Decisions

CAT File No. Q-2081-04
MoT File No. N5504-42090

CIVIL AVIATION TRIBUNAL

BETWEEN:

Gordon Leitch, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 6.9
Aircraft Equipment and Maintenance Standards, s. 625.86(8)
Airworthiness Manual, s. 571.10
Canadian Aviation Regulations, SOR/96-433, ss. 571.10(1), 605.94(1), 605.85(1), 101.01(1), 571.02

Maintenance release, Incomplete journey logbook entries, Contravenor as witness, Aircraft maintenance engineer


Review Determination
Caroline Desbiens


Decision: March 12, 2002

TRANSLATION

The Minister has shown, on a balance of probabilities, that the Applicant contravened subsections 571.10(1) and 605.94(1) of the Canadian Aviation Regulations on July 17, 1998. In view of the Applicant's willing co-operation with regard to evidence of the defects, the Tribunal reduces the suspension periods by half and imposes a suspension of the Applicant's aircraft maintenance engineer licence No. M049738 for a period of 45 days for the first offence and a suspension of this licence for a period of 15 days for the second offence; this suspension is to take effect 15 days following service of this determination on the Applicant, for a total period of 60 days.

A review hearing on the above matter began January 8, 2001, at 10:00 hours in the Federal Court of Canada building in Montréal, Quebec, and continued January 9 in the morning. Within the context of the proceedings, the Applicant presented a preliminary motion asking that the Applicant's extrajudicial statement be declared inadmissible in evidence on the grounds that it was not given freely and voluntarily and was not reliable.

On January 8 and 9, 2001, this Tribunal held a hearing on the admissibility in evidence of the statement, and on March 26, 2001, the Tribunal allowed the objection to the Applicant's evidence and declared inadmissible the Applicant's prior statement which the Minister intended to file in evidence, on the grounds that the admissibility of this prior statement into evidence would bring the administration of justice into disrepute and would be contrary to the principles of procedural fairness and natural justice. In fact, the Tribunal could not conclude that the Applicant's statement faithfully represented what had been discussed and what the Applicant had told the inspector during his meeting and that the circumstances surrounding the statement did not sufficiently guarantee its reliability.

The review hearing on the above matter therefore resumed May 7 and 8, 2001, at 10:00 hours at the Federal Court of Canada in Montréal, Quebec.

The parties made their submissions in writing, these documents having been received November 13, 2001.

NOTICE OF SUSPENSION

The notice of suspension of aircraft maintenance engineer (AME) licence No. M049738 imposed on Mr. Gordon Leitch is dated July 6, 2000, and states as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s): subsections 571.10(1), 605.94(1) and 605.96(1) of the Canadian Aviation Regulations.

See Schedule 1

This suspension comes into effect on August 10th, 2000 and remains in effect until December 22nd, 2000.

Schedule 1 of the said notice provides the following details:

Subsection 571.10(1)

On or about July 17th, 1998, you signed a maintenance release for the aircraft Cessna 152 registered C-GZLZ, contrary to Chapter 571 of the Airworthiness Manual whereby the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft.

PENALTY: 90 days licence suspension

Subsection 605.94(1)

On or about July 17th, 1998, you did not record in the journey log of the aircraft Cessna 152 registered C-GZLZ, the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft.

PENALTY: 30 days licence suspension

Subsection 605.96(1)

On or about July 17th, 1998, you did not record in the appropriate technical record of the aircraft Cessna 152 registered C-GZLZ, the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft.

PENALTY: 15 days licence suspension

Section 6.9 of the Aeronautics Act stipulates as follows:

6.9 (1) Where the Minister decides to suspend or cancel a Canadian aviation document on the grounds that the holder of the document or the owner or operator of any aircraft, airport or other facility in respect of which the document was issued has contravened any provision of this Part or any regulation or order made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at his latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

[...]

(3) Where the holder of a Canadian aviation document or the owner or operator of any aircraft, airport or other facility in respect of which a Canadian aviation document is issued who is affected by a decision of the Minister referred to in subsection (1) wishes to have the decision reviewed, he shall, on or before the date that is thirty days after the notice is served on or sent to him under that subsection or within such further time as the Tribunal, on application by the holder, owner or operator, may allow, in writing file with the Tribunal at the address set out in the notice a request for a review of the decision.

[...]

(7) At the time and place appointed under subsection (6) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner or operator affected by the decision, as the case may be, with a full opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension or cancellation under review.

(8) On a review under this section of a decision of the Minister to suspend or cancel a Canadian aviation document, the member of the Tribunal conducting the review may determine the matter by confirming the suspension or cancellation or substituting the member's decision for the decision of the Minister.

PRELIMINARY REMARKS

At the hearing, the Respondent withdrew the penalty in respect of subsection 605.96(1) of the Canadian Aviation Regulations (CARs), and therefore the review hearing concerned only the first two offences.

It should also be pointed out that on July 20, 2000, the Chairperson of this Tribunal, Faye Smith, stayed the periods of suspension of the AME licence issued by the Minister in this case until this Tribunal has ruled on this suspension at the conclusion of these proceedings.

In this case, the Respondent Minister has the burden of proving, on the balance of probabilities, the offences of which the Applicant is accused and warranting the suspension of his AME licence for the periods indicated in the notice of suspension.

EVIDENCE OF THE MINISTER

The first witness questioned by the Respondent was Mr. Gordon Leitch, the Applicant.

Counsel for the Applicant first objected to Mr. Leitch being heard as a witness for the Respondent, the Minister. This objection was overruled since under the terms of section 6.9 of the Aeronautics Act, the legislator does not preclude the document holder from being compelled to give testimony, as it does in subsection 7.9(5) of the said Act with respect to a contravention of a designated provision which states that the interested party is not required to give testimony. Thus, for the reasons further elaborated in this case in the Tribunal's determination of March 26, 2001, I find that the Applicant is compellable to give testimony in this case under the terms of section 6.9 of the Aeronautics Act.

After overruling the Applicant's objection, the Tribunal recessed the hearing several minutes at the request of Mr. Racicot to allow him to confer with the Applicant to determine whether he wished to suspend the hearing immediately to appeal this decision to overrule the objection to the evidence or to continue with the hearing.

After the recess, the Applicant informed the Tribunal that he wished to continue with the hearing.

Mr. Gordon Leitch therefore testified and was questioned by the Minister's representative, Mr. Umberto Tamborriello.

Examination of the Applicant

Mr. Leitch has held an AME licence since 1965 and, since 1960, has worked at the company 2737-5633 Québec Inc. doing business as "Laurentide Aviation," which holds an operator certificate as a "flight training unit." During July 1998, he was working for Laurentide Aviation as an AME and maintenance manager in the context of the operator certificate of Laurentide Aviation. He was responsible for the maintenance of all aircraft in the Laurentide Aviation fleet. He therefore assumed responsibility for all maintenance activities relating to the flight training unit and was to ensure that aircraft inspections were performed as they became due, to make or have made any necessary repairs and to certify the aircraft after they were serviced. Mr. Leitch indicated that maintenance of the aircraft in the fleet was generally performed by unlicensed mechanics (apprentices), but that he was one of the mechanics who, because of his AME licence, was authorized to inspect the maintenance completed and performed by Laurentide Aviation apprentices and to certify it by issuing a maintenance release.

Laurentide Aviation also holds an aircraft maintenance organization (AMO) certificate. Mr. Leitch was also responsible for maintenance at the AMO on July 17, 1998, that is, on the date of the alleged offences, having been delegated by the president of this company pursuant to the maintenance policy manual (MPM), Exhibit D-1. He indicated that no one else was responsible for maintenance for the AMO. The AMO must operate its maintenance company in accordance with two manuals, the maintenance policy manual (MPM), Exhibits D-1 and M-11, and the maintenance control manual (MCM), Exhibit M-5. The MCM generally contains directives and statements of principle to guide the company that holds the AMO certificate in the overall operation of its company with respect to maintenance, while the MPM defines and explains the maintenance policies and procedures the AMO is to follow. Both these manuals generally reiterate the provisions of the CARs governing the activities of Laurentide Aviation, adapting them to the company's structure, personnel and activities.

On July 17, 1998, the Applicant was working at Laurentide Aviation and reviewed the 50-hour inspection done on aircraft C-GZLZ by Mr. Harper. The journey log (Exhibit M-2) and the inspection sheet for the 50-hour inspection of aircraft C-GZLZ (Exhibit M-3) indeed show that a 50-hour inspection was done July 17, 1998, on the said aircraft and that Mr. Gordon Leitch issued a maintenance release following the said 50-hour inspection and servicing. The maintenance release indicates specifically, "I certify I have completed a 50-hour inspection in accordance with maintenance schedule 0 2129 R3 and the aircraft is airworthy. The next scheduled maintenance event will be a 200 hr. inspection and will be due at 9452 hours."

Exhibit M-3 details the maintenance activities performed during this inspection.

In the 50-hour inspection sheet M-3, the following entry appears: "Change right rudder return spring."

Mr. Harper noticed that the attachment bracket was broken when he went to replace the return spring, and that is when he sought the Applicant's opinion (Exhibit M-4).

Exhibit M-4 is a document summarizing the maintenance activities of July 17, 1998, prepared by the Applicant the day following the crash of aircraft C-GZLZ (July 19, 1998) for submission to Mr. Scholefield, the president of the company.

Following Mr. Harper's inspection, Mr. Leitch also noticed that the return spring of the main pedal controls for the aircraft's rudder (spring used to maintain the tension of the rudder bar cables) and the spring's attachment bracket were no longer working and were separated from the control system.

Mr. Leitch cannot recall if the spring was broken and still attached to the attachment bracket or if it was missing, but he clearly remembers that the attachment bracket of the spring was broken and separated from the pedal control system and could not be repaired quickly. This kind of repair takes a few days, as several parts of the main controls, including the pedals, have to be removed. The missing spring was "insignificant" in terms of the aircraft's airworthiness, according to Mr. Leitch. He therefore certified the aircraft after the 50-hour inspection to return it to service, despite the fact that the spring and the attachment bracket were removed from the aircraft after the 50-hour inspection. Mr. Leitch in fact indicated that the purpose of this return spring was to return the pedal of the rudder back to a neutral position and since it was not the only spring controlling the rudder position, the fact it was missing did not, in his view, affect the airworthiness of the aircraft. Mr. Leitch specifically indicated that other springs, located on the "nose steering bungees and rods," were more important for controlling the position of the rudder.

Concerning this defect, Mr. Leitch explained that he had decided, together with a mechanic who had 10 to 15 years' experience, that the aircraft would still be airworthy despite the absence of the said spring. While acknowledging that the spring and its attachment bracket are an integral part of the main control system and were missing when the aircraft was made airworthy again, Mr. Leitch explained that before certifying the aircraft for further flight, he inspected the precise location where the attachment bracket was broken and the torque tube and found no damage. In his view, the attachment bracket was not broken on the rudder bar itself, but separate from this bar, so he concluded that if the bracket were removed, the rudder bar would not be affected. He therefore decided to remove the broken attachment bracket and the spring before certifying the aircraft to be flown again. These were the only inspections the Applicant performed, since he mentioned no other testing or ground test. Mr. Leitch repeated that the aircraft's airworthiness was not affected by this, as the springs maintaining the tension of the rudder bar cables often broke on this type of aircraft (four times a year in the whole fleet of 15 aircraft) without the pilots noticing during flight. Exhibit M-4, the Applicant's report, states that this defect was "not usually noticed by the pilot" (underlining added by the undersigned).

Mr. Leitch did acknowledge, however, that without the said return spring of the rudder's main pedal controls and its attachment bracket, the aircraft did not meet, strictly speaking, the aircraft manufacturer's standards of airworthiness.

When asked by the Minister's representative why he had not entered in the journey log the fact that the attachment bracket and spring had been removed and not replaced, Mr. Leitch said that such a journey log entry might have indicated that the aircraft was not airworthy when in fact it was. Mr. Leitch explained that making this entry in the journey log would be tantamount to admitting an airworthiness problem and he then would have been unable to certify the aircraft as airworthy for its return to service. In his view, the aircraft was airworthy since the fact that these parts were missing was not significant in terms of the aircraft's airworthiness.

Mr. Leitch submitted no other manufacturer's documentation that might justify the aircraft being returned to service despite the fact these parts were missing. He added that had he considered the absence of these parts significant, he would have entered it in the journey log and would never have returned the aircraft to service. Moreover, in cross-examination, Mr. Leitch admitted that usually when this type of spring had broken in the past, he recorded its replacement in the aircraft's journey log ....

After discussing Exhibit M-4, Mr. Leitch indicated that he had intended to repair the spring's attachment bracket the Monday after the incident. In fact, July 17, the day of the 50-hour inspection, was a Friday and the crash occurred Saturday, July 18. This attachment bracket could not be repaired immediately on the Saturday since, as mentioned earlier, certain parts had to be disassembled and sent to a repair organization approved for this type of repair, requiring or involving a one-week delay. When Mr. Leitch noticed the defect on the Friday, he saw no reason to ground the aircraft until Monday. Moreover, Mr. Leitch indicated that there was no mechanic available Saturday and Sunday at Laurentide Aviation to do the repair.

When asked by the Minister why he had not entered the defect in the journey log for later deferral, Mr. Leitch indicated he did not know whether this could be done. In his view, this defect could and was to be corrected at the time of the next inspection. Mr. Leitch admitted that minor defects can be deferred, but mentioned he had never used this deferral system. Instead, he used the system whereby if a defect was significant, he repaired it immediately or did not return the aircraft to service until the defect had been repaired. If the defect was not significant, he entered it in the inspection sheet available when the next inspection was done. According to the system put in place by Laurentide Aviation for minor inspections to be done at the time of subsequent inspections, the inspection sheet is prominently posted in the workshop in a location known to all mechanics so that it is consulted the next time the aircraft is inspected, that is, at the next opportunity. In this case, Mr. Leitch explained that even though the attachment bracket could go unrepaired until the next scheduled inspection, provision had been made for it to be repaired as soon as possible, that is, on the Monday. In fact, Mr. Leitch explained that the company Laurentide Aviation never lets recorded minor defects go unattended for long and that more significant defects are dealt with on Monday early in the week.

Mr. Leitch also indicated that the company had 15 aircraft of the same type as the one referred to here and that there was no urgency to return this aircraft to service on July 17, 1998. The only reason the aircraft was put back in service was that this was a minor defect that did not affect its airworthiness, according to Mr. Leitch. On July 17, when he checked the 50-hour inspection, Mr. Leitch had absolutely no idea whether the aircraft was to be flown the weekend of July 18 and 19.

The Minister then questioned Mr. Leitch about Exhibit M-5, the MCM of Laurentide Aviation, at page 36, section 3.9.1 of the said manual, concerning the deferral of defects, their rectification and control. Paragraph 3.9.1c. of the manual states:

c. Prior to further flight, after the person responsible for maintenance control system is advised, defects shall be rectified by a responsible AME or items which may be deferred should be initialled by the person responsible for maintenance control system. No deferral is permitted on components.

Paragraph f. states as follows:

f. Particulars of any defect in any part of the aircraft or its equipment shall be entered in the journey log by the person who discovered the defect, as soon as practicable after the defect is discovered, but at latest before the next flight.

According to Mr. Leitch, the spring's attachment bracket is not a "component" within the meaning of paragraph 3.9.1c. He gave no reason, however, in support of this conclusion. While admitting that the broken attachment bracket is a defect, and that according to this text, he would be obliged to enter it in the journey log, Mr. Leitch pointed out that paragraph 3.9.1f. of the MCM cannot apply to all minor defects noted on the aircraft as this would mean that every minor defect noted would have to be entered in the aircraft journey log. Concerning this paragraph, Mr. Leitch mentioned that AMEs still have some latitude and discretion because of their experience, as it would be illusory to require every defect, however minor, to be entered in the aircraft journey log. In short, Mr. Leitch indicated that AMEs can use their own judgment or discretion to override certain illusory rules of the MCM. Mr. Leitch also admitted that he is well aware of the content of the said MCM as he contributed to its preparation by Transport Canada and also admitted that this manual is drafted based on the mandatory provisions of the CARs. Moreover, in response to the Minister's representative, Mr. Leitch admitted in the end that the wording used in paragraph 3.9.1f. of the said MCM covers any defect noted, without distinction.

When questioned by his counsel Mr. Guy Racicot, Mr. Leitch mentioned that Exhibit M-4 which he prepared and which contains the history of the inspection of aircraft GZLZ on July 17, 1998, was prepared voluntarily and that this document was given to the president of Laurentide Aviation, Mr. Scholefield. To his knowledge, this letter was also forwarded to Mr. Marc Fernandez of the Transportation Safety Board of Canada (TSB). Mr. Fernandez apparently received this letter on July 28, 1998.

At Laurentide Aviation, return springs of the main controls of Cessna 152 type aircraft break approximately four times a year, and despite the frequency of this occurring on these aircraft Mr. Leitch has never received a complaint from pilots when these springs have broken.

Mr. Leitch also indicated that this type of spring must be inspected every 200 hours, and during the 50-hour inspection performed July 17, 1998, the inspection of the said spring was not required or scheduled. On or about July 17, 1998, the aircraft had accumulated 150 hours since the last 200-hour inspection so that according to the Applicant, the plane could have flown another 50 hours or so without an inspection of the said spring being required.

The MCM and MPM manuals of Laurentide Aviation were approved November 25, 1997. In fact, these manuals were rewritten in 1997 after the new CARs came into effect. According to Mr. Leitch, when these manuals were being prepared, Transport Canada inspectors had differing opinions as to how these manuals should be prepared and drafted to meet the requirements of the CARs. The criteria and requirements seemed to change depending on the inspector, hence the need for several amendments to be made over a two-year period before Transport Canada finally approved these manuals.

On re-examination by the Respondent's representative, the Applicant explained that the annual average of four (4) broken springs was calculated for the entire fleet of Laurentide Aviation which includes 15 Cessna 152 aircraft. When these springs broke, they were immediately replaced. It takes about fifteen minutes to change such a spring. However, as said earlier, when the spring's attachment bracket itself is broken, it takes longer to repair this part. Usually, when these springs break and are replaced, Mr. Leitch admitted that the replacement of the spring is mentioned in the aircraft journey log by the mechanic who made the repair.

Mr. Leitch also explained that when a defect is noted other than during the aircraft's scheduled maintenance, it is entered in the aircraft journey log if it is a significant defect. This defect is then noted and repaired immediately. According to Mr. Leitch's understanding of the significance of a defect, a significant defect is one that affects the history of the aircraft. Mr. Leitch mentions, specifically, "If it is something very trifling, there is no use putting a minor defect in the log book if there is no need to repair it at a particular time."

Mr. Leitch acknowledged that July 17, 1998 was the first time he noticed a broken attachment bracket of the spring in the fleet of Laurentide Aviation. He admitted that this part is part of the aircraft's main controls. He also admitted that the aircraft's main controls are an important part of the aircraft.

Finally, Mr. Leitch admitted that without the attachment bracket and the spring, the aircraft did not theoretically meet the manufacturer's standards of airworthiness. He expressed himself as follows: "In this state, i.e., with the retaining bracket missing, did the aircraft still meet the standards of airworthiness? Probably not. No, if you follow the book."

When the Department put this question to Mr. Leitch, the Tribunal also noted that Mr. Leitch took quite some time before answering and thought the question over carefully. He went on to say, "... to meet the strict build criterias, the springs need to be there since the manufacturer puts it there" [sic].

Mr. Leitch indicated, however, that this spring has no life limit as do the propellers and engine. Nor has he ever received an airworthiness directive from the manufacturer about these springs that control the rudder bar controls or their attachment brackets. The only other way of finding out about defective parts is to refer to the manufacturer's service bulletin or service letters. In this case, no service letter or service bulletin has been sent out by the manufacturer concerning the return spring of the main pedal controls or its attachment bracket.

Finally, Mr. Leitch indicated he had never consulted Transport Canada about this broken spring problem in the past.

The evidence does not show whether the Applicant checked the aircraft type certificate or the characteristics or data of its type design to address the question of the missing spring and its attachment bracket before returning the aircraft to service.

Examination of Mr. Pontbriand

The other witness who testified for Transport Canada was Mr. André Pontbriand.

Mr. André Pontbriand is Civil Aviation Superintendent, Maintenance, Transport Canada. Mr. Pontbriand was approved as a willing expert witness and in Québec is a director of civil aviation. His expertise is recognized specifically in aircraft maintenance. Mr. Pontbriand also holds a pilot licence.

According to Mr. Pontbriand, the absence of the return spring from the main controls of the rudder and the broken attachment bracket of this spring meant that aircraft GZLZ no longer met the standards of airworthiness. These missing parts are necessary to regulate the control cables as they maintain cable tension. Therefore, if these parts are missing, the pilot may have difficulty operating the rudder, particularly as some ten pounds of pressure is lacking to assist the cable. In the circumstances, the certificate of airworthiness of the aircraft was no longer in effect as it had not been serviced according to the standards of airworthiness.

Specifically, according to Mr. Pontbriand, the standards of airworthiness of the aircraft type certificate were no longer met. The aircraft type certificate in force on July 17, 1998 was filed as Exhibit M-6. It is not disputed that this type certificate M-6 was in force on July 17, 1998, and this document was filed by consent. At page 12 of the said type certificate, it appears that the certification basis of the Federal Aviation Administration (FAA) for this aircraft type is Part 3 of the Civil Air Regulations dated May 15, 1956, as amended by section 3-4. The said certificate specifically states:

Certification basis Part 3 of the Civil Air Regulations dated May 15, 1956, as amended by 3-4.

Mr. Pontbriand then referred the Tribunal to Exhibit M-7, which is in fact Part 3 of the Civil Air Regulations of the FAA and covers specifically the minimum standard of airworthiness for the aircraft involved in this case. According to Exhibit M-7, i.e., the certification basis for the aircraft type certificate, the FAA attributes importance to the aircraft's control system and the spring of the main controls. Exhibit M-7 was filed by consent.

Sections 3.344 and 3.347 in fact state as follows:

CONTROL SYSTEM DETAILS

§ 3.344 General. All control systems and operating devices shall be so designed and installed as to prevent jamming, chafing, or interference as a result of inadequate clearances or from cargo, passengers, or loose objects. Special precautions shall be provided in the cockpit to prevent the entry of foreign objects into places where they might jam the controls. Provisions shall be made to prevent the slapping of cables or tubes against parts of the airplane. The elements of the flight control system shall incorporate design features or shall be distinctively and permanently marked to minimize the possibility of incorrect assembly which could result in malfunctioning of the control system.

[...]

§ 3.347 Spring devices. The reliability of any spring devices used in the control system shall be established by tests simulating service conditions, unless it is demonstrated that failure of the spring will not cause flutter or unsafe flight characteristics. [underlining added by the undersigned]

In this case, Mr. Pontbriand mentioned that Mr. Leitch conducted no test, no operational ground test and no inspection of the cable tension other than a visual inspection to determine that the missing spring and attachment bracket did not affect the flight characteristics. The Applicant also did not mention having done an operational ground test or adjusted the cable tension in the absence of the spring and attachment bracket.

Mr. Pontbriand did acknowledge, however, that a more detailed manufacturer's reference did not exist to check whether this type of spring was still operational, the only way to check this being visually (i.e., without any measuring device) but while simulating service conditions, as stated in Exhibit M-7. In his opinion, these service conditions could be simulated on the ground.

The type certificate for Cessna 152 C-GZLZ issued by the FAA is accepted in Canada as an aircraft type certificate under a bilateral agreement with the United States. This fact is not in dispute.

When asked about the maintenance schedule for the main pedal controls of the Cessna 152, Mr. Pontbriand indicated, in contradiction to Mr. Leitch, that the cable tension was required to be inspected every one hundred (100) hours, and accordingly, the return spring of the main controls and its attachment bracket, which are part of the main controls, are required to be inspected every 100 hours. This appears in the aircraft maintenance schedule in Exhibit M-9, at page C 12, in the paragraph entitled "Control Systems," which reads as follows:

In addition to the items listed below, always check for correct direction of movement, correct travel and correct cable tension.

  1. Cables, terminals, pulleys, pulley brackets, cable guards, turnbuckles and fairleads ... 100 hr / Annual

Therefore, in this case, contrary to what the Applicant alleges, the springs used to control the tension of the rudder bar cables had been due for inspection for at least 50 hours on July 17, 1998, since the last inspection had been done at least 150 hours previous, as shown in the journey, according to Mr. Pontbriand.

As for the method used to inspect the cable tension or the main controls, Mr. Pontbriand referred the Tribunal to the manufacturer's service manual, Exhibit M-10 ("Service Manual - Model 152 Series"). Specifically, at page J 08 of this service manual, sections 10-3 and 10-11 explain how to adjust the tension of the cable between the pedals and the rudder, i.e., a method of adjustment to achieve satisfactory tension.

Section 10-11 of the manufacturer's service manual M-10 states as follows:

10-11. RIGGING. (See figure 10-1).

a. Adjust stop screws (8) to attain travel specified in Section 1. Figure 10-4 illustrates correct travel and one method of checking.
b. Disconnect nose wheel steering tubes (index 6, figure 5-6) from nose strut.
c. Adjust cables at clevices (5) to align rudder and pedals in neutral position 6.00 inches from firewall and pedal pivot shafts (index 4, figure 10-2). This step automatically determines cable tension through use of return springs (14).

According to Mr. Pontbriand, if the spring is missing, the position of the rudder will immediately indicate this.

Moreover, according to Mr. Pontbriand, Exhibit M-5, the MCM of Laurentide Aviation, clearly indicates, in paragraphs 3.9.1c. and f. at page 36, that defects shall be rectified by a responsible AME prior to further flight of the aircraft unless it is an item that may be deferred. No deferral is permitted, however, on components under the terms of this MCM. According to Mr. Pontbriand, the spring and its attachment bracket are components covered by these paragraphs of the MCM.

Paragraph f. also indicates that the particulars of any defect in any part of the aircraft or its equipment shall be entered in the journey log by the person who discovered the defect, as soon as practicable after the defect is discovered, but at latest before the next flight. According to Mr. Pontbriand, the defects that may be deferred or covered by a "tolerance" are only those that do not prevent the certificate of airworthiness from being in force, i.e., those that do not prevent the aircraft from meeting the conditions of its type certificate and do not prevent the safe operation of the aircraft for its intended use. Mr. Pontbriand referred specifically to subsection 625.86(8) of the Aircraft Equipment and Maintenance Standards, which is the reference for the deferral of defects, and in the circumstances, the mechanic had to know that the replacement of a spring could not be deferred.

In short, according to Mr. Pontbriand, the requirement set out in Exhibit M-7, the American Civil Air Regulations dated May 15, 1956, as referred to in aircraft type certificate No. 3A19 (Exhibit M-6), was not met because of the failure to check the cable tension of the main rudder controls and to conduct an operational test in the absence of parts (spring and attachment bracket), and this requirement is a standard of airworthiness governing maintenance performance referred to in Chapter 571 of the Airworthiness Manual.

Mr. Pontbriand also indicated that the removal of parts is a maintenance action as defined in the CARs, particulars of which must be entered in the aircraft journey log as soon as practicable but, at the latest, before the next flight. This, in his view, is a condition set out in Schedule I of section 605.94 of the CARs.

The Minister's representative then attempted to file the TSB report to show that this defect had influenced the crash, but Mr. Racicot objected to its being filed at this stage of the inquiry as it is not relevant, for the purposes of this case, to determine the cause of the incident of July 18, 1998. In fact, the only issues the Tribunal must deal with are whether Mr. Gordon Leitch contravened section 571.10 of the CARs by issuing a maintenance release in respect of the aircraft Cessna 152 C-GZLZ when the return spring of the main pedal controls and its attachment bracket had been removed from the said aircraft, i.e., whether this release was in contravention of the standards of airworthiness, and whether he contravened section 605.94 of the CARs in not entering the removal of these components in the aircraft journey log.

Following the objection of Mr. Leitch's counsel, Transport Canada eventually withdrew the said TSB report.

In cross-examination, counsel Mr. Racicot attempted to file a document obtained over the Internet referring to certain statistics of a British organization (not the Civil Aviation Authority (CAA)) about this return spring of the main controls of the Cessna 152. The Respondent objected to the filing of this report. This objection was allowed since this document was in no way a certified copy and there was nothing to indicate to us the origin of this document, that is, it could not even be guaranteed that this document emanated formally from the CAA. This report was not admitted into evidence because it constituted hearsay and potentially an opinion without knowing whether an investigation had been carried out, and also because it was impossible to verify the source of its content or to cross-examine the author.

In cross-examination, counsel for the Applicant attempted to file, through Mr. Pontbriand, as Exhibits D-3 to D-6, three letters of notification (Transport Canada form 24-0019) concerning other aircraft of Laurentide Aviation for events after July 17, 1998. The Respondent objected to this evidence on the grounds that it was not relevant as it postdated the offence. Through these documents, the Applicant attempted to show that for certain defects, not similar to the defects in this case but possibly affecting the aircraft's airworthiness, Transport Canada had agreed to defer the corrective measures until the next inspections. By means of this evidence which postdates the events, the Applicant wanted to show that inspectors acting for the Respondent Minister have some discretion which they do not all exercise in the same way, and that this inconsistency of Transport Canada causes confusion for AMEs, including the Applicant, about the defects that may be deferred. During cross-examination of Mr. Pontbriand, Mr. Racicot also attempted to show that it was not the Transport Canada inspectors who entered the defects in the aircraft journey logs in question, even though they had discovered the defects, in contravention of the CARs, according to Mr. Racicot, since the "person who discovers" the defect must enter it in the log.

As these letters of notification postdate the events and cannot have influenced the Applicant in the context of his decisions of July 17, 1998, and as these defects are not the same as those concerned here, I allow the objection of the Respondent Minister and declare these documents inadmissible in evidence as they are irrelevant to this case. Moreover, the fact that a Transport Canada inspector does not enter the defect in the journey log (according to Mr. Pontbriand, he notes it elsewhere if the log is unavailable by posting a note on the aircraft or issuing a letter of notification) does not justify the failure of an AME to enter a defect in the journey log if, under the CARs, he is required to do so.

EVIDENCE OF THE APPLICANT

The Applicant presented no further defence evidence other than the documents filed through Mr. Pontbriand and Mr. Leitch.

Specifically, the Applicant presented no evidence concerning prior conduct by Transport Canada that may have influenced his decision to defer the replacement of the spring in question and its attachment bracket so that the aircraft could be returned to service.

THE ISSUES

  1. Did the Applicant contravene subsection 571.10(1) of the CARs and Chapter 571 of the Airworthiness Manual when he signed the maintenance release in respect of the aircraft Cessna 152 C-GZLZ on or about July 17, 1998 when the return spring of the main pedal controls and its attachment bracket were removed from the said aircraft?

    In this case, it is not disputed that on July 17, 1998, Mr. Gordon Leitch signed a maintenance release in respect of the aircraft Cessna 152 C-GZLZ when the return spring of the main pedal controls and its attachment bracket were removed from this aircraft.

    The issue is therefore whether the Applicant's maintenance release does or does not meet the applicable requirements specified in Chapter 571 of the Airworthiness Manual and whether the certification was executed when the standards of airworthiness of this aircraft type were not met, contrary to subsection 571.10(1) of the CARs and Chapter 571 of the Airworthiness Manual.
  2. On or about July 17, 1998, did the Applicant contravene subsection 605.94(1) of the CARs by failing to enter in the journey log of the aircraft Cessna 152 C-GZLZ the fact that the return spring of the main pedal controls and its attachment bracket had been removed from the aircraft?

    Once again, it is not disputed that both these parts in question were removed from the aircraft Cessna 152 C-GZLZ on July 17, 1998. Moreover, the Applicant himself has admitted he did not enter this element in the aircraft journey log, as he saw no requirement or need to do so. Consequently, the only issue to be determined is whether the Applicant contravened subsection 605.94(1) of the CARs in failing to enter it in the journey log of the aircraft in question.

THE LAW

Subsection 571.10(1) of the CARs provides as follows:

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.

Subsection 605.85(1) of the CARs provides as follows:

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

In subsection 101.01(1) of the CARs, we also find the following definitions:

"maintenance release" means a certification made following the maintenance of an aeronautical product, indicating that the maintenance was performed in accordance with the applicable provisions of these Regulations and the standards of airworthiness;

"maintenance" means the overhaul, repair, required inspection or modification, or removal and installation of components of, an aeronautical product, but does not include

(a) elementary work, or
(b) servicing;

"standard of airworthiness", in respect of the design, manufacture or maintenance of an aeronautical product, means the description, in terms of a minimum standard, of the properties and attributes of the configuration, material and performance or physical characteristics of that aeronautical product, and includes the procedures to ascertain compliance with or to maintain that minimum standard, as specified in Part V;

"type certificate" means a document issued by the Minister certifying that the type design of an aircraft, aircraft engine, aircraft propeller or aircraft appliance meets the applicable standards for that aeronautical product, as recorded in the type certificate data sheet, and includes a type approval issued, before the coming into force of these Regulations, pursuant to section 214 of the Air Regulations; [this was the definition in effect on July 17, 1998]

The term "components" is not defined in either the CARs or the Aeronautics Act.

Concerning the maintenance standards specified in Chapter 571 of the Airworthiness Manual, section 571.10 states as follows:

571.10 Maintenance Release

Information Note:

Pursuant to CAR 605.85, a maintenance release with respect to maintenance performed on an aeronautical product, a maintenance release shall be completed prior to take off in the affected aircraft. It is a declaration that, with respect to the maintenance performed, the performance rules of CAR 571.02 have been complied with and the applicable standards of airworthiness have been met.

[...]

(2) Maintenance Release Record Keeping

(a) A maintenance release applies only to the particular maintenance task or tasks to which it relates. Therefore:

(i) it is acceptable to sign a maintenance release in respect of a single task or group of tasks, even if other work is outstanding on the aircraft, provided that the wording of the entry leaves no doubt as to the scope of work being certified; and

(ii) it is the responsibility of the person signing a maintenance release to ensure that the technical record is correct in respect of the status of any outstanding task.

(b) Each maintenance release must include the following information:

(i) product identification (aircraft registration marking, nomenclature, type/model number, name of manufacturer, part number, and serial number), unless the release is being made in an established Technical Record that contains this information;

(ii) a brief description of the work performed, including applicable reference data, when the reference data is not included in the maintenance publications of the manufacturer, and the work order number.

(c) The maintenance release shall contain a statement indicating when a part is removed from an airworthy aircraft.

With regard to paragraph (2)(c) of section 571.10 of the standards of airworthiness, it is appropriate to refer to the English text, given the faulty draftsmanship [of the French text]:

(2) Maintenance Release Record Keeping

[...]

(c) The maintenance release shall contain a statement indicating when a part is removed from an airworthy aircraft. [underlining added by the undersigned]

Standards 571.02 to which standards 571.10 of the Airworthiness Manual refer state as follows:

571.02 Maintenance Performance Rules

[...]

Persons who perform maintenance or elementary work are required to follow the manufacturer's recommendations, or equivalent practices. Where the recommendations of the aircraft manufacturer are incompatible with those of the engine, propeller, or appliance manufacturer, the recommendations of the aircraft manufacturer shall be used. Where the manufacturer has not made specific recommendations, standard industry practices are to be used. These practices include, but are not limited to, methods published by Transport Canada, a foreign Civil Aviation Authority, the manufacturer of a similar product, or other practices that may not be published provided they are generally accepted by the Canadian aviation industry. Similar requirements apply to the selection of parts, materials, tools and test apparatus.

Subsection 571.10(4) of the Airworthiness Manual provides:

571.10 Maintenance Release

[...]

(4) Notwithstanding the requirement to comply with the Performance Rules in accordance with section 571.02 of the CARs, the following additional standards of airworthiness, developed in conformity with section 571.10 of the CARs, apply with respect to the types of work indicated in the following table:

[...]

(d) Work that disturbs engine or flight controls

That the system has been inspected for correct assembly, locking and sense of operation, by at least two persons, and the technical record contains the signatures of both persons.

The information note pertaining to this requirement mentions:

Information Note: One of the signatures required by this section may be that of the person who has signed the maintenance release.

It is also important to note subsection 571.02(1) of the CARs:

571.02 (1) Subject to subsection (2), a person who performs maintenance or elementary work on an aeronautical product shall use the most recent methods, techniques, practices, parts, materials, tools, equipment and test apparatuses that are
(a) specified for the aeronautical product in the most recent maintenance manual or instructions for continued airworthiness developed by the manufacturer of that aeronautical product;
(b) equivalent to those specified by the manufacturer of that aeronautical product in the most recent maintenance manual or instructions for continued airworthiness; or
(c) in accordance with recognized industry practices at the time the maintenance or elementary work is performed. [underlining added by the undersigned]

Finally, section 507.02 of the CARs relating to the certificate of airworthiness shows that the certified aircraft type design is the minimum standard required for the issuance of a 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.

Section 101.01 of the CARs also defines the expression "type design" as follows:

"type design" means

(a) the drawings and specifications, and a listing of those drawings and specifications that are necessary to define the design features of an aeronautical product in compliance with the standards applicable to the aeronautical product,
(b) the information on dimensions, materials and manufacturing processes that is necessary to define the structural strength of an aeronautical product,
(c) the approved sections of the aircraft flight manual, where required by the applicable standards of airworthiness,
(d) the airworthiness limitations section of the instructions for continued airworthiness specified in the applicable chapters of the Airworthiness Manual, and
(e) any other data necessary to allow, by comparison, the determination of the airworthiness and, where applicable, the environmental characteristics of later aeronautical products of the same type or model; (définition de type)

As for the second count in the Notice, subsection 605.94(1) of the CARs provides as follows:

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.

Item 8 in column I of Schedule I refers to "particulars of any defect in any part of the aircraft or its equipment" which must be entered "as soon as practicable after defect is discovered but, at the latest, before the next flight" by "the person who discovered the defect".

Also in Schedule I, item 9 in column I refers to "particulars of any maintenance action or elementary work performed in respect of item 2, 5 or 8" which must be entered "as soon as practicable after the maintenance action or elementary work is performed but, at the latest, before the next flight" by "the person who performed the maintenance action or elementary work".

With regard to this section 605.94 of the CARs, and specifically to item 9 in respect to any maintenance action, it should be reiterated that the definition of "maintenance" in section 101.01 of the CARs covers the removal of components of an aeronautical product, but does not include servicing.

ARGUMENTS OF THE PARTIES AND DISCUSSION

1. Contravention of subsection 571.10(1) of the CARs:

With regard to this first offence, the Respondent Minister maintains, first, that the Applicant contravened subsection 571.10(1) of the CARs in that:

  1. The Applicant signed a maintenance release when the standards of airworthiness prescribed by both the aircraft type design and Chapter 571 of the Airworthiness Manual (specifically subsection 571.10(4) of the standards) were not met. In this particular case, the removal of the spring from the main rudder controls and its attachment bracket constitutes maintenance according to the definition provided in section 101.01 of the CARs.
  2. The Applicant signed a maintenance release without it meeting the applicable requirements specified in section 571.10 of the Airworthiness Manual and specifically, the requirements of subparagraph 571.10(2)(a)(ii) which states that it is the responsibility of the person signing a maintenance release to ensure that the technical record is correct in respect of the status of any outstanding task.

Regarding the elements to be proven with respect to the above-cited elements for the alleged offence, the Respondent alleges that the evidence he submitted and which has not been refuted, shows the following, and we agree:

  • On July 17, 1998, the Applicant was working as an AME and maintenance manager for the company Laurentide Aviation.
  • On July 17, 1998, the Applicant reviewed the 50-hour inspection done by Mr. Harper (apprentice) on the aircraft Cessna 152 C-GZLZ, and he issued a maintenance release. This evidence is supported by Exhibits M-2 (journey log) and M-3 (50-hour inspection report) and Gordon Leitch's testimony.
  • It is not disputed that the maintenance release allowing aircraft C-GZLZ to be returned to service was issued even though the rudder bar return spring and its broken attachment bracket were removed from the aircraft.
  • The inspection sheet M-3 shows that the rudder bar return spring was required to be changed.
  • Both Mr. Harper and the Applicant noted the broken attachment bracket and the missing spring from the control system in question.
  • This was the first time Mr. Leitch returned an aircraft to service when the attachment bracket was missing.
  • The only inspection the Applicant performed was visual and no evidence has been submitted to show that he checked the cable tension or did ground tests to inspect the cables and springs of the whole rudder control system. No simulation of aircraft service conditions was done on the ground.
  • Mr. Leitch did not know whether he could defer or use the deferral system for this kind of maintenance task as he never uses this system. It was his understanding that the defects could be repaired only at the next scheduled inspection.
  • The Applicant acknowledged that the missing parts were an integral part of the aircraft's surface control system which is an important system of the aircraft.
  • The Applicant acknowledged that in order to meet the manufacturer's strict standards of airworthiness, the spring in question and its attachment bracket could not be missing from the aircraft.
  • The Applicant indicated that the tension of the control cables was required to be inspected every 200 hours, while at page C 12 of the aircraft maintenance schedule (Exhibit M-9) it states that this inspection is required to be performed every 100 hours. According to the entries in the journey log M-2 and Mr. Leitch's testimony, the aircraft had been flown more than 150 hours as of July 17, 1998, since the previous cable inspection. Therefore, on July 17, 1998, the cable inspection was overdue by approximately 50 flight hours.
  • Mr. Leitch acknowledged having entered in the journey log the change of the return spring of the main pedal controls in the past when this type of spring broke in the fleet of Laurentide Aviation (on average, four times a year in a fleet of fifteen aircraft).
  • Mr. Leitch acknowledged that according to paragraph f. of section 3.9.1 of the MCM of Laurentide Aviation, he was required to enter in the aircraft journey log any defect noted and that the MCM did not distinguish between minor and major defects. He pointed out, however, that this manual goes too far as it leaves no discretion or latitude to the AME who had the delegated responsibility for maintenance.
  • Mr. Leitch acknowledged that a journey log constitutes a technical record within the meaning of the CARs.
  • Mr. Leitch has never in the past brought the problem of broken springs on this aircraft type (Cessna 152) to the attention of Transport Canada.
  • According to the undisputed expertise of Mr. Pontbriand, the spring in question is part of the control system and maintains the proper cable tension. When this part is missing the pilot may have difficulty operating or controlling the rudder. Mr. Pontbriand himself had this experience when fully airborne on another type of Cessna when the said spring broke. He said he had a lot of difficulty controlling the rudder after the spring broke.
  • According to the expert Mr. Pontbriand, the standards of airworthiness of the type certificate of aircraft C-GZLZ were no longer met.
  • The aircraft type certificate in force on July 17, 1998 was filed as Exhibit M-6 by consent. Although issued by the FAA, a foreign authority, it is not disputed that this type certificate is recognized in Canada. The FAA's minimum basis of certification and maintenance of airworthiness for this aircraft type is Part 3 of the Civil Air Regulations dated May 15, 1956.

The Applicant submits that it appears from the said Civil Air Regulations of the FAA, filed as M-7, that the FAA attributes importance to the spring of the main controls, stipulating in section 3.347 that the reliability of any spring devices used in the control system "shall be established " by tests simulating service conditions, unless it is demonstrated that failure of the spring will not cause flutter or unsafe flight characteristics.

The Respondent submits that in doing no test, no operational ground test and no inspection or adjustment of the cable tension other than visually to show that the missing spring and attachment bracket did not affect flight characteristics, the Applicant contravened the FAA procedures that are intended to maintain the minimum standard of airworthiness and that constitute the basis of certification and maintenance of the aircraft in both the United States and Canada.

We agree with this contention, as these standards of airworthiness are recognized in Canada for the certification of aircraft and for maintaining the validity of their certification and are among the standards of airworthiness applicable to aircraft maintenance pursuant to section 507.02 and subsection 571.02(1) of the CARs and the Airworthiness Manual, and specifically standard 571.02.

Moreover, the Applicant does not dispute that the type certificate of the Cessna 152 C-GZLZ issued by the FAA is accepted in Canada as the aircraft type certificate under a bilateral agreement with the United States.

Mr. Pontbriand indicated that the Minister used the type certificate filed as Exhibit M-6 as the basis for issuing a certificate of airworthiness for the Cessna 152 pursuant to section 507.02 of the CARs. This contention was not disputed.

Therefore, the Respondent alleges that in signing the maintenance release in respect of the aircraft Cessna 152 C-GZLZ on July 17, 1998, without having done any ground test or inspection of the cable tension other than visually, the Applicant contravened subsection 571.10(1) because the standards of airworthiness of the Cessna 152 necessary for its certification and for maintenance of its certificate of airworthiness and forming part of the type certificate of this aircraft, were not met.

The Minister also submits that no deferral was allowed for these components under the terms of the MCM, Exhibit M-5, paragraphs 3.9.1c. and f. In fact, this MCM, approved by Transport Canada and also constituting, according to the Respondent, the applicable standards of airworthiness, indicates that any defect must be rectified by a responsible AME prior to further flight, unless the item may be deferred. However, no deferral is permitted on components, according to this MCM. The Respondent submits that the spring in question and its attachment bracket are components whose replacement could not be deferred.

The Respondent further indicates that only defects that do not prevent the aircraft from meeting the conditions of its type certificate and do not cause unsafe flight characteristics may be deferred, as Mr. Pontbriand explained. Since here the type certificate attaches importance to springs that are control components and their reliability must be established by tests simulating service conditions and these tests were not done, no deferral was therefore permitted.

As to whether or not the replacement of the spring and its attachment bracket could be deferred until the next inspection, the Applicant submitted no expert evidence. It appears from the evidence, moreover, that the Applicant did not know whether or not a deferral was possible in the circumstances. The evidence also shows that the inspection of the cables was 50 hours overdue, contrary to the Applicant's understanding. The Applicant's testimony that the parts (spring and its attachment bracket) could be replaced at the next scheduled inspection is therefore neither reliable nor credible.

The Respondent also alleges that the Applicant contravened section 571.10 of the CARs in signing a maintenance release when the standards of airworthiness prescribed by the Airworthiness Manual (Chapter 571, paragraph 571.10(4)(d)) were not met, in that any work that disturbs flight controls must be inspected by at least two persons for correct assembly, locking and sense of operation.

In this case, the Respondent alleges that the Applicant has brought no evidence to show that he and Mr. Harper inspected the flight controls to inspect the assembly, locking and sense of operation. The evidence shows only that Mr. Leitch apparently made a visual inspection to check the precise location where the attachment bracket was broken. Since the attachment bracket was not broken on the rudder bar itself, he agreed that the removal of the bracket would not affect the rudder bar. The Respondent alleges that this inspection was inadequate and that the Applicant has brought no other evidence to show that he inspected the elements he is required to inspect pursuant to subsection 571.10(4) of the Airworthiness Manual with the aid of another person, applying the adjustment methods specified in section 10-11 of the maintenance manual filed as Exhibit M-10.

We would point out, moreover, that the Applicant has submitted no evidence in defence of the Minister's allegations and that Mr. Harper has not testified. If the inspection performed by the Applicant and Mr. Harper was more thorough or more detailed, the evidence is insufficient or silent in this regard.

Finally, with regard to the first offence, the Respondent alleges that the Applicant's maintenance release in respect of aircraft C-GZLZ on July 17, 1998 did not meet the applicable requirements of the Airworthiness Manual, and specifically those set out in subparagraph 510.10(2)(a)(ii) of the said manual, in that the certification in the journey log (in the technical record as admitted by the Applicant) should have mentioned the status of any outstanding task.

In short, the Respondent alleges that since the rudder bar return spring and its attachment bracket were missing and were to be replaced, the replacement of these components constituted outstanding tasks that should have been mentioned in the maintenance release if the Applicant thought they could be deferred or left outstanding.

As the Applicant thought that these tasks could be deferred until the next scheduled inspection, which the Minister rejects, he should have indicated these outstanding tasks in his maintenance release.

In rebuttal to the Respondent's arguments on these points, the Applicant's defence is limited to the following:

  1. The evidence shows that Mr. Leitch thought that the missing spring in question and its attachment bracket were insignificant and did not affect the aircraft's airworthiness because the visual inspection showed no damage to the torque tube and because pilots had never complained (in short, Mr. Leitch had never received a complaint to this effect) about the absence of this type of spring, used to maintain the tension of the rudder bar cables, even though this happens on average four times a year in the aircraft fleet of Laurentide Aviation.

    Counsel for the Applicant submits that Mr. Leitch indicated these broken springs had been noticed during 50- and 100-hour inspections but that there was no way of knowing the number of hours the aircraft had been in operation without the said spring.
  2. Counsel for the Applicant also submits that the conduct of Transport Canada, both before and after July 17, 1998, gave the impression that Transport Canada had a degree of tolerance with regard to these broken springs and this therefore led the Applicant to believe that this type of failure did not affect airworthiness.

    Concerning this second argument, counsel for the Applicant again referred to Exhibits D-3, D-4 and D-5 which pertain to different Transport Canada inspections since July 17, 1998 for defects other than those referred to in this case.

For the reasons we have already set out, we reject the evidence relating to documents D-3 to D-5 as it is irrelevant. Moreover, these inspections do not concern the same defects as those referred to in this case.

To support his second argument, counsel for the Applicant also referred to Mr. Pontbriand's testimony that after the crash of July 18, 1998, he found deficiencies (in the spring's system) on 31 aircraft of carriers located in the region under his supervision and that, although he had notified Transport Canada of this, Transport Canada never thought it necessary to intervene in any way whatsoever. We do not agree with this conclusion, as Mr. Pontbriand's testimony shows that in all cases the aircraft were grounded by letters of notification, and in one case Transport Canada issued a suspension of the certificate of airworthiness of the aircraft in question.

This argument must also be rejected since these events, which occurred after the incident of July 17, 1998, cannot have influenced or biassed the Applicant's judgment on July 17, 1998, when he issued the maintenance release. Moreover, the Applicant never testified that he personally thought it was Transport Canada's view that the missing spring would not affect airworthiness. Rather, it is the Applicant's counsel who is attempting to presume a state of mind on the part of the Applicant by filing Exhibits D-3 to D-5; the Applicant has himself submitted no evidence about his confusion or his understanding of the conduct of Transport Canada with regard to broken springs identical to the one in question on July 17, 1998. On the contrary, he has acknowledged never having consulted Transport Canada about this, and the Applicant's theory that he was misled by the actions of Transport Canada must therefore be rejected.

It therefore remains for us to determine whether the Applicant's visual inspection of July 17, 1998, when he noticed that the spring and its bracket had separated, was sufficient with regard to the standards of airworthiness to ensure the airworthiness of the aircraft, considering that the company's pilots had never complained about the problem of rudder control in instances where this type of spring had broken.

First of all, it should be stressed that the fact that a pilot does not note a defect or complain of it does not automatically mean that an AME who issues a maintenance release to return an aircraft to service need not comply with the standards of airworthiness.

A broken part affecting an aircraft's airworthiness may go unnoticed by a pilot. Moreover, the standards of airworthiness applicable to this case were produced by the Respondent without any conflicting evidence on behalf of the Applicant.

As mentioned earlier, we agree with the Minister's allegations that the aircraft type certificate (M-6), which refers to the Civil Air Regulations, includes the minimum standards of airworthiness and for determining the conformity of the Cessna 152 aircraft as well as the minimum standards for maintaining its airworthiness, and these standards are applied in Canada. In short, the Applicant had to comply with these minimum standards of airworthiness applicable to maintenance before issuing his maintenance release and putting the aircraft back in service (subsection 571.10(1) and section 507.02 of the CARs and standards).

In the circumstances, the Applicant was required to comply with section 3.347 of the Civil Air Regulations referred to in the aircraft type certificate M-6 and, in the absence of the return spring of the main pedal controls and the attachment bracket, to ensure the reliability of the springs used in the control system by means of tests simulating service conditions, unless it was shown to him that failure of a spring would not cause flutter or unsafe flight characteristics. In this case, the question to be asked specifically is whether Mr. Leitch had sufficient evidence to conclude that the failure of the spring would not cause flutter or unsafe flight characteristics.

In the circumstances, was the fact that Mr. Leitch had never received a complaint from the company's pilots about a control problem, owing to the absence of this type of spring, sufficient to show that the failure of the spring would not cause unsafe flight characteristics in the Cessna C-GZLZ as of July 17, 1998?

We believe this was insufficient and that the Applicant should have enquired further about the consequences of a failure of this type of spring before certifying the aircraft. He could have done so by directly asking the last pilot who had flown the aircraft whether he had experienced a rudder control problem during flight. No evidence has been led in this regard. He could also have checked this out with Transport Canada engineers or the manufacturer, as recommended in Chapter 571 of the Airworthiness Manual in the maintenance performance rules (standard 571.02).

We believe that the Applicant, although acting in good faith, was lax particularly since the basis of the aircraft type certification attached significance to the springs of the rudder's main controls. No evidence has been submitted to the effect that the Applicant consulted the aircraft type certificate or the data applicable to the type design (for example, section 3.347 of the American Civil Air Regulations). Nor has any evidence been submitted to the effect that the Applicant checked the cable tension and the main pedal controls of the rudder to simulate service conditions on the ground.

We also note that Exhibit M-4, drafted by the Applicant, indicates that pilots "usually" did not complain about the absence of this spring, and the Applicant did not use the term "never," which does not rule out the possibility that a minority may have complained. Mr. Leitch prepared this document before the Minister decided to charge him with the offences in this case, so that in assessing the evidence and the Applicant's credibility, we prefer to rely on what he wrote immediately following the incident when there was no dispute, rather than on his testimony before this Tribunal, in which he maintains he never received any complaint.

Also, the Applicant's admission at the hearing that with the spring and its attachment bracket missing, the aircraft did not meet the manufacturer's strict standards of airworthiness when he certified it, is not without significance.

We recall also from the evidence that the Applicant had, on previous occasions, recorded the replacement of the same type of spring in the journey log of the aircraft referred to, which shows that the Applicant considered this significant and that the replacement of the spring affected the aircraft's airworthiness. In fact, at the hearing, the Applicant indicated that he was in the habit of recording in the journal log only defects that affected an aircraft's airworthiness and its history, and not minor defects. This factual element related by the Applicant directly damaged his credibility when he explained that he did not record the removal of the spring and its attachment bracket in the journey log because these defects did not affect the aircraft's airworthiness.

We would add, moreover, that the Applicant's testimony at the hearing was often given following lengthy pauses, which also affected his credibility in several respects, including his testimony about the distinction between what should and what should not be entered in an aircraft journey log and the possible deferral of replacement of the parts in question.

We also agree with the Minister that the evidence shows that the Applicant did not comply with the standards of airworthiness of Chapter 571 of the Airworthiness Manual, specifically the requirements of subsection 571.10(4), when he signed the maintenance release, since Mr. Leitch and Mr. Harper did not inspect the flight controls as required by the Airworthiness Manual before certifying the aircraft for return to service. Specifically, the Applicant has presented no evidence that he and Mr. Harper inspected the flight controls for correct assembly, locking and sense of operation when they noticed the broken spring and attachment bracket. In fact, only the torque tube underwent a visual inspection to determine whether this part was damaged.

For these reasons, we therefore agree with the Respondent's allegations to the effect that it has been shown, on the balance of probabilities, that the Applicant contravened subsection 571.10(1) of the CARs on July 17, 1998 when he signed a maintenance release in respect of the aircraft Cessna 152 C-GZLZ when the rudder bar return spring and its attachment bracket were removed from this aircraft, since this maintenance release was issued when the standards of airworthiness applicable to maintenance, and more fully discussed earlier, had not been met.

We believe there is no need to consider the Minister's subsidiary argument that the Applicant should have indicated in his release that there were outstanding tasks. The argument relating to subparagraph 571.10(2)(a)(ii) of the Airworthiness Manual was submitted by the Minister to prove the first offence to us. In fact, we agree with the Minister that the replacement of the spring in question and its attachment bracket could not be deferred for the reasons given by the Minister and its expert Mr. Pontbriand. In fact, no deferral was permitted on a component, according to the MCM, Exhibit M-5. The MCM uses the term "component" when prohibiting deferrals, and the common meaning of the term "component" is translated as "pièce" in the Collins-Robert dictionary.[1]

The Applicant has presented no evidence or argument to show and justify that the replacement of these components could be deferred until the next inspection because of a distinction between "pièce" and "composant." On the contrary, Mr. Leitch's testimony shows that he did not know whether or not the replacement could be deferred by tolerance.

In short, as these tasks could not be deferred, the Applicant could not sign a maintenance release indicating outstanding tasks and should have grounded the aircraft until these components were replaced.

2. Contravention of subsection 605.94(1) of the CARs:

With regard to the second offence, the Respondent alleges that on or about July 17, 1998, the Applicant should have indicated in the journey log of aircraft C-GZLZ the fact that the spring in question and its attachment bracket had been removed from the aircraft, and thereby contravened subsection 605.94(1) of the CARs.

Columns I, II and III of Schedule I indicate at item 8 that the particulars of any defect in any part of the aircraft or its equipment must be entered as soon as practicable after the defect is discovered but, at the latest, before the next flight, by the person who discovered the defect.

In addition, columns I, II and III of Schedule I indicate at item 9 that the particulars of any maintenance action performed in respect of item 8 (our case) must be entered as soon as practicable after the maintenance action is performed but, at the latest, before the next flight, by the person who performed the maintenance action. Within the meaning of the Act (section 101.01 of the CARs), the removal of a component (or "composant" in the French version) is a maintenance action. As the term "component" or "composant" is not defined in the Act or in the CARs, we must refer to the common meaning and, as mentioned earlier, the dictionary makes no technical distinction between "pièce" and "composant," the term "component" being translated as "pièce."

It should be noted that no standard is specified in section 605.94, that is, no section 625.94 is specified in the standards pertaining to the general operating and flight rules for part 625 applicable to aircraft equipment and maintenance.

The Minister claims that it was the Applicant, as well as Mr. Harper, who discovered the missing bar return spring and the broken attachment bracket. In fact, Mr. Harper, being an apprentice, went to his supervisor, who is a licensed mechanic (AME), for advice about the conditions for returning the aircraft in question to service. The Applicant was also the AME responsible for the 50-hour inspection performed on this aircraft on July 17, 1998. Since the Applicant was the only one able to sign the maintenance release, since he was the AME responsible for this inspection, since he noted the defects (missing spring and broken attachment bracket) and since he made the final decision to defer replacement of the parts to return the aircraft to service, then according to the Respondent, he is the one subject to Schedule I, column I, items 8 and 9 of section 605.94 of the CARs. He was therefore required to enter in the journey log the fact that these two parts or components were missing.

In this case, the Applicant does not dispute the fact that he also noted the defects, i.e., that the return spring of the main pedal controls was missing and that its attachment bracket was broken and separated from the system.

Contrary to the Respondent's allegations, the Applicant submits that since it was not he who discovered the defects but rather the apprentice, he did not contravene subsection 605.94(1), specifically Schedule I, since column III designates, in items 8 and 9, the person responsible for making the entry in the journey log. According to the Applicant, the text clearly indicates at item 8 that it is the "person who discovered the defect" and at item 9 the "person who performed the maintenance action". In short, the Applicant invokes a very narrow meaning of these expressions in applying them to only one person.

In the circumstances, the Applicant maintains that it was Mr. Harper and not he who discovered the defects and performed the maintenance action, that is, who removed the parts. The Applicant maintains, moreover, that this section of the CARs should be narrowly interpreted because it is a penal provision.

We disagree with the Applicant's interpretation of subsection 605.94(1), as once the Applicant was consulted by his subordinate to make the final decision concerning the significance of the defects (the missing spring and the broken attachment bracket) and about returning the aircraft to service when the parts were removed, and once the Applicant himself noted these defects to confirm them, we believe the Applicant became the person who "discovered" these defects within the meaning of this section of the CARs. In fact, the Applicant continued and completed the maintenance tasks begun by Mr. Harper after having confirmed his apprentice's discovery of the defects. In this sense, the Applicant also discovered the defects and also confirmed, as supervisor, the maintenance action performed by the apprentice, namely, the removal of the parts from the structure. Moreover, it was the Applicant who initialled each of the tasks of the 50-hour inspection on the inspection sheet M-3. Also, it was under the supervision of the Applicant, who holds an AME licence and is responsible for maintenance according to the MPM of Laurentide Aviation, that the 50-hour inspection was undertaken and therefore that the maintenance action was performed.

Moreover, only the Applicant, and not Mr. Harper, could sign the maintenance release. Mr. Leitch must therefore have noticed that Mr. Harper had made no entry in the aircraft journey log, contrary to the requirements of section 605.94 of the CARs, when he signed the maintenance release.

In this context, the legislator's intent was surely not to limit the obligation to a single person who discovers a defect, but also to extend it to the supervisor who confirms the discovery of this defect by an apprentice. Any other interpretation would mean that persons responsible for maintenance, in this case the AME, would never be responsible in the case of apprentices who perform tasks under their supervision and are the first to notice a defect, despite the fact that the apprentice leaves it to his supervisor to confirm his finding and make the final decision as to how to handle this defect in terms of the aircraft's airworthiness.

A statute must, moreover, be interpreted in such a way as to be effective and we cannot subscribe to the Applicant's contention that this text should be interpreted narrowly because it constitutes a penal provision. Rather, this provision constitutes an administrative sanction. One of the current rules of statutory construction is in effect "the rule of the effectiveness of a statute." In this case, an effective interpretation should be given the term "discover" where an apprentice's discovery is also noted and confirmed by his supervisor, it being the legislator's intent to ensure that the defect is entered in the aircraft journey log.

The "open texture" of the language of a statute is another recognized rule of interpretation.[2] The author Côté has this to say about this rule:

To say that the language of a statute has an open texture means that the concepts suggested by most of its words do not have a clearly delineated content. This is true not only for those expressions which are obviously and intentionally vague (e.g., "notice must be sent within a reasonable period") it is generally true for most terms of a statute.

It is therefore also in an "open" context that we must apply subsection 605.94(1) of the CARs, and not limit the phrase "who has discovered" to mean a single person.

In our view, therefore, the Applicant also discovered the defects and performed the maintenance action when he confirmed the defects by noting them himself and confirmed the tasks of the 50-hour inspection and the removal of the parts before certifying the aircraft for return to service, thereby contravening Schedule I, items 8 and 9 referred to in subsection 605.94(1) of the CARs.

For these reasons, we find that the Minister has proven all the elements of the second offence and we confirm that the Applicant also contravened subsection 605.94(1) on July 17, 1998 when he did not enter in the aircraft journey log the defects, namely, the missing return spring of the rudder's main controls and the broken attachment bracket.

SANCTIONS

Contrary to what the Respondent's representative maintains, the parties had an opportunity to submit their evidence with respect to the sanctions on May 8, 2001. The Minister attempted to file the TSB report to justify the severity of the sanctions imposed on the Applicant for the two offences (suspension of his AME licence No. M049738 for 90 days for the contravention of subsection 571.10(1) of the CARs, and for 30 days for the contravention of subsection 605.94(1) of the CARs). The Minister alleged that this report would show a causal link between the crash of July 18, 1998 and the defects in question.

The Applicant objected, with good reason, to the filing of this report, which constitutes hearsay, and at the hearing the Tribunal did not allow the report to be filed. Indeed, this report contains opinions not given in the context of either an adversarial proceeding or a proceeding giving the Applicant the opportunity to make a rebuttal.

Furthermore, section 33 of the Canadian Transportation Accident Investigation and Safety Board Act (1989, c. 3) states that an opinion of a member or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings.

The Applicant submits that in applying sanctions, the Tribunal should take into account the Minister's lateness in proceeding against the Applicant, and a remedy imposing a monetary penalty is therefore prescribed. The Applicant also claims that he would suffer significant hardship, that is, a significant loss of income, if the Tribunal were to apply a full four-month suspension.

The Applicant further submits that the significant publicity surrounding this hearing owing to the crash that occurred July 18, 1998 has already caused him enough hardship and is a mitigating factor in the assessment of the sanction.

Another mitigating factor would be the fact that the Applicant himself took the initiative of voluntarily disclosing the defects noted July 17, 1998, during the 50-hour inspection that made it possible for Transport Canada to accuse him of the offences in question.

For its part, the Respondent maintains the suspensions requested, i.e., a 90-day suspension of the Applicant's licence for the first offence, and a 30-day suspension of the Applicant's licence for the second offence. The Minister bases this sanction on the fact that the defects were linked to the crash. As stated earlier, this element has not been proven in this case and the Tribunal cannot take the TSB report into account. In any event, had the Respondent wanted to prove a causal link between the crash and the defects to justify the severity of the sanctions, "a trial" would have been necessary into the cause of the crash within the administrative process with all the experts' evidence this entails, which is not the intended aim of the Act in the context of an administrative sanction.

The evidence shows that the Applicant voluntarily took the initiative of disclosing the defects, and this does in fact constitute a mitigating factor with respect to the sanction. The Applicant has not submitted any evidence, however, in support of direct injury caused him by the publicity surrounding these proceedings.

Furthermore, the Respondent had the choice of imposing a monetary penalty or a suspension for the offences, and the fact that it did not impose a monetary penalty when it could have is not a mitigating factor. This is its prerogative.

In view of the Applicant's willing co-operation with regard to evidence of the defects, we reduce the suspension periods by half and impose a suspension of the Applicant's AME licence No. M049738 for a period of 45 days for the first offence and a suspension of this licence for a period of 15 days for the second offence, for a total period of 60 days.

Caroline Desbiens
Member
Civil Aviation Tribunal


[1]The Collins-Robert French Dictionary, 2nd ed., Collins, London, Glasgow & Toronto.

[2]Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd edition, Thomson Canada Limited, p. 279.