Decisions

TATC File No. A-4193-41
MoT File No. 5504-86417

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Manan Air Services Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Section 7.7, Aeronautics Act, R.S.C., 1985, c. A-2
Section 706.14 of the Canadian Aviation Regulations, SOR/96-433


Review Determination
J. Ed Macdonald


Decision: January 19, 2017

Citation: Manan Air Services Inc. v. Canada (Minister of Transport), 2017 TATCE 01 (Review)

Heard in: Saint John, New Brunswick, on November 8, 2016

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on a balance of probabilities, that the applicant, Manan Air Services Inc., has contravened section 706.14 of the Canadian Aviation Regulations. The monetary penalty of $3,750 is upheld.

I. BACKGROUND

[1] Transport Canada (TC) alleges that on or about January 28, 2015, at or near Grand Manan, New Brunswick, Manan Air Services Inc. (hereinafter MAS) was the holder of an air operator certificate and did not report to TC any reportable service difficulty related to an aircraft it operated (specifically C-GLLH). Transport Canada alleges that MAS thereby contravened section 706.14 of the Canadian Aviation Regulations (CARs). On December 3, 2015, pursuant to section 7.7 of the Aeronautics Act,the department issued a monetary penalty of $3,750. On January 4, 2016, MAS requested that the Transportation Appeal Tribunal of Canada (TATC) review Transport Canada's decision.

II. STATUTES AND REGULATIONS

[2] Section 706.14 of the Canadian Aviation Regulations (SOR/96-433) provides:

706.14 The holder of an air operator certificate shall report to the Minister, in accordance with Division IX of Subpart 21 of Part V, any reportable service difficulty related to any aircraft that it operates.

[3] Subsection 521.402(1) of the Canadian Aviation Regulations (SOR/96-433) provides:

521.402 (1) Subject to subsection (2), a person who is required to report a service difficulty shall submit a service difficulty report to the Minister within three working days after the day on which the reportable service difficulty is discovered.

[4] Subsection 7.7(1) of the Aeronautics Act (R.S.C., 1985, c. A-2) provides:

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.

III. EVIDENCE

A. Minister

Mr. Patrick Lastere

[5] The Minister called his only witness, Patrick Lastere, who is an experienced aircraft maintenance engineer (AME) and an enforcement investigator with Transport Canada Civil Aviation. Mr. Lastere received a Detection Notice on March 31, 2015 from the Airworthiness department and he was assigned to the investigation on April 7, 2015. The notice was filed as Exhibit M-1 and stated that during the evening of January 22, 2015, a Piper Seneca aircraft (C‑GLLH) suffered an in-flight loss of power on the right-hand engine. The engine was successfully shut down and the propeller was feathered by the pilot-in-command, Mr. P. Sonnenberg. The aircraft was then flown and landed without incident at the Saint John Airport in New Brunswick. The facts are documented in the aircraft journey log book of C-GLLH on page 40. A certified true copy of the log book was collected on February 25, 2015 at the Transport Canada office in Moncton and entered into evidence as Exhibit M-5. A Service Difficulty Report (SDR) is to be reported within three days of the incident.

[6] Mr. Lastere went on to describe the investigation and the advisory documents publicly available for stakeholders to determine whether a malfunction of an aircraft is to be reported. The overall objective of the SDR program is to improve the level of aviation safety. An Advisory Circular (AC), which is used as guidance material for stakeholders, was introduced asExhibit M‑2. The AC is a detailed description of how to enter a Service Difficulty Report. Accompanying this was Exhibit M-3, an SDR logic flow chart (Logic Chart). Mr. Lastere briefly explained how one determines if an SDR is required and that it applied to the incident in question. He reiterated that the SDR program uses the reporting information to improve the level of aviation safety and not to cast blame or fault.

[7] Mr. Lastere stated that the NACIS (National Aviation Company Information System), identifies to the transport world the types of air operator rules. He confirmed that Exhibit M-4 is a printout from the NACIS database that lists Manan Air Services Inc. (trade name Atlantic Charters) as a 703 air operator. It also lists the stakeholders and information on the aircraft, including Melanie Sonnenberg as the accountable executive, and that MAS was a certified air operator.

[8] CADORS (Civil Aviation Daily Occurrence Reporting System) report no. 2015A0165, Exhibit M-6, described the incident that occurred on January 22, 2015. Exhibit M-7, a printout from the Canadian Civil Aircraft Register, determined that C-GLLH was owned by Manan Air Services Inc. The referenced CADORS report was created by the Transportation Safety Board (TSB) a month after the event occurred. Air Traffic Control (ATC) did not create a CADORS report at the time of the event because the pilot-in-command did not declare an emergency. The operator failed to submit a Service Difficulty Report within the three business days as required by CARs 521.402 and CARs 706.14. The report was filed on February 4, 2015 (Exhibit M-8, Service Difficulty Report). Mr. Lastere noted on February 4, 2015 that two aircraft inspectors from TC, on an unrelated inspection at the Saint John airport, noticed aircraft C-GLLH on the ramp with the cowlings open. They spoke to the AMO (Approved Maintenance Operator) and took photos. Later that day, the SDR was filed by Manan Air Services Inc. As the incident took place on January 22, 2015, the report should have been filed within three business days, by January 27, 2015. A last piece of evidence introduced by the Minister was Exhibit M-9, the letter of investigation to Melanie Sonnenberg, issued on July 15, 2015. Subsequently, Mr. Lastere spoke with Paul Sonnenberg regarding the incident and Mr. Sonnenberg admitted it was an oversight on his part.

[9] The witness was cross-examined by Mr. Sonnenberg. He questioned Mr. Lastere on the regulations and the guidance provided by CARs. Mr. Sonnenberg entered the Maintenance Control Manual (MCM) used by Atlantic Charters, pg. 15, as Exhibit A-1. The inference was that the maintenance organization should have filed the SDR. He questioned the witness on the lack of supporting documents in CARs and which service difficulties were considered reportable. The cross-examination did not contradict any of the evidence of the violation.

B. Applicant

Mr. Paul Sonnenberg

[10] Mr. Sonnenberg gave evidence on behalf of MAS. He admitted to the late filing of the SDR. His explanation was that he was unclear of the procedure to report the incident and was not aware of the Advisory Circular or the Logic Chart initially. He found the definition of an SDR very broad and had no prior experience with this issue, and that he had done the best that he could under the circumstances by contacting other people in the industry.

[11] On cross-examination, Mr. Sonnenberg confirmed that he applied for electronic access to the Web-based Service Difficulty Reporting System (WSDRS) on January 29, 2015. He was aware that the responsibility of filing an SDR was on the air operator, according to section 706.14. He did not contact Transport Canada to see if the incident was reportable because he had a poor relationship with TC. He did contact an industry AMO and was advised of the Logic Chart. He stated he was unsure that a power plant, that is not functioning properly, is likely to affect the safety of an aircraft, its occupants or any other person. He stated that the failure of the engine was due to a component and not the engine as a whole.

IV. ARGUMENTS

A. Minister

[12] The Minister's representative submitted that the evidence established all the elements of the violation. Mr. Sonnenberg contravened the applicable section of CARs by failing to submit the SDR within the time limit. The regulations are clear and this is a strict liability offence. He stated the due diligence defence requires that a person exercise all the care and attention that could be legally expected of a person. Mr. Sonnenberg did not have a valid reason for not contacting Transport Canada to determine if a report needed to be filed. TC's overall role is to ensure aviation safety.

[13] With respect to sanction, the Minister's representative submitted that section 706.14 of CARs is a designated offence and provides a maximum fine of $15,000, and that $3,750 is the recommended penalty for a first offence.

B. Applicant

[14] Mr. Sonnenberg admitted responsibility for the offence although he took issue with the complexity of the regulations and guidance materials.

[15] Aviation safety is paramount. Mr. Sonnenberg felt that because he grounded the aircraft, it was not in operation and therefore could not affect safety. An SDR is required by Transport Canada for aviation safety. It is used to monitor trends across the country. It is not meant to lay blame on any individual. TC is looking for data that might indicate an issue related to safety.

V. ANALYSIS

[16] Having heard the evidence and submissions from both parties, it is clear the Minister has proven the offence as alleged. It is very important that operators comply with CARs in the interest of aviation safety. The elements of the violation are as follows and the Minister had the burden of proof to prove each and every one of them:

  • The existence of a failure or malfunction of, or defect in, an aeronautical product (i.e. service difficulty).
  • That the service difficulty affects or is likely to affect the safety of an aircraft, its occupants or any other person (i.e. reportable service difficulty).
  • The alleged violator must be the holder of the air operator certificate, in this instance Manan Air Services Inc.
  • The reportable service difficulty and all needed information were not reported by the air operator within the time limits.

[17] On January 22, 2015, MAS experienced a loss of power on the right-hand engine on a flight from Digby, Nova Scotia, while operating C-GLLH. The engine was shut down, the flight landed in Saint John and the aircraft was grounded. This was recorded as required in the log book. The existence of this malfunction should have been noted in a Service Difficulty Report and filed within three business days (by January 27, 2015) with TC. An SDR is filed when an incident is likely to affect the safety of an aircraft, its occupants or any other person (i.e. reportable service difficulty). Transport Canada, through the WSDRS, maintains a database of all occurrences which could affect aircraft safety. The purpose is to monitor trends in the interest of aviation safety.

[18] The Minister proved that MAS was a 703 air operator at the time and that Paul Sonnenberg was chief pilot and also operations manager. As such, he was responsible for filing the SDR by January 27, 2015. On February 4, 2015, two TC Investigators, while in Saint John on a non-related issue, noticed the aircraft C-GLLH with its engine cowlings open. They spoke with the AMO and took pictures. Later that day, an SDR report was filed by the operator.

[19] Mr. Sonnenberg felt that the CARs rules and supplementary materials were difficult to understand and very broad when it came to determining a reportable service difficulty. When questioned, he admitted he contacted four air industry people to clarify an SDR. He failed to contact TC because of previous experiences but did not elaborate on what they were. Initially, up until the cross-examination, he maintained that three broken studs on a cylinder did not constitute a malfunction of an aeronautical part. An engine shut down is definitely a safety concern. He also maintained that the aircraft was grounded, so it did not affect safety; however that is not the intent of service difficulty reporting. On January 29, 2015, he requested a login from TC for the WSDRS. He admitted knowing that he was responsible for filing the SDR. None of these arguments showed that he had exercised due diligence to prevent the contravention, nor was there any evidence that an SDR had been filed by another person or organization (as per section 521.403 of the CARs).

[20] Transport Canada is responsible for enforcing legislation that protects air safety. There are rules and regulations that must adhered to and there must be clear consequences for not reporting incidents such as this in the appropriate manner.

[21] All elements of the violation were proven. Mr. Sonnenberg gave no evidence that he exercised due diligence to prevent the contravention.

[22] I see no reason to interfere with the penalty assessed by the Minister.

VI. DETERMINATION

[23] The Minister of Transport has proven, on a balance of probabilities, that the applicant, Manan Air Services Inc., has contravened section 706.14 of the Canadian Aviation Regulations. The monetary penalty of $3,750 is upheld.

January 19, 2017

(Original signed)

James E. Macdonald

Member