Decisions

CAT File No. Q-2410-33
MoT File No. N5504-40430

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Jacques Caron, Respondent

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


Review Determination
Carole Anne Soucy


Decision: March 12, 2002

TRANSLATION

The Tribunal upholds the Minister's decision that the Respondent contravened subsection 605.85(1) of the Canadian Aviation Regulations and reduces the amount of the monetary penalty to $500. The monetary penalty of $500 is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within 15 days of receipt of this determination.

A review hearing on the above matter was held Thursday, January 24, 2002, at 9:00 hours at the Cour municipale de Chicoutimi, in the city of Chicoutimi, Quebec.

OBJECT OF THE REVIEW HEARING

On April 27, 2000, Mr. Justin Bourgault, for the Minister of Transport, served the Respondent, Jacques Caron, a Notice of Assessment of Monetary Penalty pursuant to section 7.7 of the Aeronautics Act for having contravened subsection 605.85(1) of the Canadian Aviation Regulations (CARs).

The notice of assessment reads as follows:

Between May 19, 1999, and July 19, 1999, (see Appendix A) you allegedly conducted 32 flights as pilot-in-command of the aircraft registered as C-FVQG, after the aircraft had been configured on floats and the work had not been certified by the signing of a maintenance release pursuant to section 571.10.

You are being proceeded against as the operator, pursuant to subsection 8.4(2) of the Aeronautics Act.

[...]

The total assessed penalty of $3,200 must be paid on or before May 31, 2000 to the Regional Manager, [...]

Appendix A shows the dates and times the 32 flights were allegedly conducted.

The monetary penalty was to be paid by May 31, 2000. As this deadline was not met, a review hearing was held as stated earlier.

THE LAW

Section 7.7 of the Aeronautics Act provides as follows:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,
(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and
(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).
[...]

Subsection 605.85(1) of the CARs governing maintenance release and elementary work, stipulates 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.

Section 571.10 of the CARs concerning the maintenance release reads 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.
[...]

THE FACTS

On July 19, 1999, during the annual inspection of the Maule-4 aircraft registered as C-FVQG, Inspector Bouchard of the Department of Transport noticed that the aircraft was configured on floats and that the work had not been certified by a maintenance release.

The aircraft journey log shows that the pilot-in-command, Jacques Caron, conducted 32 flights after May 19, 1999, the date on which he installed the floats himself.

On April 27, 2000, following this inspection, Transport Canada sent the Respondent a Notice of Assessment of Monetary Penalty for contravention of subsection 605.85(1) of the CARs and enjoined him to pay the amount of $3,200, or $100 per flight.

THE EVIDENCE

The Minister's representative called his expert witness, Mr. Landry, after establishing his expertise.

The witness testified that when work or modifications are performed on an aircraft, these must be certified by a maintenance release stating that they were performed in accordance with the provisions of the CARs and the applicable standards. Certain work, termed elementary, is exempt from this rule and is set out in Appendix A of section 625.85 of the Aircraft Equipment and Maintenance Standards (Standards). The installation of floats on landing gear does not appear on this list.

He went on to say that only a licensed aircraft maintenance engineer can sign a maintenance release, and the signature must appear in the journey log.

Before beginning his cross-examination, counsel for the Respondent, Mr. Allard, admitted that the work of installing floats had not been certified by a maintenance release. To understand the distinction between the installation of floats on an aircraft (a modification that does not appear in Appendix A of section 625.85 of the Standards) and the installation of skis (described as elementary work and appearing in Appendix A), Mr. Landry explained that floats are connected to the aircraft fuselage and joined to the rudder, whereas skis are attached to the wheels and do not touch the rudder. He admitted, however, that the installation of floats does not affect, in this particular case, the hydraulic system of the aircraft.

In cross-examination, Mr. Allard asked his witness about his experience as a pilot. Mr. Caron has flown piston-engine aircraft for recreation only, for 30 years.

In his testimony, Mr. Caron stressed the fact that the set of floats were from another aircraft of the same make, i.e., the Maule-4. The fuselage attachment links were already installed, and according to him, it was simply a matter of fastening the floats with four bolts.

He always did this work with the help of friends, mainly one named Potvin, who had his own aircraft construction and maintenance workshop, and Mr. Lalancette, who is a licensed maintenance engineer.

Regarding the hydraulic system, the Respondent admitted that he had no knowledge in this area and never touches it. However, installing floats seemed so simple to him that he was certain no maintenance release was required.

In cross-examination, Mr. Caron added that he himself had requested the aircraft inspection of July 19, 1999, as he does every year for the annual certification. He testified that Mr. Lalancette usually inspects the work done at Mr. Potvin's workshop. However, he was not present when the floats were installed, but would have seen the aircraft which was on the ground near the workshop for about ten days.

While admitting that the replacement of wheels with floats can affect the weight and balance of the aircraft, the Respondent saw no problem with this as the aircraft registered as C-FVQG had already been modified on floats in 1976 and it never transports heavy weights.

ARGUMENTS

According to the Minister's representative, all the elements of the offence are covered in view of the admissions. There is a distinction to be made between elementary work and other work. Here, the signature of a licenced maintenance engineer is required. The help of other individuals is not a defence, nor is ignorance of the law. According to the Minister, given the Respondent's experience, he should have been more responsible and exercised diligence and should be found guilty.

Concerning the sanction, the guide "Enforcement Manual" recommends $100 for each violation, for a first offence. The CARs suggest a maximum of $500 for each violation. The Minister's representative is asking the Tribunal to uphold the monetary penalty of $3,200, or $100 for each of the 32 flights conducted.

The Respondent's representative admitted that he conducted 32 flights after the floats were installed without a release. He added, however, that Mr. Caron was not neglectful and completed his journey log after each flight. He performed the work at a maintenance base and no one informed him of the need for a release.

According to Mr. Allard, this is a matter of a reasonable error of fact. Mr. Caron showed no negligence.

Regarding the monetary penalty, lack of knowledge is a mitigating factor. He added that a guide is merely a guide and that we are not bound by it.

Finally, Mr. Allard concluded that all flights conducted before notice was served on the principal should be considered a continuing offence, and in this case would constitute a single offence. In support of his theory, he submitted to the Tribunal an appeal decision of the Civil Aviation Tribunal in 1992, High Country Fishing.[1]

DETERMINATION

In view of the admissions of the Respondent Caron, it is my opinion that all the elements of the offence are covered and that the Respondent contravened section 605.85 of the CARs.

However, the Tribunal feels compelled to point out the honesty and good faith of the Respondent.

Mr. Caron has been a pilot for 30 years. From the testimony given, at least four people noticed or participated in the installation of the floats and no one seemed aware of the implication or obligation in respect of this modification.

I would have liked to know what efforts are made by Department of Transport inspectors to raise awareness in the aviation community, particularly in the recreational sphere, of the standards and regulations that apply when work is performed on an aircraft. How does one explain the ignorance in which all these people connected with the aviation community seem to live? While ignorance is not in itself a defence and there is no excuse for ignorance of the law, it would perhaps be commendable to make additional efforts aimed at prevention.

The Tribunal has no reason to doubt the good faith of Mr. Caron, who entered his flights in the journey log and telephoned Inspector Bouchard to have him perform the annual inspection of the aircraft.

Good faith, honesty, the recreational nature of these flights and the fact that there was no disastrous outcome are mitigating factors that should be considered in assessing the penalty.

Also, in High Country Fishing, the CAT Appeal Tribunal confirmed the findings of the review member who considered a period of nearly nine months covering 145 separate flights to be a continuing offence because "[a]ll of these flights occurred during a period when the Appellant honestly but mistakenly believed that there was a valid Certificate of Airworthiness."

In my opinion, this situation applies very well here and the Tribunal therefore finds that the Respondent committed a single continuing offence between May 19 and July 19, 1999. A monetary penalty of $500 seems reasonable to me in the circumstances.

CONCLUSION

The Tribunal upholds the Minister's decision that the Respondent contravened subsection 605.85(1) of the CARs and reduces the monetary penalty to $500.

Carole Anne Soucy
Member
Civil Aviation Tribunal


[1] High Country Fishing Ltd. v. Minister of Transport, CAT File No. W-0143-37.