H – Airworthiness Directives

(1) Responsibilities

Pursuant to CAR 605.84, owners of aircraft are responsible for ensuring that their aircraft are not flown with any Airworthiness Directive (AD) outstanding against that aircraft or its components. Owners are to ensure that:

(a) applicable ADs are scheduled in accordance with CAR 605 Schedule II, or with CAR 706; and

(b) the requirements of all ADs issued relating to their aircraft or aeronautical product are complied with, applicable entries made in the aircraft technical records in accordance with CAR 605.

Information Note:

Failure to comply with an AD causes the Certificate of Airworthiness to be out of force, and makes it an offence to fly the aircraft.

[...]

It is on the basis of all these filed documents, then, that Mr. Laporte, both in examination and in cross-examination, argued as follows:

12. Part 39 was to be replaced within 100 hours as of May 26, 1998, in order to comply with airworthiness directive 98-08-18 (M-4, M-6, M-8), and as of January 19, 2000, the day of the inspection, this had not been done.

13. Mr. Noël had been notified of this directive by mail in late April-early May 1998 (M-10).

14. At the time of the initial inspection he himself had done April 15, 1998, before the start of operations (M-7), he did not have on hand the directive issued April 30, 1998, which was to enter into force May 26, 1998 (M-6, M-8, M-10).

15. On April 15, 1998, he did not determine the number of hours of part 39, but as of May 26, 1998, this part, with 900 hours or less of time in service (TIS), had to be replaced within 100 hours (M-6 and M-8).

16. There is no entry showing that this part had been changed, in either the journey log (M-1) or the airframe technical log book of aircraft C-GAFG (M-5 by Excel Aviation Inc. AMO 31-97 (approved maintenance organization)), especially during the 100-hours inspection of December 22, 1998. These two documents cover the periods July 2, 1998, to January 19, 1999, and May 1, 1998, to December 22, 1998, respectively, and according to Mr. Noël, the TTSN on May 25, 1998, was 3407.3 hours.

Respondent's Evidence

  1. Mr. Noël argued that both Excel Aviation Inc. AMO 31-97 and Parachutisme Aventure Inc./e.s.a. Aéro 3000 are his companies;
  2. That the maintenance of his aircraft C-GAFG is now done by Aviation Air Goulet (Robert Goulet) and was formerly done by Excel Aviation Inc. AMO 31-97;
  3. That he was not aware of this directive 98-08-18 as he had not received it from Transport Canada;
  4. That his legal library is on a CD-ROM of the Advantex company, that directive 98-08-18 is not included on it, and that it was he who notified this company of this oversight by electronic mail, following the inspection of January 19, 1999;
  5. That, even though he received this CD-ROM twice a month, this directive was not included on the CD-ROM for May 1998 or on the other 12 CD-ROMs received between May 1998 and January 1999;
  6. That Mr. Laporte had perused his CD-ROM during the inspection and this directive was not on it; Mr. Laporte responded that he did not recall using the CD-ROM in question in January 1999.

Evidence relating to the second charge, namely, airworthiness directive 96-20-07

Applicant's Evidence

Mr. Tamborriello, for the Minister of Transport, called Mr. Bruno Landry, inspector, who had participated in the inspection on January 19, 1999, of aircraft C-GAFG.

The following documentary evidence was filed:

1. The document Aircraft Technical Logs Section 5. Component for aircraft C-GAFG (Exhibit R-1) contains the data from an inspection done September 15, 1995, and other data from another inspection done April 10, 1998. This document reads as follows:

AIRCRAFT MAINTENANCE – COMPONENT HISTORY FORM
ITEM
HEATER
TYPE
JANITROL B3040
PART NUMBER
47 D 69
SERIAL NUMBER
1701384
RETIREMENT LIFE OVERHAUL LIFE
1,000 hrs
INSTALLATION
REMOVAL
A/c
type
A/c regist-ration
position
date
installed
a/c hrs on instal-lation
date removed
a/c hrs. on removal
hrs. this instal-lation
total hrs. since new
reason for removal
PA-31P
C-GAFG
nose
15/09/95
3361.7
15/09/95
3361.7
3361.7
3361.7
due for overhaul at 4361.7 h [rayé]
         
10/04/98
   
3398.6
heater hour meter 453.4 hrs
                  heater time since overhaul 18.4
                  due for overhaul at 1418.4

2. This is the journey log (R-2 or M-1) of aircraft C-GAFG for the period July 2, 1998, to January 19, cited earlier.

3. The document Airframe Log (Section II), Record of Installations and Modifications to Aircraft, covering the period May 1, 1998, to December 22, 1998 (R-3 or M-5), cited earlier.

01/05/98 96-20-07 Janitrol combustion heater, pressure decay

02/07/98 96-20-07 Janitrol combustion heater, pressure decay

Test & air pressure switch test due, system temporary shut down (recurring 100 hrs): The maintenance described above has been performed in accordance with the applicable standards of airworthiness.

Sign: Licence: M014774

Test & air pressure switch test return to service at hoob meter 475.0 hrs.

4. The certificate of registration of aircraft (R-4 or M-7) cited earlier.

5. The letter of notification dated January 20, 1999, pertaining to aircraft C-GAFG (R-5 or M-9) cited earlier.

6. The aircraft inspection report signed by Mr. Michel Lebrun on January 19, 1999, pertaining to aircraft C-GAFG (Exhibit R-6). Mr. Lebrun was one of the three inspectors who did that inspection on January 19, 1999. This document contains the following elements:

Registration Marks – Marques d'immatriculation : C-GAFG

Aircraft Model – Modèle d'aéronef : PA-31P

Engine Model – Type de moteur : Lycoming

Inspected at – Inspecté à : Bromont

A/C hours meter : 2117.3 hrs

Janitrol heater hours meter : 648.5 hrs

Aircraft Inspected – Date de l'inspection de l'aéronef : 99-01-19

AD 96-20-07 On Janitrol to be carried out / elevator trim auto pilot

Journey log book info : Last entry 15-01-99 3586.3 hrs.

Last 100 hrs insp. 22-12-98 at 3579.8 hrs

Airframe log book info: Last entry 22-12-98

Last 100 hrs inspection 22-12-98 T.T.A.F. 870.8 hrs since o/h.

7. Airworthiness directive 96-20-07 Janaero Devices (Exhibit R-7):

"96-20-07

JANAERO DEVICES

(formerly Janitrol, C&D, FL Aerospace, and Midland-Ross Corporation)

Amendment 39-9773 Docket No. 95-CE-83-AD

Supersedes AD 82-07-03, Amendment 39-4354.

Applicability: B-Series combustion heaters, Models B1500, B2030, B3040, and B4050, marked as meeting the standards of TSO-C20, that do not incorporate a ceramic combustion tube and a part number (P/N) 94E42 combustion air pressure switch, and are installed on, but not limited to, the following aircraft (all serial numbers), certificated in any category:

[...]

NOTE 2: This AD applies to each aircraft identified in the preceding applicability provision, [...]

Compliance: Required as follows, as applicable:

- For aircraft with 450 or more heater hours time-in-service (TIS) (see Note 3 for information on how to determine heater hours TIS) accumulated on an installed heater since the last overhaul or new installation, within the next 50 heater hours TIS or 12 calendar months after the effective date of this AD, whichever occurs first, unless already accomplished, and thereafter at intervals not to exceed 100 heater hours TIS or 24 calendar months, whichever occurs first;

- For aircraft with less than 450 heater hours TIS accumulated on an installed heater since the last overhaul or new installation, upon accumulating 500 heater hours TIS on the new or overhauled heater or within the next 12 calendar months after the effective date of this AD, whichever occurs first, unless already accomplished, and thereafter at intervals not to exceed 100 heater hours TIS or 24 calendar months, whichever occurs first; and

- Upon installing one of the affected heaters, and thereafter at intervals not to exceed 100 heater hours TIS or 24 calendar months, whichever occurs first.

NOTE 3: A heater hour meter may be used to determine heater hours TIS. Also, aircraft hours TIS may be divided in half to come up with heater hours TIS.

To prevent an airplane fire or explosion caused by failure of the heater combustion tube assembly or combustion air pressure switch, accomplish the following:

(a) Test (pressure decay test) the combustion tube of the heater and conduct an operational test of the combustion air pressure switch in accordance with Section III, paragraph 3.3.1 through 3.3.13 (pressure decay test) and Section IV, paragraph 4.9c (operational switch test), of the Janitrol Maintenance and Overhaul Manual, part number (P/N) 24E25-1, dated October 1981.

[...]

(f) This amendment (39-9773) supersedes AD 82-07-03, Amendment 39-4354.

(g) This amendment becomes effective on November 14, 1996.

[...]"

8. The aircraft inspection report (Exhibit R-9) prepared April 15, 1998, by Mr. Bernard Laporte, which contains the following information:

Registration Marks: C-GAFG

Aircraft Model: PA-31P

Inspected at: St-Jean

Remarks:

"Journey Log Book Data 1000 hrs insp. c/o 10-04-98

T.T.S.N.: 3398.6 hrs.

Hobbs 2117.3

Hobbs of heater 453.4"

Date aircraft inspected: April 15, 1998

Regarding these documents, Mr. Landry argued:

  1. He accompanied Messrs. Laporte and Lebrun during an inspection on January 19, 1999, and that the report was signed by Mr. Lebrun (R-6) on January 19, 1999, and the Hobbs heater hours meter was at 648.5 hrs.;
  2. Regarding directive 96-20-07 (R-7), he wanted to establish the heater's hours of use based on flight time;
  3. The heater on the Piper PA-31P C-GAFG was indeed a Janitrol B3040 (R-1), and directive 96-20-07 therefore applied to this part (R-1);
  4. This directive took effect November 14, 1996 (R-7);
  5. This gas heater was to be inspected (pressure decay test) to make sure there was no leak at no more than 100 hours on the Hobbs heater hours meter;
  6. According to the document (R-3 or M-5), on May 1, 1998, a pressure decay test was done and the air pressure switch test due was done of the Janitrol combustion chamber pursuant to airworthiness directive 96-20-0;
  7. Thus, on July 2, 1998, this same document showed a Hobbs heater hours meter reading of 475 hours and the air pressure switch was reset;
  8. Another, subsequent test was to be done at 575 hours or within 24 months, whichever occurred first (R-7);
  9. On January 19, 1999, the Hobbs heater hours meter was read at 648.5 hours and no other pressure decay test had been done in the interim (M-9 or R-5);
  10. This directive was complied with January 25, 1999 (M9 or R5).

In cross-examination, Mr. Landry stated:

  1. Doing the test referred to above using half the flight time does not take precedence over the Hobbs heater hours meter;
  2. On July 2, 1998, the total time since new (TTSN) was 3435.1 hours, and the Janitrol was at 475 hours;
  3. On January 19, 1999, the TTSN was 3587.1 hours and the Hobbs heater hours meter was at 648.5 hours (January 19, 1999), and according to him, a simple calculation showed that the heater had been in service 173.5 hours, i.e., 648.5 – 475 (July 2, 1998), but that if the two figures for flight time were compared, the difference would be 152 hours, i.e., 3587.1 (19/01/99) – 3435.1 (02/07/98);
  4. The witness could not respond to this matter of the discrepancy between the flight time and the heater's time in service, i.e., 152 hours versus 173.5 hours;
  5. Mr. Tamborriello, in testimony, with respect to the part (R-7, note 3), filed document R-8, which is a copy of the fax sent to him by Ms. Linda M. Haynes of the Atlanta Aircraft Certificate Office, dated March 2, 2000, regarding airworthiness directive 96-20-07:

This fax is sent in regards to your telephone request for an explanation of Note 3 of AD 96-20-07. This note discusses how to calculate time in service (TIS) for the combustion heaters. In lieu of having a meter to show the exact TIS, the FAA has allowed aircraft TIS divided in half to be used to estimate the heater TIS. This was thought to be a conservative estimate in that most aircraft would have a higher operating hours TIS then the heaters. The intent is not to allow the use of aircraft hours TIS if there is a meter that can track the actual operating hours of the aircraft. The intent of this AD is to insure all heaters with 100 heater hours TIS or 24 calendar months whichever occurs first. Any aircraft operated with the heater exceeding the 100 heater hours TIS as measured by a meter would not compliant with AD 96-20-07.

Respondent's Evidence

Mr. Noël argued:

  1. He purchased the aircraft in February or March 1998;
  2. An inspection was done April 10, 1998 (R-1), and the TTSN was 3398.6 hours and the Hobbs heater hours meter was at 453.4 hours (1000 hours);
  3. He obtained his certificate of registration on March 17, 1998 (M-7 or R-4);
  4. He started up operations around May or June 1998;
  5. On July 2, 1998, the Hobbs heater hours meter was at 475 hours;
  6. He did not use the heater before December 1998 and on the express condition that the temperature was below 10°C, and on December 22, 1998, during the 100 hours inspection, he did not check the Hobbs heater hours meter since it had not been used;
  7. The heater meter reading of 173 hours exceeded the 100 hours prescribed, but half the flight time, that is, half of 152 hours, i.e., 76 hours, complied with directive 96-20-07 (3587.1 (19/01/99) – 3435.1 (02/07/98));
  8. The only possible explanation would be the fact that the meter was not installed on the combustion chamber fan, but rather on the ground blower;
  9. Finally, Mr. Noël argued that having used the heater seldom or not at all, he did not need to comply with directive 96-20-07 and do a decay test (100 hours inspection – December 22, 1998) prior to the inspectors' visit on January 19, 1999.

Recalled to testify, Mr. Landry stated:

  1. If the heater is not used, the Hobbs heater hours meter shows no reading, as the meter is connected to the fan of the heater's combustion chamber;
  2. The discrepancy between 475 hours and 648 hours is therefore very difficult to explain.

Mr. Noël wanted to explain:

  1. On the Piper Pressurized Navajo, the ground blower is connected to the gearing gear and if the "comfort master" switch is turned on, this blower operates continuously;
  2. Half the flight time, i.e., 152 divided by 2, or 76, is in conformity for doing a decay test at no more than 100 flight hours (i.e., half of 200);
  3. On July 2, 1998, the mechanic recorded 475 hours, but did not know that the relay was improperly connected;
  4. Finally, no decay test was done at 575 hours, as the heater had hardly been used during the time his aircraft was in service.

Recalled to testify, Mr. Laporte added that on April 15, 1998 (R-9), during the inspection, the TTSN was 3398.6 hours and the Hobbs heater hours meter was at 453.4 hours.

ARGUMENTS

Mr. Tamborriello, representing the Minister of Transport, argued, with respect to directive 98-08-18, that the Respondent did not dispute the documentary and testimonial evidence.

This directive applied to the Respondent.

As for the Respondent's defence that he did not receive this directive, Mr. Noël provided no proof of this.

He relied on his CD-ROM from Avantex, and this CD-ROM, which he had on hand, was subsequent to the event.

Mr. Laporte was allegedly shown this CD-ROM, but he does not remember this.

Moreover, it would have been desirable to have the CD-ROM contemporaneous with the alleged offence, either by calling a representative of the company or producing this CD-ROM.

Directive 98-08-18 was served in accordance with Transport Canada standards.

An aircraft operator has a number of other ways of obtaining the directives (ADs): via the Internet, or by telephone, or by consulting, before signing the prescribed inspections, the Index of Airworthiness Directives Applicable in Canada.

The deadline for complying with this directive of April 30, 1998, was 100 hours after May 26, 1998, and his name was on the distribution list which, furthermore, is never sent by registered mail.


As for the second notice of assessment, the Respondent maintained that he was not obliged to do it because of the incorrect Hobbs heater hours meter reading and half the pilot hours.

Ms. L. Haynes' opinion substantiates that the meter takes precedence over half the flight time in assessing the heater's time in service, and that according to Transport Canada, the 100 hours was clearly exceeded on the Hobbs heater hours meter. Moreover, on July 2, 1998, Mr. Noël took a reading of 475 hours from the Hobbs heater hours meter and later gave himself 100 hours more and did not take another reading because, by his own account, he had not used the heater. Having not used the heater, he went by the 152 flight hours plus half, or 76 hours, and the test due at 575 hours was therefore complied with, i.e., 475 + 76 = 551 hours.

As for his argument about an improper connection, Mr. Landry testified that there would have been no reading at all on the Hobbs heater hours meter as the meter is connected to the combustion chamber.

From April 15, 1998, to July 2, 1998, there would apparently be 37 flight hours and 22 hours of heater time in service, and from July 2, 1998, to January 19, 1999, 152 pilot hours and 173 hours of heater time in service. The only possibility he wanted to raise before the Tribunal was that an incorrect entry had been made in the journey log of aircraft C-GAFG.

Regarding the sanction, the purpose of a penalty is to ensure aviation safety, to ensure strict compliance with the standards of the CARs, to avoid any recurrence of a failure to meet these standards, and to set an example for the aviation community.

In the case under study, i.e., aircraft C-GAFG, a part was not replaced and no pressure decay test was done on the heater to check for any leak.

The Respondent has no valid reason for failing to comply with the two airworthiness directives and had no operational constraints, but showed negligence and his attitude as an operator is such that he does not understand its seriousness and, being an operator since 1993, he should know that he is subject to the CARs.

Finally, given the many positions he occupies within several of his companies, he is all the more responsible for his breaches.

Thus, pursuant to section 7.7 of the Aeronautics Act and the designated provisions, section 103.08 of the CARs, and the Aviation Enforcement Procedures Manual, Second Edition – June 1999 (TP4751E), the maximum penalty for a corporation is $25,000 and each flight made while not in conformity therefore becomes illegal.

In this case, the Minister of Transport decided to assess two penalties of $1,000 each.


The Respondent, Mr. Noël, argued with regard to the first charge that he did not receive directive 98-08-18 by post or registered mail, that his CD-ROM from Avantex was his law library and it did not include this directive.

He asked the Advantex company, by electronic mail, to correct this oversight, which it did immediately.

He has never acted with ill-intent.

As for the second charge, the evidence of the Minister of Transport concerning the heater's time in service is unsubstantiated.

This directive is not applicable when going by the flight time; the pressure decay test was therefore not necessary.

The Hobbs heater hours meter was improperly connected to the ground blower.

Its pressure decay test was done January 25, 1999, and would be done every 100 hours.

Mr. Noël also had several complaints about Transport Canada as its inspectors seemed to be out to get him.

  1. No inspectors had visited his company since January 19, 1999, and he had never met with the newly assigned inspector.
  2. He does not understand why, for one or more offences potentially committed January 19, 1999, he did not receive the penalty until December 8, 1999.
  3. Finally, he stated that he is confident in his own safety and that of others and had made both corrections on January 25, 1999.
  4. Moreover, he did not at all appreciate doubt being cast on the hours entered in the journey log of aircraft C-GAFG, as he has always filed his flight plans.

In closing, Mr. Tamborriello told the Tribunal, regarding the first charge, that the documentary evidence speaks for itself and that the corrective action taken by Mr. Noël on January 25, 1999, was mandatory within 7 days of the visit of January 19, 1999, and he therefore had no choice.

As for the second charge, it is the time shown on the Hobbs heater hours meter that takes precedence, not half the flight time, i.e., 200 hours ÷ 2 = 100 hours, to be in compliance with directive 96-20-07.

REASONS

The Tribunal will not review ad literam or in extenso the documentary and testimonial evidence presented by the two parties, but will refer only to what is essential to its pronouncement.

First charge, i.e., airworthiness directive 98-08-18

The Minister of Transport has discharged its burden of proof based on the balance of probabilities in proving all the elements of the alleged offence.

Aircraft C-GAFG was clearly identified both by its journey log and by its certificate of registration, and it is owned by Parachutisme Aventure Inc. (air charter), whose owner and president is Mr. Mario Noël.

The part to be replaced (spring elevator bungee) bears number 39 and applies to PA-31P–31P-76.

It was to be replaced within 100 hours of the coming into force of directive 98-08-18, i.e., running from May 26, 1998, notwithstanding a time in service (TIS) of 900 hours or less.

Moreover, Piper's mandatory service bulletin, dated June 5, 1997, and bearing number 1002, called for the inspection or replacement of the elevator down spring elevator bungee after 100 hours of time in service or during the next inspection, and thereafter every 1000 hours of time in service.

On April 30, 1998, Transport Canada forwarded this airworthiness directive (98-08-18) to 152 owners including Parachutisme Aventure Inc., and the Index of Airworthiness Directives Applicable in Canada dated October 4, 1999, and available to the public, in particular to aircraft owners, contains this directive, as well as the other directive bearing number 96-20-07, which I will come to later.

Regarding the CARs, Part VI, Subpart 5 – Journey Log Requirements (July 2, 1998, to January 19, 1999) and Requirements for Technical Records Other Than the Journey Log, i.e., the airframe technical log of aircraft C-GAFG (Technical Log Book) (May 1, 1998, to December 22, 1998), no entry can be found of the replacement of part 39 on aircraft C-GAFG in the 100 hours after May 26, 1998, especially at the 100 hours inspection done December 22, 1998.

Finally, it is important to note that maintenance of aircraft C-GAFG was done by Excel Aviation Inc. AMO 31-97, whose owner and president is also Mr. Mario Noël.

As for the defence of the Respondent, who is representing himself and is the only witness, he maintained that he did not receive this directive (98-08-18), to take effect May 26, 1998, from Transport Canada in late April-early May, and that the CD-ROMs from Advantex, which constituted his law library and covered the period May 1998 to January 1999, and were received twice monthly, did not contain this directive. This assertion does not hold up to analysis, as he could have called a desk officer at one of his many companies and/or an official from Advantex to testify, filed the CD-ROM contemporaneous with the coming into force of the said directive (May 26, 1998), or called one or more owners of Piper Pressurized Navajo (Piper 31P) Aircraft to testify that they also had not received this directive. He did not call the maintenance section of Transport Canada, he did not check Transport Canada's Internet site, better yet, he did not check with Transport Canada, before signing off a 100 hours inspection done December 22, 1998, whether there were any new directives pertaining to his aircraft. Finally, he neither asked for nor consulted the Index of Airworthiness Directives Applicable in Canada.

As for his third reason to the effect that Mr. Bernard Laporte of the Department of Transport allegedly noted on January 19, 1999, that this directive was not included on the Avantex CD-ROMs, Mr. Laporte does not remember such an event.

Thus, regarding the first charge, the Tribunal finds that part 39 was not changed within 100 hours of flight time running from May 26, 1998, and the proof is that there is no entry in the journey log or even in the technical logs of aircraft C-GAFG.

Finally, it can readily be seen is easy to see that the said part was changed January 25, 1999, following the visit by the three Transport Canada inspectors.

Second charge, i.e., airworthiness directive 96-20-07

The Minister of Transport has again discharged its burden of proof based on the balance of probabilities in proving all the elements of the alleged offence.

The Tribunal will not list the documents that support one another, but will confine itself to focussing on the time in service of the Janitrol B3040 heater (based on the Hobbs heater hours meter reading) on aircraft C-GAFG, with regard to the flight time for complying with the requirements of directive 96-20-07, which came into effect November 14, 1996 (Janaero Devices).

This directive states, specifically, that the pressure decay test must be done at 100 hours time in service (TIS) according to the Hobbs heater hours meter primarily, and according to half the flight time secondarily.

In this regard, in the airframe technical log of aircraft C-GAFG (Aircraft Technical Logs, Section 5, Component) for the Janitrol B3040, dated April 10, 1998, the total time since new (TTSN) was 3398.6 hours and the Hobbs heater hours meter reading was 453.4 hours. This, moreover, is all confirmed in the inspection report of April 15, 1998, by Mr. Bernard Laporte.

In the airframe log of aircraft C-GAFG (Airframe Log – Section II Record of Installations and Modifications to Aircraft) for the period May 1, 1998, to December 22, 1998, the date of the 100 hours inspection, we find that a pressure decay test was done May 1, 1998, the switch was removed and reset July 2, 1998, and the Hobbs heater hours meter at that time was at 475 hours and the total time since new (TTSN) was 3435.1 hours.

Another pressure decay test therefore should have been done at 575 hours, according to airworthiness directive 96-20-07.

No further pressure decay test is entered in the journey log of aircraft C-GAFG for the period July 2, 1998, to January 25, 1999, nor in the technical records other than the journey log (Airframe Log – Section II Record of Installations and Modifications to Aircraft or Aircraft Technical Log – Section V Component), except that entered January 25, 1999, following the Transport Canada inspection on January 19, 1999.

On January 19, 1999, the following figures are entered:

Last 100 hrs insp. 22/12/98 3579.8 h (TTSN)
Janitrol Heater Hours Meter 648.5 hrs
Last entry 15/01/99 3586.3 hrs (TTSN)

Moreover, the official FAA instructions (Mrs. Haynes) clearly state that the Hobbs heater hours meter reading takes precedence over half the flight time, since the flight time usually exceeds the heater time in service, and if the reading is over 100 hours, directive 96-20-07 has not been complied with, regardless of what half the flight time would be.

Date

Hobbs Heater Hours Meter

Total Time Since New

(TTSN)

10/04/98

15/04/98

453.4 hrs

3398.6 hrs

25/05/98

 

3407.3 hrs

02/07/98

475 hrs

3435.1 hrs

22/12/98

 

3579.8 hrs

15/01/99

 

3586.3 hrs

19/01/99

648.5 hrs

3587.1 hrs

     
 

648.5 – 475 = 173.5 hrs

3587.1 – 3435.1 = 152 hrs

As for the Respondent's defence, it focussed mainly on his admission that the total time since new (TTSN) and the Hobbs heater hours meter readings were accurate to July 2, 1998.

After July 2, 1998, he did not use his heater until December 1998 and on the express condition that the temperature was below 10°C, and therefore did not need to take a new reading on December 22, 1998, during the 100 hours inspection.

Half the flight time (76 hours) complies with the 100 hours of directive 96-20-07.

His only explanation for the discrepancy between the flight time (152 hours) and the heater's time in service (173.5 hours) between July 2, 1998, and January 19, 1999, is that the meter was improperly connected to the ground blower instead of to the fan of the heater's combustion chamber.

Also, his mechanic did not know that the relay was improperly connected.

Finally, Mr. Noël stated that he has always filed his flight plans and that the journey log entries are therefore true and accurate.

According to the Tribunal, this defence does not hold up to closer analysis for the following reasons:

No mechanic came to testify to this effect.

No representative of the Piper company came to confirm the possibility of an improper connection (to the ground blower rather than to the combustion chamber fan) and to explain, with figures to substantiate it, the discrepancy in times and give a new reading.

As for the FAA standards that prevail, it is therefore the reading on the Hobbs heater hours meter, not half the flight time, that may be used if there is no meter installed on the heater.

Mr. Noël did not file all his flight plans from July 2, 1998, to January 19, 1999, to substantiate his journey log entries for aircraft C-GAFG.

Finally, the Tribunal believes it is essential to return very briefly to the operation of the heater and the ground blower. They constitute a single structural unit, but operate completely separately in that the heater has two switches: Heater On/Off, and Heater Fan Low/High, while the ground blower has its own switch, On/Off, and sometimes Low/High. The ground blower is used mainly in the summer to cool the cockpit before take-off, whereas the heater is used according to the climatic conditions that prevail on the ground or in flight, and it is the heater that has the Hobbs heater hours meter.

Even accepting the theory of an improper connection to explain this time discrepancy, the Tribunal finds it very difficult to understand that during the pressure decay test on January 25, 1999, after the inspection of January 19, 1999, Mr. Noël did not check the various switches, whereas at the hearing he maintained, on the contrary, that he gave himself an additional 48 hours of flight time (152 hrs + 48 hrs = 200 hrs ÷ 2 = 100 hrs) to reconnect the system properly.

The Tribunal also wishes to point out that, as Mr. Mario Noël is representing himself and is the only witness, his testimony must be very credible, as no documentary or tangible evidence was submitted and no other witnesses came to substantiate his claims. To this effect, the Tribunal cites three decisions mentioned in the determination of Mr. Pierre Beauchamp[1] rendered January 20, 2000:

The decision of the Court of Appeal of British Columbia[2] with regard to the weighing of evidence given by the Respondent that wholly contradicts the version of the Minister of Transport:

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

J. Sopinka and S.N. Lederman: [3]

Absent extenuating circumstances, the testimony of disinterested witnesses should prevail over that of persons who are or may be interested in the result. The court, however, is not to disbelieve or attribute error to the evidence of a witness solely because he is interested but must, instead, examine such evidence with reference to the facts of the case and other relevant factors. One judge has put it this way:

'... when the evidence of an important fact is contradictory ... the Court must weigh the motives of the witnesses, their relationship or friendship with the parties, their attitude and demeanour in the box, the way in which they gave evidence, the probability of the facts sworn to, and come to a conclusion regarding the version which should be taken as the true one ...'

Bell Canada v. Hallé: [4]

... when faced with two contradictory pieces of evidence, the tribunal must appreciate and attempt to determine, in light of all of the circumstances, which of the two probably reveals the truth ...

Regarding the sanctions to be imposed, firstly, the Tribunal refers to section 8.5 of the Aeronautics Act which stipulates as follows:

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

To this question, the Tribunal answers "no," as the Respondent had time to find out about any new airworthiness directives from the official agency for the CARs, namely, Transport Canada, rather than from another company providing commercial services, such as Advantex, through its CD-ROMs, which have no legal value.

Secondly, the Tribunal refers to the Wyer case,[5] in which the member states at pages 4 and 5 the principles that must guide the Tribunal when assessing a sanction:

[...]

Arriving at an appropriate penalty, then, involves not only knowing the sentencing principles and the relevant facts and circumstances that give them meaning in an individual case; it may also involve the high art of balancing various policy considerations implicit in the principles and in the facts of the case.

Certainly there are a number of factors which exist in finding the proper balance within the principles of sentencing the assessment of a penalty or other sanction. These factors will be considered, some in aggravation and others in mitigation.

Without attempting to limit what such factors may include, the following may be considered:

1. Aggravating factors:

  • infractions involving dishonesty,
  • planned breaches,
  • premeditated breaches,
  • extent of harm to victims of the offence,
  • past record of similar offences,
  • prevalence of the offence.

2. Mitigating factors:

  • no previous offences,
  • time since last offence,
  • degree of remorse,
  • whether or not an admission of the offence,
  • degree of co-operation with authorities,
  • delay between the commission of the offence and the time of the sentence,
  • conduct (involvement) of any "victims",
  • restitution,
  • type of operation (commercial or private flight),
  • impact on aviation community,
  • special factual circumstances,
  • relevance of Enforcement Manuel recommendations,
  • effect of a monetary v. suspension penalty on individual,
  • occurrence impact on aviation safety,
  • manner of proceeding by authorities.

Ultimately, the principles annunciated and the factors effecting the level of penalty must be considered on an individual basis in the context of the circumstances of the specific occurrence. The list noted above is not intended to be in any particular prioritized order nor is the list necessarily complete.

[...]

Thus, the Tribunal believes that Mr. Mario Noël, Owner/President of Parachutisme Aventure Inc./e.s.a. Aéro 3000, of Excel Aviation Inc. AMO 31-97, and owner of aircraft C-GAFG, has extensive aviation experience, having worked in the field since 1993.

Furthermore, he is a commercial pilot, he holds several positions within his companies which should normally make him more aware of the sacrosanct principle of aviation, namely, SAFETY, and the best means of achieving this ultimate and mandatory objective is full compliance with the CARs.

The Tribunal does not deny an individual or even a corporation the right to resort to the Civil Aviation Tribunal for a review hearing or an appeal hearing, but cannot allow in excess what may appear to be delaying tactics.

Thus, the Tribunal is very aware, or all too aware, that, other than the Respondent's testimony, it heard no other testimonial evidence, nor was there any documentary or tangible evidence to substantiate Mr. Noël's statements.

That is why, after an exhaustive analysis of the aggravating and mitigating factors, the Tribunal finds that, according to the Aviation Enforcement Procedures Manual[6] for two breaches of the CARs (paragraph 605.84(1)(b)), the penalty for a first offence is $5,000 for a corporation and $1,000 for an individual. For a second offence, the penalty is $12,500 for a corporation and $2,500 for an individual, and the maximums are $25,000 and $5,000, respectively. In the case under study, the Tribunal considers the following aggravating factors: the record of the Respondent and his companies with the Civil Aviation Tribunal, i.e., the frequency of his offences:

  1. Minister of Transport v. Mario Noël, CAT File No. Q-1739-33, March 29, 1999, Ms. Carole Anne Soucy, subsection 401.30(3) of the CARs – Holder of a commercial pilot licence valid for daytime flights only allegedly conducted night time flights – guilty – penalty increased from $500 to $1,000.

    Appeal Mario Noël v. Minister of Transport – July 14, 1999, Ms. Faye Smith, Dr. Michel Larose and Pierre Rivest – guilty – penalty reduced.
  2. Parachutisme Aventure Inc./Aéro 3000 v. Minister of Transport, CAT File No. Q-1850-10, August 12, 1999, Pierre Rivest, subparagraph 703.07(2)(b)(ii) of the CARs – suspension of air operator certificate No. 8520 as the company allegedly did not have a chief pilot who was employed on a full-time basis and approved by the Minister – guilty.
  3. Excel Aviation Inc. v. Minister of Transport, CAT File No. Q-1732-18, December 23, 1998, Pierre Rivest, section 573.08 of the CARs – Suspension of AMO certificate No. 31-97. The company allegedly did not submit a copy of a lease agreement or evidence that the facilities were owned by the AMO in order to be in conformity with section 573.08 of the CARs – guilty.
  4. Minister of Transport v. Excel Aviation Inc., CAT File No. Q-1781-41, and Minister of Transport v. Excel Aviation Inc., e/s/a Excel Aviation, CAT File No. Q-1782-41, August 23, 1999, Mr. Pierre Beauchamp, section 103.03 of the CARs – When a Canadian aviation document (AMO certificate) was suspended, the person to whom it had been issued did not return it to the Minister immediately after the effective date of the suspension – guilty – penalties reduced.

As for mitigating factors, the Tribunal certainly cannot consider either the absence of prior offences, as cited above, nor the time lapse between offences (1998 – 1999 – 2000).

The Respondent has no remorse, since he still wants to base his pressure decay test on half the flight time, even though the directive states very clearly that it is the Hobbs heater hours meter that takes precedence, and on January 25, 1999, he did not even check the connections between the ground blower and the heater fan, a defence he pleaded before the Tribunal on March 3, 2000.

The Respondent denies the offence, operates a commercial company and has no operational constraints. Moreover, the Tribunal has a duty to point out the excessively long time that passed between the inspection of January 19, 1999, and service of the notice of assessment by the Minister of Transport on December 8, 1999. Furthermore, it would have been advisable to do a second inspection in that period, despite the corrective action taken January 25, 1999, by Mr. Mario Noël.

In a nutshell, Parachutisme Aventure Inc./e.s.a. Aéro 3000 did not comply with the two airworthiness directives and its explanations cannot be accepted.

DETERMINATION

The Tribunal, weighing the evidence, therefore imposes two monetary assessments of $5,000 each to avoid any subsequent offence, to serve as a deterrent, and to allow for rehabilitation in order to ensure aviation safety.

Michel Larose, M.D.
Member
Civil Aviation Tribunal


[1] CAT File No. Q-1878-33.

[2] Faryna v. Chorny (1951) 4 W.W.R. (N.S.) 171.

[3] J. Sopinka and S.N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at pp. 530-531.

[4] [1989] F.C.A. No. 555, Mr. Justice Pratte.

[5] CAT File No. O-0075-33 (Appeal).

[6] Aviation Enforcement Procedures Manual, Second Edition – June 1999, TP 4751E.


Appeal decision
Faye H. Smith, Michel G. Boulianne, Suzanne Racine


Decision: September 29, 2000

TRANSLATION

The appeal is dismissed on the first count and the panel confirms the determination of the review member. The Appellant Parachutisme Aventure Inc. did indeed contravene paragraph 605.84(1)(b) of the Canadian Aviation Regulations on the first count and the monetary penalty assessed by the member in the amount of $5,000 is upheld. The appeal is allowed on the second count and the panel overturns, with all due respect, the determination of the review member. The total amount of $5,000 is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this decision.

An appeal hearing on the above matter was held before three designated members of the Tribunal, Wednesday, September 6, 2000, at 10:00 hours at the Federal Court of Canada in Montréal, Quebec.

BACKGROUND

Parachutisme Aventure Inc. is the owner of a Piper PA 31P aircraft registered as C-GAFG. On January 19, 1999, three Transport Canada inspectors inspected it and noted non-conformities with airworthiness directives 98-08-18 and 96-20-07. On December 8, 1999, the Minister of Transport sent a notice of assessment to Parachutisme Aventure Inc. doing business under the firm name and style of Aéro 3000 for two contraventions of paragraph 605.84(1)(b) of the Canadian Aviation Regulations (CARs), totalling $2,000.

Firstly, the Minister of Transport alleged that Parachutisme Aventure Inc. allowed aircraft C-GAFG to take off between December 18, 1998, and January 19, 1999, without the aircraft having been maintained according to airworthiness directive 98-08-18 "The New Piper Aircraft Inc.," which took effect May 26, 1998; hence a first penalty of $1,000.

Airworthiness directive 98-08-18 concerns a part called the elevator bungee spring. It states that if the elevator bungee spring has been in service 900 hours or less, this part must undergo inspection within 100 hours of the date on which the directive took effect and every 100 hours thereafter. On accumulating 1,000 hours of service or within 100 hours of May 26, 1998, whichever occurred later, the spring was to be replaced.

Secondly, the Minister assessed a second monetary penalty of $1,000 against Parachutisme Aventure Inc. for having allowed the same aircraft to take off, over the same period, without having maintained the aircraft in accordance with airworthiness directive 96-20-07 of Janaero Devices, which was in force November 14, 1996.

Airworthiness directive 96-20-07 concerns the Janitrol heater. If the heater has been in service for more than 450 hours, the directive requires an inspection or pressure decay test every 100 hours of service or every 24 months, whichever occurs first.

As the monetary penalty was not paid within the prescribed time, a review hearing was held March 3, 2000, at the Federal Court of Canada before hearing officer Dr. Michel Larose. Dr. Larose made his determination on May 5, 2000, and upheld the Minister's decision that the Respondent (the Appellant in this case) had contravened paragraph 605.84(1)(b) of the CARs on two counts. Parachutisme Aventure Inc., through its President, Mr. Mario Noël, is appealing Dr. M. Larose's decision and the monetary penalties he assessed in the amount of $5,000 for each of the two counts.

GROUNDS OF APPEAL—First count: airworthiness directive 98-08-18

After unequivocally acknowledging having failed to comply with airworthiness directive 98-08-18, the President of Parachutisme Aventure Inc. set out the grounds of appeal in his letter of May 27, 2000, namely:

  1. The Appellant immediately complied with the directive once it was brought to his attention.
  2. The Transport Canada inspector, Mr. Bernard Laporte, suggested that the Appellant subscribe to receive the CD-ROM from Advantex in order to equip the law library of his company, Excel Aviation Inc. which, in December 1998, did the maintenance of aircraft C-GAFG. Mr. Laporte did not inform the Appellant of the possibility of otherwise checking, and at no cost, the index of airworthiness directives.
  3. The Appellant did not renew his subscription to receive the CD-ROM from Advantex.
  4. The Appellant complied with the other airworthiness directives of which he was aware.
  5. The Appellant has not committed the offence since that time.
  6. The Appellant considers the monetary penalty of $1,000 to be excessive and does not understand the attitude of the member Dr. Michel Larose, who increased it to $5,000.
  7. The member attributed no credibility to the testimony of Mr. Noël, the Appellant's President.
  8. The Appellant, seeing he was unable to properly maintain his aircraft, showed wisdom in contracting out its maintenance to Aviation Robert Goulet Inc.
  9. The Appellant's President, the pilot of the aircraft in question, has had no accidents in 13 years of experience and respects human life.
  10. The Appellant does not have the financial means to be represented by a lawyer or to subpoena witnesses to appear in his case.

ARGUMENTS OF THE APPELLANT

For the Appellant, Mr. Noël again told the panel that he had been unable to comply with airworthiness directive 98-08-18 as it was not included on the CD-ROM from Advantex which he had obtained and added to his reference library, at the suggestion of Mr. Laporte of Transport Canada. Moreover, he said he had not received this directive from Transport Canada. Mr. Noël was allegedly not informed until January 19, 1999, the date of the Transport Canada inspection, of the existence of this directive. He subsequently advised Advantex by electronic mail of this oversight. Mr. Noël explained to the panel that, despite completing, every 50 hours, a report of compliance with the airworthiness directives using this CD-ROM, this directive had never previously been brought to his attention. Being unaware of the directive, the Appellant was unable to comply with it and should not have been held liable for the offence. Mr. Noël stated he had not acted with ill-intent. He would have complied with the directive had it been brought to his attention.

Mr. Noël said he did not learn that Transport Canada was assessing the monetary penalty against him until December 8, 1999, nearly a year after one or more offences may possibly have been committed. He maintained that Transport Canada is exacting revenge on his company.

ARGUMENTS OF THE RESPONDENT — MINISTER

The arguments of the Minister's representative on appeal are as follows:

  1. The Appellant has acknowledged unequivocally non-conformity with the airworthiness directive.
  2. Lack of awareness of the airworthiness directive is not a defence. The offences committed pursuant to the Aeronautics Act are strict liability offences and the Minister does not need to prove intent, but only that the offence was committed.
  3. The Appellant did not exercise all due diligence to ensure his compliance with directive 98-08-18. He could have consulted several other sources of information about the existence of airworthiness directives, but did not do so.
  4. The member, in view of the evidence submitted during the review, made reasonable findings as to fact and credibility in rejecting Mr. Noël's testimony. These findings must be upheld.
  5. The appeal Tribunal has no grounds for substituting its decision for the one under review.

DISCUSSION OF THE GROUNDS OF APPEAL

In his request for appeal dated May 27, 2000, it seems clear, on the face of it, that the Appellant acknowledges having failed to comply with the airworthiness directive. Notwithstanding the many grounds raised by the Appellant in his request for appeal, he failed to comply with it. Airworthiness directives are designed to ensure aviation safety, strict and firm compliance with the standards of the CARs, in order to avoid any further non-compliance with these standards and to set an example for the aviation community. Failure to comply with an airworthiness directive is a serious offence, as compliance is essential to airworthiness. Aircraft owners and operators must ensure and see to it that the airworthiness directives are complied with and they are responsible for such compliance.

The panel is of the opinion that lack of awareness of the airworthiness directive is not an allowable defence. The offences committed pursuant to the Aeronautics Act are strict liability offences. The procedure for contraventions of a designated provision on strict liability offences is defined in section 7.6 of the Aeronautics Act, specifically the second paragraph, which states:

(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction.

The Minister therefore need not prove intent to commit the offence, but only that the offence was committed, based on the balance of probabilities. Since the Minister need not show intent to commit the offence, nor show, in the panel's view, that the Appellant had received and knew of the airworthiness directive.[1] Evidence of good faith or lack of ill-intent on the part of the Appellant does not justify exoneration from his strict liability to comply with an airworthiness directive, whether he knew of it or not.

The panel agrees with the Respondent's submissions that the Appellant did not exercise all due diligence to prevent the contravention. Section 8.5 of the Aeronautics Act stipulates as follows:

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

The owner of an aircraft must exercise all due diligence to ensure that he meets the requirements of airworthiness directives. The Appellant provided no proof that he had exercised all due diligence to find out whether or not there were directives applicable to his aircraft. He did not call the maintenance division of Transport Canada, or consult the Transport Canada Internet site, or obtain the index of airworthiness directives in force in Canada available to the public for consultation. The Appellant did not provide proof that airworthiness directive 98-08-18 was not included on the CD-ROM from Advantex which he had obtained at the suggestion of Mr. Laporte of Transport Canada. Proof of this oversight, an important element on which his argument is based, could easily have been available at the review hearing through testimonial and documentary evidence, but the Appellant chose not to present it.

In view of the evidence presented at the review hearing, the member established findings of fact and credibility. He ruled out Mr. Noël's testimony and said he was satisfied with the evidence of all the essential elements of the contravention of airworthiness directive 98-08-18. The appeal panel cannot substitute its assessment of the facts for that of the review member who had the advantage of hearing the parties, assessing their respective credibility and analysing both the documentary and testimonial evidence, and thereby re-examine the evidence presented at the review hearing merely in order to assess differently whether the findings or assessment of the member were manifestly unreasonable. It is up to the hearing officer, who judged the facts at the review level, to assess the credibility of the witnesses, as he is best able to select the evidence presented.[2]

It is the panel's opinion that the member, in exercising his discretion in assessing the evidence submitted to him, made reasonable findings of fact and credibility that must be upheld.

DECISION

The appeal is dismissed on the first count, and the panel upholds the review member's determination. The Appellant Parachutisme Aventure Inc. did indeed contravene paragraph 605.84(1)(b) of the CARs on the first count, and the monetary penalty assessed by the member in the amount of $5,000 is upheld in view of the following factors:

  • The Appellant acknowledged having failed to comply with airworthiness directive 98-08-18. Mr. Noël, President/Owner of Parachutisme Aventure Inc., is an experienced commercial pilot. Owing to his responsibilities within Parachutisme Aventure Inc. and other positions he occupies within his companies in the field of air transport, he had to be aware, the same as any aircraft operator in the country, of the existence of this airworthiness directive or should have maintained an effective and reliable system for ensuring compliance with all airworthiness directives.
  • Lack of awareness of the existence of an airworthiness directive does not excuse the error and, above all, the repercussions on aviation safety, which could have been critical, especially as this panel holds some doubt as to the lack of responsibility the Appellant showed with respect to the airworthiness directives.
  • The Aviation Enforcement Procedures Manual[3] states that a first offence of the CARs (paragraph 605.84(1)(b)) for a corporation is $5,000.

GROUNDS OF APPEAL — Second count: airworthiness directive 96-20-07

The Appellant argues the following grounds of appeal:

  1. Airworthiness directive 96-20-07 was not applicable when Mr. Laporte did his inspection on January 19, 1999.
  2. The Appellant complied with note 3 of airworthiness directive 96-20-07, specifying that the flight time could be divided in half to obtain the time in service of the Janitrol heater.
  3. Mrs. Haynes' opinion explaining that note 3 appearing in the airworthiness directive, cannot be accepted as evidence as it is not published in the form of a directive and is available to neither the public nor the Appellant.
  4. The Appellant applied the directive every 100 flight hours after the inspection of January 19, 1999, as shown by the entries in the journey log of aircraft C-GAFG.
  5. The heater hour meter installed on the Janitrol heater with which aircraft C-GAFG was equipped and used to record its time in service, is not on the list of parts of the Piper PA31-P aircraft nor on the list of Janitrol parts.
  6. The aircraft maintenance employee, Mr. Robert Goulet, removed the heater hour meter and noted, as did the Appellant, that this instrument overestimates the heater's time in service.

PRELIMINARY MOTION

This last ground of appeal (6) gave rise to a preliminary motion by Mr. Noël to demonstrate before the panel that the heater hour meter works on its own, when powered by a battery, hence a possible overestimation of the hours can be recorded.

It is appropriate, first of all, to rule on the validity of this motion.

Subsection 8.1(3) of the Aeronautics Act states:

(3) An appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available.

This section of the Act is designed to ensure that all available elements of proof are submitted at the review hearing, and parties who do not act accordingly do so at their own risk. The appeal hearing is not the forum where the parties may remedy the shortcomings of their pleading, unless the elements of proof in question were not available at the time of the review hearing and only if the Tribunal deems it appropriate for the appeal.[4]

The panel is of the opinion that this element of proof was available at the time of the review hearing. In fact, Mr. Noël expressed doubt at the review hearing about the malfunctioning of the heater hour meter, but did not consider it appropriate to summon his aircraft mechanic to testify to this. Moreover, the Appellant was quite free to conduct this demonstration on March 3, the day of the review hearing, since he had replaced the heater hour meter, by his own account, the day before, i.e., March 2, 2000.

ARGUMENTS OF THE APPELLANT

Mr. Noël argues that airworthiness directive 96-20-07 did not apply at the time of the inspection by Transport Canada on January 19, 1999, for the following reasons:

  1. After learning of the directive and explanatory note 3 on the second page of the directive, the Appellant used the method of the flight time divided by two (2) to assess the time in service of his Janitrol heater.
  2. At the time of the Transport Canada inspection done January 19, 1999, Mr. Noël had registered 152 flight hours since the last pressure decay test required by the directive. Consequently, he was still within the parameters set by the directive (152 hours ÷ 2 = 76 hours), or 100 hours time in service for the heater. Moreover, he maintains having used his heater no more than 13 hours since the last pressure decay test.
  3. The Appellant was convinced, on reading explanatory note 3 of the directive, that he could use the heater hour meter or the flight time divided in half to get the time in service of his heater. He therefore never needed any interpretation on the matter.
  4. The Appellant told the panel he could not explain why the heater time in service exceeded the flight time by more than 20 hours (173.5 - 152 = 21.5) other than by a malfunction or improper connection of the heater or the heater hour meter.

ARGUMENTS OF THE RESPONDENT — MINISTER

The arguments of the Minister's representative may be summarized as follows:

  1. Directive 96-20-07 was applicable at the time of the inspection of January 19, 1999.
  2. According to the directive, the Appellant was supposed to do a pressure decay test at 575 heater time in service, that is, 100 hours since the last test on July 2, 1998, when the heater hour meter gave a reading of 475 hours. The Appellant acknowledges not having done any test between July 2, 1998, and January 19, 1999, the inspection date, even though the heater hour meter registered a reading of 648.5 hours time in service.
  3. The Appellant could have contacted Mrs. Haynes of the FAA[5] or Transport Canada to make sure he was in compliance with the airworthiness directive. He might thus have learned that, according to the FAA, the reading of the heater hour meter takes precedence over half the flight time.
  4. The opinion of Mrs. Haynes is available to the public. An individual having questions about the directive may contact her, as stated at the bottom of page 3 of the directive.
  5. In view of the evidence presented at the review hearing, the member made findings of fact and of credibility that must not be overturned unless they are unreasonable. The review member made reasonable findings of fact and of credibility that must be upheld.

DISCUSSION OF THE GROUNDS OF APPEAL

Airworthiness directive 96-20-07 concerning the Janitrol heater took effect November 14, 1996. It stipulates that if the heater has more than 450 hours time in service, an inspection or pressure decay test must be done every 100 hours time in service or 24 months, whichever occurs first.

Note 3 on page 2 of the said directive explains the methods for determining the number of heater time in service. This note reads as follows:

A heater hour meter may be used to determine heater hours TIS. Also, aircraft hours TIS may be divided in half to come up with heater hours TIS. (our emphasis)

Worded thus, note 3 suggests two possible methods of calculating heater time in service: first, one can use the heater hour meter, and second, one can divide the flight time in half. It does not seem to favour the use of one method over another. It merely offers a choice between two methods of calculation.

Note 3 of the directive, if it had wanted to recommend one method over another, should have stated this unequivocally. To that effect, the Respondent, concerned about its interpretation, had to rely, the day before his hearing, on the services of Mrs. Haynes, an FAA engineer. Only after consulting Mrs. Haynes was the Respondent certain that the preferred method of calculating the heater time in service was the heater hour meter when one is installed, and that reliance on half the flight time is authorized only when no specific indicator, such as the heater hour meter, is installed.

According to the panel, the wording of note 3 causes a problem of interpretation. Thus, according to the method used with the heater hour meter, the next pressure decay test should have been done no more than 100 hours after the one done July 2, 1998, when the reading of the heater hour meter was 475 hours and the total time since new was 3435.1 hours (TTSN). However, if one elects to use, as the Appellant did, half the flight time as the measure, and if one uses the difference of 152 total flight hours between the total time since new noted January 19, 1999, and the hours accumulated by July 2, 1998, the date of the last pressure decay test (3587.1 - 3435.1 = 152), half the flight time of 76 hours (152 divided in half) is within the parameters of the directive as explained by note 3. Theoretically, there would still be 48 hours total time since new (100 - 76 = 24 × 2 = 48 hours) before the next pressure decay test was required.

Notwithstanding the numerous grounds cited by the Appellant in his request for appeal and the fact that, curiously, the heater time in service does exceed the total time since new on January 19, 1999 (173.5 hours time in service versus 152 total time since new), the panel deems that the airworthiness directive, though applicable, is, with respect to its methods, subject to interpretation.

In fact, the panel is of the opinion that it would not be abnormal, on reading note 3 as written, for a reasonable person practising the profession to think it possible to choose the preferred method for complying with the parameters of this directive. For this reason alone, it is the panel's view that the Appellant did not contravene the text of airworthiness directive 96-20-07.

The panel considers, incidentally, that the appropriate authorities would do well to clarify note 3 of directive 96-20-07 so that it states clearly that its purpose is to favour the specific use of the heater hour meter and that an operator may divide the flight time in half only if there is no heater hour meter.

DECISION

The appeal is allowed on the second count and the panel overturns, with all due respect, the determination of the review member.

Reasons for the appeal decision:

Suzanne Racine, Member

Concurred:

Faye Smith, Chairperson
Michel Boulianne, Member


[1] Pierre Héroux v. Minister of Transport, CAT File No. Q-0411-35, August 28, 1995 (Appeal).

[2] Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, January 26, 1987 (Appeal).

[3] Aviation Enforcement Procedures Manual, Second Edition, 1999 TP 4751 E.

[4] Peter Hudgin v. Minister of Transport, CAT File No. Q-1683-39, August 6, 1999 (Appeal).

[5] Federal Aviation Administration (United States).