Decisions

TATC File No. Q-3596-04
MoT File No. N 5504-66919

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Gaétan Bélanger, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9(1)
Canadian Aviation Regulations, SOR/96-433, para. 605.93(1)(a)


Review Determination
Suzanne Racine


Decision: April 8, 2010

Citation: Bélanger v. Canada (Minister of Transport), 2010 TATCE 8 (review)

[Official English Translation]

Heard at Granby, Quebec, on January 19 and 20, 2010

Held: The Minister of Transport has proved, on a balance of probabilities, that the Applicant, Gaétan Bélanger, contravened paragraph 605.93(1)(a) of the Canadian Aviation Regulations. Accordingly, the Transportation Appeal Tribunal of Canada upholds the suspension of the Applicant's licence for a total of fourteen (14) days, that is, seven (7) days for each offence.

I. BACKGROUND

[1] On June 5, 2009, the Minister of Transport issued to the Applicant, Gaétan Bélanger, a Notice of Suspension of his aircraft maintenance engineer (AME) licence bearing number 157104, pursuant to subsection 6.9(1) of the Aeronautics Act ("Act"). The Minister suspended the Applicant's licence for a period of 14 days, that is, 7 days for each of the following offences, as set out in Schedule A to the Notice of Suspension:

[translation]

1.  Between July 11 and July 31, 2008, in the vicinity of Valcourt, Quebec, you falsely recorded in the technical records of the aircraft registered as C‑GLSF, a Rolladen‑Schneider LS4‑b glider, that the altimeter had been calibrated, thereby contravening paragraph 605.93(1)(a) of the Canadian Aviation Regulations.

Penalty: 7-day suspension

2.  Between July 11 and July 31, 2008, in the vicinity of Valcourt, Quebec, you falsely recorded in the technical records of the aircraft registered as C‑GLSF, a Rolladen‑Schneider LS4‑b glider, that the service bulletin identified as Rolladen-Schneider SB 4046 [Technical Bulletin 4046], compliance with which is made mandatory by Airworthiness Directive D-2004-001, had been completed, thereby contravening paragraph 605.93(1)(a) of the Canadian Aviation Regulations.

Penalty: 7-day suspension

Total: 14-day suspension

[2] On July 2, 2009, the Transportation Appeal Tribunal of Canada ("Tribunal") granted a stay of the suspension pending a ruling of the Minister's decision.

II. STATUTES, REGULATIONS AND POLICIES

[3] Subsection 6.9(1) of the Act states:

6.9(1) If the Minister decides to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued has contravened any provision of this Part or of any regulation, notice, order, security measure or emergency direction made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at that person's latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

[4] Paragraph 605.93(1)(a) of the Canadian Aviation Regulations ("CARs") states:

605.93(1) Every person who makes an entry in a technical record shall:

(a) make the entry accurately, legibly and in a permanent manner;

. . .

III. EVIDENCE

A. Minister of Transport

(1) Mario Drouin

[5] Mario Drouin is a Civil Aviation Safety Inspector at Transport Canada and has held an AME licence since 1990. He testified that Réjean Labrosse informed him of his intention to file an import eligibility request for a Rolladen-Schneider LS4‑b glider, to be registered as C‑GLSF. This glider has a type certificate issued by a foreign authority (Exhibit M‑1).

[6] Inspector Drouin stated that he sent Mr. Labrosse instructions describing the procedure to be followed for determining whether or not an aircraft is eligible to be imported and the checklists to be completed to Transport Canada's satisfaction in order to obtain a special certificate of airworthiness (Exhibit M‑2). He stated that when an aircraft is to be imported, Transport Canada must ensure that the aircraft to be imported conforms to the approved type design so that it can be operated safely in Canada.

[7] During the testimony of Inspector Drouin, the Minister filed the following exhibits:

  • a certified true copy of an excerpt from the journey log of aircraft C‑GLSF (Exhibit M‑3);
  • a certified true copy of an excerpt from the airframe technical record for the aircraft, taken from the technical log of aircraft C‑GLSF (Exhibit M‑4);
  • a certified true copy of the technical record of installations and modifications to the aircraft, taken from the technical log of aircraft C‑GLSF (Exhibit M‑5);
  • a certified true copy of the flight manual of the Rolladen-Schneider LS4‑b glider bearing serial number 41046 (Exhibit M‑6);
  • a certified true copy of the maintenance manual of the Rolladen-Schneider LS4‑b glider bearing serial number 41046 (Exhibit M‑7);
  • a copy of Airworthiness Directive D‑2004‑001 (Exhibit M‑9);
  • a copy of Technical Bulletin 4046 (TB 4046) applicable to Rolladen‑Schneider LS4‑b gliders bearing serial numbers 4830 to 41054 (Exhibit M‑10).

[8] The Rolladen-Schneider LS4‑b glider bearing serial number 41046 has a type certificate issued by the Aviation Regulatory Authority of Germany, the Luftfahrt-Bundesamt (LBA), which has jurisdiction over the type design of the LS4‑b glider (Exhibit M‑6).

[9] The Applicant, Mr. Bélanger, completed the import eligibility request on behalf of Mr. Labrosse. Upon reviewing the importation documents, Inspector Drouin noted that the Applicant had indicated at item 3.2.6 of Checklist no. 2 (Exhibit M‑2 at p. 15) that all airworthiness directives applicable to the aircraft were completed. He noted, however, that the instructions contained in TB 4046 (3rd edition, Exhibit M‑10), applicable to the Rolladen‑Schneider LS4‑b glider and required by Airworthiness Directive D‑2004‑001, had not been applied to the flight (Exhibit M‑6) or maintenance manuals (Exhibit M‑7) of the aircraft.

[10] TB 4046 states that an amended version of pages 0-1, 0-2, 2-4 and 4-7 of the 1992 edition of the aircraft's flight manual should have appeared in the 2002 edition (3rd revision) of the manual, and that pages 4-8a and 4-9a should have been added. TB 4046 also states that an amended version of pages 0‑1, 0-2, 2-3, 5-1, 5-2 and 5-3 of the 1992 edition of the aircraft's maintenance manual should have appeared in the 2002 edition (2nd edition) of the manual, and that pages 2-4a and 2-5a should have been added. None of the instructions in TB 4046 were applied to the manuals of this aircraft. However, the aircraft technical records, including the excerpts from the aircraft journey log (Exhibit M‑3), from the airframe technical record (Exhibit M‑4) and from the technical record of installations and modifications to the aircraft (Exhibit M‑5), contain an entry signed by the Applicant as AME in July 2008, which indicates that the instructions of TB 4046, made mandatory by Airworthiness Directive D‑2004‑001, were complied with.

[11] On August 19, 2008, Inspector Drouin asked the Applicant to update the flight and maintenance manuals of the aircraft to reflect the requirements of TB 4046 and Airworthiness Directive D-2004-001 (Exhibit M‑8).

[12] Inspector Drouin stated that Mr. Bélanger had indicated at items 4.18, 4.19 and 4.20 of Checklist no. 3 of Part IV of the import eligibility application (Exhibit M‑2 at p. 20) that, in his view, the requirements relating to calibration of the altimeter, the necessity of having it tested by an approved maintenance organization (AMO), and the inspection of the aircraft's pressure system did not apply. The witness indicated that in July 2008, Mr. Bélanger made an entry in the aircraft journey log (Exhibit M‑3) and the airframe technical record (Exhibit M‑4), stating that the altimeter of the aircraft had been calibrated by Aeroneuf Instruments Ltd. (Aeroneuf Instruments). When asked by Inspector Drouin, Mr. Bélanger was unable to produce proof of that fact. As a result, the next day, August 20, 2008, Inspector Drouin prepared a Detection Notice (Exhibit M‑12).

[13] Inspector Drouin informed the Tribunal that the Rolladen-Schneider LS4‑b glider bearing serial number 41046 has a Foreign Type Certificate no. 345 issued in 1992 by the LBA. The type design of this aircraft is governed by the Joint Aviation Requirements (JAR), also referred to as certification requirements. JAR 22 applies to gliders (Exhibit M‑14). The airworthiness requirements prescribed in JAR sections 22.1301 and 22.1303 indicate that the glider type LS4‑b must be equipped with an altimeter (1301) in good working order (1303). Inspector Drouin confirmed that calibration of the altimeter is normally required when an aircraft is imported to ensure that it is in good working order. In his view, this must be done at the time of importation, in addition to the calibration check that is done every 24 months, as required. Inspector Drouin then handed the case over to his colleague Carmen Plourde.

[14] Inspector Drouin stated that he inspected the LS4‑b aircraft registered C‑GLSF at Valcourt, Quebec, on September 10, 2008. The aircraft altimeter, which had been replaced, had been calibrated by Aeroneuf Instruments. The technical records of the aircraft were from then on up to date in accordance with Airworthiness Directive D-2004-001 and the instructions in TB 4046. Satisfied, Inspector Drouin issued a special certificate of airworthiness for the aircraft concerned. According to Inspector Drouin, Mr. Bélanger cooperated with the investigation.

[15] During cross-examination, Inspector Drouin stated that he had never imported an aircraft prior to becoming an inspector at Transport Canada. Since becoming an inspector, he has been involved in three or four aircraft importations. Inspector Drouin has no experience as an AME on gliders. He indicated that the owner of the aircraft asked him to issue a special certificate of airworthiness for his aircraft. Inspector Drouin suggested that the owner refer to the flight and maintenance manuals of a similar aircraft, C‑GLSB, for guidance in completing his import eligibility application and obtaining a special certificate of airworthiness. According to Inspector Drouin, the altimeter of the aircraft should have automatically been calibrated when it was imported, in accordance with the airworthiness requirements (JAR 22) set out in the aircraft type certificate.

(2) Carmen Plourde

[16] Transport Canada Inspector Carmen Plourde holds an AME licence. On September 2, 2008, she met with Mr. Bélanger, who, at the request of Inspector Drouin, gave her a copy of the amendments made to the aircraft's flight manual (Exhibit M‑11) and maintenance manual (Exhibit M‑13, at paragraphs 3 and 4). Mr. Bélanger made the following entries in the airframe technical record of aircraft C‑GLSF: "TB 4046 has been inserted in flight manual" and "TB 4047 has been performed by removal of the bags."

[17] When Inspector Plourde wanted to check the altimeter calibration, Mr. Bélanger admitted that he had made an error when he wrote in the aircraft journey log and airframe technical record that the altimeter had been calibrated by Aeroneuf Instruments. According to Mr. Bélanger, calibration of the altimeter was simply not required under standard 625.86 of the CARs because the aircraft is not operated under instrument flight rules or in Class B airspace. Inspector Plourde disagreed and asked Mr. Bélanger to have the altimeter calibrated and update the aircraft records accordingly. Contrary to Inspector Plourde's instructions, Mr. Bélanger, in her presence, made the following entry in the aircraft technical records: "Altimeter not applicable to calibration CARs 625.86 Appendix B."

[18] On September 8, 2008, Mr. Bélanger informed Inspector Plourde that the A 83 altimeter manufactured by United Instruments Incorporated (UII), serial number 413484, had been replaced with a 5934P-1 altimeter bearing serial number 2J938; that the static pressure had been checked in accordance with Appendix B of Standard 571 of the CARs and that the aircraft equipment list had been amended to reflect the amendments to the aircraft technical records, to the satisfaction of Transport Canada (Exhibits M‑16 and M‑17). Inspector Plourde sent these documents to Inspector Drouin, who inspected the aircraft a few days later.

(3) Paulo Nunes

[19] Paulo Nunes is the Director of Aircraft Maintenance at Aeroneuf Instruments. He stated that the particulars of the work done by Aeroneuf Instruments on each aircraft have been recorded in an electronic database since 1993. Mr. Nunes stated that in July 2008, he did not calibrate the A 83 altimeter bearing serial number 413484 from aircraft C‑GLSF, contrary to what was written in the aircraft journey log and airframe technical record of the aircraft. He found no indication in that regard in the records of Aeroneuf Instruments, be it under the name of the aircraft's owner, Mr. Labrosse or his company, Aéroclub des Cantons de l'Est, or under the name of Mr. Bélanger or the companies with which he is associated, notably Canadian Aircraft Sales and Maji Aviation Inc.

[20] Invoice no. 50652 dated September 3, 2008, does however indicate that Aeroneuf Instruments later calibrated, on September 3, 2008, altimeter 5934P-1 bearing serial number 2J938, which replaced altimeter A 83 bearing serial number 413484 (Exhibit M‑18).

(4) Charles Burroughs

[21] Charles Burroughs is an Inspector at Transport Canada and holds an AME licence. He has been involved in the review of at least eight import applications for aircraft. Inspector Burroughs drafted the alleged offences against Mr. Bélanger. Both offences were committed during the period of July 11 to July 31, 2008, and July 11, 2008, being the date when the aircraft was sold, as indicated on the bill of sale (Exhibit M‑20), and July 31, 2008, being the presumed date of the last entry in the aircraft records, according to Inspector Burroughs, since the exact date is unknown.

[22] The two offences of which Mr. Bélanger is accused occurred in the vicinity of Valcourt, Quebec, since the Rolladen-Schneider LS4‑b glider was there in July 2008, as indicated on the import eligibility application for the aircraft (Exhibit M‑2 at p. 10).

[23] To establish the identity of the aircraft, Inspector Burroughs referred the Tribunal to the following documents:

  • the bill of sale of the LS4‑b glider bearing serial number 41046, which indicates that it is to be registered as C‑GLSF (Exhibit M‑20);
  • an excerpt from the aircraft journey log (Exhibit M‑3) and an excerpt from the airframe technical record of aircraft C‑GLSF (Exhibit M‑4);
  • an excerpt from the Canadian Civil Aircraft Register (Exhibit M‑21, Appendix 1);
  • the registration certificate of the LS4‑b glider bearing serial number 41046 (Exhibit M‑22).

[24] As regards the Canadian type certificate for the Rolladen‑Schneider glider (Exhibit M‑23), the Minister informed the Tribunal that it applies only to type LS4 and LS4‑a aircraft. The LS4‑b glider is not named on the certificate because it does not have a type certificate issued by the Minister. It has a type certificate equivalent to that issued by the Minister in Canada within the meaning of the term "type certificate" provided in subsection 101.01(1) of the CARs. The LBA is the airworthiness authority having jurisdiction over the type design of the LS4‑b glider, under type certificate no. 345, issued in accordance with the airworthiness requirements (JAR 22, Exhibit M‑14). That type certificate was subsequently replaced by type certificate no. A.095 from the European Aviation Safety Agency (EASA, Exhibit M‑24). When an aircraft has no type design approved by the Minister, the Minister issues a special certificate of airworthiness under section 507.03 of the CARs.

(a) Alleged Offence 1

[25] Inspector Burroughs testified that in July 2008, although he did not specify the exact date, Mr. Bélanger made an entry in the journey log and airframe technical record of aircraft C‑GLSF, indicating that altimeter A 83 bearing serial number 413484 had been calibrated by Aeroneuf Instruments. Mr. Bélanger was unable to convince the Minister that the calibration was done between July 11 and July 31, 2008. He stated that he had made a mistake when he wrote that it was unnecessary to calibrate altimeter A 83. In September 2008, Mr. Bélanger replaced that altimeter with a type 5934P‑1 altimeter, which he had Aeroneuf Instruments calibrate.

[26] Inspector Burroughs stated that, pursuant to standard 571.03 of the CARs, all maintenance work on an aircraft must be recorded in the aircraft journey log. The person who does the work must ensure that the exact date is entered. The Aircraft Equipment List, as well as the Weight and Balance Form, must be updated to reflect any amendment in accordance with appendix C of standard 625 of the CARs. Entries in the technical records of an aircraft must be accurate, since they describe the operational status of the aircraft.

[27] Inspector Burroughs stated that under the airworthiness requirements set out in JAR 22.1301 and JAR 22.1303 (Exhibit M‑14), referred to in the type certificate of the LS4‑b glider, the aircraft must be fitted with an altimeter in good working order. A performance test or calibration of the altimeter is included in the preliminary checks that are required when an import eligibility application for an aircraft is processed. The purpose of this test is to demonstrate to the Minister that the aircraft being imported conforms to its design type and that it can be operated safely in Canada. The altimeter of the subject aircraft should have been calibrated to meet the applicable airworthiness requirements.

(b) Alleged Offence 2

[28] The purpose of TBs is to inform aircraft's owners and others concerned of any changes that might affect the airworthiness of an aircraft. TB 4046 (Exhibit M‑10) was written by the LBA, which is the authority having jurisdiction over the type design of the LS4‑b glider until type certificate no. 345 was replaced by EASA type certificate no. A.095 (Exhibit M‑24 at p. 0‑1). Mr. Burroughs testified that the instructions provided in TB 4046 are made mandatory by Airworthiness Directive D-2004-001, including the amendment of certain pages of the flight and maintenance manuals to reflect the optional procedure mentioned in TB 4047 (Exhibit M‑25). The instructions provided in TB 4047 may affect the airworthiness of the aircraft, since they involve changes in the aircraft equipment configuration. Airworthiness Directives JAR 22.1529 and JAR 22.1581, which are applicable to the LS4‑b type design, provide that the flight and maintenance manuals must be updated to reflect all the information necessary for the safe operation of the aircraft (Exhibit M‑14). The required amendments to the flight and maintenance manuals of aircraft C‑GLSF were not made in July 2008, even though Mr. Bélanger indicated in the aircraft journey log and technical records of the aircraft that he had complied with Airworthiness Directive D-2004-001 and the instructions in TB 4046.

[29] Inspector Burroughs recommended that the Applicant's AME licence be suspended for a total of 14 days, or 7 days for each alleged offence. Although this is a first offence, the witness believes that Mr. Bélanger, an experienced AME, did not appear to take seriously the importance of entries made in the flight and maintenance manuals of aircraft C‑GLSF, and that attitude is an aggravating factor.

[30] During cross-examination, Inspector Burroughs reiterated that the aircraft had to be calibrated in accordance with appendix B of standard 571 of the CARs before the Minister could issue a special certificate of airworthiness for the aircraft. He indicated that it was possible to check whether the altimeter was in working order by comparing the barometric pressure obtained and the altitude of the aerodrome where the aircraft was located. He stated as follows: [Translation] ". . . if it's the same, there is a ninety-nine percent (99%) chance that the altimeter is working properly."

[31] The witness stated that he had read TB 4046 but was not familiar with the instructions in the flight and maintenance manuals as amended by that TB. Mr. Burroughs reiterated that when an aircraft has a type certificate issued by the Minister, the Minister issues the airworthiness certificate in accordance with section 507.02 of the CARs. If the aircraft does not have a type certificate issued by the Minister, Transport Canada issues a special certificate of airworthiness under section 507.03 of the CARs. In the latter case, it is essential to ensure that the notices, equivalent to the airworthiness directives issued by the authority having jurisdiction in the foreign state, are complied with and that the entries in the technical records of the aircraft demonstrating such compliance are clear and accurate. Inspector Burroughs alleged that the manufacturer of the Rolladen‑Schneider glider could have requested that the Minister issue a type certificate for its LS4‑b glider, similar to the type certificates for LS4 and LS4‑a gliders.

B. Applicant

(1) Alleged Offence 1

[32] Mr. Bélanger considered that he was not required to calibrate the A 83 altimeter of aircraft C‑GLSF. In his view, only altimeters on aircraft operated under visual or instrument flight rules in Class B and C, and Class C and D airspace must be calibrated at intervals of up to 24 months, in accordance with section 13, appendix C of standard 625 of the CARs. An LS4‑b glider cannot operate in those classes of airspace. He stated that he was not required to calibrate the altimeter because the aircraft did not have a type certificate. He indicated that he replaced the A 83 altimeter on the aircraft with an altimeter from another aircraft in his custody. That altimeter was in good working order.

[33] Mr. Bélanger believes Transport Canada did not act properly when it issued a special certificate of airworthiness when the aircraft was imported. In his view, the Minister should have issued a type certificate following a Level 1 Airworthiness Review of the LS4‑b glider.

(2) Alleged Offence 2

[34] Mr. Bélanger stated that he was not required to amend the flight and maintenance manuals of the aircraft. In his view, TB 4046, compliance with which is made mandatory by Airworthiness Directive D-2004-001, refers to the application of an optional procedure described in TB 4047. This procedure involves moving the ballast bags towards the wing root or modifying them to increase the maximum weight of non-lifting parts of the aircraft. Mr. Bélanger indicated that he removed the ballast bags, as evidenced by the openings shown in the two photographs (Exhibit R-1). He was therefore not required to follow that procedure or the instructions in TB 4046 which refer to it.

[35] The Applicant stated that he records in a computer the dates and particulars of the work performed on each aircraft brought to him. In his view, Transport Canada inspectors should provide more guidance to AMEs regarding compliance with the CARs. He alleged that he did not put anyone's life in danger or compromise aviation safety.

[36] During cross-examination, Mr. Bélanger admitted that in July 2008, he made the following entry in the technical record of installations and modifications to aircraft C‑GLSF (Exhibit M‑5): "D2004-001 LS 4B-increase of structure life limit has been found corrected." He also admitted that in July 2008, he wrote in the aircraft journey log and airframe technical record that he had complied with Airworthiness Directive D-2004-001 and the instructions in TB 4046. Although Mr. Bélanger indicated that he had removed the ballast bags from the aircraft, those bags were still included in the aircraft equipment list that he signed in July 2008. It was only in September 2008 that he deleted that item from the aircraft equipment list. If Mr. Bélanger replaced altimeter A 83 bearing serial number 413484, he did not record so in the aircraft technical records. In July 2008, he signed at the bottom of an equipment list which still included altimeter A 83 bearing serial number 413484.

IV. ARGUMENTS

A. Minister of Transport

(1) Alleged Offence 1

[37] The Minister submits that he has proved, on a balance of probabilities:

  • the period during which the offence occurred, that is, July 11 to 31, 2008;
  • the location of the offence, that is, Valcourt, Quebec;
  • the identity of the aircraft registered as C‑GLSF;
  • the fact that the entries in the aircraft journey log and technical records were made by Mr. Bélanger, an AME holding licence number 157104; and
  • the fact that Mr. Bélanger wrote in the aircraft journey log and technical records that the altimeter had been calibrated at Aeroneuf Instruments.

The evidence on these elements was not contested by the Applicant.

[38] The evidence revealed that the aircraft's type A 83 altimeter bearing serial number 413484 was not calibrated at Aeroneuf Instruments. On August 25, 2008, Mr. Bélanger admitted having made an error, but he argued that it was not necessary to calibrate the aircraft's altimeter. He then testified that he replaced the A 83 altimeter on the aircraft with another that was in good working order taken from another aircraft in his custody, but did not record the particulars of that work in the aircraft technical records and did not inform Inspector Burroughs of the amendment. In July 2008, altimeter A 83 bearing serial number 413484 was still on the aircraft equipment list, which is the list attached to the Notice of Detection and which was signed by Mr. Bélanger (Exhibit M‑15).

[39] The Minister demonstrated that the Applicant failed to comply with paragraph 605.93(1)(a) of the CARs. This provision requires that the person making an entry in a technical record must do so accurately. An accurate entry is a true representation of the facts. An inaccurate or false entry is not an accurate entry within the meaning of paragraph 605.93(1)(a) of the CARs.

[40] The entries made by Mr. Bélanger in the aircraft journey log and airframe technical record were found to be not only inaccurate, but also false.

(2) Second Offence 2

[41] The Minister submits that he has proved, on a balance of probabilities, the period during which the offence occurred, the location of the offence, the identity of the aircraft and the identity of the Applicant who made the entries in the technical records concerning TB 4046. These facts were not contested by the Applicant.

[42] The Minister further submits that he has demonstrated that Mr. Bélanger falsely recorded in the aircraft journey log and the aircraft technical records that the instructions set out in TB 4046, made mandatory by Airworthiness Directive D-2004-001, were complied with. It is important to note that Airworthiness Directive D-2004‑001 reads as follows: "Rolladen-Schneider Technical Bulletin no. 4046 dated March 03, 2003, which becomes herewith part of this AD . . . "

[43] The purpose of the instructions in TB 4046 is to amend the flight and maintenance manuals of the aircraft so that they reflect the optional procedure regarding the ballast bags set out in TB 4047. In July 2008, neither the flight manual nor the maintenance manual of the aircraft had been amended in accordance with TB 4046.

(3) Penalties

[44] The Minister notes that the schedule of penalties in the Transport Canada Aviation Enforcement Procedures Manual (4th edition, December 2003, Exhibit M‑26) suggests a suspension of three to seven days for a first contravention of subsection 605.93(1) of the CARs. Making false entries in aircraft technical records is a more serious offence than making an inaccurate entry, such as omitting the date in the entries made in July 2008. Moreover, the fact that Mr. Bélanger is an experienced AME is an aggravating factor. A suspension of seven days on each count is warranted and achieves the intended deterrent effect.

B. Applicant

[45] Mr. Bélanger claims that the Minister should have issued a type certificate following the Level 1 Airworthiness Review instead of issuing a special certificate of airworthiness for the LS4‑b glider registered as C‑GLSF. Mr. Bélanger further argues that the Minister did not act properly to facilitate the eligibility of the LS4‑b glider for importation and the granting of flight authority in Canada. He argues, moreover, that it is not common practice to calibrate an altimeter when an aircraft is imported, especially when the aircraft is not operating in Class B and C or Class C and D airspace. To verify whether the altimeter on glider LS4‑b was in good working order, in his view, it would have been sufficient to check, as suggested by Inspector Burroughs, that the barometric pressure was consistent with the altitude of the airport.

[46] Mr. Bélanger is of the view that he was not required to amend the aircraft flight and maintenance manuals as prescribed in TB 4046, since he did not complete the optional procedure described in this bulletin. He acknowledges, however, that if he had completed that procedure, he would have amended the aircraft manuals accordingly. He submits that the Minister's interpretation of TB 4046 is wrong.

[47] Finally, the Applicant notes that he did not threaten aviation safety or put anyone's life in danger.

V. EVIDENCE, LEGISLATION AND POLICY ANALYSIS

[48] The Minister alleges that the Applicant made false entries in the technical records of the aircraft registered C‑GLSF, a Rolladen-Schneider LS4‑b glider, thereby contravening paragraph 605.93(1)(a) of the CARs. Contraventions of the CARs are strict liability offences, and the Minister therefore is not required to prove intent on the part of the Applicant. To demonstrate that an offence was committed, the Minister must prove each of the elements thereof on a balance of probabilities. The burden of proof requires that the existence of a fact be more probable or more plausible than the non-existence of that fact. In defence, the Applicant can argue that he took all necessary measures to comply with the Regulations.

[49] The Tribunal finds that the Minister has satisfied his burden of proof by demonstrating with respect to both alleged offences that they occurred during the period of July 11 to 31, 2008, in the vicinity of Valcourt, Quebec. The Minister has also proved, on a balance of probabilities, that Mr. Bélanger made entries in the technical records of the aircraft registered C‑GLSF. Besides proving these elements, the Minister must also demonstrate the falsity of the entries in the technical records made by Mr. Bélanger concerning the calibration of the altimeter and compliance with the instructions in TB 4046, made mandatory by Airworthiness Directive D‑2004‑001.

A. Calibration of Altimeter

[50] The evidence shows the following:

  • In July 2008, on an undetermined date, Mr. Bélanger made entries in the aircraft journey log and airframe technical record stating that the aircraft's altimeter had been calibrated by Aeroneuf Instruments;
  • Mr. Bélanger admitted placing his signature below those entries;
  • Mr. Bélanger was unable to produce proof that the altimeter had been calibrated when Transport Canada requested such proof;
  • Mr. Nunes, the Maintenance Director at Aeroneuf Instruments, stated that the company did not calibrate the A 83 altimeter bearing serial number 413484, which is included in the aircraft equipment list signed by Mr. Bélanger. Mr. Nunes did not find any orders or invoices related to such work;
  • Mr. Bélanger claimed that he made these entries in error and that he should have written that the calibration was not necessary.

[51] It is important to note that the alleged offences against Mr. Bélanger were related to an import eligibility request that he completed on behalf of the aircraft's owner. An import eligibility request requires that certain directives be followed and that checklists be completed by the owner or the owner's representative. The items contained in these lists are intended to determine whether or not the aircraft being imported conforms to the approved type design and whether it is in good working order so as to be operated safely in Canada in accordance with section 507.07 of the CARs and standard 507 of the CARs. Item 4.19 of Checklist no. 3, Part 4, of the import eligibility request lists the requirements that must be met for an aircraft to be eligible for importation (Exhibit M‑2 at p. 20). The altimeter must be tested by an AMO in accordance with subparagraph (b)(i), appendix B of standard 571 of the CARs

[52] The type design of the Rolladen-Schneider LS4‑b glider is described on EASA type certificate no. A.095, which was replaced by type certificate no. 345 issued by the LBA. The Minister has no jurisdiction over the type design of the LS4‑b glider and must comply with foreign airworthiness requirements or with any equivalent notice issued by the authority having jurisdiction over the aircraft type design, in accordance with subparagraph 605.84(1)(e)(ii) of the CARs. JAR 22.1303 requires that all gliders have an altimeter on board, and JAR 22.1301(a) requires the altimeter to be in good working order (Exhibit M‑14).

[53] Mr. Bélanger claims that he was not required to calibrate the altimeter, since the LS4‑b does not have a type certificate issued by the Minister and altimeters are not installed in aircraft operating under instrument or visual flight rules in Transponder Airspace (Class B and C or Class C and D), in accordance with appendix C of standard 625 of the CARs. It is indeed not necessary to calibrate every 24 months an altimeter on a glider that is not equipped with a transponder, as required by subsection 605.35(1) of the CARs; however, it does not mean that the type design of the LS4‑b glider contained in the type certificate does not render the aircraft subject to the airworthiness directives issued by the competent foreign authority. Canadian regulations, specifically subparagraph 605.84(1)(e)(ii) of the CARs, requires that the Minister ensure that those mandatory airworthiness directives are complied with before he can issue a flight authority. In this instance, the Minister therefore was required to ensure that the altimeter installed on the LS4‑b glider was in good working order before issuing a flight authority for the aircraft. Appendix B of standard 571 of the CARs requires that the altimeter be tested by an AMO, that the date and the maximum altitude at which the altimeter was tested be indicated, and that the person who performed the test sign off on the work.

[54] Mr. Bélanger cannot skirt the airworthiness requirements applicable to the type design of the LS4‑b glider on the pretext that the imported aircraft has no type certificate. Flight authority for an imported aircraft is dependent on compliance of the aircraft type design with the applicable airworthiness requirements. Mr. Bélanger mistakenly believes that the flight authority granted by the Minister is dependent on the type certificate of an aircraft. During the period of July 11 to 31, 2008, Mr. Bélanger did not have the A 83 altimeter calibrated on the LS4‑b glider registered C‑GLSF.

[55] At the Hearing, Mr. Bélanger stated that in order to expedite the importation process, he replaced the A 83 altimeter on the aircraft with an altimeter in good working order taken from another aircraft in his custody. For one thing, there were no entries in the technical records of the aircraft documenting that maintenance work. For another, replacing the glider's original altimeter increases the risk of forgetting that an altimeter taken from another aircraft type must be calibrated every 24 months.

B. Technical Bulletin 4046 and Airworthiness Directive D-2004‑001

[56] The entries made by the Applicant in July 2008 in the journey log (Exhibit M‑3), the airframe technical record (Exhibit M‑4) and the technical record of installations and modifications (Exhibit M‑5) for the LS4‑b aircraft bearing serial number 41046 and registered C‑GLSF indicate that all the instructions in TB 4046 and Airworthiness Directive D-2004‑001 were complied with. Mr. Bélanger admitted that he signed the journey log and technical records of the aircraft.

[57] TB 4046, which applies to the LS4‑b glider, is an integral part of Airworthiness Directive D‑2004‑001 issued by the LBA. Essentially, compliance with TBs issued by foreign authorities is mandatory only if they are declared mandatory by the competent authority or by an airworthiness directive, in accordance with appendix H of standard 625 of the CARs. The purpose of TB 4046 is primarily to draw attention to the aircraft flight and maintenance manuals, which must be amended to reflect the changes described below which may have an impact on the airworthiness of an aircraft (Exhibit M‑10):

(a) By moving wing water ballast bags outward and reducing . . . the maximum weight of non‑lifting parts can be increased.

(b) See TB 4047 for increase procedure and possible retrofit.

(c) Increase of structural life limit to max. 12,000 hours.

[58] TB 4046 clearly identifies the numbers of the pages in each manual that must be amended. The subject of the TB is "Subject: Flight and Maintenance Manuals."

[59] Mr. Bélanger claims that, since he did not do the optional work suggested by TB 4046 (which refers to TB 4047), it is not necessary to amend the pages of the aircraft manuals.

[60] Mr. Bélanger also claims that the amendments suggested by TB 4046, with regard to the moving of the ballast bags to increase the weight of non‑lifting parts of the aircraft, do not apply to aircraft C‑GLSF because that aircraft has no such bags. Mr. Bélanger therefore could not move them or reduce their contents.

[61] We must bear in mind that TB 4046 has the same force and effect as an airworthiness directive and that compliance with any airworthiness directive issued by the authority having jurisdiction over the aircraft design type is mandatory. Mr. Bélanger seems to be confusing the content of TB 4046 with its purpose, which is to ensure that the flight and maintenance manuals of the aircraft were updated to reflect the optional procedure mentioned in TB 4046. The fact that the work suggested in TB 4046 evidently cannot be performed on LS4‑b glider registered C‑GLSF at this time does not alter the mandatory nature of TB 4046. Moreover, since it would be possible at any time to re-install the ballast bags, according to Mr. Bélanger, the aircraft manuals must be kept up to date to avoid errors, where applicable.

[62] The airworthiness requirements applicable to the design type of the LS4‑b glider emphasize the importance of having flight (JAR 22.1581) and maintenance (JAR 22.1529) manuals containing all the information required to operate the aircraft properly.

[63] Obtaining an airworthiness certificate when importing an aircraft is a more complex process, which requires that the process be carefully followed and that detailed checklists, contained in the Maintenance and Manufacturing Staff Instructions, which form part of the import eligibility request (Exhibit M‑2), be completed. Item 3.2.6 of Checklist no. 2 states that confirmation is required that all relevant airworthiness directives or their foreign equivalents have been complied with before an import eligibility request is submitted (Exhibit M‑2 at p. 15). In addition, section 605.84 of the CARs requires that the Minister comply with the airworthiness requirements or any other equivalent notice issued by a competent foreign authority with respect to the airworthiness of this type of aeronautical product.

[64] Before issuing a flight authority, the Minister had to be convinced that the aircraft conformed to the design type approved by the EASA and that, in accordance with section 605.86 of the CARs, the aircraft was in compliance with the directives of the competent airworthiness authority so as to be operated safely in Canada.

[65] Mr. Bélanger indicated in the aircraft technical records that he had complied with the requirements, but the evidence shows that in July 2008, he did not amend the flight or maintenance manuals of the aircraft as instructed by TB 4046.

[66] Mr. Bélanger would have had the Minister issue a type certificate following the Level 1 Airworthiness Review. According to the Minister, the special certificate of airworthiness, issued pursuant to section 507.03 of the CARs, was the appropriate authority in the circumstances. Not having jurisdiction over the type design of the LS4‑b glider, the Minister could not issue the certificate pursuant to section 507.02 of the CARs as the Applicant would have wished. In any event, it seems unlikely that the aircraft's owner had sufficient interest in the issue.

[67] Either Mr. Bélanger did not understand the purpose of TB 4046, or he did understand it and chose to not comply with it. The Minister has proved, on a balance of probabilities, that the Applicant falsely recorded in the technical records of the aircraft that the instructions in TB 4046 had been complied with.

C. Penalties

[68] The Tribunal is of the view that the seven-day suspension for each offence is warranted. The evidence showed that in July 2008, the Applicant made false entries in the technical records of the aircraft with respect to the altimeter and the updating of the aircraft records. Entering false information in the aircraft records for the purpose of obtaining a flight authority from Transport Canada is a serious inaccuracy that suggested that the altimeter was correctly calibrated and that the aircraft records were up to date. At the time of Inspector Plourde's intervention, Mr. Bélanger, an experienced AME, did not take the opportunity to correct his own error concerning the altimeter. In entering false information in the aircraft technical records, the Applicant misled the Minister and the aircraft's owner. He did not scrupulously carry out the tasks for which he was responsible when he submitted the import eligibility request.

VI. DETERMINATION

[69] The Minister has proved the allegations made against the Applicant on a balance of probabilities. The Tribunal upholds the suspension of the licence of Gaétan Bélanger for a total of 14 days, that is, seven days for each offence.

April 8, 2010

Suzanne Racine

Member


Appeal decision
Caroline Desbiens, Michel Larose, Franco Pietracupa


Decision: February 29, 2012

Citation: Bélanger v. Canada (Minister of Transport), 2012 TATCE 6 (Appeal)

[Official English translation]

Held: The appeal is dismissed. The Minister of Transport has proven, on a balance of probabilities, that the appellant, Gaétan Bélanger, contravened paragraph 605.93(1)(a) of the Canadian Aviation Regulations. Accordingly, the Transportation Appeal Tribunal of Canada upholds the suspension of the appellant's licence for a total of fourteen (14) days, seven (7) days for each offence.

This suspension will begin on the thirty‑fifth (35th) day following the service of this appeal decision.

I. BACKGROUND

[1] The appellant, Gaétan Bélanger, is appealing the Review Determination by the Transportation Appeal Tribunal of Canada (Tribunal) in which the Member concluded that the Minister of Transport (Minister) had proven, on a balance of probabilities, that Mr. Bélanger had contravened paragraph 605.93(1)(a) of the Canadian Aviation Regulations, SOR/96 433 (CARs), for both of the offences of which he was accused.

[2] The Tribunal upheld the suspension of Mr. Bélanger's licence for a total of 14 days, seven (7) days for each offence.

[3] This determination, dated April 8, 2010, was made following a Review Hearing held on January 19 and 20, 2010, during which Mr. Bélanger represented himself. Audrée Lamontagne and Martin Forget represented the Minister, at both the Review and Appeal Hearings.

[4] The determination was made further to a Notice of Suspension (Notice) in respect of the aircraft maintenance engineer (AME) licence bearing number 57104, in accordance with subsection 6.9(1) of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act). The Minister suspended Mr. Bélanger's licence for a period of 14 days, seven (7) days for each of the following offences. The suspension was upheld by the Review Determination. The Notice states the following:

[translation]

1. Between July 11 and July 31, 2008, near Valcourt, Quebec, you falsely recorded in the technical records of the aircraft registered as C‑GLSF, a Rolladen‑Schneider LS4‑b glider, that the altimeter had been calibrated, thereby contravening paragraph 605.93(1)(a) of the Canadian Aviation Regulations.

Penalty: 7‑day suspension

2. Between July 11 and July 31, 2008, near Valcourt, Quebec, you falsely recorded in the technical records of the aircraft registered as C‑GLSF, a Rolladen‑Schneider LS4‑b glider, that the service bulletin identified as Rolladen‑Schneider SB 4046, compliance with which is made mandatory by Airworthiness Directive D‑2004‑001, had been completed, thereby contravening paragraph 605.93(1)(a) of the Canadian Aviation Regulations.

Penalty: 7‑day suspension

Total: 14‑day suspension

[5] It should be noted that, on July 2, 2009, the Tribunal granted a stay of the suspension until the review of the Minister's decision has been concluded.

[6] The Appeal Hearing was held on November 30, 2010, in Montréal.

II. PRELIMINARY MOTION

[7] During this hearing, Mr. Bélanger filed a preliminary motion to submit as evidence two emails from the German regulatory authority Luftfahrt‑Bundesamt (LBA), which issued foreign certificate No. 345 for the Rolladen‑Schneider LS4‑b glider, registration C‑GLSF, (LS4‑b) that is the subject of the Notice. Both emails were filed under reserve of objection by the Minister (Exhibits D‑1 and D‑2).

[8] The first email (Exhibit D‑1), dated November 19, 2010, two weeks before the Appeal Hearing, is a reply to Mr. Bélanger's request as to whether Airworthiness Directive D‑2004‑001 (D‑2004‑001) (Exhibit M‑9) applies in the event that the ballast bags are removed from the glider. The second email (Exhibit D‑2), dated November 22, 2010, concerns an email sent by Transport Canada to Mr. Bélanger regarding the Internet links for the maintenance schedules and out‑of‑phase tasks applicable to the calibration, or lack thereof, of the altimeter and pitot‑static system.

[9] By filing this evidence, Mr. Bélanger sought to support his contentions that:

  1. the D‑2004‑001 procedure was optional, not mandatory, in circumstances where the ballast bags were removed; and
  2. altimeter A 83 of the LS4‑b did not need to be calibrated before an application was made for a special certificate of airworthiness because only the altimeters on board aircraft operated under visual or instrument flight rules (Class B and C Airspace and Class C and D Airspace) must be calibrated at intervals of up to 24 months.

[10] In short, Mr. Bélanger contends that the Review Member made two errors of law, since the two elements that were the subject of the two entries, deemed by the Minister to be false, were unnecessary in the circumstances.

[11] The Minister's representatives objected to the filing of additional exhibits at the Appeal Hearing on the ground that this evidence was available at the time of the Review Hearing.

A. Decision on the preliminary motion

[12] After deliberating, the Appeal Panel verbally rendered its decision to refuse the filing of these two additional exhibits because they were available at the time of the Review Hearing.

[13] Section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, provides that evidence may be filed on appeal if this evidence was not previously available at the time of the Review Hearing and if the Appeal Panel considers it necessary for the purposes of the appeal; these conditions are cumulative.

[14] In this case, Mr. Bélanger did not show that this evidence was not available at the time of the Review Hearing or that the filing of this evidence was unlawfully refused to him at the Review Hearing.

[15] Furthermore, both of the alleged offences concern the failure to have made an entry accurately, legibly and in a permanent manner by making a false entry. In this case, attention must be given to the alleged facts, which are making false entries and causing those entries to be inaccurate and not considering whether the maintenance tasks noted in the entries made by the AME, Mr. Bélanger, were or were not required by law. In this context, Exhibits D‑1 and D‑2 were considered unnecessary for the purposes of the Appeal Hearing.

[16] Although Exhibits D‑1 and D‑2 are not admissible as evidence with respect to the Appeal, the Appeal Panel asked Mr. Bélanger to present his arguments, that is, by demonstrating that the Review Member made errors of fact or made unreasonable errors in interpreting or applying the facts in respect of the alleged offence or the penalty for it, specifically the offence set out in paragraph 605.93(1)(a) of the CARs, which provides as follows:

605.93 (1) Every person who makes an entry in a technical record shall:

(a) make the entry accurately, legibly and in a permanent manner;

[…]

III. ARGUMENTS

A. Appellant

[17] First, Mr. Bélanger submits that the Review Member erred in law in finding that the A 83 altimeter had to be calibrated. Mr. Bélanger does not deny that the entry that he made in the technical record regarding this altimeter was false. Instead, he contends that, since the altimeter did not need to be calibrated, his entries in the journey log and in the airframe technical record of the LS4‑b stating that altimeter A 83, serial number 413484, had been calibrated by Aeroneuf Instruments Ltd. (Aeroneuf Instruments) was moot, thereby rendering the offence moot. In summary, Mr. Bélanger contends that a false entry made regarding an unnecessary task would attract no consequence or penalty under subsection 605.93(1) of the CARs.

[18] In support of his contention that the altimeter did not need to be calibrated when the aircraft was imported, Mr. Bélanger is relying on paragraph 13(a) of Appendix C of Standard 625.86, under Part VI of the CARs, which states:

(a) Altimeters and other Altimetry devices installed in aircraft operating under Instrument Flight Rules, or under visual flight rules in Class B and C Airspace or Class C and D Airspace that is designated as "Transponder Airspace" shall be calibrated at intervals not exceeding 24 months, to the parameters and tolerances outlined in Appendix B of Standard 571, or to equivalent standards acceptable to the Minister.

[19] According to Mr. Bélanger, since the LS4‑b cannot operate in those airspaces, the altimeter did not need to be calibrated. Therefore, Mr. Bélanger submits that, since he did not need to calibrate this aircraft's A 83 altimeter, the entry he made, however false, became moot.

[20] Mr. Bélanger also added that the Review Member had erred in law by applying articles 22.1301 and 22.1303 of the Joint Aviation Requirements (JARSs) (Exhibit M‑14) of the foreign Joint Aviation Authority, which provide that the altimeter must be in good working order. According to Mr. Bélanger, since the aircraft was in the process of being certified for import into Canada, the Minister and the Member should have applied Standard 625 of the CARs.

[21] Regarding the second offence, Mr. Bélanger also contends that the Review Member erred in law because she erroneously accepted as fact that the service bulletin identified as Rolladen‑Schneider SB‑4046 (SB‑4046) (Exhibit M‑10) (compliance with which is made mandatory by Airworthiness Directive D‑2004‑001) was applicable. However, Mr. Bélanger contends that it was not applicable because the ballast bags had been removed when he made the entry in the aircraft's technical records, stating that the directives set out in the bulletin had been complied with. According to Mr. Bélanger, the amendments to the flight and maintenance manuals for the LS4‑b, required by D‑2004‑001, related to the use of an optional procedure explained in the Rolladen Schneider SB 4047 service bulletin, which applies when the ballast bags are inside the aircraft. The procedure involves moving the ballast bags towards "the wing root" or modifying them to increase the maximum weight of the non‑lifting parts of the aircraft. However, since the ballast bags had been removed, he did not have to concern himself with this procedure or comply with the amended pages of the flight manual and the maintenance manual, which in his opinion had become moot. Therefore, just as he did for the first offence, Mr. Bélanger's defence for this second offence is that the procedure described was unnecessary, which would render his entry moot (even if it was unclear), and therefore not subject to the offence in respect of the inaccuracy of a task entry as set out at subsection 605.93(1) of the CARs.

B. Minister

[22] Regarding the first offence, Mr. Bélanger's entry stating that altimeter A 83 had been calibrated even though it had not been when the aircraft was imported, the Minister contends that it is necessary to refer to the requirements of paragraph 605.93(1)(a), which state that when a person makes an entry in a technical record, he or she must make the entry accurately, legibly and in a permanent manner. By indicating falsely that the altimeter had been calibrated in July 2008, Mr. Bélanger directly contravened this CARs provision since, in making a false entry, the entry was inaccurate because it was misleading. The Minister contends that all of the elements of the offence had been proven; moreover, Mr. Bélanger does not dispute having made this entry regarding the altimeter and that the entry was shown to be false. The Minister submits that Mr. Bélanger committed the offence, despite the fact that he subsequently corrected this entry. The Minister also submits that, when an application is made for a special certificate of airworthiness, the aircraft must comply with the applicable type design, in this case, the airworthiness requirements established by the foreign authority having jurisdiction, including JARSs 22.1303(a)(2) (Exhibit M‑14), which requires that all gliders have an altimeter, and JARSs 22.1301(a)(4), which requires that the altimeter be in good working order (Exhibit M‑14). To comply with this requirement, the altimeter must be calibrated. Furthermore, as emphasized by the Review Member, item 4.19 (on altimeters) of Checklist No. 3 of the Maintenance and Manufacturing Staff Instructions issued by Transport Canada (Exhibit M‑2, page 20) concerning import eligibility requests, provides a reminder of the requirements that must be satisfied for an aircraft to be admissible for import, including the requirement that the altimeter be tested by an approved maintenance organization in accordance with Standard 571 of Part V of the CARs.

[23] Regarding the second offence, the Minister contends that he has proven all of the elements of the offence, that Mr. Bélanger made an entry in the technical records of the LS4‑b stating that the requirements of SB‑4046, compliance with which is made mandatory by D‑2004‑001, had been met when this was not the case. It is undisputed that this entry, made in July 2008, appears in the technical record of installations in and modifications to the aircraft (Exhibit M‑4). Mr. Bélanger does admit that, in July 2008, he recorded in the aircraft's journey log and airframe technical records that he had complied with D‑2004‑001 and the directives in TB‑4046.

[24] The evidence also shows that, although Mr. Bélanger stated that he removed the ballast bags from the aircraft, the ballast bags were still included on the aircraft equipment list that he had prepared and signed the certification for in July 2008. It was not until September 2008 that he deleted the item from the aircraft equipment list.

[25] Furthermore, the Minister contends that Mr. Bélanger is incorrect in applying CARs Standard 625. In fact, since the LS4‑b is not covered by a Canadian certificate, when an application is made for a special certificate of airworthiness, it is necessary to rely on the type design of the country—Germany in this case—that determines its airworthiness, as provided by paragraph 507.03(b) of the CARs.

[26] The Minister contends that the Review Member properly interpreted and applied the airworthiness requirements applicable when a special certificate of airworthiness is applied for. In fact, if the aircraft does not have a type certificate issued by the Minister, Transport Canada issues a special certificate of airworthiness under section 507.03 of the CARs. In the latter case, it is essential to ensure that the notices that are equivalent to airworthiness directives published by the authority having jurisdiction in the foreign state are complied with and that the entries in the technical records of the aircraft clearly and accurately demonstrate this compliance.

[27] An import eligibility request also requires that certain directives be followed and that checklists be filled out by the owner or the owner's representative. The items contained in these lists are intended to determine whether or not the aircraft being imported complies with the approved type design and whether it is in good working order to ensure safe operation in Canada, in accordance with paragraphs 507.03(b) and (c) and with section 507.07, which refers to CARs Standard 507.

[28] In fact, section 507.07 of the CARs states that when an application for a flight authority is made in respect of an imported aircraft, the applicant must comply with the import requirements set out at Chapter 505 of the Airworthiness Manual (in this case, CARs Standard 507).

[29] More specifically, subsection (6) of CARs Standard 507.07 provides that, in all cases, the inspection must determine, as a minimum, whether "all applicable airworthiness directives (or foreign equivalents) have been complied with". In this case, SB‑4046, which applies to the LS4‑b, is an integral part of D‑2004‑001, published by the foreign authority having jurisdiction over this type of aircraft, the LBA (Exhibit M‑9).

[30] By stating that all of the SB‑4046 and D‑2004‑001 directives had been carried out, both in the journey log and in the technical records of the aircraft, despite the fact that the manual pages had not been replaced and the ballast bags still appeared on the equipment list, Mr. Bélanger misled the Minister and made a false entry, thus contravening subsection 605.93(1) of the CARs.

[31] More specifically, the Minister notes that the purpose of the SB ‑4046 directives is to amend the aircraft's flight and maintenance manuals to reflect the operational procedure concerning the ballast bags set out in SB‑4047, regardless of whether the ballast bags are in the aircraft or not. In July 2008, neither the aircraft's flight manual nor its maintenance manual had been amended in accordance with the SB‑4046 directives (the manual pages had not been brought up to date). Moreover, in July 2008, the aircraft's ballast bags still appeared on the aircraft equipment list, and Mr. Bélanger had not made any note stating that the aircraft's ballast bags had been removed.

[32] The Minister emphasizes that the Review Member provided a clear, reasonable and structured explanation of the applicable law and of all of the facts supporting the elements of both offences. All of her reasoning is supported by the exhibits in the record and the evidence submitted by the various witnesses. Furthermore, Mr. Bélanger never denied having made the entries at issue. Consequently, the Member did not err in law in applying the CARs and the CARs Standards, and her interpretation of the facts is entirely reasonable, with the result that Mr. Bélanger's appeal must be dismissed.

[33] Finally, the Minister contends that the penalty of seven (7) days per offence for a total of 14 days, is also reasonable. According to the Minister, a misunderstanding of the rules applicable to the import of an aircraft and of the obligation to inspect the altimeter cannot constitute a mitigating factor.

[34] Moreover, making false entries may subsequently lead to errors of interpretation affecting the aircraft's airworthiness. These are not mere inaccuracies, but false entries that may mislead the owner and pilot of the aircraft and compromise safety.

[35] Consequently, this is an aggravating factor which, in the Minister's view, warrants a sentence of seven days per offence.

[36] The Transport Canada Aviation Enforcement Procedures Manual (Exhibit M‑26) suggests a suspension of three to seven days for a first contravention of subsection 605.93(1) of the CARs.

[37] The Minister submits that the Review Member correctly found that by entering false information in the technical records of the aircraft, Mr. Bélanger misled the Minister and the aircraft's owner, and did not scrupulously carry out the tasks for which he was responsible when he made the import eligibility request, such that a seven‑day suspension per offence is appropriate.

IV. DISCUSSION

[38] It is important to note that the facts on file are in no way disputed.

[39] Mr. Bélanger admits to having made the entries, resulting in the two offences. More specifically, in July 2008, Mr. Bélanger made entries in the aircraft journey log and airframe technical records stating that altimeter A 83 had been calibrated by Aeroneuf Instruments, whereas the evidence shows that that company never calibrated this altimeter. Mr. Bélanger admitted to having signed below these entries and was unable to produce evidence that the altimeter had been calibrated when Transport Canada requested it from him.

[40] Also, the entries made by Mr. Bélanger in July 2008 in the journey log, in the airframe technical records and in the record of installations and modifications for the LS4‑b indicate that all of the SB‑4046 and D‑2004‑001 directives were fulfilled. Mr. Bélanger is not disputing these entries and even admitted that they could have been more accurate and that some of the written documents [translation] "may leave something to be desired" (Exhibit M‑21).

[41] Mr. Bélanger also admitted to not making any entry in July 2008 stating that the ballast bags had been removed. Rather than doing so, in July 2008, Mr. Bélanger indicated that those bags were installed (Note 6, Exhibit M‑15).

[42] However, Mr. Bélanger states in his defence that it is easy for a pilot to note that the ballast bags have been removed, but does not rely on any evidence to support that statement. Besides, what about the aircraft owner?

[43] Considering all of the evidence on file and Mr. Bélanger's admissions, the appeal cannot pertain to an unreasonable assessment of the facts.

[44] In his appeal, Mr. Bélanger also contends that the Review Member erred in law because his entries were moot; the tasks that he falsely certified having done were unnecessary and, as a result, he committed no offences.

[45] Therefore, the only remaining issue is whether the Review Member erred regarding the law that is applicable in relation to the alleged offences.

[46] The two offences that Mr. Bélanger is accused of consist of having falsely entered information in the journey log and technical records of the aircraft, such that they were inaccurate under subsection 605.93(1) of the CARs, quoted above. Mr. Bélanger is not accused of having certified that an aircraft was airworthy when it was not. The Review Member correctly concluded that the alleged offences were strict liability offences, for which the Minister was not required to establish Mr. Bélanger's intention. In order to show that the offences had been committed, the Minister had to prove each of the elements of those offences on a balance of probabilities. The Member correctly concluded that the elements of the offences had all been proven, since the falseness of both entries is not in issue.

[47] Mr. Bélanger's defence that it was not necessary or relevant to calibrate the altimeter or comply with the airworthiness directive could be a defence that would have to be considered if he were charged with having misrepresented an aircraft as being restored to an airworthy condition. However, in the case of an inaccurate entry, it is merely a matter of verifying whether the entry is or is not misleading, and the question as to whether the task to which the entry pertains to is legally necessary or not is irrelevant for the purposes of the alleged offences.

[48] In this case, it was reasonable for the Review Member to find that the false entry regarding the calibration of the altimeter was misleading and, consequently, inaccurate. Regarding the first offence, the Member was correct in concluding that the constituent elements of subsection 605.93(1) of the CARs had been met and, therefore, that a false entry is an inaccurate entry under that subsection.

[49] Although it is not necessary for the purposes of the alleged offence under subsection 605.93(1) (inaccurate entry), the Review Member correctly found that the task with respect to the entries in the journey log and the technical records regarding altimeter A 83 was relevant and required in the context of an application for an airworthiness certificate for an aircraft being imported. In fact, section 507.03 of the CARs requires it to be shown that the aircraft complies with its foreign design type, since the Minister had not issued the type certificate for this LS4‑b, and that the aircraft may be operated safely in Canada.

[50] In addition, subsection (6) of CARs Standard 507.07 reiterates these requirements, also specifying that the inspection must show that all of the relevant airworthiness directives (or foreign equivalents) have been complied with. Therefore, the Review Member correctly referred to the foreign authority's airworthiness requirements, JARSs 22.1301 and JARSs 22.1303 (Exhibit M‑14), regarding the altimeter's calibration to show that it had been in good working order when the aircraft was imported.

[51] As for the second offence concerning false entries related to the fact that SB‑4046, made mandatory by D‑2004‑001, had been carried out, the Review Member did not err in concluding that the conditions of subsection 605.93(1) of the CARs had been met, since Mr. Bélanger himself admitted that his entries stating that all of the directives set out in SB‑4046 and in the airworthiness directives had been complied with could have been more accurate and that his written documents left something to be desired (Exhibit M‑21). Mr. Bélanger also admitted to failing in making any entry in July 2008 to indicate that the ballast bags had been removed.

[52] In any event, it was irrelevant whether the ballast bags had been removed or not on the date Mr. Bélanger made the entry indicating that he had complied with SB‑4046 (mandatory under D‑2004‑001) in importing the aircraft because the purpose of this service bulletin was not only to aim at procedure to follow to increase the maximum weight of non‑lifting parts of the aircraft, but also an update of the manuals allowing a person who so wishes to carry out this procedure correctly and in accordance with the applicable standards. As the Review Member noted, the fact that the work suggested by SB‑4046 could not realistically be performed in July 2008 on the LS4‑b had no bearing on the fact that SB‑4046 was mandatory. The aircraft's manuals had to be kept up-to-date to avoid errors, especially since it would be possible to re‑install the ballast bags at any time, as Mr. Bélanger admitted.

[53] SB-4046 aims to draw attention to the aircraft's flight and maintenance manuals, which must be amended to reflect changes that may have an impact on the aircraft's airworthiness in connection with the moving of the water‑filled ballast bags, the weight increase procedure and possible retrofit set out in SB‑4047, and the increase of the structural life limit to a maximum of 12 000 hours. SB-4046 clearly sets out the numbers of the pages to be amended in each manual, namely the flight and maintenance manuals, and the panel is of the opinion that Mr. Bélanger was required to amend the pages of those manuals as provided by SB‑4046, even if the glider had no ballast bags designed to increase the weight of the non‑lifting parts of the aircraft. In fact, it is important that amendments be made to all of the manual pages required to be amended, since the owner of the aircraft or any person wishing to perform maintenance on it must clearly have access to the applicable procedures in the event that the ballast bags are placed back in the aircraft.

[54] Consequently, Mr. Bélanger's entry in the journey log and the airframe record of the installations and modifications to the aircraft, stating that all of the SB‑4046 and D‑2004‑001 directives had been met was inaccurate, false even, since the manuals had not been fully updated. As a result, the Review Member was justified in finding that the provisions of subsection 605.93(1) had been met for this second offence.

[55] Also, in the case before us, Mr. Bélanger admitted that there was no indication in July 2008 that the ballast bags had been removed, rendering the entry stating that D‑2004‑001 had been complied further inaccurate. In fact, from consulting Mr. Bélanger's entry in the aircraft technical records which stated that the SB‑4046 directives had been complied with, another AME, a pilot or the owner could have concluded that the ballast bags had been moved to the front, whereas they were not in the aircraft.

[56] For all of these reasons, the applicant's appeal is dismissed and both the Review Member's Determination and the Minister's decision that the offences were committed are upheld.

[57] With respect to the applicable penalties of a seven day suspension of Mr. Bélanger's licence for each offence, Mr. Bélanger has failed to present any argument establishing that these penalties are inappropriate or that there are mitigating factors that warrant reducing the penalties.

V. DECISION

[58] The appeal is dismissed. The Minister of Transport has proven, on a balance of probabilities, that the appellant, Gaétan Bélanger, contravened paragraph 605.93(1)(a) of the Canadian Aviation Regulations. Accordingly, the Transportation Appeal Tribunal of Canada upholds the suspension of the appellant's licence for a total of fourteen (14) days, seven (7) days for each offence.

This suspension will begin on the 35th day following the service of this appeal decision.

February 29, 2012

Reasons for appeal decision: Caroline Desbiens, Member

Concurred by: Franco Pietracupa, Member

Dr. Michel Larose died before the decision was rendered.