Decisions

CAT File No. C-1455-41
MoT File No. RAP 6504-C754-029424

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Skyward Aviation Ltd., Respondent

LEGISLATION:
Aeronautic Act, S.C., c.A-2, s. 7.7
Canadian Aviation Regulation, SOR/96-433, s. 704.18

Secret Transmission of Material in a Sealed Envelope, New Evidence at the Appeal Level, Maintenance of Aircraft, Cross-examination of Witness


Review Determination
Gordon R. Mitchell


Decision: September 4, 1997

Skyward Aviation Ltd. has contravened section 704.18 of the Canadian Aviation Regulations. The monetary penalty of $5,000.00 shall be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing was held on the above matter Tuesday, July 15, 1997 at 10:00 hours, at the Provincial Government Building, in the city of Thompson, Manitoba.

NOTICE OF ASSESSMENT OF MONETARY PENALTY

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): Canadian Aviation Regulation 704.18, in that, on or about February 3, 1997, at approximately 14:50 hours, at or near Sanikiluaq, Northwest Territories, you did unlawfully permit a person to conduct a take-off in a Cessna 500 aircraft bearing Canadian Registration Marks C-FSKC, that was not maintained in accordance with the Air Operator's Maintenance Control System by reason of the following factors:

1) The aircraft had an unserviceable right engine ignitor box; and

2) The procedures set forth in the Air Operators Maintenance Control System Section 4.11 regarding defect rectification on aircraft away from home, were not followed.

OVERVIEW

On February 3, 1997, Cessna 500 aircraft C-FSKC was in Sanikiluaq, Northwest Territories with an ignition problem on the right engine. The crew members, Captain Behrendt and First Officer Zawadiuk, were unable to start the right engine without replacement of the exciter or some form of innovation.

The innovation consisted of disconnecting the wiring to the left engine exciter and then jerry-rigging a wiring harness to put the left engine exciter in the ignition circuit to the right engine. The right engine was then successfully started.

The temporary wiring was then removed, the original wiring reinstalled, and then the crew members were able to start the left engine.

The crew members took off from Sanikiluaq for Thompson, Manitoba, a 2.7-hour trip according to the Journey Log. The departure was at 14:50.

If a flame-out occurred in the right engine for any reason whatsoever, there was no way that a restart could be induced in this engine at any time from take-off to completed landing during this flight.

The flight was completed successfully.

EVIDENCE

The Minister's first witness, the First Officer of C-FSKC, Ron Zawadiuk, was called and sworn. On questioning, the witness stated that he understood the aircraft was grounded until a ferry permit was obtained. He said that a release for the flight was received by fax from Skyward Maintenance in Thompson. He added that he was aware that, under the circumstances, there was no re-light capability on the right engine if the aircraft were flown out of Sanikiluaq after the temporarily rigged method used to start the right engine.

Exhibit M-1 : Copy of page 30 from C-FSKC Journey Log showing flight – Sanikiluaq to Thompson – up at 14:50, down at 17:24, trip mileage 717, snag written up and corrective action taken

The second witness called by the Minister was Paul Einarson, Director of Maintenance for Skyward. He said that in communication with Captain Behrendt at Sanikiluaq, a method of starting the right engine on C-FSKC was discussed and then implemented.

Mr. Einarson related that he had tried to contact the Transport Canada Regional Office for authority to ferry C-FSKC to Thompson for permanent repair, but that he was unable to contact the office.

A fax signed by Paul Einarson was sent to Captain Behrendt at Sanikiluaq with a hand written date of February 3, 1997 giving permission to ferry the aircraft to Thompson.

Exhibit M-2 : Copy of a fax from Paul Einarson to Captain Behrendt indicating permission to ferry the aircraft to Thompson for repair

The Minister's third witness, E. Dittbrenner, Aviation Enforcement Inspector, stated that the investigation into this matter concerning Skyward's Cessna 500 and the flight out of Sanikiluaq on February 3, 1997 resulted from an anonymous report.

Exhibit M-3 : Copy of Skyward's Air Operator Certificate. Highlighted areas: Part II Type Reference 007 Cessna 500, General Conditions (g) and Maintenance Control Manual (MCM) subsection 706.08(1)

Exhibit M-4 : Copy of Certificate of Registration of Aircraft and Certificate of Airworthiness for Cessna 500, C-FSKC

Exhibit M-5 : Copy of Work Order and Maintenance Release dated February 3, 1997

Exhibit M-6 : Copy of Canadian Aviation Regulations, SUBPART 7 — FLIGHT AUTHORITY. Highlighted area: 507.04(4)(c)

Exhibit M-7 : Skyward Manual highlighted: section 3.9 Library, section 4.1

Exhibit M-8 : Skyward Manual highlighted: section 4.9 Certification of Aeronautical Products a), section 4.11 Defect Control first paragraph, paragraph b), section 4.11 Emergency Repairs, Procedure a) to c)

Exhibit M-9 : Cessna 500 Maintenance Manual Chapter 74 Ignition

Exhibit M-10 : Skyward Minimum Equipment List

Exhibit M-11 : Cessna Citation 500 Flight Manual

On further questioning, Inspector Dittbrenner explained that all equipment relating to the airworthiness and the operating regulations for the aircraft that are not listed in the Minimum Equipment List must be operative and that the repair of such equipment cannot be deferred.

Questioned as to the authority to authorize flight permits, he stated that some operators have this authority, but Skyward does not.

Norman Kenneth Giesbrecht was the fourth witness for the Minister. He is the Acting Director of Operations, Manitoba Government, Air Service. His flying experience was summarized, and his qualifications suited that of an expert witness.

He described the operating procedures relating to the ignition system, the concern that would exist in case of a flame-out caused from various reasons and the fact that a restart would not be possible on the right engine should a flame-out occur.

Questioned by the Case Presenter for Skyward, he stated that, in his opinion, there was a potential for damage to the ignition system when using the method used to make the start of the right engine at Sanikiluaq on February 3, 1997.

Mr. Giesbrecht further stated that there was a hazard in flying C-FSKC with the inoperative items in the ignition system of the right engine. This concern should have been evident particularly during take-off.

The first witness called by the Case Presenter for Skyward was First Officer Ron Zawadiuk who explained two charts produced as exhibits.

Exhibit D-12 : The first chart gives take-off performance for the Cessna Citation 500. The second chart is a page from the Aerodrome/Facility Directory for Sanikiluaq.

Exhibit D-13 : A copy of a letter to Transport Canada from F.P. Behrendt including a sample of a Flight Permit returned to him.

Skyward's second witness was Kenneth Harman who at the time of this occurrence was the Vice President of Operations for Skyward. He related his part in grounding the aircraft, his discussions with Maintenance on an emergency repair and obtaining a ferry permit. He said there was a concern with the amount of daylight remaining and the time needed to complete a repair.

During cross-examination, Mr. Harman was asked if he realized that the exciter was a "no-go" item established as such by the fact that it is not listed in the Minimum Equipment List. He was aware of this.

It had been stated that the exciter was not in stock at Skyward's facility at Thompson. Later, during re-examination, it was stated that the exciter was available in Skyward stock at Thompson.

CONCLUSION

Skyward did not have authorization to issue a flight permit for the flight made by C-FSKC from Sanikiluaq to Thompson on February 3, 1997 with the ignition system inoperative on the right engine.

The Flight Manual for the Cessna Citation 500 states:

This aircraft must be operated in compliance with the certificate limitations herein.

The reference directed to the ignition switch position during flight is as follows:

BEFORE TAKEOFF

Ignition – ON.

AFTER TAKEOFF – CLIMB

Ignition – NORM.

BEFORE LANDING

Ignition – ON.

On this particular aircraft, C-FSKC, on February 3, 1997, following these instructions would have no positive effect on the right engine as the exciter was inoperative; therefore, the switch position could not produce the intended results.

A restart could not have been induced in the right engine at any time during this flight from take-off to landing had a flame-out occurred.

The Air Operator Certificate issued to Skyward states under General Conditions:

(g) the air operator shall maintain its aircraft in accordance with the requirements of Subpart 706, Part VII of the Canadian Aviation Regulations

Skyward's Maintenance Control Manual, Part 4, Section 4.11 Defect Control, first paragraph states:

The Certificate of Airworthiness of an aircraft is not in force unless the equipment, systems, and instruments prescribed in the applicable airworthiness standard, and all required equipment are functioning correctly.

The Minimum Equipment List for Skyward in the last line of the Preamble, page XIII, states:

It is important to remember that all equipment related to airworthiness and the operating regulations of the aircraft not listed on the MMEL must be operative.

The first witness for the Applicant, Ron Zawadiuk, said that a faxed release to ferry the aircraft had been received. The second witness, Paul Einarson, who signed the release referred to it being sent. The handwritten date on the release is February 3, 1997.

It is noted that the unauthorized release is dated February 3, 1997, but the date at the top of the page does not bear this out. The date printed there by the Skyward fax is the same date as that of the two pages, copies of Skyward work orders:

02/04/97 12:29 2046775945 SKYWARD THOMPSON 004 (M-2)

02/04/97 12:30 2046775945 SKYWARD THOMPSON 005 (M-5)

02/04/97 12:31 2046775945 SKYWARD THOMPSON 006 (M-5)

According to the Skyward Fax Unit the three pages above were all printed consecutively on February 4, 1997 between 12:29 and 12:31. Such being the case, how could the ferry release have been received at Sanikiluaq on February 3, 1997?

The dates given in testimony and those shown as they relate to the fax are confusing. They show some discrepancy in testimony given. The result is that the fax, whenever it was sent and received, has no relevancy as it was not a properly authorized flight permit.

Captain Behrendt maintained that he made the best decision in his view, and that he thought he had a maintenance release. He further stated that he waited until the last minute for permission from Transport Canada for the flight.

Evidently, Captain Behrendt knew that he did not have a properly authorized permit to ferry the aircraft to Thompson. Otherwise, he would not have waited until the last minute for permission from Transport Canada.

Aircraft C-FSKC was flown to Thompson in a condition never intended according to Aviation Regulations, Cessna Operation Manual and Skyward's own Manuals.

The Regulations are established mainly in a logical manner with a practical margin of safety. Once this margin of safety is crossed, it matters not whether by a little or a lot, the rule is broken.

Skyward's Cessna Citation 500 registered as C-FSKC was flown from Sanikiluaq, Northwest Territories to Thompson, Manitoba on February 3, 1997 by Captain Behrendt when it could not be considered to be in an airworthy condition.

DETERMINATION

Skyward Aviation Ltd. has contravened section 704.18 of the Canadian Aviation Regulations.

Gordon R. Mitchell
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Faye H. Smith, Philip D. Jardim


Decision: March 25, 1998

The Appeal is dismissed. The monetary penalty of $5,000.00 assessed by the Minister of Transport is confirmed. This amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

An Appeal Hearing on the above matter was held before three designated Tribunal Members, on December 11, 1997 at 10:00 hours at the Federal Court of Canada in the city of Winnipeg, Manitoba.

BACKGROUND

Skyward Aviation Ltd. ("Skyward") is appealing the Tribunal's Review Determination of September 4, 1997. In that determination, the Tribunal Member confirmed the Minister's decision and assessment of a $5,000.00 monetary penalty.

The events giving rise to the appeal occurred on February 3, 1997. On that date it is alleged that Skyward contravened section 704.18 of the Canadian Aviation Regulations (CARs) when at approximately 14:50 hours at or near Sanikiluaq, Northwest Territories it did unlawfully permit a person to conduct a take-off in a Cessna 500 aircraft bearing Canadian Registration Marks C-FSKC, that was not maintained in accordance with the Air Operator's Maintenance Control System by reason of the following factors:

  1. The aircraft had an unserviceable right engine ignitor box; and
  2. The procedures set forth in the Air Operators Maintenance Control System Section 4.11 regarding defect rectification on aircraft away from home, were not followed.

GROUNDS FOR APPEAL

The Notice of Appeal contained the following grounds:

  1. The Review Determination contains errors of fact and law.
  2. The Review Determination errs in not concluding that the Appellant exercised such due diligence as to excuse strict compliance.
  3. The Review Determination errs in being based on or influenced by the issue of the fax signature date on the maintenance release document when that issue was not the subject of the hearing and the Appellant has not had an opportunity to address it.
  4. The Review Determination errs in being based on or influenced by speculation as to the knowledge of Captain Behrendt with respect to the obtaining of Transport Canada permission for the flight when that speculation is incorrect and the Appellant was not given an opportunity to address the speculation at the review hearing.
  5. The Review Determination errs in concluding that Aircraft C-FSKC was flown to Thompson in a condition never intended according to Aviation Regulations, Cessna Operations Manual and Skyward's own manuals.
  6. The Review Determination errs in concluding that Skyward Cessna Citation 500 registered as C-FSKC was flown from Sanikiluaq, Northwest Territories to Thompson, Manitoba on February 3, 1997 by Captain Behrendt when it could not be considered to be in an airworthy condition.
  7. The Review Determination errs in concluding that Skyward Aviation Ltd. has contravened Section 704.18 of the Canadian Aviation Regulations.
  8. The Appellant was not afforded an opportunity to make representations and to present evidence with respect to sanction.
  9. And such other grounds as counsel may advise and the Tribunal may allow.

At the appeal hearing Skyward concentrated its submissions on grounds three and eight cited above together with a further ground founded upon the assertion of a denial of the right of cross-examination, all of which, it was alleged, constituted three serious errors in the Review Determination. We propose considering these three grounds in the order of their presentation.

NEW EVIDENCE

Prior to making submissions, Skyward requested the opportunity to present new evidence in the form of a letter relevant to the issue of the stamped fax dates. Skyward stated that the Tribunal should accept such evidence at the appeal level as the evidence was not available at the time of the review since the issue was not even raised during the hearing. In response the Minister's representative submitted that the issue was not relevant to this appeal.

After discussion, the appeal panel determined that it would receive the letter in evidence for the appeal. It was the view of the panel that, while the material might have been made available at the review hearing, the matter was not an issue at that time and only became an issue through its mention in the Reasons for Review Determination. The panel was prepared to accept the letter on the basis that the issue does raise an inference that could go to credibility. We would note that introduction of new evidence at the appeal level is permitted only in very limited circumstances such as this where the Tribunal Member has addressed an issue in the determination which the parties have not had the opportunity to address at the hearing.

REPRESENTATIONS BY THE PARTIES

1. SPEAKING TO SANCTION

In number eight of its grounds for appeal above, the Appellant states that it was not afforded an opportunity to make representations and to present evidence with respect to sanction.

Skyward submits that the procedure as it unfolded before the Tribunal Member at review resulted in a denial of natural justice. Skyward relies upon subsection 7.9(4) of the Aeronautics Act as follows:

(4) Where a person served with a request under subsection (1) appears before the member of the Tribunal at the time and place set out in the request, the member of the Tribunal shall provide the Minister and the person with a full opportunity consistent with procedural fairness and natural justice to present evidence before the member of the Tribunal and make representations in relation to the alleged contravention.

Skyward says that information at pages 95 and 96 of the Transcript of the proceedings discloses a procedure relating to the submissions to sanction that were made to the Tribunal Member in the form of a sealed envelope.

Because of the highly irregular nature of the procedure, the last paragraph at page 95 and the first two paragraphs at page 96 will be copied in their entirety as follows:

Now the $5,000.00 that was assessed against this company was assessed in accordance with the first minimum sanction for this offence under the new CARs. Now during the course of the decision making process by Transport Canada, there were other documents, that aren't put in as evidence today, that was taken into consideration when the fine was arrived at.

Now those documents have been disclosed to Skyward and I have sealed them in an envelope and what I would ask, Mr. Member, is that if you find in favour of the Minister and after that finding is made, you have a decision that you are going to adjust the penalty, then I would ask that this be opened so that you have the same information before you as the individual in Transport had before him when he made this decision.

The reason we are not filing it is because it would be unfair to the company to have this filed as part of exhibits. And if there is – – if nothing else untoward happens, then there is probably no requirement to have it opened at all.

Counsel for Skyward states that the record of the proceedings does not disclose the contents of the envelope. He further states that he is unable to tell whether the contents of the envelope influenced the Tribunal Member and accordingly he submits that there follows a breach of natural justice and specifically the audi alteram partem rule.

Skyward's counsel was forthright in stating that he was not suggesting that the Case Presenting Officer had acted in bad faith but rather he had concluded that the inspector was trying to separate the offence from the penalty. He suggested that to do so, perhaps it should have been a two-stage proceeding.

Regarding the procedure involving the envelope, the Minister submits that the case of Gerald R. Abramson v. Minister of Transport[1] provides guidance on this issue at page 4 of the Appeal Determination:

Another ground of appeal was that the Hearing Officer failed to afford the Minister an opportunity to make submissions as to the appropriate sanction. Our decision to confirm the Hearing Officer's decision makes this ground academic. It may, however, be of assistance to comment on this issue. It is in our view quite proper for a Hearing Officer to allow both parties to speak to the matter of the appropriate penalty to be imposed prior to the Hearing Officer finding that a contravention has in fact occurred. The Hearing Officer should not however allow evidence to be introduced or alluded to in relation to previous convictions or infractions prior to making a finding that a contravention has in fact occurred.

If evidence of previous convictions is to be introduced it must only be done after the Hearing Officer has concluded that a contravention has occurred and both the Minister and the Document Holder must have an opportunity to address the question of penalty and the previous convictions at that time.

If evidence of previous convictions were introduced prior to the Hearing Officer arriving at his determination the effect could be that the Hearing may be influenced by that fact in arriving at his decision which would not be naturally just or procedurally fair to the document holder.

The Minister's representative submits that the facts before us illustrate that a suggested minimum penalty for a corporation was advanced in response to a contravention of section 704.18 of the CARs. She also states that disclosure was given, and a sealed envelope was presented for consultation by the member after the elements of the offence had been made out.

DISCUSSION

This panel shares the concerns raised by Skyward relating to the very irregular procedure of proffering the envelope which purportedly contained documents taken into consideration by the Minister when the penalty was assessed. For the most obvious reason that only the Case Presenting Officer knows precisely what the envelope contained, it should not have been offered to nor accepted by the Tribunal Member at review. Having stated thus, this panel does not in any way suggest that the Case Presenting Officer was making any attempt at surreptitious or underhanded procedures. Rather we are of the view that he did conceal the documents in an envelope in the interest of fairness to the Respondent without appreciating that such secret transmission of information could only be perceived as itself unfair.

The Minister's representative herein cited the case of Gerald R. Abramson v. Minister of Transport (infra) where the appeal panel in its determination dismissed the Minister's allegations and as obiter dicta provided its view as to the introduction of evidence of previous infraction history. The last two paragraphs of this determination set out that panel's view that to introduce history of past convictions prior to a finding of contravention on the facts of the case before it may in the result influence or bias the trier of fact.

Neither the Abramson case nor the case before us involves a request for or actual consideration of past infractions prior to the finding of contravention. Whether such consideration would taint the procedure as suggested in the Abramson case is not relevant to our discussion. It is therefore sufficient for our purposes to state that the Tribunal is not bound by its own determinations, and we leave the issue of speaking to sanction including the introduction of past history or record of infractions to argument in a future case.

As stated, the case before us does not involve a request for consideration of past infractions prior to the finding of contravention but rather avoids such request by using an unusual procedure to introduce documents for delayed consideration. Hence the issue becomes whether this unusual procedure of secret transmission of material in a sealed envelope to the Tribunal Member has tainted the proceedings.

The appeal panel finds that the Tribunal Member did err in accepting the sealed envelope from the Minister's representative. Such secret transmission of material to the Tribunal Member does result in a procedural irregularity that undermines Skyward's right to a fair hearing. It is the view of this panel that whether or not the contents of the envelope were disclosed to the Respondent as indicated in the transcript, a fact denied by the Appellant's counsel at the appeal hearing, the envelope should not have been proffered to the Tribunal Member at review. Moreover, having been offered the envelope the Member should have declined acceptance for the reasons set out above. The correct procedure for the Case Presenting Officer to have followed would have been to seek the advice of the Tribunal Member as to his preferred procedure relating to submissions as to sanction.

2. RIGHT TO CROSS-EXAMINATION

Skyward submits as its second ground for appeal a new issue relating to the restriction on the right to cross-examine a witness.

As referenced at pages 43 and 44 of the transcript of the review proceedings, Skyward sought to cross-examine the witness Mr. Dittbrenner when the Minister's representative objected on the basis that the material sought to be discussed was not raised in direct examination. Skyward submits that the right to cross-examination while not being automatic in all proceedings should be permitted as necessary where the evidence is relevant and material. Thus to deny the right of cross-examination offends procedural fairness and natural justice.

The representative of the Minister states that on June 12 and July 7 all matters were disclosed by the Minister. Furthermore, copies of the statements were given by the Minister in the disclosure package, and Skyward should have raised them at the hearing.

DISCUSSION

For discussion purposes we find it necessary to revisit portions of pages 43 and 44 of the transcript as follows:

MR. BEHRENDT: Now a question if I may. The evidence, the witness evidence that is presented in the package, do I have to – – if I want to raise a question in regards to that, do I have to do that at this point in time or is it only the evidence that has been presented here that is of – – that I question.

Or like I have this that was provided to me from Transport as the – – for disclosure. Do I – – for the witness evidence, is that included as part of the hearing or the proceedings here? Like would I question if there was something in here that I wanted to ask?

THE CHAIRPERSON: Actually when you have – – when the Minister is through with his witnesses, you will have the same opportunity to bring forward your witnesses and to present any material that you have that would be classified as exhibits.

MR. HISCOCK: I think what he is saying, sir, is he has a copy of the CANSAY and some of the items in the CANSAY didn't come out in evidence in chief. And that isn't necessarily a problem. We sometimes put in a lot of the stuff that may come out that we don't bring out and – – but I would object to being entered or cross-examine on something that hasn't been brought out in evidence in chief.

MR. BEHRENDT: So this is not part of the – –

MR. HISCOCK: No.

BY MR. BEHRENDT:

Q Okay, all right. That is – – actually my line of questioning was actually relating to some of the stuff that was in here too, so my apologies. I didn't understand that.

It would appear to this panel that the foregoing excerpts demonstrate that Mr. Behrendt was deprived of the right to cross-examine Mr. Dittbrenner regarding something contained in the disclosure package which was forwarded to him by the Minister's representatives. It seems that he was uncertain of the procedure and asked whether this is the point at which he would pose a question that he wanted to ask. The Tribunal Member then advised Mr. Behrendt that when the Minister was through with his witnesses then Mr. Behrendt would have the same opportunity to bring forward his witnesses and to present any material that he had that would be classified as exhibits.

The issue of what line of question is permitted on cross-examination of a witness is a recurring one and merits some probing by this panel so as to clear up any misconceptions. A party asking questions on cross-examination is not limited to that range of material which has already arisen in direct examination and may introduce new material, the obvious restriction being that of relevance or materiality to the instant case. It is for this reason that we must conclude that the objection of Mr. Hiscock to cross-examination on something that has not been brought out in evidence in chief is not well founded on that basis alone. The transcript of the proceedings indicates that, while no ruling was made by the Tribunal Member following the objection, Mr. Behrendt did not pursue the issue.

The question before this panel is whether this denial of the right to cross-examination offends procedural fairness and natural justice. To respond to that query we must look to the whole of the transcript as it relates to the opportunities afforded to Mr. Behrendt to enjoy a full and fair hearing. At pages 69, 70 and following, Mr. Behrendt indicates his desire to recall a witness formerly called by the Minister respecting his expert opinion on the operation of the aircraft. He seeks Tribunal guidance as to the appropriate time to call witnesses and provide information and charts. Following explanation of the procedure by the Tribunal Member, Mr. Behrendt then calls his witnesses and puts in his desired evidence prior to final argument.

Upon review, we are of the opinion that the misconception and misstatement of the law regarding cross-examination did not in the result deprive Mr. Behrendt of his right to a fair hearing, and on the facts of this case we are of the view that Mr. Behrendt was able to avail himself of full opportunity to enjoy procedural fairness in the hearing process.

3. EVIDENCE RELATING TO THE FAX DATE

As number three of its grounds for appeal above, Skyward states that "The Review Determination errs in being based on or influenced by the issue of the fax signature date on the maintenance release document when that issue was not the subject of the hearing and the Appellant has not had an opportunity to address it."

At page 6 of the Review Determination the Tribunal Member summarizes the evidence relating to the faxed release to ferry the aircraft which the applicant's witness indicated had been received. The witness Einarson who signed the release referred to it as having been sent. The written date on the release was February 3, 1997. The date stamped on the three fax pages was February 4, 1997. As a consequence of this fax date, the Tribunal Member in his determination queried how the ferry release could have been received at Sanikiluaq on February 3, 1997. The Tribunal Member did conclude that the result is that the fax, whenever it was sent and received, has no relevancy as it was not a properly authorized flight permit.

It was the position of the Appellant that the Tribunal Member made a finding of credibility on a wrong basis, one that was not tested at the hearing. Skyward stated that had the issue of the fax date been addressed at the hearing then the Tribunal Member would not have concluded that there was a discrepancy in the evidence. Skyward asserted that the finding made by the Member influenced his decision as to credibility of the witnesses. Moreover, Skyward submitted that the credibility issue is absolutely crucial to the due diligence defence to the extent that if you think that the person has lied to you, then due diligence is a non starter. Skyward joins issue with the conclusion reached at the last paragraph at page 6 of the Review Determination.

The new evidence offered by the Appellant and accepted by the panel was in the form of a letter on Skyward's letterhead indicating that the phone records attached thereto confirmed the sending of a fax to the Sanikiluaq airport on February 3, 1997.

For the Minister it was argued that the fax transmission date was not an issue at the hearing. The fax was signed and sent, and the handwritten date on the release was February 3, 1997.

The new evidence considered has determined the fax signature date as February 3, 1997, and this panel need comment no further on the issue.

CONCLUSION – PROCEDURAL ISSUES

We conclude that the procedural irregularity regarding the sealed envelope, as discussed above, has in fact tainted the proceedings such that a breach of the rules of fairness and natural justice has occurred. We are thus of the opinion that we should set aside the determination of the Tribunal Member at review and we conclude that the appropriate remedy would be to have the matter reconsidered on its merits. We do not believe that it is necessary to remit the matter to a new member to review the merits since we the appeal panel have not seen the sealed envelope nor its contents, and we are thus able to consider the matter afresh not having been tainted by the procedural irregularity which undermined Skyward's right to a fair hearing at the review hearing.

RECONSIDERATION ON THE MERITS

The events giving rise to the allegations of the Minister are briefly stated at page 1 above. It was the evidence of Mr. Zawadiuk that he and Captain Behrendt had on February 3, 1997 flown a Citation 500 aircraft C-FSKC on a charter from Churchill to Sanikiluak. After the passengers deplaned they tried to start the engines but could not get ignition on one of the engines. Captain Behrendt called Skyward's base requesting a fax be sent so that the aircraft could be released under that condition to fly it back to Thompson. A fax signed by someone in Skyward's maintenance office was sent stating that the aircraft was authorized to fly back to Thompson. Mr. Zawadiuk stated that Captain Behrendt got the ignition from the good engine and jumped it across to the igniter plugs on the faulty side with the faulty box. Mr. Zawadiuk stated that he was inside the aircraft, turned on the engine on the opposite engine and started the faulty side engine. The crew members then departed Sanikiluaq for Thompson at 14:50 arriving at 17:24 without incident.

In his response to a question from the Tribunal Member, Mr. Zawadiuk said at page 11 of the transcript:

I saw no safety concern as far as piloting the aircraft or as far as the aircraft goes, given the conditions of the aircraft and the conditions of the weather that day. The only thing I was concerned about is having legal authorization to do so.

Skyward's air operator's certificate indicates that it is allowed to operate commercially a Cessna 500 series aircraft under CARs section 704. A general condition of the air operator certificate states:

The air operator shall maintain its aircraft in accordance with the requirements of Subpart 706, Part VII of the Canadian Aviation Regulations

Section 706.08 dictates that:

706.08 (1) An air operator shall establish, maintain and authorize the use of a maintenance control manual (MCM) that contains information to ensure the efficiency of the maintenance control system, as set in the Commercial Air Service Standards.

Skyward's Maintenance Control Manual, Part 4, Section 4.11 DEFECT CONTROL, first paragraph states:

The Certificate of Airworthiness of an aircraft is not in force unless the equipment, systems, and instruments prescribed in the applicable airworthiness standard, and all required equipment are functioning correctly.

The Minimum Equipment List for Skyward in the last sentence of the Preamble, page XIII, states:

It is important to remember that all equipment related to airworthiness and the operating regulations of the aircraft not listed on the MMEL must be operative.

The Director of Maintenance for Skyward gave evidence that he had discussed the method of starting the right engine of C-FSKC with Captain Behrendt. He stated that they figured they could release it out of Thompson via fax as a deferred defect to get it home to do maintenance on it. He also stated that they tried to contact Transport Canada but that they did not get a call back until 16:00 or 16:30, at which time the aircraft was en route having departed at 14:50. The Director of Maintenance gave evidence that he did check the minimum equipment list for the aircraft that day and that the exciters or ignition igniters were not on it. It was the evidence of Mr. Harman, Vice President of Operations for Skyward who was also part of discussions relating to the emergency repair and the ferry permit, that he too was aware that the exciter was a "no go" item as it was not listed in the minimum equipment list.

Inspector Dittbrenner on behalf of the Minister gave evidence that all equipment relating to the airworthiness and the operating regulations for the aircraft which is not listed in the minimum equipment list must be operative and that repair of such equipment cannot be deferred. He further stated that Skyward did not itself have authority to authorize flight permits. The sole authority for the flight permit was Transport Canada.

CONCLUSION – ON THE MERITS

We conclude that Skyward did permit a person to conduct a take-off in Cessna 500 C-FSKC when it was not maintained in accordance with the procedures set out in the Air Operators Maintenance Control Manual. We find that the said aircraft did operate with an unserviceable right engine igniter system which not being listed in the minimum equipment list was required equipment for take-off. It is also clear from the evidence that the defect could not be deferred. Moreover, Skyward's faxed flight authority dated February 3, 1997 was ineffective in that Skyward did not have power to authorize such flight permits. We are of the view that Skyward made some efforts toward due diligence in that it telephoned Transport Canada for a ferry permit; however, the aircraft departed at 14:50 more than one hour before the returned telephone call, and we conclude that this falls short of the due diligence required.

The Appeal is dismissed. After reviewing written submissions requested of the parties regarding sanction, we confirm the monetary penalty of $5,000.00 assessed by the Minister of Transport.

REASONS FOR DISSENTING DETERMINATION

of Philip Jardim

I hereby dissent from the determination by my learned colleagues, to confirm the penalty imposed by Transport Canada on Skyward Aviation. My reasons are as follows:

  1. Skyward has fully established its defence of due diligence, notwithstanding my learned colleagues' statement that the aircraft departed Sanikiluaq at l450 hours, leaving "one hour before the returned telephone call." The reason Captain Behrendt had to leave at this time was in order to conduct the flight in daylight VMC (Visual Meteorological Conditions). This would have been a condition of any flight permit issued by Transport Canada. The aircraft landed at Thompson at sunset, just within the "daylight VMC" requirement. Had he waited any longer, this requirement would not have been met.
  2. At all times, Captain Behrendt and his Director of Maintenance sought to operate within the CARs, and they established a full and open dialogue with Transport Canada. I find Skyward's conduct responsible and exemplary in this regard.
  3. There were extenuating circumstances on that day: The incident took place in the Arctic, in winter, on a rare day of good weather. Arctic weather is infamous for its capriciousness. A delay to the next day to await the inevitable flight permit from Transport Canada may have resulted in an indefinite and prolonged stay at Sanikiluaq in harrowing conditions due to a possible and unforecast deterioration in the weather. The aircraft was cold soaking, and battery problems would have resulted, making starting more difficult. Captain Behrendt went out of his way to conduct the flight within the regulations and met all the requirements of a ferry permit.
  4. The flight was operated by essential crew only, and there was no commercial payload on board. There was no risk nor danger to the public or public property.
  5. In the remote event of an engine failure on take-off, the aircraft would have decelerated to a stop before V-1 within the runway length available, or safely continued the take-off on one engine should the failure have occurred above V-1.
  6. In the similarly remote event of an enroute engine failure, the flight could have proceeded safely to anyone of a number of enroute alternates, and/or maintained safe flight on one engine, well above the minimum enroute altitude, between Sanikiluaq and Thompson.
  7. The JT-15D is a very reliable engine. It was unlikely to have flamed out in the circumstances, without continuous ignition on take-off and final approach. Ideal C.A.V.U. (ceiling and visibility unlimited) conditions existed during the flight.
  8. At the review hearing, Skyward was denied the opportunity to cross-examine Mr. Dittbrenner fully. This is a clear contravention of fairness and natural justice. The appeal hearing has not cured this defect.
  9. It is evident from the transcript that the Hearing Officer was influenced by the incorrect dates on the facsimile, and, by the sealed envelope handed to him by the Transport Canada Case Presenting Officer. This is the second time that fairness and natural justice have been contravened. In my opinion, coming to the same conclusion indicates that the Tribunal agrees with the flawed findings of the review hearing. This is contrary to the sacred principles of fairness and natural justice which our Tribunal must uphold.
  10. I believe that due regard has not been given to the practical considerations and extenuating circumstances of this situation. It is the duty of this Tribunal to look at such matters in the real world context as well as the strictly legal context.
  11. In my view, the institution of this sanction may well have the effect of driving the aviation community "underground." They will shrink from the exemplary example given by Skyward in this case, in being completely open and up front with Transport Canada.
  12. I cannot ignore the opinion expressed by Inspector Dittbrenner at the review hearing, that it was likely that a ferry permit would have been issued to Skyward for the flight. Transport Canada must bear responsibility for not being available in their offices during normal working hours, to respond to Skyward's request.

In summary, the due diligence of Skyward excuses it in accordance with section 8.5 of the Aeronautics Act, and item 12 above should give comfort to the Tribunal in allowing this appeal, let alone the other considerations under reference above.

It is my decision that the appeal should be allowed and that the determination of the Tribunal member at the review be set aside. Accordingly, the Minister's assessment of a monetary penalty of $5000.00 should be dismissed.

DETERMINATION

The Appeal is dismissed. After reviewing written submissions requested of the parties regarding sanction, we confirm the monetary penalty of $5,000.00 assessed by the Minister of Transport.

Reasons for Majority Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Allister Ogilvie, Vice-Chairperson
Dissented: Philip Jardim, Member


[1] (Appeal Determination) CAT File No. P-0032-02, February 16, 1989.