Decisions

CAT File No. Q-2095-19
MoT File No. N5504-42169

CIVIL AVIATION TRIBUNAL

BETWEEN:

Laurentide Aviation (2737-5633 Québec Inc.), Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), ss. 6.9, 8.4(1)
Canadian Aviation Regulations, SOR/96-433, ss. 571.1(1), 605.94(1)

AMO, Aircraft maintenance engineer, Suspension of AMO, Incomplete journey log entries, Maintenance release, Failure to enter defects, Definition of penalty


Review Determination
Caroline Desbiens


Decision: March 12, 2002

TRANSLATION

I dismiss the notice of suspensions of the approved maintenance organization certificate No. 254-92 imposed July 14, 2000, on the grounds that the Respondent had no authority to suspend this certificate pursuant to subsection 8.4(1) of the Aeronautics Act.

A review hearing on the above matter was held January 8 and 9, 2001, for an interlocutory matter and on May 7 and 8, 2001, at 10:00 hours at the Federal Court of Canada in Montréal, Quebec, for a hearing on the merits.

BACKGROUND

This case was presented and heard along with the review case in a matter between Gordon Leitch and the Minister of Transport, Civil Aviation Tribunal file No. Q-2081-04 concerning the suspension of Mr. Leitch's aircraft maintenance engineer (AME) licence, and at the same time as the other review case in a matter between the parties hereto bearing No. Q-2097-05 concerning the suspension of the Applicant's operator certificate.

The parties made their submissions in writing, the last submission having been received November 13, 2001.

NOTICE OF SUSPENSION

This case concerns the suspension of the approved maintenance organization certificate (hereafter "AMO") No. 254-92 held by the Applicant.

The notice of suspension of the certificate in question imposed on the Applicant Laurentide Aviation (2737-5633 Québec inc.) (hereafter "Laurentide Aviation") is dated July 14, 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

Schedule 1 of the said notice provides the following details:

Subsection 571.10(1)

On or about July 17th, 1998, the Approved Maintenance Organization no. 254-92 permitted the signing of 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: 14 days suspension

Subsection 605.94(1)

On or about July 17th, 1998, the Approved Maintenance Organization no. 254-92 permitted that it was not recorded 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: 3 days suspension

Subsection 605.96(1)

On or about July 17th, 1998, the Approved Maintenance Organization no. 254-92 permitted that it was not recorded 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: 7 days suspension

Section 6.9 of the Aeronautics Act provides 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 Minister withdrew the suspension 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 August 11, 2000, the chairperson of this Tribunal, Faye Smith, stayed the periods of suspension of the AMO certificate 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 its AMO certificate for the periods indicated in the notice of suspension.

EVIDENCE OF THE MINISTER

The parties agreed to enter into this record the evidence in the matter between Gordon Leitch and the Minister of Transport in review file Q-2081-04 and the evidence submitted in file Q-2097-05. In addition, the following evidence was produced by the Respondent Minister:

Exhibit M-16 : Certificate of approval of the AMO No. 254-92

This completes the Respondent's evidence.

EVIDENCE OF THE APPLICANT

The Applicant called Mr. John Scholefield, the president of Laurentide Aviation, as a witness.

Mr. John Scholefield has been the president of Laurentide Aviation, a family company, since 1946. He is this company's sole administrator.

The Applicant holds an operator certificate No. 008008 for the purposes of operating a flight training unit and its base of operation is Montréal/Les Cèdres. The planes used for this purpose are the Piper PA34, PA31, the Cessna 152 and 172, as well as the Piper PA28 and PA32.

The operator certificate was filed as Exhibit M-15 (file No. Q-2097-05).

The Applicant also holds an AMO certificate No. 254-92 for the maintenance of aeronautical products and to this end it holds Aircraft and Structures ratings. Mr. Scholefield acknowledges that he looks after the day-to-day operation of the Applicant, while Mr. Gordon Leitch is responsible for maintenance.

Mr. Gordon Leitch was appointed to be responsible for the AMO and for the purposes of the operator certificate.

Mr. Scholefield indicated that he holds meetings virtually every day to find out exactly what is happening in the operation of the company. His responsibilities are to order the priorities and decide what maintenance work must be performed. Mr. Scholefield indicated, however, that he does not get involved at all in the operation of the AMO to determine how the maintenance is to be performed. It is Mr. Gordon Leitch who is qualified to do this, and to make the final decision respecting maintenance at the AMO and the operation of the company in accordance with its operator certificate.

Mr. Scholefield mentioned having the utmost confidence in Mr. Gordon Leitch and has received no complaints from Transport Canada about him. On July 18, 1998, when aircraft C-GZLZ crashed, Mr. Scholefield was away from the Applicant's base of operation. He indicated, however, that he had been there the previous week.

Mr. Scholefield indicated that he met with Mr. Leitch after the incident of July 18, 1998, and that Mr. Leitch had given him the document he had prepared summarizing the maintenance action performed on aircraft C-GZLZ on July 17, 1998. This is the document filed through Mr. Gordon Leitch as Exhibits M-2 and D-2. Mr. Scholefield indicated that Mr. Leitch had given him this document voluntarily without being asked by either Transport Canada or the Transportation Safety Board of Canada (TSB) to do so.

Mr. Scholefield voluntarily decided to turn over the document D-2 to the TSB. This document was given to Mr. Fernandez.

Mr. Scholefield indicated that since 1984, the Applicant had been able to fly an average of 10,000 to 12,000 hours a year for the purposes of its flight training school.

In those years, the Applicant had never had any fatal incident or any accident involving loss of life.

In cross-examination, Mr. Scholefield acknowledged what maintenance actions had been performed and what maintenance actions are to be performed every morning. He did not remember a maintenance problem being reported to him on July 17, 1998. Even after the incident of July 18, 1998, Mr. Scholefield maintained he never received any complaint directly from pilots or apprentice pilots related to the use of aircraft C-GZLZ.

Mr. Scholefield indicated that according to company policy, if a pilot has any doubts whatsoever about the safety of an aircraft, he must not fly that aircraft. He also encourages students to report any malfunction or defect observed on aircraft of the flight training school.

When asked by the Minister's representative whether he remembered receiving a complaint, after the incident, about aircraft C-GZLZ concerning the control of this aircraft, Mr. Scholefield replied he did not remember such a problem related to this particular aircraft. Mr. Scholefield did remember handling a complaint from a student pilot after July 18, 1998, but did not recall whether it concerned a problem with aircraft C-GZLZ or exactly what the problem was.

THE ISSUES

In this case, the offences of which the Applicant is accused are those provided in subsections 571.10(1) and 605.94(1) of the CARs. In short, they are the same offences of which Mr. Gordon Leitch is accused in the Civil Aviation Tribunal review file No. Q-2081-04.

This Tribunal has found that on July 17, 1998, Mr. Gordon Leitch contravened subsection 571.10(1) of the CARs and the standards of airworthiness specified in Chapter 571 of the Airworthiness Manual when he signed the maintenance release in respect of the aircraft Cessna 152 C-GZLZ when the return spring of the main pedal controls and the attachment bracket were removed from the said aircraft.

For the reasons for this determination, we refer you to the determination rendered on this day in the Gordon Leitch case.

This Tribunal also found that Mr. Gordon Leitch contravened 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. The reasons for this determination also appear in the determination rendered on this day in the Gordon Leitch case.

The Respondent Minister accuses the Applicant of the same offences as the owner of aircraft C-GZLZ, pursuant to subsection 8.4(1) of the Aeronautics Act.

Subsection 8.4(1) of the said Act provides as follows:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

The French text of the Aeronautics Act provides as follows:

8.4 (1) Lorsqu'une personne peut être poursuivie en raison d'une infraction à la présente partie ou à ses textes d'application relative à un aéronef, le propriétaire enregistré peut être poursuivi et encourir la peine prévue, à moins que, lors de l'infraction, l'aéronef n'ait été en possession d'un tiers sans le consentement du propriétaire.

It appears from the evidence that on July 17, 1998, the Applicant was the owner of the aircraft Cessna 152
C-GZLZ. This fact is admitted by the Applicant and is also shown by the certificate of registration of the aircraft produced by the Respondent and filed as Exhibit M-14.

Assuming that Mr. Gordon Leitch, AME and the person responsible for maintenance at Laurentide Aviation, contravened subsections 571.10(1) and 605.94(1) of the CARs on July 17, 1998, the question this Tribunal must consider is as follows:

Under the terms of subsection 8.4(1) of the Aeronautics Act, is the Respondent Minister justified and, specifically, authorized to suspend the Applicant's AMO certificate for periods of 14 days and 3 days, respectively, for the contraventions of subsections 571.10(1) and 605.94(1) of the CARs?

ARGUMENTS OF THE PARTIES AND DISCUSSION

The Respondent alleges that the two contraventions are identical to those in the Gordon Leitch case except that they pertain to the Applicant's AMO certificate No. 254-92. According to the Respondent, if this Tribunal finds that Mr. Gordon Leitch contravened subsections 571.10(1) and 605.94(1) of the CARs on July 17, 1998, the Tribunal must automatically find, pursuant to subsection 8.4(1) of the Aeronautics Act, that the Applicant also contravened these subsections and that the Minister is therefore justified in suspending its AMO certificate.

Counsel for the Applicant, however, maintains that subsection 8.4(1) states only that the owner may be proceeded against in certain conditions, but in no way states that a declaration of another person's culpability in itself results in the culpability of the owner of the aircraft. The fact that a third party to the offence can be proceeded against does not mean it is culpable merely by virtue of fault of third party. The legislator does not say that the owner is culpable; it says that the owner may be proceeded against, which does not discharge the plaintiff from the burden of proving culpability and does not deprive the owner of the grounds of defence provided in jurisprudence.

Thus, according to the Applicant, the investigation showed that the Applicant, in accordance with the provisions of its operator certificate and its AMO certificate, was required to and did appoint Mr. Leitch as the person responsible for the maintenance control system for the purposes of the operator certificate and the person responsible for maintenance for the purposes of the AMO certificate. According to the Applicant, it has been shown that Mr. Leitch has an impeccable and faultless record with Transport Canada. Moreover, his appointments were reviewed and approved. Otherwise, Transport Canada would not have issued any of the certificates.

Counsel for the Applicant also maintains that the evidence showed that Mr. Leitch had carte blanche and the full support of the company to ground any aircraft as he saw fit. In counsel's opinion, the evidence also showed that the company, through its president John Scholefield, regularly monitored Mr. Leitch's activities and co-operated fully. Consequently, the Applicant maintains that it exercised all due diligence as stipulated in section 8.5 of the Aeronautics Act, which echoes the principle of the defence of due diligence in all cases of strict liability offences as recognized by the Supreme Court in the decision Sault Ste. Marie.[1]

Counsel for the Applicant also maintains that the Minister has no authority to impose the suspension of the AMO certificate and the operator certificate on the ground that the Applicant is the owner of the aircraft. In his view, subsection 8.4(1) of the Aeronautics Act provides for the owner to be proceeded against and, where found to have committed the offence, this subsection stipulates that the owner of the aircraft is liable to the same penalty as provided for the person who gave rise to the proceeding, in this case, Mr. Leitch. As the penalty imposed on Mr. Leitch is the suspension of his AME licence, counsel for the Applicant submits that other certificates of the owner of the aircraft cannot be attacked. Moreover, in the view of counsel, the Act makes no provision for suspensions of the certificates or Canadian aviation documents of the owner of the aircraft where another person has committed an offence in relation to the aircraft, such that these suspensions are invalid.

In response to the Applicant's argument, the Minister submits that subsection 8.4(1) of the Aeronautics Act creates a system of vicarious liability among aircraft owners which this Tribunal has applied numerous times. To this effect, he submits the determinations of Canadian Helicopters Limited,[2] Art's Flying Service Ltd.[3] and Pat Strong.[4] We must point out, however, that all these determinations concern monetary penalties, not licence suspensions.

The Respondent also submits that in this case the evidence establishes that the company itself was at fault and that the evidence therefore shows lack of due diligence. According to the Respondent, a corporation can act only through its agents and in this case the Respondent claims that the corporation is responsible for its agent Gordon Leitch and it therefore cannot invoke the defence of due diligence. According to the Minister, for the purposes of the alleged offences, Mr. Leitch is himself a director of the Applicant since he is the person responsible for the maintenance control system for repairs to aircraft operating under the operator certificate, as well as the person responsible for maintenance for the AMO operating as AMO No. 254-92. Thus, according to the Minister, Mr. Leitch, as the person responsible for maintenance, is a director of the company for the purposes of the offences in question. In short, the Minister submits that the concept of director within the meaning of corporate law is not a determining factor with regard to the Applicant's liability within the meaning of the CARs. In this case, given the responsibilities assumed by Mr. Gordon Leitch, his conduct is sufficient to entail the company's liability.

Moreover, according to the Minister, jurisprudence has confirmed numerous times that the defence of due diligence does not apply when a company director is at fault. It refers in this regard to the determination of this Tribunal in the matter of 641296 Ontario Inc. (North East Air Services).[5] In this determination, the member found that since the offence had been precipitated by the administrator of North East Air Services, the defence of due diligence could not be invoked.

In this case, the Minister submits that Mr. Leitch, who is, by definition, one of the directing minds of each of these two operations, also precipitated the offences, and therefore the Applicant, as aircraft owner, can also be held liable because of the principle of vicarious liability set out in subsection 8.4(1) of the Act.

As for the second argument submitted by the Applicant to the effect that subsection 8.4(1) of the Aeronautics Act does not authorize the Minister to suspend the Applicant's AMO certificate and operator certificate, the Minister provided no argument in this regard.

ANALYSIS AND DISCUSSION

We agree with the Minister's submissions that subsection 8.4(1) of the Act establishes the vicarious liability of the owner of the aircraft, and once a person has committed an offence under Part I of the Act or its regulations in relation to an aircraft, the owner of the aircraft in question may also be proceeded against and be liable to the penalty provided unless the defence provided in subsection 8.4(1) can be proven. This liability is quasi-automatic subject to the defence provided specifically in this subsection 8.4(1). In fact, if a person is found to have committed an offence under Part I or its regulations and has not shown it exercised all due diligence to prevent the contravention pursuant to section 8.5, the owner of the aircraft may be liable to the penalty provided as punishment therefor, unless the defence provided in section 8.4 can be proven.

We therefore do not believe it is necessary to consider the defence available to the Applicant, since this Tribunal must first consider the applicability of subsection 8.4(1) of the Aeronautics Act in this case. In fact, we must ask ourselves whether all the conditions specified in this section 8.4 have been met before considering whether the defence allowed by the Act has been proven in the circumstances.

It is especially appropriate to examine closely the text of subsection 8.4(1) of the Act. This subsection provides that the registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part (sections 4 to 8.3 of the Aeronautics Act) in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor. As the Respondent's counsel stated, this establishes the vicarious liability of the owner of the aircraft. In short, the owner of an aircraft may be proceeded against in respect of and found to have committed an offence under sections 4 to 8.3 of the Aeronautics Act or its regulations in relation to the aircraft for which another person is subject to be proceeded against. However, in that event, section 8.4 provides that when the registered owner is proceeded against, it is liable to the penalty provided as punishment therefor. The French text is in a similar vein, stating that "le propriétaire enregistré peut . . . encourir la peine prévue."

Thus, subsection 8.4(1) does not say that the owner is liable to the same penalty, but rather that the registered owner of the aircraft in respect of which the offence was committed may be proceeded against and is liable to the penalty provided for this offence.

The Aeronautics Act provides no definition of the term "penalty," but a review of the provisions of the Part contemplated by section 8.4 of the Aeronautics Act (i.e., Part I), specifically the provisions of sections 6.6 to 8.3, leads us to conclude that in using the term "penalty" the legislator is referring to a monetary penalty.

In fact, in section 8.3 of the Act concerning the personal records of document holders kept by the Department, the legislator clearly distinguishes those measures having to do with Canadian aviation documents from "penalties" by referring to both "a suspension . . . of a Canadian aviation document" and "a penalty imposed in accordance with sections 7.6 to 8.2". Specifically, the legislator states as follows:

8.3 (1) Any notation of a suspension by the Minister of a Canadian aviation document under this Act or of a penalty imposed in accordance with sections 7.6 to 8.2 shall, on application by the person affected by the suspension or penalty, be removed from the record respecting that person kept by the Minister after the expiration of two years from the date the suspension expires or the penalty amount has been paid unless
(a) in the opinion of the Minister, the removal from the record would not be in the interest of aviation safety; or
(b) a suspension or penalty under this Act has been recorded by the Minister in respect of that person after that date. [underlining by the undersigned]

Had the legislator wanted certificate suspensions to be one and the same with "penalties," he would not have used both expressions in section 8.3.

The legislator's intention to refer to a monetary penalty when he uses the term "penalty" in subsection 8.4(1) of the Aeronautics Act is also evident in subsections 7.3(4) and (5) of the said Act which refer to the penalties imposed on individuals and corporations who contravene section 7.3. In this case, this subsection refers to fines.

In view of the foregoing, we agree with the Applicant's submissions to the effect that the Minister is not authorized pursuant to subsection 8.4(1) of the Aeronautics Act to impose on the owner of the aircraft a suspension of its AMO certificate. In short, the Minister's authority vis-à-vis the owner of the aircraft is limited to the monetary penalty provided for the offence for which the person is subject to be proceeded against under Part I of the Act (that is, sections 4 to 8.3 of the Act) or its regulations.

In the circumstances, the Minister's only authority was to assess a monetary penalty against the Applicant Laurentide Aviation for the offences committed by Gordon Leitch under subsections 571.10(1) and 605.94(1) of the CARs.

Therefore, as the two offences with which the Applicant Laurentide Aviation is charged consist of suspensions of its AMO certificate, and as the Minister had no authority to issue these suspensions pursuant to subsection 8.4(1) of the Act, the said suspensions are dismissed. In short, the text of subsection 8.4(1) of the Aeronautics Act does not permit the Minister to extend its powers beyond a monetary penalty and to suspend certificates or Canadian aviation documents the owner of the aircraft may hold.

Moreover, it would be excessive to punish an AMO by suspending its certificate because it is also the owner of the aircraft involved in the offence. In fact, it is not as owner of the aircraft C-GZLZ that the Applicant holds an AMO certificate. Other ratings and conditions were necessary to obtain this certificate, independent of the AMO being the owner (or operator) of aircraft that it is responsible for maintaining.

CONCLUSION

For all these reasons, I dismiss the notice of the suspensions of the AMO certificate No. 254-92 imposed by the Respondent on July 14, 2000, on the Applicant Laurentide Aviation under subsections 571.10(1) and 605.94(1) on the grounds that the Respondent was not authorized to impose suspensions of this certificate pursuant to subsection 8.4(1) of the Aeronautics Act.

Caroline Desbiens
Member
Civil Aviation Tribunal


[1]R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.

[2] Minister of Transport v. Canadian Helicopters Limited, [1992] CAT File No. W-0134-37.

[3] Minister of Transport v. Art's Flying Service Ltd., [1993] CAT File No. C-0305-33.

[4] Minister of Transport v. Pat Strong, [1993] CAT File No. C-0304-33.

[5] Minister of Transport v. 641296 Ontario Inc. (North East Air Services), [1997] CAT File No. O-1342-37.


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


Decision: April 1, 2003

We dismiss the 3-day suspension for the alleged contravention of subsection 605.94(1) of the Canadian Aviation Regulations. We uphold the 14-day suspension of the approved maintenance organization certificate No. 254-92 as imposed by the Minister on July 14, 2000 for contravention of subsection 571.10(1) of the Canadian Aviation Regulations. The 14-day suspension shall take effect 15 days following service of this determination.

An appeal hearing respecting the above-noted matter was held on Thursday, June 20, 2002 at 10:00 hours at the Courthouse, 1 Notre Dame East, Room 11.11, Montréal, Quebec.

This case concerning the suspension of the approved maintenance organization (AMO) certificate No. 254-92 held by Laurentide Aviation (2737-5633 Québec inc.) hereinafter referred to as "Laurentide Aviation" was heard together with the appeal bearing file number Q-2097-05 filed by the same Appellant respecting the suspension of Laurentide Aviation's operator certificate.

BACKGROUND

The Respondent holds an AMO certificate No. 254-92 for the maintenance of aeronautical products and to this end it holds Aircraft and Structures ratings. The Respondent also holds operator certificate No. 008008 for the purposes of operating a flight training unit and its base of operation is Montréal/Les Cèdres. The aircraft used for this operation are the Piper PA34, PA31, the Cessna 152 and 172, as well as the Piper PA28 and PA32.

Mr. John Scholefield has been the President of Laurentide Aviation, a family company, since 1946. He is this company's sole administrator. Mr. Scholefield in his evidence at the review hearing stated that since 1984 the company had been able to fly an average of 10,000 to 12,000 hours a year for the purposes of its flight training school.

Following an accident involving a Cessna 152 aircraft bearing Canadian registration letters C-GZLZ which occurred on July 17, 1998, inspectors from the Department of Transport carried out an investigation of Laurentide Aviation and of Mr. Gordon Leitch who, at the material times, was the aircraft maintenance engineer (AME) for Laurentide Aviation's aircraft.

The Minister of Transport pursuant to provisions of the Aeronautics Act issued three notices of suspension as follows:

Mr. Gordon Leitch received a Notice of Suspension dated July 6, 2000, pursuant to section 6.9 of the Aeronautics Act, suspending his AME licence for a total of 135 days for alleged contraventions of subsections 571.10(1), 605.94(1) and 605.96(1) of the Canadian Aviation Regulations (CARs).

Laurentide Aviation received a Notice of Suspension dated July 18, 2000, pursuant to section 6.9 of the Aeronautics Act, suspending its operator certificate No. 008008 for a total of 47 days for alleged breaches of paragraph 605.84(1)(a) and subsections 571.10(1), 605.94(1) and 605.96(1) of the CARs. This suspension was effected against Laurentide Aviation as the aircraft owner by invoking the vicarious liability provision in subsection 8.4(1) of the Aeronautics Act.

Laurentide Aviation received a Notice of Suspension dated July 14, 2000, pursuant to section 6.9 of the Aeronautics Act, suspending its AMO certificate No. 254-92 which it holds for the maintenance of aeronautical products, said suspension for a total of 24 days for the same offences as those for which Mr. Gordon Leitch was pursued as set out in the above paragraph.

Combined review hearings on the three above-mentioned Notices of Suspension were heard by Tribunal Member Caroline Desbiens, on January 8 and 9, 2001 and continued on May 7 and 8, 2001 followed by the filing of written submissions all of which produced the following results:

The Minister of Transport withdrew the allegations in respect of subsection 605.96(1) of the CARs for all three Notices of Suspension at the review hearing.

For reasons set out with her determination of March 12, 2002, the Tribunal Member at review found that on July 17, 1998, Mr. Gordon Leitch contravened subsection 571.10(1) of the CARs and the standards of airworthiness specified in Chapter 571 of the Airworthiness Manual when he signed the maintenance release in respect of the Cessna 152 aircraft C-GZLZ when the right rudder bar return spring and the spring attachment bracket were removed from the aircraft.

The Tribunal Member also found that Mr. Gordon Leitch contravened subsection 605.94(1) of the CARs by failing to enter in the journey log of the Cessna 152 aircraft C-GZLZ the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft. The Tribunal Member confirmed the suspension of Mr. Leitch's AME licence for a total of 60 days for the two offences. Mr. Leitch did not appeal this determination.

For reasons set out with her determination of March 12, 2002 the Tribunal Member dismissed the suspension of Laurentide Aviation's AMO certificate No. 254-92 imposed by the Minister on July 14, 2000 for alleged contraventions of subsections 571.10(1) and 605.94(1) on the basis that in her view the Minister was not authorized to impose suspensions of this certificate pursuant to subsection 8.4(1) of the Aeronautics Act.

GROUNDS FOR APPEAL

The Minister of Transport appeals the determination of Caroline Desbiens regarding the suspension of Laurentide Aviation's AMO certificate on the following grounds:

  1. The Member erred in fact and in law in deciding that the Minister had proceeded against Laurentide Aviation (Respondent) as the owner of the aircraft pursuant to subsection 8.4(1) of the Aeronautics Act when the Notice of Suspension did not refer to subsection 8.4(1) of the Aeronautics Act and in fact, the wording of the charge specifically holds the company responsible for permitting the contraventions to have occurred.
  2. The Member erred in law in interpreting subsection 571.10(1) of the CARs.
  3. The Member erred in law in interpreting subsection 605.94(1) of the CARs.

NOTICE OF SUSPENSION

The Notice of Suspension of the AMO certificate states:

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

To facilitate reference, we reproduce the relevant details of Schedule 1 of the notice except for the reference to subsection 605.96(1) which was withdrawn by the Minister at the review hearing:

Subsection 571.10(1)

On or about July 17th, 1998, the Approved Maintenance Organization no. 254-92 permitted the signing of 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: 14 days suspension

Subsection 605.94(1)

On or about July 17th, 1998, the Approved Maintenance Organization no. 254-92 permitted that it was not recorded 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: 3 days suspension

MINISTER'S ARGUMENTS

Subsection 8.4(1) of the Aeronautics Act

In respect of the first ground of appeal, the Minister's representative argued that the Tribunal Member at review erred in holding that the Minister proceeded against Laurentide Aviation as owner of aircraft C-GZLZ pursuant to subsection 8.4(1) of the Aeronautics Act. Moreover, the Minister states that there is no mention of subsection 8.4(1) in the Notice of Suspension dated July 14, 2000 and in fact Laurentide Aviation was not pursued as owner in any event. The Minister alleges that Laurentide Aviation contravened subsections 571.10(1) and 605.94(1) by permitting these contraventions to occur.

Subsection 571.10(1) of the CARs

Subsection 571.10(1) reads:

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.

The Minister states that in order to establish that Laurentide Aviation contravened subsection 571.10(1) the Minister must prove that Laurentide Aviation permitted a person under its supervision to sign a maintenance release which was contrary to the standards of airworthiness and that this maintenance release was not carried out in accordance with the Airworthiness Manual. The Minister further states that the Tribunal Member decided in the Leitch determination that Mr. Leitch had contravened subsection 571.10(1) of the CARs. The Minister must prove that Laurentide Aviation permitted Mr. Leitch to sign the maintenance release.

The Minister argues that a company can only act through its agents. The evidence shows that Mr. Leitch was the person responsible for Laurentide Aviation's maintenance. He was in charge of the maintenance control system for the repair of aircraft operating under the operator certificate as well as being responsible for the maintenance for the AMO operating as AMO No. 254-92.

Testimony of G. Leitch, p. 253, 255

Testimony of J. Scholefield, p. 705, 708

Exhibit M-5 — Maintenance Control Manual

Exhibit M-11 — Maintenance Policy Manual

The Minister submits that Laurentide Aviation, through the medium of its responsibility for maintenance (M. Leitch), permitted a person that it supervised to sign a release of aircraft C-GZLZ. In fact it was Mr. Leitch himself who signed the release.

Exhibit M-2 — Journey log for C-GZLZ

Laurentide Aviation, the Minister argues, can only exonerate itself if it has exercised due diligence to prevent the commission of the infraction, which did not happen in this case since it was Mr. Leitch, an executive of the company, who committed the infraction, and the company must be held responsible. To this end the Minister relies upon the case of R. v. Canadian Dredge & Dock Co.[1] where the Supreme Court cited a decision of the Ontario Court of Appeal, R. v. St. Lawrence Corp.[2]:

While in cases other than criminal libel, criminal contempt of Court, public nuisance and statutory offences of strict liability, criminal liability is not attached to a corporation for the criminal acts of its servants or agents upon the doctrine of respondeat superior, nevertheless, if the agent falls within a category which entitles the Court to hold that he is a vital organ of the body corporate and virtually its directing mind and will in the sphere of duty and responsibility assigned to him so that his action and intent are the very action and intent of the company itself, then his conduct is sufficient to render the company indictable by reason thereof. It should be added that both on principle and authority this proposition is subject to the proviso that in performing the acts in question the agent was acting within the scope of his authority either express or implied. [Emphasis added]

The Minister submits that in view of Mr. Leitch's responsibilities, his acts are sufficient to render the company liable in the circumstances and Laurentide Aviation did not take all reasonable steps to avoid the commission of the offence.

Subsection 605.94(1) of the CARs

Subsection 605.94(1) reads:

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 of Schedule I:

8.

Particulars of any defect in any part of the aircraft or its equipment

As soon as practicable after defect is discovered but, at the latest, before the next flight

 The person who discovered the defect

The Minister states that to prove contravention of subsection 605.94(1) the Minister must establish that Laurentide Aviation permitted the failure to record in the journey log of C-GZLZ, the fact that the right rudder bar return spring and the spring attachment bracket had been removed from the aircraft. The Minister relies upon its arguments in the foregoing paragraphs to hold Laurentide Aviation responsible for the acts of Mr. Leitch for breach of this regulation as well.

In summation, the Minister requests that the panel allow the appeal and restore the suspension as set out by the Minister in its Notice of Suspension.

ARGUMENTS OF LAURENTIDE AVIATION

In countering the Minister's arguments, counsel for Laurentide Aviation carefully outlined his concerns regarding the situation of having the same set of facts ground all three notices of suspension.

Counsel submitted that the investigation carried out by the Minister's officials demonstrated that the Respondent, in accordance with the provisions of its operator certificate and its AMO certificate, was required to and did appoint Mr. Leitch as the person responsible for the maintenance control system for the purposes of the AMO certificate. According to the Respondent, it has been demonstrated that Mr. Leitch has an impeccable and faultless record with Transport Canada. Moreover, his appointments were reviewed and approved by the department. Otherwise, Transport Canada would not have issued any of the certificates.

Laurentide Aviation's counsel reviewed the facts as disclosed at review indicating that Mr. Scholefield looked after the day to day operation of the company and that Mr. Leitch was responsible for the maintenance. It was Mr. Scholefield's evidence that he did not get involved in the operation of the AMO and that Mr. Leitch made all final decisions respecting maintenance at the AMO. It was Mr. Scholefield's evidence as well that he had the utmost confidence in Mr. Leitch. Counsel also stated that the evidence showed that Mr. Leitch had carte blanche and the full support of the company to ground any aircraft as he saw fit. In counsel's opinion, the evidence demonstrated that the company, through its president John Scholefield, regularly monitored Mr. Leitch's activities and co-operated fully. Accordingly, counsel concluded that Laurentide Aviation had exercised all due diligence in the circumstances of this case and that there was nothing more that it could have done.

DISCUSSION

We concur with the Minister's submissions respecting subsection 8.4(1) of the Aeronautics Act. Contrary to the assertion of the Tribunal Member in her reasons for determination at the review hearing, the Minister did not proceed against Laurentide Aviation pursuant to subsection 8.4(1) of the Aeronautics Act regarding its AMO.

Rather, the Minister suspended the AMO for an alleged breach of subsection 571.10(1) of the CARs for having permitted a person under its supervision (in this instance, Mr. Leitch, Laurentide Aviation's AME) to sign a maintenance release which did not conform to the standards of airworthiness set out in Chapter 571 of the Airworthiness Manual.

Hence, the Minister must prove that Laurentide Aviation in its supervision of Mr. Leitch permitted him to sign a maintenance release which did not conform to the standards of the Airworthiness Manual.

First, Laurentide Aviation as holder the AMO certificate appointed Mr. Leitch, an AME in its employ as the person responsible for the activities of the AMO, with the power to manage all of its maintenance activities. The link of supervision was thus established.

Secondly, the Tribunal decided in file no. Q-2081-04 regarding the suspension of Mr. Leitch's AME licence that Mr. Leitch had signed a maintenance release which did not conform to the standards prescribed by the Airworthiness Manual. To this end, Laurentide Aviation must answer for the acts of the person on whom it has conferred the responsibility for its AMO activities.

Laurentide Aviation is thus liable for the misdeeds of its employee. This culpability prevents it, in our view, from availing itself of the defence of due diligence. The Minister has demonstrated the constituent elements of the offence on a balance of probabilities. Accordingly, the 14-day suspension of the AMO certificate of Laurentide Aviation is upheld.

Unlike the previous section, the wording of subsection 605.94(1) of the CARs does not permit the establishment of a connecting link to fix responsibility upon the company for the acts of its AME. The person targeted by the wording of subsection 605.94(1) is the person charged with the responsibility for making the entry in the journey log indicating particulars of any defect in any part of the aircraft or equipment. This subsection in effect provides that information related to deficiencies of an aircraft part or aircraft equipment must be entered in the journey log by the person who discovered the defect, as soon as practicable after the defect is discovered but, at the latest, before the next flight of that aircraft.

The Minister has agreed that this is not specifically included in the wording of the regulation. The wording of subsection 605.94(1) does not permit the establishment of a connection or link of responsibility between the act of the person who discovered the defect and that of the company. Clearly, the subsection does not fix responsibility on the company for having permitted that an entry not be made in the journey log. The Minister cannot substitute its words for those of the legislator. Accordingly, the suspension of 3 days based on this subsection must be lifted.

CONCLUSION

For the reasons stated, we uphold the 14-day suspension of the AMO certificate No. 254-92 as imposed by the Minister on July 14, 2000 for contravention of subsection 571.10(1) of the CARs and we dismiss the 3-day suspension for the alleged contravention of subsection 605.94(1) of the CARs.

Reasons for Appeal Determination:

Faye Smith, Chairperson
Suzanne Racine, Member

Concurred:

Michel Boulianne, Member


[1] [1985] 1 S.C.R. 662.

[2] R. v. St. Lawrence Corp., [1969] 2 O.R. 305.