Decisions

CAT File No. O-2098-41
MoT File No. PAP 5504-041492

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

1014456 Ontario Ltd. (crown Charter-phoenix Aviation), Respondent

LEGISLATION:
Aeronautics Act, R.S. c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR 96-433, ss. 202.13(2), 605.85(1)(2)(4)

Certificate of Registration, Reduction of Monetary Penalty


Review Determination
Philip D. Jardim


Decision: January 17, 2001

I have determined that 1014456 Ontario Ltd. (Crown Charter-Phoenix Aviation) did contravene the regulations under reference above; however, there are mitigating circumstances, particularly with respect to section 202.13 of the Canadian Aviation Regulations. Accordingly, I uphold the Minister of Transport's imposition of penalties, but reduce them as follows:

Count 1: $250.00

Count 2: $250.00

The total amount of $500.00, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Wednesday, January 10, 2001 at 13:00 hours at City Hall, in Brantford, Ontario.

BACKGROUND

1014456 Ontario Limited - Crown Charter-Phoenix Aviation (Crown–Phoenix) leased a Cessna 172N, C-GUMV to 565176 Ontario Limited (Skyways). A certificate of registration, dated December 5, 1997 was issued, recognizing this change in the operator of the aircraft (Exhibit M-1). This lease was terminated on April 30, 1999 (Exhibit M-2), thereby automatically terminating the registration of this aircraft.

The next certificate of registration for C-GUMV was issued on April 12, 2000 (Exhibit M-3), so that during the period April 30, 1999 and April 12, 2000, this aircraft was not legally registered.

Further, maintenance was performed on C-GUMV, and on November 18, 1999 the aircraft was signed out, subject to a satisfactory test flight. This test flight was never recorded as having been done in the aircraft's journey log book, although the aircraft did fly the next day, November 19, 1999, and on several other occasions, when its certificate of registration was invalid (Exhibit M-6).

Apparently as a result of an audit on Skyways, when C-GUMV was found to be no longer on its register, Transport Canada investigated the matter, and assessed penalties on two counts totalling $1,500.00 against Crown–Phoenix, for breaches against subsections 202.13(2) and 605.85(1) of the Canadian Aviation Regulations (CARs), pursuant to subsection 8.4(2) of the Aeronautics Act.

The fine was not paid, hence this Review Hearing with the Minister of Transport as the Applicant. The Respondent had not appeared by 10:00 hours and contacted the Tribunal to say that his secretary had misinformed him as to the date. I agreed to give him until 13:00 hours to attend, otherwise, the hearing would proceed without him, and I would have no authority under the Act to alter the sanction. He agreed to and did attend at 13:00 hours.

THE LAW

Subsection 202.13(2) of the CARs states:

(2) Except as otherwise authorized pursuant to subsection 202.14(1), 202.42(3) or 202.43(1), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

Subsections 605.85(1), (2) and (4) of the CARs state:

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

(2) Where a maintenance release is conditional on the satisfactory completion of a test flight pursuant to subsection 571.10(4), the aircraft may be operated for the purpose of the test flight if no person is carried on board other than flight crew members and persons necessary for the purpose of making observations that are essential to the test flight.

[...]

(4) No maintenance release is required in respect of tasks identified as elementary work in the Aircraft Equipment and Maintenance Standards.

Subsections 202.35(1) and (3) of the CARs state:

202.35 (1) Subject to Subpart 3, where the registered owner of a Canadian aircraft transfers any part of the legal custody and control of the aircraft, the certificate of registration of the aircraft is cancelled.

[...]

(3) For the purposes of this Division, an owner has legal custody and control of a Canadian aircraft when the owner has complete responsibility for the operation and maintenance of the aircraft.

EVIDENCE AND ORAL ARGUMENTS

For the Applicant-Minister of Transport

Mr. Shimmin introduced the circumstances of the case and called his two witnesses to testify as to the details and matters arising. In the course of this presentation he offered a total of eight exhibits and copies of the appropriate regulations.

Ms. Pybus testified that she investigated this matter. As a result of her investigations, it was discovered that Crown–Phoenix had contravened the regulations by flying Cessna 172N, C-GUMV without a valid certificate of registration. She further testified that the aircraft had undergone maintenance on November 18, 1999, which required a test flight. The aircraft was flown the next day, November 19th, and subsequently, but no record was made of the required test flight. Subsections 202.13(2), 605.85(1), (2), (4), 202.35 (1) and (3) of the CARs under reference above were breached.

Mr. Field cross-examined Ms. Pybus, seeking clarification of registration and test flight requirements. He sought to justify the lack of a certificate of registration by asking whether just as the regulations automatically cancel a certificate of registration on termination of a lease, do they not reinstate it with the owner? This is NOT the case.

Mr. Field also sought clarification of what constituted a successful test flight. He was told that the pilot-in-command should establish that the aircraft is performing according to its flight manual, and that there is a requirement for an annotation to be made in the journey log book: "Test flight satisfactorily completed." (CARs 605.94) This was not done.

Mr. Field further sought to discredit Skyways, the lessee, whose responsibility it is to have advised Transport Canada of the termination of the lease, and the certificate of registration. He also alleged that notwithstanding the date of April 30, 1999 on the lease termination, this document had been prepared some seven to ten months later, and backdated to April 30, 1999. He enquired whether any charges had been laid against Skyways, since they had breached the regulations, as they had failed to notify Transport Canada on the termination of the lease. Transport Canada did not answer this question.

The second witness, Inspector John Blascik then took the stand. He said that he had performed an audit on Skyways between January and March 2000. He found that C-GUMV was no longer with Skyways, and did a search for the aircraft. He found it in Brantford, and assisted Crown–Phoenix in making an application for a new certificate of registration. As he was doing so, he discovered that an application had already been made and was in process.

It is apparent that Transport Canada discovered these breaches of the regulations as a result of this audit.

Mr. Blascik further testified as to finding that no test flight had been recorded as having taken place in the journey log book. Further, in answer to Mr. Field's cross-examination, he replied that he had made no recommendation to proceed against Skyways.

Arising out of his audit, John Blascik issued an "Aircraft Inspection Report" (Exhibit M-7), and a "Detection Notice" (Exhibit M-8). These two documents describe the finding of C-GUMV at Brantford, at Crown–Phoenix's facility and the efforts to have it re-registered. The detection notice describes the infraction of section 605.85, due to the lack of a test flight after maintenance, and a recommendation of "further investigation."

The Minister rested his case.

For the Respondent-Crown–Phoenix

Mr. Blaine Field then took the stand and was duly sworn. He advised that while there was no record of it in the log book, a test flight did take place, but the pilot failed to make the appropriate entry in the log book.

Notwithstanding the date on the lease termination document and his signature thereon, he asserted that the validity of the lease was really the date on which the document was prepared, which was some seven to ten months later. Be that as it may, this assertion does not hold water under any circumstances, since his signature appears on the lease termination, dated April 30, 1999.

In order to clarify his position, I questioned Mr. Field on the circumstances of the lease and its termination. He could not say why the date on the lease termination was April 30, but alluded to payment and other problems with Skyways, and that Crown–Phoenix did not want to continue leasing the aircraft to Skyways.

It became apparent that Crown–Phoenix's breaches of the regulations were likely due to sloppy administration, and a lack of awareness of the regulations and their application to this situation.

In his summary, Mr. Field admits that he has learned from this experience and that he accepts full responsibility.

DISCUSSION AND DETERMINATION

I find that there is no malice or intent in Crown–Phoenix's transgression of the regulations. Rather, there seems to be poor administration and a lack of awareness of them.

Further, with regard to certificates of registration and their validity, I find that it is impossible to know whether one of these documents is valid, unless some annotation is made on the certificate that it is valid only for so long as the listed owner retains control of the aircraft, whether by leasing it or being the actual owner. There is no indication on the certificate as to its validity. Where the "owner" is actually a lessee, as in this case, some reference to this should be made on the certificate, identifying Crown–Phoenix as the actual owner. I find that it is wrong and misleading that no mention is made of this very material fact. Pilot licences and their medical certificates have validity dates, and so should certificates of registration and any other document which have a finite validity.

I propose that under the heading "Name(s) of Owner(s)" the following should appear:

"1014456 Ontario Ltd. (Crown Charter-Phoenix Aviation) aircraft on lease to 565176 Ontario Limited (Skyways)"

I also propose that there should be a VALIDITY box on the form, and that the words: "Valid only during the lease period between Crown–Phoenix and Skyways. This certificate expires on the expiration of the lease, April 30, 1999, unless renewed or cancelled."

This change to the form would make it clear to anyone looking at the certificate whether it is valid or not, without having to resort to looking up the regulations and asking questions about lease validity to determine the validity of a certificate of registration.

I have determined that Crown–Phoenix did contravene the regulations under reference above; however, there are mitigating circumstances, particularly with respect to section 202.13 of the CARs. Accordingly, I uphold Transport Canada's imposition of penalties, but reduce them as follows:

Count 1: $250.00
Count 2: $250.00
Total:      $500.00

Crown–Phoenix would do well to make itself more aware of the CARs, particularly those which govern its particular operation, and to tighten up its administration procedures so that it is not found wanting in future.

Philip D. Jardim
Member
Civil Aviation Tribunal