Decisions

CAT File No. W-2309-33
MoT File No. SAP-5504-43893

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Helmut Karl Eduard Schoener, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 202.13(2)
Canadian Aviation Regulations, SOR/96-433, s. 605.88(1)


Review Determination
Sandra Lloyd


Decision: March 4, 2002

I find that the Minister has proved both offences as alleged, and the total sanctions of $2,000 are confirmed. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A review hearing on the above matter was held Wednesday, January 9, 2002 at 10:00 hours at the Territorial Court of Yukon in Whitehorse, Yukon.

FACTS

The evidence presented at the hearing indicated no material factual disagreements between the parties. However, the parties' opinions differ regarding the application of the law to the facts.

The Respondent, Dr. Schoener, was pilot-in-command of a home-built aircraft, C-GXGQ, when it crash-landed on Range Road outside of Whitehorse on October 8, 2000. As a result of this accident, Transport Canada Civil Aviation Inspector Mr. Curtain contacted Dr. Schoener by telephone on December 5, 2000. Mr. Curtain told Dr. Schoener that he was investigating the accident and warned Dr. Schoener that any evidence he provided could be used against him. Dr. Schoener said he understood the warning. Upon Mr. Curtain's request, Dr. Schoener then faxed to Mr. Curtain the logbook pages for C-GXGQ that included, among other things, an entry for the flight of October 8, 2000. He also faxed a copy of his pilot licence, medical certificate and an insurance certificate. These items were entered as documentary evidence at the hearing.

Mr. Curtain examined the logbook pages provided by Dr. Schoener and noted entries showing Dr. Schoener was also the pilot-in-command of C-GXGQ when it suffered a belly landing on March 20, 1999. The logbook also showed that consequently a new propeller was installed on the aircraft. Mr. Curtain's opinion was that the belly landing was an "abnormal occurrence" within the meaning of section 605.88 of the Canadian Aviation Regulations (CARs), which requires an inspection of the aircraft, in accordance with Appendix G of the Aircraft Equipment and Maintenance Standards ("Appendix G"), before further flight. Mr. Curtain was also of the opinion that the entries indicated non-compliance with section 605.88 of the CARs and Appendix G, in that C-GXGQ was flown on July 30, 2000, without Appendix G requirements having been met.

Consequently Mr. Curtain commenced a new investigation to deal with these matters. He reviewed the Transport Canada file with respect to C-GXGQ and found a copy of a bill of sale from David Sharp to Dr. Schoener dated April 10, 1998. He also found a letter from Transport Canada to Dr. Schoener dated May 14, 1998 requesting that Dr. Schoener provide to Transport Canada a copy of the bill of sale, a completed application form for a new certificate of registration, and the required fee of $110, so that a formal certificate of registration could be issued. Mr. Curtain stated that there was no evidence that Dr. Schoener provided those things to Transport Canada. Mr. Curtain also found in the file a bill of sale showing that Dr. Schoener sold C-GXGQ on September 14, 2000. Mr. Curtain concluded that Dr. Schoener was the owner of C-GXGQ on July 30, 2000 and that on that date there was no valid certificate of registration in effect for aircraft C-GXGQ. The bills of sale and the letter from Transport Canada were entered as documentary evidence at the hearing.

Mr. Curtain also entered as evidence two Secretary's certificates dated October 5, 2001. One Secretary's certificate stated that "no certificate of registration in respect of aircraft C-GXGQ has been issued to [Dr. Schoener ...] to be in effect on July 30, 2000." The other stated that "no special certificate of airworthiness attesting to the fitness for flight of aircraft C-GXGQ [...] was in effect on July 30, 2000."

Mr. Curtain spoke again to Dr. Schoener by telephone on May 4, 2001. He then informed Dr. Schoener that he was investigating the two matters now before the Tribunal and again warned him that any evidence provided could be used against him. Mr. Curtain said that Dr. Schoener admitted he was pilot-in-command on March 20, 1999 when the belly landing occurred, although he was unclear about who was pilot-in-command on July 30, 2000.

At the hearing Dr. Schoener described his experience in owning, building and maintaining home-built aircraft. He does not hold an aircraft maintenance engineer (AME) licence and did not build C-GXGQ himself. He stated that after C-GXGQ's gear failed to extend and had a belly landing on March 20, 1999, he and friends moved C-GXGQ to a parking lot where he had the aircraft raised and proceeded to examine it. His evidence was that the damaged areas were the wooden propeller, a communications antenna attached to an aluminum belly panel, and the flap linkage. He could find no evidence of damage to the fuselage or to the tail. He examined the engine mounts and looked for cracked or bent parts. He removed the wooden propeller. He asked both a local AME and an overhaul company in Kamloops about what damage could occur from a prop strike.

Dr. Schoener submitted as evidence a maintenance document from Sensenich Wood Propeller Company which showed that he had informed himself as to the applicable propeller installation and maintenance procedures. He determined the required crankshaft runout tolerances, measured them, and found that the flange and crankshaft were within tolerances. He said that Progressive Air told him that it was unlikely that internal engine damage occurred, because the propeller was wooden. Dr. Schoener testified that the repairs to his aircraft took almost a year. He provided photos to show that he had riveted an extra piece of aluminum on the underside of the fuselage at the point where the communications antenna was attached to the fuselage. He said that in addition to the entries he made in the journey log, he recorded the procedures he undertook in the aircraft technical log. He said he wrote in that book every time he worked on the aircraft and that his records included crank values and propeller torque and were quite detailed. However, he said that logbook was lost when he later crash-landed near Whitehorse.

With respect to the CARs 605.88(1) charge, Dr. Schoener said that he thought he did everything to comply with the regulations and most importantly, in his opinion, he thought he had done everything necessary to be safe.

Dr. Schoener also offered as documentary evidence letters from friends attesting to the work he did on C-GXGQ following the prop strike. The Minister objected to these letters as evidence, and I did not accept them because the writers of the letters were not available for cross-examination and because in any case there was no dispute between the parties as to what work Dr. Schoener had done on the aircraft.

Dr. Schoener also offered for my review technical logbooks for other aircraft he had worked on, to show that he was conscientious in maintaining technical records. However since there was no dispute between the parties as to whether Dr. Schoener was conscientious in the maintenance work he undertook himself, or whether he generally kept careful technical records of the work he did on various aircraft, I did not find it helpful or necessary to examine records that pertained to other aircraft, or to take them into evidence. Dr. Schoener did admit under cross-examination that none of the entries in C-GXGQ's technical logbook were made by a licensed AME.

With respect to the CARs 202.13 allegation, Dr. Schoener testified that when he purchased C-GXGQ, he filled out a change of ownership form and sent it to Transport Canada in Edmonton. In response he received the aforementioned letter dated May 14, 1998 from Transport Canada requesting the completed application for registration, etc. He testified that in response to the letter he sent to Transport Canada the requested documents but never heard back from them, never received a certificate of registration, and forgot to follow up on this matter.

SUBMISSIONS

Mr. McFarlane for the Minister of Transport submitted that the Minister's evidence proved all elements of both charges. He pointed out that both offences alleged are strict liability offences, that is, they do not require intent. He submitted that a due diligence defence requires that the document holder take all steps that a reasonable person would do in the circumstances to prevent the commission of the offence. His view was that the 605.88(1) allegation was not a mere "paperwork" offence, but that required entries in the logbook in such matters are necessary to show that all steps have been taken to prevent the commission of an offence. Further, he pointed out that the last sentence of Appendix G, subsection (5), provides that "[a]t the first opportunity, the aircraft shall be inspected and a maintenance release shall be issued by an appropriately licensed AME", and that in this case, no entries in the journey logbook or technical logbook were made by an AME. He submitted that although Dr. Schoener was diligent mechanically and technically, the issue of required entries was substantially lacking. He also submitted that every member of the aviation community has a responsibility to comply with the regulations.

Mr. McFarlane stated that the Minister of Transport had followed the guidelines in their Aviation Enforcement Procedures Manual when establishing the $1,000 fines for each of the offences in this matter. He said the maximum fine for these offences is $5,000 each, which is normally reserved for third-time offences.

Dr. Schoener submitted that Chapter 549 of the Airworthiness Manual entitled him to do the required repairs following the prop strike. His view was that he was incorrectly being charged with failure to carry out the required inspection. He submitted that he had done the required inspection and had provided enough evidence to prove such. He pointed out that he was not charged with a mere failure to make a proper entry regarding the inspection.

Dr. Schoener stated that he had done everything he thought necessary to get the certificate of registration. He wondered why Transport Canada would not send him a reminder if they did not receive a response to their letter regarding the aircraft registration. He reiterated that he had informed Transport Canada of the change of ownership and had sent in $110 in response to their letter. He admitted he was "negligent" in not following up on this matter, but said it was merely a matter of forgetfulness.

In Dr. Schoener's view the fine levied for the alleged CARs 202.13(2) offence was absolutely excessive. He said he had undertaken a review of fines levied by the Transport Canada Enforcement Branch over the last two years, and in his view it was not right to have the fines so high for the offences alleged against him. I understood his view to be that the offences in this matter were merely "paperwork" offences and were therefore somewhat trivial compared to, for example, offences where a risk of collision was created.

Dr. Schoener also had the view that he had been misled by Mr. Curtain in that during his first conversation with Mr. Curtain, he thought that Mr. Curtain's investigation was to find out why C-GXGQ's engine had failed before it crash-landed near Whitehorse. Later, he formed the view that the intent of the investigation was merely to see whether he had missed out on some paperwork. I understood Dr. Schoener's view on this point to be as follows: Although Mr. Curtain gave Dr. Schoener a warning before receiving the logbook pages, it was unfair that Mr. Curtain did not specifically tell him that any papers provided could result in an investigation or charge that did not specifically relate to the engine failure.

THE LAW

Section 605.88 of the CARs:

605.88 (1) No person shall conduct a take-off in an aircraft that has been subjected to any abnormal occurrence unless the aircraft has been inspected for damage in accordance with Appendix G of the Aircraft Equipment and Maintenance Standards.

(2) Where the inspection referred to in subsection (1) does not involve disassembly, it may be performed by the pilot-in-command.

Aircraft Equipment and Maintenance Standards 625, Appendix G - Inspection after Abnormal Occurrences:

(1) Pursuant to Section 571.02, in the Canadian Aviation Regulations all maintenance shall be performed using the methods, techniques, practices, parts, materials, tools, equipment, and test apparatus specified by the manufacturer of the aeronautical product.

Information Note:

This appendix details the requirements for the inspection of aircraft after abnormal occurrences and gives general advice on the performance of such inspections.

(2) Aircraft are approved to operate within certain limits which are considered to constitute normal operation. If these limits are exceeded due to abnormal occurrences, or if the aircraft is exposed to some hazard or stress which was not catered for in the original design, the integrity of the structure or the performance of the powerplant(s) or systems could be impaired. Any report or evidence which indicates that approved limits have been exceeded, or that the aircraft may have sustained damage, shall necessitate an inspection to ensure that the aircraft is still airworthy. The following sections outline in general terms the inspections required after some of the more common occurrences. The procedures described are intended to supplement manufacturer's recommendations, or to cater for those instances where the manufacturer has not provided any detailed instructions. In case of any conflict, the manufacturer's instructions shall prevail. The procedures described are not intended to be complete, or to cover all circumstances. It is the responsibility of the person performing the inspection to assess the circumstances of each case and decide on the appropriate course of action. In doubtful cases, the nearest Transport Canada regional or district office can be consulted.

(3) The inspections detailed in this appendix shall usually be performed by a licensed Aircraft Maintenance Engineer (AME). In some cases, the nature of the work will be such that the involvement of an AME will be mandatory. This would be the case, for example, where some degree of disassembly was required. It is not possible, however, to state that an AME is required in all cases. Often, at the time of the occurrence, only the pilot of the aircraft is able to assess the severity of the incident or is available to decide the course of action. Some manufacturers recognize this by allowing for the inspection to be performed in two stages. To cater for situations when an AME is not available, the following procedure is recommended.

(4) Following any abnormal occurrence, including but not limited to those described in this appendix, an entry shall be made in the journey log describing the event. Where possible, the entry shall include some indication of the relative severity of the incident. Prior to the next flight, the aircraft shall be inspected, preferably by an appropriately licensed AME. If no AME is available, the inspection can be conducted by the captain of the aircraft. In this case, the inspection will of necessity be limited to those items which do not require a maintenance release (i.e. does not involve disassembly).

(5) If in the opinion of the captain, the condition of the aircraft is satisfactory for the intended flight, albeit without passengers, he/she shall make an entry in the log to that effect calling for a full inspection by an AME when available. The captain can then proceed, at his/her discretion, on the intended flight(s) until such time as the aircraft reaches a base where the required additional inspection can be performed. No special flight authority is required under these circumstances. At the first opportunity, the aircraft shall be inspected and a maintenance release shall be issued by an appropriately licensed AME.

(6) If in the opinion of the captain, the aircraft is unairworthy, or if the severity of the incident was such that even after a satisfactory preliminary inspection its airworthiness is in doubt, then the aircraft shall be inspected by an AME, and a maintenance release signed, before further flight.

(7) In the following sections, no attempt is made to differentiate between those actions which may be part of a pilot's preliminary inspection, and those which must be performed by an AME. This distinction will vary according to the type of aircraft and the severity of the incident, and will be primarily governed by the need for a maintenance release. Where there is any doubt regarding the airworthiness of the aircraft, certification by an AME shall be required prior to flight.

[...]

(13) Propeller and Rotor Strikes

Engines and transmission systems which have been shockloaded as a result of the propeller or rotor striking the ground or some object while the engine is running shall be inspected in accordance with the following paragraphs:
(a) A preliminary inspection shall be made of the blade itself and, if possible, of the object which was struck to aid in estimating the level of shock which can have been transmitted. It is not expected that an accurate assessment be made, but rather that the inspector shall form a general impression of whether the impact was severe or mild. If the level of impact is in doubt, it shall be assumed that a severe shock has been transmitted. In addition to a visual examination, the propeller or rotor shall be checked for correct tracking. Out of track limits shall be found in the appropriate maintenance manual but, as a general guide, a propeller which is out of track by more than 0.125 inch (3,18 mm.) is cause for further investigation. A visual inspection of the reduction gear case for oil leaks or cracks shall also be carried out.
(b) The need for further investigation will depend upon the results of the preliminary examination, and on the AME's assessment of the probability of further damage, based on the nature of the incident. If further investigation is indicated, the propeller shaft or flange shall be checked for eccentricity (run out check). Limits are those specified by the manufacturer. If the propeller shaft or flange is out of limits, an internal inspection shall be required. In the case of a geared piston engine this shall entail removal of the reduction gear for a check of the crankshaft run out. With a direct drive engine the crankcase shall have to be opened and checked for distortion, cracks or other damage. This check shall include the crankshaft damper assemblies. If the impact was severe, consideration shall also be given to the possibility of structural damage due to loads being transmitted through the engine mounts.
[...]

Subsection 101.01(1) of the CARs, definition of "airworthy":

"airworthy", in respect of an aeronautical product, means in a fit and safe state for flight and in conformity with its type design;

Section 549.01 of the CARs:

549.01 A person who intends to construct an aircraft and obtain, under paragraph 507.03(b), a special certificate of airworthiness in the amateur-built category in respect of the aircraft must
(a) before starting construction,

(i) inform the Minister of the intention to construct the aircraft,
(ii) show that the aircraft design meets the standards specified in Chapter 549 of the Airworthiness Manual, and
(iii) show that the major portion of the aircraft will be constructed from raw material and assembled on a non-commercial, non-production basis for educational or recreational purposes; and

(b) during construction and again before the first flight, make the aircraft available to the Minister for inspection.

Subsection 202.13(2) of the CARs:

(2) Except as otherwise authorized pursuant to subsection 202.14(1), 202.42(3) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

Subsection 103.02(2) of the CARs:

(2) Every person who
(a) is the holder of a Canadian aviation document,
(b) is the owner, operator or pilot-in-command of an aircraft in respect of which a Canadian aviation document, technical record or other document is kept, or
(c) has in possession a Canadian aviation document, technical record or other document relating to an aircraft or a commercial air service shall produce the Canadian aviation document, technical record or other document for inspection in accordance with the terms of a demand made by a peace officer, an immigration officer or the Minister.

DISCUSSION

605.88(1) Charge

Dr. Schoener did not dispute that the belly landing amounted to an abnormal occurrence within the meaning of section 605.88 of the CARs. Section 605.88 provides that following an abnormal occurrence, an aircraft must be inspected for damage in accordance with Appendix G, entitled "Inspection after Abnormal Occurrences". However, subsection 605.88(2) of the CARs provides an exception to 605.88(1): "Where the inspection referred to in subsection (1) does not involve disassembly, it may be performed by the pilot-in-command." Further, subsection (3) of Appendix G provides, in part, that "[t]he inspections detailed in this appendix shall usually be performed by a licensed ... (AME) ... It is not possible, however, to state that an AME is required in all cases...." These provisions may be seen to support the view that Dr. Schoener was entitled to inspect the aircraft himself after the belly landing of March 20, 1999.

However, in this case, Dr. Schoener testified that he removed the propeller of the aircraft. Removal of a propeller implies disassembly. My view is that this means that the inspection involved disassembly, within the meaning of subsection 605.88(2), and that therefore the 605.88(2) exception does not apply.

Further, in my view the 605.88(2) exception does not apply even if the requirement to remove the propeller could not be said to be a disassembly involved in the inspection. The word "inspection", as referred to in subsection 605.88(2), cannot be read alone. Rather, the word "inspection" refers to "[an inspection] for damage [done] in accordance with Appendix G". The word "inspection" therefore has a rather broad meaning. This becomes apparent when one reads the whole of Appendix G. The Appendix refers to much more than procedures for simple preliminary examinations of aircraft. It also refers to journey log entries, signed maintenance releases, AME certifications, and situations where inspections are required to be done in two stages.

Therefore, my view is that when one reads the word "inspection" in section 605.88 with knowledge of the contents of Appendix G, it becomes clear that 605.88(2) does not provide a clear and complete exception to 605.88(1). I find that the words contained in subsection (6) of Appendix G are specific and directly applicable to the circumstances of this matter. That paragraph provides "If in the opinion of the captain, the aircraft is unairworthy ... then the aircraft shall be inspected by an AME, and a maintenance release signed, before further flight." There is no doubt in this case that the initial inspection of the aircraft by the pilot-in-command led him to the conclusion that the aircraft was not airworthy within the meaning of the CARs definition, in that the aircraft was not "in a fit and safe state for flight" after the belly landing. Indeed, Dr. Schoener's evidence was that the repairs to the aircraft following the belly landing took one year. Dr. Schoener found it necessary to rivet an aluminum panel onto the underside of the fuselage. There was damage to the flap linkage. Most significantly, the propeller was seriously damaged to the point where it had to be removed and replaced. It makes sense that an AME's maintenance release would be required before further flight, when an aircraft suffers an accident that renders it no longer airworthy.

Dr. Schoener's evidence was that he did the aircraft inspection and repairs himself following the belly landing. He is not a licensed AME. There was no evidence that any licensed AME inspected the aircraft after the belly landing. Under cross-examination, Dr. Schoener admitted there were no entries in C-GXGQ's technical log made by a licensed AME. There was no evidence that any form of maintenance release was signed by an AME before C-GXGQ flew on July 30, 2000.

Chapter 549 of the Airworthiness Manual is entitled Airworthiness Standards for Amateur-Built Aircraft. That chapter sets out the design and construction standards that an applicant shall meet in order to satisfy the Minister that an aircraft is amateur-built. It also details the requirements for inspections necessary to obtain a Special Certificate of Airworthiness for amateur-built aircraft. I found nothing in that Chapter that would override the clear requirement of Appendix G that following an abnormal occurrence which renders an aircraft unairworthy, it must be inspected by an AME and a maintenance release signed by the AME prior to further flight.

Although CARs Standard 507, Flight Authority and Certificate of Compliance Standards, Appendix A, allows the builder of an amateur-built aircraft to certify it as airworthy in an Application for a Certificate of Airworthiness, in this case the Respondent did not build the aircraft himself; and in any case section 549.01 of the CARs also requires that during construction and again before the first flight of an amateur-built aircraft, the builder must make the aircraft available to the Minister for inspection. I could find nothing in these sections that would override the requirements of Appendix G.

The journey logbook for C-GXGQ showed that a take-off was conducted in C-GXGQ on July 30, 2000. The journey logbook showed that Dr. Schoener was pilot-in-command of that flight, and although no signature was made beside that entry, at the hearing Dr. Schoener did not dispute that it was he who conducted the take-off in C-GXGQ on July 30, 2000.

I find on all the evidence that the Minister has proved on a balance of probabilities the elements of the 605.88(l) offence as alleged.

202.13(2) Charge

The evidence proves that Dr. Schoener operated C-GXGQ on July 30, 2000, as owner and pilot, and that the aircraft was not registered. Dr. Schoener stated that it was a matter of forgetfulness that he did not ensure he had a valid certificate of registration for C-GXGQ. However, subsection 202.13(2) of the CARs is a typical regulatory provision in that it creates a strict liability offence: no intent to commit the offence is required. The Minister's evidence proves the CARs 202.13(2) offence.

Warnings

Dr. Schoener stated at the hearing that he felt misled by Mr. Curtain in their initial telephone conversation because he thought the logbook evidence he provided would be used only in relation to the October 2000 crash that Mr. Curtain was investigating at that time. It appears that when Mr. Curtain warned Dr. Schoener in their initial conversation, Mr. Curtain was also unaware that the logbook offences could give rise to different charges. However, Mr. Curtain's review of the information provided by Dr. Schoener led him to believe that unrelated offences had been committed by Dr. Schoener and so led Mr. Curtain to a further and different investigation. I find nothing in Mr. Curtain's actions or statements, or in his use of the evidence provided by Dr. Schoener, that would absolve Dr. Schoener of any liability or give rise to any argument that such evidence should not be used against him. Indeed, subsection 103.02(2) of the CARs requires Dr. Schoener to produce aviation documents upon demand of the Minister of Transport at any time.

Due Diligence Defence

Dr. Schoener did not specifically argue that he had any due diligence defence, but I have considered whether, on the evidence, such a defence could be made out to either of the charges in this matter. Mr. McFarlane correctly pointed out that a defence of due diligence requires that a person take all steps that a reasonable person would take to prevent the commission of the offence. With respect to the 605.88 offence, I believe that Dr. Schoener did think he was legally entitled to inspect and repair the aircraft as he did. However, I do not find on the evidence that he took all care to ensure that he did not commit the offence as alleged. He had fully a year to ensure he was complying with regulations, and I think it reasonable that following an accident and serious aircraft damage, a person who was not an AME would take steps to ensure he was complying with airworthiness regulations by, for example, seeking advice from Transport Canada as suggested in Appendix G (2). I also find no due diligence defence in respect of the 202.13 charge. Dr. Schoener took some steps to register his aircraft but operated his aircraft in spite of the fact that he did not have a certificate of registration. Not only should Dr. Schoener have made greater efforts to ensure his aircraft was registered, he ought not to have operated it on July 30, 2000 when he knew he did not have a certificate of registration for the aircraft. Forgetfulness does not amount to a due diligence defence. Flying an unregistered aircraft is as basic an error as driving an unlicensed car and to my mind shows a rather flagrant disregard for aviation regulation.

Sanctions

The Minister submitted that Aviation Enforcement Procedures Manual guidelines were followed in setting the fines at $1,000 for each of the two offences alleged. The maximum fine for each offence is $5,000, as set out in the schedule in Part I, Subpart 3 of the CARs. I find no arguments or circumstances in this case that would compel me to increase or decrease the sanctions levied by the Minister.

DETERMINATION

The Minister has proved both offences as alleged and the sanctions are confirmed.

Sandra K. Lloyd
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, E. David Dover, Keith Edward Green


Decision: September 3, 2002

We allow the appeal on the alleged offence of subsection 605.88(1) and dismiss the charge. Regarding the offence under subsection 202.13(2), we are not persuaded that the penalty should be lowered. The hearing member was in the best position to evaluate the parties' presentations and we will not interfere with her judgment. The total sanction of $1,000 is confirmed. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

An appeal hearing on the above matter was held Tuesday, June 25, 2002 at 10:00 hours at the Java Connection, in Whitehorse, Yukon.

BACKGROUND

Dr. Schoener was the pilot of an amateur-built aircraft C-GXGQ on October 8, 2000 when it crash-landed on the outskirts of Whitehorse, Yukon.

Transport Canada investigated the occurrence. A review of the journey log book revealed a prior flight of March 20, 1999, where the aircraft had been subjected to a belly landing and propeller strike. The journey log book showed that a new propeller had been installed at a later date.

The investigator was of the opinion that the flight of March 20th had been an "abnormal occurrence" within the meaning of section 605.88 of the Canadian Aviation Regulations (CARs). He felt that the section required an inspection of the aircraft to be made in accordance with Appendix G of the Aircraft Equipment and Maintenance Standards before the next flight. The log book revealed that the aircraft had flown after the abnormal landing but did not show the entry required by Appendix G of the Aircraft Equipment and Maintenance Standards. During the investigation it was also discovered that the aircraft was not registered.

Subsequently Transport Canada alleged that Dr. Schoener had violated subsection 202.13(2) of the CARs, operation of an aircraft when it was not registered, and subsection 605.88(1) of the CARs, conducting a take-off in an aircraft that had been subjected to an abnormal occurrence, when the aircraft had not been inspected in accordance with Appendix G of the Aircraft Equipment and Maintenance Standards.

The allegations were heard before a single member of the Tribunal on January 9, 2002 in Whitehorse Yukon. The member found that the minister had proved both of the offences and upheld the monetary penalty of one thousand dollars for each offence.

Dr. Schoener appealed that decision by way of letter dated March 21, 2002, which brings about this appeal hearing.

REASONS FOR APPEAL

The following is duplicated from the application for appeal received by the Tribunal.

This Review Determination is hereby appealed on the grounds that it contains a number of serious errors in law and the omission of pertinent regulations regarding the rights, responsibilities and privileges of the owner of an aircraft operating with a Special Certificate of Airworthiness - Amateur Built. The 'Discussion' found on pages 7 and 8 of the Review Determination focuses completely on Appendix G of Standard 625 entitled 'Aircraft Equipment and Maintenance', a secondary document. It does not take into account the provisions of CAR 571 entitled 'Airworthiness - Aircraft Maintenance Requirements', which presents the primary requirements for the performance and certification of ALL maintenance.

1) CAR 571.10, entitled 'Maintenance Release' requires that a Maintenance Release be signed by a person who is authorized under the law as competent to do so, for all maintenance performed on an aircraft. This release will certify that the work has been completed to the applicable standards of airworthiness.

2) CAR 571.11, entitled 'Persons Who May Sign a Maintenance Release' states that a Maintenance Release must be signed by an Aircraft Maintenance Engineer (AME), with a specific number of exceptions, one of which is CAR 571.11(2)(b). This exception states 'A person other than (an AME) may sign a maintenance release if, in the case of maintenance performed on an aircraft that is operated under a special certificate of airworthiness in the amateur-built classification, the person is the owner of the aircraft;

3) CAR 571.04, entitled 'Specialized Maintenance', defines certain highly critical maintenance as 'specialized maintenance', all of which is set out in Schedule II. This maintenance may not be performed, or released, by an AME, but must be so done by an 'Approved Maintenance Organization' with the exception of such work performed on an amateur-built aircraft. Included in the work listed as 'specialized maintenance' in Schedule II are all major repairs to the aircraft structure and to the aircraft engine. In the case of an amateur built aircraft all of this work may be performed and released by the owner of the aircraft.

4) CAR 571.02 specifies that the standards for maintenance on an aircraft are set by the manufacturer of the aircraft. In the case of an amateur built aircraft the manufacturer is the original builder of the aircraft. However as CAR 571.11 shows us, the authority to release all maintenance on amateur-built aircraft is transferred to the new owner of the aircraft once it leaves the hands of the original builder.

5) The provisions of the secondary document 'Standard 625, Appendix G', insofar as they specify who may do and release maintenance, conflict with those powers of the owner of an amateur-built that are granted under the Regulations themselves in CAR 571.

The Review Determination against Dr. Schoener does not, AT ANY POINT, address this conflict in law and thereby has resulted in an erroneous conclusion regarding the actions of Dr. Schoener in inspecting his aircraft after the abnormal occurrence, the dismantling which he engaged in and the repairs which he performed.

Dr. Schoener verbalized the above noted grounds of appeal. He also argued that regarding section 571.11 of the CARs (persons who may sign a maintenance release) there is no AME licence category specifying a rating appropriate to the aeronautical product being maintained, as in this case the product is an amateur-built aircraft.

Although not in the written grounds of appeal he also argued against the quantum of the penalty imposed regarding the CARs subsection 202.13(2) offence, stating that it was excessive in the circumstances. His review of other offences in publications showed lower penalties for more severe infractions.

The Respondent

Mr. Hector, on behalf of the Minister, replied that there was no conflict in the scheme of the legislation. The required signatory for inspections varied depending on the circumstances. He argued that section 605.88 of the CARs addresses inspections for damage after an abnormal occurrence. Section 605.85 addresses other than abnormal occurrences, when the aircraft has undergone inspection for maintenance.

He submitted that section 571.11 of the CARs provides that persons signing a maintenance release may be an AME (1) or the owner (2)(b) if the aircraft is in the amateur-built classification. But the "let" regarding the amateur-built classification provided in section 571.11 of the CARs applies only for the maintenance release required pursuant to section 605.85, normal maintenance.

The "let" regarding the owner's qualification to sign a maintenance release is intentionally absent in section 605.88 of the CARs as it deals with abnormal circumstances. The hearing officer had found the belly landing and prop strike to be an abnormal occurrence. Therefore Appendix G of the Aircraft Equipment and Maintenance Standards would apply as it is incorporated by reference. In his view the appendix to the applicable sections makes inspection and release by an AME mandatory. As the member had come to the same conclusion there was no error at review. The appeal should be denied.

Regarding Dr. Schoener's penalty argument, he maintained that one could not look to the other cases for guidance without knowing the specifics of those cases. One must know whether there had been mitigating or extenuating circumstances to understand the rationale for the amount of the penalty. It was within recommended guidelines and was upheld by the hearing member so should not be reduced at the appeal.

THE LAW

In section 3 of the Aeronautics Act:

"aeronautical product" means any aircraft, aircraft engine, aircraft propeller or aircraft appliance or part or the component parts of any of those things, including any computer system and software;

In section 101.01 of the CARs:

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

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

"repair" means the rectification of deficiencies in an aeronautical product or the restoration of an aeronautical product to an airworthy condition;

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

Subsection 605.85(1) of the CARs:

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

Section 605.88 of the CARs:

605.88 (1) No person shall conduct a take-off in an aircraft that has been subjected to any abnormal occurrence unless the aircraft has been inspected for damage in accordance with Appendix G of the Aircraft Equipment and Maintenance Standards.

(2) Where the inspection referred to in subsection (1) does not involve disassembly, it may be performed by the pilot-in-command. [emphasis added]

Section 571.10 of the CARs:

571.10 (1) No person shall sign a maintenance release required pursuant to section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

(2) Except as provided in subsection (4), a maintenance release shall include the following, or similarly worded, statement:
'The described maintenance has been performed in accordance with the applicable airworthiness requirements.'

[...]

(4) Where a person signs a maintenance release in respect of maintenance performed on an aircraft, the satisfactory completion of which cannot be verified by inspection or testing of the aircraft on the ground, the maintenance release shall be made conditional on the satisfactory completion of a test flight carried out pursuant to subsections 605.85(2) and (3), by the inclusion of the phrase 'subject to satisfactory test flight'.

[...] [emphasis added]

Section 571.11 of the CARs:

We note that both Dr. Schoener's grounds of appeal and the Minister's presentation at the appeal refer to the following wording:

571.11 (1) Except as provided in subsections (2) and (7), no person other than the holder of an aircraft maintenance engineer (AME) licence issued under Part IV, specifying a rating appropriate to the aeronautical product being maintained, shall sign a maintenance release as required by section 571.10.

(2) A person other than a person described in subsection (1) may sign a maintenance release if
[...]
(b) in the case of maintenance performed on an aircraft that is operated under a special certificate of airworthiness in the amateur-built classification, the person is an owner of the aircraft; [emphasis added]

However, that version of section 571.11 came into effect on December 1, 2000. As the alleged violation occurred on July 30, 2000, we must refer to the section in force at that time. The pertinent section reads:

571.11 (1) Except as provided in subsections (2) and (4), no person other than the holder of an aircraft maintenance engineer (AME) licence issued pursuant to Part IV, specifying a rating appropriate to the aeronautical product being maintained, shall sign a maintenance release in accordance with Chapter 571 of the Airworthiness Manual.

(2) A person other than a person described in subsection (1) may sign a maintenance release where
[...]
(b) in the case of maintenance performed on an amateur-built aircraft, the person is an owner of the aircraft; or

The section provides an exception from the requirement for an AME to have signed a maintenance release. In the case of maintenance on an amateur-built aircraft, the person who is the owner may sign a maintenance release.

The gist of the section did not change with the December 1, 2000 amendment. That amendment gave effect to the "special certificate of airworthiness in the amateur-built classification" which is currently in place.

DISCUSSION

Ratings

Dr. Schoener submitted that there was no AME licence category specifying a rating appropriate to the aeronautical product being maintained as the product in this case is an amateur-built aircraft. However, Chapter 566 of the Airworthiness Manual (Aircraft Maintenance Engineer Licensing and Training Standards) provides:

566.03 [...]
(8) Ratings.
(a) The scope of maintenance release privileges will be indicated by rating designators entered on the licence, as follows:

(i) M1: Non-turbojet aircraft built to CAR 522, 523, 527, 549 and equivalent standards (includes all airframe, engines, propellers, components, structures, and systems of those aircraft).

Chapter 549 of the Airworthiness Manual provides the airworthiness standards for amateur-built aircraft. As the aircraft here is propeller driven, i.e., non-turbojet, built to CARs 549 standards a licensed AME with an M1 rating would have maintenance release privileges for it. We therefore dismiss that portion of the Appellant's argument.

Releases

The basic premise of the Minister's argument is that the plain reading of the sections shows that the "let" in section 571.11 of the CARs, allowing an owner to release an aircraft in the amateur-built category, applies to a maintenance release required by section 571.10. That section then states that the release is one required pursuant to section 605.85 of the CARs.

The Minister argues that the owner's privilege to sign a maintenance release is, by wording of the section, restricted to a release required by section 605.85. As the allegation is under section 605.88 of the CARs, that "let" is intentionally absent there. He contends that Appendix G referred to in section 605.88 clearly states the requirement for an AME's release. It is absent, he contends, because 605.85 pertains to normal maintenance, but here there has been an abnormal occurrence which requires the attention of an AME.

We believe that is an incorrect interpretation of the regulatory scheme. In essence it would establish a requirement for more than one type of release. That is, one pursuant to 605.85 and one (or more) for other than section 605.85.

Section 605.85 is the section pursuant to which all maintenance releases are required. That can be seen by reading of the definitions in conjunction with the sections.

The airworthiness requirements of the regulations are embodied in Part V of the CARs. Chapter 571 of the Airworthiness Manual addresses maintenance. A maintenance release is an airworthiness requirement and thus is found in Chapter 571 at section 571.10.

Part VI of the CARs states the general operating and flight rules requirements. Subpart 5, Division III contains aircraft maintenance requirements. Section 605.85 addresses maintenance releases and elementary work and thus has a direct relation to section 571.10. In fact section 605.85 refers to section 571.10 and vice versa.

The term "maintenance" includes required inspection, repair and the removal and installation of components. "Repair" is further defined as the rectification of deficiencies in an aeronautical product or the restoration to an airworthy condition.

Following maintenance, a maintenance release is required. The definitions provide that a maintenance release means a certification made following the maintenance of an aeronautical product. The section that stipulates that a certification is required is section 605.85. It provides that no person shall conduct a take-off where the aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10. [emphasis added]

The definition of maintenance release also states that the release is to indicate that the maintenance was performed in accordance with the applicable provisions of the regulations and the standards of airworthiness. Section 605.85 had referred us to section 571.10, and it is there that the applicable provisions of the regulations and standards of airworthiness are found. It states that no person shall sign a maintenance release required pursuant to section 605.85, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with. Additionally the maintenance release itself must meet the requirements specified in section 571.10 of the Airworthiness Manual. Subsection 571.10(2) provides sample wording for the release.

As can be seen, sections 605.85 and 571.10 are closely interrelated and together give fruition to the definitions of the terms maintenance and maintenance release.

As a further illustration, what sort of a release would be required if, after maintenance due to an abnormal occurrence, the results of the maintenance could not be verified without a test flight? The answer is not found in Appendix G of the standards pursuant to section 605.88. One must refer back to the interaction of sections 571.10 and 605.85 of the CARs. Subsection 571.10(4) provides that the release shall be made conditional on the satisfactory completion of a test flight carried out pursuant to subsections 605.85(2) and (3), by the inclusion of the phrase "subject to satisfactory test flight". Following a satisfactory test flight, the pilot-in-command enters the results in the journey log, which completes the maintenance release.

The relation of the sections shows that 605.85 is the section that makes it mandatory, where the aircraft has undergone maintenance, to have had the maintenance certified by the signing of a maintenance release before the aircraft is flown. There are no words of limitation. It does not say "except where the aircraft has undergone maintenance after an abnormal occurrence." If maintenance is performed on an aircraft that was subject to an abnormal occurrence, the requirement for a maintenance release is that provided by section 605.85. One does not have to read into the tertiary legislation of an appendix for a requirement clearly stated in a regulation.

The Minister stated that Appendix G was incorporated by reference, a point with which we agree. But the Minister does not mean that the requirement of section 605.85 is incorporated by reference into Appendix G as he has argued the contrary. He has stated that the "let" in section 571.11 of the CARs applied only to a release required by section 605.85. If that section were incorporated by reference into section 605.88, the "let" would have to apply as well, and he argues strenuously against that.

THE ISSUE

The hearing member found there was a clear requirement in Appendix G that following an abnormal occurrence which rendered an aircraft unairworthy, it must be inspected by an AME and a maintenance release signed by an AME prior to further flight. The Minister, at review and appeal sought to support that finding.

The issue is then whether section 605.88 of the CARs imports the requirement for a maintenance release to be signed by an AME before further flight. We find that it does not.

By including such a requirement, the Minister has stepped outside of section 605.88.

Section 605.88 of the CARs makes it an offence to conduct a take-off in an aircraft that was subjected to an abnormal occurrence unless the aircraft was inspected for damage in accordance with Appendix G. Dr. Schoener did inspect and repair the aircraft after the abnormal occurrence.

The allegation as stated and argued would incorporate an AME's signature in Appendix G; we have found it does not.

Section 605.85 of the CARs makes it an offence to conduct a take-off in an aircraft where the aircraft has undergone maintenance, unless the maintenance was certified by the signing of a maintenance release. The inspection and repair by Dr. Schoener were by definition maintenance. It is common ground that no one signed a maintenance release. Dr. Schoener then conducted a take-off in the aircraft after it had undergone maintenance, when the maintenance was not certified by the signing of a release.

Those facts fit precisely the circumstance contemplated by section 605.85 of the CARs rather than section 605.88. The allegation has been brought under the wrong section.

On that basis we would allow the appeal on the section 605.88 offence and dismiss the charge.

Regarding the offence under subsection 202.13(2), operation of an aircraft when not registered, we are not persuaded that the penalty should be lowered. The hearing member upheld the allegation, and in doing so she stated that flying an unregistered aircraft showed a flagrant disregard for aviation regulation. She was in the best position to evaluate the parties' presentations, and we will not interfere with her judgment.

Reasons for Appeal Determination by:

Mr. Allister Ogilvie, Vice-Chairperson

Concurred:

Mr. E. David Dover, Member
Mr. Keith Green, Member