TATC File No. W-3350-35
MoT File No. SAP-5504-61788 P/B
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Donald Vern Schnurr, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, 7.7
Canadian Aviation Regulations, SOR/96 433, 605.94(1)
Arnold Price Vaughan
Decision: October 3, 2008
Citation: Schnurr v. Canada (Minister of Transport), 2008 TATCE 30 (review)
Heard at Fort McMurray, Alberta, on August 13 and 14, 2008
Held: I confirm the decision of the Minister of Transport set out in the notice of assessment of monetary penalty dated February 21, 2007. The total amount of $750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.
 On February 21, 2007, the Minister of Transport assessed a monetary penalty of $750 against the applicant, Donald Vern Schnurr, for contravention of section 605.94(1) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act).
 Schedule A of the notice of assessment of monetary penalty states the following:
#1 - CARs 605.94(1)
On or about the 14th of September 2006, at or near Fort McMurray, Alberta, being the person responsible for making an entry in a journey log, for aircraft C-GZAM, you did fail to make the entry in accordance with schedule 1 of section 605.94(1) of the Canadian Aviation Regulations, more specifically a maintenance entry in the journey log book following a reported defect with the right hand generator system, a contravention of section 605.94(1) of the Canadian Aviation Regulations.
MONETARY PENALTY − $750.00
TOTAL MONETARY PENALTY − $750.00
 Section 605.94(1) of the CARs reads as follows:
605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.
A. Minister of Transport
(1) Leon Dirven
 On September 14, 2006, Leon Dirven was the pilot‑in‑command (PIC) of the aircraft registered as C-GZAM, a Beech 99A Airliner, operated by Air Mikisew Ltd. of Fort McMurray, Alberta. It was a scheduled passenger flight departing Fort McMurray for Fort Chipewyan, Alberta.
 Mr. Dirven is a former Canadian Armed Forces pilot who was hired as a captain on the Beech 99. At the time of the occurrence, he had approximately 300 hours on type and was a training captain for the company.
 According to the aircraft journey log book (exhibit M-1), he had flown this aircraft earlier in the day to Fort Chipewyan without incident. On the third flight of the day, Mr. Dirven advanced the power for take-off when the right generator failed. This was indicated by the illumination of the right generator light on the annunciator panel. He carried out a rejected take‑off and cleared the runway to perform the electrical system failure procedure as detailed in the Pilot's Operating Manual (POM; exhibit M-3). When this procedure was carried out the generator light went out and it appeared to be operating normally. The generator light had illuminated very early in the take-off, at a speed of approximately 40 knots.
 Mr. Dirven taxied back to the threshold of the active runway to initiate a second take-off. When he applied the power, the same generator fault occurred. This time, Mr. Dirven taxied the aircraft back to Air Mikisew's hangar to seek maintenance assistance. The applicant was the aircraft maintenance engineer (AME) who responded. He advised Mr. Dirven to carry out a run‑up and indicate to him with a thumb up from the cockpit if the generator stayed on line. This static power check indicated no difficulty with the generator. After a delay of approximately one hour, the aircraft departed without further incident to Fort Chipewyan.
 Since the generator had been successfully reset twice and functioned for the remainder of the day, Mr. Dirven did not make an entry in the defects section of the journey log book. In his estimation, there was no defect. The Air Mikisew occurrence report (exhibit M-2) was filled out four days later on September 18, 2006, due to the urging of Shawn Bennett, who was responsible for quality assurance at Air Mikisew. Mr. Dirven understood that Mr. Bennett required this at the insistence of Transport Canada.
 Mr. Dirven answered a series of questions regarding his knowledge and interpretation of the POM and the Flight Manual for the Beechcraft 99 (flight manual, exhibit M‑3). He stated that under the section entitled "Kinds of Operations Equipment List" of the flight manual (exhibit M-3, tab 2), the manufacturer required that two D.C. generators be installed and operable for day VFR flights. The flight to Fort Chipewyan was operated under this requirement. Mr. Dirven explained that, since Air Mikesew did not have an approved minimum equipment list (MEL), the equipment identified in the list must be serviceable in order to satisfy type certification.
 He testified to the actions he undertook during the two attempts he made to restore the right generator in accordance with information related to the emergency procedures of section III of the flight manual (exhibit M-3, tab 5). Based on other information from the flight manual (exhibit M-3, tabs 6-8), he described his understanding of how the annunciator and generator systems functioned. Mr. Dirven stated that he was not prepared to answer questions concerning the Maintenance Control Manual (MCM, exhibit M-3). However, he correctly pointed out that section 1.3.2 of the MCM (exhibit M‑3, tab 11) applies to all company personnel and contract maintenance organizations that are involved in the maintenance of aeronautical products.
 In cross-examination, Mr. Dirven confirmed that the generators caused no problem at higher power settings.
(2) Dan Hrynyk
 Dan Hrynyk is a Transport Canada civil aviation safety inspector and holds an AME licence since 1981. At the time of the incident, he was the principal maintenance inspector for Air Mikisew and the point of contact with Transport Canada.
 Inspector Hrynyk testified to his involvement in the case, which resulted from the civil aviation daily occurrence report no. 2006C2417 (CADORS report, exhibit M-5) issued by Nav Canada. He discovered that neither the director of maintenance nor the quality assurance manager at the carrier was aware of the incident because it had not been reported by either the flight crew or maintenance personnel in the required records.
 Inspector Hrynyk explained why it was important to document an electrical fault of this nature, as it may indicate a bad ground or chaffing of the electrical wires. This may pose a fire hazard. Recurring defects may fall through the cracks if they are not recorded. He also stated that since the aircraft does not have an MEL, a maintenance release was needed for dispatch. The run‑up inspection that was performed to determine the serviceability status of the aircraft should have been recorded in the rectification section of the journey log book.
 Inspector Hrynyk used the MCM to demonstrate the correct procedures and the obligations of company personnel to follow these procedures. In particular, sections 3.1.3 and 3.2.2 (exhibit M-3, tab 17 and 19) provide that entries must be recorded in the journey log book. He pointed out that the MCM requires training for personnel in the contents of the manual and shop procedures (exhibit M‑3, tab 26).
 Following his investigation, Inspector Hrynyk issued a detection notice (exhibit M-9). In his narrative, he refers to another detection notice issued on September 13, 2005 for the same offence under section 605.94(1), but for a different aircraft.
 Since Inspector Hrynyk testified about safety concerns relating to the generator fault light, I asked him clarifying questions about the cause factors. These questions were related to the electrical system schematic, functioning of the voltage regulators, paralleling operations and reverse current regulator. Inspector Hrynyk explained that the manufacturer describes the actions to be taken by the pilot in the event that one generator falls off the line while "taxiing" at low N1 settings. He stated that the manufacturer also provides an explanation on how to restore a paralleling operation.
 This is a fundamental distinction to make. Messrs. Schnurr and Dirven, through oral and written evidence, insisted that this was a "paralleling" condition (exhibit A-3) and not a fault. In later testimony, Mr. Schnurr used the term "lazy generator". The Minister insisted that the "taxiing" provision does not apply to take-off.
(3) Shawn Bennett
 At the time of the incident, Mr. Bennett was the quality assurance manager at Air Mikisew. He has been an AME for 17 years and has been working with Air Mikisew for 9 years.
 Mr. Bennett described the actions he took after he was informed by Inspector Hrynyk that a CADORS report had been issued. He said that he had spoken to the flight crew and to Mr. Schnurr about the generator and the subsequent ground run. He also had a conversation with chief pilot, Steve Webster, since the incident was an issue concerning the air operator certificate as the operations manual had not been followed. Corrective actions were detailed in Air Mikisew's internal maintenance quality discrepancy report (exhibit M-8).
 The Minister's representative questioned Mr. Bennett about section 3.5.2 of the MCM (exhibit M-3, tab 25). He specifically asked if the ground run constituted "maintenance action or elementary work" as described in item 11 of schedule 1 of section 605 of the CARs. If so, he was interested to know if that correlated to section 3.5.2, which required that elementary maintenance be recorded in the journey log book. Mr. Bennett first answered that he did not think that the ground run requested by Mr. Schnurr was a maintenance action. Under rigorous questioning, he did concede that the ground run was a type of troubleshooting that met the reporting requirement.
 In cross-examination, Mr. Bennett admitted that the PIC was responsible for the entry in the journey log book. However, the entry had not been made.
(4) Mitch Paulhus
 Inspector Paulhus, who is also a licensed AME, was assigned as the investigator for this case. He is the author of the aviation enforcement short case report (exhibit M‑15).
 During his investigation, Inspector Paulhus found that Mr. Dirven had failed not only to inform Mr. Schnurr about the aborted take-offs, but also to report any type of defect in the journey log book (exhibit M-15 at 6). He stated that Mr. Schnurr did not understand the situation completely. This was confirmed in a later testimony by Mr. Schnurr, describing how Mr. Dirven "went around" to perform another take‑off. This suggested a less significant event than an aborted take-off for an abnormal occurrence.
 In the recommendations section of the aviation enforcement short case report (exhibit‑15), Inspector Paulhus states that Mr. Schnurr was offering advice regarding operating the aircraft within proper parameters. His recommendation was "no violation". This was overruled by his supervisor and regional manager. During his testimony, Inspector Paulhus used the word "defect" rather than the word "paralleling" to describe why the generator light went on. He added clarification on the definition of "maintenance action". He explained that if the run-up was performed by the pilot at the behest of the AME for the purpose of troubleshooting or checking the integrity of the system, then it was a maintenance action. This is a different matter than providing advice.
 Inspector Paulhus was of the opinion that since the fault could not be duplicated, the defect should have been documented in the journey log book for future reference.
(1) Leon Dirven
 In his testimony, Mr. Dirven referred to his email of December 7, 2006, addressed to Transport Canada (exhibit M-17) and the journey log book (exhibit A-3). He thought that the problem was related to the generators not paralleling at low idle. He made the entries in the journey log book on September 19 and 21, 2006, to have a record of the event that happened on September 14, 2006. He added that he understood the defect as a "paralleling" condition, attributed to power setting on the ground. If power were increased to 60% N1, the defect could be cleared.
 In cross-examination, Mr. Dirven was again asked who requested the entry to be made and why. He was cautioned by the Minister regarding the later entries in the journey log book (exhibit A‑3). Making a false entry was a serious offence under section 7.3 of the Act.
(2) Donald Vern Schnurr
 Mr. Schnurr testified to his understanding for the ground run. It was to determine if there was a problem. It was not to troubleshoot what the problem was. If the right generator stayed on line, the PIC would "give him the thumb" indicating there was no problem. When he saw that signal, it verified that there was no problem. It was his understanding that the PIC was responsible to determine whether the aircraft was fit for the intended flight (exhibit A‑1).
A. Minister of Transport
 The Minister submits that on a balance of probabilities he has proven all of the contested elements.
 The abnormal occurrence on September 14, 2006 resulted from two rejected take-offs with passengers on board a commercial flight, departing from Fort McMurray. The PIC testified that he aborted the take-offs because of two consecutive generator failures early in the take-off. This caused him to return to the hangar to consult with the AME, Mr. Schnurr, who recommended an engine run-up to determine the problem.
 The quality assurance manager gave his opinion that the problem was reportable. The run-up was done for troubleshooting purposes. The defect should have been entered in the journey log book.
 Mr. Schnurr was aware of an electrical problem, but was unable to duplicate it. Whether or not the pilot reported the fault in the journey log book, a 704 air carrier could not determine the serviceability of the aircraft after a reported defect to an AME. Mr. Schnurr had to do an inspection to some degree.
 Mr. Dirven's testimony and the journey log book (exhibit M-1) prove that no entry was made regarding the defect.
 Item 11 of schedule 1 of section 605 of the CARs (exhibit M-10) indicates that Mr. Schnurr was the person responsible for the entry in the journey log book. The entry was required before the next flight. The final element is that an inspection was conducted. Therefore, an entry was required.
 Mr. Schnurr states that he is not guilty because the generator did not have a fault. This was proven during the ground run. In fact, the aircraft flew with no difficulty for many days after the incident. Above 60% N1, the generator light was out.
 Mr. Schnurr did no maintenance, but merely talked to the pilot. He also considers that he has a teaching role. He instructs pilots on such matters as careful switch selections in order not to induce electrical problems.
 There are three elements on which the Minister's case stands. Was the generator faulty? Was the fault reportable? Did the suggestion for a ground run constitute a maintenance action?
 Anyone with considerable aircraft experience, especially the more sophisticated or advanced types, is painfully aware that electrical snags are notoriously difficult to diagnose and treat. This is especially true for the pilot who is usually the first responder to the problem. The AME is challenged in that he has to develop a long lasting cure.
 The pilot has to make his determination according to the gravity of the situation, often in a matter of seconds with little information, except for a failure mode enunciated either by a visual or audible warning. This was certainly the case faced by Mr. Dirven. He prudently put the safety of his passengers first by aborting the take-off.
 The second challenge for the pilot is one of diagnosis based on memory of the system description and a rudimentary understanding of the technical details. He must do this without the technical expertise of an AME. He must accurately and quickly determine if the fault is a genuine failing in the electrical system.
 Examination of the system description set out in the flight manual would convince even the most dauntless pilot that troubleshooting a Beech 99 is an arcane black art of reverse current relays, "D" terminals, generator overloads, reset coils, anti-cycle relays, paralleling circuits, which are a function of various N1s and load readings. This would require a careful study of the electrical system in the POM, a difficult undertaking with a load of passengers, the pressures of a schedule to maintain and a plethora of other operational factors.
 This aircraft was built in 1969 (exhibit M-5). Its operations manual is an anachronism. Modern aircraft manuals do not contain the myriad of details. They provide the pilot with the need to know essentials. This has been proven far more effective in de-snagging and rapid decision-making.
 The clearest guidance that the manufacturer gives concerning the electrical system is that the reverse current relay will open due to either a generator failure or the generators not paralleling. If either event happens, the generator caution light illuminates. This is what Mr. Dirven saw on his take-off.
 Another section of the POM (exhibit M-3, tab 6) states the following: "The failure of a single generator does not require the immediate attention of the pilot and, therefore, does not actuate the flashing fault warning lights". This begs the question whether the PIC had the option to continue the take-off and reset the generator once safely airborne. Then, he would have had the required two generators to continue with the VFR flight. There is a further complication that this may happen while taxiing at lower power settings. If this should happen, it may not be a true fault but more of a flaw in the design.
 Rectification of a generator inoperative can be found under the emergency procedures at section III of the flight manual (exhibit M-3, tabs 4 and 5). The manufacturer defines this problem as an electrical system failure. This suggests the potential gravity of a generator light turned on. Mr. Dirven followed this procedure to bring the right generator back on line.
 The journey log book (exhibit A-3) shows that there was in fact rectification work carried out for the entries "generators will not parallel" made on September 19 and 21, 2006. Two types of maintenance were performed to correct the fault. Voltage regulator adjustments were made and a wire with high resistance was replaced. Therefore, the generator was not merely lazy as described.
 My questions to Inspector Hrynyk explored a number of other faults that could have caused the right generator to come off line other than a mere paralleling issue. Given this happened on power application for take‑off and not during the taxi, it would be easy to speculate that a power surge or sticking contacts or relays could have been the cause. On a balance of probabilities a fault existed and, given the right set of circumstances, it manifested itself. The ground run did not present the identical set of circumstances as the two take‑off attempts did. Therefore, my determination is that an electrical fault existed.
 Whether the fault is reportable is subject to whether it meets the criteria of an abnormal occurrence. Item 3 found in column 1 of schedule II of section 605 of the CARs refers to an abnormal occurrence to which a component has been subjected. The method of recording is explained in appendix G of standard 625, Aircraft Equipment and Maintenance Standard. Two generator fail warnings on take‑off would be an abnormal occurrence. Section 523.1322 of the CARs defines an amber caution light as indicating a possible need for future corrective action. The emergency section of the flight manual (exhibit‑M‑3, tab 4) provides corrective actions for the pilot, and the journey log book (exhibit A‑3) shows the corrective action that was later undertaken by maintenance personnel.
 The next issue is whether the ground run meets the definition of maintenance, as referred in item 11 of schedule 1 of section 605 of the CARs. Section 101.01(1) of the CARs provides the following definitions of "maintenance", "maintenance release" and "required inspection":
"maintenance" means the overhaul, repair, required inspection or modification of an aeronautical product, or the removal of a component from or its installation on an aeronautical product, but does not include
(a) elementary work,
(b) servicing; or
(c) any work performed on an aircraft by the manufacturer prior to the issuance of whichever of the following documents is issued first
(i) a certificate of airworthiness,
(ii) a special certificate of airworthiness, or
(iii) an export airworthiness certificate;
"maintenance release" - means a certification made following the maintenance of an aeronautical product, indicating that the maintenance was performed in accordance with the applicable provisions of these Regulations and the standards of airworthiness;
required inspection" - means an inspection of an aeronautical product that is required by a maintenance schedule, an airworthiness limitation or an airworthiness directive, except where the airworthiness directive specifies that the inspection may be performed by a flight crew member.
 According to the information found in the section entitled "Kinds of Operations Equipment List" of the flight manual, (exhibit M-3, tab 2), two generators are required for day VFR flights. This is an airworthiness limitation. An airworthiness limitation meets the definition of a required inspection. The ground run was therefore a maintenance action required to inspect the serviceability of the right generator.
 In his testimony, Mr. Schnurr indicated that he did not take any maintenance action. Yet, Mr. Hrynyk's memorandum concerning CADORS report no. 2006C2417, dated September 18, 2006 (exhibit M-5) states the following: "The crew then took the aircraft back for maintenance action. Air Mikisew maintenance checked the system for operation, voltage and load checks performed with no fault found and no further warning lights". Mr. Dirven states the following in his occurrence report (exhibit M-2): "maintenance consulted, flight plan was delayed one hour and the flight continued WFI. However, the page of the journey log book (exhibit M-1) shows that the flight landed at Fort McMurray (YMM) at 10:22 a.m., but did not depart on the next leg to Fort Chipewyan (YPY) until 5:20 p.m. This was a long period of time for a mere consult and a run‑up.
 The three criteria for the Minister's case have been established. The elements of the strict liability offence have been proven. Section 8.5 of the Act provides that a defence to a contravention of the CARs can be provided if the alleged offender exercised all due diligence to prevent the contravention.
 Given the difficulty in diagnosing the electrical fault and its transient nature, I asked Mr. Schnurr what actions he had taken to record the events or due diligence he may have used to prevent the alleged contravention. I did not hear any suggestion that all reasonable care was taken to ensure that the CARs standard was met. A prudent AME would ensure that an abnormal occurrence is documented. This is especially true since electrical faults can mysteriously reappear. Even though it did not happen, recording the abnormal occurrence and maintenance action was the best and most prudent method for future tracking. Granted Air Mikisew is a small company and word of mouth could have advised all concerned to watch for further occurrences, this does not meet standard 625 of the CARs nor is public safety guaranteed by such a process.
 I was concerned that Mr. Schnurr trivialized the fault when in his testimony he referred to the problem as a "little light". In fact, the manufacturer calls that light a caution light, indicating a failure which has impact upon the aircraft's type certificate and safe operation.
 I thought that the monetary penalty of $750 was onerous, especially since the supervisor of the Aviation Enforcement Section felt that no penalty was warranted. However, the detection notice (exhibit M-9) clearly states that this "no defect" entry was not an isolated event. This calls into question the commitment to public safety when faults are not assiduously recorded and tracked. Therefore, the monetary deterrence is appropriate.
 I find that the Minister of Transport has proven the allegation that Mr. Schnurr has contravened section 605.94(1) of the CARs. Therefore, the monetary penalty of $750 is upheld.
October 3, 2008
Arnold P. Vaughan
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