Decisions

CAT File No. C-1225-33
MoT File No. RAP-6504-P022325-027517

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

John Robert Angus Clarkson, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Air Regulations, C.R.C. 1978, c. 2, ss 210(1)a), 826(1)
Certificate of Airworthiness Order (Air Navigation Order, Series II, No. 4), ss 3(a), (b)

Journey Log Entries, Certificate of Airworthiness


Review Determination
William C. Pearson, Q.C.


Decision: August 1, 1996

I find the contraventions did occur. However, because some defects had failed to be reported by Transport Canada inspectors or by AMOs employed by the owner, I reduce the penalties for each contravention in counts one to eight from $250.00 to $125.00 for a total of $1,000.00 and from $100.00 to $50.00 for the contravention in count nine for a total penalty of $1,050.00. This sum, payable to the Receiver General for Canada, must be forwarded to the Civil Aviation Tribunal within fifteen days following service of this determination.

A Review Hearing on the above matter was held Tuesday, July 9, 1996 at 10:00 hours at the offices of Environment Canada, in the city of Winnipeg, Manitoba. The Respondent indicated he had received full disclosure by the Minister. Both parties agreed that no agreements had been reached by them.

BACKGROUND

John Robert Angus Clarkson was alleged to have contravened paragraph 210(1)(a) of the Air Regulations on the eight following occasions:

COUNT #1: April 19, 1995, at approximately 1700 hours local time;
COUNT #2: April 21, 1995, at approximately 1810 hours local time;
COUNT #3: April 29, 1995, at approximately 910 hours local time;
COUNT #4: April 29, 1995, at approximately 1750 hours local time;
COUNT #5: May 8, 1995, at approximately 900 hours local time;
COUNT #6: May 8, 1995, at approximately 1635 hours local time;
COUNT #7: May 9, 1995, at approximately 1100 hours local time; and
COUNT #8: May 17, 1995, at approximately 1730 hours local time.

In addition, he is alleged to have contravened subsection 826(1) of the Air Regulations between July 12, 1994 and May 17, 1995 in that he unlawfully failed to maintain an aircraft journey log by neglecting to enter total air time since new on each line of the journey log. An examination shows that the total time was entered at least once on each page of the journey log.

In each of the eight alleged contraventions, the Minister lists the following items as causing a loss of airworthiness under paragraphs 3(a) and (b) of the Certificate of Airworthiness Order, ANO Series II, No. 4:

a) No maintenance release entered for the fixed gear installation which was completed on December 1, 1994;

b) Maintenance entered in the journey log on December 1, 1994 was not transferred over to the technical log (airframe log) as prescribed in Chapter 575, Section 575.7(f) of the Airworthiness Manual;

c) Propeller blade root chafe ring broken and falling out;

d) Tail wheel steering and air rudder linkage and cables were not hooked up in accordance with the standard;

e) Engine had excessive oil leaks;

f) Carburetor air box, seal missing;

g) Left front and rear exterior door handle shafts and linkages were excessively worn;

h) Right front exterior door handle was not an approved part;

i) Right rear main gear attach bolt was not an approved part and part of the said bolt head was cut off;

j) Right upper and lower main gear attach bolt nut not within safety; and k) Jam nut was missing from the left rear main gear rebound block retainer.

There is no question that items c), d), f), h), i), j) and k) were sufficient if proven to cause the loss of airworthiness under the order. Indeed, Mr. Girardin, the AME called by Mr. Clarkson, admitted this.

The evidence discloses that Mr. Clarkson left the aircraft C-FGQJ at Matheson Island, Manitoba and requested Mr. Girardin to fix a magneto in the aircraft while he, Mr. Clarkson, was attending a wedding in Saskatoon. This work was to be done on May 16, 1995. On this day, Inspector Little of the Airworthiness Branch was in attendance at Matheson Island on another matter. He noticed C-FGQJ and did an external examination of the aircraft which resulted in the production of the snag list as detailed in Exhibit M-8. As he was in the process of his inspection, Mr. Girardin arrived to do his work with the magneto.

At this point the evidence was not clear. Mr. Little understood that Mr. Girardin would look after the snags and ground the aircraft. Mr. Girardin said no; he was only to fix the Magneto. Mr. Little then left the scene, leaving Mr. Girardin who then fixed the magneto and returned to Winnipeg. Neither of them made any attempt to advise Mr. Clarkson, or leave a snag list with the aircraft, where he would spot it, or ground the aircraft.

On May 17, Mr. Clarkson returned from Saskatoon to Matheson Island. According to the journey log, he took off at 1730 hours, flying for 25 minutes to Berens River, his home base.

On May 18, 1995 Inspector Little called Matheson Island (Wam Air) and was advised of the departure of C-FGQJ on the previous day. Inspector Little then issued a Notice of Suspension (Exhibit M-7) and delivered the same, by Fax, to Mr. Clarkson at Berens River, along with Exhibit M-8. No evidence was forthcoming with regard to repairs or any flying after May 17.

I would point out that, except for two items, there is no direct evidence that the condition of the aircraft existed prior to May 16, 1995. These two items are the square door knob and the tail wheel steering linkage and cables, both of which Mr. Clarkson stated were on the aircraft when he acquired it from NORCAN AIR. Mr. Girardin said that he had installed a non-standard part, namely the right main gear attach bolt, but the evidence is not clear when, but presumably it was done no later than December 1, 1994 when the wheels were installed and floats removed.

I am concerned particularly with the rear wheel steering, which the evidence states is non-standard and apparently has never before been questioned either by the Airworthiness Branch or the AMO employed from time to time by Northern Manitoba Outfitters Limited.

On reviewing all of the evidence and in particular the evidence of Mr. Clarkson and Mr. Girardin, I have reached the conclusion that the Minister has established, on a balance of probabilities, that the Certificate of Airworthiness was not in effect as alleged in Counts one to eight. With regard to Count #9 of the contravention, it is alleged that there was a failure to enter the total air time in the journey log on each flight occasion, though the total for each page of the journal showed this figure. Subsection 826(1) of the Air Regulations requires the owner to keep the journey log. However, the Certificate of Registration shows Northern Manitoba Outfitters Limited as the owner. The Minister has proceeded by subsection 8.4(2) of the Aeronautics Act, making Mr. Clarkson vicariously liable as the operator.

I am therefore satisfied on the evidence produced by the Minister and with admissions made by Mr. Clarkson and Mr. Girardin that the contraventions indeed occurred.

I turn now to a consideration of the penalties to be imposed. Because some defects had failed to be reported by Transport Canada inspectors or by AMOs employed by the owner, I reduce the penalties for each contravention in counts one to eight from $250.00 to $125.00 for a total of $1,000.00 and from $100.00 to $50.00 for the contravention in count nine for a total penalty of $1,050.00.

William C. Pearson
Member
Civil Aviation Tribunal