CAT File No. C-2440-35
MoT File No. RAP5504-045487 (P)
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Douglas Aero Engine Inc., Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, s. 571.02(3)
Repair, Qualified technicians, Non-destructive testing (NDT), Mitigating factors, Maintenance, Excessive fine, Aircraft maintenance organization (AMO), Aircraft engines
Philip D. Jardim
Decision: July 11, 2002
While ignorance of the law is no excuse, in view of the reasons given, and circumstances of this case, I have determined that a fine of $100 is more appropriate. Douglas Aero Engine Inc. should keep itself abreast of the regulations which apply to its operations to avoid future potential infractions. The amount of $100 is to be made payable to the Receiver General for Canada and must be received by the Tribunal within 15 days of service of this determination.
A review hearing on the above matter was held Wednesday, July 3, 2002 at 10:00 hours at the Federal Court of Canada in Winnipeg, Manitoba.
Douglas Aero Engine Inc. ( DAE Inc.) was audited by a Transport Canada audit team on August 9 and 10, 2001. The team comprised Robert Streber, and Garnet Fedorowich, both of whom are Transport Canada civil aviation safety inspectors in maintenance and manufacturing. The audit team found that DAE Inc. had been carrying out non-destructive testing (NDT), including magnafluxing, on aircraft engines, without having suitably qualified technicians, as required by subsection 571.02(3) of the Canadian Aviation Regulations (CARs), Schedule I, column II. On the morning of August 10, 2001, the audit team debriefed Mr. William Douglas and advised him of its findings. Mr. Douglas undertook to cease performing NDT on engine parts forthwith, and to subcontract such work to an approved aircraft maintenance organization (AMO), until such time as he qualified himself.
A Transport Canada investigation ensued, resulting in the issuing of a Notice of Assessment of Monetary Penalty against DAE Inc. The imposed fine of $2,500 was not paid, and Transport Canada applied to the Tribunal for this review hearing.
Subsection 571.02(3) of the CARs states:
(3) Except where the work is performed in respect of an amateur-built aircraft, no person shall supervise, or perform without supervision, an inspection using a method set out in column I of an item of Schedule I to this Subpart, unless the person holds the personnel certification set out in column II of that item.
Schedule I to subsection 571.02(3)), Personnel Certification for Non-destructive Testing (NDT) states:
NDT using liquid penetrant, magnetic particle, eddy current or ultrasonic methods, not performed pursuant to Appendix K of Chapter 571 of the Airworthiness Manual
CAN/CGSB 48.9712-95, Level 2 or Level 3;
NDT using radiographic methods
Level 2 or Level 3 of the following standards: CAN/CGSB 48.9712-95 or MIL-Std-410; or Level 2 or Level 3 of the following specification: ATA 105
Mr. Welwood adduced evidence from his three witnesses to support the charge laid in the Notice of Assessment of Monetary Penalty. This included eleven exhibits, including the audit findings, the relevant legislation, records of briefings, etc. It is clear from this evidence and the witnesses, all of whom were credible, that DAE Inc. does not comply with the current CARs, when it comes to NDT and magnafluxing in particular.
However, this company has been carrying on its business of overhauling aircraft engines, including magnafluxing, for some 25 years. Indeed, when the last audit was performed by Transport Canada, on March 28, 1995 (Exhibit D-1), the audit team found no discrepancies related to NDT. Indeed, the company's ability to perform liquid penetrant inspection, and magnetic particle inspection were both examined during this audit. No non-conformance was uncovered in this area of DAE Inc.'s operation. Mr. William Douglas testified that he had been magnafluxing engine parts ever since he passed his aircraft maintenance engineer (AME) Class "D" exams in 1975. He says that nothing has changed since then, and that DAE Inc. has its own NDT testing equipment. Notwithstanding this, its certificate of approval as an AMO, dated December 19, 1997, does NOT include NDT.
Since this audit in 1995, the CARs came into force in October 1996, and the certificate of approval for DAE Inc., under reference above, is dated December 19, 1997. It is significant that this AMO does not include approval for NDT. Mr. Douglas firmly believed that his company had "grandfather" rights to continue as before, and produced an "Airworthiness Notice" issued by Transport Canada, No. C011 Edition 2, dated March 7, 2000 (Exhibit D-3). Inter alia, this notice says: "No AME loses any maintenance release privileges as a result of these changes." The "changes" under reference in the Airworthiness Notice are changes in the application of privileges, by the consolidation of existing ratings to AME licences. Mr. Douglas interprets this as giving him "grandfather rights" to continue NDT without having to take the new exams required under subsection 571.02(3) of the CARs, Schedule I, column II: CAN/CGSB(Canadian General Standards Board) 48.9712-95, Level 2 or Level 3.
Mr. Douglas's witness, Mr. Gordon Urie, is a former Transport Canada inspector who had been with the department for some 24 years. He testified as to Mr. Douglas's expertise with the NDT that he has used over the years. He has written a letter supporting Mr. Douglas's application to the NDT Certifying Agency to take the exams.
It is significant that when he was informed about the results of the August 2001 audit by Transport Canada, Mr. Douglas immediately undertook to cease NDT, until he qualified himself under subsection 571.02(3) of the CARs. He subcontracts this work to an approved organization.
Notwithstanding that the regulations have been breached, there are strong mitigating factors here. There is also evidence of some diligence and a sense of responsibility on the part of DAE Inc. The company has been in business for 25 years. Mr. Douglas was duly qualified to do NDT until the advent of the CARs and is demonstrably experienced. The audit of 1995 did not flag its ability to do NDT, and, while Airworthiness Notice No. C011 Edition 2 (D-3) may not give Mr. Douglas the "grandfather rights" he thinks it does, there is some justification for his being under this illusion. Exhibit M-10 adequately explains the company's response to Transport Canada's investigator, Mr. Tom Bennett. In this letter, Mr. Douglas also explains that they were doing work only on their own engines.
There is, of course, a safety issue to be addressed: aircraft engines which are overhauled by unqualified personnel may be dangerous, in that they may fail prematurely. DAE Inc. has been overhauling engines for over two decades. No evidence was adduced by the Minister that any of these engines have failed as a result of improper NDT, or for any other reasons. Although Mr. Douglas is not now legally qualified to do NDT, he was, prior to the CARs, and he is certainly very experienced at it.
Under the circumstances, I believe that a fine of $2,500 is harsh punishment for a small organization such as DAE Inc. This is especially so when the company immediately responded to the audit team's debriefing and immediately ceased conducting NDT.
There is scope in Transport Canada's Aviation Enforcement Procedures Manual for leniency in the event of strong mitigating circumstances, as I find in this case. An honest mistake has been made here, and I believe that a warning would have been more appropriate under these circumstances. Such action would encourage companies, such as DAE Inc. to feel more at ease in seeking advice from Transport Canada, rather than fearing harsh enforcement action, as I feel is the case here.
While ignorance of the law is no excuse, in view of the reasons given above, and circumstances of this case, I have determined that a fine of $100 is more appropriate. DAE Inc. should keep itself abreast of the regulations which apply to its operations to avoid future potential infractions.
Philip D. Jardim
Civil Aviation Tribunal
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