Decisions

CAT File No. O-1860-41
MoT File No. PAP-5504-032134

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Mirabel Aero Service, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR 96-433. ss. 571.10(1), SOR/2000-404 ss. 571.02, ss. 571.11

Preliminary motion, Motion for dismissal, Maintenance release, AMO, Double jeopardy, Failure to enter defects, AME, Airworthiness, Aircraft maintenance


Review Determination
Caroline Desbiens


Decision: January 24, 2000

I dismiss the allegations against the Respondent as set out in offences #2 and #3. I confirm the contravention alleged against the Respondent in offence #1, that the Respondent Mirabel Aero Service did in fact contravene subsection 571.10(1) of the Canadian Aviation Regulations.

I also confirm the monetary penalty of $2,500 with regard to offence #1. The total penalty of $2,500 is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of the service of this determination.

A Review Hearing on the above matter was held November 23 and 24, 1999 at the Federal Court of Canada, in the city of Toronto, Ontario.

BACKGROUND

The Applicant alleges that the Respondent Mirabel Aero Service (hereinafter "MAS" or the "Respondent") contravened subsection 571.10(1) of the Canadian Aviation Regulations (CARs) on August 23, 1998 and August 25, 1998. The Notice of Assessment of Monetary Penalty dated July 7, 1999 reads 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)

OFFENCE #1:

You did permit Mirabel Aero Services maintenance personnel, who you were supervising to sign a maintenance release required pursuant to section 605.85 of the Canadian Aviation Regulations when the standards of airworthiness applicable to the maintenance performed, stated in chapter 571 of the Airworthiness Manual had not been complied with. More specifically on or about August 23, 1998, a Boeing 727, registered C-GRYR, at or near Toronto, Lester B. Pearson airport, the first officer position altimeter and the standby altimeter were interchanged at your direction. This is a violation of Canadian Aviation Regulation s.571.10(1)

OFFENCE #2:

You did sign a maintenance release required pursuant to section 605.85 of the Canadian Aviation Regulations when the standards of airworthiness applicable to the maintenance performed, stated in chapter 571 of the Airworthiness Manual had not been complied with. More specifically on or about August 23, 1998, a Boeing 727, registered C-GRYR, at or near Toronto, Lester B. Pearson airport, the first officer position altimeter and the standby altimeter were interchanged. This is a violation of Canadian Aviation Regulation s 571.10(1)

OFFENCE #3:

You did sign a maintenance release required pursuant to section 605.85 of the Canadian Aviation Regulations when the standards of airworthiness applicable to the maintenance performed, stated in chapter 571 of the Airworthiness Manual had not been complied with. More specifically on or about August 25, 1998, a Boeing 727, registered C-GRYR, at or near Vancouver airport, had the #1 and #3 engine oil pressure indicators interchanged, and further, the #2 and #3 engine oil quantity indicators were interchanged, in conflict with the approved Minimum Equipment List (MEL). This is a violation of Canadian Aviation Regulation s.571.10(1)

The monetary penalties have been assessed as follows:

Offence #1                       $2,500

Offence #2                       $2,500

Offence #3                       $2,500

Total penalties assessed $7,500

Since the $7,500 penalty was not paid by the prescribed date, a Review Hearing was held at the time and place previously stated.

PRELIMINARY MOTIONS

During the hearing of November 23, 1999, the Respondent MAS submitted a preliminary motion to strike all three alleged offences for the reason that they are too vague and do not enable the Respondent to prepare its defence adequately. This Motion was presented verbally without any prior notice to the Applicant or the Tribunal.

Although section 10 of the Civil Aviation Tribunal Rules provides that such an application shall be in writing and filed with the Tribunal, the Tribunal decided to allow the application to be dealt with at the hearing.

The Respondent submitted that the alleged offences do not specify which standards of airworthiness were breached and that they are accordingly too vague by just referring to Chapter 571 of the Airworthiness Manual. He explained that the alleged offences do not allow the Respondent to prepare his case adequately and that this is a breach of fairness and natural justice and his fundamental rights of having a fair hearing which he further submitted, is of a penal nature.

In reply to this Motion, the Applicant argued the following:

a) a disclosure package was sent to the Respondent more than a month before the hearing which identified the standards of airworthiness applicable to the maintenance performed. The letter of disclosure was produced as Exhibit R-1 and the Respondent admitted having received this package. The documents included the Boeing 727 MEL and the 727 maintenance standards;

b) the offences clearly describe the maintenance performed on August 23 and 25, 1998 and indicate that they are in contravention of the standards of airworthiness stated in Chapter 571 of the Airworthiness Manual;

c) a study of Chapter 571, the Boeing 727 MEL, the 727 maintenance standards, the Royal Aviation Inc. maintenance control manual (MCM) requirements and the "Can Says" of the witnesses disclosed in the package, allowed the Respondent to identify the standards of airworthiness that the Minister finds applicable to the maintenance performed and described in the offences, i.e., the interchange of the first officer (F/O) position altimeter and the standard altimeter and the interchange of no. 1 and no. 3 engine oil pressure indicators and finally, the interchange of no. 2 and no. 3 oil quantity indicators;

d) these documents and "Can Says" were received more than 30 days prior to the hearing and the Respondent had enough time and information to defend itself and prepare its case for the hearing;

e) the Minister was never informed of this Motion by the Respondent prior to the hearing and has consequently assigned many witnesses for this case and some of the witnesses are residing outside the country and have come a long way to be present at the hearing.

After consideration, the Tribunal rejected this Motion for the following reasons:

In applying section 7.7 of the Aeronautics Act, the Tribunal acts as an administrative tribunal and not as a tribunal in penal matters. The Tribunal must however act fairly and respect the principles of fairness and natural justice.

In the present case, the Tribunal finds that the principles of fairness and natural justice would be breached only if the alleged offences were so vague and lacking in precision to the point they would not give sufficient guidance to the Respondent as to the allegations made against him by the Minister. Consequently, the question that needs to be addressed is whether the alleged offences reasonably inform the Respondent of the transactions alleged against it, thus giving the latter the possibility of a full defence and a fair trial.[1]

After careful study and examination of the wording of the allegations, section 571.10 of the (CARs) and Chapter 571 of the Airworthiness Manual, the Tribunal concluded that:

a) the alleged offences clearly state or describe the maintenance that was allegedly performed in contravention of the standards of airworthiness stated in Chapter 571 of the Airworthiness Manual. The alleged offences recite all facts and relate them to a definite offence identified by the relevant section of the CARs. Dates and places are given.

b) Chapter 571 of the Airworthiness Manual which deals with the "Maintenance Release" refers to the maintenance performance rules of section 571.02.

c) The maintenance performance rules indicate that any person performing maintenance or elementary work is required to follow the manufacturer's recommendations or equivalent practices which include methods published by Transport Canada, the manufacturer of a similar product, or other practices that may not be published provided they are generally accepted by the Canadian aviation industry. The Minister disclosed to the Respondent the manufacturer's maintenance standards and the relevant sections of the MEL of the operator published by Transport Canada which, according to the Minister, contain the standards applicable to the actions or maintenance performed by the Respondent.

With the wording of the particulars of the alleged offences in combination with Chapter 571 of the Airworthiness Manual and all the documents disclosed, the Respondent consequently had sufficient guidance to determine the standards of airworthiness that the Minister intended to present as applicable to the actions performed and described in the allegations.

It is not in dispute that the disclosure package was sent to the Respondent at least 30 days prior to the hearing. This gave sufficient time to the Respondent to prepare its case and defend itself accordingly.

By proceeding with the hearing, the Respondent is not deprived of addressing and contesting the applicable standards of airworthiness submitted by the Minister since the particulars of the alleged offences describe the maintenance actions that are at issue. If some information or detail was missing to the point that it was impossible for the Respondent to prepare its case, it should have used section 10 of the Civil Aviation Tribunal Rules and filed the appropriate motion in writing to obtain more information.

The fact that the Respondent never advised the Applicant of its intention to present this motion to dismiss the allegations or did not present its motion in writing as required by the Rules combined with the fact that the Respondent had received a complete disclosure package a month ago left the Tribunal no choice but to doubt the seriousness of the Respondent's grounds for motion.

The Tribunal ordered that the parties proceed with the hearing. In fairness to the Respondent who did not call any witness to rebut the Minister's evidence, the Tribunal however proposed to the Respondent that the hearing be adjourned after the Applicant presents its evidence and has its witnesses testify. The Respondent however refused this offer and waived its right to obtain an adjournment of the hearing in order to more fully prepare its defence.

After the Tribunal rendered its decision on this first preliminary motion, the Respondent presented another motion to dismiss offences #2 and #3 against MAS since the latter did not sign the maintenance releases described in the allegations. The Respondent argued that MAS is an approved maintenance organization (AMO) and as such could not sign the maintenance releases alleged in these offences. Only the holder of an aircraft maintenance engineer (AME) licence could sign these maintenance releases.

Since no evidence had been put forward concerning these maintenance releases, it was decided that this motion was premature and that this argument should be presented in the final arguments, i.e., after the evidence was closed.

THE FACTS

The Respondent is an AMO for the maintenance of aeronautical products and holds the ratings for aircraft, structures and specialised services. Its certificate of approval was issued by Transport Canada on January 5, 1995 and bears number 349-91 (Exhibit M-12). At all material times, for the purposes of the allegations, the Respondent MAS was providing technical services to Royal Aviation Inc. (hereinafter "Royal") for its aircraft at the Dorval, Mirabel, Ottawa, Hamilton, Toronto and Vancouver airports according to the aircraft maintenance support agreement filed as Exhibit M-1.

Transport Canada carried out an audit (inspection) on Royal. More particularly, inspector Rick Arbour of Transport Canada found that on two occasions, that is August 23, 1998 and August 25, 1998, a Boeing 727, registered C-GRYR operated by Royal, was released by the maintenance personnel of MAS whereas the conditions and maintenance actions provided in the MEL of the operator had not been complied with. The Minister consequently alleges that the standards of airworthiness applicable to the maintenance performed stated in Chapter 571 of the Airworthiness Manual had not been complied with. The maintenance releases at issue appear on Exhibit M-3 which is the Journey Log Book of this aircraft for August 22 and 23, 1998 and on Exhibit M-11 which is a copy of the Journey Log Book for this aircraft for August 25, 1998 (page 42122). These maintenance releases are worded in the usual terms, that is: "The maintenance described above has been performed in accordance with the applicable standard of airworthiness".

Offences #1 and #2

As concerns the maintenance performed on August 23, 1998 on the said Boeing 727 aircraft at Toronto airport, the evidence clearly shows the following and it was never contested:

Mr. Rudy Seetaram was the production manager of the Respondent on August 23, 1998 and he was as such supervising the maintenance on the aircraft, reviewing log books, auditing the log books, reviewing the MELs, deferring maintenance items, ordering parts and reviewing the trouble shooting being carried out. On August 23, 1998, he was working at Toronto for MAS and worked on Royal Boeing 727 aircraft, registered C-GRYR. This aircraft arrived in Toronto on August 22 and was scheduled to depart on August 23 at about 07:00 hours. When the aircraft arrived in Toronto, the aircraft had some defects, i.e., the F/O's altimeter was observed to intermittently stick as well as fluctuate rapidly, plus or minus 300 feet, during climb out of YDF and during descent into Toronto. This defect appears on the Journey Log Book of the aircraft (M-3).

As production manager, Mr. Seetaram had to repair this defect and a new altimeter was installed and the appropriate test was carried out. This test however failed and the new instrument was unserviceable. Mr. Seetaram consequently called the maintenance control centre (MCC) of the Respondent in Montreal in order to inform the MCC operator, Mr. Jean Yacoub, that the instrument was unserviceable and that the aircraft would not be able to fly.

The response of the MCC in Montreal was to swap the standby altimeter with the F/O's altimeter. This authorization was given by fax to Mr. Seetaram on August 23, 1998 by Mr. Pierre Verrette, the director of maintenance and by Jean-Pierre Perriard, the quality assurance manager of the Respondent. Mr. Yacoub, of the MCC of MAS in Montreal, explained at the hearing that he in effect consulted with the director of maintenance and the quality assurance manager on August 23, in order to determine what type of action should be undertaken with regard to the F/O altimeter being inoperative considering that it could not be replaced immediately, no other altimeter of this type being available. Mr. Yacoub indicated that it was decided to swap the altimeters (F/O with standby) and he was asked to sign the fax letter (Exhibit M-18) to Mr. Seetaram on behalf of both the director of maintenance of Royal and the quality assurance manager of the Respondent since both of them were absent from their office on that particular day.

This fax authorized Mr. Seetaram to swap the standby altimeter with the F/O's altimeter and dispatch the aircraft per the MEL 34-05-3 provided function test proved to be normal. Mr. Seetaram consequently interchanged the standby altimeter with the F/O's altimeter as instructed for pneumatic use only and dispatched the aircraft per MEL 34-05-3 as it is indicated on the Journey Log Book of this aircraft (M-3) (page 42114). Mr. Seetaram also put the AMO number of the Respondent's certificate beside its name as required by the regulations for his maintenance release.

During his testimony, Mr. Seetaram indicated that to his knowledge, these two altimeters could not be interchanged since the F/O's altimeter has additional functions compared to the standby altimeter. He specifically explained that the connector of the standby altimeter was different from the connector of the F/O's altimeter and that additional functions of the F/O's altimeter would not be operative because the standby altimeter was installed at the position of the F/O's altimeter. More particularly, the functions that were lost were the altimeter vibrators on both altimeters (standby and F/O's), the lighting of both altimeters, the air traffic control (ATC) transponder function and the altitude alerting system of the F/O's altimeter. He however swapped the altimeters as required by his director of maintenance because he felt his job might be threatened.

Mr. Seetaram explained that according to the MEL of Royal approved by Transport Canada for this aircraft (Exhibit M-4, page 34-10), the maintenance action would have been to pull and collar the pilot's altimeter at 26 volts AC circuit breaker and then, defer the other items that were inoperative (the functions that were lost) in accordance with the MEL prior to releasing the aircraft. The interchange of altimeters was not a maintenance action prescribed by the MEL.

Mr. Seetaram admitted that he did not defer these four items according to the applicable sections of the MEL filed as Exhibits M-5 to M-7. Consequently, the four items that were inoperative were not repaired nor deferred per the MEL of this aircraft. The only equipment deferred by Mr. Seetaram was the standby altimeter as it appears on the Journey Log Book (M-3).

No entry being made for these inoperative items, the crew members could not know what functions were lost on this aircraft for the next flight to Cuba on August 23, 1998 as it appears on the Journey Log Book of this aircraft (M-3, page 42166).

For clarification purposes, it should be noted that the MEL provides that the standby pneumatic altimeter may be inoperative provided that at least one of the pilots' altimeter is a pneumatic or servo-pneumatic. The standby pneumatic altimeter could be deferred according to this MEL as it was done by Mr. Seetaram (Journey Log Book, M-3). However, because the F/O's altimeter was inoperative and only working on the pneumatic mode, some functions or items were inoperative and needed to be deferred according to the MEL which more fully provides as follows:

As concerns the ATC Transponder function of the F/O's altimeter that was lost (automatic altitude reporting system), section 34-24 of the MEL (M-5) provides that although two ATC transponders are installed, only one is required for dispatch and must operate normally unless otherwise authorized by ATC. This item was not reported as being inoperative by an entry in the Journey Log Book and Mr. Seetaram admitted that he should have indicated that this item was inoperative and deferred it according to the MEL applicable for that equipment.

As for the altimeter vibrator of both altimeters (standby and F/O's) that was lost, the MEL, section 34-06-2, provides that although two altimeter vibrators are installed, one may be inoperative provided visual meteorological conditions exist at departure and arrival airports. This is a safety issue that Mr. Seetaram did not address as he admitted. No entry was put in the Journey Log Book to indicate that the altimeter vibrators of both altimeters were inoperative and this equipment was not deferred according to the MEL applicable for that equipment.

Consequently, only the captain's altimeter vibrator was functioning normally and without any entry in the Journey Log Book, the pilots were not aware of this equipment being inoperative and could not address the operating procedures provided in this MEL, i.e., make sure that visual meteorological conditions exist at departure and arrival airports.

As concerns the altitude alerting system of the F/O's altimeter that became inoperative, section 34-27 of the MEL (M-7) provides that one is installed and that it may be inoperative provided:

a) Autopilot with altitude hold operates normally, and

b) Operations are limited to not more than three flight days before repair is made.

A placard system must also be installed and indicate "INOP".

Mr. Seetaram admitted that he did not placard this item and did not defer this equipment, i.e., the altitude alerting system according to this MEL. Consequently, he did not verify whether the autopilot with altitude hold was operating normally.

Because there was no entry in the Journey Log Book indicating this inoperative item and since there was no placard installed, the crew could not in addition perform the operating procedures indicated in this MEL, i.e., use the altitude hold feature of the autopilot to assist in maintaining desired altitude.

Finally, as concerns the lights of both altimeters that were lost because connections of both altimeters are totally different, the MEL section 33-01 (Exhibit M-8) provides that the individual lights of the instrument panel lighting systems may be inoperative provided remaining lights are:

a) Sufficient to clearly illuminate all required instruments, controls, and other devices for which they are provided,

b) Positioned so that direct rays are shielded from flight crew members' eyes, and

c) Lighting configuration and intensity is acceptable to flight crew.

This MEL also provides that when making the above determination, consideration should be given to lighting available with only Standby or Essential buses powered. The placard inoperative lights must also be installed. On the operations note, it is indicated that this MEL item be considered as a "Captain's judgment" situation. Hence, without any indication in the Journey Log Book that the lights of both altimeters were inoperative and without any placard installed, the captain was not able to apply the operating procedures stated above prior to departure and appearing on MEL section 33-01 (M-8).

Besides, Mr. Seetaram's admission on his maintenance release not being made in accordance with the requirements provided in the MEL, Mr. Paul Martin, another AME working for the Respondent, also admitted that he would not have released the aircraft in this condition, i.e., the F/O's altimeter being inoperative and interchanged with the standby altimeter, without complying with the MEL restrictions discussed above in place. He confirmed the loss of the four items previously discussed and more particularly that the altitude alerting system was installed on the F/O's altimeter and that this item was lost and had to be deferred according to the MEL.

An expert witness also testified for the Applicant. Mr. David Whamond of Smith's Industries, the manufacturer of the altimeters at issue, indeed confirmed that the F/O's altimeter and the standby altimeter installed on this aircraft could not be interchanged, the appropriate serial numbers being taken into account. The F/O's altimeter was a servo driven altimeter which provided for accurate measurement of altitude. It also had an encoder providing an output to the ground of the height of the aeroplane, and it also has outputs for altitude alerting so that if the pilot deviates from his altitude, it will give him a warning light on the altimeter. Basically, Mr. Whamond testified that it is a fairly complex device that has about 41 pins to connect up the power from the altimeter to the aircraft system.

As concerns the standby altimeter, he indicated that it is a very basic barometric unit working on barometric pressures; with a four-pin connector to the back of the aircraft system as opposed to the 41-pin connector of the F/O's altimeter. This altimeter is assisted with a 28-volt DC vibrator to overcome any friction, and there is nothing more to it than that. Consequently, if these two kinds of altimeters were interchanged physically in terms of cannon plugs, he confirmed that many functions would be lost. You would lose the vibrator and lighting of the standby altimeter, you would also lose the lighting and vibrator of the F/O's altimeter as well as a great deal of accuracy. You would also lose the mode C transponder capability, the altitude alerting function and the corresponding warning light to the operator of the aircraft or the captain.

During the course of his investigation, Mr. Arbour of Transport Canada also contacted Boeing, the manufacturer of the aircraft and more particularly, the airline support manager of Boeing Service Engineering. He apparently confirmed to him that both altimeters (serial numbers being taken into account) were not interchangeable.

The Applicant filed Boeing's reply to Mr. Arbour's email as Exhibit M-14 which addresses the altimeters interchangeability. This email was directly sent to Mr. Arbour. It basically indicates that both captain's and F/O's altimeters provided altitude data to the ATC transponders and that ATC transponder's altitude data could only come from captain's altimeter since the standby altimeter did not have altitude data output for ATC. According to Boeing, the altitude alerting system would however not have been impacted by the replacement of F/O's altimeter with a third (standby) pneumatic altimeter.

This part of the evidence is contradictory to the testimony of both AMEs' of the Respondent and Mr. Whamond's testimony who indicated that the altitude alerting system was in fact installed on the F/O's altimeter and that this item was lost by the fact that this altimeter was found inoperative.

It should be noted that the evidence adduced by the Applicant on Boeing's response to the interchangeability of the altimeters was objected to by the Respondent. I find that this evidence is not the best evidence in the circumstances since no witness from Boeing was heard nor any affidavit from a representative of Boeing filed in the record. I consequently prefer to rely on the testimony of both AMEs of the Respondent who know this aircraft involved and saw the altimeters that were interchanged and on the testimony of the representative of the manufacturer of the altimeters whose credibility was never contested.

In the course of their investigation, Mr. Arbour and Mr. Tamborriello of Transport Canada, met with Mr. Verrette of Royal and Mr. Perriard of MAS in order to address this particular issue of the altimeters swapping and obtain their response to the fact that four functions or items of the F/O's altimeter were lost and inoperative and not deferred according to the MEL.

Royal and the Respondent responded to this issue by a fax letter which was filed as Exhibit M-16. This letter does not address the altitude alert function but confirms that the lighting and vibrator should have been deferred maintenance items (DMI). As concerns the mode C Transponder capability, the Respondent basically argued that both altimeters are connected in parallel for the mode C operation and that failure of either one of these altimeters will not impact on altitude function.

The Applicant finally filed the certificate of approval of MAS bearing #349-91 (M-12), the certificate of registration of the Boeing 727-217 aircraft bearing the registration marks C-GRYR in the name of Royal and the certificate of airworthiness of this aircraft bearing serial number 21056 (Exhibit M-13). These documents connect the aircraft with the maintenance releases issued by the AMEs of the Respondent at issue.

The Respondent did not provide any witness nor any evidence was given to contradict all these facts.

Offence #3

As concerns offence #3, i.e., the maintenance performed on August 25, 1998, the facts can be summarized as follows:

On August 21, 1998, the #3 engine oil quantity indicator was found to be inoperative. This item was deferred according to the MEL 79-1 of the operator as it appears from a copy of the Journey Log Book of the same aircraft, page 42111 (Exhibit M-9). The MEL (Chapter 79 entitled "Oil") produced as Exhibit M-10 provides that two oil quantity indicators are required for dispatch and that one may be inoperative provided:

a) Oil tank is filled to maximum recommended capacity before each refueling,

b) There is no evidence of above normal oil consumption or leakage, and

c) Associated low oil pressure warning light, and oil temperature and oil pressure indicators operate normally.

This MEL, page 79-2, indicates to placard the affected oil quantity gauge. The operations note requires to check that the oil low pressure warning light and oil pressure and temperature gauges are operating normally. (Emphasis added)

Four days later, on August 25, 1998, during a flight with the same aircraft, the crew reported that #3 engine oil pressure was really high. This appears on the Journey Log Book of the aircraft, page 42122 filed as Exhibit M-11. The rectification completed by the maintenance personnel was to swap the #1 and #3 oil pressure indicators for trouble shooting and then motorize the engine which is to leave the engine on the starting mode, not running the engine. By swapping and only motorizing the engine, the maintenance personnel cleared that item. During the same flight, the crew indicated that the #2 engine oil quantity indicator was unreliable and referred to this item as being a deferred maintenance item already addressed on August 21, 1998. The maintenance action was to top up #3 engine oil and interchange #2 and #3 oil quantity indicators. The aircraft was then released by a MAS employee as it appears on the Journey Log Book. The Journey Log Book consequently reveals an oil pressure problem with this aircraft on August 25, 1998 which conflicts with the release requirements of the oil quantity indicators under the MEL 79-1 which states that the oil quantity gauges can be inoperative provided the other systems work, i.e., the oil pressure indicators operate normally. Consequently, because the oil quantity indicator was still a deferred item on August 25, 1998, it did not meet the requirements of the deferral on that day since there was an oil pressure problem. The maintenance release at issue is consequently the maintenance release of August 25, 1998 dispatching the aircraft per the minimum maintenance equipment list 79-1 whereas the requirements of this MEL were not met.

After its dispatch, the aircraft flew from Vancouver to Edmonton and then from Edmonton to Toronto on the same day as it appears from the Journey Log Book of the aircraft, pp 42123 and 42124 produced as Exhibit M-11. During these flights, the crew noted that engine #3 oil pressure gauge was indicating at take-off thrust into the caution band and that the #3 oil quantity gauge previously transferred from engine #3 was still not functioning. Upon the return of the aircraft in Toronto on August 25, 1998, the AME Paul Martin of MAS indicated that he adjusted the #3 engine oil pressure down which would be lowering the pressure. As concerns #2 oil quantity indicator, it was still on deferral and Mr. Martin did not do any maintenance since this deferral was still within the time limits of the MEL. Mr. Martin further indicated that the maintenance action undertaken previously that day (motorizing the engine) was not a recommended practice since it could not determine whether there was an oil pressure problem with the engine. No document was however filed nor any expertise given to support this assertion.

No other witness but Mr. Paul Martin testified with regard to this maintenance release of August 25, 1998.

It should be noted that all the copies of the Journey Log Book of the aircraft and of the MEL were obtained by Mr. Arbour of Transport Canada and were filed with the consent of the Respondent.

THE LAW

Subsection 571.10(1) of the CARs stipulates the following:

No person shall sign a maintenance release required pursuant to section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

As concerns the persons who may sign a maintenance release, section 571.11 of the CARs provides as follows:

(1) Except as provided in subsections (2) and (4), no person other than the holder of an aircraft maintenance engineer (AME) licence issued pursuant to Part IV, specifying a rating appropriate to the aeronautical product being maintained, shall sign a maintenance release in accordance with Chapter 571 of the Airworthiness Manual.

(...)

(3) Except as provided in subsection (4), no person shall sign a maintenance release in respect of maintenance performed on an aeroplane or helicopter operated pursuant to Part IV or on an aircraft operated pursuant to Part VII, or on parts intended to be installed on one of the foregoing, unless the person is authorized to sign

(a) in accordance with a maintenance policy manual (MPM) established by the holder of an AMO certificate issued pursuant to section 573.02 with a rating of a category appropriate to the work performed; or

(...)

(5) Where a maintenance release is signed by a person in respect of work performed by another person who is not qualified to sign a maintenance release, the person signing the maintenance release must personally observe the work to the extent necessary to ensure that it is performed in accordance with the requirements of any applicable standards of airworthiness and, specifically, the requirements of sections 571.02 and 571.10.

The Airworthiness Manual provides the maintenance performance rules at section 571.02 which are the following:

Persons who perform maintenance or elementary work are required to follow the manufacturer's recommendations, or equivalent practices. Where the recommendations of the aircraft manufacturer are incompatible with those of the engine, propeller, or appliance manufacturer, the recommendations of the aircraft manufacturer shall be used. Where the manufacturer has not made specific recommendations, standard industry practices are to be used. These practices include, but are not limited to, methods published by Transport Canada, a foreign Civil Aviation Authority, the manufacturer of a similar product, or other practices that may not be published provided they are generally accepted by the Canadian aviation industry. Similar requirements apply to the selection of parts, materials, tools and test apparatus.

With regards to the maintenance release, the Airworthiness Manual provides as follows:

571.10 Maintenance Release

Information Note:

Pursuant to CAR 605.85, a maintenance release with respect to maintenance performed on an aeronautical product, a maintenance release shall be completed prior to take off in the affected aircraft. It is a declaration that, with respect to the maintenance performed, the performance rules of CAR 571.02 have been complied with and the applicable standards of airworthiness have been met.

(1) For the purpose of this section the following definitions apply:

"under the person's supervision" means that the person, by way of the organisation chart or assignment of responsibilities in an approved manual, exercises supervisory authority over the person making a maintenance release.

(...)

(2) Maintenance Release Record Keeping

(...)

(e) Where a maintenance release is made under the authority of an AMO it must include the identification of both the signatory and the AMO. Identification of the signatory may be either by AME licence number, or by other means that clearly identifies the signatory within that organisation.

(...)

(4) Notwithstanding the requirement to comply with the Performance Rules in accordance with CAR 571.02, the following additional standards of airworthiness, developed in conformity with CAR 571.10, apply with respect to the types of work indicated in the following table:

(...)

For clarification purposes, I also include the following definitions from subsection 101.01(1) of the CARs:

"MEL" or "minimum equipment list" means a document approved by the Minister pursuant to subsection 605.07(3) that authorizes an operator to operate an aircraft with aircraft equipment that is inoperative under the conditions specified therein, and may specify certain equipment that must be operative;

"MMEL" or "master minimum equipment list" means a document established by the Minister pursuant to subsection 605.07(1) that lists the aircraft equipment that is allowed to be inoperative for a particular type of aircraft under the conditions specified therein;

"standard of airworthiness", in respect of the design, manufacture or maintenance of an aeronautical product, means the description, in terms of a minimum standard, of the properties and attributes of the configuration, material and performance or physical characteristics of that aeronautical product, and includes the procedures to ascertain compliance with or to maintain that minimum standard, as specified in Part V;

DISCUSSION

The Minister submits that the Respondent, a company holding an AMO certificate contravened subsection 571.10(1) of the CARs in that on August 23, 1998 this AMO licence holder signed a maintenance release and permitted one of its AMEs, an employee that it was supervising, to sign a maintenance release when the standards of airworthiness applicable to the maintenance performed had not been complied with. The Minister argues that it is the Respondent, the AMO certificate holder, that "signed" the maintenance release since its employee signed it through the Respondent's AMO certificate.

More particularly, the aircraft was released by Mr. Seetaram on August 23, 1998 after an inappropriate maintenance action was completed. In effect, the MEL applicable for navigation and more particularly the section related to altimeters provides that when a pilot's servo pneumatic altimeter is found inoperative, the circuit breaker should be pulled and collared. The MEL does not provide that the pilot's altimeter can be swapped with the standby pneumatic altimeter. The interchange of the F/O's altimeter with the standby altimeter was consequently not a maintenance action prescribed by the MEL nor the manufacturer of the Boeing aircraft. In addition, when Mr. Seetaram released the aircraft after this interchange of instruments, he did not defer other items that became unserviceable according to the MEL.

According to the Minister, the MEL of Royal approved by Transport Canada for this Boeing 727 aircraft contains airworthiness standards in terms of maintenance and operating requirements that must be followed. The MEL specifies suitable conditions and limitations in the form of placards, maintenance procedures, crew operating procedures and other restrictions in order to ensure that the required level of safety is maintained. The MEL is intended to permit operation with inoperative items of equipment for a period of time until repairs can be accomplished.

Consequently, the Minister submits that when an item is discovered to be inoperative, the MEL requires that it be reported by making an entry in the aircraft maintenance record / log book. This item is then either repaired or deferred per the MEL or other approved means acceptable to Transport Canada prior to further operations. It is only when the requirements of the MEL are met that an airworthiness release may be issued. Such documentation is required prior to operation with any item of equipment inoperative.

In the present case, the Minister submits that four items of equipment became inoperative because the F/O's altimeter was found inoperative. The interchange with the standby altimeter added inoperative items since it also caused the loss of the vibrator and lighting of the standby altimeter.

As it was admitted by the AME of the Respondent who signed the maintenance release, some functions or items were inoperative and not deferred according to the MEL. These functions being the altimeter vibrators of both F/O's and standby altimeters, the lighting of both altimeters, the ATC Transponder function of the F/O's altimeter and the altitude alerting system of the F/O's altimeter.

I agree with the Applicant that all the evidence adduced by the Minister confirms that these four functions or items were lost on the F/O's altimeter and were not deferred according to the MEL by Mr. Seetaram. Some maintenance actions such as testing the autopilot when the altitude alerting system is lost, were not taken. Mr. Seetaram himself admitted that he should have deferred these items per the MEL in the Journey Log Book and that the maintenance action undertaken was not the maintenance action prescribed by the MEL. This evidence was never rebutted or contradicted by the Respondent. By its letter (M-16) to Transport Canada, the Respondent also admitted that the lighting and vibrator should have been deferred according to the MEL.

In addition, because these items were not deferred according to the MEL and because no placards were installed, the crew members were not able to address the operative actions provided in the MEL and discussed above.

The Minister also submits that the alleged offence of August 25,1998 was proven on the balance of probabilities. A copy of the Journey Log Book of the aircraft proves that a maintenance employee of the Respondent signed the maintenance release and dispatched the aircraft in Vancouver whereas the MEL requirements were not met. More particularly, the #3 engine oil quantity indicator was still deferred on August 25, 1998 whereas the #3 engine oil pressure indicator was not functioning normally. The maintenance action undertaken on August 25, 1998 prior to releasing the aircraft was insufficient. By swapping #1 and #3 oil pressure indicators for trouble shooting and only motorizing the engine, the AME cleared the engine as serviceable whereas in fact, during the subsequent flights on August 25, the oil pressure gauge was still reading too high. It was then adjusted down by the AME Paul Martin in Toronto.

In short, the maintenance personnel of the Respondent should not have released the aircraft in Vancouver on August 25, since the oil quantity indicators were still under deferral and since the oil pressure indicators did not operate normally as required by the MEL. The Minister also argues for this maintenance release that although signed by the maintenance personnel of the Respondent, it was in fact signed by the Respondent through the certificate, a contravention of section 571.10 of the CARs.

In short, with regard to both maintenance releases at issue, the Minister submits that the Respondent contravened section 571.10 of the CARs by signing a maintenance release required pursuant to section 605.85 where the standards of airworthiness provided in the MEL through Chapter 571 of the Airworthiness Manual have not been complied with. For the altimeters interchange, the Minister also adds that by its fax letter (M-18), the Respondent also permitted its maintenance personnel that it was supervising, i.e., Mr. Seetaram, to sign a maintenance release on August 23 whereas the standards of airworthiness contained in the MEL and applicable through Chapter 571 of the Airworthiness Manual had not been complied with. According to the Minister, the Respondent could be proceeded against under both allegations contained in section 571.10 for the same set of facts.

The Minister argued in writing that the MEL of the operator Royal contains certain standards of airworthiness that must be complied with prior to releasing or dispatching an aircraft. Those standards being referred to in the maintenance performance rules and maintenance performance rules standards (section 571.02) of the Airworthiness Manual.

In response to these arguments, the Respondent firstly submitted that the allegations are still ambiguous and that the MEL is not referred to as standards of airworthiness in the CARs. According to the Respondent, the MEL does not contain maintenance performance rules but only operational rules and it is not directly referred to in Part V, Subpart 71 of the CARs nor in section 571.10 which is the section under which the Respondent was proceeded against. In support of his arguments, the Respondent further stated that the MEL is only referred to in Part VI of the CARs which concerns the operation of aircraft and more particularly in sections 605.07 and 605.09.

According to the Respondent, the MEL offers no information as to how to maintain the aircraft, how to defer maintenance or what to write in the log book. It only tells the operator which pieces of equipment are not essential for dispatching the aircraft. Hence, according to the Respondent, only the operator of the aircraft can be proceeded against, and this could only be done under section 605.09 if the aircraft is not operated in accordance with any conditions or limitations specified in the MEL.

Since Part V, Subpart 71 of the CARs does not provide any charge which directly refers to the MEL for the AMO licence holder, the allegations against the Respondent should all be dismissed.

I do not agree with the Respondent with regard to these first arguments. As already explained in my ruling on the preliminary motion, the allegations are not too vague and reasonably allowed the Respondent to understand the specific particularization of the allegations. The maintenance actions were described, time and places were also described and the standards of airworthiness at issue could be inferred from the context of the charging section which directly refers to the standards of airworthiness contained in the whole Chapter 571 of the Airworthiness Manual.

Moreover, I believe that the practices, methods and limitations contained in the MEL form part of standard industry practices for the type of aircraft concerned in this matter and as such, are part of the standards of airworthiness referred to in Chapter 571 of the Airworthiness Manual. The MEL is in effect a document approved and published by Transport Canada and derived from recommendations or instructions of the manufacturer of the aeronautical product.

More particularly, the maintenance performance rules of section 571.02 stipulate that persons who perform maintenance or elementary work on an aeronautical product shall use the most recent methods, techniques, practices, parts, materials, tools, equipment and test apparatuses that are specified for the aeronautical product in the most recent maintenance manual or instructions for continued airworthiness developed by the manufacturer of that aeronautical product, or equivalent to those specified by the manufacturer of that product in these manuals or instructions or in accordance with recognized industry practices applicable to the maintenance or elementary work performed.

The standards applicable to these maintenance performance rules provide, where the manufacturer has not made specific recommendations, that standard industry practices are to be used and that these practices include, but are not limited to, methods published by Transport Canada. As per its definition, the MEL is a document approved by the Minister according to section 605.07. As explained by Mr. Arbour of Transport Canada, the MEL for this aircraft was initially designed as a MMEL and it was derived through consultation with the aircraft maintenance, the manufacturer of the aircraft and the Federal Aviation Authority (FAA) in the United States. In this case, this list was then brought to Canada and went through an approval process to make it into a MEL. The MEL is a list of items that can be inoperable on an aircraft when certain guidelines are carried out, such as limitations for flight characteristics for the aircraft, weight limitations, weather limitations, etc. But certain things or actions have to be carried out for certain items. Some items of the MEL are operational items and do not require any maintenance intervention. Some other items, as for the altimeter in this instance, though require maintenance intervention.

The MEL consequently contains methods or practices that initially come from the manufacturer and that are approved or published as part of standard industry practices by the Minister. The MEL accordingly contains standards of airworthiness applicable to the maintenance performance rules through the Airworthiness Manual (571.02).

In addition, when items are found inoperable, the maintenance release required by section 571.10 must only be signed when the standards of airworthiness contained in the MEL have been complied with. The MEL reiterates the same obligation.

More particularly, section 571.10, which is the section under which the Respondent was proceeded against, concerns the maintenance release pursuant to section 605.85 and provides that no person shall sign a maintenance release unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual. Consequently, section 571.10 not only refers to the standards of section 571.10 of the Airworthiness Manual but all the standards of Chapter 571 of the Airworthiness Manual including the standards of the maintenance performance rules previously discussed, and contained in the MEL for certain items. In addition, section 571.10 of the Airworthiness Manual refers to the maintenance performance rules of section 571.02 of the Airworthiness Manual in the information note by stating that the maintenance release is a declaration that, with respect to the maintenance performed, performance rules of section 571.02 of the CARs have been complied with and the applicable standards of airworthiness have been met.

As it was proven in this case, the MEL does not only tell the operator which pieces of equipment are not essential for dispatching the aircraft but also contains maintenance actions and directions on how to defer inoperative pieces of equipment. Mr. Seetaram who is the AME who interchanged the altimeters on August 23 and signed the maintenance release stated that his role as production manager entails supervision of maintenance on the aircraft and that as such, he has to review the MEL of the operator of the Boeing 727 aircraft.

In addition, a simple reading of the preamble of the MEL in this case shows that a MEL contains conditions and limitations in the form of placards, maintenance procedures, crew operating procedures and other restrictions as necessary to ensure that the required level of safety is maintained. The MEL consequently contains both operational and maintenance procedures. Moreover, since the MEL is intended to permit operation of an aircraft with inoperative items of equipment for a period of time, its application necessarily entails a deferral per the MEL conditions and thus, a maintenance action and release of the aircraft which may be followed or combined with operational procedures by the crew.

This MEL also indicates that when an item is discovered to be inoperative, it is reported by making an entry in the log book and when the requirements of deferral of the MEL are met, an airworthiness release and aircraft maintenance Record / Log Book entry or other approved documentation is issued. This MEL states that such document is required prior to operation with any item of equipment inoperative. Contrary to the Respondent's submission, the MEL consequently explains what to write in the log book and how to defer maintenance and describes what kind of maintenance actions should be undertaken in certain circumstances prior to releasing an aircraft.

The Respondent secondly submitted that the Respondent, being the holder of an AMO certificate, cannot be proceeded against under section 571.10 of the CARs for having signed the maintenance release when the applicable standards of airworthiness had not been complied with. According to the Respondent, section 571.10 deals with the person who signed the maintenance release or the person permitting anyone whom the person supervises to sign a maintenance release. Section 571.11 describes the persons who may sign a maintenance release and in this case, that person must be the holder of an AME licence, i.e., the individual AME who holds a proper licence. In addition, section 8.4 of the Aeronautics Act, which deals with vicarious liability, does not provide that the AMO certificate holder may be proceeded against and found to have committed an offence under a designated provision in relation to the aircraft for which another person is subject to be proceeded against. Subsidiarily, the Respondent indicated that offences #1 and #2 constitute double jeopardy and that it cannot be found liable for having signed and permitted its personnel to sign a maintenance release whereas the standards of airworthiness applicable to the maintenance performed had not been complied with.

I agree with the Respondent with regard to this second argument and conclude that being an AMO certificate holder, the Respondent company cannot be proceeded against with section 571.10 of the CARs for having signed the maintenance release when the applicable standards of airworthiness had not been complied with. This concerns offences #2 and #3 described above.

Section 571.11 of the CARs which describes the persons who may sign a maintenance release limits the authorization to sign to the holder of an AME licence in this case. Paragraph 3(a) of that section provides that a person signing a maintenance release in respect of maintenance performed on an aircraft operated pursuant to Part VII must be authorized to sign in accordance with a maintenance policy manual (MPM) established by the holder of an AMO certificate issued pursuant to section 573.02 with a rating of a category appropriate to the work performed. Section 571.11 and Part V, Subpart 71 of the CARs do not indicate that the holder of an AMO certificate is allowed to sign a maintenance release and, in this case, it is rather the individual holding an AME licence and authorized to sign the maintenance release by the MPM who is allowed to sign the maintenance release.

In the present case, the maintenance was performed and signed by the holders of an AME licence, i.e., individuals working for the Respondent AMO certificate holder. If the legislator wished to include AMO certificate holders as persons being allowed to sign a maintenance release, he should have provided it or stipulated it clearly in the CARs.

The standards applicable to the maintenance release (Airworthiness Manual, section 571.10) confirm this interpretation. In subsection (2), paragraph (e), it is indicated that where a maintenance release is made under the authority of an AMO, it must include the identification of both the signatory and the AMO. By distinguishing the signatory from the AMO, it is clear that the legislator intended to separate the individual that signed the maintenance release from the AMO. This paragraph (e) further provides that the identification of the signatory may be either by AME licence number, or by other means that clearly identifies the signatory within that organization, the organization being obviously the AMO, not the signatory.

This limitation to the AME as the signatory in this case does not mean however that an AMO certificate holder may not be proceeded against under section 571.10 of having permitted an AME that it supervises to sign a maintenance release. It is within this wording of this section that the legislator intended to hold the AMO certificate holder responsible when a maintenance release is signed and the applicable standards of airworthiness have not been complied with.

In the present case, the Respondent MAS is also alleged (offence #1) of having permitted its personnel that it was supervising, Mr. Rudy Seetaram, an AME licence holder, to sign a maintenance release when the standards of airworthiness applicable to the maintenance performed, i.e., swapping the altimeters, had not been complied with. As discussed previously, I find that the MEL of the aircraft at issue contains standards of airworthiness referred to in Chapter 571 of the Airworthiness Manual and that the MEL, as per the definition of the "standard of airworthiness" in section 101.01 of the CARs, contains procedures to ascertain compliance with or maintain the minimum standards referred to in this definition.

As concerns this maintenance performed by Mr. Seetaram (swapping the altimeters), the Respondent subsidiarily submitted that although it is not the maintenance action suggested in Chapter 34 of the MEL (34-05) when an altimeter is found inoperative, the maintenance action suggested (being to pull and collar the pilot's altimeter circuit breaker) would still have the effect of losing the F/O's altimeter functions alleged by the Minister, i.e., lighting, vibrators, altitude alert function and mode C Transponder system.

In addition, the Respondent submitted that although the loss of items was not particularly addressed by Mr. Seetaram prior to releasing the aircraft, the aircraft could have been released anyway because the requirements of the MEL were still met. In effect, according to the Respondent, it was sufficient for each item lost that the captain's altimeter be functioning normally and that the F/O's and standby altimeters work on the pneumatic mode only.

I do not agree with the Respondent's arguments concerning offence #1 and find that the Minister has proven on the balance of probabilities that the maintenance performed by Mr. Seetaram on August 23 in Toronto on Boeing 727 aircraft, C-GRYR was not the proper maintenance as required by the MEL of the operator. In addition, for the reasons already given, I also find that the person who performed that maintenance and signed the maintenance release did not comply with the applicable standards of airworthiness, i.e., the maintenance performance rules prescribed by the MEL which require that each inoperative item or piece of the F/O's and standby altimeters that were lost be referred to as inoperative by an entry in the aircraft log book and released according to the requirements of the MEL. The MEL requires as well some maintenance actions described above that were not undertaken.

The evidence clearly shows that the Respondent, the AMO certificate holder, authorized, through its quality assurance manager, Mr. Rudy Seetaram, to swap the altimeters and dispatch the aircraft per MEL 34-05-3 only.

The Respondent consequently contravened section 571.10 of the CARs as described in offence #1 since it authorized its AME that it was supervising to sign the maintenance release when the applicable standards of airworthiness provided in the MEL which are contained in Chapter 571 of the Airworthiness Manual had not been complied with.

CONCLUSION

For all these reasons, I confirm that the Respondent contravened offence #1. I however dismiss the allegations contained in offences #2 and #3 since the Respondent did not sign the maintenance releases as stated in section 571.10 of the CARs.

I confirm the penalty of $2,500 for offence #1 recommended by the Minister in the case of a first contravention by a corporation.

Caroline Desbiens
Member
Civil Aviation Tribunal


[1] Minister of Transport v. Air Canada, (1992) CAT File No. HQ-008-50, Review Determination.


Appeal decision
Allister W. Ogilvie, Michel G. Boulianne, Pierre J. Beauchamp


Decision: June 27, 2000

We allow the appeal as we find that the Member erred in finding that the practice methods and limitations contained in the MEL were part of the Airworthiness Standards referred to in Chapter 571 of the Airworthiness Manual. As well we would also allow the appeal to succeed because of lack of a proper Notice.

An Appeal Hearing in the above matter was held Thursday, April 27, 2000 at 10:00 hours, at the Federal Court of Canada, in Québec, Quebec.

BACKGROUND

Mirabel Aero Service (hereinafter "MAS") is appealing the Tribunal's Review Determination of January 24, 2000. In that determination the Tribunal dismissed two allegations but confirmed the Minister's decision on another and upheld the assessment of the $2,500 monetary penalty.

The events giving rise to the appeal occurred on August 23, 1998. At that time MAS personnel were providing maintenance functions on a Royal Airlines Boeing 727 at Toronto's Lester B. Pearson Airport. As a result of those maintenance functions the Minister alleged the following offence:

OFFENCE #1:

You did permit Mirabel Aero Services maintenance personnel, who you were supervising to sign a maintenance release required pursuant to section 605.85 of the Canadian Aviation Regulations when the standards of airworthiness applicable to the maintenance performed, stated in chapter 571 of the Airworthiness Manual had not been complied with. More specifically on or about August 23, 1998, a Boeing 727, registered C-GRYR, at or near Toronto, Lester B. Pearson airport, the first officer position altimeter and the standby altimeter were interchanged at your direction. This is a violation of Canadian Aviation Regulation s.571.10(1)

GROUNDS FOR APPEAL

The hearing member upheld that offence and MAS appealed that decision on the following grounds:

  1. The member failed to recognize the penal nature of the accusations;
  2. Contrary to the members evaluation the Notice of Monetary Penalty does not recite all the facts and do not relate them to a specific offence;
  3. Considering the extremely broad and often subjective nature of CAR 571.02 the Tribunal was far too liberal in its interpretation thus depriving the accused of a fair hearing;
  4. The Tribunal considered time available for preparing a defence to be sufficient when lack of guidance provided by the Notice of Monetary Penalty for preparing a defence was the issue;
  5. The Tribunal in citing the accused obligation to seek guidance under section 10 of the CAT Rules erroneously transferred responsibility for the clarity of the accusations to the accused;
  6. The Tribunal erroneously blamed the accused for not having advised Transport Canada either verbally or in writing of his intention to contest the validity of the accusations;
  7. The Tribunal erroneously concluded that the accused was required by the Rules to present its motion in writing;
  8. The Tribunal contradicted its own determination by recognizing that given the lack of guidance in the accusation an adjournment would be necessary if the accused were to receive a fair hearing;
  9. The Tribunal ignored the jurisprudence in regard to Transport Canada's obligation to make precise accusation that would in and of themselves provide the accused with sufficient guidance to prepare a full and fair defence;
  10. The Tribunal mistakenly concluded that the MEL is a maintenance standard;
  11. The Tribunal made numerous errors in interpreting the requirements of the MEL and numerous errors of appreciation of the detailed facts involved in the case;
  12. The Member failed to render judgement on a motion to dismiss made after the evidence was closed.

DISCUSSION

Upon consideration of both parties' submissions we allow the Appeal based on grounds ii, x, and xi. Having come to that conclusion it is not necessary to give our reasons for dismissing each of the others. We do note however that several of the grounds are in reality statements or arguments on the Appellant's behalf rather then actual allegations of errors of law. On substantive issues alleged, such as the finding on the penal nature of accusations, we find no errors.

We have addressed grounds x and xi as one, since both pertain to the issue of the minimum equipment list (MEL) and its status in law. Ground ii, is closely related as the notice goes to the crux of issue of the MEL.

THE ISSUE OF THE MEL AS A MAINTENANCE STANDARD

Arguments from the Appellant (MAS) and Respondent (MoT) on this issue do not satisfactorily address the issue. The Minister's representative in her written materials states that a link to the standard of airworthiness can be multilayered but she does not peel back the layers to expose the route to the center of the issue.

The Appellant asserts that it was an error to conclude that the MEL is a "maintenance standard". The pertinent portions of the decision state:

...the practices, methods and limitations contained in the MEL...are part of the standards of airworthiness referred to in Chapter 571 of the Airworthiness Manual.[1]

The MEL accordingly contains standards of airworthiness applicable to the maintenance performance rules through the Airworthiness Manual (571.02).[2]

The hearing member's conclusion is that the practices, methods and limitations contained in the MEL are part of the airworthiness standards referred to in Chapter 571 of the Airworthiness Manual and the MEL accordingly contains standards of airworthiness applicable to the maintenance performance rules.

With respect we believe that the member was in error in coming to that conclusion. An analysis of the MEL regime and the appropriate sections of the Airworthiness Manual brings us to the conclusion that the MEL does not form part of any airworthiness standards referred to in Chapter 571 of the Airworthiness Manual. Rather the MEL directs maintenance personnel to accomplish a task but the standard to which that task is accomplished is found elsewhere.

That is shown by a review of the regulatory scheme regarding MELs. MELs are addressed in section 605.07 of the Canadian Aviation Regulations (CARs):

Minimum Equipment Lists

605.07 (1) The Minister may, in accordance with the MMEL/MEL Policy and Procedures Manual, establish a master minimum equipment list for each type of aircraft.

(2) The Minister may supplement a master minimum equipment list that has been issued by the competent authority of a foreign state in respect of a type of aircraft where necessary to ensure compliance with the MMEL/MEL Policy and Procedures Manual.

(3) Where a master minimum equipment list has been established for an aircraft type pursuant to subsection (1) or supplemented pursuant to subsection (2), the Minister shall approve a minimum equipment list in respect of each operator of that type of aircraft, if the requirements set out in the MMEL/MEL Policy and Procedures Manual are met.

Further to subsection (3) the Minister approved a minimum equipment list for Royal Airlines. The requirements set out in the MMEL/MEL Policy and Procedures Manual (the Manual) must be met. Some excerpts from the Manual help to understand the issue before us. The Manual provides that an MEL is an alleviating document.[3] That is, when followed it allows an aircraft to dispatch when certain equipment is not operative providing certain procedures are followed.

At Chapter 3 of the Manual it states:

3.1 MEL Purpose

The MEL is a joint operations and maintenance document prepared for or by an operator to:

  1. identify the minimum equipment and conditions for an aircraft to maintain the Certificate of Airworthiness in force and to meet the operating rules for the type of operation;
  2. define operational procedures necessary to maintain the required level of safety and to deal with inoperative equipment; and
  3. define maintenance procedures necessary to maintain the required level of safety and procedures necessary to secure any inoperative equipment. (Emphasis added)

Part of the purpose of the MEL is to define certain operational and maintenance procedures. The MMEL/MEL Policy and Procedures Manual addresses both. This can be seen at 3.15.1 where it states:

3.15.1 Operational and Maintenance Items

a. Any item of equipment in the MEL, which when inoperative would require an operating or maintenance procedure to ensure the required level of safety, shall be so identified in the "remarks" or "exceptions" column of the MEL ...(emphasis added)

b. (0) Items

[...] (not applicable here)

c. (M) Items

  1. Aircraft with inoperative equipment requiring a maintenance procedure may be returned to service following completion of the required MEL procedure for deferral. (Emphasis added)
  2. Maintenance procedures are normally accomplished by maintenance personnel [...]
  3. Air crews may not perform maintenance procedures if the defect involves an item designated in the MEL with a (M#) - Maintenance Personnel Required. In this circumstance the aircraft may not proceed until authorized maintenance personnel carry out the specific procedure.

It can be seen that the Manual refers to the necessity of carrying out certain maintenance procedures. As an operator's approved MEL must meet the requirements of the Manual, Royal's MEL for the 727 aircraft reflects those requirements. Although dismissed on other grounds, the record contains material regarding offences 2 and 3 regarding oil pressure gauges which provides an illustration of the point.

In the Royal MEL, Chapter 79 OIL (Exhibit M-10), is an excerpt regarding the required number of gauges (79-1). Addressed is the number of oil quantity indicators. The MEL states that three are installed but the number required for dispatch is two. One may be inoperative provided certain things are done. The "Maintenance Note" states:

  1. Service the associated oil tank in accordance with the 727 Maintenance Manual.
  2. Check the flight log and maintenance records for any record of above normal usage.

It can be seen that the MEL tells maintenance personnel what procedure to carry out, i.e. "service associated oil tank"; but how that is accomplished, i.e. to what standard, is to be "in accordance with the 727 Maintenance Manual".

That is borne out by the testimony of Transport Canada witness, Inspector Arbour during the first day's testimony. The pertinent part of the transcript at pages 85 and 86 states:

By Mr. Wilcox:

Q. Inspector Arbour, the second example of standard you mentioned, would be the manufacturer's maintenance manual. Can you please explain how a manufacturer's maintenance manual is a standard, as it relates to the Boeing 727 aircraft?

A. Yes. Typically, heavy aircraft which, in this case, is a 525 [Sic 727] aircraft, the maintenance manual has to be accepted by the certifying authority, which is the FAA, at the time of certification, as accepted by Transport Canada. That is the standard for doing maintenance on the aircraft. There are certain other items that can be accepted by other standards, but those are of a minor nature, polishing and cleaning and things like that. (Emphasis added)

Q. So that means that if an aircraft has a fault or a defect, the approved maintenance engineer or AMO, the maintenance engineer, researches the manufacturer's maintenance manual for the repair procedure; is that correct?

A. Yes, that is affirmative.

Inspector Arbour has stated that the maintenance manual is the standard for doing maintenance on the aircraft.[4] This concept is in turn consistent with the pertinent legislation in the Airworthiness Manual. The preamble to Chapter 571 of the Airworthiness Manual states:

"This chapter provides the minimum standards of maintenance for aeronautical products in Canada."

Section 571.02 addresses the maintenance performance rules. The Information Note stipulates at its commencement that it is applicable to the performance of maintenance or elementary work and it addresses how work should be done, as opposed to what work should be done. This is to be contrasted with the MEL which prescribed what was to be done not how it was to be done.

How the task is to be done is addressed at 571.02 where it states:

Persons who perform maintenance or elementary work are required to follow the manufacturer's recommendations, or equivalent practices [...]

The manufacturer's recommendations are found in the maintenance manual. In the foregoing illustration regarding oil quantity indicators the MEL referred the personel to service the oil tank in accordance with the 727 Maintenance Manual. Mr. Arbour testified the Maintenance Manual was the standard for doing maintenance on the aircraft; i.e. the manufacturer's recommendations are in the Maintenance Manual.

The MEL does not provide the standards of airworthiness for the maintenance performance rules but rather directs the maintenance personnel to do a task. The standard to which the task is done is found elsewhere through reference to Chapter 571, and in this case to the referral to the manufacturer's maintenance manual in 571.02. That section also addresses alternate sources where a manufacturer has not made specific recommendations.

Therefore we conclude that the member erred in coming to the conclusion at page 16 where after analysis she states:

The MEL accordingly contains standards of airworthiness applicable to the maintenance performance rules through the Airworthiness Manual (571.02).

SUFFICIENCY OF THE CHARGE

Having come to the conclusion that the MEL does not contain standards of airworthiness applicable to the maintenance performance rules, we can relate that finding to the issue of the sufficiency of the charge. The Appellant argued that the notice was too vague to allow MAS to prepare an adequate defence.

Jurisprudence and authorities on administrative law have addressed the need for notice and its sufficiency. To paraphrase, one must be reasonably informed of the charges against him so as to allow an opportunity to present a full defence.

The offence as stated in the Notice of Assessment of Monetary Penalty closely tracks the language of the offence creating subsection 571.10(1), basically that MAS permitted maintenance personnel whom they were supervising, to sign a required maintenance release when the standards of airworthiness applicable to the maintenance performed as stated in Chapter 571 of the Airworthiness Manual had not been complied with.

However the specifics of the charge do not relate to an improper signature but to a physical act. It states:

More specifically on or about August 23, 1998, a Boeing 727, registered C-GRYR, at or near Toronto, Lester B. Pearson airport, the first officer position altimeter and the standby altimeter were interchanged at your direction.

It can be seen that the specifics alleged were the physical interchange of two instruments whereas the offence addresses permitting the signing of a release when the standards of airworthiness stated in Chapter 571 had not been met.

The Minister then went on to adduce testimony that the standards of airworthiness to which the charge relates was found in the MEL. However, as discussed, we find that the MEL did not contain standards of airworthiness applicable to maintenance performance rules.

The decision shows Chapter 571 refers to numerous and sundry sources of the standards, from manufacturers' maintenance manuals to standard industry practices. The Minister's own submission on the point was that the link to the standard of airworthiness can be multilayered but the specifics of the charge itself did not peel back the layers to expose the core of the allegation.

After the introduction of evidence it became clear that the allegation was that signature was improper because it stated that the described maintenance had been performed in accordance with the applicable standard of airworthiness, when the standard had not been met. But no mention of the MEL as the applicable standard is made in the charge, only reference to Chapter 571 as a whole. We have subsequently held that the standard to which the Minister refers in evidence and argument is not a standard of airworthiness.

It was also asserted that the specifics of the offence could be inferred from the disclosure package. We agree that full disclosure is highly desirable and that it enables one to know the proposed evidence of the Minister, including proposed witnesses but that does not relieve the Minister from his obligation to present a clear notice.

A document holder is entitled to know the specifics of the offence in order to have the opportunity to challenge the Minister's interpretation. Here the specifics were lacking. The evidence proffered attempted to illustrate that the MEL was a standard of airworthiness. Had that been part of the allegation MAS could have specifically addressed the issue. It was not until after evidence had been entered that MAS became aware of the MEL issue, which was the core of the Minister's case. That should have been clarified in the specifics of the offence.

The hearing member did offer an opportunity for an adjournment after evidence was heard so that MAS could prepare a case, but the opportunity was declined.

We hold that the Notice of Assessment of Monetary Penalty should be sufficiently clear and complete so as to allow one the opportunity to know the case against him, to enable him to dispute or correct anything prejudicial to him. That is, the Notice, containing the allegation should be that clear when served not clarified after the commencement of proceedings. In some circumstances a deficiency may be cured by an adjournment but we do not find this to be an appropriate circumstance.

DETERMINATION

In the result we allow the appeal as we find that the Member erred in finding that the practice methods and limitations contained in the MEL were part of the Airworthiness Standards referred to in Chapter 571 of the Airworthiness Manual. As well we would also allow the appeal to succeed because of lack of a proper Notice.

Reasons for Appeal Determination:

Allister Ogilvie, Vice-Chairperson

Concurred:

Michel Boulianne, Member
Pierre Beaudry, Member


[1] Review Determination, at page 16.

[2] Review Determination, at page 17.

[3] MMEL/MEL Policy and Procedures Manual, Chapter 1 at 1.3

[4]We acknowledge that Mr. Arbour also stated that the MEL was a standard. From the context it could be inferred that he was referring to a maintenance standard. However we were unable to link that statement to the legislative scheme whereas that was possible with his statement that the maintenance manual was a standard.

(Minister of Transport v. Mirabel Aero Service, Transcript, pages 75 and 79)