Decisions

CAT File No. C-1028-04
MoT File No. RAP 6504-P361379-026063

CIVIL AVIATION TRIBUNAL

BETWEEN:

David Norman Loewen, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s.6.9
Air Regulations, C.R.C. 1978, c. 2, s. 221

Limitation Period, Unlawful Certification, Defenses, Due Diligence, Certification of Airworthiness


Review Determination
Gavin W.C. Brown


Decision: October 5, 1995

I confirm the Minister's decision to suspend Mr. David Norman Loewen's Aircraft Maintenance Engineer Licence (M361379) for a period of fourteen days. Said suspension shall take effect on the fifteenth day following service of the present Review Determination.

The Review Hearing on the above application was held Friday, August 25, 1995 at 10:00 hours, at Canada Place, in the City of Edmonton, Alberta.

BACKGROUND

On March 9, 1995, Transport Canada informed the Applicant, David Norman Loewen, by Notice of Suspension signed by D.J. Peever, Regional Director, Central Region of the following:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document (Aircraft Maintenance Engineer Licence - M361379) on the grounds that you have contravened the following provision(s):

Air Regulation 221 in that on or about December 9, 1991 at or near Villeneuve, Alberta you did unlawfully certify an aircraft to wit a Piper PA28-180, bearing Canadian Registration Marks C-FGPO, as released for return to service when the applicable standards of Airworthiness had not been complied with, more specifically:

  1. The requirements of Chapter 571.207(a) of the Airworthiness Manual were not complied with, namely the secondary damage to the fuselage channel P/N 62411-02 resulting from the right hand wing impact damage incurred on June 25, 1991 was not inspected and replaced prior to the aircraft's certification on December 9, 1991.
  2. The P/N 96610-07 skin replaced on the right hand wing was "special work" pursuant to the Airworthiness Manual Chapter 571 Appendix "F" item (2). The replacement of this skin was not certified by an appropriately rated "Approval Maintenance Organization" prior to the certification of the aircraft.

Mr. Loewen made application to the Civil Aviation Tribunal for a "Stay of Suspension" in respect of the above contravention. On April 13, 1995, Mr. Bruce Pultz, Vice-Chairperson of the Civil Aviation Tribunal, determined the following:

That a stay of the said suspension be granted until the Review Hearing consideration and determination.

This Review Hearing centres on Transport Canada successfully proving that Mr. Loewen, in his authority as a licensed Aircraft Maintenance Engineer, did sign out Piper PA28-180, aircraft C-FGPO as airworthy, knowing that the aircraft did not meet the applicable standards of airworthiness.

THE LAW

Section 221 of the Air Regulations reads as follows:

221. No person shall certify an aeronautical product or a component as airworthy or serviceable, or certify an aircraft as released for return to service, unless the applicable standards of airworthiness have been complied with.

For clarification purposes I include the following definition:

"standard of airworthiness" means, for the design, manufacture or maintenance of an aeronautical product, the description, in terms of a minimum standard, of the properties and attributes of the configuration, material, performance or physical characteristics of that aeronautical product and includes the procedures to ascertain compliance with or to maintain that minimum standard, as set out in the applicable parts of

(a) the Airworthiness Manual ... (Air Regulations, Part I, subsection 101(1))

MOTION TO QUASH

On August 24, 1995, the day before this Hearing, Mr. Johnson, legal counsel for Mr. Loewen, filed (via fax) a letter to the Tribunal and the Minister stating he intended to introduce a preliminary application before the Civil Aviation Tribunal at this Hearing to quash the proceedings. Following an opening statement from the Tribunal Member at the Hearing, Mr. Johnson introduced his motion to quash.

Mr. Johnson presented the Tribunal Member and the Minister's Representative with a large volume of documentation from the Aeronautics Act (pages 23 to 43 inclusive), SOR/89-117 with an attachment called the "Regulatory Impact Analysis Statement," SOR/92-287 and section 221 of the Air Regulations. He started by referring to sections 7.6 and 7.7 of the Act which refer to a "designated provision" and the fact that a monetary penalty shall not exceed one thousand dollars. Then we were referred to section 26 which states a time limit of twelve months from when proceedings arose may not be exceeded. According to Mr. Johnson, the Minister is time barred from this case because of the certification occurring in 1991.

SOR/89-117, which was passed by Parliament is, according to Mr. Johnson, an attempt by the Minister to raise additional revenues for the government and to allow an individual who has a fine levied against him to avoid incurring large expenses for his defence of the fine in court by paying the fine. Further, he said that if Parliament passed the "designated provisions" which the Minister is bound to follow as well as the time limitations (12 months) then the Minister may not circumnavigate Parliament by stepping outside of the time limitations, by going back further at his choice. The time limitation is in place for a reason. No one, including the Minister may exceed that limitation. Therefore, the Minister is time barred from these proceedings, and the Tribunal does not have the right to hear this case.

The Minister's representative, Mr. Pratt, then countered Mr. Johnson's arguments. First, he said Mr. Johnson is correct. Section 26 of the Aeronautics Act does impose a twelve-month time limitation on sections 7.6 to 8.2 of the Act. However, Mr. Loewen was charged under section 6.9 of the Act.

Secondly, there is no doubt that section 221 of the Air Regulations is a "designated provision" and that the Minister has the right to proceed under section 6.9 of the Act which is not time limited. This issue was before the Civil Aviation Tribunal in 1987 in the case of La Ronge Aviation Services Ltd. and Minister of Transport (CAT File No. C-0029-10) which was appealed to the Federal Court of Appeal (a copy of the Appeal Determination and the Federal Court Decision was presented to all). Mr. Pratt indicated this decision clearly states that the Minister has the right to proceed under section 6.9 of the Act, assigning a suspension, without the time limitations which apply to sections 7.6 to 8.2 of the Act.

Thirdly, Mr. Pratt raised the Charter issue from Mr. Johnson's letter of August 24, 1995. This point may not be brought before the Tribunal today. He stated that there is an Act called the Constitutional Question Act of Canada which directs an applicant to contact the Solicitor General of Canada in advance, when a Charter issue is to be brought before a Federal proceeding. Mr Johnson did not do this.

Finally, we come to the issue of time limitations. Mr. Loewen was notified within five months from the time when the defect was found. In the case of maintenance violations it is not uncommon for years to pass between the time when "shoddy maintenance" was carried out, until it is detected in a subsequent inspection. This time lapse may be due to how an aircraft is used (flown), or the aircraft may be parked for extended periods of time causing these delays between inspections.

In a redirect examination, Mr. Johnson raised the issue that SOR/89-117 was put in place by Parliament after the Justices had given their decision in the La Ronge case. Because of this they were not aware of the changes SOR/89-117 made to the Act; therefore, we today cannot use the case of La Ronge Aviation Services Ltd. and Minister of Transport following these changes to the Act.

Mr. Pratt on behalf of the Minister pointed out that SOR/89-117 did not change the "Designated Provisions Regulations," but only amended the Act. The Act itself has been in place since May 29, 1986. The amendment made to the Act pertained to increasing the monetary fine amounts and renumbering of the sections of the Act. None of these changes would have affected the decision of the Justices of the Federal Court in the La Ronge case.

After hearing these two positions on the motion to quash, I offered the following observations before rendering my decision. I proceeded by pointing out in Mr. Johnson's letter to quash these proceedings that the statements in his first point 1a) to e) are all true statements with which I agree.

Mr. Johnson's second point and a great part of his verbal argument pertained to sections 7.6 to 8.2 of the Aeronautics Act which deal only with monetary fines and do not mention suspensions. I cannot accept his argument that these sections apply when Mr. Loewen was charged under section 6.9 of the Act (it is interesting to note that Mr. Johnson supplied copies of section 6.9 in his 20-page copy of the Act but never made mention of it in his presentation). As well, the time limitation of twelve (12) months only applies to sections 7.6 to 8.2 of the Act. Section 6.9 is the Minister's alternate method of imposing a penalty on an individual when he cannot proceed using sections 7.6 to 8.2. By using section 6.9 there is no time frame restriction. I wholeheartedly agree with Mr. Pratt that the Civil Aviation Tribunal is not the venue to debate the "Charter of Rights and Freedom". As a legal counsel, Mr. Johnson should be well aware he must notify the Attorney General of Canada and all the Provinces ten days in advance of the debate of the Charter in accordance with the Federal Court Rules. Further, it is my opinion that the La Ronge Aviation Services Ltd. and Minister of Transport (CAT File No. C-0029-10) decision from the Federal Court does still apply, and that decision answers all of Mr. Johnson's questions.

I rejected the motion to quash and proceeded with the Hearing.

EXHIBITS

Ten items were placed as evidence from the Minister. Item M-8, the rear follow through spar, an actual part from aircraft C-FGPO (size approximately four feet long by one foot in width), was presented. Because of its size, a twelve-picture roll of photos was taken of this part and kept as evidence. Mr. Verklan, owner of C-FGPO will retain the rear follow through spar in its present condition should it be required at an appeal. Counsel for the Applicant entered two items as evidence.

Exhibit M-1: Copy of the Certificate of Registration (C of R) showing Ville-Tech Inc. as the owner of C-FGPO

Copy of the C of R showing Tim Verklan as the owner of C-FGPO

Copy of the Certificate of Transfer of Ownership

Exhibit M-2: Copy of seven (7) pages from the Technical Logbook for C-FGPO

Exhibit M-3: Copy of ten (10) pages from the Journey Logbook for C-FGPO

Exhibit M-4: Copy of Piper Aircraft Manual for wings and fittings

Exhibit M-5: Copy of Airworthiness Manual, Chapter 571

Exhibit M-6: Photos numbered 1-12 of C-FGPO in its damaged state in 1991 (#1, #8 and #10 in particular)

Exhibit M-7: Transport Canada Airworthiness - Aircraft Inspection Report, dated July 8, 1991 for C-FGPO

Exhibit M-9: Copy of Offer to Purchase for C-FGPO from Seller, Watson to Purchaser, Verklan, dated August 3, 1993

Exhibit M-10: Copy of Conformity Certificate from Elite Aero Ltd. for C-FGPO, dated September 8, 1994

Exhibit D-1: Copy of two invoices #1153 and #1172 from D & D Aircraft Repair Inc. to Ville-Air for repairs to C-FGPO

Exhibit D-2: Copy of 1000-hour Inspection Report for C-FGPO, dated December 9, 1991

THE FACTS

The Applicant, Mr. David Norman Loewen, worked as a chief engineer for Ville-Tech Inc., an aviation sales and training facility located at Villeneuve, Alberta in 1991. The aircraft in question, C-FGPO, Piper PA28-180 was used in the training school. In June of 1991 C-FGPO was involved in a training accident at Slave Lake, Alberta. The aircraft was patched up in Slave Lake and ferried (ferry permit issued) to Villeneuve for complete repairs. All repairs and inspections completed in Villeneuve were under the signature of Mr. Loewen, as chief engineer, including the certifying for the Certificate of Airworthiness (C of A) on December 9, 1991.

Subsequently, on August 3, 1993 Mr. Tim Verklan bought C-FGPO from Ville-Tech Inc. (Bill and Stephen Watson). The following year when Mr. Verklan required the annual inspection to be carried out on C-FGPO by a Mr. McBain, a licensed AMO in Nipiwan, Saskatchewan, a wrinkle (damage) and a crack were found in the rear follow through spar. Mr. McBain, not "S" licensed, called in Mr. Cochrane of Elite Aero Ltd., Prince Albert, Saskatchewan, who is "S" licensed to assess the damage. The spar had to be replaced at Mr. Verklan's cost. Mr. Cochrane, in the normal process of completing the repairs, contacted Transport Canada in Saskatoon to see if they had a copy of the Conformity Certificate for C-FGPO when it was repaired in 1991, as there was no certificate in the logbook. Transport did not have the certificate and no other was found; therefore, the aircraft was grounded until Mr. Cochrane's Company completed all of the checks required to complete a new Conformity Certificate. This included removing the wing, replacing the rear spar, die checking the wing mounts, reinspecting the previously uncertified repairs done on the wing (which was acceptable) and reassembling the aircraft.

The position taken by the Minister is the damage to the rear follow through spar occurred when the aircraft was involved in the training accident in 1991. When Mr. Loewen certified the aircraft as airworthy in December 1991, he stated the damage to the rear follow through spar now in question was not present at that time. Both sides called numerous witnesses to defend their positions. I will relate these testimonies as briefly as possible.

Mr. Pratt called Inspector Don Hiscock as a witness. Through Inspector Hiscock, Exhibits M-1 to M-8 were introduced as evidence. Time was spent explaining the entries in Exhibits M-2 and M-3, Technical and Journey Logbooks (copies) for C-FGPO pertaining to various inspections that were carried out and signed by Mr. David Loewen and a Mr. William Watson. In particular Mr. Loewen signed C-FGPO out, following the repairs from the training accident, on December 9, 1991 following completion of a 1000-hour inspection, again on March 16, 1992 following a 100-hour inspection, and for the August 27, 1993, 1000-hour inspection, prior to the sale of the aircraft to Mr. Verklan, Mr. Watson signed the inspection. Exhibit M-5 was introduced as evidence pointing out the requirement for a signature of the appropriately licensed engineer when "specialty work" is required during major repairs. In this case, the old "B" licence now called an "S" licence or by an Approved Maintenance Organization (AMO), which Ville-Tech Inc. was not, nor was Mr. Loewen "S" endorsed.

Exhibit M-6 , a series of 12 photos in particular photos #1, #8 and #10, was entered showing the damage to the right-hand wing tip of C-FGPO from the training accident in Slave Lake, Alberta in June 1991. Exhibit M-8, the actual rear follow through spar, was presented. (At this point, Mr. Johnson, counsel for the Applicant, who was seated directly across the table from Mr. Pratt, commented that he had no trouble seeing the damage on the spar from where he was seated.) It was wrinkled with a one inch approximate crack starting at the wrinkle and projecting upwards.

Cross-examination of Inspector Hiscock by Mr. Johnson brought forth the following explanation of what the word "dual" beside an engineer's signature in a logbook means, power plant and/or flight controls have been removed, and it requires two signatures to sign the aircraft off to verify everything has been reinstalled properly and is working correctly. Mr Johnson made the point with Mr. Hiscock that during the 1000-hour inspection of August 1993, the rear follow through spar should have been inspected, and if any damage was found it should have been repaired at that time. Mr. Hiscock agreed, if a proper inspection was done, that would be the normal assumption. From the logbook for the 1000-hour inspection of December 9, 1991, Mr. Hiscock could not verify that Mr. Loewen completed all of the inspection himself, but he did sign the logbook for the inspection, thereby accepting the responsibility that all of the procedures for the inspection had been completed properly.

From further questioning by Mr. Johnson, Mr. Hiscock explained that the amount of damage to the wing tip and the amount of repair required indicate the amount of stress transferred through the wing spars would logically cause damage to the fuselage and that area should have been inspected, namely the rear follow through spar. To Mr. Johnson's question, could this damage have come from a hard landing?, Mr. Hiscock replied definitely not. A hard blow to the front of the wing tip causing a backwards direction would cause this type of damage. A hard landing causes an upward direction force causing damage to the top of the wing and other areas.

Mr. Johnson asked whether there was any difference between the various Regions of Transport Canada in the interpretation of the Airworthiness Manual, to which Mr. Hiscock responded he believes all Regions interpret the Airworthiness Manual in the same manner. Mr. Johnson's final question pertained to who may sign out "special work" regarding structural repairs, to which Mr. Hiscock stated a structural licensed engineer may work for an AMO who also has the structural endorsement, or any other endorsed engineer may do structural work under the supervision of the structural endorsed AMO who has to sign for the completed work.

Mr. Pratt then called his next witness, Mr. Pat Parsonage, who holds three different "M" licence endorsements and an S-33 (structural) for skin repair work. He worked for Transport Canada, in the Airworthiness Division, during the fall of 1991. Mr. Parsonage carried out an audit on Ville-Tech Inc. as they were seeking approval as an AMO, which was not given at the time, nor were they subsequently approved. In the process of this audit, Mr. Parsonage carried out an inspection of C-FGPO as it was in various pieces on the floor of the hangar. He took all 12 photos (Exhibit M-6) and filled out an Aircraft Inspection Report on C-FGPO (Exhibit M-7) during the audit.

With Mr. Pratt referring to photos #1, #8 and #10 of Exhibit M-6, in his capacity as a highly qualified structural engineer, Mr. Parsonage stated with this type of damage to the wing tip, it would definitely cause collateral damage, compression on the rear follow through spar. When further asked if a hard landing would cause this type of rear follow through spar damage, his response was no, the wing would receive the damage from a hard landing, not the fuselage.

Upon inspection of the actual spar, Exhibit M-8, Mr. Parsonage commented that, if this spar had not been replaced, the damage would have eventually resulted in complete failure of this rear follow through spar which could lead to the possible loss of the wing. Mr. Parsonage confirmed that in the normal process of completing 100 and 1000-hour inspections, the engineer is required to check this rear follow through spar. From the type of wing tip damage indicated in the photos, as a highly qualified structural engineer, Mr. Parsonage would automatically assume damage to the rear follow through spar. With no other evidence of an accident to C-FGPO after the June 1991 one, via an entry in the logbook, Mr. Parsonage stated the wing tip damage definitely caused the rear follow through spar damage.

In cross-examination by Mr. Johnson, Mr. Parsonage was asked why he did not inspect C-FGPO for collateral damage to the rear follow through spar at the time of the Aircraft Inspection Report (Exhibit M-7)? Mr. Parsonage responded the inspection was carried out on the aircraft as it sat in various stages of disassembly. He felt he did not have to investigate further because Transport Canada places a certain amount of trust in the engineer or maintenance facility completing the repairs, to do a complete and thorough inspection of all required repairs.

Mr. Johnson discussed the transition period Transport Canada went through in 1991 when it started authorizing AMOs. Mr. Parsonage acknowledged the occurrence of this transition period. However, Ville-Tech Inc. was not granted an AMO designation. When questioned about which type of licensed engineer may sign out structural repairs, Mr. Parsonage was quite explicit, if the repair facility is an AMO approved for structural repairs, the AMO may sign it off. If the AMO is not approved for structural repairs, then an "S" licensed engineer must sign off the structural repairs, and an "M" licensed engineer can sign off the balance of the work.

On further review of Exhibit M-6 photos, Mr. Parsonage re-iterated the wing tip damage would cause compression damage to the rear follow through spar, which he says is verified by the simple laws of physics. Applying a force on the front leading edge of a wing tip transfers the tension load from the front spar to a compression load on the rear spar which transfers to the follow through spar. When asked about the hard landing scenario by Mr. Johnson, he replied the forces from a landing are directed in a different direction than the forces from a wing tip strike.

When questioned about the 100 and 1000-hour inspections, Mr. Parsonage stated the rear follow through spar gets inspected, and the damage should have been found and repaired at that time. The entry of December 9, 1991 in the logbooks (Exhibits M-2 and M-3) for C-FGPO was felt by Mr. Parsonage to be "non-statement" because it did not explain what repair work had been done, i.e. part numbers and station numbers repaired. In other words the stated repairs had been completed, but the entry said nothing.

Mr. Johnson proposed a hypothetical question of what would Mr. Parsonage do on a pre-purchase inspection when the logbook showed wing tip damage repairs had been completed on the aircraft. Mr. Parsonage commented that if the repairs were completed and everything looked normal externally, he may ask some questions about the damage but would not inspect the rear follow through spar provided the repairs were signed out properly.

In a re-direct from Mr. Pratt, Mr. Parsonage commented that prior to 1991 structural engineers were called "B" licences and after 1991 they became "S" licences; however, the qualifications remained the same. Once again Mr. Parsonage reiterated the basic laws of physics about forces applied to the wing tip causing collateral damage to the rear follow through spar. From Exhibit M-2, Technical logbook, Mr. Parsonage pointed out no entry had ever been made telling of the accident and damage to C-FGPO in June 1991.

Mr. Pratt then called Mr. Tim Verklan as a witness. Mr. Verklan purchased C-FGPO in August 1993 from William and Stephen Watson. Prior to the aircraft being flown to Nipiwan for acceptance, he had never seen the aircraft. On Exhibit M-9, Offer to Purchase, he insisted on adding line 5: Aircraft to have a current C of A. He believed that if a C of A inspection was completed and signed for, the aircraft should not have any form of mechanical problems (insinuating a very strong trust in the engineer performing the C of A inspection). However, Mr. Verklan did arrange for his own engineer, Mr. Douglas McBain, to carry out a pre-purchase inspection.

In Mr. Verklan's words this inspection was mainly a cursory look at the external parts of the aircraft, looking for visible structural damage, of which none was found. This was followed by a more comprehensive look at the engine and exhaust muffler as Piper aircraft are prone to problems in this area, again externally, no cowlings removed. This inspection took approximately 30 - 60 minutes to complete, and Mr. Verklan was with Mr. McBain as he carried out the inspection. The purchase of the aircraft was concluded by early evening, and Mr. W. Watson flew into Nipiwan in another aircraft to pick up Mr. S. Watson and companion.

Mr. Verklan flew 75 hours on C-FGPO over the next year, during which time he testified he did not have an accident or make a hard landing, nor did he pull the aircraft through any snow banks. When it was due for its 100-hour annual inspection, the aircraft was taken to Mr. McBain. In the course of the inspection the damage to the rear follow through spar was found. Mr. Verklan contacted Mr. W. Watson about the spar. Mr. Watson claimed no knowledge of the damage to the spar and stated that it must have happened since Mr. Verklan owned the aircraft. The repair bill for Mr. Verklan was approximately $5,000.00. Mr. Verklan is contemplating civil action against Messrs. W. & S. Watson and Mr. D. Loewen. This issue has absolutely no bearing on this Hearing but, because it was raised twice in the Hearing, I felt I should make mention of it. Mr. Pratt confirmed once again that, while Mr. Verklan has owned C-FGPO, it had not experienced any hard landings. He had not towed it through snow banks, nor had any vehicle hit it nor had it ever hit a hangar while taxiing.

Mr. Johnson cross-examined Mr. Verklan by asking if he was aware of the June 1991 accident to C-FGPO. Mr. Verklan confirmed the only accident he was aware of to C-FGPO was the prop strike, prior to his purchase. He was aware the engine had been removed, checked out, re-installed and a new prop put on the aircraft from the prop strike accident. Mr. Verklan could not remember who insisted on the pre-purchase inspection, whether he or Mr. Watson did. Through further questioning from Mr. Johnson, Mr. Verklan confirmed that Mr. S. Watson flew the aircraft to Nipiwan for the pre-purchase inspection and that later in the day Mr. W. Watson flew in to pick up Mr. S. Watson and his companion.

Mr. Verklan confirmed that during Mr. McBain's inspection the seats were not removed from the aircraft. Mr. McBain was aware of the prop strike prior to the inspection. He checked out the logbooks for Mr. Verklan and found no faults. Mr. Johnson asked when the rear spar damage was found the following year did Mr. Verklan question Mr. McBain about why he had not inspected this area during the pre-purchase inspection? To which Mr. Verklan replied no, why should he have. He had faith in the engineer who performed the C of A inspection, completing a proper and thorough inspection of the whole aircraft. In response to a question Mr. Verklan stated neither of the Watsons had told him about any wing damage to C-FGPO. Mr. Verklan keeps C-FGPO parked at the tie down area of the Nipiwan airport were there is no security, and the airport is open to the public, the same as most airports of that size. A final question from Mr. Johnson pertained to whether or not Mr. Verklan has ever had C-FGPO up on jacks to which his reply was he had never had it on jacks.

Mr. Pratt then called Mr. Douglas McBain as a witness. Mr. McBain runs an AMO facility at Nipiwan airport. Neither he nor his AMO are structurally endorsed. Mr. McBain looks after the maintenance requirements for Mr. Verklan on C-FGPO. It was during the 100-hour annual inspection that his apprentice found the problem with the rear follow through spar. Because he is not structurally endorsed Mr. McBain called in Mr. Ron Cochrane from Elite Aero Ltd. in Prince Albert to examine the damage. Upon inspection the decision was made to replace the spar, and the aircraft was ferried to Prince Albert for repairs because Mr. McBain did not have the time to complete that type of repair and then have it checked by Mr. Cochrane as the structural engineer.

According to Mr. McBain the pre-purchase inspection took 30 - 45 minutes. It was a cursory inspection not a thorough one. He checked for external visible damage and in the engine compartment for mounts and muffler installation. Mr. McBain confirmed prior to this inspection no mention had been made about the aircraft having had wing tip damage; however, it was discovered from the small entry he found in the logbook. The wing had been repaired and looked fine now. Mr. McBain was aware of the prop strike prior to this pre-purchase inspection, but he was not aware that a C of A inspection had just been done on the aircraft. During the normal course of his work Mr. McBain saw C-FGPO at its tie down location three to four times a week as he passed by it. He had never seen any damage done to the aircraft nor had Mr. Verklan reported making any hard landings to him.

In cross-examination by Mr. Johnson, Mr. McBain was asked if he knew what was meant by "specialty work" when it was done on an aircraft. Mr. McBain stated he was aware of what "specialty work" is and that if he saw this type of work completed on an aircraft it would not bother him, because he would assume the work was carried out properly. Mr. Johnson asked what did Mr. McBain check during the inspection? The pre-purchase inspection consisted of Mr. McBain removing the inspection panels at the rear of the gear legs, checking the engine compartment, checking the controls for travel only, checking all external surfaces for any visible damage, but he did not check the interior of the aircraft.

Mr. McBain did talk to Mr. S. Watson regarding the aircraft but cannot remember specifically what about. When asked why the pre-purchase inspection was not entered into the logbook, Mr. McBain responded he was not aware it was a requirement. Mr Johnson asked Mr. McBain if I suggested to you that the pre-purchase inspection took you 3 - 5 hours to complete what would you say? Mr. McBain's response was "possible". Mr. Johnson asked did you remove the rear seats? To which Mr. McBain responded: no my apprentice did. Mr. Johnson enquired if Mr. S. Watson was present for the whole pre-purchase inspection, to which Mr. McBain replied he believed so.

In a re-direct from Mr. Pratt, Mr. McBain verified he never certified anything in the logbook for C-FGPO until the 100-hour inspection in August 1994 had been completed.

Mr. Pratt called Mr. Ron Cochrane as his last witness. Mr. Cochrane owns Elite Aero Ltd. in Prince Albert, Saskatchewan. It is an AMO certified for structural work. Mr. Cochrane holds 4 "M" licences as well as S-31, 32 and 33 structural licences. He has been an "M" licence holder for 25 years and an "S" licence holder for 15 years. One could say he is a highly skilled individual in aircraft maintenance and repairs.

In August 1994 Mr. Cochrane was called to Nipiwan to examine the rear follow through spar on C-FGPO. The spar was crushed and cracked. It was determined the spar would have to be replaced. A decision was made to ferry the aircraft to Prince Albert where the repairs to the spar were completed. Mr Cochrane explained, from his years of structural work, how this damage would have occurred to the rear follow through spar. It was definitely caused by a blow on the right leading edge wing tip which caused the rear wing spar to transfer the force onto the rear follow through spar. While completing the repairs to the spar, Mr. Cochrane discovered there was no Conformity Certificate with the logbook or on file with Transport for the previous wing tip repairs. The engineer that signed the logbook in December 1991 did not have an "S" licence; therefore, the previous structural repairs were not certified. The aircraft was grounded because the C of A became invalid without a Conformity Certificate until the wing could be removed, the previous repairs inspected, wing mounts dye tested and the wing re-certified and installed. Mr. Cochrane completed a Conformity Certificate for the wing repairs that he re-inspected in September 1994. A copy was placed in the logbook which revalidated the C of A for C-FGPO.

From questioning by Mr Pratt, Mr. Cochrane testified that if the rear follow through spar had not been replaced it could have lead to total failure of the spar which could have lead to the right hand wing falling off. From his years of structural experience and knowledge Mr. Cochrane stated he had seen other Piper aircraft with wing tip damage, and the rear follow through spar damage was present. The damage to this spar was definitely caused by a hard blow to the front of the wing and not from a hard landing where the damage would be confined to the wing and not to the fuselage.

In cross-examination, Mr. Johnson tried to explain to Mr. Cochrane how he thought the impact on a wing tip could be transferred to a rear spar. Unfortunately this did not agree with Mr. Cochrane's explanation of how it would happen based on his vast structural knowledge. There is no doubt on Mr. Cochrane's behalf that the rear follow through spar damage was caused by the wing tip accident. Mr. Cochrane confirmed again the rear follow through spar damage would not have been caused by a hard landing, because there would be other damage to the wing caused from a hard landing.

When asked by Mr. Johnson if he is aware of any other "S" licensed engineer that would state this rear follow through spar damage was caused by a hard landing, Mr. Cochrane replied not that he knew of. The wings were inspected for damage at the August 1994 replacement of the rear follow through spar, and no damage was found indicating any hard landings. Mr. Johnson questioned as to whether a strike to the belly of the aircraft could cause the damage to the rear spar? Mr. Cochrane's reply was he did not think so, plus there was no damage to the belly of the aircraft when he did the recertification check on the aircraft. Mr. Johnson enquired about the missing Conformity Certificate; Transport Canada did not have it; could they have lost it? Mr. Cochrane's response was anything is possible, but he had never seen it happen before.

A short re-direct from Mr. Pratt referred to Exhibit M-6, in particular to photos #1, #8 and #10. From the damage indicated in these photos would you expect to find the type of damage to the rear follow through spar as in Exhibit M-8? There was no doubt in Mr. Cochrane's mind that an accident as shown in Exhibit M-6 would cause rear follow through spar damage. It is consistent with what he has seen in other Piper aircraft. Mr. Pratt confirmed with Mr. Cochrane that his company, Elite Aero Ltd., is an AMO authorized for "specialty work". Other engineers can do the actual repair work, but with such an AMO, Mr. Cochrane must inspect their work prior to signing it out.

In re-direct from Mr. Johnson, Mr. Cochrane confirmed he was in business in 1991, and he received his AMO designation in 1990. Prior to receiving the AMO designation, any structural work he did was under his "S" or old "B" licence. Transport Canada did not require him to have an Operations Manual for his work prior to the AMO designation.

Mr. Johnson representing the Applicant, Mr. David Loewen, called his first witness, Superintendent S.M.N. (Steve) MacNab. Mr. MacNab has been Superintendent of the Airworthiness Division since 1984. He confirmed that during 1990-1991 Airworthiness was going through a transition from the old licence designations to the current AMO designations. He also confirmed the interpretation of the Air Regulations set down in 1989 is the standard used by Transport Canada country wide. The Conformity Certificate, Exhibit M-10, was in use in 1991; there were no changes made to it during the transition period. The form requires two signatures, one in section 5 and the other in section 6 stating the repairs have been completed and inspected by the appropriately licensed engineer.

When questioned by Mr. Johnson as to whether or not he recalled a phone call from Mr. W. Watson of Ville-Tech Inc. in 1991, to discuss who can sign the Conformity Certificate in reference to the repairs they had done on C-FGPO, he replied he did not recall the conversation. Superintendent MacNab could not remember if Ville-Tech Inc. had ever held an AMO status, but at one time he is sure they held the authority to conduct repairs for certain types of aircraft. Mr. Johnson presented a hypothetical case on signing out a Conformity Certificate. I am afraid at that point Mr. Johnson lost the Tribunal Member. Because of all the previous hypothesis he had presented, it made it extremely difficult to know what was imagined and what was real.

Mr. Pratt cross-examined Superintendent MacNab. Mr. MacNab stated that when Transport Canada operated under the old Engineering and Inspection Manual a "B" licensed (structural) engineer could sign off structural repairs without belonging to a maintenance organization. Superintendent MacNab confirmed that if an "M" licence holder who does not hold a structural endorsement signed out a Journey Logbook entry for "specialty work," then the C of A for that aircraft would be invalid.

Mr. Johnson then called Mr. W. Watson as a witness. Mr. Watson was Manager/Owner of Ville-Tech Inc., a ten year old Company and Flight Training School. They were operating under an approved maintenance manual for a Flight School and could carry out maintenance for private aircraft. Mr. Watson holds an "M-2" licence, and he confirmed Ville-Tech Inc. was not an AMO.

He and his son owned C-FGPO prior to selling it to Mr. Verklan. In June 1991 the aircraft was involved in a training accident at Slave Lake, Alberta. During the accident which was a first solo flight, the student used full flaps for landing and lost control of the aircraft, landing on the nose wheel. When the main wheels touched down with full brakes applied, the right main tire blew, the aircraft left the runway, entered a small drainage ditch tearing off the nose oleo and came to rest with the right wing tip just touching a vasi light box. Mr. Watson estimated the speed to be "approximately stopped" when it hit the vasi light box, because there was no damage done to the box.

The aircraft was inspected at Slave Lake, and minor repairs were carried out. A Ferry Permit was issued, and the aircraft flew to Villeneuve, Alberta for more comprehensive repairs. Mr. Watson stated that at Slave Lake the main gear, engineer mounts, engine dial check completed, main spar where wheels attach and the centre section were all inspected before the aircraft was flown out. The inspection panels on the rear follow through spar area were removed and the spar inspected with no problems found. Mr. Watson has 25 years of flying experience. He has flown various models of Piper Cherokee aircraft along with operating them at his Flight School. He says anytime a Piper Aircraft has an accident, a hard cross wind landing, a snow or mud landing you have the potential to damage the main spar where the wheels attach and the attach point to the rear spar. Therefore he always checks out the rear follow through spar if the aircraft is involved in an accident.

The structural work completed on C-FGPO was carried out by Dave Cathcart of D & D Aviation. Mr. Cathcart held a "B" licence (structural) at the time, now a "B" licence. Mr. Cathcart repaired the rear stabilizer, the door and wing tip as per his invoices (Exhibit D-1).

Prior to having the Conformity Certificate signed, Mr. Watson claims he called Superintendent MacNab for clarification of who could sign which sections of the Conformity Certificate (as indicated above, MacNab has no recollection of this call). Mr. Watson says he saw Mr. Cathcart sign the Conformity Certificate for the structural work, and Mr. Loewen signed the other part. One copy of the Certificate was given to the office secretary who mailed it to Transport Canada. To the best of Mr. Watson's knowledge Mr. Cathcart has the second copy of the Conformity Certificate. Nothing was placed in the aircraft logbook pertaining to the Conformity Certificate. Mr. Watson claims Superintendent MacNab said, if the structural licensee signed the Conformity Certificate, an "M" licence (Loewen) could sign the logbook for the repairs.

A fair bit of discussion took place over the so called transition period at Transport Canada and what forms were in place at the time and which ones were required to be completed for these repairs to C-FGPO. Was it Major Repairs and Modification Certificate or the Conformity Certificate? Transport Canada present at the Hearing indicated the two forms were the same and interchangeable and that the form had originated in 1984.

From questions by Mr. Johnson, Mr. Watson went on to say Piper Cherokees could have rear follow through spar damage caused by cross wind landings. He claims to have seen this type of spar damage on Piper Cherokee aircraft from cross wind and hard landings. Prior to the Flight School, Mr. Watson says he bought a Cherokee that had rear follow through spar damage, and it did not have any record of wing tip damage. He further commented that this type of aircraft could have a hard landing without damage to the main spar or popping rivets on the wing surface but still cause other damage. Mr. Watson stated the damage to the rear follow through spar could have been caused by pushing the aircraft backwards into a snow bank, or it may have been struck on the belly by debris from a runway or taxiway, such as chocks.

All of the repairs carried out on C-FGPO were an insurance claim for Ville-Tech Inc.; therefore, why would they scrimp on work if it was not coming out of their pocket. Mr. Watson says he told Mr. Verklan the aircraft had been involved in two accidents. In fact, Mr. Verklan waited for delivery while we Ville-Tech Inc. waited for parts to arrive to complete repairs from the second accident. When a customer purchases an aircraft from him, Mr. Watson insists that a pre-purchase inspection be completed by the customer prior to concluding the purchase. When Mr. Watson does a pre-purchase inspection of an aircraft, he always does a thorough inspection (treats it like an annual inspection). He then makes an entry in the logbook for this inspection, because he believes all inspections should be recorded in the logbook.

After the repairs were finished to C-FGPO (December 1991) and prior to the sale to Mr. Verklan, Ville-Tech Inc. carried out a 50-hour inspection on January 24, 1992 signed by Mr. W. Watson, a 100-hour inspection on March 16, 1992 signed by Mr. D. Loewen, a 50-hour inspection on May 7, 1992 signed by Mr. W. Watson, and a 1000-hour inspection on August 27, 1993 signed by Mr. W. Watson. During the 1000-hour inspection, using the Piper aircraft check sheet, the rear follow through spar area would have been inspected It was and found to have no damage. If it was damaged, Mr. Watson stated we would have replaced it, because it was an insurance claim. As well, on the 100-hour inspection on March 16, 1992, the rear follow through spar would have been inspected.

Mr. Pratt commenced his cross-examination of Mr. Watson by confirming he, Mr. Watson, does not have an "S" rating on his AME licence. On showing Exhibit M-6 photos #1, #8 and #10 to Mr. Watson, Mr. Pratt informed him two highly experienced structural engineers today agreed that this type of wing damage leads to the damage on the rear follow through spar. But when asked why not on your aircraft as you claim? Mr. Watson replied I don't know. He again, stressed the rear follow through spar area was inspected to verify it was not damaged. Mr. Pratt asked why Mr. Cathcart did not sign the logbook for the "specialty work" he did? Mr. Watson did not know why but said Mr. Cathcart did sign the Conformity Certificate, to which Mr. Pratt replied the one no one can find!!

Mr. Watson says the rear follow through spar area was inspected at the accident site in Slave Lake because he thought there may be damage, but none was found. Mr. Pratt asked why did Mr. Watson insist Mr. Verklan have a pre-purchase inspection completed on C-FGPO when 7 days earlier he, Mr. Watson, had just signed it out from a 1000-hours inspection. Is Mr. Verklan not to trust your signature as an engineer? Mr. Watson's reply was Mr. Verklan should have things checked out for himself in case we missed anything.

Mr. Pratt asked if Mr. Watson had seen other Piper aircraft with wing tip damage, which Mr. Watson stated he had. Did they not have rear follow through spar damage? Mr. Watson replied some did and some did not. Mr. Pratt stated from evidence given by two very highly qualified structural engineers that this type of wing tip damage shown in Exhibit M-6 leads to damage on the rear follow through spar. Mr. Watson claims he has seen Piper aircraft run their wing tip into the hangar and not have rear follow through spar damage. Without seeing the belly skin of C-FGPO when the rear follow through spar was replaced, he could not say whether it had or had not been damaged earlier. Mr. Pratt then informed Mr. Watson the structural engineer who replaced the rear follow through spar stated as evidence that there was no damage to the belly skin. Then Mr. Watson responded he could not say why the rear follow through spar was damaged.

Mr. Johnson called Mr. Stephen Watson as his next witness. Mr. S. Watson verified that prior to the sale of C-FGPO to Mr. Verklan, several inspections had been completed on the aircraft since the December 1991 repairs. The rear follow through spar area had been inspected three times, and no damage had been observed. Mr. Johnson confirmed he flew the aircraft to Nipiwan for the pre-purchase inspection. Mr. S. Watson saw Mr. Verklan and Mr. McBain examine the aircraft logbooks and stated Mr. McBain asked questions about the accident and about which parts were replaced. He further stated Mr. McBain removed most of the inspection panels as well as the seats and checked the centre section, in particular the rear follow through spar area. Mr. McBain saw no faults or at least did not mention any. Mr. McBain seemed to spend more time in the engine area. The pre-purchase inspection took three to four hours, and Mr. S. Watson thought Mr. McBain did a proper inspection.

Mr. Pratt cross-examined Mr. Stephen Watson by asking, where are we? Mr. McBain and Mr. Verklan say one thing and you and your father state a totally opposing view. Mr. McBain says the inspection took 30 to 45 minutes, you are saying 3 to 4 hours. It will be up to Mr. Brown to determine who is telling the truth here and who is not. Mr. Pratt asked Mr. S. Watson if he had ever seen damage to a rear follow through spar from a hard landing, and the answer was that he had not.

Mr. Johnson called Mr. David Loewen as his last witness. Mr. Loewen holds an "M-2" AME licence he acquired in 1987. In 1991 he worked as chief engineer for Ville-Tech Inc., at Villeneuve Airport. Mr. David Cathcart did the "specialty work" to C-FGPO while Mr. Loewen was present in the hangar but not necessarily watching over him as the work was done. Mr. Loewen confirmed that he and Mr. W. Watson called Superintendent MacNab in December 1991 to question who has to sign the logbooks and Conformity Certificate (although MacNab has no recollection of it). Mr. Loewen stated both he and Mr. Cathcart filled out a Conformity Certificate. A copy was given to the secretary to mail to Transport Canada, and Mr. Cathcart kept the other copy. Mr. Loewen claims that at the 1000-hour inspection in August 1993 he took a lot of time and patience inspecting the rear follow through spar and found no problems. Since the repairs in 1991 he has done two inspections on C-FGPO and has been in the rear follow through spar area at least once. Referring to Exhibit D-2, the Piper aircraft 1000-hour inspection report, it takes you into the rear spar area. Mr. Loewen cannot believe he missed the buckle and crack in the rear follow through spar.

Mr. Pratt in cross-examination of Mr. Loewen asked as chief engineer at Ville-Tech Inc. was he aware of the regulations covering signing out of an aircraft after major repairs. Mr. Loewen confirmed that "specialty work" must be signed out by the appropriately licensed engineer, in this case Mr. David Cathcart, and he confirmed he and Mr. Cathcart signed the Conformity Certificate. Mr. Loewen has carried out between five to ten 1000-hour inspections on Piper aircraft in his capacity as an AME. They require three to four days of continuous work. Mr. Pratt confirmed Mr. S. Watson worked as an apprentice engineer, and any work that was done by him as an apprentice was checked by Mr. Loewen prior to releasing and signing out the aircraft. Mr. Loewen states he has never seen this type of damage to a rear follow through spar on a Piper Aircraft before.

In summation Mr. Pratt commented there are four areas to consider in this Hearing. First, there is no evidence prior to November 1991 that could cause this type of damage to C-FGPO. Two highly qualified "S" licensed engineers state a hard landing was probably not the cause of the damage. There is no doubt that the right hand wing tip was damaged, and no other damage to the aircraft was proven by either side. Mr. Loewen obviously chose to repair the surface damage so the aircraft could be unloaded. The quality of the inspections was poor.

Secondly, there is no doubt that "specialty work" must be signed off as completed by the appropriately rated "B" or now "S" licensed engineer. There is no proof this was done because of the mysteriously missing Conformance Certificate.

Thirdly, the two violations to Chapter 571 of the Airworthiness Manual are definitely a violation of section 221 of the Air Regulations. Finally, should the Tribunal Member agree that Mr. Loewen violated section 221 of the Air Regulations for either item, then the violation period of 14 days should be upheld as it was a first offence, and this is an appropriate penalty.

In summation Mr. Johnson stated the onus is upon the Minister to prove this violation. Messrs. W. & S. Watson and Mr. Loewen inspected the area of the rear follow through spar several times from the time of the accident to the sale to Mr. Verklan, and no damage was found by them. Ville-Tech Inc. had an insurance claim for the repairs from the 1991 accident and would not have any costs. Ville-Tech Inc. therefore had no reason not to make proper and complete repairs. There was a discrepancy between what Mr. S. Watson and Mr. McBain stated as to the time spent on the pre-purchase inspection and whether it was an extensive or cursory inspection. Section 8.5 of the Aeronautics Act allows for an individual to exercise all due diligence to prevent a contravention of the Act, and that is what Mr. Loewen and Mr. W. Watson did. There was no incentive for Mr. Loewen to ignore the fault.

CONCLUSION

Having reviewed all the evidence presented by the parties and weighing the statements made by two highly qualified structural engineers against the knowledge of two M-2 engineers, one of whom has flown Piper Cherokee aircraft for several years, I am confident that Mr. Loewen violated section 221 of the Air Regulations when he certified C-FGPO as airworthy on December 9, 1991. Whether Mr. Loewen failed to do a thorough inspection or simply chose to overlook the wrinkle and crack in the rear follow through spar, I do not know.

Relying on the impressive experience of the two structural engineers:

  • Mr. Pat Parsonage — Aircraft Technician/Engineer since 1972, holding three classes of "M" licence, Structural Inspector for two years and Structural Engineer for an additional two years, with a "S-33" endorsement
  • Mr. Ron Cochrane — Engineer for twenty-five years holding four classes of "M" licence and a Structural Engineer for fifteen years holding "S-31, 32 and 33" endorsements

I am left with no doubt in my mind that the accident to C-FGPO in June 1991 at Slave Lake, Alberta, where the wing tip was severely damaged (Exhibit M-6), caused the damage to the rear follow through spar. According to the aircraft logbooks, no further accidents to the aircraft to date could have caused this type of damage.

A large amount of discussion was introduced by Mr. Johnson through his witnesses testifying that hard lands, cross wind landings, landings in mud and snow and pulling or pushing the aircraft through snow banks could cause this sort of damage to the rear follow through spar. All of these examples were asked of the structural engineers, and they both replied no, because another type of damage would have shown up in a different area other than the rear follow through spar.

Mr. Johnson pointed out that in 1991 Transport Canada Airworthiness Division was going through a transition period where AMO (Aircraft Maintenance Organization) designations were being introduced. That fact is true, also the reclassification of Engineer licences took place, i.e. the old "2B" licence (structural) became a new "S" licence (structural) with the same qualifications. But I cannot accept the argument that because of this re-organizing Transport Canada can be held responsible for losing the elusive Conformance Certificate signed by Mr. Cathcart and Mr. Loewen.

The fact that Mr. Johnson failed to have testimony from Mr. David Cathcart, the structural engineer who carried out the "specialty work" on C-FGPO, even though he was subpoenaed and failed to show up for the Hearing, did not help matters. Upon a request from Mr. Johnson, as to the authority of the Tribunal in matters like this, I informed him I could have a bench warrant issued for Mr. Cathcart. After consideration Mr. Johnson decided a bench warrant was not necessary. In discussions between Mr. Pratt, Mr. Johnson and myself, as the Hearing was closing, we agreed that Mr. Cathcart's testimony would have no bearing on the outcome of today's Hearing and if the elusive Conformity Certificate were produced there would be no way of verifying its authenticity.

When Mr. Loewen signed the logbook for C-FGPO as being airworthy following the wing tip repairs in December 1991 – there is no entry in the logbook from the appropriately licensed "specialty work" engineer, nor a copy of the Conformity Certificate for the repairs – he also violated section 221 of the Air Regulations. Mr. Loewen and Mr. Watson both testified that they carried out additional inspections subsequent to December 1991 and prior to the sale of C-FGPO in August 1993, and they claim there was no damage to the rear follow through spar, which was checked at least twice (100-hour and 1000-hour inspections). Whether shoddy maintenance was done during these inspections or power of an employer over an employee entered the picture, I do not know. For the fact there was no further damage done to C-FGPO which could cause the rear follow through spar damage, I am left with no choice but to agree with the explanation put forth by the two highly qualified structural engineers.

As for Mr. Johnson asking the Tribunal to consider section 8.5 of the Aeronautics Act, which reads:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

I find that Mr. Loewen did not "exercise all due diligence to prevent the contravention", because he did not carry out a thorough inspection in December 1991, nor in the subsequent inspections he signed for and assisted in prior to the sale of C-FGPO to Mr. Verklan in August 1993. As well, due diligence was not shown by Mr. Loewen in completing the logbook for C-FGPO correctly in December 1991.

DETERMINATION

I confirm the Minister's decision to suspend Mr. David Norman Loewen's Aircraft Maintenance Engineer Licence (M361379) for a period of fourteen days.

Gavin W.C. Brown,
Member
Civil Aviation Tribunal


Appeal decision
David S. Ahmed, Fred W.R. Clarke, Gordon R. Mitchell


Decision: April 30, 1996

The Appeal is denied, and the Minister's Decision to suspend Mr. David Norman Loewen's licence for a period of fourteen days is confirmed. Said suspension shall take effect on the fifteenth day following service of this Appeal Determination.

BACKGROUND

This appeal was conducted by written submissions as agreed. The Appeal results from a Review Hearing held in Edmonton, Alberta on August 25, 1995, before Gavin W.C. Brown at which time the Hearing Officer confirmed the Minister's decision to suspend the AME licence M361379 held by David Norman Loewen.

Notice of Suspension

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulation 221 in that on or about December 9, 1991 at or near Villeneuve, Alberta you did unlawfully certify an aircraft to wit a Piper PA28-180, bearing Canadian Registration Marks C-FGPO, as released for return to service when the applicable standards of Airworthiness had not been complied with, more specifically:

(1) The requirements of Chapter 571.207(a) of the Airworthiness Manual were not complied with, namely the secondary damage to the fuselage channel P/N 62411-02 resulting from the right hand wing impact damage incurred on June 25, 1991 was not inspected and replaced prior to the aircraft's certification on December 9, 1991.

(2) The P/N 96610-07 skin replaced on the right hand wing was "special work" pursuant to the Airworthiness Manual Chapter 571 Appendix "F" item (2). The replacement of this skin was not certified by an appropriately rates "Approval Maintenance Organization" prior to the certification of the aircraft.

OVERVIEW

In June 1991 Piper PA28-180, S/N 28-7305579, Registration C-FGPO was involved in a landing accident at Slave Lake, Alberta.

It was stated that loss of control on landing resulted in the aircraft contacting first on the nose wheel, and then the mains touched down with full brake applied. The right tire blew, and the aircraft left the runway entering a small drainage ditch tearing off the nose oleo. The aircraft came to a stop with the right wing tip touching a vasi light box.

The aircraft, repaired as necessary for ferry, was flown to the owner's facilities at Villeneuve, Alberta.

The owner at this time as shown on the Certificate of Registration was Ville-Tech Inc. a flying-training firm.

Permanent repairs were carried out, and the aircraft was returned to service on December 9, 1991.

Piper C-FGPO was subsequently sold to Tim Verklan of Nipawin, Saskatchewan on September 4, 1993.

During an annual inspection in September 1994, the rear follow through spar was found damaged. The aircraft was ferried to Elite Aero Ltd. in Prince Albert, Saskatchewan for repair.

GROUNDS FOR APPEAL

A letter dated February 9, 1996 written on behalf of David Norman Loewen by Ronald E. Johnson, along with written submissions of the Appellant, is in regard to the Appeal of the Review Determination made by Gavin W.C. Brown on October 5, 1995.

1. That the Member erred in law or jurisdiction in failing to find that the Minister was time-barred, under the provisions of the Aeronautics Act ...

Under section 6.9 of the Aeronautics Act there is no time limitation for suspensions or cancellations. The 12-month limitation shown concerns either designated provisions or summary conviction matters.

2. The Member erred in law or jurisdiction by failing to appreciate that the onus of proof, throughout the hearing, fell entirely upon the Minister and not upon the appellant ...

The contravention was the unlawful certification of the aircraft contrary to section 221 of the Air Regulations. The Hearing Officer, Gavin Brown found that the Minister proved the case on the balance of probabilities, the evidence and finding is that the Appellant certified that the aircraft was airworthy when he knew or ought to have known that it was not airworthy. The improper certification was contrary to section 221 of the Air Regulations.

3. That the Member had erred in law or jurisdiction by failing to properly consider or appreciate the evidence of superintendent S.M.N. MacNab and the witness' MacNab's comments in regards to whether the appellant, David Norman Loewen, had taken all reasonable steps to properly "sign off" repair work done on the subject aircraft;

There is no basis for the Appeal Panel to displace findings of fact made by the Member or to reweigh the evidence in the absence of an egregious or patent error.

The evidence shows a stand alone entry in the log book with no Conformity Certificate, which the evidence shows would make the Certificate of Airworthiness invalid.

The Conformity Certificate is relevant to the defence of the Appellant in that if it exists and had been entered in evidence and accepted by the Member, then the Appellant would have had the authority to certify the aircraft. The Conformity Certificate was not put in evidence; therefore, it is not likely that it exists.

4. That the Member erred in law or jurisdiction in his interpretation of section 8.5 of the Aeronautics Act;

There is no real evidence that all reasonable efforts were taken to ensure the airworthiness of the aircraft as certified by the Appellant. The unrepaired damage to aircraft C-FGPO, which had been certified by the Appellant, could have resulted in the loss of the right wing.

5. That the Member failed to appreciate the evidence of the witness McBain who indicated it was possible his prepurchase inspection took three to five (3 - 5) hours and, further, failed to appreciate the witness' McBain statement that his apprentice had removed the rear seats from the subject aircraft. This becomes highly important as a number of witnesses indicated that if the rear seats were removed the damage to the rear spar could easily be seen by the eye;

The time spent by Mr. McBain on the pre-purchase inspection is said to be half to three quarters of an hour on one hand and three to five hours on the other. The significance of the time issue appears irrelevant, as McBain states that he did not inspect the rear spar carry-through and there is no evidence to show otherwise. McBain's inspection was referred to as cursory, and he stated that he had not made any log entries.

6. That the Member failed to appreciate that there was no incentive or motive on the part of the appellant, David Norman Loewen, not to complete repairs properly;

There definitely should be an incentive or motive on the part of the Appellant to carry out the repairs in a safe and proper manner. The transcript shows the Member was well aware of this.

7. That the Member failed to appreciate and attach any significance to the fact that all repairs done to the aircraft as a result of wing tip damage, were completed properly other than the alleged failure of the appellant David Norman Loewen, to fully complete or inspect the repairs to the spar;

The repair to the right wing tip is briefly mentioned in both the Journey and Technical Logs but with a serious lack of detail. There is no mention of any further inspection being carried out for transmitted damage and this is an absolute necessity.

Mr. Loewen's log entry leaves a lot to be desired. It leaves one wondering about the other entries that may not be complete in detail or even possibly omitted.

There is no entry covering the temporary repairs that had to be made before ferrying the aircraft to Ville-Tech Inc. facilities.

The Member was correct in his finding that the repair to the rear spar carry through had not been done.

8. That the Member failed to appreciate the significance that there were long gaps of time in which the aircraft was left unattended, and unobserved and for said periods of time that the Minister failed to adduce any evidence to show that damage to the aircraft could not have occurred during these periods of time when the aircraft was left unattended and unobserved;

The time referred to here is the year that Mr. T. Verklan owned the aircraft; he purchased it on September 4, 1993. The possibility of the wing being struck in the same exact location on the wing tip with the same force as that when damaged in June, 1991 is very remote.

The Member's decision that on a balance of probabilities the damage to the right wing tip and the transmitted damage to the rear spar follow through happened during the accident at Slave Lake, Alberta in June 1991 involving aircraft C-FGPO, is accepted as correct.

CONCLUSION

The importance of regular and explicit log book entries, made by authorized personnel, cannot be overstated. The issue here certainly spells this out, without proper entries the purpose of log books and the history of the aircraft is lost.

Mr. Johnson in his summation enlarged considerably on the time the aircraft was in Mr. Verklan's possession. In the transcription, page 180, lines 16, 17 and 18 he states, "We, Mr. Loewen or myself, have no obligation to explain what happened to that aircraft in that roughly two-year period."

According to the Certificate of Transfer of Ownership, Mr. Verklan took possession of the aircraft on September 4, 1993, and the damage to the rear spar follow through was found and repaired and certified by September 9, 1994, almost exactly one year, not roughly two years.

For clarification, the part referred to as the rear spar follow through is listed in the Piper Parts Catalog as part no. 62411-02 – Channel – Lower cockpit. It is located at fuselage station 128 737.

DETERMINATION

David Norman Loewen's Appeal is denied, and the Minister's Decision is confirmed.

Reasons for Appeal Determination by:

Gordon R. Mitchell, Member

Concurred:

Fred W. Clarke, Member
Dr. David Ahmed, Member