Decisions

CAT File No. W-2580-41
MoT File No. SAP-5504-46736

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Air Spray (1967) Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, ss. 605.84(1)(b), 593.02

Sanction, Maintenance Control Manual, Mitigating Factors, Admission, Airworthiness Directive (AD), Cross-Fuelling


Review Determination
Keith Edward Green


Decision: May 20, 2003

I find that the Minister has proved on a balance of probabilities that Air Spray (1967) Ltd. did contravene subsection 605.84(1)(b) of the Canadian Aviation Regulations. However, in the circumstances, I reduce this monetary penalty to $2,500.00. This 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, January 30, 2003 at 10:00 hours, at the Federal Court of Canada in Edmonton, Alberta.

BACKGROUND

Air Spray (1967) Ltd. [hereinafter Air Spray] is an aerial application company specializing primarily in forest fire control and suppression. Air Spray operates a mixed fleet of fixed wing aircraft suited to their specialized needs and requirements, totalling approximately 28 water bombers, and an assortment of other types utilized as "bird dog" aircraft.

In November 2001, Air Spray underwent an audit by Transport Canada. One result of this audit was the release of an audit finding (draft) No. AOC-13-01 to Air Spray by Mr. Garnet Fedorowich: a member of the Transport Canada audit team. The audit finding addressed a non-compliance of airworthiness directive AD 87-21-02 R1 specific to an aircraft type operated by Air Spray.

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"

OFFENCE #1 – CARs 605.84(1)(b)

Between the 20th of June 2001 and the 8th of September 2001, you did permit a take-off in an aircraft, to wit a Cessna 310, Canadian registration C-FGWE, when the said aircraft was not maintained in accordance with the requirements of an airworthiness directive issued by the Minister pursuant to section 593.02 of the Canadian Aviation Regulations, more specifically, 39-6215 – AD 87-21-02 R1, a violation of section 605.84(1)(b) of the Canadian Aviation Regulations.

TOTAL MONETARY PENALTY – $5,000.00

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.

Paragraph 605.84(1)(b) of the CARs:

605.84 (1) Subject to subsections (3) and (4), no person shall conduct a take-off or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, other than an aircraft operated under a special certificate of airworthiness in the amateur-built classification, unless the aircraft [as the regulations read at the time of the alleged offence];

[...]

(b) meets the requirements of any airworthiness directives issued under section 593.02; and

[...]

(4) The Minister shall approve an alternative means of compliance with an airworthiness directive, for reasons set out in the approval, where the Minister is satisfied that the proposed alternative will maintain the level of safety that is provided for by the compliance time, the modification, the restriction, the replacement, the special inspection or the procedure set out in the airworthiness directive.

Section 593.02 of chapter 593 of the Airworthiness Manual:

Information Note:

Pursuant to Subpart 593 and Section 605.84 of the Canadian Aviation Regulations, additional information for owners concerning Airworthiness Directives (ADs) is also provided in Appendix H of Standard 625 – Aircraft Equipment and Maintenance.

The purpose of an AD is to notify aircraft owners of:

(a) unsafe conditions;

(b) non-conformity with the basis of certification and other conditions affecting the airworthiness of their aircraft;

(c) the mandatory actions required for the continued safe operation of an aeronautical product; or

(d) exceptionally, the interdiction of flight until corrective action is developed.

THE MINISTER'S CASE (Applicant)

The Minister, represented by Mr. McFarlane, explained to the Tribunal that Air Spray and the Minister had come to an understanding based on an admission of facts provided in a letter to the Minister from Air Spray, dated January 17, 2003. The letter as referenced above was entered as Exhibit M-1. The Minister provided additional documentary support to M-1 via a binder of pertinent copied records, of which the Respondent was privy and also in agreement, having no objection to their reference or tender.

Mr. McFarlane called the Minister's first witness Mr. Garnet Fedorowich, a civil aviation inspector. Mr. Fedorowich elucidated his responsibilities with respect to the Air Spray audit and the audit finding as documented under tab four of the support evidence to M-1. Mr. Fedorowich informed the Tribunal that during the audit, a compliance entry was discovered missing in aircraft C-FGWE technical records pertaining to AD 87-27-02 R1 and that after conducting a physical inspection of the said aircraft, it was determined the airworthiness directive had not been complied with. Hence the resultant Audit Finding Form No. AOC-13-01.

Mr. McFarlane called Mr. Stephen Hewitt, civil aviation safety inspector, Enforcement Branch, Transport Canada.

The witness was asked to identify a copy of a certificate of registration contained under tab one of M-1's supplemental binder. Mr. Hewitt confirmed that the certificate noted was a copy of the applicable document pertaining to aircraft C-FGWE and belonging to Air Spray. Additionally, Mr. Hewitt was asked to explain the document filed under tab two of the same supplemental binder to M-1. Mr. Hewitt informed the Tribunal that the document was a limited supplemental type certificate and as such was granted to Air Spray as an alternative means of compliance to AD 87-21-02 R1. The document was date approved 06 March, 2002 providing exemption (alternative means of compliance) to AD 87-21-02 R1 for four aircraft operated by Air Spray, C-FGWE being one.

Mr. Hewitt was also asked to explain the photocopied pages under tab five of the supplemental binder to M-1. Mr. Hewitt informed the Tribunal that the pages referenced were copied from C-FGWE's journey log book and that they covered a range of dates from June 1, 2001 (log record 5530) to September 7, 2001 (log record 6650), in total encompassing approximately 57 individual flights.

THE DOCUMENT HOLDER'S CASE (Respondent)

The Respondent called Mr. Donald Hamilton, the President of Air Spray, as a witness, who was then duly sworn. Mr. Hamilton being questioned by Mr. Covlin, commenced to explain some artefacts which had been brought to the Tribunal, as a visual aid, to help explain the

AD 87-21-02 R1 and Air Spray's alternative means of compliance. Mr. Hamilton demonstrated via the artefacts how the airworthiness directive and Air Spray's alternative means of compliance was supposed to prevent an aircraft from receiving the wrong type of fuel. Mr. Hamilton was also asked what, in his professional opinion, was the effectiveness of the devices/modification to prevent a wrongful fuelling occurrence. Mr. Hamilton stated that in his opinion it was still possible to refuel the Cessna 310 with the wrong type of fuel after it had been modified.

Mr. Covlin asked the witness if the maintenance staff at Air Spray are responsible for the maintenance of the aircraft, and are they responsible for checking relevant ADs? Mr. Hamilton responded that they were. Mr. Covlin then asked: "In this particular case is there any explanation for the AD not being complied with?" Mr. Hamilton, responded "No. It came out in 1987 and for some reason it was missed and it was missed for many, many years afterwards". Mr. Hamilton went on to explain that he had no explanation why it was missed, as it is the policy of Air Spray to comply fully with all ADs as soon as they come into effect.

Cross-examination

The Minister asked the witness if the alternative means of compliance to AD 87-21-02 R1 was obtained after the audit. Mr. Hamilton confirmed that it was. The witness was then asked if there were prior to the audit any procedures to prevent the inadvertent cross fuelling of aircraft. Mr. Hamilton explained that Air Spray's standard operating procedures (SOPs) specify that the pilots are to supervise aircraft fuelling; additionally all the fuel tanks are marked with the correct type of fuel.

THE ARGUMENTS

The Respondent

The Respondent's argument can be appraised by separating it in two: one section dealing with procedure and corrective action, the other dealing with safety and prevention.

Mr. Covlin informed the Tribunal that the instant Air Spray became aware of AD 87-21-02 R1 they reacted immediately by grounding all applicable aircraft. Air Spray then set about designing their own alternative means of compliance and retrofitting the approved system to the affected aircraft.

Mr. Covlin argued that a non-compliance to AD 87-21-02 R1 was not, in itself, a great safety detriment, as there are only two ADs pertaining to this type of inadvertent cross fuelling; the other one being applicable to a Piper aircraft. It was proffered in support of this conjecture that the Minister must also consider the intent of AD 87-21-02 R1 to be a limited safety issue. The assumption being that if it were not of a minor nature the Minister would have released other similar and applicable ADs to prevent cross fuelling with other aircraft types. Mr. Covlin quoted a Transport Canada Safety Letter Issue 1/2003 page 5, where it outlines a cross fuelling incident involving a Turbo Aztec inadvertently fuelled with 'jet fuel'. The question was raised: why has Transport Canada not issued a blanket AD pertaining to all piston engine aircraft to prevent inadvertent cross fuelling, since cross fuelling was still happening? Mr. Covlin stressed the point that what might rectify the cross fuelling problem is not necessarily a specific AD but a company's own specifically designed SOPs. Mr. Covlin explained it is these simple policies and procedures, such as ensuring the pilot supervises the fuelling operation, that are the ultimate answer. That is apparently what Air Spray does; as we are informed, over thirty years of operation they never had a problem with cross fuelling in the field.

Mr. Covlin went on to state that Air Spray was not there to argue that the law, regulation or AD was wrong; "We didn't comply ... we should have complied but we didn't".

Sanction — The Applicant

Mr. McFarlane explained to the Tribunal that the fundamental purpose of the Enforcement Branch is to promote voluntary compliance with the Regulations and the Aeronautics Act. Enforcement has four functions: Prevention, Detection, Investigation and Deterrence. It is the deterrent aspect of enforcement where sanction and penalties are addressed to discourage the aviation industry from future violations. Mr. McFarlane referred to section 7.31 of the Aeronautics Act:

7.31 Where an offence under this Part is committed or continued on more than one flight per segment of flight, it shall be deemed to be a separate offence for each flight or segment of a flight of which the offence is committed or continued.

Mr. McFarlane informed the Tribunal that strict application of this section would invoke 57 separate charges, and if the maximum penalty were applied (repeat offender) at $25,000.00, or at even $5,000.00 per offence, one can see that $5,000.00 as a collective whole as recommended for a first offence, is very reasonable. Therefore, bearing the above in mind, it should be recognized that the Minister has given consideration to the mitigating factors in this case. To further paraphrase Mr. McFarlane: Certainly the respectable, commendable and admirable record of Air Spray, in their operations which being an airborne fire fighting organization, is certainly in the realm of higher risk than most companies. Their safety record is admirable; their enforcement record is impeccable, and that has certainly been taken into consideration in addressing this penalty.

Sanction — The Respondent

The Respondent's address to sanction was for the most part incorporated into his argument. However, it was tendered that as a corporation the fine could be conceived as a form of double taxation due to a 46% tax bracket required of any corporation.

ANALYSIS

The Minister's case: Air Spray contravened paragraph 605.84(1)(b) of the CARs; namely, Air Spray failed to comply with a required airworthiness directive applicable to an aircraft operated within their fleet, that same aircraft having made numerous flights.

As with most regulatory offences covered under the Aeronautics Act, the case involving Air Spray is a strict liability offence. The Minister in this instance has undeniably proved the elements of the offence on a balance of probabilities. Additionally, the Respondent fully and openly confirmed the airworthiness directive was not complied with and that Air Spray was responsible: "We didn't comply ... we should have complied but we didn't". As we have seen, an admission of facts was tendered to the Minister before the case commenced, which was subsequently entered into evidence as M-1.

The Minister assessed a total monetary penalty of $5,000.00, which is the initial recommended penalty normally imposed upon a company found to be in contravention to paragraph 605.84(1)(b) of the CARs. However, although the Minister has made out his case based upon evidence and testimony, the Tribunal must now consider sanction.

Throughout the proceeding, the Tribunal was frequently informed by the Minister how cooperative Air Spray had been during the entire investigation. Mr. McFarlane repeatedly praised the cooperation and collaboration of the document holder, and I quote Mr. McFarlane: On behalf of the Minister, I would like to acknowledge and commend the conduct of the document holder. We have reached an agreement of fact ... but first of I think, in recognition of the cooperative and courteous way in which the document holder has dealt with the Minister throughout this process – it's certainly acknowledged by the Minister". These words of Mr. McFarlane are deep reaching and meaningful. They indicate the people at Air Spray involved with this incident, and those who were helping the Transport Canada investigation, had on their minds the best of intentions. It is obvious their objective was not merely to cooperate for the sake of gaining some sort of approbation, but because they realized the problem and the inherent danger to safety that this or any other neglected AD might inflict against their extensive and specialized fleet of aircraft.

When Mr. Hamilton was questioned regarding how the AD might have been overlooked, Mr. Hamilton could not give a definitive answer. He did not know. In his answer he displayed both bewilderment and astonishment that it could ever have happened. Mr. Hamilton informed the Tribunal that the AD first became effective in 1987 and for some reason it was missed and it was missed for many, many years afterwards. He had no explanation why, but that it is not their policy to miss ADs, which are complied with fully as soon as they come into effect.

Although it was never brought into evidence by either party, Air Spray, not unlike any other legal aviation entity in Canada, must have a procedure in place as defined within their approved maintenance control manual (MCM), for checking and implementing airworthiness directives applicable to their aircraft fleet. It could therefore be argued, the Air Spray's system of control was being followed and that it was functioning, albeit with an inherent flaw of some nature. If procedure was not being followed, it is highly plausible that the June 2001 Transport Canada audit would have discovered more than the one non-compliant airworthiness directive given the range, size, age and diversification of Air Spray's fleet.

Once the AD omission was discovered, Air Spray immediately grounded all the applicable aircraft within their fleet. Further, they engineered an alternative means of compliance satisfactory to the Minister, which was implemented at the earliest possible date before recommencement of any flight. Additionally, Air Spray has been operating specific safety checks to prevent exactly what the AD 87-21-01 R1 was designed to accomplish, prevention of cross fuelling. However, Air Spray's prevention plan is designed to operate across a broad band of aircraft types, unlike AD 87-21-01 R1, which is restricted to a single type.

CONCLUSION

The minutiae of this case before the Tribunal involving the Minister of Transport and Air Spray have been most exacting and fraught with complexity. In the final analysis the Minister of Transport has plainly made out his case on a balance of probabilities; Air Spray did contravene paragraph 605.84(1)(b) of the CARs. The document holder never attested to anything other than taking full responsibility and admitting fault, from the earliest outset, even before the case was convened. Conversely, evidence and testimony indicate that the non-compliance of AD 87-21-02 R1 was more probably an oversight due to some sort of lapse or lack in procedure at Air Spray's maintenance facility. The Minister appears to have almost gone out of his way in acclaiming Air Spray's cooperation, assistance and help in all matters pertaining to the case. In short, the Minister of Transport and Air Spray by all appearances, demonstrate the paramount working relationship between industry and government. It is this type of cooperative and trusting relationship that Transport Canada has been working so hard to achieve across Canada, and in this instance, realized.

In the interests of public safety and future cooperation, the Member believes it is appropriate to be benevolent with regard to sanction when all possible measures were taken to comply with ADs. Air Spray as it was disclosed during the hearing has been an exemplary organization with no known contraventions brought before them. With respect to the AD, the argued influence of the AD pertaining to safety is irrelevant; paragraph 605.84(1)(b) of the CARs does not differentiate between high risk and low risk ADs. It is beyond the reasoning of this Tribunal to differentiate what constitutes a low risk AD and what does not. All airworthiness directives are considered to be paramount to safety.

The Minister assessed the penalty at $5,000.00, but in the circumstances, I reduce this monetary penalty to $2, 500.00 for the following reasons:

  1. Absolute cooperation
  2. No apparent pre-state of mind
  3. First time offence
  4. Additional safety procedures (SOPs) to prevent fuel system contamination — fleet wide
  5. Excellent safety and compliance history
  6. Immediate and positive response to correct the situation
  7. Acknowledgement of responsibility and endemic failure

DETERMINATION

I find that the Minister has proved on a balance of probabilities that Air Spray (1967) Ltd. did contravene subsection 605.84(1)(b) of the Canadian Aviation Regulations. However, in the circumstances, I reduce this monetary penalty to $2,500.00.

Keith Edward Green
Member
Civil Aviation Tribunal