CAT File No. C-1056-04
MoT File No. RAP 6504-P052930-026160
CIVIL AVIATION TRIBUNAL
Francis Eugene Kubisewsky, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, S.C., c.A-2,s. 6.9,
Air Regulations, C.R.C. 1978, c.2, s.221
Suspension of an Aircraft Maintenance Engineer Licence (AME), Double Jeopardy, Certification of Aircraft as Airworthy
Gavin W.C. Brown
Decision: January 15, 1996
I set aside the suspension against the Applicant as set out in Count 18. I confirm the contraventions alleged against the Applicant as set out in Counts 1 – 17, and I reduce the suspension imposed to one (1) day in respect of each contravention, for a total of seventeen (17) days. Said suspension shall begin on the fifteenth day following service of this determination.
The Review Hearing on the above matter was held Thursday, December 14, 1995 at 10:00 hours, Environment Canada Offices, in the city of Winnipeg, Manitoba.
On May 23, 1995, Transport Canada informed Francis Eugene Kubisewsky, the Applicant, by letter 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 on the grounds that you have contravened the following provision(s):
Air Regulation 221 in that on or about September 17, 1993 at or near Kenora, Ontario, you did unlawfully certify an aircraft as released for return to service, when the applicable standards of Airworthiness had not been met, more specifically, you released a DHC-2 Beaver, Canadian Registration marks C-FJEI for return to service when airworthiness Directive CF80-25 had not been complied with. (Schedule A of this letter goes on for 18 Counts)
In an opening motion, the Minister's Representative, Mr. Pratt changed the aircraft to a DHC-3 Otter with registration markings C-FCBA. Numerous other changes to dates, aircraft type and registration, deletion of a line of one of the Counts and some word changes to various Counts were also made.
The suspension is to be ten (10) days for each of the 18 Counts for violating section 221 of the Air Regulations against Aircraft Maintenance Engineer licence number M052930, Francis Eugene Kubisewsky.
Mr. Kubisewsky made application to the Civil Aviation Tribunal for a "Stay of Suspension" in respect to the above contravention. On June 19, 1995, Mrs. Faye Smith, 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 the Applicant, in his personal capacity as a licensed Aircraft Maintenance Engineer, did violate section 221 of the Air Regulations in each of the 18 Counts alleged against him.
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 definitions from subsection 101(1) of the Air Regulations, Part I:
"airworthy" means, in respect of an aeronautical product, in a fit and safe state for flight and in conformity with the applicable standards of airworthiness
"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
These definitions are the Law and are further backed up by the Airworthiness Manual which defines specific areas. Airworthiness Manual, Chapter 575, Maintenance Certification and Technical Records, Subchapter B Maintenance Certification (Exhibit M-1) states:
575.103 Maintenance Release
(c) No person shall sign a maintenance release unless the maintenance in respect of which the release is prepared has been performed in accordance with the applicable standards of airworthiness.
Further in Airworthiness Manual, Chapter 593, Airworthiness Directives:
593.113 Recording and Certification
Particulars concerning airworthiness directives and compliance therewith shall be recorded in the appropriate section of the aircraft maintenance record pursuant to Chapter 575, Subchapter E of this manual.
It further states in Airworthiness Manual, Chapter 507, General Procedures (Exhibit D-1):
507.337 Responsibility of Owners of Aircraft
(a) An owner of an aircraft for which a certificate of airworthiness or a flight permit has been issued shall, in order to ensure the continuing validity of his certificate of airworthiness or flight permit:
(1) Maintain his aircraft, as applicable, in accordance with Chapters 571, 573 and 575 of the Manual;
(2) Ensure that all entries in the aircraft journey log and the aircraft technical logs are current, and certified by appropriately authorized persons; and
(3) Ensure that all airworthiness directives (or foreign equivalents) are actioned pursuant to Chapter 593 of the Manual.
(b) It is also the owner's responsibility to:
(. . .)
(3) Obtain the Minister's authorization for any changes to his aircraft or his aircraft operating or maintenance procedures which would or could affect the conditions under which the certificate of airworthiness or flight permit was issued.
Due to the 18 Counts of violation of section 221 of the Air Regulations, Mr. Pratt inundated the Hearing with 36 items as exhibits. Many of these exhibits are extracts from logs showing when various inspections were done, following in the next exhibit is the Approved Maintenance Organization (AMO) work order showing what work was completed at that inspection. Mr. Tweed entered three items as exhibits.
M-1: Copies of Airworthiness Manual, Chapters 575 and 593
M-2: Copy of Certificate of Registration, CF - J E I
M-3: Copy of Airworthiness Directive, CF-80-25 for DHC-2
M-4: Copy of Record of Airworthiness Directives (third last page) for C-FJEI
M-5: Copy of Airframe Log for C-FJEI
M-6: Copy of Aircraft Journey Log for C-FJEI, showing 100-hr inspection
M-7: Copy of Inspection Program Approval for DHC-2
M-8: Copy of Aircraft Journey Log for C-FJEI, certified March 26, 1994
M-9: Copy of Inspection Program Approval for DHC-2
M-10: Copy of Aircraft Journey Log for C-FJEI, showing 700-hour inspection
M-11: Copy of Inspection Report Work Order #94-106
M-12: Copy of Airworthiness Directive CF-80-05R1 for DHC-2
M-13: Copy of Inspection Report Work Order #93-001 for C-FJEI
M-14: Copy of Inspection Program Approval #93-041, dated July 8, 1993
M-15: Copy of Aircraft Journey Log for C-FJEI, certified September 2, 1994 for 100-hour inspection
M-16 Copy of Inspection Program Approval, September 1, 1994 for 100-hr. inspection
M-17: Copy of Airworthiness Directive 66-3 for DHC-2
M-18: Copy of Airworthiness Directive 61-12 for DHC-2
M-19: Copy of Airworthiness Directive CF-89-20 for DHC-3
M-20: Copy of Record of Airworthiness Directives for DHC-3, CF-CBA
M-21: Copy of Inspection Report for C-FCBA, dated May 29, 1992
M-22: Copy of two Aircraft Journey Log pages, dated July 10 and 20, 1994
M-23: Copy of Inspection Program Approval, July 20, 1994 for 100-hr. inspection
M-24: Copy of Aircraft Journey Log, September 13, 1994 for C-FCBA
M-25: Copy of Aircraft Journey Log, September 19, 1994 for C-FCBA, showing #2-200 hour inspection
M-26: Copy of Work Order 94/138, Inspection Program Approval for #2-200 hour inspection
M-27: Copy of Notice of Suspension Forms (0370 and 0009) for C-FJEI
M-28: Copy of Notice of Suspension Forms (0370 and 0009) for C-FWDB
M-29: Copy of Certificate of Registration for C-FWDB
M-30: Copy of Aircraft Journey Log for C-FWDB, dated October 3, 1994
M-31: Copy of Wedjit sketch
M-32: Copy of Certificate of Registration for C-FCBA, DHC3
M-33: Copy of Certificate of Registration for CF-TBV, J3C-65
M-34: Copy of Notice of Suspension Forms (0370 and 0009) for C-FCBA
M-35: Copy of Notice of Suspension Form (0370) for C-FTBV, and boxing wire sketch
M-36: Copy of Technical Log for C-FTBV, showing 100-hr. inspection September 23, 1994
D-1: Copy of Airworthiness Manual, Chapter 507
D-2: Copy of Notice of Suspension to Kuby's Aircraft Ltd. AMO, dated December 5, 1994
D-3: Copy of letter reinstating Kuby's Aircraft Ltd. AMO, dated April 25, 1995
The Applicant is the owner and sole shareholder of an Approved Maintenance Organization (AMO) called Kuby's Aircraft Ltd. (Kuby's) in Kenora, Ontario. He wears all of the hats for this AMO, Chief Engineer, Director of Maintenance, Quality Manager and Production Manager.
Transport Canada carried out an audit (inspection) on Kuby's Aircraft Ltd. between November 29 – December 1, 1994. During this audit several aircraft parked around the yard were inspected, and numerous discrepancies were found and documented – in particular, the Certificate of Airworthiness (C of A) for DHC-3, C-FCBA, DHC-2, C-FJEI and C-A185F, C-FWDB were cancelled on the spot and the C of A for J3C-65, C-FTBV (privately registered) was cancelled about a month later. These four aircraft were all sitting in various snow banks around the yard and totally removed from service till the next spring.
As a result of the audit, Kuby's received a five-month suspension of its AMO operation. A review of this suspension was requested by Kuby's on December 20, 1994. No hearing was held as the Applicant instead worked with Transport Canada to correct the faults within the AMO on the belief that no further sanctions would result from the audit. The AMO was reinstated on April 25, 1995. On May 23, 1995, Mr. Kubisewsky received another sanction against his personal AME licence for 18 Counts of 10 days each, totalling 180 days. This is the suspension appealed to the Civil Aviation Tribunal today.
Representing the Minister, Mr. Pratt opened by putting forth a Motion to Amend the Notice of Suspension dated May 23, 1995. Mr. Kubisewsky and his counsel, Mr. Tweed had been supplied with these proposed changes in advance; therefore, there was no objection to the amendment. Ten changes of dates, aircraft registration, words and one line was deleted.
In retrospect, as the Tribunal member, I have the impression Regulatory Compliance were in such a rush to get this additional Notice of Suspension out to Mr. Kubisewsky, that pen was put to paper with not much care. The audit was completed December 1, 1994, and this letter went out on May 23, 1995. Surely it could have been proofed satisfactorily because of the serious nature of the letter.
Mr. Pratt called Inspector Don Hiscock as his first witness. Inspector Hiscock spoke to all Counts but numbers 12, 16, 17 and 18.
- Counts 1 – 12 deal with DHC-2, C-FJEI
- Counts 13 – 16 deal with DHC-3, C-FCBA
- Count 17 deals with C-A185F, C-FWDB, and
- Count 18 deals with J3C-65, C-FTBV
Mr. Hiscock explained that from the audit documents he went back in time on aircraft logs to where an Airworthiness Directive (AD) had last been completed and then came forward the appropriate amount of hours, which the AD allowed, to verify if the AD had been complied with. If it was not completed at the appropriate time, then from that inspection and every one thereafter was a violation of the Air Regulations.
The paperwork trail in suspensions such as this is extensive. Exhibits M-1 to M-26 were presented through Mr. Hiscock. These consisted of copies of aircraft registration forms, aircraft log pages showing various inspections, the Inspection Program Approval for that inspection along with the appropriate work order sheets and copies of the five Airworthiness Directives that had been violated. This is far too much paper to get detailed with but an excellent trail to show that from the last time the AD was completed, up to the audit, the various aircraft have had several inspections completed where the AD was never shown on the work orders or in the aircraft logs. Yet each one of the Inspection Program Approvals states on the last page:
1. Aircraft conforms to M.O.T. Type Approval
2. All FAA (As Applicable) and Canadian Airworthiness Directives complied with.
All were signed by Mr. F. Kubisewsky as the AME, and his licence Number M052930 certified that all of these conditions had been met for the following Airworthiness Directives:
CF-80-25 for DHC-2
CF-80-05R1 for DHC-2
CF-66-3 for DHC-2
CF-61-12 for DHC-2
CF-89-20 for DHC-3
These AD's pertain to Counts 1 – 16 in the Notice of Suspension. There is one occasion when the AD was marked as having been completed on a work order sheet but not entered in the aircraft log. This is not the correct way to show an AD as having been completed. Unless the AD is entered on the appropriate page of the Aircraft Technical Log it is not recognized as having been completed. In most of these cases the AD's were neither shown as having been done on the work order sheets nor entered in the Log.
In the case of DHC-3, Otter, C-FCBA, AD CF-89-20 had not been complied with, but in addition a ten-hour extension on hours to an inspection was signed out by Mr. Kubisewsky. As the AMO for that aircraft belonging to Kenora Air Services Ltd., he held the authority to grant the extension, provided there were no time expired parts on the aircraft nor any outstanding Airworthiness Directives. AD CF-89-20 was outstanding.
During cross-examination by Mr. Tweed, Mr. Hiscock was asked if he was aware that Kuby's Aircraft Ltd. had received a six-month suspension from the audit done in November/December 1994, the same audit this 180-day suspension is from. Mr. Hiscock advised he was aware of a suspension but not the exact time frame. This AMO suspension emanated from the Airworthiness Branch and was said to be for different reasons than the one before me from the Regulatory Compliance Branch. In passing, I am compelled to observe that, so far as this Tribunal member is concerned, all enforcement and compliance action taken against Canadian aviation document holders is the responsibility of the Minister of Transport.
Mr. Tweed introduced Exhibit D-1, Airworthiness Manual, Chapter 507 in particular 507.337(a)(3) which in his opinion puts the onus upon the owner of the aircraft to ensure that the AD's are carried out. Mr. Hiscock's reply was that it is the owner in addition to but not in lieu of the engineer, because when the engineer signs the aircraft out he is stating that it meets all of the standards of airworthiness. Mr. Hiscock did state that the owner could also have been charged here as well as Mr. Kubisewsky, but the owner was not charged.
Mr. Tweed asked whether Mr. Hiscock was aware if Mr. Kubisewsky is an officer of Kenora Air Services Ltd., the owners of the Beaver, Otter and C-A185F. To Mr. Hiscock's knowledge, Mr. Kubisewsky would be the Maintenance Manager because he owns the AMO that Kenora Air Services operates under, and he believes Mr. Kubisewsky is a one-third owner of Kenora Air Services Ltd. Mr. Tweed asked Mr. Hiscock if he had any communications with Mr. Gunn prior to the issuance of these allegations pertaining to the suspension. Mr. Hiscock indicated he had no contact with Mr. Gunn.
In re-direct from Mr. Pratt, Mr. Hiscock was asked if he was aware of the Maintenance Manager of Kenora Air Services requesting Mr. Kubisewsky to do all of this work on these aircraft. Mr. Hiscock was not aware of the request but said it would be unusual for an AMO to proceed without being requested to. Mr. Pratt confirmed with Mr. Hiscock that Mr. Bruce Gunn (Regional Director, Airworthiness Branch, Central Region) would not have anything to do with a compliance action in Transport Canada. However, before issuance of these allegations, Mr. Hiscock did have discussions with his immediate supervisor.
Mr. Pratt called Inspector Gary Little as his next witness. Inspector Little was part of the inspection team that carried out the audit on Kuby's Aircraft Ltd. He focused on the DHC-2 and the C-A185F and assisted on the DHC-3. At the end of the audit, December 1, 1994, he and Inspector Blais cancelled the Certificate of Airworthiness for these three aircraft which belonged to Kenora Air Services Ltd. because of the many deficiencies on each aircraft. Exhibits M-27 and M-28 Notices of Suspension were entered as evidence. These forms listed major discrepancy items on the aircraft that violated the C of A, hence the cancelling of the C of A for DHC-2, C-FJEI and C-A185F, C-FWDB. Additional discrepancies were listed on attached "0009" forms, that needed to be repaired but did not directly affect the C of A.
Both the DHC-2 and C-A185F had been signed out as airworthy by Mr. Kubisewsky in September and October 1994 respectively. At that point outstanding Airworthiness Directives were still outstanding (no record in Technical Log made for these AD's), and the C-A185F had been given a ten-hour extension on its inspection which can only be granted provided all AD's are up to date and there are no time-expired parts on the aircraft. Mr. Little answered the question from Mr. Pratt, that the items listed on the Notice of Suspension and accompanying documents all took time to occur. In other words, they could not have deteriorated to that state from the September or October inspection till the audit at the end of November.
In cross-examination Mr. Tweed asked Mr. Little if he was present at a meeting between Mr. Gunn and Mr. Kubisewsky prior to the issuance of the present Notice of Suspension, to which the reply was no. Mr. Little did attend a "formal conference" with Mr. Kubisewsky, Inspectors Blais, Hiscock and himself present prior to the Tribunal Hearing. Mr. Little pointed out he had no involvement with the suspension of the AMO of Kuby's Aircraft Ltd. However, Mr. Little confirmed that Kuby's AMO suspension arose from the same facts and the same audit as the Applicant's current suspension. These discrepancies and the maintenance control problems were cleared up, and the AMO licence was reinstated.
Mr. Little confirmed through questioning from Mr. Tweed that the DHC-2 and C-A185F were both out of service, sitting in snow banks around Kuby's aircraft hangar. Mr. Little did suspend the C of A's for the aircraft on the spot. The J3C-65 was suspended later because it was a privately registered aircraft, and its owner had to be contacted. Mr. Tweed asked numerous questions of Inspector Little pertaining to Count 12 regarding the DHC-2. The basis of the questioning was that there was no way Inspector Little could verify that all these points listed in Count 12 had occurred from items changed onto the aircraft since the last time Mr. Kubisewsky signed the aircraft out in September.
Regarding Airworthiness Directive CF61-12, the mass balance arm is supposed to be stripped of paint when it is inspected and then resealed and painted. From Inspector Little's inspection of the aircraft, the paint on the mass balance arm was identical to the paint on the rest of the aircraft. Therefore, either the inspection had not been done (paint stripped) or done without stripping the paint (illegally). The AD was indicated as having been done on a maintenance work order sheet but not recorded in the Technical Log of the aircraft.
Inspector Little confirmed that the Maintenance Coordinator for Kenora Air Services Ltd. contracts all of the required maintenance to Kuby's Aircraft Ltd., their AMO, who is then responsible to maintain the inspections for the various aircraft at the appropriate intervals. Mr. Tweed confirmed with Inspector Little that the Airworthiness Manual states it is the responsibility of the aircraft owner to make sure all AD's are met. In this case the owner is Kenora Air Services Ltd. Mr. Kubisewsky is a part owner of Kenora Air Services Ltd., but they themselves were not charged with any of these violations. Mr. Little confirmed at the time of the audit that there were numerous aircraft in the yard from various operators, but the inspectors focused on the Kenora Air Services aircraft and the nearby J3C-65.
With reference to Count 17 pertaining to the C-A185F, C-FWDB, Mr. Tweed again asked numerous questions of Inspector Little regarding whether he could verify that specific parts mentioned in the Count were on the aircraft at the time Mr. Kubisewsky last signed the aircraft out. Again Mr. Little could not absolutely say they were; however, again he confirmed that when it was items of wear, the damage could not have been done in the 28 hours flown since the last inspection.
Regarding AD CF-80-05R1 which states specific part numbers having to be inspected, Mr. Tweed asked Mr. Little if he verified whether these part numbers were on this aircraft. The reply was that the actual part numbers were not verified, but by going back in the logs until the last recording of this AD having been completed, and then noting no major part replacements having been made, it would be logical that the part was still on the aircraft.
Pertaining to AD CF-80-25 for DHC-2 in Count 3, Mr. Tweed drew Inspector Little's attention to an entry in the Technical Log showing extensive work completed on the aircraft in the tail area, and it was dual signed out by Mr. Kubisewsky and Mr. Miller. Would this not constitute the AD CF-80-25? Inspector Little's response was that it did not meet the requirements of the AD, and it did not state what actual work was done.
In redirect from Mr. Pratt, Exhibit M-31 was entered. This is a drawing of the wedjit for the DHC-2 seat. Mr. Little explained how they work and the very poor condition in which he found all three wedjits. Mr. Little confirmed that Mr. Kubisewsky did not question any of the discrepancies found on the Notice of Suspension and attached forms; all items were cleared up before the C of A's were reinstated for each aircraft. Mr. Pratt stated there was no doubt the deficiencies were present. The debate is whether they occurred from the last inspection till the audit, approximately 28-29 flying hours, or whether they were present prior to the inspection, to which Inspector Little agreed.
Referring to the AD on the mass balance arm, Mr. Pratt questioned Inspector Little as to whether he had ever seen an aircraft where the AD had been completed and the paint on the arm perfectly matched the rest of the aircraft. Inspector Little replied in the negative – usually the new paint on the balance arm stands out from the rest of the aircraft. For the AD referring to the aileron differential mount channel, Inspector Little made the point that if the channel had been changed and a new channel installed then the AD would not have to be complied with because the new part number is no longer part of the AD. However, this has to be recorded in the aircraft Technical Log, and there is no mention in this log of any installation of a new part; therefore, the old part remains and the AD must be complied with.
In further examination by Mr. Tweed, Inspector Little verified the cracks in the wedjits may have been caused by forty-five gallon drums being dropped on them.
Mr. Pratt called Inspector N. Blais as his next witness who dealt with Counts 16 and 18. Inspector Blais confirmed that he was part of the audit inspection team at Kuby's Aircraft Ltd. in November/December 1994. Mr. Blais confirmed that he inspected the DHC-3, C-FCBA and J3C-65 and found numerous discrepancies on both aircraft, enough to suspend the C of A for the DHC-3 on the spot. The J3C-65 was suspended a few days later because it was a privately registered aircraft, and its owner had to be contacted and logs presented.
The Notice of Suspension for the C of A for C-FCBA was entered as an exhibit. Once again the 0370 forms showed the major deficiencies that caused the suspension of the C of A, and the 0009 forms listed the numerous other faults requiring repair but not directly affecting the C of A. Inspector Blais confirmed that all of the discrepancies listed on the Notice of Suspension were rectified by Kuby's Aircraft without any argument, and the C of A was reinstated. The aircraft at the time of the audit was on floats, on shore, by Kuby's hangar.
Inspector Blais did a cursory exterior inspection of the J3C-65. There were several glaring discrepancies, and these were noted. He then had to contact the owner of this aircraft because it was a privately registered aircraft. Mr. Morgan, the owner, produced the log on January 3, 1995, and the Notice of Suspension for the C of A was issued on January 8, 1995. According to Inspector Blais several of the discrepancies on this aircraft appeared to have been on the aircraft (by wear shown) for quite a long time. The J3C-65 was totally repaired (more like a rebuild) at Kuby's Aircraft in Kenora. Inspector Blais commented that there was no argument pertaining to any of the discrepancies to be repaired.
Inspector Blais confirmed from the log of C-FTBV that a 100-hour inspection was completed on September 23, 1994. The aircraft flew an additional 29 hours that year until it was inspected during the audit. From Mr. Pratt's questioning, Inspector Blais confirmed that during these 29 hours the following discrepancies may have occurred; the peeling of the dope and possibly the cracked or broken part of the air rudder, as for the others he would have a difficult time accepting they could have occurred in that short time frame. In Count 18 there are six items listed that constitute the violation.
In cross-examination by Mr. Tweed, Inspector Blais confirmed that the suspension of Kuby's Aircraft AMO took place immediately following the audit. To Mr. Blais' knowledge Mr. Kubisewsky wears all the hats for the various positions within Kuby's. It is a one man show. Inspector Blais confirmed a meeting took place between himself, Mr. Kubisewsky, Mr. Bruce Gunn and Mr. Dan Kuka (Walston Air) to set a method in place to clear up all of the problems causing the suspension of the AMO for Kuby's Aircraft. Mr. Kuka would assist Mr. Kubisewsky in re-organizing Kuby's properly, that is to meet the standards required for Transport Canada pertaining to the administrative portion of an AMO. He worked with Transport Canada to correct the problems within Kuby's AMO.
At this point the Tribunal member hearing this case called for clarification of which suspension was before us today. The case before the Tribunal member today was a Notice of Suspension with 18 Counts of violation against Mr. F.E. Kubisewsky on his Aircraft Maintenance Engineer Licence M052930. A lot of the debate heard today centred on a suspension of the AMO of Kuby's Aircraft Ltd. which took place between December 1994 and April 1995.
Mr. Tweed, representing Mr. Kubisewsky, stated these were the same circumstances and the second time around against the same person with today's suspension. The Minister's representative, Mr. Pratt did not present any documentation pertaining to the AMO suspension, as he did not feel it was relevant to today's hearing. However, a runner was sent to Transport Canada's office to obtain the file on the AMO of Kuby's Aircraft Ltd.
Mr. Tweed continued with Inspector Blais. Mr. Blais confirmed that at the time of the audit November 29 – December 1, 1994, the AMO for Kuby's Aircraft was valid and in place. It was subsequently suspended and reinstated, and all of the discrepancies on the aircraft in question were certified as having been repaired following the suspension.
Mr. Blais further confirmed that two more inspections have been completed on Kuby's Aircraft, one prior to reinstatement and one following reinstatement, to see how things were progressing, because Mr. Kuka was to be monitoring the system. Inspector Blais commented that it (Kuby's) appeared to be following the right track.
Mr. Tweed made several references to the discrepancies on the DHC-3, C-FCBA. The engine was time-expired, and the aircraft was withdrawn from service. The aircraft was being worked on in other areas which may have caused the aircraft to be in its state of disrepair. Mr. Tweed made the point that Inspector Blais could not confirm the status of C-FCBA at the last inspection and therefore had no knowledge of whether these discrepancies took place since that inspection or not.
The runner returned with the records of Kuby's suspended AMO. Mr. Tweed asked Inspector Blais to confirm the date of the suspension, December 5, 1994 to 25 April 1995, as correct. A copy of this Notice of Suspension was admitted as Exhibit D-2, and a copy of the letter of reinstatement was admitted as Exhibit D-3.
The suspension of the AMO came about from the audit inspection of November 29 – December 1, 1994 and lasted 142 days. Since reinstatement Inspector Blais has carried out one inspection, and everything appeared to be running well.
From re-direct of Mr. Pratt to Inspector Blais, it was determined that Inspector Blais and other Inspectors were involved in the suspension of Kuby's Aircraft's AMO. Mr. Pratt had Inspector Blais read into the record the three grounds for suspension of the AMO (Exhibit D-2). In Mr. Pratt's analysis only one of the three points pertains to what we are discussing here today; the others pertain strictly to the AMO. Mr. Kubisewsky continued working during the suspension but no certification of aircraft took place until the AMO was reinstated. Therefore, in Mr. Pratt's opinion, Mr. Kubisewsky did not encounter any financial hardship with the AMO suspension.
Mr. Pratt continued questioning Inspector Blais regarding the consequences if today's hearing does suspend Mr. Kubisewsky's AME. What happens to the AMO? Mr. Blais pointed out that at present Mr. Kubisewsky wears all the hats in the AMO; therefore, it would have to shut down, unless Mr. Kubisewsky hired a competent person to fill these positions, then the AMO may continue to operate.
This concluded the Minister's case.
Mr. Tweed, representing the Applicant, called Mr. Kubisewsky as his first witness. Mr. Kubisewsky is the owner, Chief Engineer, Director of Maintenance and Quality Manager of Kuby's Aircraft Ltd. located in Kenora, Ontario. Because of the numerous referrals to Kenora Air Services Ltd., Mr. Kubisewsky confirmed his name does not appear on their Operating Certificate as the Operations Manager or Maintenance Manager.
At the time of the audit Mr. Kubisewsky confirmed there were approximately 15 aircraft around his hangar, all "put up for the winter", with their radio, batteries, ELT's, ration kits etc. removed. Mr. Tweed asked if any of the aircraft involved in today's hearing are owned by Mr. Kubisewsky. He stated he is a one-third owner of Kenora Air Services and holds one share in the Company, but the aircraft do not belong to him personally.
To a question from Mr. Tweed, Mr. Kubisewsky indicated the AMO suspension did severely affect his financial position. In 1994 Kuby's made approximately $900,000, and for 1995 they will be lucky to see $300,000. Mr. Kubisewsky stated that during the AMO suspension he could not work on any other aircraft, so he did run the four aircraft in question through his shop, completing the repairs on all the discrepancies and then certifying them after the AMO was reinstated.
In order for Mr. Kubisewsky to get the AMO reinstated, he hired Mr. Dan Kuka to help him organize the administrative side of the AMO which had numerous deficiencies. Mr. Kubisewsky and Mr. Kuka went to Winnipeg and met with Mr. Bruce Gunn, Regional Director, Airworthiness Branch, Central Region and Inspectors Little and Blais to discuss what had to be done to have the AMO status reinstated. At that meeting the Applicant testified that he was led to believe by Mr. Gunn that all sanctions from the audit were covered under the suspension of the AMO. Mr. Tiny Goulet was also hired into the AMO to look after all the Airworthiness Directives and documentation required for the various aircraft the AMO looked after.
From Mr. Tweed's questions Mr. Kubisewsky confirmed the main problem he had in operating his AMO was that he was a very poor manager when it came to keeping track of who was doing which work to which aircraft and keeping accurate paper records of the work done. Mr. Kubisewsky was more of a hands-on mechanic rather than the manager of the AMO, but now, with Mr. Kuka's help, the books and office procedures are properly in place. Mr. Kubisewsky is spending much more time managing the AMO than on the hangar floor, working.
When the present 180-day suspension with 18 Counts was received by Mr. Kubisewsky, he contacted Mr. Bruce Gunn to find out what was going on. Mr. Gunn was surprised at the new allegations and suggested Mr. Kubisewsky should come to Winnipeg for a meeting to clear things up. When Mr. Kubisewsky attended this meeting chaired by Inspector Hiscock, Mr. Gunn was not in attendance. Nothing was cleared up and the allegations stood. After this meeting Mr. Kubisewsky did meet with Mr. Gunn privately, only to find out it would not have been proper for Mr. Gunn to have attended the previous meeting.
There were numerous questions from Mr. Tweed pertaining to the various points in the 18 Counts against Mr. Kubisewsky. Mr. Kubisewsky 's response to most was that the damage or illegal repair had been done since he last inspected the aircraft and that he had nothing to do with it.
Mr. Pratt, during cross-examination of Mr. Kubisewsky, confirmed he is also the Production Manager of Kuby's Aircraft. He also confirmed that during the suspension of the AMO, Mr. Kubisewsky was able to work on privately registered aircraft under his AME licence. Part of the straightening out of Kuby's AMO was an exam from Transport Canada given by Mr. Kuka to Mr. Kubisewsky which he successfully passed.
During questioning from Mr. Pratt, Mr. Kubisewsky stated that the various Airworthiness Directives had been completed on the aircraft but had not been entered in the logs. Mr. Pratt asked: "if that was the case, why do the AD's not show up on the work order sheets for the various inspections. Does this mean you do the work (AD's) for free?" Mr. Kubisewsky's reply was that the AD's were done and he was paid a flat annual fee for Kenora Air Services work. Other aircraft were billed for the itemized work completed according to the work order.
Mr. Pratt asked quite a few questions of Mr. Kubisewsky referring to Count 16 (a) engine inner baffles on the DHC-3, C-FCBA. Inspector Blais had stated he had seen the aircraft with the baffles in place previously (they are required). Mr. Kubisewsky stated the aircraft was imported in the seventies and had never had baffles installed. That was the condition of the aircraft when Transport Canada inspected and approved it for import.
As his next witness, Mr. Tweed called Mr. James Morgan who is the owner of J3C-65, C-FTBV (Count 18). Mr. Morgan stated that around October 17, 1994 he took his J3 on a hunting trip to Eagle Lake, north of Kenora which is an isolated lake with no roads or means of communication. While there, he stayed at a lodge, with his aircraft tied up to the lodge's dock. During the night the dock broke loose and pushed his aircraft up on the shore causing a lot of damage. As Mr. Morgan had to get back to Kenora, he was forced to do patch work repair to his aircraft to get it back home. As replacements for the boxing wires, he was forced to use steel rods from the wrecked dock to repair the floats. Once the aircraft was flyable, Mr. Morgan flew it back to Kuby's Aircraft in Kenora, where it was pulled out of the water to be repaired during the winter. Mr. Kubisewsky did repair the aircraft over the winter; in fact, it was nearly a re-build.
Mr. Pratt, in cross-examining Mr. Morgan, basically went step by step through Count 18. Mr. Morgan claimed all the faults were caused by the accident – the dock breaking free at Eagle Lake. The ignition leads were found at fault during the inspection.
Mr. Pratt confirmed Mr. Morgan has been a friend of Mr. Kubisewsky for over thirty years. In his summation, Mr. Pratt states that Mr. Kubisewsky testified the AD's stated were complied with but not entered in the appropriate logs, because this was a bit of a gray area with him; however, he admitted perhaps the standards of airworthiness were not met in this regard. All of the AD non-compliance in Counts 1 – 16 have been proven by documentation presented.
That leaves us with Counts 17 and 18 which do not mention an AD but are various discrepancies observed by Inspectors Little and Blais. The question to be asked for these last two counts is: could the discrepancies have occurred in the 28 – 29 hours each aircraft flew since its last inspection? However, Mr. Pratt admits that Mr. Morgan did indicate that several of the items in Count 18 could have happened in the accident at Eagle Lake. When Inspectors Little and Blais gave testimony, they stated that most of these discrepancies could not have occurred in the 28 – 29 hours flying time in either aircraft since their last inspection.
Mr. Pratt spoke to sanction. According to information collected by Inspector Hiscock, Mr. Kubisewsky has been involved in six prior violations, some with multiple counts of violating Air Regulations since 1982. Should the Tribunal find Mr. Kubisewsky guilty of the 18 Counts, Mr. Pratt asked that the Tribunal not reduce the ten-day suspension per Count, because Transport Canada has reduced the suspension from the recommended sixty days plus for subsequent violations down to ten days.
Mr. Tweed submitted that it is improper to try the same person twice for the same offence. In his view, the suspension of the Applicant's AME amounts to trying him on a second occasion, the first being the suspension of Kuby's AMO. According to Mr. Tweed, the Minister was obliged to advise the Applicant if allegations were to be made against both Mr. Kubisewsky and Kuby's. This was to allow the Applicant to see what the total picture was and what his complete defence could be. There is no doubt that the AD's were not entered into the logs, but whether or not the work was done is still in question.
The allegations are made under section 221 of the Air Regulations, but several references have been made today to Airworthiness Manual, Chapter 507 which states explicitly that the responsibility of maintaining AD's lies with the owner/operator of the aircraft. Should the owner/operator send their aircraft outside for maintenance, then the responsible person in that organization has to supply the maintenance facility with the work orders to ensure their aircraft comply with the airworthiness standards. Should the maintenance facility miss any of these AD's then it is the responsibility of the owner/operator to pick this up and make sure the AD is done within the appropriate time and before the next inspection.
Mr. Tweed's interpretation of section 221 of the Air Regulations is that the engineer signs the aircraft out for the work he has done on the aircraft, and under Airworthiness Manual, Chapter 507 it is the owner/operator's responsibility to make sure all the required work is completed. Mr. Kubisewsky is not the owner or the operator of those aircraft, nor does he have any control over when they are presented for maintenance.
There is evidence presented today for some of the discrepancies listed which may have occurred since Mr. Kubisewsky last signed the aircraft out. He is not responsible for any work that may have been carried out on the aircraft by other persons while the aircraft were out of his control. The responsibility for these things rests with the owner/operator.
If the Tribunal does find Mr. Kubisewsky guilty, Mr. Tweed asks for leniency because of the 142-day suspension already served by Kuby's. An additional 180 days would be financially disastrous and would greatly hamper his ability to operate. Mr. Kubisewsky is a one man operation and the sole shareholder in Kuby's. Basically when Kuby's Aircraft was sanctioned, so was Mr. Kubisewsky. When Mr. Kubisewsky is sanctioned, so is Kuby's Aircraft, because they are one and the same.
This has been a very interesting and complicated Hearing. Because of the wide variety of information produced and the voluminous exhibits presented, I am going to provide a detailed conclusion.
I find it surprising, to say the least, that the Minister was reluctant to provide information to the Tribunal concerning Kuby's suspension. It is obvious to me that both suspensions are interrelated.
Having learned of the AMO suspension directed to Kuby's arising from the audit, the Applicant cooperated 100% with Transport Canada to have the AMO licence reinstated. The Regional Director, Airworthiness, Central Region (Mr. Bruce Gunn) told Mr. Kubisewsky that this would be the only sanction to arise out of that audit. For him then to be served with a further set of sanctions by the Minister is most disturbing. If more than one branch of Transport Canada wished to impose a sanction out of the audit in this case, they ought to have proceeded to do so at the same time. Having chosen, for whatever reason, not to do so, I find it patently unfair for the Minister, especially having regard to the assurances given by Mr. Gunn, to do so at a much later date, indeed after the first suspension had been served by Kuby's.
I turn now to the argument advanced by Mr. Tweed on the issue of double jeopardy. In my view, the essential criteria that must be met for the argument to succeed are as follows:
First, it is clear to me that in a situation of double jeopardy there must be one accused. Here, that is not the case. Notwithstanding their obvious close relationship, one suspension was directed to a corporation (Kuby's), while a second suspension was directed to an individual, the Applicant, albeit the sole owner of that corporation.
Second, in such a case, it is also clear that an identical offence is involved in both cases. Even a cursory review of the Notices of Suspension in these two cases makes it clear that we are dealing here with matters that are not identical.
Third, it is the case that, in a situation of double jeopardy, the cases must involve the same facts or arise in the same circumstances. I am satisfied that in these cases, that is exactly the case.
Reviewing these criteria then, I must conclude that, in the strict sense, Mr. Tweed has failed to make out a case in which I can find double jeopardy.
All the Inspectors gave testimony stating that the discrepancies for the four aircraft involved were cleared up without argument by Mr. Kubisewsky. The work was done while the AMO suspension was in place but the certifications took place after the AMO Licence was reinstated. If this is the case, the Applicant was well aware of these discrepancies at the time of his AMO suspension; therefore, as I have noted, the suspension of May 23, 1995 must have arisen from the same facts. The discrepancies were cleared without argument, the AMO suspension was not appealed, but instead Mr. Kubisewsky worked with Transport Canada to re-organize his business to work properly. Inspector Blais is on record as saying everything is on the right track now with the AMO since reinstatement.
From Mr. Pratt's address to the sanctions, it is obvious Mr. Kubisewsky has violated the Air Regulations several times before, in fact six times since 1982. One could say he is a frequent offender. Throughout this Hearing, all inspectors and Mr. Pratt continually stated Mr. Kubisewsky cooperated willingly to rectify all discrepancies on the aircraft and to have Kuby's AMO reinstated.
It is evident from exhibits submitted (Airworthiness Manual, Chapter 507) that another avenue was open to Transport Canada, but they chose not to use it (Tweed summation). The owner/operator's responsibility could have been questioned. The aircraft in question are all on floats, summertime operations, on shore for winter maintenance and stripped of parts that the cold winter weather could damage if left in the aircraft. I believe this was not taken into account regarding some of the discrepancies faulted in the various Counts.
Count 18 refers to a privately registered J3C-65, C-FTBV owned by a friend of Mr. Kubisewsky's. From the testimony of the owner, Mr. Morgan, I feel enough doubt has been presented in this Count to set aside the suspension of the Applicant in this regard. Mr. Morgan claims all but one of the itemized faults (ignition leads) occurred in the dock accident at Eagle Lake.
I should indicate that there is no doubt in my mind that Mr. Kubisewsky violated section 221 of the Air Regulations as indicated in the Notice of Suspension dated May 23, 1995. It is very clear to see, in the paperwork trail of logs and inspection work sheets, that AD's were missed or not entered into the Technical Log, and aircraft were allowed extensions on inspections with outstanding AD's.
Mr. Kubisewsky appears to push everything to the limit when it comes to regulations, but from his testimony this was his weak point in managing the AMO. This is the area that Mr. Kuka has helped him to clear up.
In light of all the circumstances, particularly Mr. Kubisewsky's willingness to clear up all the aircraft discrepancies to have Kuby's AMO Licence reinstated and subsequently receiving a clean bill of health from Transport Canada, I have arrived at the following determination:
1. I set aside the suspension against the Applicant as set out in Count 18.
2. I confirm the contraventions alleged against the Applicant as set out in Counts 1 – 17, and I reduce the suspension imposed to one (1) day in respect of each contravention, for a total of seventeen (17) days.
Gavin W.C. Brown
Civil Aviation Tribunal
- Date modified: