CAT File No. C-1292-37
MoT File No. RAP-6504-P378546-027884
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Eric Stephen Ortwein, Respondent
Aeronautics Act, R.S.C., 1985, c. A-2, ss 7.7, 8.4(3)
Air Regulations, C.R.C. 1978, c. 2, s. 826(1)
Journey log entries, De-ice boot system defect
William C. Pearson, Q.C.
Decision: October 17, 1996
I find that the Respondent did consent to the omission of the snag report and accordingly did contravene subsection 826(1) of the Air Regulations. I confirm the penalty at $100.00. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.
The Review Hearing on the above matter was held Tuesday, October 8, 1996 at 10:00 hours at the Department of Justice, in Winnipeg, Manitoba.
The Respondent was alleged to have contravened the following:
Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):
Air Regulation 826(1) in that, on or about February 13, 1996 at approximately 16:38 hours local time, at or near Winnipeg, Manitoba you did fail to maintain the aircraft journey log for a Cessna 421C aircraft bearing Canadian Registration marks C-FGMO by reason of the fact that you failed to enter the wing de-ice boot system defect in the aircraft journey log.
The evidence submitted by the Minister showed the Respondent was acting as pilot-in-command of a Cessna 421C aircraft inbound to Winnipeg on the date and time mentioned.
Exhibits M-1 and M-2 are a copy and transcript of the tape made of the conversation between the Respondent and the tower. In part the broadcast was as follows:
TWR SKYWARD 811, go.
SKG Can you just check – we're having – our de-ice boots have failed on us so if we could just level off at 6500 feet here, it looks to be – the ceiling tops around 5,000 feet.
I am satisfied that there was an equipment failure in the ice boots as reported by the Respondent. After the Respondent had landed, he contacted one "Gary Peters" who was the owner's maintenance engineer in Winnipeg. Tests were carried out by them, but the de-ice boots worked fine. No entry was made in the aircraft journey log as no snag could now be found. The Respondent then flew the aircraft VFR to Thompson. It is to be noted that he did not enter the cloud where the icing was recurring.
Subsection 826(1) of the Air Regulations, the section under which the allegation was made, reads as follows:
826. (1) Every owner of an aircraft, other than an ultra-light aeroplane, registered under these Regulations shall maintain for that aircraft an aircraft journey log and an aircraft technical log.
It is clear that the owner of the aircraft (in this case, Skyward Aviation Ltd.) is liable for the maintenance of the journey log. Exhibit M-3, being a photocopy of the journey log of the aircraft, shows no snag recorded.
The Aeronautics Act provides in subsection 8.4(3) the following:
(3) The pilot-in-command of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless the offence was committed without the consent of the pilot-in-command and, where found to have committed the offence, the pilot-in-command is liable to the penalty provided as punishment therefor.
The question is did the Respondent consent to the failure to enter the snag in the journey log by the owner. To my mind he did consent. Even if one considers Gary Peters as a representative of the owner, he still consented to the omission of the snag report. The purpose of requiring the entry is to warn subsequent pilots of the equipment failure and its repair. Where it is not recorded, then no warning is given to pilots who may subsequently fly the aircraft. The evidence shows clearly that whatever the problem was with the "ice de-boots" it was cured on the ground. I am sure it is difficult to enter a snag when you cannot find the snag on test. However a snag report on the journey log would alert other pilots subsequently using the aircraft.
I find therefore that the Respondent did consent to the omission of the snag report and accordingly did contravene subsection 826(1) of the Air Regulations.
With regard to the penalty assessed by the Minister, it is the minimum. I see no reason to change it.
My thanks to both parties for the fair way in which they presented both facts and argument.
William C. Pearson, Q.C.
Civil Aviation Tribunal
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