Decisions

TATC File No. C-2998-41
MoT File No. RAP5504-51962 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Skyward Aviation Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, 7.7
Canadian Aviation Regulations, SOR/96-433, 605.10(1)(b)


Review Determination
James E. Foran


Decision: May 30, 2008

Citation: Skyward Aviation Ltd. v. Canada (Minister of Transport), 2008 TATCE 24 (review)

Heard at Winnipeg, Manitoba, on April 23, 2008

Held: I confirm the decision of the Minister of Transport set out in the notice of assessment of monetary penalty, dated March 23, 2004. The total amount of $1250 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I. BACKGROUND

[1] On August 20, 2003, a Transport Canada inspector attended at the facilities of Skyward Aviation Ltd. (Skyward) in Thompson, Manitoba, to perform a pilot proficiency check (PPC) on a Cessna 441 Conquest aircraft bearing Canadian registration markings C‑GSKH. The aircraft was registered in the name of Skyward (exhibit M-4). During the pre‑check process, the inspector determined that Skyward had been conducting take-offs in the aircraft with a defective right auxiliary fuel pump since August 13, 2003. On March 23, 2004, the Minister of Transport issued a notice of assessment of monetary penalty in the amount of $1250 against Skyward, pursuant to section 7.7 of the Aeronautics Act (Act) on the following grounds:

COUNT #1:

Canadian Aviation Regulations 605.10(1)(b), in that between August 13, 2003 and August 18, 2003, at or near Thompson, Manitoba, where a minimum equipment list had not been approved in respect of the operator, namely, Skyward Aviation Ltd., of an aircraft, to wit: a Cessna Aircraft Company, Cessna 441 aircraft bearing Canadian registration markings C‑GSKH, you conducted take-offs in the aircraft with equipment, namely, the right‑hand auxiliary fuel boost pump that was not serviceable, where that equipment was required by the equipment list published by the aircraft manufacturer respecting aircraft equipment that was required for the intended flights; more specifically, the Cessna 441 Conquest equipment list for aircraft serial number 441‑0264 dated 21 October 1981.

PROCEEDINGS BY WAY OF VICARIOUS LIABILITY, SECTION 8.4 OF THE AERONAUTICS ACT

[2] Skyward has requested that the Transportation Appeal Tribunal of Canada review the Minister's decision to assess this monetary penalty on the basis that it did not contravene any provisions of the Act or the Canadian Aviation Regulations (CARs), in operating the aircraft pending the installation of new parts to the auxiliary fuel pump and, in any event, that it exercised all due diligence to prevent any such contravention.

II. CANADIAN AVIATION REGULATIONS

[3] Section 605.10(1)(b) of the CARs is as follows:

605.10 (1) Where a minimum equipment list has not been approved in respect of the operator of an aircraft, no person shall conduct a take-off in the aircraft with equipment that is not serviceable or that has been removed, where that equipment is required by

...

(b) any equipment list published by the aircraft manufacturer respecting aircraft equipment that is required for the intended flight;

III. EVIDENCE

A. Agreed Statement of Facts and Documents

[4] At the outset of the proceedings, the parties presented me with an agreed statement of facts and documents duly signed by their representatives and dated April 23, 2008. It is reproduced in full as follows:

1. The parties hereto consent to the following documents being entered as exhibits at the Transportation Appeal Tribunal of Canada hearing on April 23, 2008:

Exhibit             

Document

M-1

Journey log for C-GSKH August 13‑20, 2003

M-2

Cessna 441 Conquest Equipment List

M-3

Excerpts from the Cessna 441 Pilot's Operating Handbook dealing with the fuel system and boost pump operations

M-4

Certificate of Registration of Aircraft for C‑GSKH

M-5

Standard Certificate of Airworthiness for C-GSKH

2. The parties hereto agree and admit to the following facts:

a) The Cessna 441 aircraft C-GSKH was registered to Skyward Aviation Ltd. of Thompson, Manitoba between August 13, 2003 and August 18, 2003.

[There is no b) in the agreed statement of facts.]

c)  On August 13, 2003, a snag was recorded in the aircraft journey log for C‑GSKH stating "R/H aux fuel pump is working intermittently".

d) On August 13, 2003, a corrective action was recorded in the aircraft journey log for C‑GSKH stating "Deferred for parts Snag #27-76777-1".

e)  C-GSKH was operated on at least 18 flight segments between August 13, 2003 and August 18, 2003 while the aux pump snag was deferred.

f)  On August 20, 2003, a flight snag and a corrective action was recorded in the aircraft journey log for C-GSKH stating "Deferred snag #27-76777-1 R/H aux pump intermittent from 03‑08‑13. Replaced R/H aux fuel pump. Leak checked, okay. Ground run with aux pump function test, satisfactory. Cleared deferred snag on JL#03-08-20".

g) A Minimum Equipment List had not been approved in respect of Skyward Aviation Ltd. regarding the Cessna 441.

B. Minister of Transport

(1) William Douglas Moyse

[5] Inspector William Douglas Moyse testified that he was an inspector with Transport Canada in the Commercial and Business Aviation – Civil Aviation Division and had been employed by Transport Canada for approximately 9 ½ years. On August 20, 2003, he travelled to Thompson, Manitoba, to conduct a PPC on a Cessna 441 aircraft, registered to Skyward. This check did not take place because during the pre‑check process he discovered that there was a "snag" or defect with respect to an auxiliary fuel pump on the aircraft.

[6] After determining that the right-hand auxiliary fuel pump was inoperative, Inspector Moyse spoke by telephone to Inspector Robert Levreault, an aircraft maintenance engineer (AME) employed with Transport Canada. Inspector Levreault indicated that he would do some research and get back to Inspector Moyse with his view as to the appropriateness of operating the aircraft in such circumstances. Later that day, he contacted Inspector Moyse by telephone and indicated that all fuel pumps were required to be operable. Inspector Moyse made copies of the journey log and advised Skyward that the PPC would not take place.

[7] Inspector Moyse testified that he issued a detection notice dated September 4, 2003 indicating that Skyward had conducted 18 take-offs in C-GSKH with a defective right-hand auxiliary fuel pump that had been deferred for parts. The alleged violation period was stated to be August 13-18, 2003 (exhibit M‑6).

[8] During his testimony, Inspector Moyse referred to the equipment list for the Cessna 441 Conquest aircraft, dated October 21, 1981 (exhibit M-2), and pointed out that under section A, the auxiliary fuel pumps were identified as required equipment. Inspector Moyse also referred to various portions of the Pilot's Operating Handbook and FAA Approved Airplane Flight Manual (POH; exhibit M-3) to support his position that the auxiliary fuel pump was required equipment.

(2) Robert Levreault

[9] Inspector Levreault is employed with Transport Canada as a civil aviation safety inspector. He is a licensed AME and has been since 1989. He testified that on August 20, 2003 he was contacted by Inspector Moyse and was advised that the right auxiliary boost pump in a Cessna 441 Conquest aircraft registered to Skyward was inoperable. He was asked whether this was required equipment for a take-off. Inspector Levreault outlined the steps he took to obtain and review the POH. He concluded the auxiliary fuel pump was required equipment and advised Inspector Moyse accordingly.

[10] Inspector Levreault also made reference to the equipment list (exhibit M‑2) and the inclusion of the auxiliary pumps as required equipment under section A and not optional equipment under section B. Inspector Levreault indicated that the journey log (exhibit M-1) and the equipment list for the Cessna 441 Conquest aircraft (exhibit M-2) referred to the same serial number and that the illustrated parts catalogue for the Cessna model 441 (exhibit M-7) referred to the same part numbers for the auxiliary fuel pump as the equipment list (exhibit M‑2).

[11] Inspector Levreault was asked by the representative of the Minister to comment on section 605.10 of the CARs. He indicated it was a regulation respecting inoperative equipment for all aircraft types that do not have a minimum equipment list. He referred to section 605.10 as a regulation of general application, not an obscure regulation.

[12] Inspector Levreault referred to a telephone conversation he had with Tim Sweeney, the AME for Skyward on August 20, 2003, questioning the basis on which Transport Canada had reached its determination. Mr. Sweeney referred to another type of aircraft that could be operated with one fuel pump. Inspector Levreault responded that the requirements could not be applied for one aircraft to another. He advised that the inoperative auxiliary fuel pump was replaced that day, August 20, 2003, by Skyward.

[13] To introduce guidance material elaborating on section 605.10 of the CARs relating to unserviceable equipment, counsel for Skyward questioned Inspector Levreault on information notes to standard 625, Aircraft Equipment and Maintenance Standard (exhibit A-1). Particular reference was made to paragraphs (i), (ii), (vi) and (vii) of the information notes to section 625.10 to ascertain Inspector Levreault's understanding of those provisions. Inspector Levreault was also referred to the type certificate data sheet no. A28CE (exhibit A-2) and to part 23 of the Federal Aviation Regulations, respecting main pumps and emergency pumps. It was agreed that while this part was not in effect in 2003, it was similar to the provision in existence at that time (exhibit A‑3).

[14] During his cross-examination, Inspector Levreault indicated that every aircraft must have an equipment list to determine the empty weight calculation of the aircraft. This list would likely be changed or modified over the years. The equipment list must be kept up to date and include any deletions or modifications. In Inspector Levreault's view, it is the equipment list for the specific aircraft, as amended, that should be referred to for the purpose of determining compliance with section 605.10 of the CARs.

[15] Inspector Levreault confirmed that he was a principal maintenance inspector (PMI) and, in that capacity, dealt with regulatory oversight matters. He also confirmed that air carriers contact him for guidance and indicated that the PMI for Skyward in 2001 was likely Garnet Fedorowich.

[16] In re-examination, Inspector Levreault was again referred to section 605.10(1)(b) of the CARs. He expressed the view that the provision was not ambiguous and that it applied to equipment required by an equipment list published by the aircraft manufacturer. Inspector Levreault also confirmed that there was no minimum equipment list, a matter which had been agreed to under item 2(g) of the agreed statement of facts and documents.

(3) Joseph David Gaudry

[17] Inspector Joseph David Gaudry is employed in the Aviation Enforcement Branch of Transport Canada as a civil aviation safety inspector. In September 2003, he was assigned to this matter as the primary investigator. On November 24, 2003, he wrote a letter to Skyward and received a reply dated January 16, 2004 signed by Frank Behrendt, president of Skyward (exhibit M-8). This letter outlines the steps that were taken to determine the appropriate course of action with respect to a defective fuel pump in a Cessna Conquest aircraft in 2001. It also refers to a review of the equipment lists relating to Skyward's aircraft after receiving Transport Canada's letter dated November 24, 2003. This letter concludes with Skyward's belief that it was duly diligent with respect to the deferral of the auxiliary fuel pump in the Cessna aircraft C‑GSKH.

[18] Inspector Gaudry testified that he assessed the POH (exhibit M-3) and concluded it did not condone the operation of the aircraft with a defective auxiliary fuel pump. Inspector Gaudry also testified that a review of different aircraft types was inappropriate in determining whether an auxiliary fuel pump was required for the particular aircraft under consideration. It was the equipment list of that aircraft that was relevant. Inspector Gaudry also pointed out that the letter did not indicate that Cessna or for that matter, Transport Canada, had been contacted by Skyward with respect to this issue in 2003.

[19] Inspector Gaudry indicated that he spoke to the manufacturer of the aircraft and obtained a verbal and written response to his questions. Counsel for Skyward objected to the introduction by Inspector Gaudry of any oral or written responses from Cessna on the basis that it was "hearsay" and could not be the subject of cross‑examination. In response to my question, the representative of the Minister confirmed that he would be relying on the truth of those responses. Recognizing that such evidence could have a significant impact on the determination of this matter, I concluded that Skyward would be unfairly prejudiced by the admission of this evidence and I refused to hear it.

[20] In cross-examination, Inspector Gaudry indicated that the 2001 incident related to a non‑operational main fuel pump while the 2003 incident related to a non-operational auxiliary fuel pump. It was then confirmed by the representative of the Minister that the pumps are interchangeable. Inspector Gaudry was questioned by counsel for Skyward with respect to tests or procedures for other aircraft but, in reply evidence, indicated that each aircraft has tests or procedures that are not necessarily comparable to another type of aircraft.

C. Applicant

(1) Jon Paul Einarson

[21] Jon Paul Einarson is an AME employed with Skyward and at all relevant times was employed as its director of maintenance. Mr. Einarson testified that in 2001 there was an unserviceable fuel pump on a Cessna Conquest aircraft and that various steps were taken to determine an appropriate course of action with respect to that fuel pump. Mr. Einarson contacted Mr. Fedorowich, Skyward's PMI, to indicate the steps that had been taken and received a response to the effect that "he had done his homework". Based on that response, the unserviceable fuel pump was deferred. Mr. Einarson indicated that he spoke with Mr. Fedorowich from time to time and had a good working relationship with him.

[22] Mr. Einarson testified that Skyward started operating a Cessna 441 aircraft in 2000 or 2001. Skyward operated other aircraft types as well. Mr. Einarson produced a binder containing Skyward's aircraft equipment lists (exhibit A-4) which he reviewed in some detail to illustrate the difference in treatment of such equipment by aircraft types. Based on the 2001 research conducted by Skyward, he concluded that with respect to each type of aircraft operated by Skyward, it was acceptable to conduct take-offs with one fuel pump being unserviceable. Mr. Einarson testified that he was not directly involved with the auxiliary fuel pump defect in 2003 but, on eventually becoming aware of it, he had no problem with its deferral based on the research which was conducted by Skyward in 2001.

[23] Mr. Einarson was requested to provide his understanding of section 605.10(1)(b) of the CARs. He indicated that his review of that provision would cause him to look not only at the equipment list but also at section 625.10 of the Aircraft Equipment and Maintenance Standard and the POH. Also, with respect to the equipment list, it would be necessary to look at whether the equipment was required for the intended flight. Mr. Einarson indicated that Skyward did not approach the manufacturer as it believed that Transport Canada was the final authority. He indicated that it was difficult to contact Cessna and be put on the right track. When he had attempted to do so on other occasions, he had been told by a representative of Transport Canada that the Department was the ultimate authority, not the manufacturer. Mr. Einarson concluded by testifying that no pressure had been put on him by Skyward to bend or break any rules.

[24] In cross-examination, Mr. Einarson agreed that the equipment list is unique to each aircraft, including aircraft of the same type. Mr. Einarson confirmed that while he had consulted the manufacturer's equipment lists for other aircraft operated by Skyward, he had not consulted the manufacturer's equipment list for the aircraft involved in this case.

(2) Frank Peter Behrendt

[25] Mr. Behrendt identified himself as the president of Skyward and indicated that he held that position during the relevant events in 2001 and 2003. Mr. Behrendt testified with respect to the fuel pump failure in 2001 and confirmed that the Cessna 441 was a relatively new aircraft for Skyward with a new engine type at that time. Accordingly, no procedures had been established. Mr. Behrendt indicated that one learns about the aircraft as experience is gained with it. He stated that the initial reaction was that the defective fuel pump could be deferred based on past experience with other aircraft types. Nonetheless, the matter was thoroughly researched and included consultation with a pilot on staff who had previous experience with the Garrett engine in the Cessna 441 aircraft, although not this particular aircraft. The steps taken are outlined in Mr. Behrendt's letter (exhibit M-8).

[26] Because of the lack of certainty as to the deferral of this equipment, Transport Canada was contacted in 2001 and, from Mr. Behrendt's perspective, approved the deferral of the fuel pump. Mr. Behrendt indicated that Cessna was not contacted because he considered Transport Canada to be the regulating authority. He believed that the PMI assigned to Skyward had approved the deferral of the fuel pump and that no further steps were necessary. He also indicated that a senior Transport Canada manager had earlier indicated that if there was a technical issue, the appropriate person to contact was the PMI at Transport Canada.

[27] In cross-examination, Mr. Behrendt was questioned about Skyward's failure to consult with the manufacturer either in 2001 or 2003. Mr. Behrendt indicated that it seemed appropriate for Skyward and Transport Canada to resolve the matter. He again referred to the advice provided by the senior Transport Canada manager that he should approach Transport Canada and not Cessna for the resolution of technical issues with enforcement implications. Mr. Behrendt was questioned about whether approval was actually received in 2001 from Transport Canada with respect to the deferral of the fuel pump. He responded that Skyward was not advised that there was anything wrong with the approach it was taking and that it sounded like a "yes, you have done your homework".

IV. ARGUMENT

A. Minister of Transport

[28] The representative of the Minister took the position that all elements of section 605.10(1)(b) of the CARs had been established based on the agreed statement of facts and documents and on the evidence adduced during the hearing.

[29] The representative of the Minister submitted that:

a) a minimum equipment list had not been approved in respect of Skyward regarding the Cessna 441;

b) Skyward conducted 18 take-offs in the Cessna 441 aircraft between August 13 and 18, 2003 when the right-hand auxiliary fuel boost pump was not serviceable and the defect was deferred; and

c) the right-hand auxiliary fuel boost pump was required by virtue of an equipment list published by the manufacturer for these flights.

[30] The representative of the Minister submitted that section 605.10(1)(b) of the CARs was a strict liability offence and that the Minister had established that the offence had taken place on a balance of probabilities. He further submitted that a statutory defence regarding due diligence was not made out by Skyward and that the diligence exercised in this matter was not adequate in the circumstances.

[31] The representative of the Minister submitted that Skyward had not researched the master equipment list for the Cessna 441 aircraft in question nor had it contacted Cessna with respect to the requirement for the auxiliary fuel pump. While the Minister admitted that Skyward exercised some diligence, it had fallen short of all due diligence.

[32] The representative of the Minister also submitted that there was no officially induced error. He indicated that while a representative of Transport Canada was approached in 2001 with respect to a deficient fuel pump in a Cessna 441 aircraft, the 2003 incident was a different situation albeit a similar defect. In 2003, Transport Canada was not consulted, and it is not logical to rely on the circumstances relating to a 2001 defect. The representative of the Minister submitted that this was a serious matter constituting a threat to aviation safety. The monetary penalty is a recommended first offence sanction and is modest under the circumstances.

B. Applicant

[33] Counsel for Skyward submitted that we must look firstly at the regulation itself, namely section 605.10(1)(b) respecting unserviceable equipment to determine the requirements for contravention. This provision does not simply say any equipment required by an equipment list published by the aircraft manufacturer. It also says aircraft equipment that is required for the intended flight. It was argued that this further phrase brings a more subjective element to this provision and that I must consider whether the equipment was "required for the intended flight". In order to do so, I was invited to have regard to the minimum equipment list information notes (exhibit A-1), the type certificate data sheet no. A28CE (exhibit A-2) and part 23 of the Federal Aviation Regulations relating to fuel pumps (exhibit A-3). I was also invited to have regard to section 605.10(1) of the CARs in its totality, namely paragraphs (a) to (e) inclusive. It was argued that by so doing, I would be able to conclude that I should not be limited to a consideration of the equipment list for this particular aircraft, but would be entitled to consider the desirability of "a common standard [to] be applied to all aircraft of a fleet" as indicated in paragraph (vii) of the information notes to section 625.10 (exhibit A-1). It was for this reason that Skyward produced a binder of aircraft equipment lists (exhibit A‑4) which indicated, for example, that out of 17 aircraft only 5 have the word "required" in them, and out of 9 different aircraft types, 4 of them used "required". I was told that the binder of aircraft equipment lists clearly demonstrated that other aircraft in Skyward's fleet allowed the deferral of a deficient fuel pump.

[34] Counsel for Skyward indicated that the term "all due diligence" has an element of reasonableness to it and that precedent governs how you act. Accordingly, the research done and the advice received from Transport Canada with respect to the 2001 incident are part and parcel of the 2003 incident. In fact, it was the same incident in terms of a fuel pump deferral in the same aircraft type. It was impressed upon me that Skyward believed that it had the blessing of Transport Canada in 2001 and that it was reasonable to rely on that blessing once again in 2003.

[35] Counsel for Skyward requested that I consider the relationship between Skyward and its regulator. He indicated that a PMI is appointed for each carrier and referred to the evidence of Mr. Einarson with respect to his ongoing consultations with the PMI assigned to Skyward in 2001 respecting regulatory compliance issues. At the end of the day, Skyward went to its PMI to discuss the issue of deferring the deficient fuel pump and received a response that it took to be an approval. Skyward should be entitled to rely on that representation before the Tribunal, and it was inappropriate for Transport Canada to argue otherwise in the circumstances of this case.

C. Minister of Transport – Reply

[36] The representative of the Minister submitted in reply that section 605.10(1)(b) of the CARs was not ambiguous. He submitted that it was erroneous to consider that one equipment list is the same as another and that it is fundamental to have regard to the equipment list for the specific aircraft. He reiterated that Skyward had looked at the equipment list for other aircraft but not for the specific Cessna 441 aircraft. He concluded by submitting that the onus was on Skyward to show that it had taken all reasonable steps and that it had failed to meet that onus.

V. CONSIDERATION OF EVIDENCE AND ARGUMENT

[37] The parties have taken significantly different positions respecting the interpretation of section 605.10(1)(b) of the CARs. During his testimony, Inspector Levreault referred to this provision as one of general application and did not consider it to be ambiguous. Mr. Einarson for Skyward testified that his review of the provision would cause him to look at the relevant sections of the Aircraft Equipment and Maintenance Standard and information notes as well as the provision itself.

[38] The representative of the Minister submitted in final argument that the provision is not ambiguous. Counsel for Skyward submitted that the interpretation of the provision entails a consideration not only of the equipment list published by the aircraft manufacturer, but whether the equipment would be required for the intended flight. He also submitted that the equipment's requirement for the intended flight brings a more subjective element to the provision, and that I should have regard to data such as information notes and equipment lists of other aircraft operated by Skyward to assist with a proper interpretation of that provision.

[39] I have given careful consideration to the interpretation of section 605.10(1)(b) of the CARs which admittedly is cumbersome, using as it does the word "required" with respect to both the manufacturer's equipment list and the intended flight. It has been agreed that a minimum equipment list has not been approved in respect of Skyward regarding the aircraft in question. Moreover, we are dealing here with an auxiliary fuel pump that was not serviceable. It appears to be acceptable, therefore, to paraphrase section 605.10(1)(b) of the CARs for the purposes of this case as follows:

no person shall conduct a take-off in the aircraft with equipment that is not serviceable

  • where that equipment is required

o by any equipment list published by the aircraft manufacturer

o respecting aircraft equipment that is required for the intended flight.

[40] It seems to me that section 605.10(1)(b) of the CARs means that it is necessary to have serviceable equipment when conducting a take-off in the aircraft if the equipment is required for the intended flight by virtue of an equipment list to that effect published by the manufacturer.

[41] I do not find section 605.10(1)(b) of the CARs to be ambiguous. It can be interpreted in accordance with the plain and ordinary meaning of the words themselves. Extrinsic evidence such as the exhibits entered by Skyward is not needed to assist in the interpretation of this provision.

[42] Section 605.10 of the CARs sets out a number of requirements for equipment when a person conducts a take-off in the aircraft. These requirements are found in paragraphs (a) to (e) inclusive. I have reviewed those paragraphs and find that paragraph (b) complements them. There is no inconsistency.

[43] The Cessna 441 Conquest equipment list (exhibit M-2) identifies the auxiliary fuel pumps as required equipment. There are no limitations or restrictions in this regard. I note the evidence of Inspector Levreault that every aircraft must have an equipment list which may be changed or modified over time. I was not referred to any such amendment respecting the auxiliary fuel pumps or any restrictions or limitations respecting their status as required equipment. I must therefore conclude on the evidence before me that the right-hand auxiliary fuel boost pump was required to be serviceable when the 18 or more take-offs were conducted by Skyward in the Cessna 441 aircraft C-GSKH, between August 13 and 18, 2003.

VI. DUE DILIGENCE DEFENCE

[44] At the outset of the proceedings and again in closing argument, Skyward submitted that it should not be found to have contravened the designated provision by virtue of section 8.5 of the Act, namely, that it exercised all due diligence to prevent the contravention.

[45] In Canada (Minister of Transport) v. Boklaschuk, [1990], appeal determination, CAT file no. C-0141-33, [1990] C.A.T.D. no. 65 (QL) at 5, reference is made by the Civil Aviation Tribunal to the due diligence defence as follows:

At the Hearing, a defence of Due Diligence was raised. Section 8.5 of the Aeronautics Acts provides:

"No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention".

Section 8.5 is a statutory recognition that offences under the Aeronautics Act and the Regulations are not "Strict Liability Offences".

Due Diligence is defined in Black's Law Dictionary, Fifth Edition, as follows:

"Such a measure of prudence, activity or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by an absolute standard, but depending on the relative facts of the special case."

[46] In Canadian Airlines International Ltd. v. Canada (Minister of Transport), [1993], appeal determination, CAT file no. P-0168-50, [1993] C.A.T.D. no. 55 (QL), the Civil Aviation Tribunal indicates that:

36 . . . section 8.5 provides that "all due diligence must have been exercised". It is necessary to give meaning to the word "all" because it quantifies the behaviour expected from [the person charged] in order to benefit from the defence provided in section 8.5. The onus is on [the person charged] to lead evidence that forms the basis from which the Tribunal can conclude, on a balance of probabilities, that [the person charged] exercised all due diligence to prevent the contravention in question. . . .

[47] Skyward did not consult with the manufacturer of the aircraft respecting the specific equipment list requirements. Notwithstanding advice or warnings from a Transport Canada employee to the contrary, the fuel pump deferral was governed by the manufacturer's equipment list respecting the requirement of the equipment for the intended flights. Had the manufacturer taken the position that the auxiliary fuel pump was required for the intended flights, that would have been persuasive and perhaps conclusive evidence against deferring the fuel pump. Conversely, had the manufacturer taken the position that the auxiliary fuel pump was not required for the intended flights, it would be unlikely that the Minister could have successfully maintained this proceeding had it chosen to do so. It is simply not possible, in the circumstances, to conclude that Skyward's failure to discuss this matter with the manufacturer was consistent with its requirement to exercise all due diligence.

[48] Mr. Einarson indicated that he consulted Mr. Fedorowich, Skyward's PMI in 2001. While Skyward's review of other aircraft with similar fuel system designs was discussed with Mr. Fedorowich, there was no discussion relating to the manufacturer's equipment list for the Cessna 441 Conquest aircraft C‑GSKH.

[49] In 2003, no discussions took place with Transport Canada to determine whether Skyward's understanding of the position taken by Mr. Fedorowich in 2001 still applied. The failure of Skyward to discuss the applicable equipment list and its requirements with Transport Canada forecloses an argument as to the reasonableness of this omission based on precedent.

[50] After considering the facts and circumstances of this case, I am unable to determine that Skyward exercised all due diligence in this matter and conclude that the defence provided by section 8.5 of the Act has not been made out.

[51] Moreover, I find that there was no "officially induced error" inasmuch as there were no discussions with Transport Canada relating to the relevant equipment list.

[52] I agree with the submissions of the representative of the Minister that the monetary penalty imposed is reasonable constituting as it does, the penalty that would normally be assessed for a first offence.

[53] I would like to thank counsel for Skyward and the representative of the Minister for their concise and able presentations.

VII. DETERMINATION

[54] I confirm the decision of the Minister to assess a monetary penalty of $1250 against Skyward.

May 30, 2008

James E. Foran

Member