Decisions

TATC File No. Q-4133-27
MoT File No. 5015-18401

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jonathan Patterson, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A-2
Standard 573.02 of the Canadian Aviation Regulations, SOR/96-433


Review Determination
Patrick T. Dowd


Decision: October 5, 2015

Citation: Patterson v. Canada (Minister of Transport), 2015 TATCE 18 (Review)

Heard in: Montreal, Quebec, on July 28, 2015

REVIEW DETERMINATION AND REASONS

Held: The Minister has proven, on a balance of probabilities, that the scope of work described in the applicant's proposed Maintenance Policy Manual does not fall into the categories specified in Canadian Aviation Regulations Standard 573.02 for an Approved Maintenance Organization.

I. BACKGROUND

[1] A letter dated March 26, 2015 from the Minister of Transport (Minister) was mailed to the applicant, Mr. Jonathan Patterson, advising that an application for an Aircraft Maintenance Organization (AMO) certificate for his company, Aeroprivy Inc., was denied because the scope of work described in his proposed Maintenance Policy Manual (MPM) did not fall into the categories specified in Canadian Aviation Regulations (CARs) Standard 573.02.

[2] By way of clarification, the CARs contain two standards, in section 571.02 and in Standard 625. Both contain a list of work that may be performed by an aviation company. Standard 571.02 covers work that must have a maintenance release signed by an Aircraft Maintenance Engineer (AME) whose licence is endorsed on that particular aircraft system, for instance avionics. Standard 625, Appendix A, describes elementary work not requiring an AME's signature, for instance, work performed by an aircraft owner or company servicing an aircraft, such as refueling, adding oil, changing sparkplugs or repairing upholstery, etc. Since Aeroprivy only specified elementary work in its MPM, the Minister was unable to issue an AMO certificate to the applicant.

[3] On March 30, 2015, the applicant requested a review of the Minister's decision by the Transportation Appeal Tribunal of Canada (Tribunal).

II. LEGISLATION, STATUTES AND REGULATIONS

[4] Paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A-2, states:

6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

[…]

(b) the applicant or any aircraft, aerodrome, airport or other facility in respect of which the application is made does not meet the qualifications or fulfil the conditions necessary for the issuance or amendment of the document; or

[…]

[5] CARs Standard 573.02, AMO Certificates, states:

(1) An AMO Certificate is issued with ratings in one or more of the following categories:

(a) Aircraft;

(b) Avionics;

(c) Instrument
(amended 2001/06/01)

(d) Engine;

(e) Propeller;

(f) Structure;

(g) Component;

(h) Welding; and

(i) NDT [nondestructive testing].

[6] CARs Standard 625, Appendix A (1) and (14) state:

Elementary Work Task Listings

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

[…]

(14) repair of upholstery, trim and cabin furnishings

[…]

III. EVIDENCE

A. Minister

(1)       Mr. Francesco Perrone

[7] Mr. Francesco Perrone is employed as an aviation safety inspector with Transport Canada's Montreal office. The witness has a significant background in civil aviation.

[8] The witness introduced, explained, and clarified Exhibit M-1, the applicant's application for an AMO certificate, Transport Canada's form 24-0070E.

[9] In section 5 (Ratings) of this form, the applicant checked “Other”. In section 6 (Details Regarding Ratings Requested), he entered “Re-upholstery”, which is an elementary task. Mr. Perrone explained that “Other” meant tasks in addition to the tasks already checked.

[10] Exhibit M-2, the applicant's MPM, was entered into evidence by Mr. Perrone. Reference was made to Section 2, Scope of Work, on page 6 of the document. This page indicated an offer of elementary tasks only.

[11] Transport Canada's Progress Record of Aeroprivy's application for an AMO certificate was reviewed and entered as Exhibit M-3. This document shows the various meetings between the applicant and Mr. Perrone, who advised the applicant during these sessions that their MPM only indicated elementary work. In a meeting on March 2, 2015, Mr. Patterson stated he wished to do complete interiors, moving into the area of CARs Standard 573.02. Mr. Perrone advised that an AME would be required to sign a maintenance release, and a place of business would also be needed. These meetings accomplished very little, and after attempting to contact the applicant on two separate occasions, Mr. Perrone issued the letter of refusal (Exhibit M-4), resulting in the request for a hearing by the applicant.

[12] During these meetings, the name of an AME was offered by the applicant. Mr. Perrone determined the individual was asked but not hired. To issue an AMO certificate in this situation, the AME would be responsible for maintenance as a PRM (Professional Risk Manager) and would be required to undergo an interview and possibly an examination. When the person named by the applicant was contacted, he stated he was not interested.

[13] Mr. Perrone, during the hearing, stated the refusal was not final and he was willing to help the applicant obtain an AMO certificate.

Cross-examination

[14] Mr. Camilo Oliveros, the accountable executive for Aeroprivy, cross-examined Mr. Perrone on behalf of the applicant.

[15] Mr. Perrone's cross-examination clarified two misconceptions by the applicant. The applicant believed “person” as used in the CARs referred only to an individual. Mr. Perrone explained that a corporation, in law, was also a person. The applicant held the belief that the use of the term “fabric patches” in CARs Standard 625, Appendix A (1), placed him outside the term “elementary work” because Aeroprivy was repairing upholstery with patches larger than 15 cm. The patches referred to was fabric used on aircraft's control surfaces.

[16] The witness was queried as to the use of the term “Other” on application form 24-0070E for an AMO certificate. The applicant felt “Other” was a standalone term that would include the activities of Aeroprivy. The witness stated this term was to be used only in conjunction with other tasks checked on the application.

[17] The applicant challenged Mr. Perrone, stating he, and Transport Canada Inspector Cynthia Harrison, informed him they would issue an AMO certificate to Aeroprivy. The witness responded that the applicant must have misunderstood because it would be impossible, under the CARs, to do this.

B. Applicant

(1)       Mr. Jonathan Patterson

[18] Mr. Jonathan Patterson, sole owner and applicant, was the only witness called to testify. on behalf of his application. He introduced nine exhibits to the Tribunal. Mr. Patterson's evidence consisted almost entirely of reading excerpts from these exhibits into the record.

[19] Exhibit A-1 was an email from Inspector Harrison, clarifying the requirements to be eligible for an AMO certificate. This exhibit was a forerunner intended to lead to the applicant's next exhibit, his Letter of Intent.

[20] Exhibit A-2 was a letter of “Intent to Rent” given to Transport Canada to satisfy section 2 of the aforementioned email from Inspector Harrison. This exhibit showed an intended agreement to rent a property at Red Deer Airport. The letter was not accepted by Transport Canada.

[21] Exhibit A-3, Scope of Work, taken from page 6 of their MPM, was introduced to show that the applicant was very serious concerning safety. Paragraph 1 of the document outlines the intentions of the applicant toward this goal.

[22] Exhibits A-4 to A-7 covered areas under the Bilateral Air Safety Agreement (BASA). These exhibits were not applicable to the issues under consideration at this hearing.

[23] Exhibit A-8 resembles a mission statement by Transport Canada. The areas highlighted by the applicant were read into the record as follows:

Our Role…Our programs help make Canada's economy strong by creating jobs and attracting business, trade and tourism.

[24] The applicant made no comment on this exhibit. I would surmise that he felt Transport Canada did not follow this philosophy in the handling of the application.

[25] Exhibit A-9, Transport Canada's Civil Aviation Guidelines, was only applicable to an air operator's Maintenance Control Manual. Since Aeroprivy is not, and not intending to become, an air operator, this exhibit has no weight in this matter.

C. Minister

[26] In response to the applicant's examination in chief, Minister's counsel, Mr. Gavin Wyllie, recalled his witness, Mr. Perrone, to rebut the applicant's evidence.

[27] The applicant's Letter of Intent (Exhibit A-2) was raised. This letter was rejected by the Minister because it was not signed by either party and was not binding.

IV. ARGUMENTS

A. Minister

[28] Mr. Wyllie reviewed the applicable legislation, the exhibits, and his witness' evidence to support the Minister's refusal to issue an AMO certificate to the applicant. Mr. Wyllie also reviewed a comment issued from the applicant regarding the three-hundred-dollar fee he paid for the certificate. Mr. Wyllie explained the fee was an administration cost for processing the application, not a purchase price. Transport Canada had reviewed the applicant's MPM, which was submitted after the application for the AMO certificate was made and found to be insufficient. This concluded the Minister's presentation.

B. Applicant

[29] Mr. Oliveros presented the closing argument for the applicant. He used this opportunity to outline the company's abilities, competence, and dedication to safety.

V. ANALYSIS

[30] Transport Canada is the trustee of aviation safety in Canada. To satisfy this trust, it must rigidly enforce those aviation regulations that deal with the airworthiness of an aircraft, its components, and those corporations and individuals who are authorized to release these aircraft for operational service. Transport Canada was not being difficult to the applicant to thwart its ambitions by refusing to issue the applicant an AMO certificate, pursuant to the CARs. However, the refusal of the certificate is not final or permanent. Mr. Perrone stated Transport Canada would be more than willing to assist and guide the applicant through the application process. Rather, the Minister's refusal was based on the applicant's MPM failing to reflect the scope of work specified in Standard 573.02. I therefore agree that the Minister exercised authority appropriately in refusing to issue an AMO certificate to the applicant under Standard 573.02 of the CARs.

[31] The principals of Aeroprivy, Mr. Patterson and Mr. Oliveros, are two conscientious businessmen dedicated to the future of their company. They feel strongly that the practices of their company and its dedication to safety warrant the issuance of an AMO certificate. I believe their misunderstanding and misinterpretation of the CARs, coupled with their desire to increase the status of Aeroprivy by obtaining an AMO certificate, contributed to the anxiety that precipitated this hearing.

VI. DETERMINATION

[32] The Minister has proven, on a balance of probabilities, that the scope of work described in the applicant's proposed Maintenance Policy Manual does not fall into the categories specified in Canadian Aviation Regulations Standard 573.02 for an Approved Maintenance Organization.

October 5, 2015

Patrick T. Dowd

Member