TATC File No. W-2606-41
MoT File No. SAP-5504-46746 P/B
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Minister of Transport, Applicant
- and -
Westpoint School of Aviation Inc., Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 605.84(1)(b) and 706.02(b)
E. David Dover
Decision: August 5, 2003
The Minister has proven, on a balance of probabilities, and Westpoint School of Aviation Inc. has admitted to contravening paragraphs 605.84(1)(b) and 706.02(b) of the CARs. Because of mitigating circumstances, I reduce the Minister's sanctions to $3,500. on each violation for a total of $7,000.00. This amount is to be made payable to the Receiver General for Canada and received by the Transportation Appeal Tribunal of Canada within fifteen days of service of this determination.
A review hearing on the above matter was held Wednesday, April 23, 2003 at 10:00 hours at the Federal Court of Canada in Calgary, Alberta.
Both the Applicant and the Respondent reported that there were no agreements between the parties.
The Minister made an application to amend the Notice of Assessment of Monetary Penalty to change the name of the document holder from "Westpoint School of Aviation Ltd." to "Westpoint School of Aviation Inc."
As there was no prejudice to, or objection from the document holder, the application to amend was granted.
The Minister alleges the following:
OFFENCE #1 – CARs 605.84(1)(b)
In that on or between the 29th day of January 2002 and the 7th day of February 2002, you did permit a take-off in an aircraft, to wit a Cessna 172R, Canadian registration C-FBDH, which was in your legal custody and control, 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, failed to insure that airworthiness directive CF-90-03R2 Exhaust Type Cabin and Cockpit Heaters was completed, a violation of the Canadian Aviation Regulations.
MONETARY PENALTY – $5,000.00
OFFENCE #2 – CARs 706.02(b)
In that on or between the 2nd day of July 2001 and the 23rd day of August 2001, you did operate an aircraft, to wit a Piper PA-30, Canadian registration C-FUSF, when the said aircraft was not maintained in accordance with a maintenance control system that was described in the air operator's maintenance control manual (MCM) required by section 706.08 of the Canadian Aviation Regulations, more specifically, on or about the 2nd day of July, 2001 defect "#2 H.S.I. Heading and Glideslope flag constantly" was not recorded in the master defect control sheet as per section 14(1) of the MCM, nor is it deferred as per 14(4) of the MCM, a violation of the Canadian Aviation Regulations.
MONETARY PENALTY – $5,000.00
Mr. Paulhus stated that he would call one witness, Terry Owen.
Mr. John McIntee appearing for the document holder stated that he was not disputing the charges and allegations levied against Westpoint School of Aviation Inc. [hereinafter Westpoint] but rather wished to have the sanctions reduced. He further stated that Transport Canada had been most helpful in assisting him complete his paperwork and that in fact he had grounded his aircraft until all deficiencies were corrected.
FOR THE APPLICANT — The Minister of Transport
The case presenting officer, Mr. Mitch Paulhus, called Mr. Terry Owen who was sworn.
Transport Canada employs Mr. Owen as a civil aviation inspector in Edmonton, Alberta. In support of his evidence Mr. Owen submitted eighteen (18) exhibits marked M-1 to M-18. These documents cover the following items:
- The Law
- Maintenance schedules
- Technical logs, C-FBDH and C-FUSF
- Certificate of registration
- Maintenance control manual
- Certificate of airworthiness, C-FBDH and C-FUSF
Mr. Paulhus stated that an informal telephone meeting was held on August 28, 2002 between Mr. J. P. Stewart of Transport Canada and Mr. John McIntee representing Westpoint. Mr. McIntee was informed by Transport Canada that all informal telephone calls and written agreements held prior to the actual hearing were to be considered "Without Prejudice".
As a result none of the items discussed by telephone or outlined in Exhibit M-18 will be considered in the determination.
FOR THE DOCUMENT HOLDER — Mr. John McIntee
Mr. McIntee testified that he was the sole shareholder and operations manager of Westpoint. He stated that he and his firm had contravened both sections of the Canadian Aviation Regulations (CARs) as charged.
He further stated that he had not been keeping up with the logs and maintenance records of the aircraft as he had delegated these functions to another corporation. He indicated that business volumes were down, costs rising and he was short of funds to pay the sanctions.
As there was no further evidence the evidentiary record was closed.
Mr. McIntee on behalf of Westpoint through opening statements, oral sworn testimony and closing arguments admits to violating Offence # 1 – CARs 605.84(1)(b) and Offence #2 – CARs 706.02(b).
In hearing the testimony of Mr. Owen and analyzing the exhibits I am convinced that Transport Canada inspectors conducted a fair and thorough investigation.
It was apparent through testimony that Mr. McIntee exhibited a high "degree of cooperation with authorities" and there are mitigating circumstances for reducing the sanctions, as outlined in the Appeal Determination of Minister of Transport v. Kurt William Wyer, TATC File No. O-0075-33.
The Minister has proven, on a balance of probabilities, and Westpoint School of Aviation Inc. has admitted to contravening paragraphs 605.84(1)(b) and 706.02(b) of the CARs. Because of mitigating circumstances, I reduce the Minister's sanctions to $3,500. on each violation for a total of $7,000.00.
E. David Dover
Transportation Appeal Tribunal of Canada
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