Decisions

CAT File No. O-2387-41
MoT File No. PAP5504-043477

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

International Cargo Charters Canada Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 571.10(1), 571.02(1)(a), 605.03(1)


Review Determination
Philip D. Jardim


Decision: June 14, 2002

With respect to subsection 571.10(1) Charge #1, I quash Count #1. With respect to subsection 571.02(1)(a) Charge #2, I quash Count #4.

ICC has contravened Count #2 - 571.10(1). The fine of $1,250 is confirmed.
ICC has contravened Count #3 - 571.02(1)(a). The fine of $625 is confirmed.
ICC has contravened Count #5 - 605.03(1). The fine of $1,250 is confirmed.

The total fine is $3,125, which must be paid to the Receiver General for Canada and received by the Tribunal within 15 days of service of this determination.

A review hearing on the above matter was held Thursday, June 6, 2002 at 10:00 hours at the Federal Court of Canada, in Toronto, Ontario.

BACKGROUND

On November 23, 2000, an Airbus A300 B4-203 aircraft operated by International Cargo Charters Canada Ltd. (ICC) experienced a hydraulic fluid loss when it was in Monterey, Mexico. The hydraulic leak occurred in the system which actuates the flight control spoilers. The ICC engineer in Monterey obtained two flexible hydraulic lines from United Airlines (UAL) and substituted them in place of the failed Airbus hydraulic line. These substituted lines had Boeing part numbers, but were manufactured by Aeroquip, which also supplies hydraulic lines for Airbus aircraft. The engineer joined the two lines with a union, in order to obtain the length required, but in so doing, he created a loop in the line, which is contrary to the Airbus Aircraft Maintenance Manual (AMM), and he failed to clamp them properly, thereby allowing the hoses to chafe against the aircraft structure.

The aircraft flew 13 flights with these temporary lines installed. Upon its return to Toronto from Monterey, the aircraft was met and examined by a Transport Canada audit team, which was in the course of an audit at ICC's base at Toronto. The discrepancies were discovered by the team, an investigation ensued, and the Minister issued a notice of monetary penalty against ICC. The fine was not paid, hence the Minister applied to the Tribunal for this review hearing, which was conducted Thursday, June 6, 2002.

THE LAW

Subsection 571.10(1) of the Canadian Aviation Regulations (CARs) states:

571.10 (1) 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.

Section 605.85 of the CARs states:

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.

(3) Following a test flight conducted pursuant to subsection (2), the pilot-in-command shall enter the results of the test flight in the journey log and, where the entry indicates that the results of the test flight are satisfactory, that entry completes the maintenance release required by subsection (1).

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

Paragraph 571.02(1)(a) of the CARs states:

571.02 (1) Subject to subsection (2), a person who performs 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
(a) specified for the aeronautical product in the most recent maintenance manual or instructions for continued airworthiness developed by the manufacturer of that aeronautical product;
[...]

Subsection 605.03(1) of the CARs states:

605.03 (1) No person shall operate an aircraft in flight unless
(a) a flight authority is in effect in respect of the aircraft;
(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and
(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.

Subsection 8.4(2) of the Aeronautics Act states:

(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.

EVIDENCE

The Minister, represented by Mr. Glenn Hector, as Case Presenting Officer, fielded four witnesses. ICC was represented by Mr. Pierre Verrette, Director of Maintenance for ICC. He had one witness.

The Minister has instituted three charges against ICC; There are two counts in charge 1, each of which carries a fine of $1,250. In charge 2, there are also two counts, each of which carries a fine of $625. Charge 3 has one count and carries a fine of $1,250.

I find that there are two prosecutions for breaches of the same regulation in both charges 1 and 2. This amounts to double jeopardy, and I shall deal with this matter further in my determination.

Mr. Hector introduced his four witnesses, Messrs. McEvoy, Waljee, Brathwaite and Ragnauth, in turn. Arising out of their evidence, all of which I find credible, the following points emerge:

1. There was a hydraulic line failure on Airbus A300 B4, C-FICB, operated by ICC, on November 23, 2000, in Monterey, Mexico.

2. ICC's engineer repaired this line in Monterey. In performing this repair, the following errors were made:

(a) As appears on Exhibit M-8, the incorrect part number was entered in the maintenance logbook. Because an Airbus part was not available in Monterey, two Boeing hoses were used. Their part numbers were not entered, but instead, the correct Airbus part number was entered, - A27.42012.

(b) No mention was made of the use of Boeing hoses directly, but the engineer did say: "…replaced with UAL Part as per standard practices"…"

(c) The engineer placed a Boeing tag in the logbook for only one of the hoses that he used. There was no tag for the second hose, nor did he mention that he had used two hoses, joined by a coupling.

(d) In installing these hoses, the engineer did not conform to the most recent issue of the Airbus AMM (Exhibit M-7). Because the two lines were more than long enough to fit in the space available, they were looped in an unacceptable curve, and because no clamps were used, the new hoses chafed against the structure of the aircraft (see Exhibits M- 7 and M-12).

The Minister's Count 1 of Charge 1 alleges that the flexible lines which were installed were not certified. They did carry United Airlines (UAL) serviceable tags, which although were not put in the aircraft logbook at the time, did materialise later—Exhibit M-17. The engineer used lines from a UAL Boeing flyaway kit, which is certified as being serviceable. In Exhibit M-10, an Airbus technical representative answers questions put to him by Mr. Jeff McEvoy. Airbus allows the use of Boeing parts of this kind, provided they are of the same pressure rating, and have at least the same inside diameter as the Airbus part. There is a 350-hour limit on the use of such parts. Aeroquip makes hydraulic hoses for both Boeing and Airbus. The hydraulic systems in both Boeing and Airbus aircraft operate at the same nominal pressure—3000 psi, and they use the same type of fluid. The engineer did test the system after the repair in Monterey, which means that the lines were capable of withstanding at least 3000 psi. Because the parts were Boeing parts from UAL's flyaway kit, the tags, which were provided later by ICC to the Minister did have "Serviceable" stamped on them.

Mr. Verrette, ICC's Director of Maintenance provided a tag, which he said under oath, was attached to one of the Boeing hoses fitted to C-FICB (see Exhibit D-1). Now, although Aeroquip does supply hoses to both aircraft manufacturers, I find it hard to accept that this tag, bearing an Airbus part number, would find its way onto a UAL Boeing hose. Mr. Verrette was attempting to prove that the hoses used by the engineer in Monterey did have an Airbus part number, notwithstanding that a UAL tag with a Boeing part number was placed in the aircraft maintenance log.

Mr. Verrette did supply a report from Tuboquip, a hose manufacturer that tested the Boeing hoses to destruction: one of them failed at 16,500 psi, and the other at 18,000 psi. The installation of the hoses was corrected on December 1st after the aircraft had carried out 13 flights (Exhibits M-4 and M-9). Mr. Verrette sought to justify the incorrect installation of the hoses, which resulted in chafing against the aircraft structure, by pointing out that the poly coating on the hoses was to protect against chafing, and that there was no deterioration in this coating when the hoses were removed from the aircraft. This is a very weak and unacceptable defence against what was an improper installation by the engineer in Mexico.

DETERMINATION

The Minister has proved, on a balance of probabilities, that ICC and its engineer committed infractions of the above referenced CARs. However, ICC has co-operated with Transport Canada, and did correct the deficiencies on C-FICB in a timely manner. The company would be well advised, however, to brief its engineering staff appropriately, to avoid future recurrences of this type.

Double Jeopardy: ICC has been penalized twice on each of subsection 571.10(1) and paragraph 571.02(1)(a) of the CARs.

With respect to subsection 571.10(1) Charge #1, I quash Count #1 and uphold Count #2.
With respect to subsection 571.02(1)(a) Charge #2, I uphold Count #3 and quash Count #4.

At the conclusion of this hearing, I have determined as follows:

That ICC has contravened Count #2 - 571.10(1). The fine of $1,250 is confirmed.
That ICC has contravened Count #3 - 571.02(1)(a). The fine of $625 is confirmed.
That ICC has contravened Count #5 - 605.03(1). The fine of $1,250 is confirmed.

The total fine is $3,125.

Philip Jardim
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Michel Larose, Suzanne Racine


Decision: January 28, 2003

Charge 1, count 1 with a penalty of $1,250 is upheld. Count 2 is dismissed. Charge 2, count 3 with a penalty of $625 is upheld. Count 4 with a penalty of $625 is reinstated. Count 5 with a penalty of $1,250 is confirmed. The Civil Aviation Tribunal must receive the total amount of $3,750, made payable to the Receiver General for Canada, within 15 days of service of this determination.

An appeal hearing on the above matter was held Thursday, November 14, 2002 at 10:00 hours, at the courthouse, in Montréal, Québec.

BACKGROUND

An Airbus A300 aircraft operated by International Cargo Charters Canada Ltd (ICC) experienced a hydraulic loss when in Monterey Mexico. A leak had occurred in a line in the flight control spoiler system. ICC did not have a replacement part on hand. The local engineer obtained two flexible hydraulic lines from another carrier to use as a substitute for the failed line. These lines had Boeing part numbers but were made by the same company that supplied Airbus hydraulic lines.

The aircraft maintenance engineer (AME) joined the two lines with a union in order to obtain a sufficient length. By doing so he created a loop in the line which was contrary to the Airbus aircraft maintenance manual (AMM). He also failed to clamp them properly which allowed the hose to chafe against the aircraft structure.

The aircraft returned to Toronto with one stop en route. A Transport Canada audit team had been working at the ICC premises. One of its inspectors and an AME from ICC, Mr. Ragnauth, met the aircraft and inspected the hydraulic lines. The Transport Canada inspector was not satisfied with the installation. Mr. Ragnauth repositioned the lines to prevent further chafing. A further investigation ensued.

Subsequent to the investigation ICC was charged with two counts of having violated section 571.10 of the Canadian Aviation Regulations (CARs), signing a maintenance release when the standards of airworthiness were not met; two counts of having performed maintenance not in accord with the AMM, a violation of section 571.02 of the CARs; one count of having operated an aircraft when the flight authority was not in effect, a violation of section 605.03 of the CARs. The total monetary penalty assessed was $5,000.

ICC did not pay the penalty. The Minister requested a hearing before the Civil Aviation Tribunal. A review hearing before a single Member of the Tribunal was convened on June 6, 2002 in Toronto.

The Member found that ICC had committed the infractions as alleged. However, he quashed count 1 and count 4 on the basis of double jeopardy.

From those findings both parties have appealed.

GROUNDS OF APPEAL

ICC

  1. ICC did not get the disclosure (CAN-SAY) from Mr. Steve Ragnauth prior to the Review Hearing, and
  2. There was a ruling in error concerning the number of flights during the period in question. The rubbing of the hydraulic line occurred for a period of only two flights rather than the thirteen flights stated.

The Minister

  1. The Member erred in law in interpreting the law of double jeopardy;
  2. The Member erred in law in applying the law of double jeopardy to the facts of the case; and
  3. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

MOTION TO ENTER NEW EVIDENCE

ICC requested that it be allowed to enter two pieces of evidence that were not submitted at the review level. The first was a letter regarding Mr. Ragnauth's employment status at the time of his having given a statement to Transport Canada. The second was a portion of ICC's AMM. The substance of the argument to allow new evidence was that being allowed to do so would alleviate in part the disadvantage it had suffered by not receiving timely disclosure of Mr. Ragnauth's can-say statement.

Ruling

The motions to enter additional evidence were denied.

1) The first ground of appeal asserted that ICC did not get the disclosure (can-say) statement of Mr. Steve Ragnauth prior to the review hearing. The issue was first raised at the commencement of Mr. Ragnauth's testimony during the review hearing. At that time a recess was granted to allow Mr. Verrette of ICC to review the statement Mr. Ragnauth had given.

The Minister contends that the statement was sent to ICC. ICC states that it was never received.

Mr. Cléroux argues that disclosure must be given as it is at the heart of the legal system. ICC has been disadvantaged in not receiving it before the review. Had the company been aware of the statement they would have been able to call as witnesses on its behalf, the personnel who were mentioned in that statement.

Mr. Hector replied that the company was sent the statement and in any case had been given a copy at the review hearing. A recess had been granted to ICC at that time to enable it to become familiar with the contents.

We agree that disclosure is an important aspect of the fairness of the hearing. If it is not received in a timely manner, the document holder may request an adjournment to allow for sufficient time to prepare further. In this instance when the issue was raised Mr. Verrette was granted a short recess to review the document. He did not ask for an adjournment to address any issues that the statement revealed.

We do not feel that ICC suffered any prejudice in this instance. The record reveals that, when ICC became aware of Transport Canada's investigation, Mr. Ragnauth was still employed by them. Two other people mentioned in his statement were also ICC employees and each had played a role in the events that became the subject of the investigation. Hence ICC had full access to these people and was aware of their involvement. ICC could have obtained from them prior to the hearing any information germane to the incident.

That being so we do not feel that it is necessary to grant ICC's motion to enter new evidence on the basis that doing so would alleviate the disadvantage of not having received Ragnauth's statement prior to the hearing.

We would also disallow the motion on the basis of the evidence being previously available.

1) ICC sought to enter evidence regarding Mr. Ragnauth's employment status with ICC at the time he provided a statement to Transport Canada.

We rejected the request to enter the evidence as subsection 8.1(3) of the Aeronautics Act stipulates that the Tribunal, on appeal, may only hear evidence not previously available and then only if it would be necessary for the purposes of the appeal. The letter had been available for production at the time of the hearing.

2) An additional section of ICC's AMM was sought to be entered. It was argued that this section was necessary to provide the Appeal Panel with the full picture of the requirements of hydraulic hose installation.

The request was rejected on the same basis. The evidence was previously available as ICC possessed the pertinent section at the time of the review hearing.

The rationale behind the section is well stated in the case of Kokoska[1] where the Appeal Panel stated:

This section of the Act prevents both Document Holders and the Minister alike from using the Initial Hearing as a 'testing ground' for their case and then later correcting their deficiencies at the Appeal level by introducing additional new evidence. All evidence which is 'available' must be introduced at the Initial Hearing and if the parties fail to do so, they do so at their peril. Parties to proceedings before the Tribunal cannot correct deficiencies at the Appeal level unless such evidence was not available at the Initial Hearing, and then only if the Tribunal 'deems it necessary for the purpose of the Appeal'.

THE LAW

Subsection 8.1(3) of the Aeronautics Act:

(3) An appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available.

Subsection 571.10(1) of the CARs:

571.10 (1) 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.

Subsection 571.02(1) of the CARs:

571.02 (1) Subject to subsection (2), a person who performs 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

(a) specified for the aeronautical product in the most recent maintenance manual or instructions for continued airworthiness developed by the manufacturer of that aeronautical product;

[...]

Subsection 605.03(1) of the CARs:

605.03 (1) No person shall operate an aircraft in flight unless

(a) a flight authority is in effect in respect of the aircraft;

(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and

(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.

DISCUSSION

Balance of Proof

ICC has submitted that the appropriate standard of proof should be beyond a reasonable doubt. No authority was submitted to support that proposition. Authority to the contrary is abundant. In the text Administrative Law in Canada,[2] Blake states under Standard of Proof:

When are facts proven? In tribunal proceedings, the standard of proof is the balance of probabilities. This standard is less onerous than the standard imposed in criminal cases where, to succeed, the Crown must prove that an offence occurred 'beyond a reasonable doubt'. If, at the end of a tribunal hearing, on all the credible evidence, it has been proven that the events alleged probably occurred, the case has been proven. Even in disciplinary proceedings this standard of proof prevails. However, the degree of proof required to establish a fact by a balance of probabilities is not the same in every case. The law recognizes degrees of probability.

The authors of Practice and Procedure Before Administrative Tribunals[3] express the same conclusion at section 17.2 of their treatise. That the balance of probabilities is the appropriate standard in this Tribunal's matters has long been established. In the case of Phillips[4] the panel explored the rationale for the standard. In doing so they stated that although the Act was silent on the issue of the onus:

We believe the statute clearly implies an intention to treat the regulatory proceeding in the Act in a manner similar to other well known administrative creatures of statute and the civil test. The test applied in other administrative tribunals suggests that the appropriate onus is on the balance of probabilities (Canadian Human Rights Reporter 2161 (N.S.); 12520 (B.C.). While the Act directs itself to a specific and identifiable homogenic special-interest group (i.e. pilots, aircraft engineers, etc.), it does not deal expressly with people's rights and commensurate duty but rather with privileges which may be removed by a department of government which is equally, if not more, concerned with the rights of those affected by the licence privilege. Expressed another way, the requirement to fly safely affects many other people and hence the regulatory scheme places a higher onus on the licence holder to rebut a prima facie case than simply raising a reasonable doubt.

We agree with the rationale expressed. The "balance of probabilities" established in that case in 1987 has been applied by the Tribunal ever since. Being guided by the expertise of authors on administrative law and the substantial body of Tribunal jurisprudence we reject Mr. Cléroux's argument on that point.

Double Jeopardy

The Minister has appealed on the grounds that the Member erred in the interpretation and application of the law of double jeopardy.

The law against double jeopardy is also known by such terms as "the rule against multiple convictions"or "the Kienapple Principle".

That principle was confirmed by the Supreme Court of Canada in R. v. Prince.[5] In order for the rule against multiple convictions to be applicable:

There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges.[6]

[T]he factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges? [...] [H]owever, it will not always be easy to define when one act ends and another begins. [...] Such difficulties will have to be resolved on an individual basis as cases arise, having regard to factors such as the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events [...], and whether the accused's actions were related to each other by a common objective.[7]

[T]he requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.[8]

Although the concept has its roots in criminal law it has been found to be applicable in an administrative law context. In Stewart Lake Airways Ltd.[9] the hearing Member stated: "I conclude therefore that the rule against multiple convictions as set out in the Kienapple case applies to administrative penalties imposed under the Aeronautics Act."

Charge 1 Counts 1 and 2

Regarding charge 1 counts 1 and 2 we find that the Member did err in finding double jeopardy. However, we do not concur with the Minister's analysis. He concludes that the principle does not apply. That results in the two counts standing. Our reasoning differs from both that of the Member and the Minister. We find that double jeopardy does not apply but find only one count should stand.

As illustrated by the 1st paragraph quoted above in Prince there must be a relationship firstly as between the facts and secondly as between the offences which form the basis of two or more charges. Double jeopardy does not arise in this circumstance as we find that there are not two or more charges. Counts 1 and 2 should be a single count. We find that the Minister has made an error in alleging two counts for the violation.

Charge 1, counts 1 and 2 are both allegations of the violation of subsection 571.10(1) of the CARs. We find that 571.10 imports but a single offence; to sign or to permit anyone under that person's supervision to sign (a circumstance that is not operative in this instance) a maintenance release when there has not been compliance with the standards of airworthiness applicable to the maintenance performed.

A person who signs a maintenance release when the airworthiness standards have not been met can only be liable for having applied his signature to the document when he should not have. In this case there is only a single instance of a signature being applied to a release as between both counts.

Section 571.10 does not create the legal obligation to comply with the standards of airworthiness when doing maintenance, but rather creates the obligation not to sign a release unless those standards have been met.

Each instance of the standards of airworthiness not being complied with should not form the subject of a separate allegation of violation. If someone signs the release when any single instance of the standards were not met, that would be sufficient to ground the charge.

Our review of current jurisprudence under section 571.10 did not reveal any cases right on point, but cases under the predecessor legislation, section 221 of the Air Regulations, have taken the same approach in that multiple failures to meet the standards were treated as a single offence.

Section 221 of the Air Regulations reads:

No person shall certify an aeronautical product or a component as airworthy or serviceable, or certify an aircraft as released for return to service, unless the applicable standards of airworthiness have been complied with.

In Kubisewsky[10] the AME had been assessed a single monetary count for having certified an aircraft as airworthy when it was not. The aircraft had 40 discrepancies at least 33 of which existed at the time of certification.

A suspension was levied against a Mr. Lawrence[11] as he had certified as airworthy a helicopter when the applicable standards had not been met. The helicopter had 6 deficiencies. As stated in the determination, "Each of these witnesses stated unequivocally that the presence of any one of the six items, by itself, would cause the aircraft to be classified as failing to meet acceptable standards of airworthiness ...".

In this case we find that there is only a single offence. We would have expected the Minister to include the second deficiency as an aggravating circumstance for count 1 and ask that the penalty be increased by the amount of the second count, ie., $2,500. However as we have come to this conclusion after hearing the parties we are not now able to address the quantum of the penalty with them. Therefore, we shall leave it undisturbed.

We find that the Member erred in his determination that double jeopardy applied. However we come to a similar result, finding that only a single count should stand. Therefore we dismiss count 2 and uphold count 1 and its penalty.

Charge 2, Counts 3 and 4

We find that the Member erred in his application of double jeopardy. We concur with the Minister's submission presented at the appeal hearing. Count 4 and its penalty are reinstated.

Mr. Jardim stated that two prosecutions for the breach of the same regulation amounts to double jeopardy. However as the excerpt from the Prince case reveals, a mere declaration of the principle is insufficient, a more substantial analysis must be undertaken before we can conclude that it applies.

The wording of paragraph 571.02(1)(a) of the CARs indicates that several legal obligations can potentially be offended while an aircraft is being serviced. For example: 1) failure to "use the most recent methods" when performing maintenance may constitute an offence contrary to the subsection: 2) failure to "use the most recent techniques" may also constitute a separate and distinct offence of the obligations of paragraph 571.02(1)(a).

Mr. Hector submitted that the factual nexus requirement between counts 3 and 4 was not satisfied as the same act of the accused did not ground both charges. He asserted that the act grounding count 3 was performing maintenance resulting in a flexible line which was too long and consequently chafed. The act of the accused grounding count 4 is the failure to test the flexible lines prior to installation to ensure they complied with the AMM.

Given that the fact that "installing" and "testing" constitute two completely distinct actions factually, they can ground two distinct allegations. Further there need not be any proximity in time between the installing and the testing of the part. As a result we concur with Mr. Hector's submission that there is no factual nexus as between counts 3 and 4 and therefore no double jeopardy.

Charge 3 Count 5

ICC Ground 2

We dismiss this ground of appeal and confirm the Member's finding of contravention with the consequent penalty.

ICC has appealed on the ground that there was a ruling in error concerning the number of flights during which the hydraulic lines had rubbed. It says that the rubbing of the hydraulic lines occurred for a period of only two flights during the period in question rather than the thirteen found by the Member.

A review of the record shows a misunderstanding of the evidence. Mr. Jardim did find that the installation of the hoses was corrected on December 1st after thirteen flights. He was referring to replacement, on December 1st, of the flexible hydraulic lines that had been installed in Mexico with the appropriate Airbus part numbered lines.

ICC is correct in saying that the rubbing was corrected after two flight legs. Mr. Ragnauth testified to having repositioned the lines, to prevent the rubbing, on his inspection of the aircraft when it had arrived in Toronto on the second flight leg from Mexico. But those flexible lines remained in place until December 1st.

That the rubbing was eliminated after two flights is immaterial to the allegations against ICC in count 5. The various deficiencies which are alleged to cause the certificate of airworthiness not to be in force were: parts installed that were not tested, not certified for use in an Airbus, and the installation was not in accordance with the Airbus AMM.

The Member accepted evidence in proof of those allegations and determined that they were operative during the thirteen flight legs. Therefore we dismiss ground two and confirm Mr. Jardim's finding.

DETERMINATION

We uphold charge 1, count 1 with a penalty of $1,250. Count 2 is dismissed. Regarding charge 2 we uphold count 3 with its penalty of $625. We reinstate count 4 with its penalty of $625. Count 5 and its penalty of $1,250 are confirmed.

The total monetary penalty owing is $3,750.

Reasons for Appeal Determination:

Allister Ogilvie, Vice-Chairperson

Concurred:

Dr. Michel Larose, Member
Suzanne Racine, Member


[1] Kerry Michael Kokoska v. Minister of Transport, CAT File No. P-0053-33 (Appeal Determination).

[2] S. Blake, Administrative Law in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1997) at 60.

[3] R.W. Macaulay & J.L.H. Sprague, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Canada Limited, 2002) vol. 2 at 17-6.

[4] Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33 (Appeal Determination).

[5] [1986] 2 S.C.R. 480.

[6] Ibid at 495.

[7] Supra note 5 at 492.

[8] Supra note 5 at 498.

[9] Stewart Lake Airways Ltd. v. Minister of Transport, CAT File No. C-0334-10, p. 12.

[10] Minister of Transport v. Francis Eugene Kubisewsky, CAT File No. C-1020-35.

[11] Bart Lawrence v. Minister of Transport, CAT File No. P-0097-04.