Decisions

TATC File No. P-3665-33
MoT File No. EMS 68515

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

David Anthony Chapin, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96 433; ss 571.06(1), 571.10(1), 571.13(1)


Review Determination
Stephen Rogers


Decision: June 8, 2010

Citation: Chapin v. Canada (Minister of Transport), 2011 TATCE 14 (Review)

Heard at Kamloops, British Columbia on October 20, 2010

Held:  The Minister did prove, on a balance of probabilities, that the Applicant, David Anthony Chapin, contravened subsections 571.06(1), 571.10(1) and 571.13(1) of the Canadian Aviation Regulations. Accordingly, the amount of $1 000 per contravention, for a total amount of $3 000, as set out in the Notice of Assessment of Monetary Penalty, is upheld. This amount is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Determination.

I. BACKGROUND

[1] On February 4, 2010, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("Notice") of $3 000 against the Applicant, David Anthony Chapin, of Williams Lake, British Columbia, for contraventions of subsections 571.06(1), 571.10(1) and 571.13(1) of the Canadian Aviation Regulations ("CARs").

[2] Schedule A of the Notice provides as follows:

1. On or about April 20, 2009, at or near Williams Lake, British Columbia, you, David Anthony Chapin, signed a maintenance release in respect to a major modification to Canadian registered aircraft CF-ABC and failed to ensure that the modification conformed to the requirements of the relevant technical data; specifically, that there was no relevant technical data supplied for the installation of the camera port, thereby contravening section 571.06(1) of the Canadian Aviation Regulations.

Monetary penalty: $1,000.00

2. On or about April 20, 2009, at or near Williams Lake, British Columbia, you, David Anthony Chapin, signed a maintenance release for Canadian registered aircraft CF-ABC as required pursuant to section 605.85 of the Canadian Aviation Regulations without ensuring that the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual had been complied with and that the maintenance release met the applicable requirements specified in section 571.10 of the Airworthiness Manual; specifically, the camera port maintenance release did not provide a brief description of the work performed and the reference to AC 43.13 was not applicable reference data for the installation of a camera port, thereby contravening section 571.10(1) of the Canadian Aviation Regulations.

Monetary penalty: $1,000.00

3. On or about April 20, 2009, at or near Williams Lake, British Columbia, you, David Anthony Chapin, installed a part on Canadian registered aircraft CF-ABC without ensuring that the part was inspected and its accompanying documentation verified in accordance with a procedure that ensures that the part conformed to its type design, as is indicated by the maintenance release; specifically, exhaust extensions were installed and no accompanying documentation was referenced in the maintenance release, thereby contravening section 571.13(1) of the Canadian Aviation Regulations.

Monetary penalty: $1,000.00

Total monetary penalty: $3,000.00

[3] On March 5, 2010, Mr. Chapin filed a request for review of the Minister's decision with the Transportation Appeal Tribunal of Canada ("Tribunal").

II. STATUTES AND REGULATIONS

[4] Subsections 571.06(1), 571.10(1) and 571.13(1) of the CARs provide as follows:

571.06 (1) Except as provided in subsection (5) and in the case of aircraft that are operated under a special certificate of airworthiness in the owner-maintenance classification, a person who signs a maintenance release in respect of a major repair or major modification on an aeronautical product shall ensure that the major repair or major modification conforms to the requirements of the relevant technical data;

(a) that have been approved or the use of which has been approved within the meaning of the term "approved data" in section 571.06 of the Airworthiness Manual;

(b) that have been established within the meaning of the term "specified data" in section 571.06 of the Airworthiness Manual.

571.10 (1) No person shall sign a maintenance release required pursuant to section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

571.13 (1) Subject to sections 571.07 to 571.09, no person shall install a part on an aeronautical product unless the part is

(a) inspected and its accompanying documentation verified in accordance with a procedure that ensures that the part conforms to its type design, as is indicated by the maintenance release; and

(b) installed in accordance with the requirements of section 571.13 of the Airworthiness Manual.

 

III. EVIDENCE

A. Minister of Transport.

(1) Kerry McKenzie

[5] Kerry McKenzie is a Civil Aviation Safety Inspector with the Enforcement Branch of Transport Canada.

[6] Inspector McKenzie stated that after he was made aware of possible contraventions based on a Detection Notice concerning work done at Williams Lake, involving the Stinson 108 aircraft registered as CF-ABC and owned and operated by David Anthony Chapin, he sent a letter of investigation to Mr. Chapin on May 8, 2009 (Exhibit M‑2).

[7] Inspector McKenzie made reference to Mr. Chapin's email of April 30, 2009, addressed to Inspector John Stewart of Transport Canada (Exhibit M‑3). In this email, Mr. Chapin states that he had verbal approval from Inspector George Honish from Transport Canada for his modifications to the aircraft, which he claimed were all minor in nature. Mr. Chapin also refers to an exchange of emails with Mr. Honish, Transport Canada Principal Maintenance Inspector (PMI), but none was made available to the Minister. Inspector Honish is retired from Transport Canada.

[8] Inspector McKenzie commented on 10 photographs introduced as evidence (Exhibit M‑4) and on a telephone conversation he had with Mr. Chapin on May 19, 2009 (Exhibit M‑5). He also stated that he had presented the photographs to maintenance experts in order to determine the quality of workmanship and whether these modifications were major or minor. His consultation confirmed that the work done on Mr. Chapin's aircraft was a major modification.

[9] Inspector McKenzie stated that, on May 21, 2009, he had visited Mr. Chapin in Williams Lake. He explained that during his visit, he had examined log book entries and work orders for aircraft CF-ABC. He reviewed the cutting of a stringer. He reviewed a discussion with Mr. Chapin concerning advisory circular AC 43.13, section 2-14(a) and explained that AC 43.13 specifically mentions only 3-9/16 diameter inch holes inside cellulose acetate butyrate and not 7x12 holes. Inspector McKenzie testified that the reference in AC 43.13 is clearly for the inspection panel covers on fabric aircraft. They are specifically for inspection purposes on the ground, not open holes while flying. Essentially, the reference in AC 43.13 did not address the 7x12 inch hole.

[10] Based on all of the above, Inspector McKenzie concluded that three charges were warranted pursuant to sections 571.06, 571.10 and 571.13 of the CARs. The sanction for a first time offence is $1,000 each, and since Mr. Chapin had no prior record, Inspector McKenzie felt this was the appropriate penalty.

(2) John Stewart

[11] John Stewart is a Transport Canada Civil Aviation Safety Inspector with the Maintenance/Manufacturing Division. Inspector Stewart has 28 years of experience as an Aircraft Maintenance Engineer ("AME"). On April 22, 2009, during a routine meeting regarding maintenance schedule approval, Inspector Stewart and his colleague, Inspector Steve Bailey, noticed that a Stinson 108 aircraft belonging to Mr. Chapin had an exhaust configuration they had not seen before. Inspector Stewart testified that he approached the aircraft and looked through the window and noticed a hole through the floorboard and the skin of the aircraft. From the front, he could see a non‑standard fuel pump configuration with lines attaching it to the fuel system.

[12] Inspector Stewart took pictures of the aircraft and queried Mr. Chapin about the exhaust configuration. Mr. Chapin informed Inspector Stewart that the parts used for the exhaust configuration were automotive parts. Based on the pictures, Inspector Stewart later wrote up an Aircraft Inspection Report ("Report"). The Report reviewed a number of irregularities with CF‑ABC, namely, the hole in the aircraft's floor, the electric fuel pump tied to the aircraft fuel system, and the exhaust extensions that had been attached. In the "Recommendations" section of the Report, Inspector Stewart requested approved data for the pump, exhaust, and hole.

[13] Inspector Stewart stated that he did not receive an adequate response from Mr. Chapin, and thus issued a Letter of Notification (Exhibit M‑3). The Letter of Notification stated Inspector Stewart's view that the modifications made to the aircraft were major and required approved data. On the same day of its issuance, Mr. Chapin responded that he did not believe he had made any major modifications to the aircraft based on an earlier alleged discussion he had with the now retired Transport Canada Inspector, Mr. Honish.

[14] Inspector Stewart also stated that Mr. Chapin claimed that he removed the fuel pump after Transport Canada's visit. Mr. Chapin insisted that his modifications were minor according to his discussion with Mr. Honish. Inspector Stewart also took issue with the fact that Mr. Chapin claimed to have flight‑tested the modification. It meant that the aircraft was being flown despite not being airworthy. Inspector Stewart stated that Mr. Chapin continued to disagree with him. As a result, Inspector Stewart filed a Detection Notice on May 1, 2009, indicating that Mr. Chapin may have been in violation of the CARs.

B. Applicant

[15] Mr. Chapin stated that it was always his intention to operate his aircraft safely and in accordance with the Regulations. He did not believe he was in contravention. In his view, he felt that he followed Transport Canada's advice by basing his modifications on advice he received from Mr. Honish.

[16] Mr. Chapin insisted that he did not make any major modifications. He stated that Transport Canada is alleging that he made structural alterations to the aircraft, and this constitutes a major modification. Specifically, the cutting of one stringer constituted a structural modification. However, Mr. Chapin was of the view that the cutting of stringers is not a structural modification in a Stinson 108 because it is a fabric‑covered aircraft and the cutting of the stringer has no implication upon the structure. The stringers that hold the fabric covering shape add no more structural support to the aircraft than a cotton shirt does to the structural support of the human body. The fuselage stringers in a Stinson are not even a secondary structural source.

[17] To support his view, Mr. Chapin submitted a drawing from the Stinson 108 Parts Manual which shows the aircraft's frame and the fact that the stringers are not part of the structure (Exhibit A‑1). Mr. Chapin also contacted Univair Aircraft Corporation ("Univair") who holds the type certificate for the Stinson 108s. Univair emailed him back stating that stringers are in no way structural (Exhibit A‑2).

[18] Mr. Chapin also stated that he did include valid reference data for the work performed. In his view, his repairs were done in accordance with AC 43.13, sections 2-14 and 4-50(b). Furthermore, the log entry contained further information including where the port was made and the size of the camera port.

[19] With regard to the installation of the automotive exhaust pipe, Mr. Chapin stated that the pipe in the Transport Canada pictures was one he used just for testing and not for actually flying the aircraft. Mr. Chapin stated that nowhere in the CARs are standards for test equipment specified. Transport Canada must prove that the aircraft was flown with the extensions.

[20] Mr. Chapin stated that Transport Canada must also prove that the pipes were automotive and did not have an aircraft part number. Mr. Chapin submitted photographs of various piping he has used (Exhibit A‑4). He also submitted a document for the Bendway Plus pipe which states that it can also be used for aircraft (Exhibit A‑5). Mr. Chapin also submitted a photograph of the

Bendway Plus pipe actually used while flying. Mr. Chapin stated that Transport Canada has no proof that this particular pipe was not manufactured for aircraft.

[21] On cross-examination, Mr. Chapin was questioned about AC 43.13. Mr. Chapin was asked whether AC 43.13 addressed camera ports and 7/12 inch holes. Mr. Chapin responded that there were no such references. He was then asked whether he referenced the Stinson Manual in his journey log entry to which he responded that he did not.

[22] On re‑direct examination, Mr. Chapin clarified that the reason he did not quote the Stinson Manual was because it contained very little information and there was nothing in it to quote.

IV. DISCUSSION

[23] The Minister argued during closing arguments that the Minister has proven, on a balance of probabilities, that Mr. Chapin has contravened subsections 571.06(1), 571.10(1) and 571.13(1) of the CARs. With regard to subsection 571.06(1), the Minister argued that the Stinson 108 CF‑ABC is a Canadian registered aircraft and was not operated under a special Certificate of Airworthiness ("C of A") in the owner‑maintenance classification. It was operated under a standard C of A. On April 20, 2009, Mr. Chapin, an AME, signed a maintenance release. The 7/12 inch camera port installation carried out was a major modification. Mr. Chapin did not ensure that the modification conformed to the requirements of relevant technical data. Specifically, there was no approved data that was referenced in the maintenance release.

[24] With regard to subsection 571.10(1), the Minister submitted that Mr. Chapin did sign a maintenance release, pursuant to section 605.85 of the CARs, and the standards of airworthiness applicable to the maintenance performed were not complied with. Specifically, the maintenance release stated that the modifications were made in accordance with AC 43.13 which was not applicable to the maintenance performed. The maintenance release also did not meet the applicable requirement in section 571.10 of the Airworthiness Manual – specifically, no approved data was provided.

[25] Finally, with regard to subsection 571.13(1), the Minister submitted that Mr. Chapin did install a part on an aeronautical product, namely, CF-ABC. The part was not inspected and its accompanying documentation was not verified in accordance with a procedure that ensures the part conforms to its type design, as indicated by the maintenance release, specifically, the installation of the exhaust flex tubing. The tubing was not installed in accordance with the requirements of section 571.13 of the Airworthiness Manual, as it is not approved for that installation.

[26] Mr. Chapin maintained that he did not fly the aircraft and only made the modifications for maintenance testing. He argued that he was not required to make a log entry for modifications he has made to an aircraft if he did not fly that aircraft. Mr. Chapin declined to make any further closing arguments.

[27] A preliminary question by the Tribunal was raised on the issue of whether charging the Applicant with subsections 571.06(1) and 571.10(1) constituted double jeopardy. The Minister submitted that it did not because subsection 571.06(1) penalized the Applicant for improperly making a major modification. Subsection 571.10(1), on the other hand, penalized the Applicant for failing to properly fill out a maintenance release.

[28] Subsection 571.06(1) contains the following elements:

  1. A person who signs a maintenance release
  2. in respect of a major repair or major modification
  3. shall ensure that it conforms to the relevant technical data in accordance with section 571.06 of the Airworthiness Manual

[29] Subsection 571.10(1) contains the following elements:

  1. No person shall sign a maintenance release
  2. unless the standards of airworthiness applicable to the maintenance performed in Chapter 571 of the Airworthiness Manual have been complied with; and
  3. the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

[30] I am inclined to agree with the Minister that the two provisions constitute separate penalties. Subsection 571.10(1) of the CARs contains an added element: the duty to fill out a maintenance release correctly. The purpose of the provision is to penalize the failure to comply with the Airworthiness Manual and the failure to properly fill out a maintenance release. As a result, there are two separate provisions meant to capture both contraventions.

[31] Starting with subsection 571.06(1), the Minister argued that the cutting of the stringer constituted a major modification. The Minister also argued that the hole drilled in the base of the aircraft constituted a major modification as it was larger than the 3-9/16 inch diameter holes allowed for in AC 43.13. A "major modification" is defined in Subpart 101 of the CARs as:

… an alteration to the type design of an aeronautical product in respect of which a type certificate has been issued that has other than a negligible effect on the weight and centre-of-gravity limits, structural strength, performance, power plant operation, flight characteristics or other qualities affecting its airworthiness or environmental characteristics;

[32] Mr. Chapin is correct in his assertion that the stringer is not structural and therefore cutting it does not constitute a major modification. Almost all aircraft made since World War II are covered with aluminum (2024T3 to be exact), but a few are covered with fabric. In fabric covered aircraft the stringer is not structural. The aircraft manufacturer, or in this case the type certificate holder, is the one who defines what is "structural" (not Transport Canada). Univair clearly stated that stringers on the Stinson 108 are not structural.

[33] The remaining modifications performed by Mr. Chapin, however, are major. AC 43.13 only addresses repairs involving 3-9/16 inch holes. Any hole larger than the 3-9/16 inch is a major modification and must be treated as such. To be in compliance, the modification would require relevant technical data. No data was supplied by Mr. Chapin. In addition, there are other factors to be considered. Part V – Standard 571, Appendix A, Criteria for the Classification of Major Modifications ("Standard 571") lists a number of factors for consideration. Some of the questions asked in Standard 571 are the following:

(d) Performance and Flight Characteristics

Does the modification or repair involve alterations that:

(1) significantly increase drag or exceed aerodynamic smoothness limits?

(2) significantly alter thrust or power output?

(3) affect stability or controllability?

(4) induce flutter or vibration?

(5) affect the stall characteristics?

(e) Other Qualities Affecting Airworthiness

Does the modification or repair:

(1) change the information on, or the location of, a placard required by the type design or an Airworthiness Directive?

(2) alter any information contained in the approved section of the aircraft flight manual or equivalent publication?

(3) affect the flight-crew's visibility or their ability to control the aircraft?

(4) affect egress from the aircraft?

(5) reduce the storage capacity of an oxygen system, or alter the oxygen rate of flow?

(6) affect flight controls or an autopilot?

(7) alter an electrical generation device, or the electrical distribution system between the generating source and either its primary distribution bus, or any other bus designated as an essential bus?

[34] The hole cut by Mr. Chapin at the bottom of the aircraft affects egress. The hole is directly behind the exhaust outlet which would fill the cabin with carbon monoxide; that is why Mr. Chapin installed the flex pipe to redirect the exhaust gas. We do not know how the flight would be affected. The modifications are of such gravity that it would be unsafe to fly the aircraft. Everything from the fuel pump sitting on a roll of duct tape on the floor, the exhaust pipes, the air dam, to the 9x12 inch hole in the floorboards was all contrary to the CARs and none of it was approved. The modifications are not safe. Mr. Chapin should have obtained the appropriate technical data for the modification of his aircraft. Instead, he chose to make his own modifications without consulting appropriate sources to ensure those modifications conformed to industry standards and were safe. Therefore, I find Mr. Chapin contravened subsection 571.06(1) of the CARs.

[35] Moving onto the next contravention, subsection 571.10(1) requires that the standards of airworthiness are complied with in Chapter 571 of the Airworthiness Manual and that the maintenance release is filled out correctly. The Minister alleged that in addition to not complying with the standards of airworthiness by relying on the wrong technical data, Mr. Chapin incorrectly filled out the maintenance release by referring to this incorrect data. As stated earlier, AC 43.13 does not refer to 7 by 12 inch holes. Mr. Chapin filled in "AC 43.13" in the maintenance release which was inapplicable to the modifications made. AMEs must ensure their technical data is accurate and properly reflects the work performed on aircraft. As the person who signed the maintenance release, Mr. Chapin contravened subsection 571.10(1) by referencing the incorrect data.

[36] Finally, we come to subsection 571.13(1). The Minister alleged that the piping used by Mr. Chapin was not of an approved type. Mr. Chapin submitted a document by the manufacturer of the piping titled "Flexaust – Engineering and Technical Data, Bendway Plus, March 2007" (Exhibit A‑5). The document lists appropriate uses for the pipe, and includes aircraft. He also submitted a photograph of the piping. However, the photographs taken by the Transport Canada Inspectors showed that there was different piping attached to the aircraft than that in Mr. Chapin's photograph and accompanying Bendway Technical Data document. Mr. Chapin claims that he had used the initial automotive piping only for testing, and that the subsequent Bendway piping he used was approved for aircraft.

[37] In my view, the fact that Mr. Chapin went back and changed the piping is of little weight. The significant issue for subsection 571.13(1) was that the installation of the parts was made. It does not matter whether the aircraft was flown. The Minister has proved that the piping originally found on the aircraft was not of an approved type as it was made for automotive purposes. The accompanying documentation was not approved for aircraft. Mr. Chapin's argument that he did not fly with the pipes is irrelevant to the contravention. In order for subsection 571.13(1) to be satisfied, the parts simply must be installed. As such, I find that Mr. Chapin failed to install piping that was either inspected or of an approved type with accompanying documentation.

V. SANCTION

[38] The Minister recommended the amount for a first time offence for each offence. The Applicant was fined $1,000 for each contravention. The Minister argued that given the potential safety concerns in this case, the fine was justified. The Applicant made no submissions with regard to sanction. I agree with the Minister, and confirm the fine of $1 000 per count for a total of $3 000.

VI. CONCLUSION

[39] Concerning the contravention to subsection 571.06(1) of the CARs, the Minister proved that the camera port was a major modification, and that no relevant technical data was supplied for the installation.

[40] With respect to subsection 571.10(1) of the CARs, the Minister proved that Mr. Chapin made modifications not in accordance with the Airworthiness Manual and entered the incorrect technical data in the maintenance release.

[41] With reference to subsection 571.13(1) of the CARs, the Minister proved that the parts installed were not of an approved type, nor were they an aeronautical product.

VII. DETERMINATION

[42] The Minister did prove, on a balance of probabilities, that the Applicant, David Anthony Chapin, contravened subsections 571.06(1), 571.10(1) and 571.13(1) of the CARs. Accordingly, the amount of $1 000 per contravention, for a total amount of $3 000, as set out in the Notice of Assessment of Monetary Penalty, is upheld.

June 8, 2011

Stephen Rogers

Member