CAT File No. O-1471-41
MoT File No. PAP6504-C-000000-028216
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Royal Aviation Inc., Respondent
Aeronautics Act, S.C., c.A-2, s.7.7, 8.4
Air Navigation Orders, VII, No.2, s.12(2)(3)
Air Regulations, C.R.C. 1978, c.2, s.210(1)(a)(b)
Airworthiness Manual, s.571, 573
Flight Permit, Ferry Flights, Certificate of Airworthiness
Decision: December 15, 1997
I dismiss the Minister's allegations against Royal Aviation Inc. and the monetary penalties assessed. I find that both allegations are unfounded and that the balance of probabilities weighs in the Respondent's favour.
The Review Hearing on the above matter was held in two sessions: the first was November 19, 1997, at the Federal Court of Canada, in Montreal, Quebec, and the second December 2, 1997, at the Holiday Inn hotel in Sainte-Foy, Quebec.
All the witnesses were sworn in.
The allegations were brought by the Toronto regional office of Transport Canada against Royal Aviation Inc./Conifair (hereinafter referred to as "Royal") pursuant to section 7.7 of the Aeronautics Act for contravening, on two occasions, paragraph 210(1)(a) of the Air Regulations:
- on May 16, 1996, during a flight from Toronto to Montreal with a Convair 580 aircraft registered as C-GQBO;
- on May 21, 1996, during a flight from Montreal to Toronto with the same aircraft (Exhibit M-1).
In both cases, Royal was the operator of the aircraft and the aircraft's certificate of airworthiness apparently was not valid, as the aircraft in question had not been maintained in accordance with the approved maintenance program. In both cases, these were ferry flights.
A monetary penalty of $1,000.00 was assessed for each offence.
At the Respondent's request, the first review hearing was adjourned and moved to Montreal, with simultaneous interpretation. The Applicant then filed a second request for adjournment owing to unforeseen circumstances.
On November 14, 1997, in a conference call between Yves Gosselin and Jules Bourgoin of Transport Canada, Brian Jenner for the Respondent, and the undersigned for the Tribunal, a request for an adjournment to go over new documents sent at the last minute from the Toronto office was denied, the parties eventually admitting they had sufficient time to review them before the hearing set for November 19, 1997.
Paragraph 210(1)(a) of the Air Regulations stipulates as follows:
210. (1) No person shall fly or attempt to fly an aircraft ... unless there is in force in respect of that aircraft
(a) a certificate of airworthiness issued under this Part ...;
(b) a flight permit issued under this Part, or
Several other regulatory provisions were mentioned at the hearing. I will cite them when it is relevant to do so.
Any underlining or highlighting in the following text is that of the undersigned, unless otherwise indicated.
It can be said straightaway that the flights of May 16 and 21, 1996, are not in dispute, nor is the fact that there were defects that rendered the aircraft in non-compliance with the certificate of airworthiness and made it necessary to issue a special ferry permit.
If we refer to subsections (6) and (7) of the certificate of airworthiness (Exhibit M-2), this certificate still existed but was, ultimately, "expired."
A flight permit had to be issued, pursuant to paragraph 210(1)(b), so that the aircraft could be flown.
By means of several documents and two witnesses, the Applicant's representative, Jules Bourgoin, showed as follows (initially, it was mainly the witness Arbour, a Transport Canada inspector in Toronto, who explained the basis of the allegations):
- Royal was the operator of the aircraft at the time of the flights in question.
- Because the aircraft had defects that invalidated its certificate of airworthiness, a flight permit had to be issued. To his knowledge, this was not done.
- Moreover, such a permit should have been issued by Transport Canada, because Royal was not authorized, through its approved maintenance program, to issue ferry permits.
- Document M-3, which is an excerpt from Chapter 571 of the Airworthiness Manual published by Transport Canada, stipulates that the owner or operator of an aircraft is responsible for maintaining the aircraft in an airworthy condition.
The term "operator" is important here as it establishes that even though Royal was not the owner of the aircraft, it became the operator by virtue of using the said aircraft for flights.
- Chapter 573 of the same manual adds that no one is authorized to operate an aircraft under the terms of an operating certificate unless the aircraft is listed in the maintenance specifications issued to the air carrier and the aircraft is maintained in accordance with the maintenance control system described in the operator's maintenance control manual (Exhibit M-4a). The Applicant claims that the Convair 580 aircraft is not in Royal's maintenance program.
- Although no specific reference is made to it, the Applicant filed in bulk document M-5 containing the operational specifications of the Convair, as well as part of Air Navigation Order (ANO), Series VII, No. 2, of which subsections 12(2) and (3) should be read, among others. Included with this document (Exhibit M-5) is ANO, Series I, No. 2, concerning the standards and procedures for transporting passengers in private aeroplanes (not the case here). The witness added that the aircraft had been neither operated nor maintained according to the specifications and approval of the aircraft (M-2, paragraph 5), in contravention of the certificate of airworthiness.
- The main defects are found in the copies of pages from the aircraft's journey log (Exhibits M-6a, 6b and 6c), including:
- problems related to pressurization, signal lights and seats;
- document M-9 (supposedly completed by Air Niagara Express Inc. (Niagara) which had possession of the aircraft) mentions problems of corrosion (this is what is meant by the notations CID1 and CID2). Also, the excerpt from the log book of C-GQBO for the Toronto-Montreal flight of May 16 (M-6b) does not say that the defects noted during previous flights (M-6a) had been corrected. However, an engineer, claimed to be Mr. Marc Kalus, whose name and licence number are illegible, certified the aircraft as being in a safe condition (not airworthy) for a ferry flight from Toronto to Montreal. This is not sufficient for an aircraft in the "large aeroplane" category. This should have been done under the responsibility of an aircraft maintenance organization (AMO). The same is true of the May 21 flight.
- Exhibit M-7 states the nature of the inspection Marc Kalus allegedly made (here again, it is necessary to guess at both the name and the licence number, 226983). The witness is not certain who Marc Kalus worked for or whether it was for an AMO.
All these matters concerning defects were explained in greater detail by the witness William Bowmer.
Finally, it should be kept in mind that in his testimony, Inspector Arbour acknowledged contacting Robert Plante of Royal and even meeting him about other defects that might constitute several infractions. It was to explain the situation that Mr. Plante subsequently sent Mr. Arbour the letter of March 18, 1997 (Exhibit M-8).
The following emerged from the cross-examination:
- It is reiterated that, for a ferry flight, all "large aeroplanes" must be certified as airworthy by either an AMO or Transport Canada, and that had Royal requested a ferry permit, it would have been issued one.
- The witness Arbour was unable to provide definitive answers to a number of questions about approved maintenance programs and the category of aircraft to which these programs pertain (private or commercial aircraft), but he knew that Niagara had such a program as an AMO and that only an AMO can issue a flight permit.
- The witness could not, however, say anything about the defects related to pressurization and corrosion, given that the flights were made without pressurization.
- There was a very lengthy discussion with the witness Bowmer of the fact that the aircraft's technical logs were not available and that it was difficult to know what to think about the defects, which may or may not have been corrected before the ferry flights.
He confirmed, however, that everything relating to aircraft C-GQBO is reflected in the Niagara maintenance program and that a cardex file substitutes for technical logs. He did not have this cardex file with him at the hearing.
Finally, the witness did not know whether the maintenance program of one carrier (i.e., Niagara) could be used for another carrier, in this case, Royal.
The Respondent called two witnesses: Robert Plante, director of maintenance for Royal, and Donald Larouche, head of quality control for the same carrier. The two were responsible for aircraft C-GQBO.
The following emerged from their testimony:
- On May 16, 1996, the aircraft was in the possession of Royal and the CIBC bank. The two parties decided it would be safer to return the aircraft to Montreal while awaiting settlement of their financial dispute with Niagara.
- It was Donald Larouche who issued the ferry permit, as he is authorized to do by Royal's AMO. The flight was made without passengers or cargo, and without payment.
- In the meantime, Niagara obtained the right to bring the aircraft back to Toronto pursuant to a decision of the Toronto court (Exhibit T-1). In his decision, Mr. Justice R.D. Blair ordered the aircraft returned "forthwith" (T-1, paragraph 5).
- A second ferry flight was therefore made on May 21, in the same conditions as the first. A flight permit was again issued (Exhibits T-2a and T-2b) for this, as the aircraft was still not airworthy.
Note: Exhibit T-2b is a copy of T-2a, except that the date and place of issue are clearer. At the time, the Respondent could not produce a copy of the first flight permit, issued May 16, but the witness Larouche explained that he had informed Inspector Arbour of the existence of this permit in a telephone conversation.
With these permits, the requirements of subsection 210(1) of the Air Regulations were met. The witness Plante reaffirmed that at a meeting in Montreal, in March or April 1997, he had informed Inspector Arbour of all this, but that Mr. Arbour had preferred not to discuss the matter of permits, as further charges were likely. This allegation has not been denied.
The witness Larouche confirmed that it was he who completed and signed the ferry permits for May 16 and 21, 1996. He also confirmed that he sent a copy of each permit to Transport Canada by facsimile transmission. Exhibit T-2b is an example.
It was at this point that the Applicant asked the Tribunal for an adjournment to see whether the copies of these flight permits could be found. There were two possibilities: either the copies in question should be found and Transport Canada would stop the proceedings, or the hearing should continue.
The Respondent objected, as it had not completed its evidence, and this would enable Transport Canada to review its investigation after hearing the Respondent's witnesses.
I granted a 15-day adjournment solely on the matter of the disputed existence of the flight permits. Meanwhile, I asked that the hearing proceed.
By using documents T-3 and T-4, which are excerpts from the maintenance management manual belonging to Royal's AMO and approved by Transport Canada, the witness Larouche pointed out that Royal was indeed authorized to issue ferry permits for a number of aircraft, including the Convair 580 (Exhibit T-3, paragraph 188.8.131.52). However, paragraphs 1.4 and 1.4.1 of Exhibit T-4 are part of Amendment No. 9 dated June 6, 1996, that is, after the flights of May 16 and 21. According to Mr. Larouche, the authorizations were the same prior to June 6.
As for the engineer Kalus' signature on documents M-6b and M-6c certifying that the aircraft was in a safe condition for the ferry flights, it is acceptable, as Mr. Larouche had assigned Mr. Kalus to the task under Royal's AMO.
The following points emerged in cross-examination:
- A copy of the flight permits was sent to Transport Canada, but the administrative office was not specified.
- A copy had also been given to the pilot and another should have been in the company records, but for some unknown reason the permit for the May 16 flight went astray; the Respondent intended to clarify this point before the hearing resumed December 2.
- The engineer Marc Kalus had been given his authorization by telephone, with no specific contract. However, a copy of the flight permits was allegedly sent to Mr. Kalus by facsimile transmission. When Inspector Arbour went to Montreal in March and April 1997, he allegedly saw the copies of the permits.
- An error does appear on permit T-2b; the stated reason for the aircraft's non-compliance with airworthiness requirements: "Return to owner" is not correct; it should have stated that the aircraft had defects, and what they were.
ADJOURNMENT TO DECEMBER 2, 1997
When the hearing resumed, the Applicant confirmed that it had found no copy of the ferry permits. For its part, the Respondent had found neither the original nor the copy of the flight permit of May 16.
The Applicant then asked to call a new witness, an inspector from the Transport Canada airworthiness office in Quebec. For the same reasons cited at the November 19 hearing, the Respondent objected to this request. As I had granted the adjournment only on the matter of the existence of the flight permits, I refused to hear this new witness.
The Respondent, who had been unable to produce the flight permit of May 16, 1996, filed document T-5, which is an affidavit signed by Jean-Pierre Thivierge, the pilot-in-command who made the flight on May 16, 1996. The document was not sworn, but the Respondent pointed out that if the signatures on this letter were compared with those of the aircraft log (M-6b), there was no doubt as to the authenticity of the person having signed it.
The Applicant in turn filed three more documents; I allowed them without prejudice, the Applicant having concluded its evidence November 19, 1997.
- Exhibit M-10, which adds an explanation about the privileges of Royal and its subcontractor with regard to the responsibility for applying the inspection programs of aircraft operated by the company. This document complements documents T-3 and T-4 submitted by the Respondent and confirms Royal's authority with respect to subcontracting;
- Exhibit M-11, which is a request for a renewal of authorization regarding the flight permits issued by Royal. It should be noted, however, that there is no effective date and no reference to the Convair 580;
- Exhibit M-12, which confirms that Royal had this authorization.
Some confusion will be seen in the dates of the last two documents, the request for renewal (M-11) being dated the day after the granting of the authorization (M-12). This authorization appears to me to cover every time it is necessary to move an aircraft that does not comply with airworthiness requirements. If the Convair 580 does not appear on the request in M-11, this, according to the witness Larouche, is an oversight. Exhibit M-10 refers to the AMO which covers the Convair 580. Documents T-3 and T-4 should also be reviewed in this regard. As for the request for authorization (M-11 and M-12), it can be assumed that they crossed in the mail.
In its argument, the Applicant brought out two essential points of this dispute: the delegation of the authority a carrier may have to issue a ferry permit for an aircraft that is not airworthy; and the fact that Royal did not have this privilege, and in any event, it did not issue a flight permit for aircraft C-GQBO.
The reason for issuing a special flight permit is strictly to allow for maintenance of an aircraft to be carried out. The purposes of the ferry flights in May 1996 were, in the first case, to exert greater control over the aircraft, and in the second case, to comply with a court order.
Also, all activities related to the flying, maintenance, repairs, defects and so on of an aircraft are to be recorded in the aircraft's technical logs. In the present case, the technical logs are not available.
Whether the flights for which special permits are issued are commercial or private is irrelevant, the same rules apply.
Finally, the copies of the flight permits are to remain with the journey and technical logs and be kept in the operator's records, with a copy at Transport Canada. Except for a copy of the facsimile transmission for the flight of May 21, 1996, no other copy could be filed in evidence. Also, the authorizations contained in M-11 do not mention the Convair 580.
The Applicant closed by acknowledging that Inspector Arbour could easily have issued the necessary ferry permits for C-GQBO. Finally, due to mitigating circumstances, it would be appropriate to reduce the amount of the penalties.
Mr. Brian Jenner, for the Respondent, relied on many regulatory provisions, including a number that do not strike me as fitting as they have nothing to do with subsection 210(1) of the Air Regulations. I will therefore focus only on what I consider relevant to the matter in dispute.
From the beginning, the Respondent has claimed that it is the pilot who should have been charged, as it is he who flew an aircraft supposedly not in compliance with airworthiness requirements. However, if the pilot is not found guilty, pursuant to section 8.4 of the Aeronautics Act, the operator of the aircraft is not guilty either. I will come back to this in my closing comments.
What is important to remember is the following:
- It is known that the Minister has the burden of proof, based on a balance of probabilities.
- In this case, the Applicant claimed that Royal did not have the authority to issue a special ferry permit; this is incorrect, as documents T-3, T-4, M-10 and M-12 prove.
- As an AMO, Royal may also have an engineer certify an aircraft as safe for a ferry flight; M-6b and M-6c meet this requirement if we consider that the engineer Kalus was authorized by M. Donald Larouche, acting for Royal, to issue a special flight permit. No one disputed the validity of Mr. Kalus' engineer licence to certify a Convair 580.
- It is true that a ferry permit had to be issued, and this is what Royal did. The fact that Transport Canada cannot find the copies sent to it is not Royal's fault. As for the copy for the May 16 flight, which the Respondent is unable to find, the pilot-in-command of aircraft C-GQBO confirmed by letter that he had the permit in his possession during the flight. For the May 21 trip, T-2b confirms the issuance of the necessary permit. Also, witnesses Plante and Larouche recall, in the first case, having seen copies in its records, and in the second, having issued and signed the said permits.
- Finally, Inspector Arbour does not deny not having seen the copies of the permits in question; he simply says he does not remember seeing them.
SUMMARY AND CONCLUSION
The Applicant had to prove the following:
- That on May 16 and 21, 1996, a Convair 580 aircraft made two flights while its certificate of airworthiness was invalid, owing to uncorrected defects which rendered the aircraft non-compliant with airworthiness requirements. There is no doubt about this, everyone agrees.
- Pursuant to paragraph 210(1)(a) of the Air Regulations and subsections (6) and (7) of the certificate of airworthiness of C-GQBO, this was tantamount to expiry of the certificate.
- For the aircraft to be flown legally, a flight permit had to be issued, this time pursuant to paragraph 210(1)(b).
- The Applicant claims that such a permit was not issued, as it cannot find the copies it should have received as required on the special ferry permit form.
- In any event, Royal was not authorized to issue such a permit; Transport Canada should have done this, had it been asked to. In view of the foregoing, in the absence of evidence to the contrary, Royal would be guilty of contravening paragraph 210(1)(a) of the Air Regulations.
But the Respondent denied the Applicant's allegations and argued as follows:
- Royal was authorized to issue special ferry permits (see T-3, T-4, M-11 and M-12).
- It is the pilot who should have been proceeded against.
- Through its witnesses, an affidavit and a copy of one of the permits, it attempted to show that the required permits had indeed been issued. But it does not know why Transport Canada did not receive its copies, and it cannot locate the copies that should have been in its own records.
I would add the following comments:
- The issues concerning the flights, the aircraft in question, and the said aircraft's non-compliance with airworthiness requirements are not denied.
- Section 8.4 of the Aeronautics Act is quite clear and has been cited in many instances of jurisprudence; the Minister can choose to proceed against the registered owner of the non-compliant aircraft, the operator of that aircraft, or the pilot-in-command, at his discretion. Here, the choice was to proceed against the operator, and this is consistent with the law.
- I do not believe that ferry permits (paragraph 210(1)(b) of the Air Regulations) are limited to the question of maintenance (see T-3, paragraph 184.108.40.206; it states "typical" which, for me, is not restrictive); there are many other reasons for issuing such a permit, such as importation of an aircraft. In any event, sooner or later, the purpose is always maintenance. I find the reasons for the Convair 580 C-GQBO making a ferry flight acceptable. Furthermore, the Transport Canada representatives have acknowledged that had they been asked for the permits, they would have issued them.
- According to the Applicant's representative, Mr. Bourgoin, I believe that Inspector Arbour should have delved further into the matter of the flight permits before bringing allegations. I agree that this does not prove whether or not Royal issued permits, but surely the responsibility of a Transport Canada inspector goes beyond saying he received nothing. Also, Transport Canada has filed no document showing that Royal was not authorized to issue flight permits (ANO, Series I, No. 2 (M-5) pertains to private aeroplanes, which is not the case here), and, but for the documents filed by the Respondent, there would be no proof that Royal did not have the authority in question.
Finally, as the aircraft was returned to Toronto on May 21, why were the logs not checked to see whether the flight permits were there? Inspector Arbour did not deny seeing the permits when he met with Mr. Larouche; he simply said he did not remember seeing them. Might not the same be said of the technical logs and the cardex file mentioned earlier? How can Transport Canada, after all that, assess a monetary penalty of $1,000.00 for each offence, with so little evidence?
- I am sufficiently satisfied as to Royal's authority, pursuant to its AMO, to issue flight permits to dismiss the Applicant's allegation in this regard, even though some of the documents contain erroneous dates or explanations.
- I must admit, however, that the fact that Royal could not find the copies of the permits mentioned weakens its evidence and shows a certain lack of organization which raises questions. As for pilot-in-command Thivierge's unsigned affidavit, this document strikes me as being merely a note that carries little weight.
Given the Applicant's evidence based on nonexistent documents pertaining to the flight permits; given the fact that Transport Canada should have delved deeper before bringing allegations; and given the Respondent's evidence, weak as it is, that permits were issued, plus the fact that it had the authority to issue such permits, I am inclined to favour the latter and find that the two alleged counts are ill-founded and the balance of probabilities favours the Respondent.
I therefore dismiss the Minister's allegations against Royal Aviation Inc. and the monetary penalties assessed.
Civil Aviation Tribunal
Note: I would add a comment to the effect that Transport Canada should require greater clarity on official documents bearing signatures, dates, licence numbers, initials and other important means of identification. Names should appear typed or printed at least once in the document. Otherwise, it can become difficult, if not tedious, to make the desired identification. The same applies when filing photocopies in evidence: it is essential that they be clear, complete and legible, which a number of documents in this hearing were not.
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