Decisions

CAT File No. A-1048-10
MoT File No. 6504-C-005324-26281

CIVIL AVIATION TRIBUNAL

BETWEEN:

Springdale Aviation Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 8.4(1), 6.9
Air Carriers Using Small Aeroplanes Order (Air Navigation Order, Series VII, No.3) s. 12(3)
Aircraft Journey Log Order (Air Navigation Order, Series VIII, No. 2) s.3

Vicarious Liability, Sanctions, Intent, Failure to Follow MCM Procedures, Aircraft Journey Log, Failure to Enter Defects


Review Determination
Orville Pulsifer


Decision: September 20, 1995

I confirm the Minister's decision to suspend Mr. David Norman Loewen's Aircraft Maintenance Engineer Licence (M361379) for a period of fourteen days. Said suspension shall take effect on the fifteenth day following service of the present Review Determination.

A Review Hearing on the above matter was held Thursday, September 7, 1995 at 10:00 hours at Council Chambers, in the city of Deer Lake, Newfoundland.

BACKGROUND

Springdale Aviation Ltd. was alleged by the Minister of Transport to have contravened the following:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Aircraft Journey Log Order (ANO VIII, No. 2) s. 3 in that on or about the 21st day of June, A.D., 1994, at or near Springdale, Newfoundland, you did fail to enter defects in a record to be kept, namely the aircraft journey log for Cessna 150 aircraft bearing Canadian registration marks C-FYKP although rectifications were recorded and did thereby commit an offence contrary to and in violation of section 7.3(3) of the Aeronautics Act, R.S.C. 1985, c. A-2 as amended.

A second count was recorded against Springdale Aviation Ltd. as Schedule A:

Air Carriers Using Small Aeroplanes Order (ANO VII, No. 3) s.s. 12(3) in that on or about the 28th day of June, A.D., 1994, and on or about the 27th day of October, A.D., 1994, at or near Springdale, Newfoundland, you did fail to enter defects in a record required to be kept, namely the Aircraft Journey Log for Cessna 185 aircraft bearing Canadian registration marks C-GMIR during an inspection as required by the company approved Maintenance Control Manual section 3.3 and did thereby commit an offence contrary to and in violation of section 7.3(3) of the Aeronautics Act, R.S.C. 1985, c. A-2 as amended.

Count 1:  3 day suspension of Operating Certificate No. 5324

Count 2:  4 day suspension of Operating Certificate No. 5324

Total:       7 day suspension of Operating Certificate No. 5324

In accordance with s.s. 8.4(1) of the Aeronautics Act, the registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

By letter dated May 12, 1995, Springdale Aviation Ltd's president, Mr. Rick Adams, applied for a review before the Tribunal as follows:

I have just received a notice of suspension from Transport Canada in Moncton. This action has arisen from an audit done on my maintenance organization February 15, 1995. I hereby request a review of the minister's decision and a stay in the suspension because I feel that the penalty is wrongly placed.

Back in March when I became aware of these possible violations I conferred with the Director of Maintenance, Bernard Gohier, and he told me that defects discovered by him did not have to be entered in the journey log, the only requirement was for him to make the entry of rectification after the defect was fixed. I have since learned that this is not the proper procedure and therefore Mr. Gohier was wrong.

Before Mr. Gohier could become Director of Maintenance for Springdale Aviation he had to have an interview with Transport Canada to determine if he was capable of handling the job. It was determined that he was and that his principal responsibility would be to abide by the rules of the Maintenance Control Manual. He did not comply in this case and therefore should accept full responsibility.

In a 'just' society a monetary fine or a license suspension would help ensure that Mr. Gohier remembers the "Defect Rule" but to shut down the whole company for something that the President or the other employees had no control over is very unjust.

A Stay Determination was granted on May 26, 1995 by Tribunal Vice-Chairperson, Bruce L. Pultz, "until the Review Hearing consideration and determination." At the Review Hearing the parties agreed that an offence did occur but that it was an inadvertent, unintentional occurrence. The parties also agreed that Mr. Gohier was, to the best of their mutual knowledge, a competent, respected and properly licensed engineer.

The Applicant's request to quash the Notice of Suspension was based on several areas of contention, including those contained in his communication of May 12, 1995, to the Tribunal, as noted above.

Mr. Adams noted that the procedure which resulted in the present Notice of Suspension had been carried on by the company for many years by several engineers or directors of maintenance and had been the subject of Transport Canada audits on previous occasions, without attracting attention or a citation of any kind. Mr. Adams contended that the company had had three engineers utilize "basically the same system."

He noted that, in his opinion, Mr. Bernard Gohier might more properly have been fined, rather than that the company be subjected to a suspension of Operating Certificates. Mr. Adams asked the rhetorical question: if the same mistake had been made by Air Canada, would they be grounded for a week?

He noted also that the corrective action taken by Springdale Aviation Ltd. following the audit by Mr. Davis was found by him [Mr. Davis] to be an "Acceptable Response" (Exhibit M-12). He questioned, under such circumstances, why the matter continued to the Notice of Suspension.

Under cross-examination, Mr. Davis stated that once the audit information is completed, it is forwarded to a Transport Canada Review Committee in Moncton and is "out of our hands." The decision to proceed or not to proceed against the document holder is not made at the District Office level.

Mr. Adams stated Mr. Gohier was simply not aware of the requirement to post the defect in the aircraft journey log and may have been hampered by his less than complete knowledge of English. Defects were regularly noted in the company's SNAG sheets, he stated, but not in the aircraft journey logs for either C-FYKP or C-GMIR.

DETERMINATION

Decisions of the Civil Aviation Tribunal are based on the principles of natural justice. Viewed in that context, the strict application of the law "to the letter of the law" will not necessarily always ensure justice in all cases. Indeed, there are times when the strict application of the law "to the letter of the law" would be counterproductive to all parties concerned and perhaps, in the longer term, to society itself.

For whatever reasons the strict procedure as prescribed by the Aircraft Journey Log Order (ANO VIII, No. 2), was not followed to the letter. The parties agreed on that point. They agreed also that the offence was unintentional. There is no evidence to suggest that any attempt was made by any person at any time to hide something, to deceive, to obfuscate or to short-circuit the prescribed system, or to avoid any maintenance procedure to the detriment of air safety or the travelling public.

The intent of the parties, both the Applicant and the Respondent, appears clear in this instance: both have concern for safety and quality maintenance within their capacity to achieve it or regulate it. However, in the present instance, it appears an honest mistake on the part of the company's Director of Maintenance/Chief Engineer, Mr. Gohier, resulted in a diversion or omission from Transport Canada's prescribed administrative procedure.

In testimony by Mr. Davis, he admitted himself that this omission had been overlooked on previous audits he had conducted on the Applicant's aircraft. It is difficult to understand why it had now suddenly attracted a penalty. There is ample evidence (Exhibit M-4) that Springdale Aviation Ltd. was attempting to fulfill its responsibility.

I can, therefore, see no useful purpose to be achieved in this instance by applying the suspensions. The result will simply be to curtail Springdale Aviation Ltd.'s capacity to carry on business. The Applicant has already taken considerable time and effort to respond to a matter which surely could have, or should have, been resolved satisfactorily in the interest of the company, the Minister and the travelling public at Transport Canada's District Office level.

Indeed, Transport Canada's own evidence (Exhibit M-12) indicates to me that it had been, at one point, in the section of Exhibit M-12 marked Transport Canada Response "Acceptable Response."

Attendance at this hearing itself and previous attention to this matter in correspondence and consultations have resulted in considerable travel, time and expense to the parties, which is a penalty of a kind to a small company.

I understand points made by Mr. Riopka in his summation when he stated: What this causes is that the travelling public and students using the aircraft are put to an unknown risk. It is not a minor incident or just paperwork. The state of airworthiness of [that] aircraft is in jeopardy when this system is not followed. The Minister considers this kind of situation – an unknown risk – totally unacceptable.

The Case Presenting Officer for the Minister asked that the suspension of seven days be upheld without reducing the penalty any further. He noted that the recommended sanction on a first offence is a penalty of 7 to 14 days. He indicated the Minister recognized that this was inadvertent. "That is why we have applied mitigation here already and we're asking you not to apply mitigation on top of that again."

While I am sensitive to the overriding priority of air safety and the integrity of the system, I am not satisfied that the suspensions imposed by the Minister will serve any purpose in this instance to correct omissions which both parties agree were inadvertent on the part of an employee who is no longer with the firm and, in any event, which have been corrected.

It would be quite another matter, in my view, if this were a second offence or if, having been told to correct the administrative procedure or oversight, it had not been complied with immediately. But in my understanding that is not the situation in this case.

'Honest mistake' may be no excuse, but over-zealous prosecution will provide no cure. I have no sense of an uncooperative attitude or an unwillingness in complying on the part of Springdale Aviation Ltd.

I cannot, however, accept the proposition put forth by Mr. Adams that the company ought not to be held responsible for the acts of its employees in the scope of their employment.

Mr. Riopka indicated section 8.4 of the Aeronautics Act is clear on this point, and the company can be held accountable for any of its aircraft or any of its employees at the Minister's discretion. I concur. The responsibilities of the Applicant in this regard are very clear.

However, circumstances do alter cases. My sense of the respective positions of the parties in this instance is that the matter has already been addressed in sufficient detail and with sufficient time and commitment that imposition of the stated suspensions, far from acting as a deterrent to future procedural oversights of this type by Springdale Aviation Ltd., will simply impose a burden on the company with no significant positive purpose to be achieved for either the company, the Minister or the public good.

I therefore reduce the suspension to 12 hours for each count, for a total of 24 hours.

I should like to thank all parties for their assistance.

Orville Pulsifer
Member
Civil Aviation Tribunal


Appeal decision
Jacques Blouin, Ronald E. McLeod, Suzanne Jobin


Decision: February 26, 1996

Heard: Deer Lake, Newfoundland, February 12, 1996

The Tribunal dismisses the Appeal and upholds the Minister's decision to suspend Springdale Aviation Ltd.'s Operating Certificate. The 24-hour suspension as reduced by the Tribunal in its Review Determination shall take effect on the fifteenth day following service of this Appeal Determination.

[para1] The Appeal Hearing on the above matter was held before the three designated Tribunal members Monday, February 12, 1996 at 10:00 hours at the Council Office, Council Chambers, in the city of Deer Lake, Newfoundland.

BACKGROUND

[para2] Springdale Aviation Ltd. is appealing the Review Determination made by Orville Pulsifer on September 20, 1995. In the determination at first instance, the Tribunal confirmed the Minister's decision to suspend Springdale Aviation Ltd.'s Operating Certificate.

[para3] While acknowledging that the Applicant had contravened section 3 of the Air Navigation Order Series VIII, No.2 and subsection 12(3) of the Air Navigation Order Series VII, No.3, Orville Pulsifer reduced the suspension assessed by the Minister to 12 hours for each count for a total of 24 hours. The Minister had prescribed a suspension totalling 7 days for the two counts.

[para4] The grounds for the appeal can be summed up as follows:

1. The company shall not be held liable for the acts of the employee;

2. the employee demonstrated no deliberate intention to ignore regulations, he acted in good faith;

3. a suspension of the operating certificate should not have been imposed when the audit team found the company's corrective actions to be satisfactory;

4. the suspension of the operating certificate served no useful purpose;

5. the suspension of the operating certificate, notwithstanding the length of the suspension, will have deplorable economic consequences for the Appellant.

REPRESENTATIONS BY THE PARTIES

[para5] The Appellant submits in his arguments that, while the Tribunal member recognized in his determination that there were no useful purposes to be achieved by imposing a suspension, he nonetheless, without proper justification, confirmed the Minister's decision.

[para6] Based on those arguments and the grounds for appeal previously stated, Springdale Aviation requests that the appeal be allowed and that the Minister's decision be overturned.

[para7] The Respondent underlines in its representations its disagreement with the drastic reduction in the suspension by the Tribunal in the first instance. However, it argues that no reviewable error was made by the Member justifying the intervention of the Appeal panel. Consequently, the Minister requests that the appeal be denied and the determination of the Review Member be confirmed.

DISCUSSION

[para8] The submissions of the Appellant and the grounds for appeal cannot exonerate Springdale Aviation of liability in this case for the following reasons:

[para9] Subsection 8.4(1) and section 8.5 of the Aeronautics Act provide for vicarious liability in the following terms:

8. 4(1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

8. 5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

[para10] To fall under those sections of the law, the Appellant had the burden to prove on a balance of probabilities that, at the time of the offences, the aircraft was in the possession of a person other than the owner without the owner's consent or that all due diligence was exercised to prevent those contraventions.

[para11] At the Review Hearing, the Appellant did not present any evidence allowing the application of the above legislative dispositions.

[para12] The assumption that the employee had no deliberate intentions to ignore regulations or the fact that he acted in good faith is not a reason to absolve the Appellant from vicarious liability.

[para13] In any case, the stated offences are offences of strict liability where there is no need for the prosecution to prove the existence of mens rea. The prosecution, in those cases has only to prove that the contraventions occurred, and upon doing so the evidentiary burden shifted to the person being prosecuted.

[para14] The contentions of the Appellant that suspensions should not have been imposed because Springdale Aviation reacted in a satisfactory manner to the request from the audit team do not constitute valid grounds for appeal.

[para15] The violations occurred and were subject to possible enforcement action. The Minister of Transport decided to impose a suspension in that case. The fact that the Appellant corrected the deficiencies after notification is irrelevant.

[para16] The Appellant claims that the suspension of the operating certificate served no useful purpose and should be annulled. He bases his arguments above all on the comments of the Tribunal Member.

[para17] In his Review Determination the Tribunal Member states that in this instance he could see no useful purpose to be achieved by applying the suspensions. Furthermore, he mentions that, while he is sensitive to the overriding priority of air safety and the integrity of the system, he is not satisfied that the suspensions imposed by the Minister will serve to correct the omissions. He then confirmed the Minister's decision and accordingly reduced the suspension from 7 days to 24 hours.

[para18] The arguments put forward by the Appellant and the comments made by the Tribunal in the first instance do not diminish the reality or legitimacy of the decision of the Tribunal to confirm the Minister's decision and do not constitute grounds for appeal.

[para19] Finally, the negative economic impact projected by the Appellant shall not be a point in deciding liability. The Member took those factors into consideration when assessing the penalties. That is one of the reasons he reduced so drastically the suspensions, but those grounds are in no way acceptable as an argument for the annulment of a suspension.

[para20] For the above reasons, the Tribunal dismisses the Appeal and upholds the Tribunal's Review Determination.