Decisions

TATC File No. W-3351-41
MoT File No. SAP-5504-61527 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Air Mikisew Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, subsection 605.94(1)


Review Determination
Richard F. Willems


Decision: August 12, 2009

Citation: Air Mikisew Ltd. v. Canada (Minister of Transport), 2009 TATCE 21 (review)

Heard at Edmonton, Alberta, on November 26-28, 2008, and February 24 and 25, 2009

Held: The Minister of Transport did not prove that Air Mikisew Ltd. contravened subsection 605.94(1) of the Canadian Aviation Regulations. Therefore, I dismiss the monetary penalty of $5000, as imposed by the Minister.

I. BACKGROUND

[1] On February 21, 2007, the Minister of Transport assessed a monetary penalty against the applicant, Air Mikisew Ltd. It is alleged that, as an operator, the applicant contravened subsection 605.94(1) of the Canadian Aviation Regulations (CARs), in accordance with subsection 8.4(2) of the Aeronautics Act (Act). Schedule A of the notice of assessment of monetary penalty provides the following:

On or about the 14th day of September, 2006, at or near Fort McMurray, Alberta, in accordance with section 8.4(2) of the Aeronautics Act, vicariously 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 − $5000

TOTAL MONETARY PENALTY − $5000

[2] Following the incident of September 14, 2006, a civil aviation daily occurrence report no. 2006C2417 (CADOR, exhibit M-5) was issued by Nav Canada.

II. LAW

[3] Subsection 8.4(2) of the Act reads as follows:

8.4(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

[4] Subsection 605.94(1) of the CARs provides the following:

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.

III. EVIDENCE

A. Minister of Transport

(1) Danny R. Hrynyk

[5] Danny R. Hrynyk is the principal maintenance inspector (PMI), Maintenance and Manufacturing, Transport Canada, who was assigned to oversee Air Mikisew's operations. He was made aware that an incident had taken place at Fort McMurray, Alberta, involving a Beech 99 aircraft, registered as C-GZAM, and operated by Air Mikisew. He called Air Mikisew's quality assurance manager, Shawn Bennett, to find out the details of this incident. Mr. Bennett was not aware of the incident but indicated that he would interview the company personnel involved. He found out that the right generator light had illuminated on an initial take‑off roll. The crew, while taxiing, had managed to reset the generator and attempted another departure. The same condition was observed on the next take‑off run. The captain decided to take the aircraft back to maintenance personnel, who checked the system for operation, and did voltage and load checks. No fault was found. No further lights came on, and the aircraft was dispatched for service. Mr. Bennett informed Inspector Hrynyk that he had not been aware of this incident because no entry had been made in the journey log book.

[6] Mr. Bennett agreed to send Inspector Hrynyk copies of all the documents generated by this internal company investigation. Once having received the journey log page for September 14, 2006, the internal maintenance quality discrepancy report and the incident report (exhibit M-3), Inspector Hrynyk believed that there may have been a contravention of subsection 604.95(1) of the CARs, since no entries had been made in the journey log book.

[7] Inspector Hrynyk testified as to the procedures required by the CARs and the Air Mikisew manuals, which must be followed by aircrew and maintenance personnel with regards to defects and the actions to correct or defer them once it has been established that the aircraft has a defect. Inspector Hrynyk explained that a defect must be recorded in the journey log book by the person who finds it, and then signed off as repaired by the person authorized under the aircraft maintenance organization (AMO) to do the repairs, or deferred if it qualifies as a minor defect. This must be done before the aircraft is dispatched on the next trip.

(2) Shawn Bennett

[8] Mr. Bennett's version on how the incident was discovered is very similar to Inspector Hrynyk's. He testified that he had many dealings with Inspector Hrynyk and that they always had a good working relationship. He also indicated that he had not felt under any pressure to get the information surrounding the alleged incident, and that he had done so voluntarily. Mr. Bennett also said that it was normal to hear from the PMI prior to receiving incident reports from the company's safety management system (SMS), because of normal delays in the company's operations. Mr. Bennett agreed that this incident happened but seemed to have doubts that a maintenance action took place.

(3) Mitch Paulhus

[9] Mitch Paulhus is a civil aviation safety inspector, Maintenance and Manufacturing, Transport Canada. At the time of the incident, he was with the Aviation Enforcement Branch. On September 29, 2006, he received a detection notice from Inspector Hrynyk (exhibit M‑5), and he began the investigation of the incident.

[10] During his testimony, Inspector Paulhus had a different version of the incident, starting from the point the aircraft was back at the hangar. He indicated that the pilot sought the experience of a licensed aircraft maintenance engineer (AME), Donald Schnurr. They ground ran the aircraft to try and duplicate the problem. When they could not duplicate the problem, the captain, Leonardus Dirven, proceeded to carry on with his flight, and subsequently took off after that.

[11] Inspector Paulhus'opinion is that there was a defect on the aircraft. That defect was the loss of the right generator. The Pilot Operating Manual (POM; revised November 2007, exhibit M‑20 at 1-13) states that two generators are required for all phases of flight on the Beech 99A aircraft. Because the generator failure is an airworthiness limitation, it requires an inspection by an AME and the proper sign-off (Binder on references and definitions, exhibit M‑9, tabs 15 and 24). Under cross‑examination, Inspector Paulhus mentioned that he did not look into the training procedures for any of the Air Mikisew personnel involved in the incident.

(4) Roger Leblanc

[12] Roger Leblanc is now the principal operations inspector (POI) responsible for Transport Canada's oversight of Air Mikisew's flight operations and has been in this position since January 2007. He was briefed on Air Mikisew by the outgoing POI but seems not to have been given much information on the incident of September 14, 2006. When asked, under cross‑examination, if he had done some review of the matters that occurred at Air Mikisew on September 14, 2006, he replied that he did not and that he learned about it through some of his counterparts prior to becoming the POI.

[13] On March 6, 2007, Graham Davis sent an email to Inspector Leblanc, asking him to review Air Mikisew's template for SMS, and asking that Air Mikisew be allowed to operate under the spirit of SMS (exhibit A‑4).

[14] During his testimony, Inspector Leblanc explained that 705 operators are now working under a fully implemented SMS, and that 703 and 704 operators are submitting a safety information plan and, once accepted by Transport Canada, will be allowed to operate under the spirit of SMS. Once approved, these operators would not go through the traditional enforcement process, having the same liberty as the 705 operators. Inspector Leblanc approved Air Mikisew's application in February 2008. 

(5) Leonardus Dirven

[15] Captain Dirven was the pilot-in-command (PIC) of the Beech 99 aircraft at Fort McMurray on September 14, 2006. He explained that on the start and taxi to the runway, the aircraft was running normally. However, on power application from low idle, the right generator light illuminated. The power levers were returned to idle and the aircraft taxied off the runway to assess the problem. The flight crew discussed the issue, reset the generator, which at that point stayed on line, and the decision was made to attempt another take-off. The same light illuminated on power application, the take-off was terminated, and the decision was made to go back to the hanger. In his words, Captain Dirven explained

. . . [W]e just wanted to confirm the system with the engineer. Since we were at our base, let's go talk to the engineer, see if we can get some clarification on the system. Talked to Don Schnurr. He said, well, put it to high idle and if the generator holds, it's good and the system is working properly by the maintenance manual. We did that. Flew the trip, and we didn't have any problems. (Transcript, vol. 1 at 312)

[16] Captain Dirven flew the Beech 99 aircraft for numerous flights until September 18, 2006. This same generator light continued to illuminate on several occasions. However, by using high idle, as suggested by Mr. Schnurr, the system worked as intended. On September 18, 2006, Captain Dirven, at the request of Transport Canada, prepared an incident report about the incident of September 14, 2006.

[17] Captain Dirven stated that he was asked to make the entry "Generator will not parallel" on September 19, 2006, in the defect section of log serial no. 40885 of the journey log book for C‑GZAM aircraft (exhibit M‑22). When asked why the defect was reported on September 19, 2006 in the journey log book, when it related to the generator problem he had experienced on September 14,  2006, Captain Dirven explained that he acted from what he knew of the aircraft and what he had been told by the engineer, which was confirmed later when he read the maintenance manual. The system was still working within limits, and it was decided to adjust it before it gets out of limits. Captain Dirven mentioned that this type of adjustment is a common practice in the aviation sector.

(6) Donald Schnurr

[18] Mr. Schnurr is an AME with Air Mikisew. He testified that he was approached in the hangar by Captain Dirven on September 14, 2006, concerning a generator light flashing on the Beech 99 aircraft. After a brief discussion about the problem, they walked out to the aircraft. Captain Dirven got in the aircraft while Mr. Schnurr stood outside. Captain Dirven started the aircraft and did a run-up; with a thumb up, Mr. Schnurr signalled that the aircraft was now working properly. The aircraft taxied away, and Mr. Schnurr went back to what he had been doing. In his mind, the aircraft did not have a problem, and he did not have to sign it off because he had not done anything to it. In addition to that, the pilot had indicated that the system was working.

B. Applicant

(1) Graham Davis

[19] Mr. Davis is the current general manager of Air Mikisew. He was hired by the company to sort out issues subsequent to a Transport Canada audit in September 2004. He explained how, after the 2004 audit, with the help of Storm Aviation and a consultant, Michael C. Weir, the company manuals and training policies and procedures were changed and brought up‑to‑date.

[20] Mr. Davis indicated that in a letter dated September 12, 2005, he was informed by Transport Canada that all corrective actions and follow‑ups had been completed, and that the September 2004 audit was considered closed (exhibit A-19).

[21] Mr. Davis stated that pilots and AMEs now receive initial and recurrent training, as per the Transport Canada approved company manuals. This training is monitored on a 30‑day rotation by the operations administration person who reports to him. Mr. Schnurr was given his initial indoctrination training, and as proof of his subsequent training, he received on June 19, 2006, an aircraft certification authority certificate (exhibit A‑3). As far as Captain Dirven's training, Mr. Davis indicated that both initial and recurrent training were done. Neither Transport Canada nor Air Mikisew had a training file on Captain Dirven.

[22] Mr. Davis was questioned at length about the delegation of authority. He stated that he is a very hands-on manager. He insisted that the chain of command does exist, and that once employees have been hired and properly trained, they are expected to perform their assigned duties. In this case, the captain was not sure if the aircraft had a defect. He elected to consult with maintenance personnel about the operation of a system due to his relative inexperience on this type of aircraft. That having been done, he decided that there was no defect and continued the flight.

[23] Mr. Davis testified that although he or other pilots may have reacted to the situation in another manner, he accepts Captain Dirven's decision. He also accepts the fact that the pilot did not necessarily report a problem to the AME. The AME was asked about how the system should function, and he provided some advice. The pilot ran the aircraft using that advice and the aircraft operated normally, which he communicated to the AME, and taxied away. In the minds of the pilot and the AME, the aircraft did not have a defect. Mr. Davis indicated that he concurs with the AME's decision. However, he insisted that, if the aircraft had a defect, he would have expected the company policy to be followed, as per recording defects and maintenance performed.

(2) Michael C. Weir

[24] Mr. Weir was qualified as an expert witness based on his extensive background with Transport Canada and subsequent work as a consultant with aviation companies and their audits. In addition to these qualifications, he has spent many years operationally flying in civil and military aviation.

[25] Mr. Weir testified that at Storm Aviation, he was involved in the recovery plan to return Air Mikisew to a company operating within the parameters required by Transport Canada and the CARs. By all accounts, Air Mikisew followed these recommendations and, as a result, its air operator certificate was reinstated. In agreement with Transport Canada, a follow-up audit was done in January of 2005 (exhibit A‑20).

[26] Mr. Weir stated that, at the time of the completion of the audit, Air Mikisew was in full compliance with all the regulations and documents approved by Transport Canada, and in some cases exceeded them. He indicated that this audit was only related to flight operations and had nothing to do with the AMO. He mentioned that section 4 of the Maintenance Control Manual (MCM, dated April 4, 2004, exhibit M‑4) provides details on the procedures to be used with regards to aircraft defects. 

IV. DISCUSSION

[27] The aircraft certification authority training for Mr. Schnurr shows that his training required by Transport Canada has been provided by the company and was up‑to‑date at the time of the incident. This training was done by Mr. Bennett while he was employed by Air Mikisew.

[28] It seems that Air Mikisew has been diligent in training its personnel. Mr. Bennett explained that all Air Mikisew's employees received initial and recurrent training on company procedures, which included the policy on aircraft defects. Inspector Hrynyk testified that he did not have any issues with the company manuals that deal with training, or the training policies. Inspector Paulhus mentioned that he had no issues with the company manuals, and also indicated that he did not look into company training during his investigation. This tells me that he was not worried about it. As for Captain Dirven, he testified that his training as far as it applies to this incident was done. I have not seen the record of this training. Neither Air Mikisew nor Transport Canada brought this forward as an exhibit. However, Transport Canada did not argue that Captain Dirven was not trained.

[29] Mr. Davis explained that much time and effort have taken place to ensure that Air Mikisew's personnel was trained to and above Transport Canada standards. Mr. Weir indicated that when he had completed his work with Air Mikisew, everything was up to Transport Canada standards. In the letter of September 12, 2005, he was informed by Transport Canada that the audit of 2004 was considered closed. This letter confirms the effort that Air Mikisew put into the changes it wanted to put into place under the guidance of Storm Aviation and the direction of the new management team headed by Mr. Davis. A big part of this new management strategy is not amending the old company operations manual but building a new one from the ground up, and from what I can see, trying to follow it.

[30] Under cross-examination, Mr. Davis mentioned that he is a hands-on manager, and that he takes responsibility for the actions of his employees. He also indicated that he cannot be there 24 hours a day, and that section 2 of the company operations manual spells out the duties of the various company's personnel. I have seen nothing to indicate that these company policies were not followed. As a manager, one cannot be watching over employees 24 hours a day. Once they have been trained, and management is satisfied that they understand their function at the company, they must be trusted to do their job. It would be impossible to operate an air service without that trust in employees, due to the fact that they could, on any given day, be spread out, in this company's case, over western Canada.

[31] Could Mr. Davis have done more on September 14, 2006 to prevent this incident? From what I have seen, Air Mikisew had in place all the policy training needed for operations that day. On September 18, 2006, Steve Webster, Air Mikisew's chief pilot issued Directive 06‑13 to all aircrew reminding them of their responsibilities for reporting aircraft deficiencies (exhibit A‑24). Mr. Davis indicated, and Mr. Bennett agreed, that while Directive 06-13 reminded aircrew of their duties as far as reporting defects, the maintenance personnel had also been reminded, at that time, of the regulations and company procedures as they apply to aircraft defects and subsequent maintenance release. This again shows me that the company had its own unofficial safety program at the time of the incident.

[32] Section 711 of the company's personnel and policy manual describes the company's policy for progressive discipline (exhibit A‑25). Again, it shows that the company is trying to create an environment where issues are corrected and do not reoccur.

[33] The next issue that we need to address is if there was a defect and was it reported. It has been established that if there was a defect, it should have been reported in the journey log book and addressed by the maintenance personnel. Both parties agree to that point, including Mr. Schnurr and Captain Dirven.

[34] According to Captain Dirven, he spoke to the company's AME, Mr.  Schnurr, to confirm how the system should operate, after his second low energy rejected take‑off (RTO), due to the right generator light indicating that it was not powering the bus at low revolutions per minute (RPM). He testified that Mr. Schnurr advised him to run the engine at high idle and if it held, the system was okay. Captain Dirven boarded the aircraft while Mr. Schnurr waited outside. After taking the advice, Captain Dirven gave Mr. Schnurr a thumb up signal, which they had agreed, would indicate to Mr. Schnurr that the generator light was remaining off, using high idle. Mr. Schnurr returned to the hanger. In his mind, the pilot has found that, when running the engine at high idle, the generator stays on line and the system is running normally.

[35] When checking the POM for the Beech 99 aircraft, I did not find a limitation which prohibits the use of high idle, or for that matter, any N1 speed from low to high idle. On page 10‑16A of the POM, one finds the following statement.

. . . Generator paralleling is effective only for electrical loads above 0.14 per generator and engine speeds greater than 53% N1. Should one generator fall off the line while taxiing, the off line generator will be restored when the electrical load is increased above 0.14 and the engine speed is raised to 60% N1. The generator control switch should not be cycled to restore parallel operation of both generators. Lack of paralleling below 0.14 electrical load is not serious since the maximum load placed on the remaining generator, should the opposite generator switch off, is insufficient to cause generator over-load . . .

[36] Captain Dirven testified that he believed the N1 was below 60% when he started his rolling take-off. Although the word "taxiing" is used in the POM, one must look at the N1 percentage to understand what is meant. As we can see, the POM describes the generator light on under those lower N1 conditions as being normal; in fact, it advises not to even cycle the switch to parallel the generators. Mr. Schnurr understood the system, Captain Dirven took his advice, and the light remained out while in high idle.

[37] Captain Dirven, by starting and running the aircraft in high idle, was performing normal pilot functions and proved that the light would stay off. At this point, he believed there was no defect, indicated this to Mr. Schnurr, and completed his flight.

[38] Finally, we need to look at the letter sent to Inspector Paulhus by Mr. Schnurr on November 22, 2006 (exhibit M‑12). During his testimony, Mr. Schnurr explained his letter  as follows:

Well, as stipulated here, it's accurate. All I did is write something here to Transport Canada to tell them that there was no defects, there was no entry in the logbook, the pilot hadn't made the entries into the logbook, the pilot gave me the thumb to tell me the aircraft was fine, I didn't have to maintain it, so basically I just wrote this up." (Transcript, vol. 1 at 416 and 417)

[39] I accept this statement to show Mr. Schnurr's explanation of the incident and his actions that took place on September 14, 2006. Based on the testimonies of Captain Dirven and Mr. Schnurr, I find that the aircraft did not have a defect and that maintenance was not required.

V. DETERMINATION

[40] The Minister of Transport did not prove that Air Mikisew Ltd. contravened subsection 605.94(1) of the CARs. Therefore, I dismiss the monetary penalty of $5000, as imposed by the Minister.

August 12, 2009

Richard F. Willems

Member


Appeal decision
Herbert Lee, J. Richard W. Hall, Stephen Rogers


Decision: May 20, 2011

Citation: Canada (Minister of Transport) v. Air Mikisew Ltd., 2011 TATCE 12 (Appeal)

Heard at Edmonton, Alberta, May 6, September 14, October 15, and November 25, 2010

Held: The Appeal is dismissed. The Appeal Panel concludes that the Minister has not established that Air Mikisew Ltd. contravened subsection 605.94(1) of the CARs vicariously through subsection 8.4(2) of the Aeronautics Act. In the event that the Appeal Panel has erred in its conclusion, it determines that the Review Member's analysis and conclusion of the defence of due diligence by Air Mikisew Ltd. was reasonable.

I. BACKGROUND

[1] On February 21, 2007, the Minister of Transport ("Minister") assessed a Notice of Assessment of Monetary Penalty ("Notice") against the Respondent, Air Mikisew Ltd. ("Air Mikisew"). It is alleged that, as an operator, the Respondent was vicariously liable, pursuant to subsection 8.4(2) of the Aeronautics Act ("Act"), for a contravention of subsection 605.94(1) of the Canadian Aviation Regulations, ("CARs"), by its Air Maintenance Engineer ("AME"). Schedule A of the Notice provides the following:

On or about the 14th day of September, 2006, at or near Fort McMurray, Alberta, in accordance with section 8.4(2) of the Aeronautics Act, vicariously 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 − $5 000

TOTAL MONETARY PENALTY − $5 000

[2] A Review Hearing was held on November 26 to 28, 2008, and February 24 and 25, 2009. In a Determination rendered on August 12, 2009, the Review Member, Richard F. Willems, determined that the Minister failed to prove on the balance of probabilities that Air Mikisew contravened subsection 605.94(1) of the CARs.

[3] On September 16, 2009, the Minister of Transport appealed on the following grounds:

  1. The Member erred in law by refusing to consider another TATC decision based on the same facts;
  2. In the alternative, the Member erred in law by not distinguishing the first TATC decision from the case at hand with a legally justifiable reason;
  3. The Member's finding of fact that there was no defect was unreasonable and not based on all evidence put on the record; and
  4. Such further and other grounds in fact or in law that the transcript of the proceedings may disclose.

[4] The present Appeal stems from the following facts:

1. On September 14, 2006, an aircraft bearing Canadian registration C-GZAM, owned by the Respondent, proceeded with a take‑off roll and the right generator warning light illuminated.

2. The pilot-in-command ("PIC"), Leonardus Dirven, managed to reset the generator and the warning light extinguished. The PIC then proceeded with a second take‑off roll and the right generator warning light illuminated once again.

3. The PIC decided to taxi the aircraft to the company hangar in order for the problem to be checked.

4. The PIC asked an AME, Donald Schnurr, who was present in the hangar at the time, how to address the problem. Mr. Schnurr, being familiar with the issue, advised the PIC to simply run the engine on high idle and the right generator light would remain extinguished.

5. The PIC followed the advice of the AME. The generator light remained extinguished, and the PIC was able to take off without incident.

6. The right generator warning light illumination was not recorded as a defect in the journey log book of the aircraft by the PIC or the AME. This failure was the subject of the Review Hearing, and the present Appeal.

II. STATUTES AND REGULATIONS

[5] Subsection 8.4(2) of the Act reads as follows:

8.4(2) The operator of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.

[6] Any applicant may rely on section 8.5 of the Act to raise a defence of due diligence:

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.

[7] Subsection 605.94(1) of the CARs provides the following:

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.

[8] CAR 605 Schedule I reads as follows:

Item

Particulars to be entered

Time of entry

Person responsible for entry

1

Aircraft nationality and registration marks Aircraft manufacturer, type, model and serial number

On starting to keep a journey log and on bringing a new volume of an existing log into use

The owner of the aircraft

2

Except where an approved fleet empty weight and balance control program is in place, aircraft empty weight and empty centre of gravity and any change in the aircraft empty weight and empty centre of gravity

On starting to keep a journey log and on bringing a new volume of an existing log into use and, when a change is made, as soon as practicable after the change but, at the latest, before the next flight

The owner of the aircraft and, for any change, the person who made the change

3

Where an additional flight authority has been issued in respect of an aircraft under section 507.08, any change in the flight authority in effect

On changing the flight authority in effect

The person who made the change

4

Air time of each flight or series of flights and cumulative total air time and, where applicable, number of operating cycles or landings since date of manufacture

Daily, on completing each flight or series of flights

The pilot-in-command of the aircraft or a person designated by an air operator, a private operator or a flight training unit

5

Except where an equivalent technical dispatch procedure is in place in accordance with section 706.06,
(a) a description of the applicable maintenance schedule; and
(b) the date, air time, operating cycle or landing at which the next scheduled maintenance action is required

On bringing the maintenance schedule into use and on completing each scheduled maintenance action referred to in column I of this item

The owner of the aircraft

6

Particulars of any abnormal occurrence to which the aircraft has been subjected

As soon as practicable after the abnormal occurrence but, at the latest, before the next flight

The pilot-in-command of the aircraft or, where the abnormal occurence took place during maintenance, the operator of the aircraft at the time of the occurrence

7

Particulars relating to a conditional maintenance release signed in accordance with section 571.10

As soon as practicable after the aircraft has received a conditional maintenance release for a test flight but, at the latest, prior to that test flight

The person who signed the conditional maintenance release

8

Particulars relating tothe results of a test flight entered pursuant to subsection 605.85(3)

On completing the test flight but, at the latest, before the next flight

The pilot-in-command of the aircraft who conducted the test flight

9

Particulars of any defect in any part of the aircraft or its equipment that becomes apparent during flight operations

As soon as practicable after the defect is discovered but, at the latest, before the next flight

The pilot-in-command of the aircraft

10

Except where an equivalent technical dispatch procedure is in place in accordance with section 706.06, the particulars of any defect in any part of the aircraft or its equipment that is not rectified before the next flight

Before the next flight

The person who discovered
the defect

11

Particulars of any maintenance action or elementary work performed in respect of items 2, 6, 9, and 10

As soon as practicable after the maintenance action or elementary work is performed but, at the latest, before the next flight

The person who performed the maintenance action or elementary work and, where applicable, the person signing the maintenance release

III. ARGUMENT

A. Minister of Transport

[9] The Minister takes issue with the Member's finding of fact that there was no defect in the aircraft requiring an entry to be made in the journey log. In particular, the Minister disagrees with the following paragraphs of the Review Member's Determination:

[36] Captain Dirven testified that he believed the N1 was below 60% when he started his rolling take-off. Although the word "taxiing" is used in the POM, one must look at the N1 percentage to understand what is meant. As we can see, the POM describes the generator light on under those lower N1 conditions as being normal; in fact, it advises not to even cycle the switch to parallel the generators. Mr. Schnurr understood the system, Captain Dirven took his advice, and the light remained out while in high idle.

[37] Captain Dirven, by starting and running the aircraft in high idle, was performing normal pilot functions and proved that the light would stay off. At this point, he believed there was no defect, indicated this to Mr. Schnurr, and completed his flight.

[38] Finally, we need to look at the letter sent to Inspector Paulhus by Mr. Schnurr on November 22, 2006, (exhibit M-12). During his testimony, Mr. Schnurr explained his letter as follows:

Well, as stipulated here, it's accurate. All I did is write something here to Transport Canada to tell them that there was no defects, there was no entry in the logbook, the pilot hadn't made the entries into the logbook, the pilot gave me the thumb to tell me the aircraft was fine, I didn't have to maintain it, so basically I just wrote this up." (Transcript, vol. 1 at 416 and 417)

[39] I accept this statement to show Mr. Schnurr's explanation of the incident and his actions that took place on September 14, 2006. Based on the testimonies of Captain Dirven and Mr. Schnurr, I find that the aircraft did not have a defect and that maintenance was not required.

[10] The Minister submitted that a finding of fact can be overturned by the Appeal Panel if it is unreasonable and cited Canada (Minister of Transport) v. Arctic Wings Ltd., 2006 TATC file no. W‑2902-41 (appeal) at page 4: "[a] finding of fact should not be overturned unless there is an entire absence of evidence to support it, or notwithstanding that there is some evidence concerning the finding is an unreasonable finding incapable of being supported by the evidence."

[11] The Minister argued that the Review Member ignored the evidence of the AME, Mr. Schnurr and the PIC, Mr. Dirven. The Minister cited various excerpts in the transcript where Messrs. Schnurr and Dirven describe the problem with the generator light as a "maintenance issue", "snag", and "not normal". The Minister also referred to the testimony of Mr. Schnurr stating that after he was made aware by Transport Canada that there was a problem and that he should have made an entry, he made it in the defect portion of the journey log book.

[12] The Minister is of the view that the testimonies of Messrs. Schnurr and Dirven make it clear that the generator light issue constituted a reportable defect. The Minister argued that the Review Member ignored portions of the evidence of Messrs. Schnurr and Dirven. Furthermore, the Minister pointed to the evidence of Shawn Bennett, the Quality Assurance Manager at Air Mikisew. The Minister argued that Mr. Bennett admitted there were "possible maintenance problems" with the aircraft. He also testified that if there was a defect in the aircraft, the flight crew were required to make an entry in the journey log book. He also testified that there was a defect in the aircraft and it was not entered into the log book.

[13] Danny Hrynyk, a Civil Aviation Safety Inspector, who was assigned as the Principal Maintenance Inspector for Air Mikisew, also testified that the generator light issue was not a minor defect. Mitch Paulhus, the Transport Canada Investigator, testified that the malfunctioning generator light was a defect that should have been entered into the log book. Graham Davis, the Operation Manager for Air Mikisew, testified that if he saw the generator light come on, that was not normal. He also testified that he would probably have reported a lit generator light as a defect.

[14] The Minister submitted that it is very clear that the aircraft required two generators to operate normally. A generator problem is a defect that must be dealt with immediately and cannot be deferred according to the Maintenance Control Manual ("MCM", dated April 4, 2004). The Minister submits that the PIC had a problem with the generator, which is on the list of equipment required for Visual Flight Rules ("VFR") flights. He brought the aircraft to the AME who performed a maintenance action to resolve the issue. Based on all of the evidence, the Review Member's conclusion that there was no defect was unreasonable.

[15] The other two grounds for appeal involve similar issues and the Minister wished to address them together. The Minister submitted that the Review Member erred in law by refusing to consider the decision in Schnurr v. Canada (Minister of Transport), 2008 TATCE 30 (review), TATC file no. W-3350-35 and, in the alternative, erred by not distinguishing the Schnurr Determination from his Review Determination. The Minister acknowledged that Review Members are not bound by the decisions of other Review Members; however, when the previous determination is based on the same facts, then a Review Member should at the very least consider it. The Minister cited Re: Service Employees' International Union, Local 204 and Broadway Manor Nursing Home et al, (1983) 44 O.R. (2d) 392 (Ont. H.C.J., Div. Ct.) where Justice Galligan stated:

I cannot for one moment suggest that either's interpretation of the Act was patently unreasonable. The decisions of the two tribunals are careful, thoughtful, well-reasoned and persuasive. One of my many problems with this case is that as I read each decision I am persuaded by it. The extension of curial deference to each of them would lead to unacceptable results.

[16] The Minister argued that where two different Review Members of the Transportation Appeal Tribunal of Canada ("Tribunal") render diametrically opposed decisions, the Appeal Panel should select which interpretation is the correct one. As well, the Minister submitted that the Appeal Panel should also consider how to deal with such a situation in the future.

[17] In the Minister's additional submissions on due diligence, it was argued that Air Mikisew did not discharge its burden. Both the PIC and the AME failed to record the defect in the journey log book. Had one of them done that, perhaps it would support a defence of due diligence. In the view of the Minister, the fact that both employees failed to record the defect is evidence of a systemic problem at Air Mikisew. This systemic problem was identified in the 2004 Audit by Transport Canada of Air Mikisew (Transcript at 464-468).

[18] The Minister also submitted that the Directive 06-13 sent out by Air Mikisew on September 18, 2006, is not evidence of due diligence. The Directive was sent four days after the incident. A proactive approach to safety might indicate all due diligence was taken to prevent the violation, but not a reactive approach. Had the Directive been sent out prior to the incident, the violation could have been prevented. Had the employees of Air Mikisew received refresher courses or been updated on their responsibilities then this violation could have been prevented.

[19] In the Schnurr Review Hearing, the Review Member stated:

[54] 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.

[55] 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.

[56] 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.

[20] The Minister submitted that this statement of the Review Member indicates that Mr. Schnurr did not exercise due diligence. In addition, the Minister submitted that had Air Mikisew exercised all due diligence, its employees would have known to enter the defect. Mr. Hrynyk, in his testimony, confirmed that the failure to record defects was not an isolated event and it had occurred in the past (Transcript at 24). The Minister argued that Air Mikisew may have had a training program in place, but that does not mean that it is effective. The expert witness brought forth by Air Mikisew testified that Air Mikisew was in compliance after the January 2005 audit. However, that audit was in relation to flight operations and not the Approved Maintenance Organization ("AMO") of Air Mikisew. The contravention of not making a maintenance entry in a journey log book is an AMO issue.

[21] The evidence illustrated that Air Mikisew is not a well-run company. The Minister referred to the testimony of Mr. Davis and how he stated that right from the first day of his hire, he "came right into the middle of the mess". The Minister argued that it is unlikely that between November 2004 and September 2006 that Mr. Davis could have corrected this "mess". The Minister submitted that the company could have implemented an effective safety system whereby the pilot would communicate with other members of management, especially after two aborted take‑offs, to make sure that company policies were being followed.

[22] The Minister cited Canada (Minister of Transport) v. Provincial Airlines Ltd., 2002 CAT file no. A‑2364-41 (appeal) where the Appeal Panel of the Tribunal stated that actions done subsequent to a violation cannot be relied upon as evidence of due diligence. The Minister also argued that the defence of "all due diligence" requires "all" possible action to be taken to prevent the offence.

[23] Turning to the facts, the Minister argued that Air Mikisew failed to prove all due diligence was taken. The Operations Manager, Mr. Davis, negligently delegated his monitoring responsibilities to the PIC, Mr. Dirven, a new recruit with only five to six months of experience. Had someone with more experience been delegated with the responsibility for monitoring the operations of Air Mikisew, this individual would have certainly been aware of the two aborted take-offs and would have been able to answer any concerns of the AME or PIC. In addition, the AME and the PIC, as well as other employees, should have been provided with operational directives or standing instructions on how to handle any abnormal occurrences. In the Minister's view, the employees should be required to communicate with the Chief Pilot or the Director of Maintenance in the event of such occurrences.

B. Air Mikisew

[24] First, Air Mikisew argues that the Minister has only appealed in relation to the defect issue and has not appealed the findings of the Member with respect to due diligence. Even if the Appeal Panel agrees with the Appellant that there was a defect, Air Mikisew is entitled to the defence of due diligence as found by the Review Member.

[25] The Respondent addressed the issue of the Review Member's refusal to consider the prior Schnurr Determination or to distinguish it from the present case. The Respondent argues that the case cited by the Appellant, Broadway Manor Nursing Home, dealt with the interpretation of a statute and not with different findings of fact at two different Review Hearings. As well, that case was not decided within the ambit of the Tribunal.

[26] The jurisprudence of this Tribunal, it was argued, has clearly stated that it is not bound by one of its own earlier decisions, for example: Canada (Minister of Transport) v. Wyer, 1988 CAT file no. 0-0075-33 (review), Canada (Minister of Transport) v. Pozzi, 2000 CAT file no. W‑1930-39 (review), Wenger v. Canada (Minister of Transport), 2007 TATC file no. W‑3198‑33 (review). The decisions of administrative agencies do not necessarily create precedents and are at best persuasive. The Respondent submits that the Review Member did not err by refusing to accept the Schnurr Determination. The Respondent had objected to that during the Review Hearing when the Minister attempted to put the Determination into evidence. The Minister still submitted the Schnurr Determination in the written submissions.

[27] The Respondent submitted that the Review Member did not make an erroneous finding of fact. The Review Member's finding that there was no defect was reasonable and should not be overturned if it is supported by reasons that can stand up to a somewhat probing examination: Long v. Canada (Minister of Transport), 2003 TATC file no. O‑2824-02 (appeal). The Respondent argued that the Review Member justified his reasons and referred to the Pilot's Operating Manual. It is also unnecessary for Review Members to deal with every bit of evidence put before them. The Review Member is in the best position to determine which evidence to accept and which to reject: Arctic Wings Ltd.

[28] The Respondent submitted that the Review Member did not have to deal specifically with every comment made by Messrs. Schnurr and Dirven. The Review Member had considered their evidence overall and cites their testimony at paras. 15‑18 and 39.

[29] With regard to the defence of due diligence, the Respondent submits that the analysis should focus on the actions or inactions of Mr. Schnurr. The Minister charged Air Mikisew vicariously for not making a maintenance entry. The only person legally authorized to make such an entry is Mr. Schnurr.

[30] It is up to Air Mikisew to show that it has taken all reasonable care and has been duly diligent in preventing the contravention. In determining what type of evidence constitutes examples of due diligence, there have been a number of court decisions, as well as decisions from this Tribunal. In Canada (Minister of Transport) v. Canadian Helicopters Limited, 1992 CAT file no. W‑0134-37 (review) for example, an air operator was vicariously charged for its pilot's failure to properly secure cargo. The Tribunal held that the air operator exercised all due diligence because it had taken actions like preparing a Company Operations Manual ("COM") that was approved by Transport Canada and contained procedures on securing cargo. It had also briefed its employees on securing cargo through training programs. The air operator had also conducted periodic testing of its employees. Similar evidence was also used in Canada (Minister of Transport) v. Trans-Côte Inc., 1995 CAT file no. Q-1068-37 (review).

[31] In Arctic Wings, this Tribunal found Arctic Wings Ltd. not to be vicariously liable because they exercised all due diligence in preventing the violation. The Tribunal stated:

Arctic Wings advised their pilot that its operations were restricted to VFR. The flight plan was based on VFR weather. There is no evidence that the flight could not have been carried out VFR. What more could Arctic Wings have done in the circumstances? At the time they were not aware of and did not participate in the decision to operate contrary to their air operator certificate. The offence was a result of the actions of a pilot-in-command acting without the knowledge and consent of the operator.

[32] The Respondent argues that there was nothing more he could have done to prevent Mr. Schnurr from not making a maintenance entry. He made a discretionary decision. It is impossible for an air operator to physically overlook and supervise its employees at all times. The air operator can only go to reasonable lengths, not impossible ones, to be found to have exercised due diligence. Both employees were aware of the requirements of section 605.94 of the CARs, but decided not to make an entry.

[33] Transport Canada heavily regulates the aviation industry. For example, it must approve the COM, and it requires AMEs to take courses and exams administered by Transport Canada. In order to maintain a valid air operator's certificate, Air Mikisew must comply with numerous conditions set out by Transport Canada. For example, Air Mikisew is required to follow its COM and it must ensure personnel are trained in accordance with the approved training program; it must maintain its aircraft in accordance with subpart 706 of the CARs. Air Mikisew had completely rewritten its COM after the 2004 Audit to comply with aviation standards.

[34] Air Mikisew's COM addresses defect reporting. It explains the policies and procedures for defect reporting and what constitutes a defect. The testimony of Michael Weir, who was qualified as an expert with respect to COMs testified that Air Mikisew's COM complied with all regulatory requirements, including the employee training. Air Mikisew submits that its COM should be considered significant evidence in the determination of due diligence.

[35] In addition, Air Mikisew's MCM addresses defect reporting and the obligation to make maintenance entries. Transport Canada approved Air Mikisew's MCM, and Mr. Schnurr acknowledged that he was trained on the contents of it. In addition, Mr. Schnurr received a refresher course as well as indoctrination training. Mr. Bennett testified that he gave Mr. Schnurr recurrent training prior to the events of September 14, 2006. Furthermore, the testimony of Mr. Schnurr clearly shows that he knew he was required to make a maintenance entry if he performed maintenance to the aircraft. The issue here was that Mr. Schnurr felt his actions did not constitute maintenance since he did not do any work on the aircraft.

[36] The Respondent submitted that the Minister has been less than objective in the investigation of Air Mikisew. For example, the Minister insisted on admitting the 2004 Audit into evidence despite the fact that it did not relate to defect reporting. The Audit did not make any findings regarding the training of AMEs or a pattern of AMEs failing to make maintenance entries. The only issue related to pilots who failed to transfer noted defects from their own log books to the journey log.

[37] The Respondent acknowledged that the Review Member did not specifically use the words "due diligence" but he made a number of findings that would indicate Air Mikisew exercised due diligence. For example, at para. 28, the Review Member stated: "[i]t seems that Air Mikisew has been diligent in training its personnel." At para. [31], the Review Member went on to state: "[c]ould Mr. Davis have done more on September 14, 2006 to prevent this incident? From what I have seen, Air Mikisew had in place all the policy training needed for operations that day."

[38] The Respondent submitted that the fact that the Review Member did not explicitly state the words "due diligence" is not fatal if it is implicit in his reasons that he was referring to that issue: Horodynsky Farms Inc. v. Zeneca Corp., 2007 ONCA 509; Hutchings v. Dow, 2007 BCCA 148. The Respondent argued that there was ample evidence to support the Review Member's findings in relation to due diligence and that they should not be disturbed.

[39] The Respondent asks this Tribunal to dismiss the Appeal or alternatively, if this Tribunal finds there is in fact a defect, to find that Air Mikisew exercised all due diligence. The Respondent also submits that because Air Mikisew is being vicariously held responsible, its penalty should not be greater than the actual individual held to have committed the tortious conduct. Therefore, the penalty should be lowered.

IV. ISSUES

  1. Did the Review Member err in law by not considering the Schnurr Determination in these proceedings?
  2. Did the Review Member err in his Determination that there was no defect requiring a maintenance entry pursuant to subsection 605.94(1)?
  3. Did the Review Member make a finding that Air Mikisew exercised all due diligence? If so, was this Determination reasonable?

V. ANALYSIS

[40] Although it would have been preferable that both Mr. Schnurr and Air Mikisew's Review Hearings were held together, the fact that they were not should have no bearing on the case at bar. The Review Member was correct to hold that he would consider the facts of this case independently, and would not be bound by the Schnurr Determination. Although discouraged, it is common in Tribunal settings for similar fact patterns and issues to arise in multiple hearings with differing conclusions. The reason for the apparent inconsistency is the fact that there may be multiple proceedings arising out of the same incident but involving different parties. As such, each party may have put forth different evidence, or prepared different arguments. Therefore, it is understandable that the Review Members reached different conclusions.

[41] With that said, the Appeal Panel will allow the issue of whether Mr. Schnurr was obligated to make a maintenance entry to proceed. This case should be the exception and not the norm. In the future, absent any objections, and barring highly unusual circumstances, if the Minister chooses to pursue both the alleged perpetrator and the entity being held as vicariously liable, the matters should be heard together.

A. Reportable Defect

[42] Turning to the substantive issues, it is necessary to examine the CARs provisions under which Air Mikisew is being charged. The parties are in agreement that if the generator light coming on constitutes a defect, then it must be recorded in the journey log.

[43] The Appeal Panel is of the view that the Review Member erred in his appreciation of what constituted a reportable defect. The illuminated generator light was a reportable defect. In fact, section 3.2.1 of Air Mikisew's MCM provides a rather low threshold for what constitutes a defect. The MCM is a Transport Canada approved document and compliance with it is mandatory. The MCM states that even minor issues with the cabin upholstery are considered a defect which is reportable in the journey log by the flight crew. Additionally, section 3.2.3 of the MCM also requires that any defects which occur more than three times over the course of fifteen flight cycles must be investigated and terminating action must be taken to ensure that the defect does not reoccur. If the generator light issue is not recorded, there is no way for the Director of Maintenance, who is responsible for detecting and correcting recurring defects, to become aware of the problem. Therefore, for these reasons, and the over-arching policy concerns of safety, there is no question in the Appeal Panel's mind that the generator light indicator was a defect.

[44] In order to determine what is to be recorded in the journey log, we are referred to Schedule I of section 605 of the CARs. Schedule I states in column I what is to be entered; column II states when the entry is to be made; and finally, column III states who is responsible for the entry. The Schedule clearly identifies when the PIC or maintenance personnel are required to make the entry. The Minister argued before us that Air Mikisew is liable for failing to make a maintenance entry. Therefore this Appeal is limited to the actions or inactions of Mr. Schnurr, the AME, and not Mr. Dirven, the PIC.

[45] Schedule I contains 11 numbered items where journey log entries must be made. The Minister argued that Mr. Schnurr failed to report a defect. The item nos. applicable to defects are 9 and 10. Item no.11 independently creates an obligation upon AMEs to report issues in the situations described in item nos. 2, 6, 9, and 10. Item nos. 2 and 6 are not at issue here. For ease of reference, item nos. 9 to 11 are reproduced below:

Item

Particulars to be entered

Time of entry

Person responsible for entry

9

Particulars of any defect in any part of the aircraft or its equipment that becomes apparent during flight operations

As soon as practicable after the defect is discovered but, at the latest, before the next flight

The pilot-in-command of the aircraft

10

Except where an equivalent technical dispatch procedure is in place in accordance with section 706.06, the particulars of any defect in any part of the aircraft or its equipment that is not rectified before the next flight.

Before the next flight.

The person who discovered the defect

11

Particulars of any maintenance action or elementary work performed in respect of items 2, 6, 9, and 10

As soon as practicable after the maintenance action or elementary work is performed but, at the latest, before the next flight

The person who performed the maintenance action or elementary work and, where applicable, the person signing the maintenance release

[46] Item no. 9 of Schedule I requires that defects are to be reported by the PIC. Again, through the application of item no. 11, the AME is obliged to report the defect in the journey log if he performed "maintenance action or elementary work". Item 10 requires reporting of the defect if it is not rectified before the next flight by the person who discovered the defect. Since Mr. Dirven discovered the defect, and it was corrected prior to the next flight, item no. 11 must be relied upon if the AME is to be implicated. Therefore, with both item nos. 9 and 10, the question before us is essentially whether Mr. Schnurr's actions constituted a "maintenance action or elementary work" pursuant to item no. 11. It was not the AME's responsibility to merely report the defect; the PIC should have reported it. The AME was only obliged to make an entry if he performed maintenance or elementary work.

[47] In order to determine whether Mr. Schnurr's actions constituted maintenance or elementary work, we will briefly recapitulate the facts. Mr. Dirven, PIC, aborted a take-off after the generator light illuminated. After discussing it with his co-pilot, he decided to reset the generator. The generator held, and Mr. Dirven decided there was no problem. On power application for the second take‑off, the generator light illuminated once again. At that point, Mr. Dirven decided to go to the hangar to have the problem checked out. He found Mr. Schnurr working on another aircraft and told him about the generator light. He did not inform Mr. Schnurr that he had aborted a take off. Mr. Schnurr was familiar with the Beech 99 generator light issue, and advised him to do a ground-run to duplicate the problem. Mr. Schnurr told Mr. Dirven that if the light did not turn on there was no problem, and to give him a thumbs up if that was the case. While Mr. Schnurr waited on the tarmac beside the aircraft, Mr. Dirven did as he was advised, and the light did not illuminate. Mr. Dirven gave Mr. Schnurr the thumbs up and proceeded to take off without incident.

[48] During Mr. Schnurr's testimony, he stated that he did not believe his actions constituted maintenance. In his view, he merely had a conversation with a pilot about a problem that he was familiar with. He gave Mr. Dirven oral advice on how to address the issue, but did not consider his actions maintenance. In his view, there is a procedure for maintenance actions in place. First, the pilot writes up a ‘snag' in the journey log and hands it in to the front office to the Director of Maintenance. Then, the Director looks it over, and if it requires a maintenance action, he assigns it to an AME. That did not occur in this case and Mr. Schnurr testified that he told Mr. Dirven to properly write up the defect so that maintenance can properly address the problem according to procedure. He also testified that this was a recurring glitch in Beech 99 aircraft and he was familiar with the problem. His knowledge of this particular aircraft helped him assess whether the problem was serious or just a design glitch.

[49] Mr. Paulhus, the Civil Aviation Safety Inspector from Transport Canada, who is also an AME, was of the view that Mr. Schnurr did more than provide oral advice. Mr. Paulhus opined that a lit generator indicator was an airworthiness issue. Once airworthiness was at issue, the actions ordered by Mr. Schnurr, being a ground-run to duplicate the problem, qualified as a "required inspection" within the definition of maintenance.

[50] The definition of maintenance was amended in December 2007. The applicable definition to these facts is the definition in effect on the date of the incident, September 14, 2006:

"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 the first certificate of airworthiness or the export airworthiness certificate; (maintenance)

[51] It is clear to the Appeal Panel that Mr. Schnurr did not overhaul, repair, or modify an aeronautical product. He did not remove a component. At no point did he physically touch the aircraft.

[52] The definition of maintenance incorporates the term "required inspection". A required inspection is defined as:

"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.

[53] The Appeal Panel is of the view that the actions performed by Mr. Schnurr do not qualify as a required inspection. Mr. Schnurr was not performing an inspection pursuant to a maintenance schedule, airworthiness limitation or airworthiness directive. Mr. Schnurr did not even conduct a visual inspection which is the least intrusive form of an inspection. There are no facts before us showing that Mr. Schnurr went into the cockpit to view the illuminated panel light, the wiring, or anything related to the generators. Mr. Schnurr merely advised Mr. Dirven of what to do, and stood next to the aircraft to await Mr. Dirven's signal. Mr. Schnurr was familiar with the Beech 99 aircraft and their sensitivity to moisture. AMEs should not be penalized for their conversations with pilots. This would create an unfriendly and unprofessional environment and cause breakdowns in communication, clearly not in the interest of aviation safety. It was Mr. Dirven, PIC, who erred by failing to make a journey log entry.

[54] Since we have determined that Mr. Schnurr did not perform maintenance, it is now necessary to ascertain whether he performed elementary work. Item no. 11 requires that any elementary work performed must be reported in the journey log. Elementary work is clearly defined in the CARs. The tasks that are described as elementary work are listed in Standard 625 Appendix A in the CARs. The list is exhaustive:

Elementary Work Task Listings

(1) fabric patches measuring not more than 15 cm (6 in) in any direction and not requiring rib stitching or the removal of control surfaces or structural parts, on small privately operated aircraft;

(2) removal and replacement of tires, wheels, landing skids or skid shoes, not requiring separation of any hydraulic lines, on small privately operated aircraft;

(3) removal and replacement of skis on fixed landing gear, not requiring separation of any hydraulic lines, on small privately operated aircraft;

(4) repair of non-structural fairings, cover plates and cowlings, on small privately operated aircraft;

(5) cleaning and replacement of spark plugs, on small privately operated aircraft;

(6) checking of cylinder compression, on small privately operated aircraft;

(7) cleaning or changing of fuel, oil, and air filters, on small privately operated aircraft;

(8) draining and replenishing engine oil, on small privately operated aircraft;

(9) checking the electrolyte level and specific gravity of lead acid batteries, on small privately operated aircraft;

(10)adjustment of generator or alternator drive belt tension, on small privately operated aircraft;

(11)cleaning of balloon burner nozzles;

(12)removal and replacement of balloon baskets, burners and gas tanks that are designed for rapid change in service;

(13)removal and replacement of glider wings and tail surfaces that are designed for quick assembly;

(14)repair of upholstery, trim and cabin furnishings;

(15)removal and replacement of role equipment designed for rapid removal and replacement;

(16)removal and replacement of passenger seat belts and harnesses;

(17)removal and replacement of fuses, light bulbs and reflectors;

(18)removal and replacement of avionics components that are rack mounted or otherwise designed for rapid removal and replacement, where the work does not require testing other than an operational check;

(19)removal and replacement of aircraft batteries;

(20)removal and replacement of co-pilot control levers, wheels, pedals and pedal guard plates that are designed for rapid removal and replacement, on other than transport category aircraft;

(21)opening and closing of non-structural access panels;

(22)removal and replacement of cabin doors on unpressurized aircraft, where the door is designed for rapid removal and replacement;

(23)removal, replacement and repositioning of non structural partitions in the passenger cabin;

(24)inspection and continuity checking of self-sealing chip detectors;

(25)removal and replacement of induction system anti-icing baffles, scoops and deflectors that are designed for rapid removal and replacement;

(26)removal, cleaning, replacement and adjustment of external components of chemical dispersal systems that are designed for rapid removal and replacement;

(27)deactivating or securing inoperative systems in accordance with sections 605.09 or 605.10 of the CARs, including the installation of devices specifically intended for system deactivation, where the work does not involve disassembly, the installation of parts, or testing other than operational checks;

(28)checking and adjusting air pressure in helicopter floats, and aircraft tires having an operating pressure below 100 psi, except on aircraft operated under CAR 704 and CAR 705.

(29)repetitive visual inspections or operational checks (including inspections and tests required by airworthiness directives) not involving disassembly or the use of visual aids, performed out of phase with the aircraft's scheduled check cycle at intervals of less than 100 hours air time, provided the tasks are also included in the most frequent scheduled maintenance check.

[55] Mr. Schnurr's actions do not fall under elementary work. no. 29 is the only non-physical action on the list. Even then, Mr. Schnurr did not perform any repetitive visual inspections or operational checks. He did not enter the aircraft nor did he check any aeronautical products or equipment. Mr. Schnurr only provided oral advice on how to address the problem. Based on these considerations, it is the Appeal Panel's conclusion that Mr. Schnurr did not perform any maintenance or elementary work pursuant to the CARs. As such, he did not have an obligation to make a journal log entry, and thus, he did not violate subsection 605.94(1).

B. Due Diligence

[56] In the event that the Appeal Panel has erred in its conclusion, we will comment on the issue of due diligence. Section 8.5 of the Act provides a complete defence of due diligence to any violation of its provisions. The Supreme Court of Canada described the defence of due diligence in the following manner in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. [emphasis added]

[57] In his Determination, the Review Member, came to the conclusion that there was not much more that Air Mikisew could have done to prevent the incident. The Appeal Panel agrees with the Respondent that although the Review Member does not explicitly state that he finds Air Mikisew innocent on the grounds of due diligence, his language does indicate that to be the case. He states at para. [28] that "[i]t seems Air Mikisew has been diligent in training its personnel." The Review Member goes on to review all the actions taken by Air Mikisew to train its personnel. Finally, the Review Member stated at para. [31]: "[c]ould Mr. Davis have done more on September 14, 2006 to prevent this incident? From what I have seen, Air Mikisew had in place all the policy training needed for operations that day."

[58] In our view, it is not necessary for a Review Member to explicitly state that a party has been due diligent if the Review Member's language and analysis are such that the requirements of due diligence are found to be met. It is the Appeal Panel's conclusion that the Review Member did in fact conclude that Air Mikisew was due diligent. However, the Review Member did err by taking into consideration Directive 06-13, as it was issued subsequent to the alleged violation. The actions of Air Mikisew taken after it has received notice that it may have contravened the CARs cannot be considered as exercising due diligence. The analysis of whether Air Mikisew has been due diligent in preventing the violation is by definition backwards looking.

[59] Despite that, the Appeal Panel is still of the view that the Review Member's conclusion that Air Mikisew was due diligent was reasonable. He considered the testimony of Mr. Bennett and accepted that Air Mikisew had provided both initial and recurrent training on company procedures to all employees. The Review Member also accepted Mr. Dirven's testimony that he received all the training necessary with regard to this incident.

[60] What is evident is that the Review Member went through all of the witnesses' evidence and came to the conclusion that Air Mikisew had in place all the necessary manuals and procedures to deal with this incident. In our view, Mr. Schnurr was also very aware of his obligations and correctly testified that in his view, his actions did not constitute maintenance and therefore no journal entry was required. Mr. Schnurr was aware of the procedures and was clearly properly trained by the company. The Review Member also considered the testimonies of Inspectors Hrynyk and Paulhus who testified that they had no issues with the company's manuals.

[61] Given all of the foregoing, it is the Appeal Panel's conclusion that the Review Member's analysis and conclusion that Air Mikisew was due diligent was reasonable. We find no reason to interfere with the Review Member's Determination.

VI. DECISION

[62] The Appeal is dismissed. The Appeal Panel concludes that the Minister has not established that Air Mikisew Ltd. contravened subsection 605.94(1) of the CARs vicariously through subsection 8.4(2) of the Aeronautics Act. In the event that the Appeal Panel has erred in its conclusion, it determines that the Review Member's analysis and conclusion of the defence of due diligence by Air Mikisew Ltd. was reasonable.

May 20, 2011

Reasons for Appeal Decision: J. Richard W. Hall, Chairperson

Concurred by: Herbert Lee, Member

Stephen Rogers, Member