Decisions

TATC File No. W-3039-33
MoT File No. SAP5504-053252 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Corey Robert Young, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 605.85(1)

Take-off after Non-Certified Maintenance Release, Defence of Due Diligence


Review Determination
Keith Edward Green


Decision: September 14, 2005

Offence #1, under Schedule A of the Notice of Assessment of Monetary Penalty has been proven by the Minister on a balance of probabilities. The Minister's assessment of a monetary penalty of $100.00 is upheld. This amount is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five days of service of this determination.

A review hearing on the above matter was held Wednesday, May 4, 2005 at 10:00 hours at the Federal Court of Canada, Canoxy Building, in Calgary, Alberta.

BACKGROUND

In the course of conducting an investigation against Dynamic Flight Services Inc. [hereinafter Dynamic] (Mr. Young's employer), Mr. Roger LeBlanc (civil aviation safety inspector) had suspicion that Mr. Corey Young (applicant) had conducted a flight in an aircraft that had been subject to maintenance, for which there was no maintenance release provided. It was this apparent breach of regulation that convinced Mr. LeBlanc to launch an investigation against Mr. Corey Young.

The aforementioned Transport Canada findings consist of:

The Notice of Assessment of Monetary Penalty:

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):

[...]

OFFENCE #1 – 605.85(1)

In that, on or about November 22, 2003, at or near Whitecourt Alberta you conducted a take-off in an aircraft, to wit a Piper PA31-350 bearing Canadian registration marks C-GDFK, when the aircraft had undergone maintenance and the said maintenance had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations, more specifically, removal of engine cowls and reinstallation of said cowls, reconnection of breather hose to the centrifugal breather assembly, installation of oil cooler upper attachment bolt, thereby contravening subsection 605.85(1) of the CARs.

TOTAL MONETARY PENALTY - $100.00

PREAMBLE

A motion was raised by the Minister to amend the Notice of Assessment of Monetary Penalty. The Minister's motion provided clarification on the alleged contravention date, noted as November 22, 2003. The Minister explained the date referenced under Offence #1 was correct in Zulu time only; in local time, the date was November 21, 2003. The member conferred with both parties and, ascertaining no objection, granted the motion, adding that should November 22 be quoted on the record, it would be construed as November 21, 2003.

LAW

Subsection 605.85(1) of the Canadian Aviation Regulations (CARs):

Maintenance Release and Elementary Work

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.

625.10 Unserviceable Equipment - Aircraft without a Minimum Equipment List

Information Notes:

[...]

(i) CAR 605 requires that all equipment listed in the applicable airworthiness standard, and all equipment required for the particular flight or type of operation, must be functioning correctly prior to flight. The requirement for a particular system or component to be operative can be determined by reference to the type certificate data sheet, operating regulations or the applicable equipment list in the aircraft operating manual.

(ii) Although the responsibility for deciding whether an aircraft may be operated with outstanding defects rests with the pilot in command, an error in this determination could result in a contravention under these regulations. It is for this reason that the regulations require that full details of all defects be entered in the journey log. The pilot in command must be fully aware of the condition of the aircraft if he is to make the correct decision regarding the intended flight. The manner in which the pilot makes this decision, however, will vary according to the type of operation of the aircraft. In the following paragraphs, private and commercial aircraft are considered separately.

[...]

(vi) Where in doubt, the pilot should obtain the advice of an AME. This is best done by requesting the AME to inspect the defective system or component to determine its effect upon the aircraft's fitness for flight. By following this procedure and obtaining the AME's signature in the log book in the form of a maintenance release, the pilot will be able to demonstrate, if necessary, that he has taken all reasonable steps to ensure the airworthiness of the aircraft. Inspection of defective systems by an AME, although advisable, is not a legal requirement. As stated earlier, it is the pilot's responsibility to determine whether the aircraft is fit for the intended flight.

[...]

(ix) The final decision, however, still rests with the pilot. A pilot who accepts an aircraft with defects, the repair of which has been deferred in accordance with an approved system, has a good defence against any possible charge of flying an unairworthy aircraft, whereas a pilot who undertakes a flight with an aircraft that is not in compliance with the approved system to control the deferral of repairs to defects commits an offence.

(x) The complexity of a system used to control the deferral of repairs to defects will vary according to the type of aircraft operated and the size and nature of the operation and may include reference to an approved minimum equipment list and/or configuration deviation list. In all cases the control system must be described in the air operator's maintenance control manual. Once approved, compliance with those procedures is mandatory.

THE MINISTER'S CASE

The Minister, represented by case presenting officer (CPO) Mr. Eric G. Villemure, introduced Mr. Roger Leblanc as his first witness. During the time of the alleged contravention, Mr. Leblanc was employed by Transport Canada as an enforcement officer.

Under oath, Mr. LeBlanc explained his role during the initial investigation of Dynamic, being the same company Mr. Young was employed with as a pilot. Mr. Leblanc explained how during the initial Dynamic investigation, he became suspect of a flight involving an aircraft (C-GDFK) belonging to Dynamic. Apparently the aircraft departed Whitecourt, Alberta without a maintenance release, piloted by Mr. Corey Robert Young. During the course of Mr. Leblanc's investigation against Dynamic, he had asked Dynamic's operations manager (Mr. Barry Bergin) why C-GDFK, after having just returned from Whitecourt, was subjected to such extensive maintenance action over the course of the next four or five days. Mr. Bergin explained how the aircraft had been sent to a company called Airborne Energy Solutions Ltd. [hereinafter Airborne], who performed a pre-lease inspection, during which numerous discrepancies had been discovered; consequently, Airborne had not accepted the aircraft for lease.

Continuing the investigation, Mr. LeBlanc contacted Airborne, specifically Mr. Troy Girard (currently the Quality Assurance Manager for Airborne), asking him if Airborne had conducted the above-mentioned pre-lease inspection. Mr. Girard replied affirmatively, suggesting the aircraft was in pretty tough shape at the time. It was during this conversation with Mr. LeBlanc, that Mr. Girard referenced the condition of the aircraft, suggesting that Airborne had performed maintenance on it so it could get back to Calgary. Mr. Villemure subsequently entered a discrepancy list as Exhibit M-1; a document originally sent via e-mail to Dynamic, itemizing the defects encountered during the pre-lease inspection.

In discussing Exhibit M-1, Mr. LeBlanc identified several items, which indicated maintenance had been performed by Airborne, prior to the departure of C-GDFK from Whitecourt to Calgary, specifically the breather hose (reconnected for journey home), and the oil cooler bolt (installed bolt for journey). The two above-noted maintenance tasks were, according to Mr. LeBlanc, not recorded in C-GDFK's journey log.

A copy of C-GDFK's journey log pages was entered as Exhibit M-2, verifying Mr. Young (pilot licence no. CA415176) as the pilot-in-command of C-GDFK for the return leg to Calgary on November 21, 2003. Exhibit M-2 established the authenticity and relevance of the charge, confirming the two above-noted maintenance items allegedly corrected by Airborne in Whitecourt, were not part of the technical record specific to aircraft C-GDFK. Exhibit M-2 (log sheet no. 00265) verified the maintenance rectifications listed in M-2 as those having been corrected and released to service on November 26, 2003 by a third party AMO (AirSprint).

During the initial interview with Mr. Young, Mr. Leblanc asked a pertinent question: Was Mr. Young aware of any maintenance which had been performed on C-GDFK while the aircraft was with Dynamic for the pre-lease inspection? According to Mr. LeBlanc, Mr. Young responded fairly adamantly that he was not aware of any maintenance. Mr. Young evidently informed Mr. LeBlanc that the only way he knows if an aircraft is airworthy is if there is a signature in the log book, and, as there was no signature in the log book, he believed he was good to go. After the interview with Mr. Young, Mr. LeBlanc again contacted Mr. Troy Girard in an attempt to verify that Mr. Young was not aware of any maintenance action against his aircraft. However, Mr. Girard confirmed that Mr. Young was present during and throughout the pre-lease inspection, additionally naming two other people who observed Mr. Young in attendance during the inspection. Shortly thereafter, Mr. LeBlanc contacted Mr. Young asking him if he would like to prepare a statement; Mr. Young declined.

Cross-examination

Mr. Young commenced his cross-examination by referring to Exhibit M-1, asking Mr. Leblanc if he could verify the maintenance examples provided in the alleged offence were the same items listed in Exhibit M-1. Mr. LeBlanc confirmed they were the same.

In an attempt to establish the time he (Mr. Young) was actually in the hangar during the pre-lease inspection, Mr. Young asked Mr. LeBlanc how long the inspection had taken. Mr. LeBlanc responded by reiterating what Mr. Troy Girard had previously indicated to him that the inspection had taken several hours. Mr. Young rebutted he was not necessarily there for the whole inspection process.

At this point in the proceedings, there was some discussion concerning evidence as Mr. Young wished to enter documents as evidence during the cross-examination. As the documents were familiar to the Minister (having originally been produced during the initial investigative interview and included in the disclosure package) and, as both parties were in agreement, the Exhibits D-1 (Interview March 16, 2004), D-2 (notes taken during a phone conversation), and D-3 (Case Report - Corey Robert Young) were admitted.

Mr. Young referred to page 4 of Exhibit D-3, paragraph two, asking the Minister what evidence supported the statement "Mr. Young was informed of this fact (referring to the knowledge of performed maintenance) and chose to return to Calgary". Mr. LeBlanc responded that it was a conversation he had recorded with Mr. Troy Girard. Noting page 5 of Exhibit D-3, Mr. Young read into the record, "Mr. Young did not show due diligence". In an attempt to repudiate the statement, Mr. Young explained that the absence of a log entry was not the only information upon which he had based his decision to fly. Mr. LeBlanc replied that to show due diligence a pilot would have reviewed a maintenance release in the journey log and, given the statements by Troy Girard in conjunction with two other parties present at the time, it was his conclusion that due diligence was not exercised.

The Minister called Mr. Jim Vomastic as his second witness. At the time of the alleged infraction, Mr. Vomastic was the chief pilot and operations manager for Airborne. Mr. Vomastic revealed that on November 21, 2003, he had been involved in a pre-lease inspection of C-GDFK. The aircraft had apparently arrived in Whitecourt in the late morning. The Minister asked Mr. Vomastic to describe what took place on November 21, 2003. Mr. Vomastic explained how he had met Corey Young on the ramp in Whitecourt, shortly after Mr. Young had delivered the aircraft, whereupon the aircraft was moved into the hangar for the pre-lease inspection. During the inspection process, performed personally by Mr. Girard and other maintenance personnel, the engine cowlings were removed. It was subsequently noticed the left engine cowling(s) were saturated with engine oil and a variety of different problems also existed.

Mr. Vomastic was asked if he could recollect any maintenance being performed on the aircraft and as an example, the Minister suggested "reconnection of the engine breather hose to the centrifugal breather". Mr. Vomastic responded affirmatively, explaining why the breather hose had been reconnected and citing "fire hazard" as the primary reason. Additionally, Mr. Vomastic provided other examples of discrepant items, which for safety reasons, were also corrected at that time, i.e. one missing bolt and one incorrectly fastened bolt, securing the oil cooler to the airframe. Other items were also noticed at the time but not corrected.

The Minister asked Mr. Vomastic if he had personally seen maintenance performed against the aircraft. Mr. Vomastic responded that he was not there all the time; however, he did see them do some of the maintenance. As an example, he explained he had not witnessed the physical attachment of the breather hose but he did see it initially unattached and then later on, he saw it reattached. Mr. Vomastic explained that during the inspection process, Mr. Girard had described to him what the apparent problems were with the aircraft, what had subsequently been corrected and what was still in need of further maintenance action. He also gave the missing bolt as another example of an item he had seen before and after corrective action. Mr. Vomastic continued to explain how Mr. Girard had attached the breather, but he (Mr. Vomastic) was not present all the time as he had been called away to talk to Dynamic, who had requested a list of discrepancies be sent to them.

Mr. Vomastic reported he was also involved in several telephone conversations with Dynamic's people, explaining why C-GDFK was not going to be accepted until the maintenance issues had been dealt with, and consequently, the aircraft would be returned. The Minister asked Mr. Vomastic if the issues had been addressed with Mr. Young. Mr. Vomastic replied he specifically remembered going around with Mr. Young, pointing out some of the things the mechanics had discovered, and according to Mr. Vomastic, the mechanics had also spoken to Mr. Young about some of the issues.

Continuing, Mr. Vomastic stated that after the inspection, Mr. Young had asked him what he thought about flying the aircraft as his dispatch had wanted him (Mr. Young) to fly it back to Calgary. Mr. Vomastic responded that the decision was dependent upon what Mr. Young's operations manual allowed him to do. Referring back to Exhibit M-1, the Minister asked Mr. Vomastic if he recognized the list of items. Mr. Vomastic responded affirmatively, noting that he had also seen the list in draft before it was sent, and from what he could remember, it appeared to be accurate.

Cross-examination

Mr. Young commenced his cross-examination with the introduction of Exhibit D-4; a document also contained within the disclosure package. Mr. Young referenced this document, questioning Mr. Vomastic as to what he had meant within it pertaining to "concerns and deficiencies". Mr.Vomastic responded that had the aircraft been operated under Airborne's air operator certificate, they would have grounded it. Mr. Young then inquired as to the maintenance standards of Airborne, suggesting they might be above average. Mr. Vomastic replied, "definitely not". Mr. Young then asked if he would characterize the concerns and discrepancies as hazardous. Mr. Vomastic responded immediately, "yes, I would".

Mr. Young questioned the witness over his familiarity with the items in Exhibit M-1. Mr. Vomastic replied he was aware of the items that Mr. Young, Mr. Girard and himself had talked about that day, emphasizing most of the items were on the list. However, some were apparently not – giving two examples not recorded as: a magneto and the under-torque oil filters. Continuing, Mr. Young asked if he was aware that no journey log entries were going to be made. Mr. Vomastic replied, "he was not aware of this".

The Minister called Mr. Troy Girard to take the stand. At the time of the alleged offence, Mr. Girard was the fixed wing production manager with Airborne. The Minister asked Mr. Girard to approximate the aircraft's arrival time, which Mr. Girard confirmed to be approximately noon. The Minister asked Mr. Girard to explain what transpired following the arrival of the aircraft at Airborne and what his involvement was. Mr. Girard related that he had been instructed to perform a pre-lease inspection on the aircraft, which he helped hangar.

During the inspection, Mr. Girard noticed a huge oil leak on the left cowling. He asked Mr. Young if it was normal for that amount of oil to be on the cowling, to which Mr. Young apparently replied, "it had been like that for a little while". Mr. Girard also noticed an oil leak around the turbo-charger, magnetos and alternator, which he described as a "fire hazard". Further inspection revealed a hose, which should have been connected to the centrifugal breather, was also disconnected. This, in Mr. Girard's opinion, explained the oil leak. Mr. Girard consequently showed Mr. Young the disconnected breather hose and, according to Mr. Girard, Mr. Young made a comment about it before stepping away from the engine. Mr. Girard reconnected the hose to the centrifugal breather, believing that Mr. Young had watched him reconnect it. Mr. Girard, according to his testimony, informed Mr. Young that the hose was tight/reconnected.

The inspection also revealed that the oil cooler was hanging down on the left engine and that the "bottom support" was not connected although the bolt was still in place. Mr. Girard explained how he had asked a colleague (Dave Evans) if he would check to see what the correct bolt should be and reconnect it to the bottom support. In the interim, Mr. Girard was in conversation with personnel at Dynamic, who asked him if he had made a list of defects. Mr. Girard assured Dynamic that as soon as a list had been prepared, a copy would be faxed to them. Upon returning to the aircraft, Mr. Girard observed Mr. Evans pointing out a few other items to Mr. Young but he did not know what they were discussing. As the inspection progressed, Mr. Girard had opportunity to show Mr. Young additional defects, giving several examples: injector lines, hose coming off the alternator, the right hand engine alternate air door, which according to Mr. Girard, was starting to get jammed.

A decision was made shortly after the aircraft's inspection, not to accept it as a lease machine and send it back to Calgary. Mr. Girard stated that Mr. Young did ask him if he was ready to go and what his options were. Mr. Girard reiterated what he had told him at the time: "that's not my judgement call, you're the PIC, that's your judgment, whatever is in your maintenance control manual is how you proceed".The Minister asked Mr. Girard, if after having personally performed maintenance on the aircraft, he provided certification of that maintenance. Mr. Girard responded that he "did not".

Mr. Girard was asked by the Minister to explain the circumstance under which he showed the aforementioned discrepancies to Mr. Young. According to Mr. Girard, he was standing on a stepladder positioned on the outboard side of the left engine and Mr. Young was on the inboard side of the same engine. While they were both positioned on the ladder, Mr. Girard showed Mr. Young where the hose had disconnected and what its function was. Mr. Girard stated Mr. Young was not present when the breather hose was reconnected; however, Mr. Girard was adamant that he had informed him about it after it was reconnected.

Mr. Girard was asked about the conversation he had with Mr. Young over the departure back to Calgary. Mr. Girard explained that Mr. Young had asked him what he thought about flying home and that he had told him it was up to him (Mr. Young), in accordance to his MCM. During the same conversation, Mr. Vomastic added that it should also be in accordance with the operations manual.

Cross-examination

Commencing with his cross-examination, Mr. Young informed the Tribunal that he did not recall any conversation as denoted during the examination. Mr. Girard reiterated what he had previously alleged before, providing a little more detail in the process, but adamantly emphasizing that the conversation had taken place and that Mr. Young was a part of it. Mr. Young asked Mr. Girard to approximate the length of time he thought the aircraft was in the hangar, to which Mr. Girard responded a good four or five hours.

Mr. Young, providing as an example cracks in the fuel injector lines to illustrate the severity of the situation, asked the witness if he had at any time considered grounding the aircraft. Mr. Girard responded that he could not recall what he had told Mr. Young at that time, but he did remember informing Peter Verhessen and Diamond about the AD (fuel injector) situation.

Mr. Girard could not recall if he had informed Mr. Young of any item warranting grounding the aircraft over. Persisting, Mr. Young asked if he could recall ever saying that the aircraft was not airworthy and not fit for flight. Mr. Girard replied that it was discussed with Diamond and Peter Verhessen, whereupon, Mr. Girard told Diamond: "that's up to you guys, what you guys do with it and how you guys deal with it is with your pilot".

Mr. Girard emphasized Diamond was notified about the defects and that Dynamic's operations manual or MCM provides the procedure and policy for control. Mr. Girard stated: "you and I did talk about these items – Yes". Mr. Girard then reviewed some noted maintenance items, which he had allegedly informed Mr. Young, such as: injector lines, baffles, hose being reconnected, exhaust pipe alignment, alternator hose (scat hose), oil leaks, etc., including a couple of other items which Mr. Young may not have known about, i.e., oxygen tank was unserviceable, Janitrol heater over-temp switch did not function, de-ice boots and seat handles broken. Mr. Girard stated the majority of items such as the hose, oil cooler bolt, alternator hose, alternate air doors, were all known to Mr. Young.

Mr. Young asked Mr. Girard to verify if he was talking to Mr. Peter Verhessen and Diamond at the same time. Mr. Girard replied that they were separate conversations. Mr. Young then wanted to know if the witness knew if he (Mr. Young) had been informed of the content of the conversations. Mr. Girard replied that the defects shown and told to Mr. Young at the time of the inspection were verbal, not written.

MR. YOUNG'S CASE (Applicant)

Mr. Young commenced his defence by stating it had already been established that the mechanical state of C-GDFK was not up to the level it should have been, and suggesting the arrival time of the aircraft at Dynamic was approximately 10:30 a.m. Mr. Young inferred he was present for the initial time the aircraft was in the hangar, but he was not specifically observing the activities of the AMEs. Mr. Young confirmed the inspection to have taken about four or five hours but he was apparently away from the hangar on numerous occasions, including the lunch period. Mr. Young repudiated the duration of the estimated time he spent in the hangar to something below the 90% proffered by the Minister.

Mr. Young informed the Tribunal he was a pilot, not an AME. As such, his mechanical knowledge was somewhat limited and when he has a maintenance issue, he consults a qualified AME, quoting the director of maintenance (DOM) as an example. Mr. Young explained that during the course of his subsequent visits to the aircraft, it appeared the aircraft was not going to be accepted for lease. Mr. Young adamantly protested that at no time were any of the concerns or deficiencies identified as defects.

Implying an apparent lack of communication, Mr. Young referenced back to Jim Vomastic's statement concerning the cracked fuel injector lines. Mr. Young asked why such items had not been identified and communicated to him, so that he would be able to ascertain the aircraft's condition and serviceability. Mr. Young stated that at the time he was concerned as to what the intention was with regard to returning the aircraft back to its current state. Mr. Young claims to have asked two AME's: "You are obviously not happy with what you see here, is there anything here of a serious nature, such that I should not go far... ". The response from both AMEs, according to Mr. Young, was: "No, it should be fine".

However, Mr. Young renounced the testimonies given by the Minster's witnesses, which claimed he had been made aware of the maintenance accomplished against his aircraft, and that he believed there had been a deliberate effort made not to provide him with a true understanding as to the status of the aircraft. He also reiterated his former statement that he was not in the hangar for the amount of time indicated by Airborne.

Mr. Young deliberated over the accusation that he was aware of the maintenance conducted, concluding that when he inquired about the aircraft, it was not made distinctly clear to him what had been accomplished and that a maintenance entry was required. He stated that, had it been made abundantly clear to him that maintenance had been accomplished, he would have insisted on the maintenance being certified in the log book. Mr. Young concluded by saying that one of his responsibilities is to assess the aircraft journey log to ensure there are no open items, and he was under the impression that a pre-lease inspection did not require a maintenance release.

ANALYSIS

The Minister's case was to prove, on a balance of probabilities, that Mr. Young had contravened subsection 605.85(1) of the CARs, having conducted a take-off in an aircraft (Piper PA31-350) bearing Canadian registration marks C-GDFK after the said aircraft had undergone maintenance for which there was no maintenance release recorded in the aircraft journey log book.

In an attempt to prove the aforementioned contravention, the Minister introduced three witnesses and five exhibits. Early in the proceedings, the Minister confirmed via a witness (Mr. LeBlanc) that Corey Robert Young was undeniably the pilot-in-command of C-GDFK that departed Whitecourt on November 21, 2003 (November 22 GMT) returning back to Calgary. By means of Exhibit M-3, Mr. Young's pilot licence information was established confirming his licence number (415176) and validating the licence authenticity. Exhibit M-4 proved

C-GDFK was registered to Dynamic and that the registered aircraft was the same aircraft flown by Mr. Young. Exhibit M-2 (copy of journey log pages) also confirmed Mr. Young as the pilot-in-command of C-GDFK, depicting very clearly Mr. Young's signature and licence number. Additionally, Exhibit M-2 provided confirmation on location, date, duration and time the flights occurred, recording Mr. Young's departure from Calgary (YYC) to Whitecourt (YZU), and his return to YYC later that same day.

Having established the pilot's identity, the aircraft, location, date and times of the flights, the Minister endeavoured to establish C-GDFK had been subjected to more than a pre-lease inspection at Airborne and was subjected to additional physical corrective action. The Minister plainly achieved this via a combination of testimony and exhibits; the first exhibit being

M-1 , establishing the defects detected during the pre-lease inspection and subsequently sent to Dynamic.

Mr. Girard verified that due to the condition of the aircraft, maintenance had been performed on it in order to get home, identifying two specific items listed in Exhibit M-1, as examples of maintenance performed. Mr. Vomastic also testified that although he was not personally present the entire time the pre-lease inspection was being conducted, he did see the maintenance staff do some of the work, explaining that he first observed the breather hose unattached and then later on, it was reattached.

Mr. Girard testified that it was he who had reconnected the hose. However, Mr. Girard also provided a slightly contradictory account of the events, claiming at one point Mr. Young had noticed him reconnect the hose and at another time claiming Mr. Young was not present when the breather hose was reconnected. Mr. Girard was, regardless, very adamant he had informed Mr. Young over the reconnection. Unquestionably, the testimony provided clearly indicates maintenance had been performed on C-GDFK prior to its departure, irrespective of whether the process had actually been witnessed by Mr. Young. The Minister proved by the presentation of Exhibit M-2 that no maintenance activity of any sort had been recorded in the journey log book.

The last major test undertaken by the Minister was to establish the degree of diligence Mr. Young demonstrated in assessing his aircraft's condition for flight. Mr. Young informed the Tribunal on several occasions that he was not present throughout the entire pre-lease inspection period, confirming what other witnesses first proffered. However, it can also be established that he was within the immediate vicinity on numerous occasions and was shown specific items pertaining to his aircraft that required attention. Mr. Girard and Mr. Vomastic's statements corroborate each other in that they had both explained the situation to Mr. Young, identifying the engine centrifugal breather hose and oil cooler attach bolt as maintenance items corrected during the pre-lease inspection.

Mr. Vomastic stated that other mechanics involved in the inspection had also shown Mr. Young some of the items they had additionally discovered. More importantly, Mr. Young's testimony corroborated Mr. Vomastic's statement, wherein Mr. Young had asked for his opinion concerning the aircraft's ability to be flown back to Calgary. Given the fact that Mr. Young had asked about the condition of the aircraft and given that he had flown it (supposedly airworthy without hesitation) only a few hours before, and that he had been shown specific airworthy/maintenance irregularities, some of which had subsequently been corrected by the maintenance staff during the pre-lease inspection, Mr. Young could not have been under any delusion that corrective maintenance must have been performed against his aircraft.

Given the circumstances and information, a reasonably diligent person would have presumed maintenance had been performed and consequently tried to establish the extent of work, especially since a minimum of two maintenance items had been related to him. Mr. Young's reasoning appears to be contrary to due diligence as he presumed maintenance had not been performed even though circumstantial evidence at the time, suggested it had. Reviewing the technical log should have made him ask why an entry had not been completed, at the very least, for the pre-lease inspection.

Mr. Young's defence rested solely on his ability to prove due diligence as entitled to under section 8.5 of the Aeronautics Act: "No person shall be found to have contravened a provision... if the person exercised all due diligence to prevent the contravention". With respect to Mr. Young's defence, Mr. Young informed the Tribunal during his opening statement that he intended to demonstrate that due diligence is the polar opposite of negligence and his activities on the day in question were more in line with diligence. Therefore, the crux of Mr. Young's defence under section 8.5 must establish that he was diligent in the appraisal of his aircraft's airworthiness even though no record existed confirming maintenance action against his aircraft.

During Mr. Girard's testimony, a conversation was related with Mr. Young shortly after the aircraft had been moved into the hangar. Mr. Girard asked Mr. Young if it was normal for a large amount of oil to be on the engine cowling(s). Mr. Young responded that it had been like that for a little while. The Tribunal was not informed as to what "a little while" meant, but it does indicate a certain lack of concern or even complacency on behalf of Mr. Young with regard to the condition of the aircraft he flies. A pilot can refuse to accept an aircraft even though there may not be any entry pertaining to a particular problem noted in the journey log or other technical record.

According to Exhibit D-3, page 5, Mr. Young freely admitted to Mr. LeBlanc that he had been in and out of the hangar during the inspection and that he was aware of the concerns being discussed by Airborne personnel. However, Mr. Young stated in the same document that "he did not know that maintenance had been performed".

Mr. Young inferred that the absence of a log entry was not the only information upon which he had based his decision to fly. However, other maintenance personnel had also informed Mr. Young (on several occasions) about the condition of his aircraft. Mr. Young admitted that he was also talking to his own company over the situation and in turn, they had been in contact with Airborne, eventually requesting a list of discrepancies (Exhibit M-1) from them. Again referring to Exhibit D-3, Mr. Young stated: "he is a pilot and therefore what was said by the AME's and what he heard may have been different... He only went by the journey logbook, which did not have any entries".

Mr. Young offered no explanation as to why he did not ask the engineers to clarify the information they presented, even though he infers he did not understand the technical language. An astute and diligent pilot would have requested that potential non-conformities be recorded or transcribed to a technical record, in this case the journey log, and that an evaluation of the airworthiness be determined in accordance to specific procedures as approved and defined within the relevant section of an operations manual.

There was no testimony or evidence tendered by Mr. Young indicating that he had consulted his company's operations manual or minimum equipment list (MEL), even though he was on several occasions told by Airborne personnel that the decision to fly the aircraft was up to him and what his operations manual allowed him to do. The fact that Airborne failed to write up the necessary maintenance actions does not dismiss the fact that the pilot is ultimately responsible for the safe operation of his aircraft to the best of his/her ability.

Indeed, the evidence presented suggests Mr. Young was aware of numerous defects and their corrective action during the pre-lease inspection. As a minimum, Mr. Young should have queried Airborne about why they had not recorded a maintenance entry into the journey log describing the particulars of the pre-lease inspection. There were many ways in which Mr. Young may have been able to provide better diligence at the time of the alleged infraction, but given the evidence submitted before the Tribunal, Mr. Young did not prove his case.

CONCLUSION

There is unquestionably a very obvious lack of procedure and compliance, almost a disregard to regulation and policy revealed by Mr. Young during and after the pre-lease inspection. It is not for this Tribunal to voice an opinion regarding a potential error of another party, although it should be remembered that had a release been provided in accordance to regulation, Mr. Young, in all probability, would not have contravened subsection 605.85(1). This being stated, Mr. Young is also a very experienced pilot with a superb flying history who, as his records indicate, has the required knowledge, qualification and experience to know how to assess an aircraft fit for flight. Accordingly, Mr. Young should be highly familiar with the requirements of the law concerning the undeniable burden and responsibility of the pilot-in-command.

Although Mr. Young's case was fragile, it must be stated, in the interest of safety, that others were also culpable and their actions were a precursor to the event. Mr. Young, however, was a participant and not a bystander in the chain of events. Therefore, section 8.5 is not an excusable defence as stated by Mr. Young, as he failed to prove his actions were in line with being fully diligent.

Having been provided with an overview of the circumstantial evidence available to Mr. Young during and after the pre-lease inspection, and having not been provided with sufficient substantiating evidence by Mr. Young in his defence, I find the expected due diligence prerequisite, i.e. did Mr. Young do everything possible to have prevented the situation from occurring, deficient. Therefore, in this particular case, the evidence would suggest the Minister, on a balance of probabilities, was able to prove his case against Mr. Young.

DETERMINATION

Offence #1, under Schedule A of the Notice of Assessment of Monetary Penalty, has been proven by the Minister on a balance of probabilities. The Minister's assessment of a monetary penalty of $100.00 is upheld.

September 14, 2005

Keith E. Green
Member
Transportation Appeal Tribunal of Canada