Decisions

CAT File No. O-2362-41
MoT File No. PAP5504-044738

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

30,000 Island Air Ltd., Respondent

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

Painting of aircraft, Maintenance release, AMO


Review Determination
Samuel J. Birenbaum


Decision: April 11, 2002

I confirm the Minister of Transport's allegation of contravention of subsection 605.85(1) of the Canadian Aviation Regulations and consider the monetary penalty of $500 appropriate. That amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A Review Hearing on the above matter was held Wednesday, March 6, 2002 at 09:00 hours at the Court House in Parry Sound, Ontario.

BACKGROUND

On February 21, 2001, a Cessna 180 aircraft, operated by 30,000 Island Air Ltd., bearing the registration marks C-FICJ was flown from Orillia, Ontario to Parry Sound, Ontario after the aircraft had undergone painting. This was a short flight of approximately 18 minutes and it is alleged that the paint maintenance was not certified by an approved Air Maintenance Organization (AMO) in Orillia prior to commencement of this flight to Parry Sound. A monetary penalty of $500 was assessed by the Minister, and a review hearing requested by the Minister of Transport.

EVIDENCE

An order for exclusion of witnesses was granted and the case presenting officer, Mr. Newcombe, in his opening remarks indicated that contrary to subsection 605.85(1) of the Canadian Aviation Regulations (CARs), the aircraft was flown after being painted, without certification or maintenance release. Thus, there was no flight authority for this aircraft. He indicated that the paint shop that had performed the service did not possess the authority to sign the work.

Mr. Newcombe introduced his first witness, Mr. Randy Miller, who was duly sworn. Mr. Miller is a Transport Canada enforcement officer for the past two years. At this time, a loose leaf binder with numbered tabs one to seven was offered as Exhibit M-1 for the Minister. Mr. Miller indicated that under tab 1 was a detection notice from another inspector, Mr. Fred Lowes, indicating that the paint maintenance on aircraft C-FICJ was not certified in Orillia before the aircraft was flown from Orillia to Parry Sound. This information was communicated to Mr. Thomas Blackwell, owner of 30,000 Island Air Ltd., by registered letter dated July 23, 2001, also contained in tab 1.

A Notice of Assessment of Monetary Penalty of $500 to be paid on or before October 29, 2001 is located in this tab, along with the details of an alleged violation under subsection 605.85(1) of the CARs. Tab 2 contains sections of the CARs pertaining to this matter, including, on page 2-A, page 3-4, a definition of "maintenance" to include finishing and repainting, which must be subject to a maintenance release. Also defined is the term "elementary work" requiring no AMO release. Painting is not included in the listing of elementary work.

This regulation applies to commercially operated aircraft, not privately owned aircraft, and the aircraft in question was commercially licensed. On page 2-E, under appendix C, under item 2(a), subparagraph (v), there is listed the need to prepare a revised weight and balance report following any change to the empty weight or centre of gravity, which may result from painting of the aircraft. Furthermore, under section 571.10, pursuant to section 605.85 of the CARs, a maintenance release must be completed prior to take-off of an aircraft following any maintenance other than elementary work to ensure that all applicable standards of airworthiness have been met.

The witness indicated that painting can obstruct pitot tubes, control surfaces, sensors, drains, as well as static ports; thus, there is a necessity for a release to be signed prior to flight of the aircraft. The possibility of "flutter'' which would be imperceptible to the pilot but could cause malfunction and failure of control surfaces is a serious risk, along with failure caused by obstruction of various openings in the aircraft skin. Thus, there is a significant aviation safety factor involved in the necessity to ensure compliance with regulations following the performance of the painting of a commercial aircraft. Under tab 3, the service manual[1] for this aircraft indicates the need for rebalancing of control surfaces following painting. This is a tedious task requiring specialized training, and should be performed by a certified aviation maintenance engineer (AME). This was not performed on the aircraft in question prior to the flight on February 21, 2001.

Under tab 4 are various documents affecting 30,000 Island Air and its aircraft along with an estimate for painting by Hardie's Paint in Orillia, and an invoice dated January 10, 2001, indicating the work of painting along with several other services that were performed on the aircraft at that time. A copy of the aircraft journey log indicates a flight on February 21, 2001 from Hardie's Paint to Parry Sound with a single occupant, the pilot, Mr. Blackwell, requiring 0.3 hours of air time, and 0.4 hours' total flight time. This log entry is signed by Mr. Blackwell, licence number C 96469. The AMO for 30,000 Island Air did not inspect the aircraft at Hardie's Paint prior to this flight.

Under tab 5 a letter to Transport Canada from Mr. Thomas Blackwell, President and CEO of 30,000 Island Air, indicates that a maintenance release was obtained following a flight to Parry Sound after removal and rebalancing of control surfaces. The flight from Orillia, however, took place prior to this certification process. In addition, there is no evidence that there was any inspection of essential parts of the aircraft prior to this flight.

In his letter under tab 5, Mr. Blackwell informs Transport Canada that a release was obtained at Hardie's Paint prior to the flight by the "on site AME". This AME, however, is not approved to sign the required release, nor is there any indication of this inspection in the aircraft journey log. Under cross-examination, this witness indicated that when he spoke to Mr. Hardie he was assured that the controls were checked but that the AME did not have the authority to sign for this, and thus, made no log entries. He is unaware if any control balancing was performed. Mr. Miller agreed that only one brief flight had taken place, with no passengers on board.

Tab 2-B lists regulations dealing with the method used to ensure compliance and signing of the necessary release. Reference is also made to the use of the most recent manual on the aircraft. The manual specified in tab 3-B for this type of aircraft applies to aircraft built in 1962 or prior. This manual indicates the necessity to restore the surface of the aircraft to its proper static balance after "repair and repainting". A later manual dealing with aircraft of this type produced between 1963 and 1968 uses the wording "repair and/or painting"; thus, Mr. Blackwell indicated that the need for static testing, according to the manual may not be required unless both repair and painting were performed, and in this instance, only painting was performed, according to Mr. Blackwell.

It was agreed by the witness that the flight duration was approximately 18 minutes and that there is no indication in the log of any flutter or other abnormalities occurring on this February 21st flight. The witness also indicated that there was no entry on the nature of the painting, the number of coats, nor the weight of the paint applied. It was agreed that the aircraft on this flight contained only the pilot without a passenger, that there was no known accident history, and that painting of an aircraft contributed to general performance and safety. The witness indicated that the AME at Hardie's indicated that no rebalancing of control surfaces was done prior to the February 21st flight, but that control surfaces were checked. There was no log entry to indicate the nature of this checking, and no indication that balancing had taken place.

The case presenting officer then had his next witness sworn, Mr. Fred Lowes, a Transport Canada Inspector for the past four years, who was previously a safety maintenance officer. This witness referred to Exhibit M-1, tab 1 and indicated that the detection notice he wrote on July 9, 2001 indicated that a flight had been taken on aircraft C-FICJ following painting without appropriate certification. He indicated that this was a serious infraction, and that he felt that Mr. Blackwell had misrepresented the facts in the course of his investigation. A monetary penalty was advised, after discussion with Mr. Miller, to ensure compliance in the future by 30,000 Island Air.

He indicated that painting is defined by the term "maintenance", and is not listed under "elementary work", which does not require an AME release. This regulation ensures compliance with the necessary issues that ensure the aircraft is safe for flight. The necessary inspection and rebalancing were indeed performed at a later date but not before the flight of February 21, 2001. He indicated he felt there was no difference in intent between the wording "repair and paint", and the wording "repair and/or paint", and that the appropriate inspection and rebalancing are recognized industry standards which indeed were performed on this aircraft at a later date. Because Hardie's was unable to sign the necessary release, this aircraft was not certified for the flight in question.

Mr. Lowes indicated that painting affects many aspects of the aircraft such as weight and balance, as well as having the potential to damage static ports, pitot tube openings, drains, pulleys, bearings, and door mechanisms. Data placards may be inadvertently covered. He referred to the possibility of catastrophic flutter due to increased weight of paint aft of the hinges, and stressed the need to perform painting operations in an approved manner with special care to corrosion, materials, masking, and cleaning.

He referred to the estimate from Hardie's Paint in Exhibit M-1, under tab 4-F, which shows "balancing of flight controls, deduct $400". This would seem to indicate that there was no authorization given to Hardie's Paint to perform this balancing of controls. He indicated that there was no evidence of this maintenance in the journey log, no certification, and no details of the work performed in the process of painting. There was no approval by an AME or AMO.

Mr. Lowes testified that in the course of his interview with Mr. Blackwell, the letter stated that Mr Blackwell's AMO went to Orillia to inspect the aircraft in order to release it for flight, but this was not indicated on the journey log. He felt Mr. Blackwell was aware of the need for this balancing procedure and also was aware that the paint shop had no authority to perform and sign out this service. In his interview of Mr. Paul Landry, the AMO for 30,000 Island Air , Mr. Lowes was told that Mr. Landry did not perform an inspection of the aircraft prior to its flight to Parry Sound.

Under cross-examination Mr. Lowes indicated he felt there was no difference in the wordings of "repair and painting" and "repair and/or painting". He agreed that only one flight had taken place, which was not commercial in nature, before certification, and that the necessary servicing was performed and legally certified prior to return of the aircraft into commercial service. On redirect examination, Mr. Lowes stated that there were no records in the journey log regarding the paint job. There was no certification by an approved authority for the aircraft to fly, and thus, the aircraft was not legal to perform the flight of February 21, 2001.

The next witness sworn for the Minister was Mr. Paul Landry of Lawrence Aero, the AMO for 30,000 Island Air and owner of Lawrence Aero. He indicated that his organization was the AMO for 30,000 Island Air at the time of the painting of the aircraft C-FICJ. This aircraft was trailered in parts from Parry Sound Air for painting in Orillia and he was hired to perform a reassembly of this aircraft. It operated as a commercial aircraft for 30,000 Island Air, and was painted by Hardie's Paint in Orillia. He did not go to Orillia to inspect it following the painting but did inspect it in Parry Sound where he performed the necessary balance of controls, and noted the necessity to rebalance one aeleron. This loss of balance may have been present for years prior to the painting.

Mr. Landry stated that he could only certify the work that he personally performed, or was performed under his direct supervision. He stated that Mr. Blackwell had advised him that there was nothing unusual in the flight of this aircraft, and certainly, there was no flutter detected by the pilot. On cross-examination he stated that he was not advised of' the need to perform any balancing procedures prior to the flight of February 21, 2001 but was advised to "go through the aircraft" after this flight. He saw no journey log entries indicating details of the work performed at Hardie's, and testified that Mr. Blackwell was diligent in the maintenance of his aircraft. He indicated that the service manual of 1962 and prior indicated the need for static balance testing only after both repair and painting. He felt that there was some vagueness in the wording and that it could be interpreted to mean that there was no need to perform rebalancing after only painting is performed.

Mr. Darren Hardie, the owner of Hardie's Paint in Orillia, was then duly sworn. He said that his company performed the painting of the aircraft, and that he himself was involved with most of this work. He stated that he replaced some old screws but no cowl fasteners, and that his company paints items other than aircraft, but he has some experience with the painting of aircraft. He was unaware of the requirements for journey log entries following painting and did not feel he needed to enter into the journey log such services as minor cosmetic repairs. He stated that he did not remove any control surfaces, and that no balancing of controls was performed. This witness recalled discussing balancing with Mr. Blackwell.

Mr. Hardie was unaware of the need to have an AMO, certified by Transport Canada, perform the necessary log entries, inspection and balancing. He stated that no representative of the AMO for 30,000 Island Air appeared at his shop to perform any checking services but Mr. Blackwell was present on at least one occasion.

Under cross-examination he stated that he has painted several other aircraft for Mr. Blackwell, that he does a good job, and that there have been no accidents in any of the aircraft that he has painted. He stated again that he performed no repairs to control surfaces but that he only cleaned and painted these.

This concluded the evidentiary part of this Review Hearing for the Minister.

The respondent, 30,000 Island Air, was represented by its owner, Mr. Thomas Blackwell, who acted on his own behalf, and was its only witness. After being duly sworn, he stated that he transferred the aircraft to Hardie's Paint for repainting because they performed an excellent job, and that he relied on Mr. Paul Landry to perform the necessary inspections and certifications. He did not feel that there was a need to document replacement of screws, and advised that there were no repairs performed to control surfaces. He performed the 18 minute flight from Orillia to Parry Sound and subsequently, before entering commercial operation, all the necessary inspections and releases were provided.

He feels he is a safe pilot, operating a safe company, which transports 10,000 people annually, and is accident-free. He indicated that he feels persecuted by previous Transport Canada actions against him, and that such persecution was noted in a previous Civil Aviation Tribunal review hearing. He felt that the problems here were trivial in nature, and could have been solved by simple dialogue, and no monetary penalty was necessary.

Under cross-examination he indicated that an authorized AMO release was ultimately obtained in Parry Sound and that painting of an aircraft alone does not necessarily require release by an AMO. He did not feel that painting constitutes maintenance, although repair certainly does.

CONCLUDING REMARKS

The Minister's case presenting officer indicated in his closing remarks that there was evidence that no release following painting was provided to this aircraft, and that balancing of the control surfaces did not take place for at least one season, during which it was flown as a commercial aircraft. During the flight of February 21, 2001 there was no flight authority in place and, therefore, no certificate of airworthiness could be assumed. He stated that the contravention was one of strict liability, and that aviation safety requires that only authorized personnel perform and sign a maintenance release.

Mr. Blackwell, for 30,000 Island Air, indicated that the Minister had not qualified the definitions under "repair and repainting" as opposed to "repair and/or repainting"; that simple changing of screws, and minor body cosmetic repairs did not constitute maintenance, nor did painting of an aircraft. This flight on February 21, 2001 is considered to be a ferry flight during which no adverse control problems were encountered, and that all official documentation was provided prior to returning this aircraft to commercial service. He states that he is a diligent and careful person with respect to maintenance.

THE LAW

Subsection 605.85(1) of the CARs:

Maintenance Release and Elementary Work

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.

Section 101.01 of the CARs:

Interpretation

101.01 (1) In these Regulations,
[...]
"elementary work" means those tasks that are listed as elementary work in the Aircraft Equipment and Maintenance Standards;

Section 625 of the CARs:

APPENDIX A - ELEMENTARY WORK

The following lists are exhaustive in nature; if a task is not listed, it is not elementary work. Elementary work is a form of maintenance that is not subject to a maintenance release. Hence, it need not be performed by a holder of an AME licence, or by persons working under an AMO certificate. The owner is responsible for controlling authorizations to persons who may perform elementary work.

The performance of all tasks designated as elementary work shall be entered in the journey log, pursuant to CAR 605.94 - Journey Log Requirements.
[...]

Subsection 8.4(2) of the Aeronautics Act:

[...]
8.4(2) The operator 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 operator without the operator's consent and, where found to have committed the offence, the operator is liable to the penalty provided as punishment therefor.
[...]

CONCLUSION

Examination of the journey log and associated documents for the aircraft C-FICJ clearly indicates that this aircraft owned by 30,000 Island Air was flown on February 21, 2001 on an 18 minute flight from Orillia to Parry Sound by Mr. Blackwell, its owner. Prior to this flight the aircraft had been painted by a paint shop in Orillia which was not an approved AMO, and thus, could not certify this aircraft for release into service. No approved AMO was sent to Orillia to perform the necessary inspections and documentation, and thus, this aircraft could not legally be flown until these activities were concluded. There is no denial on the part of the respondent of these facts. It is, however, the belief on the part of Mr. Blackwell, that painting of an aircraft does not constitute maintenance, and thus requires no AMO release prior to flight. Nonetheless, he subsequently did have the necessary inspections performed and releases signed by an approved AMO, and this aircraft was returned to commercial service.

A second issue with respect to balancing of control surfaces emerged since there are two wordings which are very similar, applying to aircraft of an earlier vintage, and those of a later vintage. I find it specious to attempt to differentiate between the wording "repairs and painting", or "repairs and/or painting". There is a clear attempt to ensure aviation safety by requiring certified approval of any significant mechanical alterations to an aircraft such as painting or repairing, or both.

Indeed, there is considerable evidence presented under oath that painting can be a significant hazard to flight safety if it is not performed in a certified manner, followed by inspection, balancing, and a signed release by an approved AMO. These regulations ensure the safety of all of us who either fly or are passengers aboard an aircraft of a commercial nature, and perhaps others, as well. It is clear to me that Mr. Blackwell, an experienced commercial operator and pilot, was aware of the regulations but considered the short flight of 18 minutes to be a ferry flight, and thus not worthy of the efforts the Minister feels are necessary to ensure aviation safety. I disagree with him, and feel that these regulations support the safety of all of us and need to be adhered to, regardless of the duration of the flight, or of circumstances.

DETERMINATION

I thus confirm the Minister's allegation of contravention of subsection 605.85(l) of the CARs, and consider the monetary penalty of $500 appropriate.

Dr. Samuel B. Birenbaum
Member
Civil Aviation Tribunal


[1] Advisory Circular, Acceptable Methods, Techniques, and Practices—Aircraft Inspection and Repair, Federal Aviation Administration, AC 43.13-1B.