Decisions

TATC File No. Q-3793-41
MoT File No. N5504-73824

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Québec Hélicoptères Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2; section 7.7
Canadian Aviation Regulations, SOR/96 433; para. 571.06(1)(a)


Review Determination
Franco Pietracupa


Decision: April 10, 2012

Citation: Québec Hélicoptères Inc. v. Canada (Minister of Transport), 2012 TATCE 14 (Review)

Heard in Laval, Québec, on October 18, 2011

Held: The Minister of Transport has proven, on a balance of probabilities, that Québec Hélicoptères Inc. contravened paragraph 571.06(1)(a) of the Canadian Aviation Regulations. As the Minister did not take into account mitigating factors in assessing the monetary penalty, I have reduced the penalty from $5 000 to $2 500.

The total amount of $2 500 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 April 20, 2011, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("Notice") to Québec Hélicoptères Inc. ( "Québec Hélicoptères") for $5 000, pursuant to section 7.7 of the Aeronautics Act ("Act"), on the grounds that Québec Hélicoptères contravened paragraph 571.06(1)(a) of the Canadian Aviation Regulations (SOR/96‑433) ("CARs").

[2] The alleged contravention set out in Annex "A" to the Notice reads as follows:

[Translation]

1. On or around September 15, 2010, near Mascouche, Québec, you signed a maintenance release in respect of a major repair on a Robinson R22 Beta aircraft, registered C-FIDI, even though this major modification, consisting of the installation of heated pitot tube KI-104-1, did not conform to the relevant approved technical data, thereby contravening paragraph 571.06(1)(a) of the Canadian Aviation Regulations.

Fine : 5 000 $

II. STATUTE AND REGULATIONS

[3] Subsection 7.7(1) of the Act provides as follows:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

[4] Paragraph 571.06(1)(a) of the CARs reads 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;

...

[5] Subsection 101.01(1) of the CARs provides the following applicable definition for "major modification":

"major modification" means 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;

[6] Appendix A to Standard 571 of Part V of the CARs, "Criteria for the Classification of Modifications and Repairs", provides the following relevant criteria and factors to consider when assessing the classification of a "modification" or "repair":

(1) General

The following criteria outline a decision process for assessing the classification of a modification or repair.

Information Note:

For each issue it shall be determined whether the modification or repair to be accomplished could have other than a negligible effect on those characteristics contained in the definitions of "Major Modification" and "Major Repair", pursuant to section 571.06 of this standard. The following questions are answered with either a YES or NO response. A YES answer to any individual question indicates that the modification or repair shall be classified major.

 

(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?

(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?

[7] Section 2 of Appendix L to Standard 571 of Part V of the CARs concerning a "Major Repair or Major Modification Report" provides as follows:

2. Section 571.12 of the CARs requires that when an aircraft has undergone a major repair or major modification, the actions shall be reported to the Minister;

III. EVIDENCE

A. Minister

(1) Benoit Boulet

[8] Benoit Boulet is a Transport Canada Civil Aviation Safety Inspector with approximately 20 years of experience in aviation. On January 14, 2011, he conducted an audit on the premises of Québec Hélicoptères following an earlier request from Québec Hélicoptères to add visual flight rules ("VFR") night commercial activities to their Air Operator Certificate ("AOC") for various aircraft including a helicopter model from the Robinson Helicopter Company ("Robinson"), an R22 registered as C‑FIDI ("R22").

[9] Mr. Boulet testified that Québec Hélicoptères needed to apply to Transport Canada for the specification (op spec) to operate commercially at night under VFR conditions, under subparts 2 and 3 of Part VII of the CARs concerning commercial services (also referred to as 702/703 operations). As such, an operator is required under subsection 605.16(1) of the CARs to ensure an aircraft is not only equipped with the required instrumentation for daytime VFR (subsection 605.15(1) of the CARs) but as well the additional equipped listed under subsection 605.16(1) of the CARs for nighttime VFR. Mr. Boulet specified that the issue in question was the requirement to add a heated pitot tube, numbered KI-104-1, to the pitot static system on board the R22 as it would prevent the airspeed indicator system from icing up.

[10] Mr. Boulet testified that, during an inspection visit in January 2011, he took a series of photographs of the R22 from its outside and cockpit (Exhibits M‑2 to M‑5) displaying the installation of the heated pitot tube. A picture was also taken of the R22's Flight Manual, located inside the cockpit, in which a Supplement in relation to the heated pitot tube had been inserted (Exhibit M‑8). Mr. Boulet noticed that in the heading of the Supplement the "44" in "R44" had been whited out and replaced by a hand-written "22".

[11] Mr. Boulet explained that this was the first time he had seen a heated pitot tube installed on an R22 (Robinson Illustrated Parts Catalog: Model R22, Exhibit M‑12). The importance of having a Flight Manual on board an aircraft was also discussed as it serves to provide a pilot with information on the aircraft systems installed, in relation to operational parameters, limitations and procedures.

[12] Mr. Boulet stated that on January 21, 2011, he sent a series of photographs to Transport Canada Inspector Ronald Bissonnette, as this installation falls under his subject matter of expertise (maintenance). In particular, Mr. Boulet wanted to ensure that the installation of the heated pitot tube was approved by the Original Equipment Manufacturer (OEM), which was done by email on January 21, 2011 (Exhibit M‑10).

[13] Under cross‑examination, Mr. Boulet testified that he was familiar with the R22 and had visited Québec Hélicoptères on previous occasions. Mr. Boulet was asked if the subject of night VFR on aircrafts operated by Québec Hélicoptères was discussed. He confirmed that the subject had been discussed during a program validation visit where he had indicated that it would require the installation of a heated pitot tube.

[14] Under re-examination, Mr. Boulet responded that no discussion had taken place with respect to the certification requirements for the installation of a heated pitot tube.

(2) Ronald Bissonnette

[15] Ronald Bissonnette is a Civil Aviation Safety Inspector with Transport Canada in Montréal. He testified that he has been with Transport Canada for 13 years and has over 33 years of experience in civil aviation. He testified that he was the principle maintenance inspector assigned to Québec Hélicoptères. His responsibilities with Québec Hélicoptères centered on issues related to aircraft maintenance inspections and audits. He testified that he had a good working relationship with Québec Hélicoptères.

[16] Mr. Bissonnette went on to explain that he received an email from Mr. Boulet (Exhibit M‑10) requesting his involvement in verifying that the installation of the heated pitot tube conformed to the OEM's guidelines. Mr. Boulet had noted in the email that the R22's Flight Manual on board had been modified by adding a Supplement for this heated pitot tube using an R44 document. Mr. Bissonnette, in consulting with the Robinson Illustrated Parts Catalog: Model R22 (Exhibit M‑12) learned that no such heated pitot tube existed for this helicopter model.

[17] Mr. Bissonnette proceeded to telephone Mr. Lambert informing him that he had had a request from Mr. Boulet with respect to the installation of a heated pitot tube on an R22. Mr. Bissonnette requested the documentation used by Québec Hélicoptères to install the heated pitot tube. Mr. Lambert was unable to provide a response at that time. Mr. Bissonnette explained that a follow-up call several days later resulted in Mr. Lambert informing him that the heated pitot tube had been removed because he was unable to receive approved R22 heated pitot tube installation documentation from Robinson.

[18] Mr. Bissonnette testified that he proceeded to an onsite visit to Québec Hélicoptères. He was informed that the heated pitot tube had been removed from the R22 but that the toggle switch for the system had remained on the cockpit panel. He requested that it be removed as well.

[19] I allowed a discussion in regards to the requirement of the holder of an AOC to inform Transport Canada of any major modifications or repairs. The Company is in agreement that if the repair or modification is major then they must submit a Major Repair or Major Modification Report to the Minister. Mr. Bissonnette testified that in consulting with Appendix A to Standard 571 of Part V of the CARs (criteria for the classification of modifications and repairs) he determined that the installation on the heated pitot tube fell into the "major" category and as such was required to be reported to Transport Canada. His decision was based on two criteria: the installation required the Air Operator to alter information contained in the R22's Flight Manual; and the installation modified an electrical distribution system.

[20] Under cross-examination, Mr. Bissonnette explained that when he contacted Mr. Lambert with respect to the approved installation guidance material issued by Robinson, Mr. Lambert informed him that he would need to call him back. Several days later, Mr. Bissonnette called Mr. Lambert again and he was informed by Mr. Lambert that Québec Hélicoptères had taken the precautionary step of grounding the helicopter until he, Mr. Lambert, would be able to contact Robinson and request the approved installation guidance material. Robinson informed Mr. Lambert that no such heated pitot tube was authorized to be installed on an R22.

[21] Mr. Bissonnette was also asked what he had observed during his visit to Québec Hélicoptères after the telephone conversation. He stated that he was able to confirm that the heated pitot tube had been removed except for the toggle switch that remained in the cockpit. When asked if he had been able to see the wiring that had previously been installed by Robinson for the R22's pitot static system, Mr. Bissonnette responded that the wiring was located in an area that did not allow him to see it.

(3) Yves Thibodeau

[22] Yves Thibodeau is a Civil Aviation Safety Inspector with Transport Canada and was responsible for the investigation of the heated pitot tube with regard to Canadian aviation legislation. He testified that a request for an investigation was forwarded to him by Mr. Boulet on or about February 14, 2011. The issue corresponded to a Detection Notice (Exhibit M‑16) regarding the installation of the heated pitot tube on the R22. Once the helicopter registration, owner and operator had been verified, Mr. Thibodeau advised Québec Hélicoptères by letter that an investigation was being undertaken with respect to the alleged contravention.

[23] In a telephone conversation that Mr. Thibodeau had with Patrick Lafleur, the Chief Pilot for Québec Hélicoptères, on March 28, 2011, Mr. Thibodeau requested the logbook pages of the R22 that indicate when the heated pitot tube was installed and removed. The documents were sent by fax the same day (Exhibits M-23 and M‑24). The documents indicate that heated pitot tube KI‑104‑1 was installed on September 15, 2010. Further investigation revealed that the R44 Illustrated Parts Catalog (Exhibit M‑30) and the heated pitot tube installation instructions (KI‑104‑2, Exhibit M‑32; KI‑104‑1, Exhibit M‑33) received from the manufacturer revealed that this heated pitot tube was only available on an R44 helicopter.

[24] A discussion ensued as to which heated pitot tube Québec Hélicoptères had actually installed: KI‑104‑1, which had been rendered inactive by Robinson; or KI‑104‑2, which had superseded it. The Minister did agree that the heated pitot tube that was used was the active heated pitot tube in use at the time.

[25] Mr. Thibodeau testified that, in accordance with Minister guidelines (the Aviation Enforcement Procedures Manual), he levied a fine of $5 000 as a first offence against Québec Hélicoptères for conducting 58 flights with an unapproved installation of a heated pitot tube on the R22 between September 15, 2010 and January 26, 2011 (see Exhibit M‑15).

[26] Under cross‑examination, Mr. Thibodeau was asked why the Minister had changed allegation against Québec Hélicoptères. The original infraction was applied against subsection 571.13(1) of the CARs (see Exhibit M‑20) but the Minister changed the alleged infraction to a contravention pursuant to subsection 571.06(1) of the CARs (see Exhibit M‑15). Mr. Thibodeau could not recall the exact reason for this change.

[27] Mr. Thibodeau confirmed that the heated pitot tube installed had only been approved by the manufacturer for a Robinson R44 helicopter and not an R22.  

[28] The hand-written notes taken by Mr. Thibodeau during the investigation (Exhibits M‑21 and M‑22) were also discussed. Although there was a date on Exhibit M‑22 as to when Mr. Thibodeau had a discussion with Mr. Lafleur, the remainder of what is written in the exhibits have little reference information as to when and with whom the discussion took place.

(4) Gustavo Gabriel Fiscina (Expert Witness)

[29] Gustavo Fiscina has been a Senior Engineer in Aircraft Certification with Transport Canada for 15 years. Among other tasks, he is responsible for verifying and certifying major aircraft modifications and Supplemental Type Certificates (STCs) on both transport aircraft and helicopters. Previous to this, he had been employed with Bombardier Aerospace for ten years in the field of avionic engineering conception. He has been a member of l'Ordre des ingénieurs du Québec since 1991.

[30] Since a key factor in the Minister's allegation is that the installation of this heated pitot tube should be viewed as a major modification, Mr. Fiscina's expert testimony is critical to understanding the difference between the standard pitot tube installed on an R22 and the heated pitot tube that was installed. Mr. Fiscina has the engineering background expertise and is qualified to provide expert testimony relevant to this Determination. The Applicant's Representative argued that Mr. Fiscina is an employee of Transport Canada and that his testimony would be biased toward his employer. Based on this argument, I indicated that I was prepared to qualify this witness as an expert due to his overall aviation engineering expertise and allow testimony centered on understanding technical differences and issues regarding these systems' design functions; all other testimony would be weighed by me and the Applicant's Representative could challenge or question Mr. Fiscina on it.

[31] Mr. Fiscina was asked to provide insight with regard to the R44 Flight Manual, specifically the difference between the two graphs of airspeed calibration curves for an R44, one with and one without a heated pitot tube (Exhibit M‑34). In his opinion, the change in airspeed calibration may be small but the need for a supplemental graph for a heated pitot tube in the Manual is required to ensure a pilot receives proper airspeed data during both normal and abnormal flight conditions.

[32] In Mr. Fiscina's expert opinion, the installation of the heated pitot on an R22 would be categorized as a "major" modification as it would involve changing its flight manual. Both the Performance and the Emergency sections of the flight manual would be required to have supplemental information. Mr. Fiscina explained that the R22's electrical system is also affected by the installation. Components that would need to be added include a circuit breaker and a cockpit (heated pitot tube) toggle switch, which would affect the demand on the alternator and the battery.

[33] Further discussion centered on the electrical charge that would result if a heated pitot tube designed by Robinson for an R44 was installed on an R22 instead. Of particular note is the section included on page 9‑6.2 (Exhibit M‑34) where it is specified by Robinson that continued use of the heated pitot tube following an engine or alternator failure will drain the battery significantly. It was Mr. Fiscina's opinion that although the R22 and R44 helicopters may have similar electrical systems, the heated pitot tube system was designed and certified for the R44 only. No data as to the consequences of an electrical system malfunction are available for the R22.

[34] Mr. Fiscina further indicated that although Robinson uses an amber alternator warning light to display an alternator failure, in his view it should be red as such a failure would imply serious flight safety consequences.

[35] Under cross‑examination, Mr. Fiscina was asked if he was aware of the battery and alternator specifications for an R44 – he was not. Further discussion centered on the alternator warning light. The Applicant's Representative reiterated that this light is amber when triggered due to an alternator failure and not red. Although Mr. Fiscina agreed, he was still of the opinion that it should in fact be red.

[36] An issue pertaining to the aircraft emergency section on alternator failure was raised. The main component in regards to this fault for the pilot would be to load share or load shed. When asked if the pilot could turn off the heated pitot tube on the R22 if required, Mr. Fiscina responded that he should be able to.

[37] According to Mr. Fiscina, the wording in the R22 Flight Manual states that, during an alternator failure, the pilot must land "as soon as practical". The Applicant's Representative wanted to clarify that this does not necessarily signify immediately, but when able to.

[38] Mr. Fiscina was asked about the function of a heated pitot tube. He replied that it protects the pitot probe from icing accumulation and as such provides the pilot with reliable airspeed data when flying a helicopter in icing conditions.

[39] Mr. Fiscina was further asked whether an R22 can fly under VFR at day and night. Mr. Fiscina explained that although the R22 Flight Manual states that the aircraft can be operated at day or night in VFR conditions, it also states that additional requirements may be required in countries outside the United States. If the operator meets the conditions set forth in section 605.16 of the CARs, then night VFR operation is allowed in Canada.

[40] Mr. Fiscina was referred back to the airspeed calibration curves in the R44 Flight Manual and asked if there was a difference in the calibrated airspeeds between the graphs. Mr. Fiscina stated that although minor, there is a difference of one or two knots between the standard pitot static system and one with a heated pitot tube.

[41] A final discussion centered on the terminology and amber lighting for an alternator failure. The Applicant's Representative stated that Robinson did not view such a failure as a real emergency or it would have had the fault light be red and request that the pilot land immediately. Mr. Fiscina responded that the situation would not fall under normal flight operations and that there were different types of emergencies.

[42] Under re-examination Mr. Fiscina was asked which sections of the R22 Flight Manual (Exhibit M‑9) required Transport Canada approval. He responded that Sections 2 (Limitations), 3 (Emergency Procedures), 4 (Normal Procedures), 5 (Performance) and 9 (Supplement) require approval.

B. Applicant

(1) Patrick Lafleur

[43] Patrick Lafleur is the Chief Pilot for Québec Hélicoptères. He is familiar with the relevant R22 and stated that he flew the helicopter six to seven hours after the heated pitot tube had been installed. He commented that he had noted no differences in the flight characteristics of the helicopter prior to and after the installation of the heated pitot tube.

[44] Mr. Lafleur continued to explain that no pilot had experienced any issues with the helicopter during the period that the heated pitot tube was installed.

[45] Under cross‑examination, Mr. Lafleur was asked if he had experienced an alternator failure during the hours he had flown the helicopter with the heated pitot tube and he responded that he had not. He was then asked by the Minister's Representative if he had been able to determine any flight differences with the helicopter during abnormal flight conditions. Mr. Lafleur responded that he had only flown the aircraft in normal conditions.

[46] Mr. Lafleur was asked by the Minister's Representative as well if the certification signature found on the Supplement added to the R22 Flight Manual in which the "44" in the "R44" lettering is replaced by a hand-written "22" (Exhibit M‑8) is valid. He responded that it is not.

(2) Guy Lambert

[47] Guy Lambert is the Director of Maintenance for Québec Hélicoptères. He has held this position at Québec Hélicoptères over the last eight years. Prior to this role, he had held various positions in different companies over the last 22 years directly related to helicopter maintenance. Mr. Lambert testified that he was requested by Québec Hélicoptères to verify if a heated pitot tube could be installed on the R22. He began by inquiring with Robinson whether it could be installed on the R22; he received no immediate response.

[48] He testified that he inspected the R22 and was able to verify that on the circuit panel, a circuit breaker slot indicated as "Pitot heat" was available, as well as the proper wiring for the electrical system. Having already installed several other KI‑104‑1 heated pitot tubes on the R44 model and having a heated pitot tube already in stock, he proceeded to contact Robinson as to the required Pilot Operating Handbook documentation for the R22.

[49] Having received no response from Robinson, Mr. Lambert proceeded to install the heated pitot tube on the R22. Mr. Lambert explained that the alternators and batteries for the R22 and R44 are similar in design. Some time after the installation, Mr. Lambert received a call from Transport Canada requesting documentation regarding the installation of the heated pitot tube on the R22. This immediately raised a caution flag in his mind and he contacted Robinson again to procure the required documentation.

[50] Mr. Lambert was eventually informed by Robinson that such a heated pitot tube was not available for the R22. He was informed that although the necessary wiring and panel were present in this model, the company had not certified this heated pitot tube for use on the R22. Unsure as to whether the installation of this heated pitot tube constituted a minor or major modification to the helicopter, he proceeded to ground the helicopter on January 27, 2011 and removed the heated pitot tube on February 1, 2011.

[51] Mr. Lambert explained that a subsequent visit was conducted by Mr. Bissonette after the removal of the heated pitot tube. The toggle switch from the heated pitot tube assembly had been left on the panel with an "inoperative" sticker placed next to it, which Mr. Bissonnette requested be removed. He also went on to explain that he had made a photocopy of the Heated Pitot Supplement from the R44 to place in the R22 (Exhibit M‑8). He was unsure as to who had
hand-written the "R22" on the copy of this document.

[52] An entry in the company Maintenance Control Manual quality control system was opened by Mr. Lambert on January 27, 2011 (Exhibit M‑27) in which the event related to the heated pitot tube was highlighted and all corrective steps taken were indicated to ensure that this type of oversight did not reoccur within Québec Hélicoptères (Exhibits M‑26, M‑27, M‑28).

[53] Under cross-examination, Mr. Lambert confirmed that he had followed the R44 installation instructions for the R22 as the two helicopter types are similar. He also specified that between September 15, 2010 and January 14, 2011, he attempted to contact Robinson on at least two occasions in order to confirm and receive the required documentation for an R22 heated pitot tube installation.

[54] Mr. Lambert was asked if the installation of a heated pitot tube on an R22 would be categorized as a major modification in accordance with Appendix A to Standard 571 of Part V of the CARs. In his opinion, since this system was already installed on and approved for an R44, no requirement existed on his part to verify and/or report this installation to Transport Canada.

(3) Yves Le Roux

[55] Yves Le Roux is President of Québec Hélicoptères. He testified that he discussed the technical requirements to operate an R22 helicopter during night operations (according to subpart 2 of Part VII of the CARs concerning aerial work) with Mr. Boulet in June 2010. He was informed by Mr. Boulet that, among the required instrumentation and equipment, a heated pitot static system would be needed. A request to install the heated pitot tube was made to Mr. Lambert and the system was installed in September 2010. At that time, Mr. Lambert informed Mr. Boulet that the system had been installed and that he would be making a formal application to Transport Canada to operate in VFR night operations under subpart 2 of Part VII of the CARs.

[56] Mr. Le Roux was told by Mr. Boulet that he would eventually come to the facility to audit Québec Hélicoptères and would at that time verify the heated pitot tube installation as well. During the January 2011 audit, Mr. Boulet informed Mr. Le Roux that there was an issue with the installation of the heated pitot tube on the R22.

[57] Under cross-examination, Mr. Le Roux was asked if he had ensured that the installation of the heated pitot tube was performed within the specifications and requirements of Robinson. He responded that this responsibility resides with his Director of Maintenance, Mr. Lambert.

[58] Under re-examination, Mr. Le Roux confirmed that no commercial night flights were operated with the R22, with or without the heated pitot tube.

IV. ARGUMENTS

A. Minister

[59] The Minister's Representative argues that Mr. Lambert, as Director of Maintenance for Québec Hélicoptères, installed a KI‑104‑1 heated pitot tube on the R22 and certified its installation in the R22 Flight Record Logbook (Exhibit M‑24). Mr. Lambert admitted to having done this without the technical data or applicable service bulletin pertaining to the installation of a heated pitot tube on an R22. The Minister's Representative argues that the elements of the offence have been proven on a balance of probabilities.

[60] The Minister's Representative explained through expert testimony that the heated pitot tube supplementary system was not certified to be installed on the R22 and furthermore, that its installation met the requirements in the major modification category under Annex A to Standard 571 of Part V of the CARS thus requiring Mr. Lambert to report it to Transport Canada as per Annex L to Standard 571—this was not completed by the Applicant.

[61] The Minister's Representative argues as well that in the opinion of its expert witness, Mr. Fiscina, the additional five to six amps added to the R22's electrical system due to the installation of the heated pitot tube could create a risk to flight in emergency situations, such as an engine or alternator failure, which can drain the battery prematurely. The extract from the R22 Flight Manual (Exhibit M‑9) contains a note of caution from Robinson explaining that the installation of electrical devices can affect the accuracy and reliability of electronic tachometers. It specifies that no electrical equipment may be installed unless specifically approved by the manufacturer.

[62] With regards to subsection 571.06(1), in which a person who performs a major repair or modification shall ensure that the major repair or major modification conforms to the requirements of technical data that has been approved by or the use of which has been approved by the factory, the Minister's Representative refers to the viva voce testimony from Mr. Lambert in which he admits to not having received or used applicable data for the R22. The Minister's Representative argues as well that paragraph 571.03(1)(c) of Standard 571 to Part V of the CARs, in which a person who performs maintenance or elementary work on an aeronautical product in which a standard other than the manufacturer's is used, must reference the standard used in the performance of the work. This was not done by Mr. Lambert even though he had signed it as such in the R22 Flight Record Logbook (Exhibit M‑24).

[63] In the matter of due diligence regarding this modification, the Minister's Representative argues that only one or two calls were made to the manufacturer, Robinson, and no calls were made to Transport Canada.

B. Applicant

[64] The Applicant's Representative argues that no dishonest act took place when the R44 Heated Pitot Supplement (Exhibit M‑8) was manually changed to indicate "R22" instead of "R44". The change was done with the intention of informing all applicable personnel and was not carried out with the intent to conceal any work or modifications done to the R22.

[65] The Applicant's Representative further argues that section 571.06 of the CARs, in which the obligations for a major modification or repair are outlined, does not apply to the heated pitot tube installation. He submits that the expert witness, Mr. Fiscina, was unable to clarify the battery charge and/or alternator capability of the R44 versus the R22. When asked by the Applicant's Representative if the difference in airspeed calibration curves between an R44 with a standard pitot static system and one with a heated pitot tube (Exhibit M‑34) was considered major, Mr. Fiscina's response was that it was "petite".

[66] The Applicant's Representative reiterated his objection to the testimony of the expert witness. He argues that as an employee of the Minister, he cannot provide an independent and unbiased view of the heated pitot tube issue.

[67] The Applicant's Representative submits that in accordance with the R22 Flight Record Logbook (Exhibit M‑24), although the heated pitot tube was installed on the R22, no flights were conducted at night and the system was never used. The system was not to be utilized until such a time as Transport Canada could inspect the heated pitot tube in January 2011.

[68] Another issue raised by Applicant's Representative centers on the role of Mr. Lambert as Director of Maintenance. The Minister's Representative contends that Mr. Lambert is an officer of Québec Hélicoptères but the Applicant's Representative argues that his role is one of employee and no directional decisional powers are given to him. The Applicant's Representative also argues that testimony from Mr. Bissonnette be given its just weight due to the inability of this witness to recall events and dates that were asked for by the Applicant's Representative.

[69] The Applicant's Representative argues that the installation note found in the R22 Flight Manual extract (Exhibit M‑9), in which Robinson specifies that no electrical equipment may be installed unless approved by the manufacturer, is contradictory in nature. He argues that Robinson had installed the necessary wiring and the circuit breaker panel slot, which explains why Mr. Lambert deemed the installation of a heated pitot tube on an R22 to be factory approved.

[70] The Applicant's Representative makes reference to R. v. Sault Ste‑Marie (City), [1978] 2 SCR 1299, regarding due diligence. In evoking due diligence on behalf of Québec Hélicoptères, Mr. Le Roux, as President of Québec Hélicoptères, relied on his Director of Maintenance to ensure that all reasonable diligence had been carried out when he requested that the heated pitot tube be installed. He had assumed that his Director of Maintenance would ensure full compliance to government regulations with this installation. Since the Minister issued the Notice to Mr. Le Roux, the defence of due diligence is valid.

[71] The Applicant's Representative raises several examples in jurisprudence of definitions that have been given with regards to major modifications. He argues that the heated pitot tube had a limited, if any, effect on the R22's weight, structural strength or performance. Concerning its flight characteristics and performance, the Applicant's Representative refers to testimony from Mr. Lafleur, Chief Pilot at Québec Hélicoptères, in which he states that in flights prior to and after the installation of the heated pitot tube, no changes in regards to flight handling were detected with the helicopter. As to any airworthiness issues, the Applicant's Representative argues that since Robinson had already designed and installed the main components for installing a heated pitot tube, the installation of one could only be considered a minor modification.

C. Minister's Reply

[72] The Minister's Representative pointed out that Mr. Lambert was one of three listed directors within Québec Hélicoptères. He acted with the knowledge of Mr. Le Roux as Mr. Le Roux was the person who had requested the installation of the heated pitot tube on the R22.

V. ANALYSIS

[73] It is important to clarify two matters before me that are in agreement by both the Minister's and the Applicant's Representatives. First, heated pitot tube KI‑104‑1was an approved kit made available through Robinson. As well, the quality of the kit's installation is not in question. As such, the problem I must address is three-fold:

  1. whether heated pitot tube KI-104-1, installed by Québec Hélicoptères on September 15, 2010 was approved for the R22, and installed as per existing manufacturer recommendations;
  2. whether this installation constituted, in accordance with Appendix A to Standard 571 of the CARs, a major modification, which would have been required to be reported to the Minister, in accordance with Appendix L to Standard 571 of the CARs; and
  3. whether there are any mitigating factors to consider in assessing the monetary penalty.

A. Heated Pitot KI-104-1

[74] The heated pitot tube, KI‑104‑1, that was installed by Mr. Lambert is an approved installation kit that is made available through Robinson (R44 Illustrated Parts Catalog, Exhibit M‑30). However, the key issue is that the kit is only available, with detailed installation instructions, for the R44. The R22 Illustrated Parts Catalog (Exhibit M‑12) does not list any heated pitot tube as a supplemental kit. The Minister has proven, on a balance of probabilities, that this Heated Pitot installation kit is not approved for the R22.

[75] The Applicant's Representative, through testimony from Mr. Lambert, argued that the similarities between the R44 and R22 models in both the battery and the alternator specification, in addition to having the proper wiring and circuit breaker panel slot already installed on the R22, led to the assumption that the technical installation specifications would be similar if not identical—I do not agree. The specific technical guidelines and installation instructions for heated pitot tube KI‑104‑1 (Exhibit M‑33) are directly attributed to the R44 model, including specific R44 hardware part numbers, quantities, diagrams and Pilot Operating Handbook References (Exhibits M‑8 and M‑30), as well as airspeed charts for the heated pitot tube installation (Exhibit M‑34) and cockpit decal (Exhibits M‑3 and M‑4). No such technical information is available for the R22 model. The Minister has proven, on the balance of probabilities, that the Applicant installed, without technical instructions or guidelines, a heated pitot tube that was not approved for the R22.

B. Major Modification

[76] The second question that I must address is whether this heated pitot tube installation can be categorized as a major modification. "Major modification" is defined in subsection 101.01(1) 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;

[77] Transport Canada has outlined a number of factors that can be used to determine the modification category. I will limit these to subparagraphs 571(2)(e)(2) and (7) of Appendix A to Part V of the CARs:

(e) Other Qualities Affecting Airworthiness

Does the modification or repair:

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

(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?

[78] The installation of a heated pitot tube inevitably requires the operator to modify and add sections in several key chapters in the aircraft flight manual and pilot operating handbook of the relevant aircraft. From evidence and testimony, the following changes and modifications would be necessary in the AFM or equivalent publication:

  1. Section 9 – Supplements
  2. Section 4 – Normal Procedures (heated pitot tube usage including abnormal usage following an engine or alternator failure)
  3. Section 5 – Performance (Airspeed Calibration Curve with Heated Pitot installed).

As well, the Heated Pitot Supplement in the Pilot's Operating Handbook would need to be modified.

[79] The heated pitot tube installation includes a 10-amp circuit breaker, a wire assembly connection and an applicable on/off toggle switch. This would certainly constitute a change in the electricity distribution system. In my view, this is a critical deciding factor, as no data or heated pitot tube installation kit from Robinson has been made available for the R22.

[80] Both of these factors are affected by a heated pitot tube (in this case the KI-104-1) installation and, as such, would fall into the category of a major modification. Mr. Lambert testified that he did not view this as a major modification and as such did not advise Transport Canada as required under Appendix L to Standard 571 of Part V of the CARs concerning a major repair or major modification report. Based on the above consideration, the Minister has proven, on a balance of probabilities, that this installation was a major modification and in accordance with Appendix L would have been required to be reported to the Minister.

[81] The second part of the second question centers specifically on subsection 571.06(1) of the CARs concerning repairs and modifications. It is clear from testimony and documentary evidence that no heated pitot tube kit was available for the R22. Mr. Lambert himself confirms this finding. As such, the technical data that has been approved for the installation of heated pitot tube KI‑104‑1 is specific to the R44. Although the models are similar in nature, no approved technical installation data is available for the R22. On the basis of the evidence before me, the Minister has proven, on a balance of probabilities, that Québec Hélicoptères did contravene paragraph 571.06(1)(a) of the CARs.

C. Mitigating Factors

[82] The Applicant's Representative provided evidence, not disputed by the Minister's Representative, that Québec Hélicoptères acted in good faith during the investigation and clearly indicated that Québec Hélicoptères did not attempt to conceal the installation of the heated pitot tube on the R22 from the Minister. A preliminary discussion in June 2010 between Mr. Le Roux and Transport Canada provided the initial clarifications needed to install a Heated Pitot as Québec Hélicoptères wanted to operate the R22 at night under subpart 2 of Part VII of the CARs. When the heated pitot tube was installed in September 2010, Québec Hélicoptères informed Transport Canada and the issue of the legality of the installation was noted during a January 2011 inspection.

[83] At that time, Québec Hélicoptères took several pro-active steps prior to the final investigation by the Minister. The R22 was grounded and the heated pitot tube was removed on February 1, 2011 following a telephone call by Mr. Bissonnette (of Transport Canada) in which the installation was questioned. An internal audit inspection in the Maintenance Policy Manual (Exhibit M‑25) was opened on January 27, 2011 with non-compliance and corrective findings reported.

[84] As evidenced by testimony for the Minister, Québec Hélicoptères collaborated fully and in good faith throughout the investigation and responded promptly to requests from the Minister for information and documentation.

[85] It is important to discuss the issue of due diligence in this Determination as raised by the Applicant's Representative. As per Sault Ste‑Marie, the Applicant must either have reasonably believed in a mistaken set of facts, which would render the act or omission innocent, or have taken all reasonable steps to avoid the particular contravention.

[86] It is also important for me to address the role of Mr. Lambert in that the Applicant argued that since the Notice was filed against Québec Hélicoptères, all due diligence was taken by Québec Hélicoptères and the installation of the heated pitot tube by this employee cannot be held against Québec Hélicoptères. In my view and based on the testimony, it is difficult to support this point. Mr. Lambert not only installed the heated pitot tube, but did so as Director of Maintenance for Québec Hélicoptères. His role on behalf of Québec Hélicoptères is one of leadership and responsibility directly related to all matters of a technical nature and he ultimately carries the overall responsibility for technical compliance vis‑à‑vis federal rules and regulations.

[87] As such, direct testimony from Mr. Lambert indicated that the installation was conducted on similar helicopter models with compatible hardware. However, the Applicant clearly indicated that no service bulletins or instructional installation material for a heated pitot tube were available for the R22. The fact that someone had to hand‑write over an existing R44 Pilot Operating Handbook (Exhibit M‑8) in order to include this supplement in the cockpit of the R22 further indicates that no supplementary heated pitot tube information was available for this model.

[88] Since Québec Hélicoptères attempted to contact Robinson on only one or two occasions and did not seek any guidance from Transport Canada, Québec Hélicoptères did not take all reasonable care prior to the installation of the heated pitot tube. In my view, and from the evidence presented, a due diligence defence cannot be formed based on this line of argumentation.

[89] The monetary guideline amounts found in Transport Canada's Aviation Enforcement Procedures Manual form a useful starting point, but they may be reduced in accordance with mitigating circumstances. In the same way as they may be increased where there are aggravating circumstances taken into consideration, I find that mitigating circumstances were not taken into account in assessing the penalty. The penalty should be significant enough to act as a deterrent, change mindsets and ensure regulatory compliance in our industry, but also be mitigated in certain circumstances when applicable. In this particular Review Hearing, it is my view that the monetary penalty should have the desired deterrence effect while at the same time taking into consideration the mitigating factors mentioned earlier. The Company has a good working relationship with Transport Canada, has never had any prior issues and, as heard in testimony, gained no commercial advantages from this installation as it operated no commercial night flights while the heated pitot tube was installed on board. I do not believe a reduction in the monetary penalty will reduce its desired deterrent effect and may well promote a continued positive working relationship between the Applicant and Transport Canada.

VI. DETERMINATION

[90] The Minister of Transport has proven, on a balance of probabilities, that Québec Hélicoptères Inc. contravened paragraph 571.06(1)(a) of the Canadian Aviation Regulations. As the Minister did not take into account mitigating factors in assessing the monetary penalty, I reduce the penalty from $5 000 to $2 500.

The total amount of $2 500 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.

April 10, 2012

Franco Pietracupa

Member