Decisions

CAT File No. W-2526-41
MoT File No. SAP-5504-46138

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

L & R Aircraft Repairs, Respondent

LEGISLATION:
Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 571.10(1)


Review Determination
Keith Edward Green


Decision: February 26, 2003

I find that the Minister has proved on a balance of probabilities that L & R Aircraft Repairs did contravene subsection 571.10(1) of the Canadian Aviation Regulations. However, in the circumtances, I reduce this monetary penalty to $1,250.00. 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 Thursday, October 24, 2002 at 10:00 hours, at the Watson Lake Recreation Complex in Watson Lake, Yukon.

BACKGROUND

L & R Aircraft Repairs is a small aircraft maintenance organisation (AMO) located close to the town of Watson Lake, in the Yukon Territory. The AMO (114-91) was brought to the attention of Transport Canada regarding a Cessna 185 aircraft. This aircraft, registered as C-FILD, is owned and operated by Mr. Russell Cummins. Initially, Mr. Cummins contacted Transport Canada (Jim Tomlin) requesting a list of three certified AMOs within the Whitehorse area that might be able to inspect and repair his aircraft. Rodan Air Maintenance was selected accordingly to perform the requested maintenance. While C-FILD was at Rodan Air's facilities, Transport Canada conducted their own inspection of the said aircraft and subsequently grounded it.

Mr. Russell Cummins sent a handwritten facsimile to Transport Canada, advising he was going to take action against L & R Aircraft Repairs for not providing satisfactory maintenance on his aircraft. Mr. Cummins also informed the Minister that he would like to file a complaint. A copy of the letter faxed to Mr. Muffitt (Transport Canada) was provided as Exhibit M-1. Transport Canada's inspection of C-FILD revealed several significant discrepancies pertinent to the aircraft's technical records. It is on these grounds the Minister decided to pursue a contravention of subsection 571.10(1) of the Canadian Aviation Regulations (CARs).

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):

[...]

SCHEDULE "A"

Vicarious Liability: Aeronautics Act, section 8.4(4)

OFFENCE #1 – CARs 571.10(1)

On or about the 17th day of June 2001, at or near Watson Lake, Yukon, you did sign a maintenance release, on an aircraft, to wit a Cessna 180, Canadian registration C-FILD, required pursuant to section 605.85 of the Canadian Aviation Regulations, when the maintenance release did not meet the applicable requirements specified in section 571.10 of the Airworthiness Manual, more specifically, you failed to document maintenance performed on engine mounts, circuit breakers, failed to document part numbers and serial numbers for a throttle cable change, and float change, and failed to document outstanding defects into the Journey Logbook, all occurrences are a violation of section 571.10(1) of the Canadian Aviation Regulations.

MONETARY PENALTY - $2,500.00

PREAMBLE

The Member's opening address was concluded with an application dated August 30, 2002 and forwarded by the Minister to the Tribunal to amend the Notice of Assessment of Monetary Penalty. The motion requested the document holder, documented as "L & R Aircraft Maintenance" be correctly amended to reflect the company's true legal identity; "L & R Aircraft Repairs".

The Minister reasoned that the error was an administrative oversight and had no effect on the substance of the notice of monetary penalty. Finding no legal reason to invalidate the request and with no objection from the document holder, the Hearing Officer granted the motion.

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.

Subsection 571.10(1) 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.

Subsection 571.10(2) of the Airworthiness Manual:

(2) Maintenance Release Record Keeping

(a) A maintenance release applies only to the particular maintenance task or tasks to which it relates. Therefore:

(i) it is acceptable to sign a maintenance release in respect of a single task or group of tasks, even if other work is outstanding on the aircraft, provided that the wording of the entry leaves no doubt as to the scope of work being certified; and

(ii) it is the responsibility of the person signing a maintenance release to ensure that the technical record is correct in respect of the status of any outstanding task.

(b) Each maintenance release must include the following information:

(i) product identification (aircraft registration marking, nomenclature, type/model number, name of manufacturer, part number, and serial number), unless the release is being made in an established Technical Record that contains this information;

(ii) a brief description of the work performed, including applicable reference data, when the reference data is not included in the maintenance publications of the manufacturer, and the work order number; and

[...]

Subsection 8.4(4) of the Aeronautics Act:

(4) The operator of an aerodrome or other aviation facility may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aerodrome or facility for which another person is subject to be proceeded against unless the offence was committed without the consent of the operator of the aerodrome or facility and, where found to have committed the offence, the operator of the aerodrome or facility is liable to the penalty provided as punishment therefor.

THE MINISTER'S CASE (Applicant)

The Minister opened his case by calling the witness Mitch Paulhus, a civil aviation safety inspector — Aviation Enforcement, Transport Canada.

Mr. Paulhus informed the Tribunal that a letter was sent by the aircraft owner (Mr. Russell Cummins), incorporating several complaints regarding L & R Aircraft Repairs. The letter contained two invoices numbered 2453 (dated January 13, 2001) and 2487 (dated May 27, 2001). The documents were entered as Exhibit M-1.

Exhibit M-2 was a faxed copy of the aircraft journey logbook for aircraft C-FILD. It was noted by the Minister that the exhibit was a facsimile, being the best evidence available. Exhibit M-2 contains a maintenance release dated June 17, 2001 which reads in part: "June 17/01 100 hr. inspection completed as per Cessna ..."

The logbook entry was written and endorsed for L & R Aircraft Repairs (AMO 114-91) by Mr. Leo Wilfred Dionne, who, as an authorized aircraft maintenance engineer (AME) (M131199) was L & R Aircraft Repairs' signing authority. Mr. Dionne's signature appears on page 4 of M-2, correlating to page 88 of the aircraft journey logbook. Mr. Dionne's signature is succeeded by his licence number and L & R Aircraft Repairs' AMO number — AMO 114-91. It was explained to the Tribunal that when the AMO number is entered after the endorsing signature, it indicates that the person is signing on behalf of the AMO. With respect to the maintenance release endorsed by Mr. Dionne, the Minister asked the witness if the maintenance release met the required criteria for a release. The witness replied that it did not.

Exhibit M-4 is a copy of the L & R Aircraft Repairs maintenance policy manual (MPM). Within this document are found the policy and procedures followed by L & R Aircraft Repairs in regard to performing maintenance on aircraft. It is a document written by the company describing how an AMO will comply with the CARs in respect to aircraft maintenance. Exhibit M-4, section K – Task Completion System (Ref. page 9 bullet 4), contains the following provision:

Any person authorized to release work on behalf of L and R Aircraft Repair will, before making such release, review the Work Order pertinent to the task, in order to verify that the logbook entries describing the work are accurate and complete and that all sub-tasks have been accounted for. [emphasis added]

Exhibit M-5 contains a copy of an "Additional Work" sheet describing additional work as performed on C-FILD from June 6, to June 17, 2001. In total, there are eleven items listed on the additional work sheet, of which, the Minister has highlighted only one item — number eleven, which reads under the column titled "Description" "new throttle cable [...]" the last word being indecipherable. Next to this entry is another column titled "Action" and under this title, is the verb "installed". The witness noted that there was no part number for the installation of the throttle cable recorded at item eleven. The person(s) responsible for completing the discrepancy initialled all recorded items listed on the additional work sheet. The verification and record of accomplishment can be observed at the bottom of the discrepancy sheet and is that belonging to Mr. Dionne who, as the release authority, accompanied his endorsement with a record of his AME licence number and the AMO number. There is no date of accomplishment recorded on the document other than a generic date of June 6 – 17, 2001.

Referring to the additional work sheet, the Minister asked the witness, "Is this a technical log in itself?" To which the witness responded, "it could be considered a part of the technical record of the aircraft". The witness continued that the proper handling of that record should have been to attach it to the journey log sheets or technical records and keep it with the aircraft for reference. When asked if this was what had occurred, the witness responded in the negative.

The Minister introduced Exhibit M-6, a compiled reference of the applicable CARs and Airworthiness Manual standards containing various excerpts relevant to the case. The witness was asked to read several passages from the CARs and Airworthiness Manual as provided in M-6. One significant passage read aloud was paragraph 571.10(2)(b) of the Airworthiness Manual which states in part:

(b) Each maintenance release must include the following information:

(i) product identification (aircraft registration marking, nomenclature, type/model number, name of manufacturer, part number, and serial number), unless the release is being made in an established Technical Record that contains this information;

The Minister asked the witness to clarify what this passage meant in respect to the requirements of a maintenance release. The witness elaborated: most of the required information is established in the front of a journey logbook and therefore is not required to be repeated (included) in a maintenance release; therefore, the only remaining criteria would be the part number "and if applicable a serial number of the parts themselves ...." In order to clarify the requirement of subparagraph 571.10(2)(b)(i) of the Airworthiness Manual and to emphasize its importance to the case, the Minister queried the witness: "other than those things that are generic to the front cover of a logbook, they [referring to a maintenance release] definitely require a part number, they definitely require a serial number." The witness responded in the affirmative.

The witness was requested to cite subparagraph 571.10(2)(b)(ii) of the Airworthiness Manual:

(ii) a brief description of the work performed, including applicable reference data, when the reference data is not included in the maintenance publications of the manufacturer, and the work order number; and

[...]

The witness informed the Tribunal that the conditions required in subparagraphs (i) and (ii) of the above standards were not met in the journey logbook release as provided by the document holder, in that it did not include a part number and that there was no reference in the release to any work order number that may have included more information.

Mr. Paulhus informed the Tribunal that M-7 was a copy of a facsimile sent to Mr. Leo Dionne requesting clarification on the applicable June 17, 2001 journey logbook entry and the defect/additional work sheet. Accordingly, Mr. Dionne contacted Mr. Paulhus by telephone, providing the requested information. Although Mr. Paulhus advised Mr. Dionne that the information could be used against him, Mr. Dionne cooperated completely. During the course of the telephone conversation, Mr. Paulhus recorded notes which were subsequently offered by the Minister as Exhibit M-8.

Exhibit M-8 explains the journey logbook release:

100 hr insp completed as per Cessna check sheet for an annual as per CAR 625.86 appx. B & C eng. S/N 4926 removed. Eng. S/N 133563-7-R installed and O/H by Okanogan aero engine. New throttle cable installed and tach checked. Compass swung and float barrel. L/H 598 R/H 597.

The witness testified he was satisfied with the verbal interpretation of the journey log entry and its accuracy, but he was not satisfied the entry met the criteria for compliance to a maintenance release. This, in part, was due to the absence of any specific part numbers noted for either the engine, throttle cable or float barrels.

The Minister reviewed the evidence and in so doing referred Mr. Paulhus to invoice 2487, asking him if he had found part numbers or serial numbers for the maintenance performed. Mr. Paulhus testified that there was no part number and in this case, "a serial number would most likely not apply to a throttle cable". The same question was posed with regard to the float installation, which as Mr. Paulhus explained, did not meet the criteria for a maintenance release with regard to writing down the part number.

The Minister reiterated that Mr. Paulhus had indicated a failure to document outstanding defects, as listed initially in M-5 (additional work sheet dated June 6 - 17, 2001), into the journey log. Mr. Paulhus confirmed the Minister's supposition and added when asked if recording such details in a journey log was a requirement; he confirmed that it was.

Cross-examination of the Minister's Witness

Mr. Angus Cumming commenced his cross-examination of the Minister's witness by requesting Mr. Paulhus read a passage from invoice 2453 as entered in M-1, under the section titled "Aircraft Repair Order". The significant text quoted by Mr. Paulhus read, "Quote Last Winter – should be very well on the number. Russ Rene." Mr. Cumming then drew the witness's attention to the date of that document, "Jan 13/01", while comparing the recorded date of the second invoice (2487) "May 27/01 – June 12/01". Mr. Cumming further queried Mr. Paulhus as to whether invoice 2453 was in fact a quote, Mr. Paulhus responded "yes." To confirm his answer, Mr. Cumming rephrased his question, "so in fact, this is not an invoice; it is a quote?" The witness responded with "exactly". After additional questioning, Mr. Paulhus confirmed there was no need to enter any quote into a logbook.

Mr. Cumming questioned Mr. Paulhus as to why he had not provided a Transport Canada certified true copy of the journey logbook instead of a facsimile of a faxed copy? The witness responded that he was satisfied with the copy provided and that, even though the owner was asked to provide the journey log, the distance involved was too excessive to pursue it further, being a considerable expenditure.

Mr. Cumming queried a prior statement Mr. Paulhus had made concerning the defect sheet(s) not being attached to the logbook. Mr. Paulhus was asked where he had obtained this information. He responded that he had been contacted by the aircraft owner and asked if he could provide the 100-hour inspection sheets and any other sheets applicable to his aircraft, as he (the owner) did not have any of those documents. Mr. Cumming then emphasized that L & R Aircraft Repairs must therefore have provided the sheets in the logbook when it left the hangar.

Re-examination of the Minister's Witness

The Minister asked Mr. Paulhus if there was any reference to invoice 2487 in the journey log being quoted as a work order. The witness responded in the negative. The Minister then hypothesized that the invoice could have been taken as a work order; in which case, it would have been referenced in the applicable technical record. The witness concurred.

THE DOCUMENT HOLDER'S CASE (Respondent)

The document holder requested permission to call Mr. David Hilchie as an expert witness. The Minister raised an objection. The Tribunal Member decided not to allow the expert witness to testify. The document holder then decided to call Mr. Hilchie of Transport Canada, Civil Aviation, as his witness.

Examination of the Document Holder's Witness

Mr. Cumming asked Mr. Hilchie if he had worked with Mr. Dionne. Mr. Hilchie, who is a civil aviation safety inspector — Aircraft Maintenance & Manufacturing, Transport Canada, responded that he had, and Mr. Dionne had worked for him when he was the chief engineer of another company and described Mr. Dionne as an exceptionally good engineer, very thorough, very knowledgeable, and hard working.

Mr. Cumming questioned Mr. Hilchie on what his practice as an AME would be regarding the requirements of subparagraph 571.10(2)(b)(i) of the Airworthiness Manual, i.e., those requirements pertaining to part numbers and serial numbers. Mr. Hilchie responded by stating that unless it was particularly pertinent, or for some other specific reason, he would not normally enter the part number and/or serial number. He elaborated: other types of accompanying documents are also retained as technical records, which can be referenced for future clarification. Mr. Hilchie went on to state that there has to be a reason to write a part number down, adding that there is no point in repeating things, writing things in logbooks and "filling them up with useless information".

THE ARGUMENTS

The Applicant

The Minister summarized his argument as follows:

  • The sections of the CARs and Aeronautics Act under which the allegation was pursued, i.e., subsections 571.10(1) of the CARs and 8.4(4) of the Aeronautics Act.
  • The alleged offence being a maintenance release of an aircraft and the date it occurred — June 17, 2001.
  • Identification of the aircraft type (Cessna 180) and the registration — C-FILD.
  • Failure to document maintenance performed on engine mounts, circuit breakers, and failure to document part numbers and serial numbers for a throttle cable change and float change.
  • Failure to document outstanding defects into the aircraft journey logbook.
  • Review of exhibits as presented by the Minister's witness, Mr. Paulhus.

The Minister explained to the Tribunal that on a previous occasion, as documented in Exhibit M-9, the Minister had provided guidance to L & R Aircraft Repairs with respect to the requirements of a maintenance release within a technical record. The Minister perceived this guidance material (audit findings and corrective action) as a corroboration to defeat the defence of due diligence.

The Respondent

According to Mr. Cumming, all the work completed on C-FILD was accomplished at the request of the owner. Apparently, L & R Aircraft Repairs do not do any maintenance planning, as this is considered the sole responsibility of the aircraft owner. Mr. Cumming argued that all the work was completed as the release states — in accordance with the applicable standards of airworthiness.

Evidently, a revision to the MPM was provided to Transport Canada over three years ago, to which there has been no response. Mr. Cumming insinuated the owner was difficult to deal with, not wanting to spend money on his aircraft and refusing to authorize any work beyond the very lowest level of minimum compliance. As a result, the annual inspection certified on June 17, 2001 was only able to verify the lowest standard of compliance that would allow the aircraft to operate safely, as a private aircraft, until the next annual inspection was accomplished.

The aircraft, as the Tribunal was informed, was not under a maintenance schedule. It was not a commercially registered aircraft; it was private. Mr. Cumming emphasized during his argument that the discrepancy list was placed in the journey log and that it was the pilot's responsibility to have checked it was there, prior to departure. With respect to the discrepancy list, Mr. Cumming informed the Tribunal there were more than 100 flights made, equating to over 55 hours of flying time, before Transport Canada got to the aircraft which was "signed" out every day. During this time, the pilot noted not "one" defect in the logbook.

Mr. Cumming commented on the absence of the three airworthiness directive (AD) entries in the journey log, Mr. Cumming's stance being, "the owner should have picked up on this". In other words, if they were not recorded, the owner should have said something to that effect, before departure. Again, Mr. Cumming stressed the defect sheets and the check sheets were in the logbook when the aircraft left the hangar. Mr. Cumming argued that the technical records requested by Transport Canada were provided to Transport Canada by means of another AMO in Whitehorse. Mr. Cumming's point being documents must have reached the third party via the pilot or the owner of C-FILD.

Mr. Cumming stated that L & R Aircraft Repairs was accused of not writing ADs into the journey logbook. Mr. Cumming said that he could find no regulation that required ADs to be entered into the journey logbook. The only reference he could find was in Schedule II to section 605.96 of the CARs, which required ADs to be entered into the technical record for an airframe, engine, propeller or component. Mr. Cumming stressed this is what L & R Aircraft Repairs had done. They had written them into the Green airframe logbook, which is the record for recording installations, modifications, ADs, SBs, etc.

Mr. Cumming argued that L & R Aircraft Repairs was charged with failing to provide details of maintenance into the journey logbook, reiterating that he was unable to find any regulation providing what details of maintenance should be entered into any of the aircraft technical records. The regulations consulted by Mr. Cumming were: section 571.03 of the CARs, specifically paragraph 571.03(1)(b) (recorded maintenance), and subparagraph 571.10(2)(b)(ii) (maintenance release) of the Airworthiness Manual. Both of the CARs/Airworthiness Manual references require only a brief description of the work performed. Mr. Cumming explained that L & R Aircraft Repairs' interpretation was not every part number need be entered into a logbook, this being standard industry practice.

Mr. Cumming explained that L & R Aircraft Repairs was charged with failing to record part numbers and serial numbers for a throttle cable, circuit breaker(s) and engine mounts (isolators). Mr. Cumming explained that, to his knowledge, part numbers for Class Three Parts[1] are not required to be recorded and as such, are not part of the brief description of work. However, the shipping and certification documents which come with these parts are put into the technical logs. There was no replacement of any circuit breaker(s), and the throttle cable is a type of part that never has a serial number assigned.

Mr. Cumming considered the Minister's allegation regarding L & R Aircraft Repairs' failure to document outstanding defects in the journey logbook, being a non-compliance with section 571.10 of the Airworthiness Manual. The only reference Mr. Cumming was able to identify was in subparagraph (2)(a)(ii) of the Airworthiness Manual, which states:

(ii) it is the responsibility of the person signing a maintenance release to ensure that the technical record is correct in respect of the status of any outstanding task.

Mr. Cumming stressed to the Tribunal that this section does not support the allegation made by Transport Canada. Mr. Cumming explained that all outstanding tasks on this aircraft were documented in accordance with section 571.03 of the Airworthiness Manual "Recording of Maintenance [...]", which states:

(1) A person who performs maintenance [...] on an aeronautical product shall ensure that the following information is recorded in the technical records, established in accordance with Subpart 605 of the CARs [...]

which further states in paragraph (g):

(g) where a task is partially completed, a general description of any outstanding work, including the specific location of any parts/systems that have been disturbed, is to be recorded. Where the open work lists, inspection sheets or job cards used to accomplish the work clearly indicate any outstanding work, they are acceptable for meeting this requirement [...]

Therefore, the defects that were found as a result of the annual inspection completed by L & R Aircraft Repairs (June 17, 2001), which the owner chose not to have repaired, were noted on L & R Aircraft Repairs' additional work sheet.

ANALYSIS

As with most regulatory offences covered under the Aeronautics Act, the case involving L & R Aircraft Repairs is a strict liability offence. Once the Minister has proved the elements of the offence on a balance of probabilities, the evidentiary burden shifts to the alleged offender to prove due diligence was exercised to prevent the contravention.

The Minister's case is L & R Aircraft Repairs contravened subsection 571.10(1) of the CARs; namely L & R Aircraft Repairs failed to document maintenance performed on engine mounts, circuit breakers, failed to document part numbers and serial numbers for a throttle cable change, and float change, and failed to document outstanding defects into the journey logbook.

To understand the contravention in its entirety, it must be separated into four principal omissions:

1) failed to document maintenance performed on engine mounts

2) failed to document maintenance performed on circuit breakers

3) failed to document part numbers and serial numbers for a throttle cable change, and float change

4) failed to document outstanding defects into the journey logbook

I will discuss each omission as follows:

1) failed to document maintenance performed on engine mounts

Exhibit M-1 contains two documents: "invoice 2453 dated Jan 13/01" and "invoice 2487 dated May 27/01 – June 12/01". Although both documents reference engine mounts, invoice 2453 is marked as a "quote" and as such, I am firmly convinced that was its design purpose; therefore, I am prepared to offer it nominal weight. The other invoice (2487) is very clearly an invoice; therefore, can an invoice be considered a "technical record"?

I find the information contained within this exhibit is ambiguous with regard to the actual work performed and the subsequent recorded maintenance release as provided in M-2, without further substantiating evidence.

Additionally, invoice 2487 was dated and presumably prepared between May 27 and June 12, 2001, whereas the release was provided on June 17, 2001. Not a problem in itself, but one raising concern, considering there are other discrepancies on the document; specifically the word "bus". The Minister's witness, while under cross-examination, was asked if he knew what "bus" meant? Mr. Cumming informed Mr. Paulhus that "bus" referred to the shipping charges and "bus" was the conveyance and not as apparently assumed, a "bus cable". Whether this was an unreasonable assumption by the Minister due to the next entry recording "1/8 cable 8½ feet 7 x 19" is irrelevant. With regard to this cable, one can only wonder why the Minister opted to make little issue concerning its reference. Accordingly, I give document 2487 only marginal weight.

Additionally, M-4 is a copy of the MPM of L & R Aircraft Repairs. The manual describes how L & R Aircraft Repairs conducts its maintenance activities with regard to the CARs. The MPM is a contract between the document holder and the Minister, which the company uses foremost as a means of compliance to the regulations being approved by the Minister for such purposes. Exhibit M-4 describes L & R Aircraft Repairs' means of compliance to the CARs; it lists what company documents/forms and technical records will be utilized by L & R Aircraft Repairs to record maintenance activities and to enter maintenance releases.

On page 8 of the MPM (second bullet) is a reference to a company work order form described as D.I.B.R. #2. The L & R Aircraft Repairs invoice (ref. 2487) is not an approved company work order as there is no reference to the D.I.B.R. #2 on the invoice. Therefore, an invoice with respect to L & R Aircraft Repairs is merely an accounting document and not a technical record. Considering the above notation, referencing invoice 2487 as a "proof of work accomplished" is extremely limited, and at best, merely an indication of possible work. In this instance, the Minister failed to prove that any invoice utilized by L & R Aircraft Repairs is the same document described, referenced and approved within the company MPM as a work order, namely D.I.B.R. #2.

Exhibit M-2 , although extremely poor and not a certified true copy, is a true copy of C-FILD's journey logbook. As such, it contains a maintenance release written by Mr. Dionne. Exhibit M-8 is an interpretation of the maintenance release presented in M-2, requested by the Minister due to the poor quality of the photocopy and in part, to the handwriting of the release authority. Decryption was provided verbally by the author of the release, Mr. Dionne, to Mr. Paulhus, who wrote it down as recited to him over the telephone. Comparing the photocopy in M-2 to the dictated wording, there are some anomalies, though these are of a minor nature.

The L & R Aircraft Repairs MPM, section J – Methods of recording work and defects (573.10(1)(j)), states on page 7:

  • The technical record preferred will be the pertinent aircraft technical logbook, however where the technical logbook is not available to the AMO and a journey log is accessible, then the maintenance will be recorded into the aircraft journey logbook.

Neither the Minister nor the Respondent submitted the technical logbook(s) for evidence as the primary source by which L & R Aircraft Repairs is approved, as the primary method of recording maintenance on an aeronautical product, i.e., an engine change. Both parties also failed to demonstrate by other readily available means and documentation, for example: part certification (parts tag, conformity certificates (24-0078 form, 8031 form, JAA number 1 form, as applicable), that new engine mount(s) (engine isolators) had been changed and installed with the new engine installation onto C-FILD. Thus, in the absence of other substantiating evidence, L & R Aircraft Repairs could not prove that they recorded the technical details (part numbers) for the engine mounts into the applicable technical logbook(s) in accordance with their MCM.

Therefore, L & R Aircraft Repairs failed to provide sufficiently detailed information in their journey log entry, and failed to demonstrate that this was anything else other than the only technical record outside of the additional work sheet which also did not provide the required technical data. Thereby, a brief description, being the only description, is insufficient when other records have not been made.

2) failed to document maintenance performed on circuit breakers

The only reference to circuit breakers pertaining to evidence submitted by the Minister was that exhibited in M-1, specifically, L & R Aircraft Repairs invoice 2453. Although prepared by L & R Aircraft Repairs on their invoice letterhead, the date "Jan 13/01" and the wording "Quote Last Winter" clearly demonstrate the intent of the document and therefore prove nothing in respect to work which may or may not have been performed at a later date. The Minister failed to provide sufficient evidence proving maintenance was conducted on said circuit breakers.

3) failed to document part numbers and serial numbers for a throttle cable change, and float change

The requirement to record an aeronautical product's part number is clearly defined under subparagraph 571.10(2)(b)(i) of the Airworthiness Manual. In respect to this, L & R Aircraft Repairs (namely AME M131199, Mr. Dionne, as the signing authority for AMO 114-91) failed to record the part numbers for the throttle cable replacement and the float installation in any available technical record as presented to the Tribunal.

However, the Minister is incorrect in assuming that the serial numbers were not recorded as required under the above section, as the float serial numbers are plainly documented within the maintenance release entered in M-2. The respective throttle cable serial number is not evident in M-2, as this type of part is generally not serialized by design of original equipment manufacture. The Minister failed to prove the new throttle cable assembly was originally provided with a serial number.

It should be noted that paragraph 571.10(2)(b) of the Airworthiness Manual states: "Each maintenance release must include the following information". The word "MUST" is inaccurate and misleading. The Oxford Dictionary defines MUST as: "something that should not be missed". As many aeronautical products are not additionally identified with a separate serial number, the ability to record what is not there is extremely difficult. Therefore, given the requirement for future clarification of this section, it is recommended that the Minister re-examine the wording in this section and address the obvious ambiguity. Therefore, the document holder failed, in this instance, to enter the float barrel and the throttle cable part numbers.

4) failed to document outstanding defects into the journey logbook

Exhibit M-8 was entered into evidence by the Minister as a means of deciphering the handwritten entry, as provided to the reader in M-5 – explicitly, the document delineated "Additional Work" recording "Aircraft Reg: C-FILD Date: June 6 – 17/01". In total, there are eleven entries recorded on the additional work sheet, three of which, numbers 7 through 10 are referencing ADs. Items 10 and 11 are accounted for and will not be considered as outstanding defects.

The remaining six items have all been provided with an action, indicating that at a later date, further work or replacement is required. The items (7, 8 and 9) referencing the ADs were provided under the document's "Action" column the acronym "C/W", being industry jargon meaning "complied with", and were further endorsed by Mr. Dionne's initials under the "Mech" column. The L & R Aircraft Repairs' MPM describes an approved method of recording maintenance, whereby detailed entries are made in the technical logbooks.

In respect to items 7 – 9 (ADs), the Minister failed to prove that they were not recorded in the technical logbook, specifically the technical record pertaining to the recording of ADs, major modification and repairs. However, presuming that the ADs were recorded in the specified fashion (L & R Aircraft Repairs also failed to substantiate their existence when given opportunity), a brief notation should also have been provided in the journey log, which is deficient of their record. However, item No. 4 above specifically deals with failure to document outstanding defects, and the ADs shall not be considered "outstanding" due in part to the notation "C/W" and the certifying initials.

The Minister provided the Tribunal with consecutive journey log pages relevant to the time and date of the maintenance performed by L & R Aircraft Repairs on C-FILD. The items listed 1 through 6 are not referenced in the aforementioned document or in any other exhibit as entered by either the Minister or L & R Aircraft Repairs. The document holder was not able to discredit the Minister's evidence and failed to prove the existence of any recorded deferred work in the aircraft journey logbook.

CONCLUSION

This case has been complicated and exacting. As plainly demonstrated from the above analysis, L & R Aircraft Repairs failed to document part numbers and record deferred defects into the journey logbook. However, the Minister was also erroneous in some of the correlated data and evidence (i.e., name of company, invoice versus quote, record of serial numbers when not applicable) in addition to the assumption that a record depicting identity and maintenance was not maintained against specific circuit breakers, for which there was insufficient evidence of maintenance having been accomplished.

In the minutiae of this case, the Minister demonstrated, on a balance of probabilities, that the document holder, L & R Aircraft Repairs, did contravene subsection 571.10(1) of the CARs by not recording specific part numbers of a throttle cable and float barrels. Additionally, the document holder failed to record the deferred maintenance in the journey logbook.

However, out of the four alleged omissions, I have found that the Minister has proved, on a balance of probabilities, the document holder committed only two omissions. One omission failed due to inaccurate evidence, and the other lacked substantiating evidence. The Minister assessed the penalty at $2,500.00, but in the circumstances, I reduce this monetary penalty to $1,250.00.

DETERMINATION

I find that the Minister has proved on a balance of probabilities that L & R Aircraft Repairs did contravene subsection 571.10(1) of the Canadian Aviation Regulations. However, in the circumtances, I reduce this monetary penalty to $1,250.00.

Keith Edward Green
Member
Civil Aviation Tribunal


[1] Authors note: "Parts Class" designation has been abandoned.


Appeal decision
Allister W. Ogilvie, E. David Dover, Samuel J. Birenbaum


Decision: December 23, 2003

We dismiss the appeal and uphold the penalty of $1,250.00. That amount is payable to the Receiver General for Canada and must be received by the Tribunal within fifteen days of service of this decision.

An appeal hearing on the above matter was held Wednesday, October 8, 2003 at 10:00 hours at the Law Courts Building, in Whitehorse, Yukon.

BACKGROUND

L & R Aircraft Repairs [hereinafter L & R] is a small approved maintenance organization (AMO) located near Watson Lake in the Yukon Territory. The AMO came to the attention of Transport Canada regarding a Cessna 185 aircraft, C-FILD. A dispute over the quality of maintenance provided had arisen and the aircraft owner had complained to Transport Canada.

After a review of the circumstances Transport Canada's inspectors alleged that the technical records for the aircraft were deficient in some aspects. A Notice of Assessment of Monetary Penalty was issued which read in part:

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):

On or about the 17th day of June 2001, at or near Watson Lake, Yukon, you did sign a maintenance release, on an aircraft, to wit a Cessna 180, Canadian registration C-FILD, required pursuant to section 605.85 of the Canadian Aviation Regulations, when the maintenance release did not meet the applicable requirements specified in section 571.10 of the Airworthiness Manual, more specifically, you failed to document maintenance performed on engine mounts, circuit breakers, failed to document part numbers and serial numbers for a throttle cable change, and float change, and failed to document outstanding defects into the Journey Logbook, all occurrences are a violation of section 571.10(1) of the Canadian Aviation Regulations.

MONETARY PENALTY – $ 2,500.00

A hearing of the matter was held in Watson Lake on October 24, 2002 before a single Tribunal Member. He found that the Minister had proven two of the four allegations; not recording specific part numbers for a throttle cable and float barrels; failing to record deferred maintenance in the journey log book. Consequently he reduced the penalty from $2,500.00 to $1,250.00.

L & R were not satisfied with the determination and therefore applied for an appeal hearing which was heard before three members on October 8, 2003 in Whitehorse Yukon.

GROUNDS OF APPEAL

1. The Minister did not establish, in concluding that L & R "... failed to provide sufficiently detailed information in their Journey log entry", what legal standard is to be used to determine the minimum entry that constitutes "sufficiently detailed information". L & R disputed the interpretation of AWM 571.10(2)(b) which was put forward by the crown witness and which the CAT member accepted without demonstrating that this was a correct interpretation.

2. The Minister did not establish that there is an additional requirement to enter outstanding work in the Journey Log if the requirements of AWM 571.03(1)(g) are met by the recording of such work in an open work list.

Two further grounds of appeal were added in the presentation at the hearing:

3. Denial of Natural Justice, rejection of expert testimony.

4. Pre-existing bias in favour of Transport Canada.

SUBMISSIONS OF THE PARTIES

Appellant

Ground #1

The Appellant states that the crux of the matter regarding part and serial numbers lies in the interpretation of the Airworthiness Manual (AWM) paragraph 571.10(2)(b) which specifies the information required. They say that Transport Canada's witness's interpretation is that each of the parts installed requires a part number and serial number, whereas their interpretation is that the only product that must be identified to that standard is the aeronautical product, the total assembly of which is being released. In this case it was aircraft ILD which was released.

They submit that support for that position is found in the final clause of subparagraph (i) which states, "unless the release is being made in an established Technical Record that contains this information". The regulation does not stipulate in which technical record the release may be made. If it were to be made in an established technical record such as the journey log or technical log for an engine or propeller, for example, the applicable six parameters would be included in the data box in the front page of the log. If made in some other technical record then data necessary to identify the limits of the release would have to be entered.

It was submitted that such a principle applies to any aeronautical product being released whether it be a complete aircraft or any of the components. In each case the product identification number for the component being released must contain the six product identification numbers specified in the regulation.

If on the other hand as the Minister's witness argues, the standard with its six parameters is intended to apply to every part including nuts, bolts and washers then there would be no limit to what must be recorded.

The Minister's interpretation of the standard in question is therefore not compatible with the requirement specified. Notwithstanding the failure of the Minister's witness to demonstrate that L & R were required by regulation to enter part numbers of the engine mounts, float barrels and throttle cable as an accompaniment to the maintenance release, the hearing Member found the log entry to be insufficient. Therefore his conclusion was reached in error.

Ground #2

Entry of Defects

The Appellant argues that there is no legal basis for the charge. Although the Minister's witness stated that the recording of outstanding defects in a journey log was a requirement, it was never established where that requirement came from. It is not found in section 571.10 nor did the Minister's witness nor the Member provide the authority.

The Member summarized the outstanding defects to be items 1 through 6 on the Additional Work sheets, Exhibit M-8. By inclusion of those items on the Additional Work list the company was then in compliance with the standard of section 571.03 of the AWM, Recording of Maintenance and Elementary Work.

Paragraph (g) allows that where a task is partially complete, a general description of any outstanding work can be recorded on open work lists, inspection sheets or job cards. L & R were in compliance as the outstanding work was on additional work sheets. Therefore the conclusion reached by the hearing Member was in error.

Additional Grounds

Ground #3

Denial of natural justice – rejection of expert witness

Mr. David Hilchie, a Transport Canada inspector with Maintenance and Manufacturing, the division that deals with aircraft maintenance, was denied the opportunity of testifying as an expert witness. The grounds for denying him as an expert were not made clear at the hearing nor were they explained in the Review Determination.

As the grounds for the denial of the right to have him testify was not justified and supported by reasoning, then the Tribunal process was not carried out in accordance with the principles of fairness and natural justice and the case therefore should be dismissed.

Ground #4

Pre-existing bias in favour of Transport Canada

The following statement is found in the Review Determination at the "Background" summary: "Transport Canada's inspection of C-FILD revealed several significant discrepancies pertinent to the aircraft's technical records."

This statement makes an unwarranted assumption as these are alleged discrepancies. This statement made in a background summary shows a pre-existing bias in favour of the Minister of Transport's case.

Respondent

Ground #1

The Minister submits that the maintenance release did not meet the regulatory requirement because the maintenance release did not include the part numbers of the engine mounts, float barrels and throttle cable. Although there were entries relating to the installation of an engine, throttle cable and float barrels, there were no part numbers in the technical record.

Ground #2

The Minister contends that the maintenance release in question did not meet the requirements of subparagraph 571.10(2)(a)(ii) of the AWM because the person signing the release did not ensure that the technical record, in which the release was signed, was correct in respect of the status of outstanding tasks.

Outstanding tasks were identified on Exhibit M-5, the "Additional Work" sheet. It was submitted that such sheets do not constitute a technical record as they do not conform to section 605.92 of the Canadian Aviation Regulations (CARs), nor were the sheets attached to Exhibit M-2, the aircraft journey log.

DISCUSSION

The following provisions apply in this circumstance:

Subsection 571.10(1) 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.

Section 571.10 of the AWM, Maintenance Release:

(1) [not applicable here]

(2) Maintenance Release Record Keeping

(a) A maintenance release applies only to the particular maintenance task or tasks to which it relates. Therefore:

(i) it is acceptable to sign a maintenance release in respect of a single task or group of tasks, even if other work is outstanding on the aircraft, provided that the wording of the entry leaves no doubt as to the scope of work being certified; and

(ii) it is the responsibility of the person signing a maintenance release to ensure that the technical record is correct in respect of the status of any outstanding task.

(b) Each maintenance release must include the following information:

(i) product identification (aircraft registration marking, nomenclature, type/model number, name of manufacturer, part number, and serial number), unless the release is being made in an established Technical Record that contains this information;

(ii) a brief description of the work performed, including applicable reference data, when the reference data is not included in the maintenance publications of the manufacturer, and the work order number.

Section 101.01 of the CARs:

"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 3(1) of the Aeronautics Act:

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

The Gage Canadian Dictionary defines: "nomenclature" "a system of names or terms used in a particular field."

Ground #1 — dismissed

The issue to be decided is whether the maintenance release of June 17, 2001 met the requirements of section 571.10 of the AWM, more particularly whether the maintenance release was sufficient to meet the requirements at paragraph 2(b). It stipulates that each maintenance release must include the following information:

(i) product identification (aircraft registration marking, nomenclature, type/model number, name of manufacturer, part number, and serial number), unless the release is being made in an established Technical Record that contains this information;

The Appellant states in its factum that the product identification for the component being released must contain the six product identification parameters specified. That would seem to be the interpretation taken by the Minister's witness as well (transcript p. 45-49), but the point was not specifically raised in the Minister's factum.

We have come to the conclusion that what "must" be included is the product identification, but that does not necessarily mean all six parameters. Those parameters in brackets are examples of the types of information that are to be utilized to identify the product, in the particular circumstance. This case illustrates that point and it can also be shown by analysis.

In the case at hand the Member notes that the throttle cable does not have a serial number by design of the original manufacturer. Hence a serial number simply cannot be entered for that particular part. However its part number and or nomenclature (description) could have been utilized to identify the product.

As can be seen from the definitions, an aeronautical product can range from an aircraft to aircraft parts and components. A maintenance release is the certification following maintenance of an aeronautical product.

The aircraft or airframe can be identified by more than one of the parameters listed such as: registration marking, manufacturer name, type, model and serial number. Some parameters do not fit. For instance what would be the part number or nomenclature of this aircraft?

However a single component or part may not be identified in conjunction with an aircraft registration. That can be seen by the requirements for entry in technical records other than a journey log, pursuant to section 605.96 of the CARs, Schedule II. In column I, Particulars to Be Entered, it stipulates: "Manufacturer's name, type, model designation and serial number and, in the case of an airframe, the aircraft nationality and registration marks" [emphasis added]. The aircraft nationality and registration marks do not apply to the components, if alone, such as the engine or propeller.

It can be seen that all six parameters of paragraph 571.10(2)(b) of the AWM are not always applicable but what "must" be done is to identify the product sufficiently.

The hearing Member has found that there was not sufficient identification made in the release regarding the throttle cables and float barrels as their part numbers were not part of the release. We find that his determination is within the ambit of the section and therefore not in error. We dismiss this ground of appeal.

The Appellant had raised the issue of whether each and every product, i.e., nuts, bolts, washers, cotter pins, etc. all of which have AN stock numbers need to be identified. That is a question that is not before us as we are confined to parameters of the allegation which does not include those items. We do agree that such a question should be clarified and further note that this case shows a lack of continuity regarding requirements on behalf of Transport Canada. The Appellant's witness was not acting in his capacity as a Transport Canada inspector, but his evidence was based upon his experience as an inspector. It contradicted that of the Respondent's witness, another Transport Canada inspector. Thus, all the contradictory evidence on the record is supplied by Transport Canada's employees.

Ground #2 — dismissed

The outstanding tasks being referred to in this ground were items 1 through 6 on the Additional Work sheets, M-5 in their original form, M-8 wherein the handwriting is deciphered.

We find that the standard to section 571.10 does indicate a requirement to enter outstanding tasks. Subparagraph 571.10(2)(a)(ii) of the AWM states that : "it is the responsibility of the person signing a maintenance release to ensure that the technical record is correct in respect of the status of any outstanding task." [emphasis added]

The Appellant's factum consistently argues that there is no basis for a requirement for a posting in the journey log. However section 605.92 of the CARs addressing technical records provides at paragraph (1)(a) that a journey log is a technical record.

The Appellant's reliance that being in conformance with paragraph 571.03(g) of the AWM somehow alleviates the problem is misplaced. The issue here is conformity with section 571.10, maintenance release. The standard to section 571.03 of the AWM in its information note states: "This regulation is applicable to the making of an entry into a technical record, which is distinct from the maintenance release addressed by section 571.10 of the CARs."

An analysis of paragraph (g) upon which the Appellant relies also reveals its inapplicability. They rely on a description of the outstanding work being found on open work lists, etc., which we take to be the same as the "Additional Work" sheets at issue here. But the opening words of paragraph (g) state: "where a task is partially completed, a general description of any outstanding work [...]." [emphasis added].

In this instance we are talking of a deferred task in the sense that the task never started as compared to partially completed tasks. As an example from M-8, #3 some loose rivets wing top – deferred to next inspection; # 4 exhaust Y's poor shape – probably need replace next inspection. We find it clear that those are tasks to be tackled on the next inspection rather than being partially completed ones.

The Appellant also brought up whether outstanding work could be a defect. Our review of the regulatory interpretation sections did not reveal given definitions for terms utilized here. We do not find that anything turns on the inexactitude of terminology used. The allegation utilized "outstanding defects". Section 571.10 of the AWM uses both "work is outstanding" and "outstanding task." The Member used both "outstanding defects" and "deferred defects". As noted from M-8 #3 there were loose rivets that L & R "deferred" to the inspection. That notation was found on a sheet entitled "Additional Work". We find that whether loose rivets and similar notations in M-8 were additional work or outstanding tasks or deferred defects is but a matter of semantics.

We conclude that the requirement to document outstanding tasks in a technical record, in this instance the journey log, is found in the standards of subparagraph 571.10(2)(a)(ii) of the AWM. As that was not done, the Member was not in error in finding a contravention. This ground is dismissed.

Ground #3 — dismissed

L & R wished to have Mr. David Hilchie qualified as an expert to give evidence on its behalf. The hearing Member decided not to allow him to testify as an expert witness. Unfortunately he does not give any reasons for this decision in his determination. We on the Appeal Panel are able to refer to the transcript for the Member's reasoning.

The Member was satisfied that Mr. Hilchie was qualified to be an expert but after objection by the Minister and discussion with the parties the Member decided that he did not need the assistance of expert testimony in the area to which Mr. Hilchie was to speak. The Member's method for handling the situation was raised with the parties and at that time neither one found it to be a problem which makes this ground of appeal all the more surprising (transcript p. 107-108).

The decision as to whether a witness may be qualified as an expert is at the discretion of the hearing Member, based on his assessment of whether he needs the assistance of expert testimony and, if so, on his finding as to the expert's qualifications.

Mr. Cumming, for L & R, had stated that his witness was to speak to the area of maintenance and regulation. But, it has been recognized that the application of the law (regulations) to the facts is a matter for argument rather than evidence.[1]

Although he was not qualified as an expert witness, Mr. Hilchie nonetheless did give his evidence.

Not having given reasons for the denial of a witness to provide expert testimony does give the appearance of arbitrariness. However as the decision is within the discretion of the Member, we do not see it as a breach of natural justice that would cause us to dismiss the case.

Ground #4 — dismissed

The Appellant submits that the failure to use the words "alleged " to describe the "discrepancies" addressed in the Background summary shows a pre-existing bias in favour of Transport Canada.

We take the premise of the argument to be that as it is "Background" then it has not yet been established whether or not an actual discrepancy had existed. However we note that the Review Determination is written as a whole and at the time of the writing the Member had reached the conclusion that the discrepancy did exist. The headings in the determination are for ease of reference for all who may read it. They are not intended to divide the determination into pre and post decision time lines.

We hold that a reasonable person viewing this circumstance objectively would not think it likely that the Member would or did favour the Minister's position over that of L & R.

We find this ground of appeal to be unfounded and dismiss it.

CONCLUSION

We dismiss the appeal and uphold the penalty.

Reasons for Appeal Decision by:

Mr. Allister Ogilvie, Vice-Chairperson

Concurred:

Dr. Samuel Birenbaum, Member
Mr. E. David Dover, Member


[1] Minister of Transport v. Stage Air Limited, CAT File No. W-2446-41.