Decisions

CAT File No. W-2264-41
MoT File No. SAP-5504-43173

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Signature Airways Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/2000-389, s. 605.84(1)(c)(i), SOR/96-433, ss.706.04, 706.07(1), 706.09(2)(a)

Maintenance Control System, Journey Log Entries


Review Determination
Keith Edward Green


Decision: November 23, 2001

By virtue of the evidence submitted and the testimonies rendered, the Tribunal has decided to uphold the Minister's decision and confirm the total monetary penalty of $1,500.00. That amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Wednesday, October 3, 2001 at 10:00 hours, at Central Alberta Reporting in Red Deer, Alberta.

BACKGROUND

The Regional Director of Civil Aviation convened an audit of Signature Airways Ltd., in September 2000. The intent of the audit was to assess Signature Airways Ltd.'s level of competence for correction and compliance to the regulations governing the standards for operation of Canadian air operators. The detailed audit was accomplished according to the policy and procedures detailed in the Manual of Regulatory Audits. The audit was conducted at Signature Airways Ltd.'s main base of commerce. The audit recorded numerous findings, including the four alleged contraventions cited in the Notice of Assessment of Monetary Penalty.

The Notice of Assessment of Monetary Penalty reads in part as follows:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

APPENDIX A

OFFENCE #1 – CARs 605.84(1)(c)(i)

On or about the 5th day of September 2000, at or near Red Deer, Alberta, you did permit a take-off in an aircraft, to wit a Piper PA31 airplane, registration C-GSCA, which was in you legal custody and control, when the said aircraft was not maintained in accordance with the requirements of an Airworthiness Directive issued by the competent authority of the foreign state, namely the United States, that at the time that the notice was issued was responsible for the type certification of the aircraft; more specifically Airworthiness Directive 99-06-01, Part C, was due on or about the 22nd day of February 2000, at approximately 10,248 airframe hours; and the said Airworthiness Directive had not been completed at the time of the said flight, a violation of section 605.84(1)(c)(i) of the Canadian Aviation Regulations.

MONETARY PENALTY – $750.00

OFFENCE #2 – CARs 706.04

Being an air operator, you did fail to provide the person responsible for your maintenance control system, namely Jeffrey Moscrop, with the technical data referred to in the Commercial Air Services Standards, more specifically, during an audit of your company by Maintenance & Manufacturing Branch, Transport Canada, on or about the 14th day of September 2000, it was discovered that numerous aircraft maintenance publications were out of date, to wit a Piper PA31 Service Manual number 753 704; Piper PA31 IPC number 753 703 and Service Bulletin / Service Letter Listings, a violation of section 706.04 of the Canadian Aviation Regulations.

MONETARY PENALTY – $250.00

OFFENCE #3 – CARs 706.07(1)

Being an air operator, who, in order to ensure that your maintenance control system and all of the included maintenance schedules continued to be effective, and to comply with the Canadian Aviation Regulations, you did fail to establish an evaluation program that met the applicable standards in the Commercial Air Services Standards, more specifically, during an audit of your company by Maintenance & Manufacturing Branch, Transport Canada, on or about the 14th day of September 2000, it was discovered that you did not have a record of any evaluations done, a violation of section 706.07(1) of the Canadian Aviation Regulations.

MONETARY PENALTY – $250.00

OFFENCE #4 – CARs 706.09(2)(a)

Being an air operator, you did fail to ensure that maintenance arrangements made with an organization, namely Triad Aviation Ltd. of Ponoka, Alberta, and Skywings Aviation Academy Ltd. of Penhold, Alberta, pursuant to section 706.09(1) of the Canadian Aviation Regulations, specified the maintenance required and clearly defined the tasks to be performed, more specifically these items were not included in either maintenance agreement, a violation of section 706.09(2)(a) of the Canadian Aviation Regulations.

MONETARY PENALTY – $250.00

TOTAL MONETARY PENALTY – $1,500.00

PREAMBLE

The Member's opening address was concluded with a motion to amend the Notice of Assessment of Monetary Penalty. The motion was submitted by the Minister's representative, Mr. R. J. McFarlane to the Civil Aviation Tribunal on September 25, 2001. The Presiding Member having received the motion on September 28, 2001 read the motion into the record. The details of the motion are as follows:

TAKE NOTICE that an application is hereby made on behalf of the Minister of Transport, (applicant) for:

1) Amendment of the Notice of Assessment of Monetary Penalty issued to Signature Airways Ltd. dated 22 March 2001, in the following manner:

A. Correcting the registration marks cited in the notice from 'C-GSCA' to C-GSGA'

The Member asked the Respondent if Signature Airways Ltd. received sufficient warning of the motion. An affirmative answer was provided by Mr. Jeff Moscrop, representing Signature Airways Ltd. Having considered the application, the Tribunal decided to grant the motion. However, the Member would like to elaborate on two points concerning the motion, under which the Minister added four sub items:

AND FURTHER TAKE NOTICE that the grounds upon which this Application is made are as follows:

1. [...] Offense #1 contains a typographical error in noting the registration marks [...]

2. The registration mark supported by the evidence is in fact C-GSGA.

3. [...]

4. [...]

The Member, after having been presented with substantial evidence during the course of the hearing, believes it prudent for the record to state the Member's observation: In item '1' as listed above, the Minister rendered his own assumption pertaining to the cause of the mistaken registration as an ostensible typographical error. The evidence however, in several documents i.e. original Detection Notice (Exhibit M-6), Audit Finding Form (M-3) and Detection Notice (M-12), clearly records the aircraft registration marks as C-GSCA, indicating the mistake was made very early toward the commencement of the audit by one of the principal investigating officers, thereafter, being transposed incorrectly. The evidence, therefore, does not lend itself entirely to the assumption that the mistake was "typographical in nature" as the incorrect registration is also apparent against early handwritten documents. Therefore, item No. '2' would have been a supposition if it had not been for Mr. Moscrop's willingness to cooperate at the time of the Hearing.

The decision to allow the motion, considering the evidence submitted, is based primarily upon the input from the Respondent in respect to aircraft registration. It should not be a requirement of the Member to emphasize the importance of maintaining accurate records during all aspects of a quality audit, regardless as to the condition or decipherability of an individual's handwriting. A quality audit is performed with the intent of demonstrating compliance through record, quality being the ability to prove compliance. Therefore, bearing the aforesaid in mind, certain evidence presented during the hearing of Signature Airways Ltd. demonstrated poor quality in respect to accurate records.

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).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Subparagraph 605.84(1)(c)(i) of the Canadian Aviation Regulations (CARs):

[...]

(i) the competent authority of the foreign state that, at the time the notice was issued, is responsible for the type certification of the aircraft, engine, propeller or appliance, or

[...]

Section 706.04 of the CARs:

706.04 An air operator shall provide the person who is responsible for its maintenance control system with the staff, facilities, technical and regulatory data, supplies and spare parts referred to in the Commercial Air Service Standards that are necessary to ensure compliance with this Subpart.

Subsection 706.07(1) of the CARs:

706.07 (1) An air operator shall, in order to ensure that its maintenance control system and all of the included maintenance schedules continue to be effective and to comply with these Regulations, establish an evaluation program that meets the applicable requirements of the Commercial Air Service Standards.

Paragraph 706.09(2)(a) of the CARs:

(2) An air operator shall ensure that a maintenance arrangement made with a person or organization pursuant to subsection (1)

(a) specifies the maintenance required and clearly defines the tasks to be performed; and

AGREEMENT BETWEEN PARTIES

The following agreement of facts was read into the record by the Minister as "issues which are not in dispute".

  1. Signature Airways Ltd. is a body corporate, registered in the Province of Alberta, and holder of Canadian Air Operator's Certificate #9320.
  2. Aircraft, Piper PA 31, Canadian Registration C-GSGA was, on or about 14 September, 2000, registered to and operated by Signature Airways Ltd. as a commercially registered aircraft.
  3. Aircraft, Piper PA 31, Canadian Registration C-FBBC was, on or about 14 September 2000, registered to and operated by Signature Airways Ltd. as a commercially registered aircraft.
  4. Signature Airways Ltd., pursuant to its operations manual, had designated as at September 14, 2000, Mr. Jeff Moscrop as President, Operations Manager, Chief Pilot and Maintenance Coordinator.

The agreement was signed by the representatives of the Minister and Signature Airways Ltd.

THE MINISTER'S CASE (Applicant)

Introduction of the Minister's Witnesses

The Minister, represented by Mr. R. J. McFarlane, Superintendent, Programs, Civil Aviation, Enforcement, called three witnesses.

The Minister's first witness was Mr. Barry Holt who at the time of the audit was an aviation enforcement investigator with Transport Canada. He is currently employed with Transport Canada, Accident Investigation.

The Minister's second witness was Civil Aviation Safety Inspector, Maintenance & Manufacturing - Steve Johnson. Mr. Johnson was actively involved in the initial audit of Signature Airways Ltd.

The Minister's final witness was Civil Aviation Safety Inspector, Maintenance & Manufacturing — Mr. Roger McIntosh. Mr. McIntosh was also actively involved in the initial audit.

Examination of the Minister's First Witness

Offence No. 1

Subparagraph 605.84(1)(c)(i) of the CARs:

(i) the competent authority of the foreign state that, at the time the notice was issued, is responsible for the type certification of the aircraft, engine, propeller or appliance

In the first offence, it is alleged that Signature Airways Ltd. operated an aircraft (registration C-GSGA, on or about September 5, 2000 without having first performed a required airworthiness directive (AD) 99-06-01 before the said flight, being required on February 22, 2000 at approximately 10,248 airframe hours.

Exhibits of note, entered by the Minister's first witness, with regard to the alleged offence 'No. 1' are: M-4 – AD 99-06-01, detailing the AD requirements etc. and M-3 an Audit Finding Form detailing an audit finding against aircraft C-GSCA for non-conformance to AD 99-06-01. The Minister's first witness Mr. Barry Holt, entered into evidence a document emanating from an approved maintenance organization (AMO) "Triad Aviation Ltd. #123-94" who was contracted by Signature Airways Ltd. to perform maintenance on their aircraft including the AD 99-06-01 on C-GSGA. It is worthy of mention that AD 99-06-01 was effective April 20, 1999. Introduction of Exhibit M-5, rendered by Mr. Holt, indicates the first recorded inspection to the horizontal stabilizer rear spar was accomplished on August 24, 1999 @ 9859.9 airframe hours by Triad Aviation Ltd [hereinafter "Triad"]. As in accordance to the AD paragraph (c), the inspection required by paragraph (a) was to continue for an accumulation of 500 hours, in the event 'no' cracks were detected. Exhibit M-10 recorded the final compliance to AD 99-06-01 at 10,415.1 airframe hours.

Offence No. 2

Offence No. 2 references section 706.04 of the CARs which states:

An air operator shall provide the person who is responsible for its maintenance control system with the staff, facilities, technical and regulatory data, supplies and spare parts referred to in the Commercial Air Service Standards that are necessary to ensure compliance with this Subpart.

The Minister asked Mr. Holt to relate the facts of the alleged offence No. 2 to the Tribunal. This Mr. Holt proceeded to do, detailing two reference manuals, a Piper PA 31 Service Manual No. 753 704 and a Piper PA 31 Illustrated Parts Catalogue (IPC) No. 753 703. Additionally, Mr. Holt reported that there were also Service Bulletin/Service Letter Listings which were out of date, having not been amended. The Minister introduced Exhibit M-6 a 'Detection Notice', asking Mr. Holt to explain what the document was. Mr. Holt read the document's narrative passage into the record, providing testimony that 'out of date aircraft inspection check sheets were used on' the aforesaid aircraft. The document was signed by Inspector McIntosh — the Minister's third witness.

Mr. McFarlane introduced Exhibit M-7 called an "Audit Finding Form." Attached to this form was another document called the "Audit Finding Draft." The latter document is used during an audit to describe a non-conformance as discovered during the actual audit. Additionally, it also provides examples of the listed items of non-conformance. The Audit Finding Form recorded the three aforementioned items of non-conformance in bullet form under item No. 1 which stated: "Out of date publications in use on company aircraft by Skywings Academy Ltd."

Skywings Aviation Academy Ltd. [hereinafter "Skywings"] is an AMO employed by Signature Airways Ltd. to perform maintenance on Signature Airways Ltd. aircraft. A quality requirement of an air operator, who utilizes another organization for maintenance purposes, is to monitor the work: this includes both maintenance and support of those maintenance activities directly affecting the air operator's aircraft. Surveillance is accomplished via audit of an AMO by the air operator who provides a maintenance agreement outlining the details of the contract. Item No. 2 of the Audit Finding Form (Exhibit M-7) states: "Maintenance Agreements signed, do not provide for access to the libraries of the contract AMO's."

Offence No. 3

Offence No. 3 references subsection 706.07(1) of the CARs which reads:

(1) An air operator shall, in order to ensure that its maintenance control system and all of the included maintenance schedules continue to be effective and to comply with these Regulations, establish an evaluation program that meets the applicable requirements of the Commercial Air Service Standards.

The Minister asked Mr. Holt, to explain offence No. 3. Mr. Holt explained that during the audit, conducted September 14, 2000, it was discovered Signature Airways Ltd., under its own evaluation program, had no records of evaluation in accordance with Signature Airways Ltd. approved maintenance control system (an evaluation program be equivalent to a quality audit program).

The Minister introduced Exhibit M-8 (Audit Finding Form) which had attached to it an original "Audit Finding Draft" form. Under examples on the Audit Finding Form, Inspector McIntosh (the Minister's third witness) documented three examples of non-compliance relating to Signature Airways Ltd.'s evaluation program. They are as follows:

  1. Other than a log registering the dates of past evaluation meetings, there is no written record of each evaluation review conducted to date.
  2. There is no record of any evaluation meeting(s) with Triad Aviation to amend the [superseded] Piper Maintenance Schedule Approval. Reference is made to Transport Canada correspondence dated April 13, 1998 requesting a review and update to Piper Document 761 857.
  3. There are no record(s) to address Airworthiness Directive or Special Inspection compliance.

Exhibit M-9 was introduced as evidence, detailing the recorded 'conclusion' of the evaluation programs. Under the heading 'Conclusion' the words "Nothing to Report" were written 13 times, starting in July/97 and terminating in July/00.

The Minister requested Mr. Holt to read part of subsection 726.07(4) of the Commercial Air Service Standards (Standards), in particular paragraph (g) dealing with an air operator's evaluation program. The paragraph reads:

(g) A record keeping system to ensure that details of evaluation findings, corrective actions, and follow-up is recorded, and that the records are retained for two complete evaluation cycles. [emphasis added]

Cross-examination of the Minister's First Witness

Mr. Jeff Moscrop, representing the document holder, initially declined to cross-examine the Minister's first witness but shortly thereafter changed his mind.

Mr. Moscrop quoted from the Signature Airways Ltd. maintenance control manual (MCM), stating under subpart 'eleven', "the maintenance manager shall keep a record of each evaluation and any decisions taken". Mr. Moscrop then addressed Exhibit M-9 referencing the 13 entries made against the document as compliance to the Minister's third allegation, namely subsection 706.07(1) of the CARs. Mr. Moscrop continued his cross-examination by reading paragraph 726.07(4)(g) of the Standards.

The Signature Airways Ltd. MCM, explained Mr. Moscrop, is not broken down into fine detail as is the CARs, but is more general in nature. The Transport Canada approved MCM requires a record of each evaluation, including any decisions taken. In response, Mr. Holt would not comment on what the MCM stated without seeing it in front of him. Mr. Holt continued by reading from subsection 726.07(4) of the Standards, mainly:

The program must include the use of checklists that are sufficiently detailed to ensure that all maintenance functions are evaluated. Specifically, the program must include the following elements [...].

Mr. Holt explained that a record of meetings must contain more than a written statement "Nothing to Report". It should include checklists in sufficient detail to ensure that all maintenance functions are evaluated.

Additionally, Mr. Holt quoted subsection (3) of the Standards: "The program must address the Air Operator's requirements, the operational and environmental conditions, organizational structure, maintenance schedules, record keeping system, etc." emphasizing "maintenance schedules, record keeping system". Mr. Holt endeavoured to make a point, being: the evaluation program failed, as it did not identify changes to the maintenance schedule. The wrong maintenance schedule was, at the time of the audit, being used and therefore, recording "Nothing to Report" against the "Maintenance Evaluation Meeting" was indication that the program failed as it did not catch those changes. In Mr. Holt's own words, "the evaluation program, I felt, was in error, because it said 'Nothing to Report', and yet things had slipped right through it."

Mr. Moscrop informed the Tribunal that the Signature Airways Ltd. MCM was produced from a generic MCM version provided by Transport Canada. According to Mr. Moscrop, the generic MCM offered no reference that 'checklists' had to be developed for the maintenance evaluation program, only the 'record' of the evaluation meeting(s) had to be kept.

Mr. Moscrop had no further questions for the Minister's witness.

Examination of the Minister's Second Witness

The Minister called Mr. Stephen Johnson who is a Civil Aviation Safety Inspector – Maintenance & Manufacturing.

The Minister asked Inspector Johnson if all the audit findings were sent to enforcement for processing. Inspector Johnson replied "they were not", explaining the process by which findings are selected. Inspector Johnson added "not all findings were provided to enforcement, a number of them were resolved".

Offence No. 1

Inspector Johnson presented collaborative evidence and testimony in the presentation of Exhibits M-10 and M-11, the latter being a conformity certificate. Form # 24-0045 (M-11), along with two other pages attached, recorded work accomplished on the aircraft in question C-GSGA, detailing which AMOs accomplished the tasks and what the work entailed. Exhibit M-10, a certified true copy of C-GSGA's applicable journey log book and technical log book pages, verified date, flight time, location, total airframe hours, etc. Examination of Exhibit M-10 revealed the time the AD was actually complied with by the certifying AMO being October 4, 2000 at 10,415.1 airframe hours. It also recorded several flights made by the aircraft C-GSGA on September 5, 2000, commencing at 10,397.3 and terminating on the same date at 10,405.3 airframe hours.

Offence No. 2

The Minister requested Inspector Johnson to inform the Tribunal what part he had played in the audit. Inspector Johnson replied that he had inspected the publications listed, along with the revision dates, finding them out of date to the latest publication revision list.

Offence No. 3

Inspector Johnson's participation in discovering the alleged third offence occurred when he was assigned to review the records with regard to the evaluation program. Apparently, the review checklists of the system were incomplete and were not filled out. Additionally, Inspector Johnson reported there was no data entered. Inspector Johnson continued by alluding to the Standards, in which all of the aspects and details of the evaluation program were outlined, emphasizing the point that there was little indication to meet the requirement, referring to the Signature Airways Ltd. MCM.

Cross-examination of the Minister's Second Witness

Mr. Moscrop asked Inspector Johnson if he would consider compliance of an AD a part of maintenance? Inspector Johnson assured the Tribunal that it was. Mr. Moscrop presented to Inspector Johnson a copy of Signature Airways Ltd.'s Maintenance Agreement, asking if he could identify the document. Inspector Johnson said he could identify it. The document was requested to be submitted into evidence by the document holder. Therefore, having been identified by Inspector Johnson the document was entered into the record as Exhibit D-1. Inspector Johnson read from Exhibit D-1 the first sentence: "The above named maintenance contractor agrees to satisfy all maintenance requirements respecting the aircraft registered to the above named operator." [emphasis added] In attempting to paraphrase Inspector Johnson, Mr. Moscrop explained how ADs are considered to be maintenance functions and therefore, Triad would assume responsibility for the ADs".

Mr. Moscrop's line of questing continued to the alleged offence No. 2, asking Inspector Johnson whether there was any evidence supporting an agreement between Skywings and Signature Airways Ltd., to use the latter's manuals in their library? Inspector Johnson replied he "didn't know". Mr. Moscrop informed the Tribunal Skywings was not Signature Airways Ltd.'s primary AMO, and the library Signature Airways Ltd. utilized belonged to Triad. Inspector Johnson knew of no evidence to support the existence of any type of agreement between the two AMOs.

Inspector Johnson was asked if Exhibit M-9 showed there was an evaluation done. Inspector Johnson replied that it did not. Apparently, there was nothing to show that there were evaluations done, only that there was a meeting of an evaluation...An evaluation checklist is designed to show the process, the deficiencies in the process of the operation. Mr. Moscrop pointed out offence No. 3 stated, "you did not have a record of any evaluations done," it did not refer to any "checklists".

Offence No. 4

Re-examination of the Minister's Second Witness

The Minister asked Inspector Johnson if it is normal practice to interpret a maintenance agreement, to absolve the aircraft's owner/operator of all responsibility, when it came to maintenance of an aircraft in compliance with an AD. Inspector Johnson, replied, "it was not". The Minister continued by asking if it is normal practice to accept the terms of a maintenance agreement over and above what is stated within the terms of the Commercial Air Service Standards. "Would that pre-empt the Standards?" Inspector Johnson responded with a resolute "certainly not".

Examination of the Minister's Third Witness

Mr. McIntosh was called to take the stand and was accordingly sworn in.

In the initial general questioning of Inspector McIntosh, it was revealed that Signature Airways Ltd. was scheduled for a regulatory audit, never having had one before.

Offence No. 1

The Minister introduced a detection notice — Exhibit M-12. The exhibit referred to two ADs, (only AD 99-06-01 being applicable to this case), which according to the exhibit were due on February 22, 2000. Inspector McIntosh recalled the circumstances in which this finding first came to his attention, relating how the department keys in on repetitive ADs, or ADs that have terminating action. AD 99-06-01 was such an AD and one that was required to have 100 hour repetitive inspections of the horizontal rear spar, requiring a terminating action within 500 hours of the effective date of the AD. Signature Airways Ltd. was doing a repetitive 100 hours inspection but the terminating requirement slipped by. The AD requiring a Piper service kit to be installed on the rear spar was never accomplished. The Minister explained that they discovered the situation and asked for the aircraft to be taken out of service. According to Inspector McIntosh's calculations, as based upon the utilization of the aircraft, it had been overdue for several months. The aircraft had the certificate of airworthiness removed by Transport Canada before the AD was accomplished.

The Minister drew attention to Exhibit M-5, asking Inspector McIntosh to elaborate upon it. The Inspector explained Exhibit M-5 was first identified at Triad. Triad produced Exhibit M-5 to demonstrate how they handle repetitive AD requirements for clients. When Triad's AD schedule for AD 99-06-01 was examined, it revealed that Triad had only been accomplishing the 100-hour inspections; the terminating action had been missed by both Triad and Signature Airways Ltd.

The Minister asked Inspector McIntosh how he knew the aircraft had gone overtime? Inspector McIntosh responded that the effective date of the AD is compared to the aircraft's technical record at the time, which is in turn compared to the date of the review. The accumulated time in this case was over 500 hours.

Offence No. 2

Inspector McIntosh explained he had gone to Skywings to inspect their technical library. He discovered the library had not been revised since 1982. Inspector McIntosh informed the Tribunal that Skywings was unaware their technical Library was out of date. To paraphrase the Minister, Inspector McIntosh was asked why it was that Signature Airways Ltd. should be held responsible for the technical publications, which belonged to Skywings as it was Skywings who was using them? Inspector McIntosh clarified that Signature Airways Ltd., as the air operator and holder of the certificate, is responsible for the work accomplished on their aircraft. Therefore, it is incumbent on a company to ensure that anybody performing maintenance on an aircraft is using the latest technical material, technical library and whatever type of information is required.

Offence No. 3

The Minister brought the Tribunal's attention to Exhibit M-9, asking Inspector McIntosh to explain the significance of the document. The inspector provided a brief explanation of what brought his attention to Signature Airways Ltd.'s evaluation program. The basis of the suspicion lay in the fact there were eleven entries, all saying the same thing "Nothing to Report." Yet the audit revealed several findings which Signature Airways Ltd.'s evaluation program should have detected but did not, indicating that there were items to report, but they were not being looked at. Inspector McIntosh elaborated on how he had travelled to Ponoka to meet with Triad in order to discuss the meetings Signature Airways Ltd. had with Triad. Inspector McIntosh spoke to a Mr. John Jeffries, asking him if he had recorded minutes from the meeting as listed on Exhibit M-9. Apparently, Mr. Jeffries, according to Inspector McIntosh, did not know anything about the supposed meetings.

Cross-examination of the Minister's Third Witness

Mr. Moscrop opened the cross-examination by asking Inspector McIntosh if ADs are a maintenance requirement? The Inspector confirmed they are, as well as mandatory. Mr. Moscrop then reintroduced Exhibit D-1, outlining the words "all maintenance requirements". Inspector McIntosh at this juncture clarified Transport Canada's position on maintenance responsibility between an air operator and an AMO, explaining that an AMO is required to tack all the maintenance, unless there is an exact policy outlining what it is they are to do for an operator.

THE DOCUMENT HOLDER'S CASE (Respondent)

Mr. Moscrop did not call any witnesses and did not testify.

THE ARGUMENTS

The Applicant

The Minister presented a brief argument, which reiterated some of the case points and reminded the Tribunal that Mr. Moscrop, through agreement, established evidence pertaining to each element in the offences that were listed.

The Minister made it very clear in each of the alleged offences, the CARs pertaining to the charge provided key wording: 605.84(1) – No person shall... 706.04 – An air operator shall provide... 706.07(1) – An air operator shall, in order to... 706.09(2) – An air operator shall ensure that a maintenance arrangement made...

The Minister stated each of the elements pertain to Signature Airways Ltd. Accordingly, the obligation is on the operator; it cannot be re-delegated to somebody else simply on the face of a maintenance agreement. There is a responsibility carried by an air carrier to ensure that the program is met, regulations are being complied with and the standards are satisfied.

The Respondent

To paraphrase Mr. Moscrop: There have been significant changes to the industry since the CARs emerged. Under the old Air Regulations, the maintenance organizations had a greater responsibility to ensure compliance to regulations etc. Now that the CARs are operational, the emphasis has shifted to the owner/operator. Mr. Moscrop continued his argument, stating there are many people who think this, including Mr. John Jeffries. Apparently, there was a contract drawn, appointing Mr. Jeffries responsible for the airworthiness of Signature Airways Ltd. aircraft for which he was paid a significant wage for his service. Mr. Moscrop felt that Mr. Jeffries was responsible for the maintenance and that Mr. Jeffries had failed to meet the agreed to obligations.

Mr. Moscrop argued the whole thing could have been avoided if Transport Canada had visited his establishment before this past audit. The present audit being the first time he had seen inspectors since he started the business, the whole thing could have been avoided before it "rolled up into a snow ball".

The Minister's Response to Argument

The Minister pointed out that the CARs became effective in 1996 being a long slow process for both industry and regulators alike, explaining to the Tribunal just how imperative it is that the responsibility which lies with an air operator is very clear and that this is the purpose behind the charges.

ANALYSIS

The greater majority of offences covered under the Aeronautics Act, as in this case involving Signature Airways Ltd., are "strict liability offences". In a strict liability offence, the Crown is only obliged to prove "actus reus" (a state of "omission or commission") i.e. a person "shall not" do something or a person "shall" do something as in accordance with the Aeronautics Act. Once the Minister has proved actus reus, the evidentiary burden shifts to the alleged offender, behoving the document holder to prove due diligence was exercised in the prevention of the contravention.

actus reus

It has been determined that the Minister provided the Tribunal with sufficient evidence in both testimony and documentation to prove, on a balance of probabilities, that the alleged contraventions, specifically cited under sections 7.7 to 8.2 of the Aeronautics Act respecting monetary penalties, were warranted.

The Applicant

The Minister endeavoured throughout the proceedings to systematically prove, on a balance of probabilities, that the document holder, Signature Airways Ltd., was responsible for each offence.

Taking into account information contained within the agreement between the Minister and Signature Airways Ltd., the Minister entered additional evidence and testimony, some of which, being relevant to one or more of the listed offences, proving the following facts:

Offence No. 1

(i) The aircraft C-GSGA was compliant to AD 99-06-01.

(ii) AD 99-06-01 was overdue against the aircraft C-GSGA.

(iii) The aircraft was not maintained in accordance with the requirements of an AD issued by the competent authority of a foreign state, namely the United States.

(iv) Aircraft C-GSGA did fly on February 22, 2000.

Offence No. 2

(i) Mr. Moscrop, as the principal assigned by Signature Airways Ltd., was responsible, as the "maintenance coordinator," for ensuring compliance of routine and non-routine maintenance to all Signature Airways Ltd. aircraft.

(ii) The AMOs contracted to perform maintenance on Signature Airways Ltd. aircraft, for which Mr. Moscrop — being the appointed principal assigned to ensure the effectivity of the relevant technical manuals/publications was responsible for, were using non-compliant manuals and technical publications. To wit a Piper PA 31 service manual (753 704) and a Piper PA 31 IPC (753 703) were in arrears with respect to currency and/or amendment/revision.

Offence No. 3

(i) Signature Airways Ltd. evaluation program was not being followed in accordance to the CARs and Standards prescribed. Namely, there was not a detailed record of any evaluations conducted by Signature Airways Ltd.

Offence No. 4

(i) Triad of Ponoka, Alberta and Skywings of Penhold, Alberta were two AMOs contracted by Signature Airways Ltd. for maintenance purposes.

(ii) The maintenance arrangements made by Signature Airways Ltd. and the aforementioned AMOs were lacking in definition and guidance.

Although the Minister in the presentation of his case was able to prove, on a balance of probabilities, the allegations against Signature Airways Ltd., were founded, the Member believes it is necessary to identify a serious frailty in certain aspects of the Minister's evidence, in particular Exhibit M-5. The Exhibit is a photocopy of an original document produced by a contracted AMO that was not represented at the hearing and for which there was no authentication or certification, other than a "Transport Canada" stamp, which was neither endorsed nor dated. The only redeeming quality to the exhibit was the clear and concise authorization of the signing principal aircraft maintenance engineer (AME) of the AMO, which could be authenticated if required. Additionally, Mr. Moscrop recognized the document, and on this point the Member places substantial weight against it, more so than that of the photocopy itself, even though Mr. Moscrop was never under oath.

The Minister's evidence ran the full gambit, encompassing material as in Exhibit M-5 through to original documents such as M-6 and M-12. One particular Exhibit D-1, presented by Mr. Moscrop, during a cross-examination of the Minister's witness, contributed to the Minister's case; one can only speculate if Mr. Moscrop had not produced the document, whether the Minister would have. The Minister should be fully aware of the rules of evidence, in particular those rules pertaining to "best evidence" and "hearsay evidence".

CONCLUSION

The Minister having proved the four offences against the Respondent, in the final analysis, I have determined my conclusion upon the facts, evidence and testimony as presented before me.

Mr. Moscrop failed to ensure his responsibilities as Signature Airways Ltd.— Maintenance Controller were accomplished in accordance to the applicable CARs and in conjunction with Signature Airways Ltd.'s own MCM. Therefore, Mr. Moscrop was negligent in the performance of those aforementioned duties.

In the minutiae of this case, the Minister has demonstrated on a "balance of probabilities" the document holder, Signature Airways Ltd., did allow the four offences to occur, in not exercising "due diligence" in the execution of specific duties as required under the CARs or as defined and agreed upon within the Signature Airways Ltd. MCM. Therefore, Signature Airways Ltd. did not fulfil the required responsibilities expected of a responsible air operator.

DETERMINATION

By virtue of the evidence submitted and the testimonies rendered, the Tribunal has decided to uphold the Minister's decision and confirm the total monetary penalty of $1,500.00 consisting of:

Offence No. 1: $750.00
Offence No. 2: $250.00
Offence No. 3: $250.00
Offence No. 4: $250.00

Total:                          $1,500.00

Keith Edward Green
Member
Civil Aviation Tribunal