CAT File No. C-2033-35
MoT File No. RAP5504-040225 (P)
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Everett Allen Potter, Respondent
Aeronautics Act. R.S., c. 33 (1st Supp) s. 7.7, 8.5
Canadian Aviation Regulations, SOR/96-433, s. 571.03(a)
Failure to enter defects, Maintenance release, Strict liability offence, Aircraft journey logbook, Decrease in monetary penalty
Keith Edward Green
Decision: August 8, 2000
By virtue of the evidence submitted and the testimonies rendered, the Tribunal has decided to uphold the Minister's decision in respect to the allegation that the Respondent contravened paragraph 571.03(a) of the Canadian Aviation Regulations. However, the Tribunal is not in agreement with the Minister's inference that the act was wilfully committed and has accordingly decided to decrease the penalty, being a first offence, by $100, from $350 to $250.. That amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within 15 days of service of this determination.
A Review Hearing on the above matter was held Thursday, July 13, 2000 at 10:00 hours, at the Provincial Court Building in Regina, Saskatchewan.
Mr. N. C. Muffitt, Regional Manager, Prairie & Northern Region, Transport Canada Aviation, issued on March 3, 2000 a Notice of Assessment of Monetary Penalty to Mr. Everett Allen Patterson Potter (Respondent).
The assessed penalty covering the alleged violation under paragraph 571.03(a) of the Canadian Aviation Regulations (CARs), was for $350, payable in full, on or before April 7, 2000, to the Regional Manager, Aviation Enforcement, Transport Canada.
The Notice of Assessment of Monetary Penalty reads in part as follows:
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 571.03(a), in that at approximately 1553 hours UTC, on or about the 10th day of June, 1999, at or near Indian Head, Saskatchewan, you performed maintenance on an aeronautical product and failed to ensure that the details required by Chapter 571 of the Airworthiness manual were entered in the technical record for the aeronautical product in respect of the task performed, more specifically, you replaced the tire, cleaned the wheels and repaired the tire tube of a Cessna 172 RG aircraft bearing Canadian registration marks C-GKJE, and failed to ensure the maintenance action was recorded in the aircraft journey log book.
Mr. Potter declined to pay the penalty before the prescribed date, his intention being to bring the matter before the Civil Aviation Tribunal and contest the charge. Therefore, the monetary penalty, not having been rendered for count 1 as charged, subsequently invokes subsection 7.8(2) of the Aeronautics Act.
Prior to the commencement of the hearing proper, the Tribunal Member (Mr. Keith Edward Green), read aloud a short statement explaining for the benefit of all those present in the courtroom, the general proceedings and proprieties of the said hearing. There were no preliminary motions raised by either party prior to the commencement of the hearing.
Pursuant to section 7.7 of the Aeronautics Act, a monetary penalty applies. Section 7.7 of the Act provides as follows:
7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,
(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and
(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).
(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.
The Notice of Assessment of Monetary Penalty, paragraph two, calls into force provisions designated pursuant to the Designated Provisions Regulations, SOR/96-433 (Canadian Aviation Regulations, Part 1 - General Provisions, Division IV, subsection 103.08(1)) and the procedures in sections 7.7 to 8.2 of the Aeronautics Act respecting monetary penalties apply.
CARs Subpart 71-Aircraft Maintenance Requirements, paragraphs 571.03(a) and (b) (Exhibit M-9)
Airworthiness Manual Chapter 571, section 571.03, Information Note (Exhibit M-10)
Definition of "aeronautical product" as defined in the Aeronautics Act, Chapter A-2. (Exhibit M-11)
Aircraft Equipment and Maintenance Standards - 625, Appendix A - Elementary Work "The performance of ... Item (3) For aircraft operated ..." (Exhibit M-12)
Subsection 605.94(1) of the CARs "The particulars set out in ... Schedule I (subsection 605.94(1)) Item 9."(Exhibit M-13)
AGREEMENT BETWEEN PARTIES
The Tribunal Member asked the parties collectively, if there had been any pre-hearing agreements or settlements reached. The Minister's representative responded in the affirmative and proceeded to read the recently drafted agreement, verbatim, direct from a note pad. The agreement read as follows:
- That Cessna 172 RG registration C-GKJE, landed beside the Indian Head aerodrome on June 8, 1999.
- That the aircraft sustained a flat tire and damaged rim in the landing.
- That on June 9, 1999, Mr. Potter repaired the tire tube and replaced the tire, that is the nose wheel, on the above aircraft.
- That C-GKJE departed Indian Head on June 10, 1999.
- We also agreed that Mr. Potter did not record the maintenance action in the journey log for C-GKJE.
- Mr. Potter did in fact not see the aircraft's journey log.
- Mr. Potter did not ask to see the aircraft's journey log.
It must be emphasized that the above agreement was read to the Tribunal Member without provision of "without prejudice". It is unknown to the Member if the Minister advised Mr. Potter regarding the potentially incriminating nature of the details contained within the agreement. Therefore, I must assume that Mr. Potter, who was representing himself, was in all probability, unaware that a certain amount of protection might be available had the principle "without prejudice" been invoked.
Given the above reasoning, the Member asked the Minister if he would be submitting the agreement, to which the Minister responded, "I wasn't planning on submitting that, Sir, if Mr. Potter would agree to that, that it's read into the record, that's sufficient for us." Mr. Potter did not reply to the invitation to respond.
The legalities concerning the interpretation of the term "without prejudice", of which I believe were not disclosed to Mr. Potter for any apparent or damaging reason, are nevertheless pertinent to this case. As such and after much sagacity, I have decided to treat the agreement as one surrendered "without prejudice" and therefore have ruled that the information contained within its bounds (though not entered as evidence, yet still on record) are inadmissible before the Tribunal.
As with most cases pursuant to sections 7.7 to 8.5 of the Aeronautics Act, the case involving Mr. Potter and the Minister of Transport is a "strict liability offence." In a strict liability case, the Minister has only to prove that the alleged offence (actus reus) was committed; there is no requirement for the Minister to prove there was intent (mens rea) to commit the offence. During the course of the hearing, should the Minister prove that the alleged offence was committed, the evidentiary burden shifts from the Minister to the document holder who must then substantiate that all reasonable care (due diligence) was exercised in trying to prevent the offence from occurring. The evidentiary shift from the Minister to the document holder is expressly provided for at section 8.5 of the Aeronautics Act, in order to provide the document holder with a viable defence against "prima facie" offences.
Therefore, in order to establish my determination, I have separated the process of review into two distinct areas: The first area endeavours to establish whether the Minister successfully proved, on a "balance of probabilities", that the document holder, Mr. Potter, violated paragraph 571.03(a) of the CARs. The second critical area examines Mr. Potter's involvement and ascertains whether he exercised due diligence in trying to prevent the situation from occurring. The question arises: "did Mr. Potter do all that a reasonable man would have done in a similar situation?" The answer to the above question, as well as the establishment as to whether either party fulfilled their respective task, will be discovered during the process of rendering the two basic areas to their dynamic components.
THE MINISTER'S CASE
As is customary during a review, the Applicant (the Minister, represented by Mr. James Welwood, as the Case Presenting Officer (CPO)) proceeded first with the introduction of pertinent evidence, attempting in the process to prove Mr. Potter did perform maintenance on C-GKJE without recording and listing the work accomplished in the aircraft's journey log book, as required under paragraph 571.03(a) of the CARs. Paragraph 571.03(a) was entered by the Minister as Exhibit M-9, providing reference to the regulation under which Mr. Potter was charged.
Paragraph 571.03(a) states in part:
A person who performs maintenance or elementary work on an aeronautical product shall ensure that
(a) the details required by Chapter 571 of the Airworthiness Manual are entered in the technical record for the aeronautical product, in respect of the task performed; and
As can be seen, paragraph 571.03(a) clearly requires that all maintenance, whether of an elementary nature or not, be entered into the applicable technical record, in respect of the task performed by the person who performed the work.
Having established who was supposed to record the accomplished maintenance work, the Minister presented Exhibit M-10, being an extract from an information note (571.03) found within the Airworthiness Manual, Chapter 571, which provided reference to Appendix A of the Aircraft Equipment and Maintenance Standards - 625 (entered as Exhibit M-12). Exhibit M-1 is a certified true copy of the Notice of Assessment of Monetary Penalty as dated March 3, 2000. It contains reference to the specific charge and the task(s) accomplished to the aircraft, namely; "replaced the tire, cleaned the wheels and repaired the tire tube of a Cessna 172 RG aircraft bearing Canadian registration marks C-GKJE". By reviewing Exhibit M-12 item (3), it is clearly demonstrated that the work accomplished to aircraft C-GKJE was not of an elementary nature and as stated in the opening sentence of the document, "The following lists are exhaustive in nature; if a task is not listed, it is not elementary work ..." Item (3) is applicable to the aircraft in question, as it was operated pursuant to section 406 of the CARs (flight training units).
Exhibit M-13 , an extract from section 605.94 of the CARs, was entered by the Minister as clarification of journey log requirements. The document clearly defines the person responsible for ensuring the recording of maintenance action(s) and elementary work along with the time frame for accomplishment of entry. By submittal of other exhibits being: M-6 - Certificate of Airworthiness, M-7 - certified true copy of C-GKJE journey log pages, and M-5 - Certificate of Registration of Aircraft, the Minister was adequately able to demonstrate other pertinent factors justifying his case, i.e. ownership, category, registration, pilot, aircraft type, etc. Having proved the above, it only remains for the Minister to prove Mr. Potter was the person responsible for working on the aircraft C-GKJE and by "de facto", the person responsible for making the log entry for the maintenance work accomplished.
Although the aircraft journey log pages did not confirm that any work had been accomplished on the date in question (June 9, 1999), which helps support the Minister's claim of omitting to record the maintenance action, they also do not show other work that potentially was not recorded and that may or may not have been accomplished by Mr. Potter or any other aircraft maintenance engineer (AME), for that matter. In other words, the log pages do not demonstrate anything on their own. Only when they are viewed and compared in conjunction with Exhibit M-4 (Potters Aviation Service invoice) is there any real weight rendered to the alleged contravention.
Exhibit M-4 is a certified true copy of an invoice provided by Mr. Potter to the Edmonton Flying Club (the owners of C-GKJE). The invoice lists a series of maintenance actions that were conducted on the aircraft on June 9, 1999, the corresponding date to the alleged contravention. These items are as follows:
a. Removal of aircraft from field
b. Landing gear O.K.
c. Replace tire and cleaned wheels
d. Repaired tire tube
At the end of the invoice there is what might be described as a notation for the owner, it reads: "Landing to swing by Edmonton Flying Club & Replaced Tube & ½ Rim." The Invoice also provides reference to the hourly rate charged and the time required to accomplish the maintenance tasks listed. Further to the list of work accomplished there is another notation that simply reads "Paid Cash", followed by a signature of receipt.
Exhibit M-4 , when viewed in relation to Exhibit M-7, clearly proves that the said maintenance work was accomplished on aircraft C-GKJE and that the work was completed on June 9, 1999, by Mr. Potter.
In respect to the allegation, the Minister has proved, on the balance of probabilities, that the offence was committed. The Minister accomplished this via the submittal of sound evidence, during the course of the hearing. As previously stated, once the Minister has proved that the offence was committed, the evidentiary burden shifts to the document holder who must establish that all reasonable care was exercised, in trying to prevent the offence from having occurred.
THE DOCUMENT HOLDER'S CASE
The Tribunal Member asked Mr. Potter, before the start of the proceeding, if he had received a disclosure package and whether it contained sufficient information. Mr. Potter replied in the affirmative, answering "yes" to both questions.
During Mr. Potter's opening statement, Mr. Potter informed the Tribunal that the "aircraft [C-GKJE] landed at his place in Indian Head, it was an aircraft that he helped an individual with." Mr. Potter continued by stating "I did not authorize any airworthiness of this aircraft, as I felt it wasn't airworthy. In closing, Mr. Potter explained that he did not have suitable equipment or an inside facility to service the aircraft and therefore "I did not wish to sign this aircraft out because I did not have any equipment to go any further, I left it up to the pilot to make the final decision."
The Respondent, representing himself, asked several initial questions during the cross-examination process of the Minister's first witness, Inspector J. Gaudry. However, they served no purpose in respect to Mr. Potter's case of demonstrating to the Tribunal that he did all within his power to prevent the incident from having occurred. Mr. Potter, during his questioning of Inspector Gaudry, illustrated to the Tribunal that he did not seem to completely understand the objective of a cross-examination process and was consequently reminded by the Tribunal Member to refrain from interjecting statements into his question period of the witness. Mr. Potter's lack of familiarity of the CARs was also highly evident.
However, during the cross-examination of the Minister's second witness, Aviation Enforcement Inspector Albert Cheetham, Mr. Potter asked several pertinent questions, relevant to his defence. The intent of the questioning was to confirm Mr. Potter's notion that if the aircraft C-GKJE had not left his property, he would not have been charged with the allegation. Mr. Cheetham, when asked this, would not answer the question directly. Instead he quoted the regulations, explaining correct procedure for the recording of maintenance on an aeronautical product. Again, Mr. Potter asked the question "If the aircraft hadn't left my property, I wouldn't have been charged, correct?" Mr. Cheetham responded that he "couldn't really answer, yes, or no." He then proceeded to qualify his answer and in so doing stated "you can make up an entry at the end of all maintenance, but before the next flight." Mr. Potter interpreted this response as an answer to his questioning line, being that the maintenance was not finished and therefore he was only required to make a maintenance entry before the next flight. Mr. Potter then stated to Mr. Cheetham that "I had no jurisdiction over the pilot taking off." Mr. Cheetham answered "No exactly, I understand." Mr. Potter had no further questions for the witness.
The Minister entered M-13 as evidence against the document holder. However, if we examine M-13 containing Schedule I (subsection 605.94(1)) item 9, column II (Time of Entry) and column III (Person Responsible for Entry) we see the following:
Column II: "As soon as practicable after the maintenance action or elementary work is performed but, at the latest, before the next flight."
Column III: "The person who performed the maintenance action or elementary work."
In respect to the above requirements, during his cross-examination of the Minister's first witness, Mr. Potter clearly demonstrated that he thought the maintenance requirement was not complete and, as such, was not prepared to enter the work performed at that time and date. It is not for this Tribunal to debate whether this is good or bad practice, being an academic argument. What the Tribunal must decide is whether Mr. Potter had finished all the maintenance that he was going to perform on the aircraft, and if so, did he communicate this to the pilot and/or owner of aircraft C-GKJE.
Exhibit M-4 presented by the Minister is an invoice by "Potters Aviation Service" to the Edmonton Flying Club in respect of work performed on aircraft C-GKJE for the total amount of $149.80. Examination of this exhibit reveals nothing unusual; in point of fact, it is a normal invoice listing work performed, date, amount receivable, etc. The document does not state that it was for partial work performed, nor does it indicate that there was to be any follow-up work/inspection etc. In respect to Exhibit M-4 and evidence contained within Mr. Potter's testimony, I must conclude that Mr. Potter prepared the invoice as a finalization of a contract/arrangement and, for all intents and purposes, had finished the service on his client's (the Edmonton Flying Club) aircraft.
After taking the stand and duly being sworn in, Mr. Potter proceeded with his testimony, whereupon he described in general terms the area and conditions of the day's (June 9) events. Mr. Potter stated that "the aircraft itself - I did not release it as being airworthy, and I did not want him to fly it; it was up to him to use his own discretion." Mr. Potter continued "We needed more parts, we needed another half of a wheel and we didn't have one anywhere - so he could have sat there for a week or two, it wouldn't have mattered to me, he didn't have to leave. The gentleman elected to take it back to his home base for further maintenance." With that, Mr. Potter ended his testimony, whereupon the Minister (Mr. Welwood) proceeded to ask questions of the witness.
Mr. Potter was asked if he had the next day, after presenting the invoice to the pilot, "asked for the journey log book." To which Mr. Potter replied "No, I didn't." The Minister then asked Mr. Potter "could you have made an entry in the journey log book at that point?" Mr. Potter replied in the affirmative "I could have." Mr. Welwood had no further questions. At that juncture, the Member explained to Mr. Potter that he now had the opportunity to elaborate or explain why he did not ask for the journey log. Mr. Potter explained "the reason I didn't ask to sign the log book, and that was that the aircraft wasn't airworthy and needed to have a Gear Retract on it. ... So I didn't want to do maintenance and that, any further. They could have hired someone to come out from Regina, or wherever, with jacks and do it outside if they wished, but no one wanted to do it, because the weather was terrible."
At what seemed to be the conclusion of Mr. Potter's testimony, the Tribunal Member interjected in an attempt to clarify a key point, realising that Mr. Potter was unaware of the damning nature of his statement and that Mr. Potter was not experienced enough to have clarified the issue for himself. The Member asked "An obvious question that comes to my mind is who did you relate this to?" Mr. Potter replied that he "had talked to the Edmonton Flying Club, the people who own this aircraft, and it seems like I wasn't talking to the owner but someone who was in charge of it. ... I talked to the maintenance engineer and I talked to someone who was overseeing the flying club, it might have been under receivership or that type of control, I talked to two or three different people." The Member then asked Mr. Potter, referring to his conversation with the Edmonton Flying Club, "if this was related (communicated) to the pilot." Mr. Potter replied "No, not the pilot."
The Minister proceeded with his argument, outlining the charge and basic facts that he had presented during the hearing. This accomplished, the CPO then reiterated the law and defined for those present, that the maintenance performed on C-GKJE was not elementary maintenance but maintenance of a more substantial nature. In presenting his argument Mr. Welwood quoted Mr. Potter as having said "that he [Mr. Potter] did not want to make an entry in the aircraft journey log, subject to the condition of the aircraft." Mr. Welwood informed the Tribunal that Mr. Potter had the opportunity to ask for the journey log when the pilot paid the invoice to Potters Aviation Service, but failed to do so. In closing, the CPO advised the Tribunal that the "Minister is prepared to speak to sanction in whatever manner you (the Tribunal) deem appropriate."
Mr. Potter opened his argument by informing the Tribunal "that the aircraft was not meant to be flown." He then explained the reason for issuing the invoice, being that the pilot wanted the work charged, to which Mr. Potter responded "No": His reasoning being that he had invested money and was concerned with recouping it. Mr. Potter then related to the Tribunal his frustration over the CARs and elaborated on his reasons for not signing the aircraft's logbook, being his concern over the aircraft's airworthiness.
The Applicant's Rebuttal
Mr. Welwood, in response to having listened to Mr. Potter's argument, attempted once again to clarify for those present what the requirements of the CARs are, in respect to entering a record of the work performed on an aircraft as opposed to those requirements for the release of an aircraft.
The charge brought before Mr. Potter was: "you performed maintenance on an aeronautical product and failed to ensure that the details required by Chapter 571 of the Airworthiness Manual were entered in the technical record for the aeronautical product in respect to the task performed ... and failed to ensure the maintenance action was recorded in the aircraft journey log book."
Mr. Potter undeniably performed the maintenance tasks on C-GKJE and was clearly remiss in not entering a record of the work performed into the aircraft's journey log book. However, the Tribunal would like to inform the parties concerned that it does not deem Mr. Potter deliberately, nor wantonly decided to disregard section 571.03 of the CARs as was implied by the Minister. The Tribunal is of the opinion that Mr. Potter was not familiar with the requirements of section 571.03 and was in fact confused with respect to those requirements and those pertaining to the release of an aeronautical product for return to service.
The Tribunal, though it might sympathize with those few individuals who find the CARs overwhelming in content and nature, can never recognize ignorance of the law as an excuse, especially during the performance of professional duties. Mr. Potter stated that he held a copy of the CARs, and therefore, one must assume, had the opportunity to familiarize himself with the required procedures.
In retrospect of the hearing, I believe Mr. Potter could have prepared himself more thoroughly with the contents of his disclosure package and with the hearing's proceedings in general. For example, the Minister entered a "Telephone or Visit Record" as Exhibit M-8, which was also contained within the disclosure package. When the Member asked Mr. Potter if he had read M-8, Mr. Potter responded that he had not. The Tribunal wonders why the pilot and/or the owners of the Edmonton Flying Club were not in attendance at the hearing. One can only speculate at this juncture but some important issues may have been clarified via their attendance.
By virtue of the evidence submitted and the testimonies rendered, the Tribunal has decided to uphold the Minister's decision in respect to the allegation that the Respondent contravened paragraph 571.03(a) of the Canadian Aviation Regulations. However, the Tribunal is not in agreement with the Minister's inference that the act was wilfully committed and has accordingly decided to decrease the penalty, being a first offence, by $100, from $350 to $250.
Keith Edward Green
Civil Aviation Tribunal
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