Decisions

TATC File No. C-3742-04
MoT File No. Z 5504-070564 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Ronald Douglas Tomlinson, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Canadian Aviation Regulations, SOR/96-433; ss 571.11(6)


Review Determination
Patrick T. Dowd


Decision: August 22, 2012

Citation: Tomlinson v. Canada (Minister of Transport), 2012 TATCE 24 (Review)

Heard at Saskatoon, Saskatchewan, on October 13 and 14, 2011

Held: The Minister has not proven, on a balance of probabilities, that the Applicant, Ronald Douglas Tomlinson, contravened subsection 571.11(6) of the Canadian Aviation Regulations. Consequently, the 21-day suspension set out in the Notice of Suspension is cancelled.

I. BACKGROUND

[1] On October 29, 2010, a Notice of Suspension ("Notice") was issued to the Applicant, Ronald Douglas Tomlinson, by the Minister of Transport ("Minister") in respect of an alleged contravention of subsection 571.11(6) of the Canadian Aviation Regulations, SOR/96-433 ("CARs"), pursuant to section 6.9 of the Aeronautics Act, R.S.C., 1985, c. A‑2.

[2] The alleged contravention is set out in Schedule A to the Notice as follows:

Schedule A – Annexe A

Count #1: 21 days

Canadian Aviation Regulation 571.11(6) in that, on or about October 8, 2008, at or near Saskatoon, Saskatchewan you did sign a maintenance release for a Piper Aircraft Corporation PA22‑150 bearing Canadian Registration marks C‑FKIS in respect of work performed by another person and you did not personally observe the work to the extent necessary to ensure that it was performed in accordance with the requirements of any applicable standards of airworthiness, specifically, the requirements of sections 571.02 and 571.10 of the Canadian Aviation Regulations, namely, the aircraft fabric was not attached to the top windscreen channel in accordance with recognized industry practices and with the Department of Transport, Supplemental Type Certificate Number SA1008WE issued to Poly-Fiber Inc.

Suspension applied:

Count #1: 21 days

The suspension comes into effect on December 7, 2010, and remains in effect until December 27, 2010.

[3] On November 24, 2010, the Applicant requested a review of the Minister's decision and a stay of suspension by the Transportation Appeal Tribunal of Canada ("Tribunal"). The stay of suspension was granted by the Tribunal that same day until the review of the Minister's decision had been concluded.

II. LEGISLATION

[4] Subsection 571.11(6) of the CARs reads as follows:

571.11 (6) If a maintenance release is signed by a person in respect of work performed by another person, the person signing the maintenance release must personally observe the work to the extent necessary to ensure that it is performed in accordance with the requirements of any applicable standards of airworthiness and, specifically, the requirements of sections 571.02 and 571.10.

III. PRELIMINARY MATTERS

[5] The Applicant's Representative raised a motion for dismissal due to time limitations for charges under section 6.9 of the Aeronautics Act.

[6] In support of his motion, the Applicant's Representative relied on limitation periods contained in a number of statutes, including the Summary Offences Procedure Act, 1990, S.S. 1990‑91, c. S‑63.1; the Crown Liability and Proceedings Act, R.S.C., 1985, c. C‑50; the Criminal Code, R.S.C., 1985, c. C‑46; and the Canada Transportation Act, S.C. 1996, c. 10. The Applicant's Representative made arguments for the application of each of these statutes and their relevant time limitations with respect to section 6.9 of the Aeronautics Act, which I will address in turn.

[7] As noted by the Minister's Representative, it is unclear that the Crown Liability and Proceedings Act is intended to cover administrative actions, such as suspensions under section 6.9 of the Aeronautics Act. As such, I find that the Crown Liability and Proceedings Act does not apply to the case at hand.

[8] The Applicant's Representative also suggests that the Summary Offences Procedure Act applies in this case. However, I agree with the Minister's Representative's submission that any application of this Act to this case requires the consideration of inter‑jurisdictional immunity to determine whether the application of this Act (a statute of Saskatchewan) would impair the core of a federal competency. It seems clear that applying a time limit to the Minister's powers under section 6.9 of the Aeronautics Act would result in an interference with the core of the federal power in terms of aviation, as seen in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, for example.

[9] Furthermore, the Applicant's Representative asked the Tribunal to assess the charges under section 6.9 of the Aeronautics Act as summary proceedings. However, section 7.3 of the Aeronautics Act covers summary proceedings—it is unclear that charges under section 6.9 would be correctly classified as summary proceedings. As such, section 785 of the Criminal Code cannot be said to apply in this instance.

[10] Finally, the Applicant's Representative suggested that the Canada Transportation Act and the Aeronautics Act are in conflict and that the time limitation found in the Canada Transportation Act ought to apply in this matter. However, I do not believe these Acts conflict; rather, each Act serves a distinct purpose that does not overlap with the other's, nor is there any inconsistency or conflict. As such, I find that the 12‑month limitation period contained in the Canada Transportation Act does not apply to the Aeronautics Act.

[11] I accept the Minister's submission that the lack of a time limitation for section 6.9 of the Aeronautics Act suggests that the legislators intended to provide the Minister flexibility in charging under this section. Such a decision is to be made by the legislators—it is not the Tribunal's role to assign a time limitation to a provision where none exists.

[12] However, while I remain unconvinced by the Applicant's Representative's arguments with regard to the suggested application of time limitations under section 6.9 of the Aeronautics Act, I note that these findings are nevertheless rendered moot because of the determination that follows.

IV. EVIDENCE

A. Minister

(1) Inspector Matthew Markesteyn

[13] Matthew Markesteyn is an inspector at Aviation Enforcement, Transport Canada, in Winnipeg. The witness introduced a letter of investigation regarding the case (Exhibit M‑1) that he had written, and proof of its delivery (Exhibit M‑2). He also provided a copy of the Applicant's Aircraft Maintenance Engineer ("AME") Licence, No. 150906, with endorsements (Exhibit M‑3). He further introduced the Certificate of Airworthiness for the subject aircraft, a Piper PA22‑150, registered as "C‑FKIS" (Exhibit M‑5), owned by Donald Gordon Breckenridge according to the Certificate of Registration (Exhibit M‑6). He also provided a copy of the aircraft's journey logbook in use at the time of the alleged contravention (Exhibit M‑7). A partial list of repairs as they appeared in the logbook was enumerated by the witness. Mr. Tomlinson had signed off on these repairs and entered his licence number.

[14] The witness then introduced the Applicant's response to the letter of investigation (Exhibit M‑8). The Applicant's response stated that the owner, Mr. Breckenridge, had recovered the fuselage from Central Aircraft Maintenance and that it had been done in accordance with the Poly‑Fiber Procedures Manual, Supplemental Type Certificate ("STC") SA1008WE, Revision No. 21 ("STC SA1008WE"), which was attached in part to the response (Exhibit M‑8). In this letter, the Applicant stated that he had discussed his concerns with the aircraft owner regarding the fabric attachment at the top of the windscreen. A 90-degree turn in the fabric direction had been required. The Applicant also wrote that he was not as vigilant as he would have liked to have been in finishing the windscreen installation. The Applicant also replied that the attachment method shown in a photograph sent to him by Transport Canada (Photograph No. 2 of Exhibit M‑16) is not an accurate example of his work, and that he would not have released the aircraft in this state. The picture showed the use of caulking for the installation.

[15] The Minister's Representative asked Inspector Markesteyn how the Applicant's comment of not being as vigilant as he would have liked applies to the Regulation he was charged under (subsection 571.11(6) of the CARs). He replied that the work needs to be observed to the extent necessary to ensure that it is performed in accordance with the requirements of any applicable standards of airworthiness. It should be noted that the Applicant's comment related to the windscreen installation and not the fabric application.

[16] Inspector Markesteyn introduced Transport Canada's Aviation Enforcement Case Report concerning the event and accompanying photographs provided by Mr. Breckenridge (Exhibit M‑9). He stated that in preparing the report, he consulted with professional AMEs with fabric experience. This testimony was objected to as hearsay by the Applicant's Representative. Though it was hearsay, I allowed it and have given it appropriate weight in this determination. The witness further testified that the various AMEs he had spoken with confirmed that the photographs showed an improper fabric installation.

[17] The Applicant's Representative objected to the photographs being identified and introduced by a witness who had not taken them. The Minister's Representative stated that he intended to introduce these photographs through Jared Chursinoff, the present owner of the aircraft, who had been given these photographs by Mr. Breckenridge, the previous owner, at the time of the sale.

[18] The Minister's Representative informed the Chair and the Applicant that Mr. Breckenridge had left the country and would not be available as a witness. I noted this information with some surprise and concern because Mr. Breckenridge's testimony is crucial in this matter. The Minister's Representative offered no reasons as to why it was necessary for this individual to absent himself from these proceedings.

[19] Inspector Markesteyn stated that he has been a qualified pilot and AME since 1997, with experience in covering aircraft with fabric. He also stated that he took the Poly‑Fiber course on September 25 and 26, 1999. The witness stated that on his first examination of Photograph No. 284 (Exhibit M‑9), he instantly recognized that the fabric at the top of the fuselage, the structure, was not wrapped around as it was in Photograph No. 284.

[20] Inspector Markesteyn continued discussing Photograph No. 284. He explained that when working with fabric, the term "pinking" is used to describe a method of cutting fabric to prevent it from fraying. His concern is that the photograph showed the pinking—which is at the end of the fabric—was not where it was tucked under the aircraft's channel, and around onto the aircraft structure. The witness also observed that the aircraft structure was not painted with Endura paint, as stated in the journey logbook (Exhibit M‑7).

[21] Under cross-examination, Inspector Markesteyn confirmed there were no issues concerning Mr. Tomlinson's licence or the entry process in the journey logbook (Exhibit M‑7).

[22] The Applicant's Representative noted that the journey log indicates the aircraft's annual inspection was overdue at the time of Mr. Chursinoff's incident. The journey log shows the inspection was due on October 8, 2009 and the incident occurred on October 23, 2009; therefore, the aircraft was not certified and should not have been flying. Inspector Markesteyn did not respond to this assertion. It was later shown in the Hearing that the CARs extend the validation date to the end of the twelfth month, so the annual inspection was due on October 31, 2009.

[23] The Applicant's Representative presented Advisory Circular (AC) No. 362(B), which contains a diagram showing the method of installation to be used with cotton or linen fabric. He used the diagram for information purposes and to facilitate his cross‑examination. The use of this diagram was objected to by the Minister's Representative because it did not apply to Poly‑Fiber fabrics and he argued that the existing AC No. 43.13‑1B (Exhibit M‑13) for the Poly‑Fiber process overrides any other AC. I note that the objection did not allege an inaccuracy in the diagram.

[24] I allowed the Applicant's Representative to use the diagram because neither AC No. 43.13‑1B (Exhibit M‑13) nor STC SA1008WE (Exhibit M‑14) contained any diagrams of the area in question and it accurately depicts the Piper PA22 structure as described by the Minister's evidence.

[25] During re-examination, Inspector Markesteyn confirmed that, in his opinion, the installation of the fabric was not done as per STC SA1008WE.

(2) Inspector Ron Thompson

[26] Inspector Ron Thompson is a Civil Aviation Safety Inspector for Transport Canada. Inspector Thompson has been an AME since 1986 and has been with Transport Canada for about 10 years. Inspector Thompson testified that he was assigned a Civil Aviation Daily Occurrence Report ("CADOR") (Exhibit M‑10) related to a Major Repair or Major Modification Report signed by Mr. Tomlinson (Exhibit M‑11).

[27] The witness stated that an STC must be followed exactly to meet airworthiness standards. He explained how a United States Federal Aviation Administration ("FAA") Airworthiness Directive (AD) must be followed only when there are no manufacturer repair or maintenance instructions. An STC is considered a manufacturer's instructions.

[28] Inspector Thompson quoted various excerpts from STC SA1008WE. He stated that there must be a one‑inch overlap of the fabric on the round tubing. I note that this statement applies to the application of the fabric to the tail-feather tube and not the cross-tube in the windscreen area. The witness continued to emphasize that the installation had to be done in accordance with the STC. He read excerpts from the STC in support of this, but at times his reading varied notably from the actual wording in the document.

[29] The exact excerpt from the manual (STC Rev 21), at page 60, reads as follows:

Sometimes, you must start front-end cementing on some fairly lightweight fuselage structures, not on nice thick tubes. For example, you might have to begin with the channel that holds the windshield, or in a skylight well. Make absolutely sure you get a good strong bond on these top cabin structures. After all, the slipstream will be constantly trying to peel away these areas. And if the fabric peels here in flight, it can give you serious control problems by blanking out the elevators. No fun at all. [Emphasis in the original.]

From this excerpt, it would appear that Mr. Breckenridge conformed with the STC Rev 21. There was no mention of the requirement to wrap at least one inch around any tubing. It also indicates that it considers "the channel that holds the windshield" as structure.

[30] Inspector Thompson quoted the STC Rev 21 again when discussing the slipstream. Serious control problems can result if the fabric peels away and blanks out the elevators. The witness stated Transport Canada approved the STC Rev 21 manual, and the installation must be done in accordance with this document.

[31] Inspector Thompson read his investigation's findings into the record. He concluded that the AME who did the installation failed to correctly attach the Poly‑Fiber fabric to the top of the cabin‑forward structure above the front windscreen. The fabric was glued to the top of the structure and not wrapped around, pursuant to the reference documents, specifically STC SA1008WE.

[32] Under cross‑examination, the witness stated that he did not personally inspect the aircraft before or after the forced landings, and that he only saw photographs of it. The witness restated that the Poly‑Fiber fabric was not wrapped around the cross‑tube to one inch, as per STC SA1008WE. Inspector Thompson testified that only the tubing qualifies as part of the structure and not the V channel attached to the top of it.

[33] Under re‑examination, Inspector Thompson reaffirmed that Transport Canada only approves the method contained in STC SA1008WE.

(3) Inspector Brian McFarlane

[34] Inspector Brian McFarlane is a Civil Aviation Safety Inspector for Transport Canada based in Saskatoon, Saskatchewan. He has been an AME since 1975 and once owned and operated an aircraft maintenance company.

[35] The witness identified the photographs (Exhibit M-16) he took after the aircraft arrived in La Ronge, Saskatchewan, after the incident. The photographs show where the fabric above the windshield had pulled away from the structure. The witness also spoke to Mr. Chursinoff, who was also in La Ronge.

[36] Inspector McFarlane gave his opinion on the photographs he took. It appears the fabric separated because it had not been properly bonded to the structure of the aircraft. When asked by the Minister's Representative what part of the structure he was referring to, the witness responded: "Well, there's a channel across the front there, and it should be bonded to that. Plus, there's a cross‑tube underneath just after the windshield at the top."

[37] The witness then testified that the white bead shown in the photograph he had taken was not part of the installation process. He speculated that it might have been put there to keep water out and noted that it is not standard practice to do so. Referring to the photographs he took in La Ronge (Exhibit M‑16), he stated that there was not enough fabric surface area glued to the structure to have prevented the separation. Inspector McFarlane stated that he saw neither evidence of the fabric being wrapped around the structure, nor evidence of any fabric havingbeen pulled out or ripped off—it just came apart.

[38] Under cross‑examination, Inspector McFarlane offered the opinion that the white bead was silicone and repeated that it is not normally used. He stated that he had never seen the aircraft before taking the photographs. Inspector McFarlane identified the material under the silicone as duct tape and he did not think it was part of the original installation.

[39] During re‑examination, and based on the photographs he had taken of the aircraft, the witness stated that the installation of the fabric was not done in accordance with STC SA1008WE. He did not specify which part of the STC was not followed.

(4) Jared Chursinoff

[40] Jared Chursinoff was the owner and pilot-in-command ("PIC") of the Piper PA22 during the forced landings. He purchased the aircraft from Mr. Breckenridge on October 9, 2009. He has approximately 400 hours flying experience on the Piper PA22 and took a five-hour checkout course on it with a qualified instructor before he took it home. He is self‑employed as an information technology consultant.

[41] Prior to his eventful flight, Mr. Chursinoff was concerned that his aircraft would run out of time for its annual inspection. He contacted Inspector Thompson and was advised that the annual inspection timeframe did not expire until October 3l, 2009, based on the CARs. As such, the aircraft was not flown illegally.

[42] The witness recounted his flight of October 23, 2009. The pre‑flight and flight were routine until he heard three "bangs" followed by control problems. Mr. Chursinoff declared a Mayday and landed on a road. The witness inspected the aircraft and determined the rear entry door was open and that this had been the cause of the banging. Satisfied that the aircraft was airworthy, he took off from the road. He experienced the same problems upon reaching level flight so he landed the aircraft in a farmer's field causing minor damage to the aircraft.

[43] Mr. Chursinoff contacted the Transportation Safety Board of Canada ("TSB") and Flight Service. He also contacted his friend Edward Yuzik, his AME from La Ronge. The witness inspected the aircraft once more and discovered a one‑inch play in the horizontal stabilizer. The aircraft remained in the field overnight. The next morning, the witness and the AME returned to the aircraft. The AME discovered that some washers were missing from a screw‑jack that operates the elevator trim, and observed the separation of the fabric above the windshield. The aircraft was transported by truck to La Ronge.

[44] The witness introduced five photographs of the aircraft, which he had personally taken (Exhibit M‑18). Photograph No. 1 shows the separation and the presence of the white silicone; Photograph No. 2 is of the aircraft in the forced landing field; Photograph No. 3 is a close‑up of the separation; Photograph No. 4 shows the trim screw‑jack; and Photograph No. 5 was taken after Mr. Chursinoff had purchased the aircraft and shows he had taken the aircraft back to Mr. Tomlinson's company, Central Aircraft Maintenance Ltd., because when he purchased the aircraft, the elevator trim cable was broken.

[45] The Minister's Representative had Mr. Chursinoff look at each photograph taken by Mr. Breckenridge (Exhibit M‑19) during the recovery of the aircraft. Mr. Chursinoff identified various characteristics of the aircraft in the photographs that matched the Piper PA22 he purchased, such as the radio racks, upholstery, similar paint patterns on the airframe, the instrument panel, and other similarities. In my opinion, there is no question that the photographs are of the same aircraft Mr. Chursinoff purchased. The issue of not having the person who took the pictures, Mr. Breckenridge, testify to their authenticity and the issue of hearsay raised by the Applicant's Representative was resolved because, on a balance of probabilities, I am satisfied that the photographs are of C‑FKIS. Two CDs containing all the original photographs taken by Mr. Breckinridge were entered into evidence (Exhibit M‑20).

[46] During his testimony, Mr. Chursinoff stated that his aircraft was under Transport Canada's Owner-Maintenance Category.

[47] Mr. Chursinoff gave a descriptive account of how he and his AME, Mr. Yuzik, repaired the aircraft after the incident. The witness was assigned the task of cleaning out the V channel on the upper structure where the fabric and the windshield attached. The witness stated that this V channel contained old fabric and that the new fabric was totally separate from it on top. He offered his opinion that there was no way the new fabric could have been tucked inside that windshield.

[48] Under cross-examination, Mr. Chursinoff indicated that as a pre-purchase inspection, he had an AME do a quick walk‑around the aircraft; the AME stated it was sound and firm. Why Mr. Chursinoff was satisfied with this cursory inspection was not explained. There was no mention of any caulking being present in the area of the top of the windshield.

[49] The witness testified that on the day of the incident, icing conditions did not exist. He further stated that he did not perform any maintenance on his aircraft prior to the forced landings. The witness made reference to the V channel again, stating that it is welded to the crossbar and that the windscreen sits in the V channel on top of the fabric. Mr. Chursinoff stated that it was impossible for him to view this area after his first forced landing. He also stated that it is possible for him to view the stabilizer and the elevator in flight from the cockpit.

[50] Mr. Chursinoff also solved the mystery of the duct tape in Inspector McFarlane's Photograph No. 2 taken in La Ronge (Exhibit M‑16). He explained that he had placed the tape, at the direction of his AME, to prevent moisture from entering the fabric.

[51] Under re‑examination, the witness indicated that he did not encounter any precipitation or enter any cloud.

B. Applicant

(1) Gary Toffelmire

[52] Gary Toffelmire is a Minister's delegate for recreational and amateur‑built aircraft. His licence allows him to inspect sheet metal, steel tubing, wood, and composite materials including the fabrics that cover them. He completed the Poly‑Fiber training seminar, a certificate course.

[53] The witness stated that Poly‑Fiber fabric is not to be wrapped around the tubing because STC SA1008WE indicates that joining the fabric to the tubing would far exceed the requirements of the width of the glue joint. The witness stated that the vertical piece that extends to the tubing is welded to the tubing and forms part of the aircraft's structure. By way of explanation, the horizontal part of this vertical piece holds the V channel.

[54] Mr. Toffelmire indicated that he was involved in placing the wings on the subject aircraft after it had been recovered with the new fabric before it was purchased by Mr. Chursinoff. The witness stated that this placed him in the vicinity of the glue joint (along the top of the windshield). The witness also affirmed that there was no white caulking along the top of the windshield.

[55] Mr. Toffelmire said that he has known and worked with Mr. Tomlinson since 1982 and he described him as very picky about the work done in his shop, such that everything that leaves the shop has to have been correctly worked on.

[56] The witness was shown Photograph No. 284 from Exhibit M‑9 by the Applicant's Representative and asked if he could see where the fabric ended above the tube and if this is correct, to which he responded affirmatively. He was further asked if he could tell from the photograph whether the fabric was wrapped around the channel discussed earlier, to which he responded negatively.

[57] Under a very short cross‑examination, Mr. Toffelmire stated that he was not involved in the fabric covering and did not see how the fabric had been attached to the structure.

(2) Bob Dueck

[58] Bob Dueck has been an AME for 15 years and worked for Mr. Tomlinson for three of those years. He stated that Mr. Tomlinson is absolutely meticulous in everything he does.

[59] Under cross‑examination, Mr. Dueck said that he is no longer employed by Mr. Tomlinson and that he left his job with him about one year ago. He further stated that he did not work on the subject aircraft.

(3) Tom Coates

[60] Tom Coates is an AME with multiple endorsements on his licence and 40 years of experience, including fabric work on Piper Tripacers. He is qualified in the application of Poly‑Fiber fabric.

[61] The Applicant's Representative presented Mr. Coates with Photograph No. 284 from Exhibit M‑9 and the diagram contained in AC No. 362(B), which depicts the structure and the application of a fabric that is not Poly‑Fiber to the area of the airframe where the fabric separated on C‑FKIS. The Minister's Representative again objected to the use of this diagram. I overruled the objection and allowed the diagram to be used for demonstration purposes.

[62] In response to the Minister's Representative's query of whether it relates to the Piper PA22‑150, Mr. Tomlinson interjected that the disputed diagram is contained in the PA22‑150 manual. Mr. Coates then continued his testimony and confirmed that the horizontal tubing in question is structural and that the U channel [U channel and V channel are the same thing] welded to the top of the tubing is also structural. The issue of whether the U channel qualifies as part of the aircraft's structure is key because STC SA1008WE states that the fabric must be attached to the structure. For clarification, the U channel is a horizontal narrow elongated U with the open end facing forward and is attached to the horizontal tubing by a vertical member. The fabric is brought forward and glued to the top of the U channel. It is then brought farther forward and looped aft under the top of the channel and glued for at least one inch. He further mentioned that the fabric is not brought back and attached to the horizontal tubing. He also testified that there is a potential risk of water damage if the fabric is placed around the tubing.

[63] The witness was referred to the following paragraph on page 60 of STC SA1008WE, attached to Mr. Tomlinson's Letter of Response (Exhibit M‑8):

Sometimes, you must start front-end cementing on some fairly lightweight fuselage structures, not on nice thick tubes. For example, you might have to begin with the channel that holds the windshield, or in a skylight well. Make absolutely sure you get a good strong bond on these top cabin structures. After all, the slipstream will be constantly trying to peel away these areas. And if the fabric peels here in flight, it can give you serious control problems by blanking out the elevators. No fun at all. [Emphasis in the original.]

The witness agreed that this instruction is consistent with his evidence that the fabric should go across the top and underneath for an inch. The witness also explained that the pinked area shown in Photograph No. 284 of Exhibit M‑9 was applied to the re-enforcing tape, the purpose of which is to prevent fabric chafing.

[64] During cross‑examination, Mr. Coates affirmed that he believes the U channel is part of the structure of the aircraft because it is welded to the tubing. He was asked to read the definition of "structure" in STC SA1008WE (Exhibit M‑8): "Structure in a fuselage is defined as longerons or cross tubes only. Formers and stringers don't count." The witness again stated that the U channel qualifies as part of the structure because it is welded to the cross‑tube, and it is not necessary to attach the fabric to the cross‑tube. The witness stated he was not present during the re-fabrication and could not tell by Photograph No. 284 whether this had been done correctly.

(4) Ronald Douglas Tomlinson

[65] Ronald Tomlinson stated that he is an AME and a pilot with an extensive background in applying fabric.

[66] The witness was presented with his Letter of Response to the Minister (Exhibit M‑8) and the photographs taken by Inspector McFarlane (Exhibit M‑16). He stated that photograph nos. 2, 4, and 5, show a strip of sealant along the top of the windscreen where the separation occurred. Mr. Tomlinson stated that he did not place it there and it was not present at the time of his inspection. He also explained that when he wrote he "did not have as close vigilance" as he would have liked to have had, he meant that he did not do the work on the aircraft himself, referring to the installation of the windscreen, not the fabric. He feels he should have been more hands‑on in the preparation of the windscreen, but he did inspect it prior to and after the installation. He affirmed that the fabric was installed in accordance with STC SA1008WE. In reference to Photograph No. 284 of Exhibit M‑9, Mr. Tomlinson confirmed that the fabric shown in it did not appear to have been pinked with the re-enforcing tape, which was confirmed during his inspection. The witness also stated that he could not tell from the photograph if the fabric had been folded around into the U channel.

[67] Mr. Tomlinson explained that fabric is not wrapped around the tubing because the heat shrinks the fabric and because the wrapping places tension on the fabric, causing the glue on the top channel to separate. He stated that the headliner is glued to the horizontal tubing and the colour of this adhesive is brown. This indicates that an adhesive that is not used for fabrics but for attaching headliners was used in the original aircraft construction. The witness also stated a windscreen cannot be installed if fabric is wrapped around the tubing.

[68] Mr. Tomlinson was asked if he is aware of anyone who had worked on that particular area in the aircraft subsequent to his releasing it. He responded that he does not know why anyone would have done so. He added that based on the photographs supplied by the Minister, it appears that someone did something to the windscreen after it left his shop. His opinion is that sometime afterwards, someone who was not an engineer damaged the area and tried to close off the gap.

[69] Mr. Tomlinson testified that it is only necessary to prepare the surfaces that the fabric attaches to, not the whole airframe. Also, it is important to ensure that there is no corrosion on any part of the airframe. The witness also confirmed with reference to the Minister's exhibit (Photograph No. 284) that the U channel and its support are considered as structure and shown to be welded.

[70] The witness stated he has never been the subject of a violation before and has never been in any circumstance where his work had been placed into question due to an issue with an aircraft.

[71] Under cross‑examination, the witness confirmed that he supervised the whole process, meaning that he explained how to do the work to the owner and inspected it later to ensure it had been done correctly.

[72] Under re-examination, Mr. Tomlinson offered his opinion that the caulking indicates there is a good chance someone worked in the separation area and caused a problem. He also stated that there were many areas on the aircraft where fabric was not attached and did not need preparation, but that those areas where fabric was attached were prepared. He testified that if the area on top of the U channel is compromised, buckling or blisters in the fabric appear. This was not the case during his inspection.

V. ARGUMENTS

A. Minister

[73] The Minister's Representative states that, on a balance of probabilities, Mr. Tomlinson violated subsection 571.11(6) of the CARs.

[74] This subsection was compared to being the captain of a ship: even though someone else performs the work, in the end the captain is responsible. A person signing out on an aircraft must take responsibility for it.

[75] The Minister's Representative maintains that Mr. Tomlinson, who is qualified under the CARs to exercise the privileges of an AME, failed to ensure the work performed by the person installing the fabric was in accordance with STC SA1008WE. C-FKIS had a valid Certificate of Airworthiness on October 8, 2008; Mr. Tomlinson signed off on the aircraft on this date. STC SA1008WE includes a section called "How to Cover an Aircraft Using the Poly‑Fiber System" (Exhibit M‑14). In signing, Mr. Tomlinson effectively agreed that he had complied with all the applicable manuals and directions.

[76] In a letter he wrote to Inspector Markesteyn, Mr. Tomlinson stated he did not apply the same level of vigilance in finishing the work on the aircraft windscreen installation as he would have liked.

[77] Mr. Chursinoff showed photographs that indicated the aircraft fabric had not been installed in accordance with STC SA1008WE.

[78] Mr. Chursinoff performed a forced landing on October 23, 2009, because the fabric above the cockpit separated causing vibrations and control difficulties.

[79] During the subsequent repair of the aircraft, Mr. Chursinoff noticed there was foreign material in the channel where the fabric attached.

[80] Inspector McFarlane's photographs (Exhibit M‑16), taken after the incident, show separation of the fabric from the top windscreen channel.

[81] The Minister's Representative states that three Transport Canada inspectors, one from Enforcement and two from Maintenance, said the fabric was not wrapped around the tubing as required and photographs taken after the forced landing showed the fabric had not been installed as per STC SA1008WE. He submits that the balance of probabilities shows Mr. Tomlinson failed to ensure the fabric had been wrapped around and secured to the top cabin forward structure as required by the STC.

[82] He states that Mr. Tomlinson certified the work, but the evidence shows that the installation was not done to the applicable standards.

[83] The Minister's Representative cites Magill v. (Canada) Minister of Transport, 1998 CAT file no. C‑1631-04 (review), which found that the AME who signs out on an aircraft bears the responsibility of verifying the work. Mr. Tomlinson signed a Maintenance Release form (Exhibit M‑11, the Major Repair Report) on the aircraft for work performed by another person. He did not personally observe the work to the extent necessary to ensure it had been performed to the applicable standards of airworthiness in the CARs. By not confirming that the fabric had been attached to the top windscreen structure as required by industry standards and by the direction in STC SA1008WE, issued to Poly‑Fiber Inc., he violated the CARs.

[84] In deciding on a sanction, mitigating and aggravating factors were considered through reference to the Aviation Enforcement Procedures Manual, TP 3352E. In certain cases, where an infraction has been discovered long after the event, it is still appropriate to impose a suspension. The failure of the fabric installation on the aircraft placed Mr. Chursinoff's life in danger because it caused aircraft control problems and the forced landing.

[85] A suspension reinforces the importance of an AME's responsibility to ensure that a Maintenance Release signed by him in respect of work performed by another person is performed in accordance with the requirements of any applicable standards of airworthiness in the CARs. He requests the suspension be upheld.

B. Applicant

[86] The Applicant's Representative states that, on a balance of probabilities, there is no evidence that the offence occurred. The separation of the fabric a year later does not prove it was not signed out, inspected, or supervised correctly.

[87] He pointed out that the photographs show a separation, but there is no evidence as to what caused it. There is evidence, because of the sealant present, that someone did something to that area of the aircraft and interfered with the work done.

[88] He reviewed the testimony of his AME witnesses who stated the channel across the top is structure and that the installation of the fabric was consistent with STC SA1008WE.

[89] Mr. Tomlinson stated he worked with the person who did the job, supervising and inspecting it. He submits that supervising does not mean standing over someone's shoulder watching every stroke of the paintbrush; it means assigning the job, looking at the job, and inspecting it to ensure that it has been done. He pointed out that an engineer can have many apprentices.

[90] He stated that attaching the fabric by wrapping it around structural tubing is potentially dangerous because it traps moisture and causes corrosion on a component of the aircraft.

[91] He further stated that no expert evidence was submitted that the control problems were a result of the fabric separation. He pointed out there was also a problem with looseness in the stabilizer that could have caused the unscheduled landing. The fact that the fabric failed is not evidence that it was originally installed incorrectly.

[92] He submits that the Aviation Enforcement Procedures Manual is not law and should not guide my decision. He further states that an interpretation of STC SA1008WE, such that every part of the structure has to be prepared to have fabric attached to it, is an unreasonable interpretation; only the part where the fabric attaches needs to be made ready.

[93] Finally, he submits that the preparation was correct, the inspection was complete, and the aircraft was properly signed out.

VI. ANALYSIS

[94] Mr. Tomlinson is a very skilled and respected member of his calling. The testimony of his peers and the positive remarks of the Minister's Representative all support the conclusion that it would be highly uncharacteristic of him to have failed in his responsibilities under the CARs.

[95] The evidence offered by the Minister's Representative is not compelling enough for me to determine that Mr. Tomlinson failed to ensure that the quality of his supervision and inspections did not conform to the applicable standards of airworthiness in the CARs.

[96] I am concerned by the presence of the caulking found at the top of the windscreen after the separation. Mr. Tomlinson stated that this caulking was not done under his watch and that such work would not have left his shop. This suggests that work was performed on this section of the aircraft after the work that had been overseen by Mr. Tomlinson. The Minister's Representative failed to provide any cogent evidence to the contrary.

[97] Furthermore, while Mr. Chursinoff's testimony was interesting, it offered no direct evidence that Mr. Tomlinson failed with respect to personally observing the work to the extent necessary in accordance with subsection 571.11(6) of the CARs.

[98] There was disagreement between the parties with regard to the proper technique used for fabric application. Without concluding which technique is preferable, I note that Mr. Tomlinson's methods were indeed supported in evidence by experienced AMEs. However, it is not the technique used in this instance that is at issue. In the absence of Mr. Breckenridge and the vital testimony he would have provided, especially to the presence of white silicone caulking in the area the separation occurred, I believe it is entirely possible that other work occurred after Mr. Tomlinson's involvement with the aircraft. Accordingly, while it is probable that improper work was done on the aircraft, the Minister's Representative has not proven that Mr. Tomlinson is responsible for it.

VII. DETERMINATION

[99] The Minister has not proven, on a balance of probabilities, that the Applicant, Ronald Douglas Tomlinson, contravened subsection 571.11(6) of the Canadian Aviation Regulations. Consequently, the 21-day suspension set out in the Notice of Suspension is cancelled.

August 22, 2012

Patrick T. Dowd

Member