Decisions

CAT File No. W-0213-04
MoT File No. SA 5802-071315 (SAHE)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Jelle Dykstra, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 3, 6.9(1), 7.1(1)(b), 7.6, 8.5, 27
Airworthiness Manual, s. 501, 571.1, 571.101, 575.1, 575.3(a)(d), 575.5(a), 575.103, 575.107, 575.109
Canadian Charter of Rights and Freedoms, s.7, 11(h)
Practice and Procedure Before Administrative Tribunals, s. 12.27(a)(v)

Suspension of an Aircraft Maintenance Engineer Licence, Right to Counsel, Definition: Incompetence, Double Jeopardy, Principles of Fundamental Justice, Affidavit, Application for Postponement


Review Determination
Allister W. Ogilvie


Decision: June 26, 1997

I find that the Minister has established that Mr. Dykstra is not competent to hold an AME licence. I therefore confirm the Minister's decision to suspend his licence until the conditions for reinstatement are met.

A review Hearing on the above matter was held May 13, 1997 at 10:00 hours at Canada Place, Conference Centre in the city of Edmonton, Alberta.

BACKGROUND

A Stinson 108-3 aircraft registered C-FJVB suffered an accident at Gregoire Lake, Alberta on June 6, 1993. During the subsequent accident investigation, a number of mechanical deficiencies became apparent. Those deficiencies were of such a nature as to cause an inquiry into maintenance and certification of the aircraft.

The aircraft had been signed out for an annual inspection by Mr. Dykstra in May and had flown approximately 12 hours between the inspection and the accident.

That inquiry resulted in the Notice of Suspension dated December 1, 1993 in the following form:

Pursuant to Section 7.1(1)(b) of the Aeronautics Act The Minister of Transport has decided to suspend your Aircraft Maintenance Engineer Licence for the following reason:

Certifications and maintenance activities you performed or supervised relating to Canadian registered aircraft C-FJVB have demonstrated that you are incompetent to hold an Aircraft Maintenance Engineer Licence.

The suspension comes into effect on the date indicated and remains in effect until the conditions for reinstatement in the attached Appendix have been met and the document is reinstated by the Minister.

(...)

Appendix B

APPENDIX TO NOTICE OF SUSPENSION

The following airworthiness defects existed in an aircraft registered C-FJVB following certification of an Annual Inspection of the aircraft by M071315 Jelle Dykstra:

FLOATS

a.  Water rudder hinge pins not secured by cotter pins.

b.  Two jamb nuts on float tie rods loose and backed off.

c.  Right rear float strut installed backwards.

d.  No pump out hose installed in right rear float compartment.

e.  Water rudder tiller modified without approval or acceptable data and maintenance release.

WING

f.Nut missing from lower right lift strut, leaving wing attachment unsafe.

ENGINE

g.  Primer line to #5 cylinder tied to rocker cover drain line. Fitting nut moved down line and siliconed in [incorrect] place. This line not capped and operation of primer would result in raw fuel being sprayed on the cylinder in the area of the exhaust pipe.

h.  Steel nipple threaded into oil pressure screen cover sealed by brazing.

j.  Oil pressure screen contained large amount of sludge [scavenge screen was clean].

k.  Throttle cable modified to unapproved and unsafe state:

(1) fibre locknut substituted for the castellated nut and cotter key required to meet the approval C-90-097; and

(2) the throttle cable outer casing was secured with a clamp of an inappropriate size, stuffed with some hose to provide clamp up.

m.  Two rocker arm studs had been modified by the substitution of commercial redi-rod for the required approved studs.

n.  Magneto timing was left mag 29° and right mag 22°; the aircraft specification requires both 20°. Magneto points were damaged by arcing.

It is from that suspension that the Applicant now appeals to the Civil Aviation Tribunal.

PRELIMINARY MATTERS

On May 12, 1997, the day before the hearing, the Civil Aviation Tribunal received a letter from Allan Fraser, a lawyer, stating that Mr. Dykstra had called Mr. Fraser that morning regarding the impending hearing. Mr. Fraser stated that, due to the "press of business" and another commitment, he was unable to prepare for the hearing and requested an adjournment to a date two to three months away.

On review of this request, the Tribunal denied the postponement for the following reasons:

The dates of May 13 & 14 were confirmed with Mr. Dykstra on February 5, 1997. Subsequently, a Notice of Review Hearing was served on Mr. Dykstra on March 14, 1997, two months prior to the scheduled hearing. Once a date is confirmed (whether orally or in writing), the Tribunal expects arrangements to have been made for the party to be in a position to make its case on that day.

On May 13, 1997, the hearing commenced as scheduled. When I asked if there were any preliminary matters, Mr. Dykstra, the Applicant, requested a postponement on the grounds that his counsel was not available. He added that Transport Canada had received two postponements, and he felt entitled to the same.

Mr. Ribout, on behalf of the Minister, opposed the postponement. He noted that, since the Notice of Hearing of March 7, 1997, Mr. Dykstra had two months to retain counsel. The verbal request for postponement was the only one the Minister received, and thus the notice was inadequate. The Minister's witnesses were present and prepared to proceed. The Minister had already incurred expenses and time in preparation.

Mr. Dykstra's motion was denied.

In consideration of the Motion, I noted that the Notice of Suspension was dated December 1, 1993, three years and five months ago. The original request for Review Hearing was filed January 7, 1994, and acknowledged by the Tribunal on January 10 of that year.

The Tribunal's record indicates a telephone call with Mr. Dykstra on January 24, 1994 regarding scheduling. By letter of March 1, 1994, Mr. Fraser requested a delay for the Review Hearing.

By letter of June 24, 1994, Mr. Fraser indicated his client wished to proceed with a hearing. The hearing was then scheduled for August 31, 1994.

On August 9, 1994, Mr. Fraser wrote to the Civil Aviation Tribunal advising that his client desired another postponement, as his client advised that his witnesses would not be available for the end of August.

The Registrar of the Tribunal replied, expressing surprise at the request to postpone so late in the process. She stated that the date was selected in accordance with dates supplied by Mr. Fraser, and that there was no notice that the availability of witnesses was at issue. Therefore, the hearing was to proceed.

Mr. Fraser replied denying the statement that the date had been confirmed. He advised that his schedule was full and requested dates in December, 1994.

The hearing was postponed by Notice dated August 17, 1994, and rescheduled for December 5, 1994.

On December 1, 1994, Mr. Ribout on behalf of the Minister requested a postponement, on the grounds of the unavailability of a witness. The Applicant was asked for representations concerning the postponement. As no objection was received, the postponement was granted. This is the only request to postpone by Transport Canada.

In the early part of 1995, the Tribunal contacted the Minister and Mr. Fraser's office on numerous occasions with a view to rescheduling the matter. The Tribunal received a letter of April 27, 1995 from Mr. Fraser which advised that he had not yet received instructions from his client. The Tribunal replied advising that the Minister was ready to proceed, and asking that a date suitable to Mr. Fraser and Mr. Dykstra be arranged as soon as possible.

The Tribunal was subsequently informed that Mr. Dykstra requested a deferment for six months due to an illness in his family.

In September of 1995 the file was deferred indefinitely. The Tribunal did not hear from Mr. Dykstra in the year of 1996.

Mr. Dykstra had, himself, confirmed the date of the hearing on February 5, 1997 and thus had more than three months to advise his counsel (two months from official notice). However, the letter from Mr. Fraser indicates that Mr. Dykstra called him the day before the hearing.

Mr. Dykstra requested the postponement on the basis of his desire to be represented by counsel. However, it is Mr. Dykstra's own action that ensured that counsel was unavailable.

The Aeronautics Act provides Mr. Dykstra with a right to have his suspension reviewed. The Act also provides that matters coming before the Tribunal proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

The undue passage of time in this matter serves neither party as evidence gathers dust, witnesses move, and memories fade. Adjournments should not be viewed as a method to interminably delay a hearing. In view of the fact that more than three years have passed since the Notice of Suspension, I am of the view that I would be remiss in my obligation under the Act if I granted another postponement in this circumstance.

EVIDENCE

Evidence that I have accepted in this case is the following:

Physical and documentary evidence was entered through the Minister's first witness, Mr. Ian Macleod. He is currently employed in the aviation industry. At the pertinent time, he was a Civil Aviation Inspector, with Transport Canada, in the Compliance section. He had been tasked with the gathering of the evidence. Pursuant to a warrant, he seized the physical evidence from the Canadian Transportation Accident Investigation and Safety Board (CTAISB), at the conclusion of their investigation of the aircraft accident.

A series of fifteen photographs, also seized from the CTAISB, depicting various mechanical pieces of the aircraft C-FJVB was entered as Exhibit M-1. Mr. Macleod testified to having compared the photos to their negatives and verified that the photos were a true depiction.

Physical evidence included:

Exhibit M-2: primer line from the engine
Exhibit M-3: braised engine fitting
Exhibit M-4: redi-rod/rocker cover studs
Exhibit M-5: engine throttle cable
Exhibit M-6: residue from pressure screen

Some of the photos correlate the location and situation on the aircraft of those pieces of physical evidence, before they were removed from the aircraft. Other photos show those pieces and others after having been removed from the aircraft.

Three Secretary of the Department of Transport Certificates were entered. The first establishes that a Certificate of Registration of Aircraft dated July 20, 1990 was issued for private purposes to Paul Madsen for aircraft C-FJVB, and no subsequent Certificate of Registration had been issued. The second establishes (1) that Aircraft Engineer Licence No. XDM-071315 dated January 22, 1988, issued to Mr. Dykstra was valid until February 1, 1993; (2) during the period of February 1, 1993 until July 8, 1993, no Aircraft Maintenance Engineer Licence was issued by the Minister of Transport to Mr. Dykstra. The third establishes (1) that a Certificate of Airworthiness for aircraft CF-JVB was issued May 10, 1989; (2) that the Annual Airworthiness Information Report indicates May 6, 1993 as the date of the most recent annual 100-hour inspection on aircraft C-FJVB.

Photocopied excerpts of the aircraft journey log for C-FJVB were entered (Exhibit M-12). Mr. Macleod had compared the actual log to the copies, stating they were a true copy. An entry of May 6, 1993 states that an annual inspection was carried out according to Airworthiness Manual 571 Appendix A, and listed work accomplished. The entry is signed by Mr. Jelle Dykstra with his licence number.

Regarding the evidence adduced as Exhibit M-13, journey log for aircraft C-FCUV, the allegations against Mr. Dykstra were specific to the Certification of Maintenance activities performed or supervised relating to aircraft C-FJVB. Thus, the considerations regarding other aircraft are irrelevant, and I have not accepted them.

A certified true copy of an Approval Description of Design Change C-90-097 regarding the installation of a Vernier Throttle Cable, for Stinson 108, C-FJVB became Exhibit M-14. Among other items this description provides that the throttle cable installation shall be attached with two adel clamps attached to the engine mount. The cable attachment to the carburettor is to be attached to the carb by standard bolt washer compression fit with a castellated nut split pinned for safety.

The Minister tendered as evidence a letter which he characterized as an affidavit of a Mr. A. Allinson with an attached Transportation Safety Board of Canada Aviation Safety Investigation Division, Technical Investigation Report. The report addressed Accident Report Number A93W0077 for aircraft C-FJVB (Exhibit M-16).

These were offered as evidence through operation of section 32 of the CTAISB Act which states:

32. (1) The affidavit of an investigator who has conducted or participated in the investigation of a transportation occurrence, deposing to the investigator's personal observations, is, subject to section 33, admissible in evidence in any legal, disciplinary or other proceedings and, in the absence of evidence to the contrary, is proof of the truth of those observations.

(2) Where evidence is offered by affidavit under this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.

The section allows the affidavit of an investigator who conducted or participated in the investigation as admissible in evidence. The Civil Aviation Tribunal Rules also allow facts to be proven by affidavit.

However, I find that Exhibit M-16 falls short of the characterization of an affidavit. Generally, an affidavit can be described as a written declaration of fact, confirmed by oath or affirmation of the party making it. It is taken before a person having authority to administer such oath or affirmation. This person of authority then states when, where and before whom such affidavit was sworn.

The letter was signed by A. Allinson, Superintendent Technical Investigations, TSB Air, Western Region. This letter had the stamp of a Commissioner for Oaths in and for the Province of Alberta, with the Commissioner's signature.

The letter lacks any reference to oath or affirmation by the declarant. A Commissioner's stamp and signature appear, but no mention is made of an oath or affirmation being sworn before her. The CTAISB report A93W0077 cannot then be accepted as evidence by the operation of section 32 of the CTAISB Act.

The Report is labelled as a copy, is not certified, is unsigned, and is unsworn. Although the Civil Aviation Tribunal is not bound by the technical rules of evidence, the report, even if admissible under the rules, cannot be accorded any weight. Part of the Minister's case involved the comparison of some evidence to the observations stated in the report. As I found that the report could not be accepted as evidence, I am obliged to disregard those comparisons as well.

Evidence that I accepted regarding the knowledge and competence required of an Aircraft Maintenance Engineer Licence holder, was entered through Mr. S. MacNab who is Superintendent Aircraft Maintenance and Manufacturing, Prairie & Northern Region of Transport Canada. At the pertinent time he was supervisor of the Edmonton District Office. He is both a licensed pilot and an AME.

Exhibit M-20 is a Study and Reference Guide, Aircraft Maintenance Engineer Licence[1] that was current at the time of the incident. The Examination Syllabi provide a code for the depth of knowledge required in each topic: 1=general knowledge, 2=detailed knowledge. It was shown that, in the areas of REGULATIONS: Repair and modification of aeronautical products, Repair and modification approval, Maintenance standards, Scheduled maintenance and Maintenance certification; FIXED WING AIRFRAMES: Inspection requirements, Maintenance practices and Landing gear; PISTON ENGINES: Aircraft fuel systems, Ignition, Engine controls and Lubrication systems; SMALL PISTON AEROPLANES: Aircraft fuel systems, Floats, Carburetters [sic], Ignition systems, oil and cooling systems and Engine control systems, a detailed knowledge was required.

Mr. MacNab testified that anyone who did not meet the knowledge requirement would not be up to the standard and would not be competent.

He testified regarding some of the physical evidence, stating that the vernier throttle installation used the wrong size clamp, contrary to the approval and that the cable attachment utilized a fibre nut, not the required castellated nut. Mr. MacNab viewed the photos of Exhibit M-1. He stated that photo 8 showed a brass plug where the primer line should attach. The detached primer line could then spray raw fuel into the engine.

Mr. D. Alston, currently Airworthiness Inspector, Aviation Regulation, Western Region of Transport Canada, provided testimony. He has a background as an AME, and has taken numerous specialized courses regarding maintenance, regulations, procedures and planning. I accepted him as an expert, and thus he could give opinion testimony.

He viewed the physical and documentary evidence previously discussed, and he rendered certain opinions that I have accepted.

Mr. Alston testified that the throttle cable in physical evidence and its depiction in photo 12 showed that it was not in compliance with the approval as it lacked one adel clamp, and the other was incorrectly padded. A fiber nut was utilized instead of a castellated nut. He testified that these items would normally be part of the annual inspection, and that a competent AME would know they were not standard.

Photo 11 showed the oil screen. The residue from it was entered as Exhibit M-6. As there was a period of twelve hours since the last inspection, the amount of residue present lead him to believe that the screen had not been checked on that inspection.

Photos 1 & 2 of the water rudders revealed the lower pins to have been missing. He was of the opinion that this would have to have been caused by not using secured cotter pins, as was required.

The photographs 3 & 4 of clevis end of the brace wires (right and left) showed that the safety nuts were backed off. He stated they would not have worked loose if snugged up properly. His opinion was that they could not have been installed properly.

Photo 5 of the right rear float strut showed that it was installed backwards. Mr. Alston stated such a defect is very obviously wrong, and thus showed no depth of examination.

Photos 6 and 7 show the aircraft wing lift strut attachment bolt without a nut. He stated that the standard would require a self-locking nut for that installation. A self-locking nut was unlikely to have backed off on its own. It was unlikely that the nut had been there twelve hours before.

Photos 10 and 11 showed the drain plug on the oil screen cover and the filter. They showed that the drain plug had been modified by being brazed over so as to act as a plug. This installation would not meet required standards.

Photo 13 showed the ignition harness ends. The photo revealed them to be in a deteriorated state. In his opinion, that situation would not be expected twelve hours after an inspection.

Mr. Alston's opinion of the evidence as a whole was that the inspection was either poor or non-existent and that anyone certifying an aircraft in that condition would be incompetent.

DISCUSSION/LAW

Section 27 of the Aeronautics Act allows the use of what is known as Secretary's Certificate to prove certain facts. The section states:

27. (1) In any action or proceeding under this Act, any document purporting to be certified by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency to be a true copy of a document made, given or issued under this Act is, without proof of the signature or of the official character of the person appearing to have signed the document, evidence

(a) of the original document of which it purports to be a copy;

(b) that the original document was made, given or issued by or by the authority of or deposited with the person named therein and was made, given, issued or deposited at the time stated in the certified copy, if a time is stated therein; and

(c) that the original document was signed, certified, attested or executed by the persons and in the manner shown in the certified copy.

(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency stating that a document, authorization or exemption under this Act

(a) has or has not been issued to or in respect of any person named in the certificate or in respect of any aircraft, aerodrome or other aviation facility identified in the certificate, or

(b) having been issued to or in respect of any person named in the certificate or in respect of any aircraft, aerodrome or other aviation facility identified in the certificate, has expired, or has been cancelled or suspended as of a date stated in the certificate, and stating, in the case of a suspension, the period of the suspension,

is evidence of the facts stated therein, without proof of the signature or of the official character of the person appearing to have signed the certificate and without further proof thereof.

The Minister's Certificate (Exhibit M-10) proves that through the period of February 1, 1993 to July 8 of 1993, Mr. Dykstra did not have a valid AME licence. However, during this period his signature appears in the log of C-FJVB on May 6, 1993 purportedly to certify aircraft as airworthy.

Mr. Dykstra's signature of May 6, 1993 in the log of aircraft C-FJVB certifies that the annual inspection was carried out according to Airworthiness Manual 571, Appendix A, and ends by saying that "the above described maintenance has been performed according to the applicable standards of airworthiness."

Airworthiness Manual Chapter 501 provides the definitions of Inspection and Maintenance:

"Inspection" means an examination to verify conformity to an approved standard.

"Maintenance" means the preservation of an aeronautical product in a fit and safe condition for flight and, where applicable, in compliance with its approved design standard, and includes repair, overhaul, inspection, modification, and the replacement of parts, but does not include servicing (Emphasis added).

The term maintenance by definition encompasses inspection.

Airworthiness Manual Chapter 571 sets out rules governing maintenance as stated at:

571.1 Applicability

This chapter sets out rules governing the maintenance of:

(a) Canadian registered civil aircraft, other than ultra-light aircraft, operating inside or outside Canada

Exhibit M-9 Secretary's Certificate provides that aircraft C-FJVB was registered in Canada. Chapter 571 therefore sets out the rules governing C-FJVB's maintenance.

The annual inspection for small aircraft is addressed at section 571.101:

571.101 Inspection Programs

(a) Annual inspection for small aircraft

(1) Except as provided in (2), each small aircraft and each balloon, shall be inspected to a check list which includes the items listed in Appendix "A", at intervals not exceeding 12 months.

(2) [addresses progressive inspection and is not applicable].

A comparison of the physical evidence and photographs of Exhibit M-1 to Appendix A shows that each of those pieces of physical evidence or parts depicted in the photos falls within a category that required inspection.

It is provided in the General section of Appendix A that:

(2) The program details the scope of the inspection required; i.e. it lists in general terms the items to be inspected. The method of inspection shall be determined by standard practices as published in manufacturers publications and advisory material. The depth of inspection required must be decided by the aircraft maintenance engineer (AME) certifying the inspection and shall relate to the condition, use, and his personal knowledge of the history of the aircraft.

In this case, Mr. Dykstra purportedly was the AME certifying the annual inspection, and thus the depth of inspection required was to be decided by him. However, the depth of knowledge required of him regarding those items which require inspection is prescribed in the Study and Reference Guide (Exhibit M-20). Mr. MacNab's view of the evidence was that anyone certifying those parts that he viewed did not meet the standard of knowledge was therefore not competent.

As previously stated "inspection" has the meaning of examination to verify conformity to an approved standard. For each piece of physical evidence, or photograph of parts, Mr. Alston testified that they did not meet the standard. Anyone who had certified the aircraft as airworthy, when the component parts were in the state as described, would be incompetent.

A consideration regarding the airworthiness of aircraft, as well as the quality of the maintenance and inspection performed, is the certification of the inspection. Maintenance certification is addressed in Chapter 575 of the Airworthiness Manual as follows:

575.1 Applicability

(a) This chapter prescribes the certification and technical record keeping requirements for the maintenance of aeronautical products. The Certificate of Airworthiness or Flight Permit of an aircraft, as the case may be, shall not be in force unless the aircraft has been certified and its technical records kept in accordance with the standards prescribed herein.

The Aeronautics Act at Interpretation, section 3 provides:

"aeronautical product" means any aircraft, aircraft engine, ... (Emphasis added)

Therefore, the chapter prescribes the certification and technical record keeping required for the aircraft C-FJVB.

The "certification" prescribed at paragraph 575.1(a) is mentioned at paragraph 575.3(d) as:

"Maintenance release" means a certification made following maintenance of an aeronautical product, indicating that the maintenance was performed in accordance with the applicable standards of airworthiness. (Emphasis added)

Paragraph 575.5(a) provides:

(a) Except as provided in 575.109, a maintenance release shall be completed and signed in respect of all maintenance performed on an aeronautical product.

The Maintenance Release is addressed at section 575.103 where it is provided that:

575.103 Maintenance Release

(a) Except as provided in 575.109, where an aircraft has undergone maintenance, the certificate of airworthiness or flight permit of that aircraft is not in force until a maintenance release has been signed in respect of the work performed.

(...)

(c) No person shall sign a maintenance release unless the maintenance in respect of which the release is prepared has been performed in accordance with the applicable standards of airworthiness.

(...)

(g) Each person signing a maintenance release shall enter the date and the number of the licence or other authorization under which the release is made.

Note: The exception at section 575.109 is inapplicable in this instance.

The person who may sign such release is addressed at:

575.107 Persons who may sign a Maintenance Release

(a) No person may sign a maintenance release, except:

(1) The holder of an appropriately endorsed AME licence

Paragraph 575.3(a) states:

"Appropriately endorsed AME licence" means a valid Canadian Aircraft Maintenance Engineer licence, in a category appropriate to the scope of work performed and endorsed for the type of aircraft or product being maintained. (Emphasis added)

The evidence established that Mr. Dykstra did not have a valid AME licence on May 6, 1993 when he certified the aircraft journey log book of C-FJVB.

Such certification is then deficient on two grounds. Mr. Dykstra was not, on May 6, 1993, a person who could sign a maintenance release. Secondly, the evidence establishes that the maintenance performed was not in accord with the applicable standards of airworthiness. Both deficiencies go directly to the lack of competence regarding certification and maintenance.

CONCLUSION

The Notice of Suspension pursuant to 7.1(1)(b) of the Aeronautics Act states that the suspension relates to Certifications and maintenance activities that Mr. Dykstra performed or supervised relating to aircraft C-FJVB.

Appendix B to the Notice of Suspension lists numerous airworthiness defects in aircraft C-FJVB, following certification.

The evidence accepted proves that most of the defects existed as alleged. The maintenance done, if any, was not in accordance with the standards of airworthiness. The certification itself was also deficient in that Mr. Dykstra was not the holder of a valid licence when he signed the log book.

DETERMINATION

In the result, the Minister has established that Mr. Dykstra is not competent to hold an AME licence. I therefore confirm the Minister's decision to suspend his licence until the Conditions for Reinstatement are met.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Transport Canada Aviation Regulation Directorate, Study and Reference Guide, Aircraft Maintenance Engineer Licence, Document No. TP 3043E (February 1991).


Appeal decision
David S. Ahmed, Gordon R. Mitchell, Suzanne Jobin


Decision: November 13, 1997

The Appeal is dismissed. The Appeal Panel concludes that a suspension pursuant to paragraph 7.1(1)(b) of the Aeronautics Act does not amount to a violation of the principles of fundamental justice. Further, the Minister of Transport did act fairly when he decided to impose a suspension under paragraph 7.1(1)(b) of the Act, and this decision was not unreasonable, unfair or oppressive as to constitute a breach of the principles of natural justice. The suspension is confirmed until the conditions for reinstatement are met.

An Appeal Hearing on the above matter was held October 9, 1997, at 10:00 hours at the Federal Court of Canada in Edmonton, Alberta. Mr. Dykstra appeals the Determination of Allister Ogilvie made June 26, 1997 in which the Vice-Chairperson of the Civil Aviation Tribunal confirmed the Minister's decision to suspend Mr. Dykstra's aircraft maintenance engineer (AME) licence until conditions of reinstatement are met.

PRELIMINARY CONSIDERATIONS

At the Appeal Hearing, Mr. Dykstra made a motion to present evidence on the grounds that he was denied the right to present his case at the Review Hearing. He argues that his right to counsel was denied when the Vice-Chairperson, Mr. Ogilvie, refused to grant his motion for a postponement. This motion was based on the unavailability of his counsel to be present at the date of the Hearing.

The fact that an application for a postponement was denied by the Tribunal does not necessarily imply that the Appellant was denied the right to present his case. It is well recognized that a party to a proceeding does not have an automatic right to an adjournment.

The power of the Tribunal to adjourn on the request of a party is a discretionary power which shall be exercised in accordance with principles of natural justice and fairness.

The fact that Mr. Dykstra's counsel was not available at the date of the Hearing was not a reason to grant the adjournment requested. The right to counsel is not absolute. The authors and the jurisprudence have discussed this question fully. Indeed, the Tribunals have established that the granting of this right depends on the circumstances whether that right be granted under section 7 of the Canadian Charter of Rights and Freedoms or by principles of natural justice. In Practice and Procedure Before Administrative Tribunals [1], at subparagraph 12.27(a)(v), this question is discussed in these terms:

...An individual cannot insist that proceedings be suspended until a particular counsel is prepared and able to represent him. Also, an individual must be diligent in attempting to secure counsel. There are cases where, after many adjournments had been given to permit counsel to be retained, it was found proper for a hearing to continue where the party did not appear to be seriously attempting to find a representative.403 Nor can counsel expect an agency to shape its proceedings to his calendar. In Gill Lumber Chipman (1973) Ltd. v. United Brotherhood of Carpenters & Joiners of America, Local Union 2142404 the New Brunswick Court of Appeal stated that:

The Board must, of course, act fairly and give a reasonable opportunity to the parties to be present and to be represented by counsel if they so desire. On the other hand, counsel is not entitled to insist upon an adjournment merely to suit his own convenience and the Board must, in deciding whether to grant an adjournment or refuse it, take into consideration the reason for the request on the one hand and the right of other parties to have the matter dealt with expeditiously on the other.

403 See, for example, Edumadze v. Canada (Minister of Employment & Immigration) (1993), 59 F.T.R. 269).

404 (1973), 42 D.L.R. (3d) 271 (N.B.C.A.).

In the case at hand to have allowed the postponement would have resulted in rewarding lack of due diligence on the part of the Appellant. We believe that Mr. Ogilvie's determination was well founded.

Mr. Dykstra's decision to deliberately leave the Review Hearing after the member refused to grant his motion is certainly not a reason to have allowed the Appellant to present evidence at the Appeal Hearing level. Subsection 7.2(3) of the Aeronautics Act, states the following:

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

At the Appeal Hearing, the Appellant confirmed that all the evidence he wished to introduce at the Appeal level was available at the Review Hearing held May 13, 1997. As Mr. Dykstra chose to leave the room on his own will without valid reasons, he cannot argue that the refusal to be allowed new evidence at the Appeal level amounts to a breach of the rule Audi alteram partem. The motion is denied.

BACKGROUND

On December 1, 1993, the Minister of Transport issued a Notice of Suspension to Mr. Jelle Dykstra. This Notice reads partly as follows:

Pursuant to Section 7.1(1)(b) of the Aeronautics Act The Minister of Transport has decided to suspend your Aircraft Maintenance Engineer Licence for the following reason:

Certifications and maintenance activities you performed or supervised relating to Canadian registered aircraft C-FJVB have demonstrated that you are incompetent to hold an Aircraft Maintenance Engineer Licence.

The suspension came into effect December 8, 1993 and was meant to remain in effect until the conditions for reinstatement had been met and the document reinstated by the Minister. At the date of the Appeal Hearing the suspension was still in effect.

THE LAW

Paragraph 7.1(1)(b) of the Aeronautics Act states the following:

7.1 (1) Where the Minister decides

(...)

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

Section 7.6 of the Act reads as follows:

7.6 (1) The Governor in Council may, by regulation,

(a) designate any regulation or order made under this Part, in this section and in sections 7.7 to 8.2 referred to as a 'designated provision', as a regulation or order the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2; and

(b) prescribe, in respect of a designated provision, the maximum amount payable in respect of a contravention of that provision, which amount shall not exceed

(i) five thousand dollars, in the case of an individual, and

(ii) twenty-five thousand dollars, in the case of a corporation.

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

Subsection 6.9(1) of the Act reads 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 such suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

Section 8.5 of the Act provides the following:

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

The term "Canadian aviation document" is defined in section 3.1 of the Aeronautics Act as:

"Canadian aviation document" means any licence, permit, accreditation, certificate or other document issued by the Minister under Part I to or with respect to any person or in respect of any aeronautical product, aerodrome, facility or service

GROUNDS FOR THE APPEAL

The Appellant is appealing the Determination of Mr. Ogilvie on the following grounds:

  1. That the evidence presented was untrue and alleged.
  2. That a fine of $250.00 was paid for the same allegation, and a statement was made that if payment was made no further action would be taken.
  3. Maintenance was performed in a competent way.

In conclusion, the Appellant asks that the Review Determination be overturned and the matter referred back to the Minister for reconsideration.

Transport Canada for its part maintains that the Minister has met the burden of proof and has proved its case. Accordingly the Minister submits that there are no grounds which would justify referral of the matter back to the Minister for reconsideration and that consequently, the Appeal of the determination should be dismissed.

THE FACTS

On June 6, 1993, a Stinson 108-3 aircraft registered C-FJVB suffered an accident at Gregoire Lake, Alberta. The pilot died, and the passenger was seriously injured. During the subsequent accident investigation, a great number of mechanical deficiencies became apparent. These deficiencies were of such a nature as to cause an inquiry into maintenance and certification of the aircraft. The 12 airworthiness defects were listed in Appendix B of the Notice of Suspension sent to the Appellant and dated December l, 1993.

On May 6, 1993, the Appellant had certified the aircraft as airworthy following an annual inspection which was said to have been carried out according to the applicable standards of airworthiness. The aircraft had flown approximately 12 hours between inspection and the accident.

On May 6, 1993, at the moment of the certification, Mr. Dykstra did not have a valid AME licence. His licence had expired February 1, 1993 and no other licence was issued until July 9, 1993. This licence was suspended December 8, 1993 for alleged incompetence, according to paragraph 7.1(1)(b) of the Aeronautics Act.

Before the suspension, a compliance action was executed against Mr. Dykstra on account of the serious defects observed on the aircraft during the evaluation of the accident. On November 1, 1993, Mr. Dykstra paid $250.00 as a monetary penalty under section 7.6 of the Aeronautics Act, and a 14-day suspension under section 6.9 of the Act was imposed.

DISCUSSION

The Appeal Panel must now examine the following issues:

  1. Did the member err in ruling that the Minister has satisfied the burden upon it and has proved the allegations?
  2. Did the member err in finding the Appellant incompetent to hold an AME licence under paragraph 7.1(1)(b)?
  3. Did the member err in finding the Appellant incompetent under paragraph 7.1(1)(b) of the Act while he already had been alleged to have committed the offences under sections 6.9 and 7.6 of the Act and had already had his licence suspended and paid a monetary penalty?

On the first issue, and after reviewing the evidence presented, the Appeal Panel believes that the evidence on the record supports Mr. Ogilvie's finding of fact. The Tribunal concludes that the Minister of Transport has proven to its satisfaction that the certification and maintenance activities performed or supervised by the Appellant May 6, 1993 were deficient. While Transport Canada had the burden of proving the allegations, it should be noted that the appellant did not present or prove a defence on a balance of probabilities.

The second issue to be determined is whether the conduct of the Appellant on May 6, 1993 when he certified the aircraft amounted to incompetence. In his Review Determination, the member stated the following:

Such certification is then deficient on two grounds. Mr. Dykstra was not, on May 6, 1993, a person who could sign a maintenance release. Secondly, the evidence establishes that the maintenance performed was not in accord with the applicable standards of airworthiness. Both deficiencies go directly to the lack of competence regarding certification and maintenance. (page 12)

The Civil Aviation Tribunal has previously ruled on the matter and has concluded that the meaning to be given the term incompetence does not only concern legal qualifications. The failure of Mr. Dykstra to renew his licence is not a ground of itself to declaring him incompetent. In Daniel L. Lafayette v. Minister of Transport[2], Tribunal Member Rushford reviewed the dictionary definitions and the determinations in which the meaning of the word incompetence has been considered. More recently, in Elias Ruben Marin v. Minister of Transport[3], Tribunal Member Mortimer addresses the same question. While the Tribunal is not bound by its own cases we agree with the rationale of those two determinations.

In both cases the Members referred to the review of the meaning of incompetence in Re Mason and Registered Nurses' Association of British Columbia[4]. In this case, the following principles were discerned by Anderson, J. of the British Columbia Supreme Court:

  1. The particular definition placed upon the word 'incompetency' should be molded by the object of the enactment in which the word appears...
  2. All the definitions of 'incompetency' focus on the lack of ability, capacity or fitness for a particular purpose.
  3. The want of capacity, ability or fitness may arise from a lack of physical or mental attributes. However, a person not lacking in physical or mental attributes may nonetheless be incompetent by reason of a deficiency of disposition to use his or her abilities and experience properly.
  4. Negligence and incompetence are not interchangeable terms. A competent nurse may sometimes be negligent without being incompetent. However, habitual negligence may amount to incompetence.
  5. A single act of negligence unaccompanied by circumstances tending to show incompetency will not of itself amount to incompetence.

In the present case, a great number of mechanical deficiencies were found during the accident investigation on the aircraft. Those deficiencies were of such a nature as to cause an inquiry into maintenance and certification of the aircraft. The deficiencies identified by their number and their nature amount to incompetence and cannot be viewed as a single act of negligence.

In Clare v. Canada[5], the Federal Court of Appeal explained the following:

A variety of reasons or excuses could be advanced to explain unsatisfactory work performance by employees. For example, they may lack the required skills. Alternatively, they may have simply lost interest in their job or been distracted by other pressing concerns. In both scenarios, they will have demonstrated incompetence in performing their duties. The underlying reason, ...remain irrelevant and therefore it is unnecessary, for example to determine whether an employee has the requisite skills.... (p. 310)

While this case might be different from the case at hand, we believe that the same principles apply.

The evidence has demonstrated clearly that, regardless of the reason, certification that the inspection and maintenance has been done with the applicable standards of airworthiness was not the work of a competent licensed engineer. We believe that when he certified the aircraft registered C-FJVB, Mr. Dykstra failed to meet his responsibilities and to exercise the required degree of thoroughness and conscientiousness required and was incompetent.

The arguments raised on the third issue are numerous. On one hand the Appellant argued that, should the Appeal Panel confirm the member's determination, he would be penalized twice for the same offence contrary to the rules of natural justice.

On the other hand, Transport Canada argues that the distinction in objects under paragraph 7.1(1)(b) of the Aeronautics Act and under sections 6.9 and 7.6 of the Act is sufficient to remove the matter from the ambit of the double jeopardy doctrine. A suspension under paragraph 7.1(1)(b) of the Act is imposed in respect of safety deficiencies with an objective of prevention of risks to safety through correction of improper and unsafe practices and procedure. A suspension under section 6.9 of the Act or penalties under section 7.6 of the Aeronautics Act are punitive in nature, imposed to deter future non-compliance.

For the Minister the key question that must be asked is whether the assessment of a suspension or a monetary penalty under sections 6.9 and 7.6 and a suspension pursuant to paragraph 7.1(1)(b) of the Act are in fact the same transaction. If one concludes that they are, the Minister believes that consideration must be given to the common law rule precluding multiple convictions of the same delict, the "Kienapple rule"[6] and common law principles of res judicata and issue estoppel.

With all respect due to earlier determinations by this Tribunal, the Appeal Panel does not believe that in this case the "Kienapple rule" applies. We have to remember that this affair is not a criminal case but involves administrative penalties imposed under the Aeronautics Act. As we will see, this case does not either fall under paragraph 11(h) or under section 7 of the Canadian Charter of Rights and Freedoms.

Paragraph 11(h) of the Charter provides everyone with a right against double jeopardy in the following terms:

11. Any person charged with an offence has the right

(...)

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again

Since R. v. Wigglesworth[7] it has been settled law that the words "charged with an offence" within the meaning of section 11 must be interpreted narrowly so as to apply only to proceedings which lead to true penal consequences. Administrative proceedings for review of a licence suspension are not criminal proceedings.

In R. v. Shubley[8] the Court reaffirmed that an offence falls under paragraph 11(h) of the Charter if the proceedings are, by their very nature, criminal proceedings, or if the punishment invoked involves the imposition of true penal consequences.

In those two cases true penal consequences were viewed as imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity. Mr. Dykstra was not a person "charged with an offence" within the meaning of section 11 of the Charter.

Section 7 of the Charter provides the following:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In Pearlman v. Manitoba Law Society Judicial Committee[9] the Court adopts as its own the comments of Justice Laforest in R. v. Beare[10] who noted that:

The analysis of s.7 of the Charter involves two steps. To trigger its operation there must first be a finding that there has been a deprivation of the right to 'life, liberty and security of the person' and, secondly, that that deprivation is contrary to the principles of fundamental justice.

We agree with Transport Canada that the suspension of an AME licence would not likely be considered a deprivation of liberty. Even if the suspension of an AME licence did deprive a person of his liberty, there would be no infringement of section 7 if the deprivation was done in accordance with the principles of fundamental justice.

The principles of fundamental justice encompass the principle of procedural fairness which is an essential requirement of an administrative decision. We believe that procedural fairness was satisfied by the review procedure before the Civil Aviation Tribunal. In R. v. Wholesale Travel Group Inc.[11], Lamer C.J. held that the principles of fundamental justice were not infringed as long as a defence of due diligence was open. Section 8.5 of the Aeronautics Act offers the opportunity of such a defence.

The principles of fundamental justice may also include res judicata and abuse of process. It could be argued that these principles apply in this matter as part of the common law. The special pleas of autrefois acquit and autrefois convict require an accused to establish that he was previously acquitted, convicted or discharged of the same or substantially the same offence. We doubt that the pleas apply to administrative cases. The facts giving rise to the two actions in the case of Mr. Dykstra may be the same, but it is only for the purposes of section 7.6 or 6.9 of the Act that they are treated as an offence. Under paragraph 7.1(1)(b) of the Act, the contravention is not treated as an offence but as evidence of a safety problem.

It should be recalled that in licensing cases of all kinds it is usually inherent in the system of control that applications for permits may be made at any time, and permits or licences may be renewed if the applicant meets the required conditions. In this case, Mr. Dykstra's AME licence was suspended for fourteen days under section 6.9 of the Act for contraventions and then under paragraph 7.1(1)(b) of the Act for safety reasons until the conditions for reinstatement were met. In the Aeronautics Act, Parliament obviously intended that the Minister would have to suspend documents for different purposes.

Was there an abuse of process in this case?

In R. v. Young[12], the Court of Appeal of Ontario stated the following:

... there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which under lie the community's sense of fair play and decency and to prevent the abuse of the court's process through oppressive or vexatious proceedings. It is a power, however, of special application which can be exercised only in the clearest of cases. (p. 329)

The Supreme Court has adopted the same position in R. v. Jewitt[13] and has applied it ever since. In administrative law, fair play could be said to amount to the respect of the rules of natural justice, "... natural justice which, ... is only 'fair play in action.'" see IWA v. Consolidated-Bathurst Packaging Ltd.[14].

DETERMINATION

The Appeal Panel concludes that a suspension pursuant to paragraph 7.1(1)(b) of the Aeronautics Act does not amount to a violation of the principles of fundamental justice. Further, the Minister of Transport did act fairly when he decided to impose a suspension under paragraph 7.1(1)(b) of the Act, and this decision was not unreasonable, unfair or oppressive as to constitute a breach of the principles of natural justice.

Therefore, the Appeal is dismissed.

Reasons for Appeal Determination by:

Suzanne Jobin, Member

Concurred:

Gordon R. Mitchell, Member
Dr. David S. Ahmed, Member


[1] R.W. Macaulay & J.L.H. Sprague, eds., Practice and Procedure Before Administrative Tribunals, vol. 2 (Scarborough: Carswell, 1997) at 12-167.

[2] Daniel L. Lafayette v. Minister of Transport, CAT File No. C-0163-02, July 3, 1990

[3] Elias Ruben Marin v. Minister of Transport, CAT File No. W-0240-04, March 29, 1995

[4] Re Mason and Registered Nurses' Association of British Columbia, 102 D.L.R. (3d) at 238.

[5] Clare v. Canada, the Federal Court of Appeal, (149 N.R.303)

[6] Kienapple v. R. [1975] 1 S.C.R. 729

[7] R. v. Wigglesworth, [1987] 2 S.C.R. 541

[8] R. v. Shubley, [1990] 1 S.C.R. 3

[9] Pearlman v. The Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at 401.

[10] R. v. Beare, [1988] 2 S.C.R. 387

[11] R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154

[12] R. v. Young, (1984) 40 C.R. (3d) 289.

[13] R. v. Jewitt, [1985] 2 S.C.R. 128.

[14] IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 at 324. See also Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at 1113.