CAT File No. O-2583-41
MoT File No. PAP5504-046887
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Aviation R. Goulet Inc., Respondent
Aeronautics Act, R.S.C., 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, DORS/96-433, ss. 571.02 (1)
Standards to be Met, Reduction of Monetary Penalty, Incompetence, Failure to Comply, Approved Maintenance Organization, Aircraft Maintenance
Decision: May 14, 2003
The Tribunal confirms the decision of Transport Canada, but reduces the monetary penalty of $625 to the amount of $400, to be made payable to the Receiver General for Canada within fifteen (15) days of service of this determination.
A review hearing on the above matter was held Friday, January 24, 2003, at 10:00 hours at the Federal Court of Canada in Montréal, Québec.
The procedure was explained to both parties. No preliminary motions were presented to the Tribunal. No pre-hearing agreement was reached and no admission of facts was made by the two parties.
OBJECT OF THE REVIEW HEARING
The Minister of Transport, through Mr. Michel Béland, is asking the Civil Aviation Tribunal to confirm a Notice of Assessment of Monetary Penalty assessed against Aviation R. Goulet Inc., the Respondent, and served on June 25, 2002.
The Notice of Assessment of Monetary Penalty was issued pursuant to section 7.7 of the Aeronautics Act. The Minister of Transport decided to assess a monetary penalty against the Respondent for having contravened subsection 571.02(1) of the Canadian Aviation Regulations (CARs), which stipulates, in part, as follows:
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;
(b) equivalent to those specified by the manufacturer of that aeronautical product in the most recent maintenance manual or instructions for continued airworthiness; or
(c) in accordance with recognized industry practices at the time the maintenance or elementary work is performed.
Offence no. 1
On or about January 8, 2002, you performed maintenance work on the aircraft bearing registration marks C-GTKA and you did not use the most recent methods, techniques, practices, parts, materials, tools and equipment equivalent to those specified by the manufacturer of that aeronautical product in the most recent maintenance manual or instructions for continued airworthiness, or in accordance with recognized industry practices at the time the maintenance or elementary work was performed. Specifically, when an oil leak was detected on the middle-upper through-bolt (#2 cylinder) of the engine of aircraft C-GTKA, it was found that the repair work had consisted in cleaning away the excess oil and putting a layer of silicone around the base nuts. This work is neither specified by the manufacturer nor in accordance with recognized industry practices.
THE FACTS (documentary and testimonial evidence)
- Evidence of the Applicant
By way of introduction, Mr. Béland indicated to the Tribunal that it was a Beech Sierra aircraft on which the maintenance work was performed, which work was not in accordance with subsection 571.02(1) of the CARs. To make his case, Mr. Béland called Mr. Tom Coward, who, in December 2001, wished to purchase an aircraft that he found on a Web site. Mr. John Bayes and his student Mr. Wayne Werry, from the Canadian Flight Academy, were to conduct a preliminary inspection. The broker was Mr. Gaétan Bélanger, and before the transaction was concluded, the aircraft was flown to Oshawa from Bromont, on December 21, 2001. The two people on board were Messrs. Michel Thibodeau and Gaétan Bélanger, the broker.
On December 21, 2001, Mr. Bayes and his student Mr. Wayne Werry inspected the aeroplane and drew up a list of deficiencies, in particular an engine oil leak. This list was passed on to Mr. Coward, the future owner, and to the broker, Mr. Bélanger. That same day, namely, December 21, 2001, the aeroplane returned from Oshawa to Bromont.
Then, on January 8, 2002, Mr. Robert Goulet, on behalf of Aviation R. Goulet Inc., made the repairs indicated and supposedly applied silicone around the base nuts.
On January 27, 2002, the aircraft, flown by Mr. Michel Thibodeau, left Bromont to return to Oshawa and Mr. Coward took possession of the aircraft. Then, still on January 27, 2002, the broker, Mr. Gaétan Bélanger, and the instructor, Mr. S. Layto, flew a circuit to Oshawa, and then Mr. Layto and Mr. Coward conducted a flight of several hours out of Oshawa. An oil leak was noticed on their return, and on January 28, 2002, Mr. John Bayes and his student Mr. Werry made a second inspection of the aircraft and the oil leak was again noticed. At the time of this second inspection, oil was dripping and there was silicone present.
As his first witness, Mr. Béland called Mr. Tom Coward.
Mr. Coward is a businessman from Markham, Ontario, who has 260 pilot hours to his credit and has had a private pilot licence for about 16 months.
He is the new owner of the Beech Sierra C-GTKA, which he purchased on January 27, 2002. He confirmed that he had found this aircraft on a Web site in December 2001 and the broker was Mr. Gaétan Bélanger. The former owner was Mr. Michel Thibodeau.
As the aircraft was in Bromont, it was flown, on December 21, 2001, from Bromont to Oshawa by Messrs. Bélanger and Thibodeau so that a full inspection could be done before the final purchase agreement was concluded, and this inspection was performed by the Canadian Flight Academy under the supervision of Mr. John Bayes and his student Mr. Wayne Werry. A list of deficiencies was prepared, and the first five items were the most important (cf. M-1): "1- Engine oil leak 2- Co Pilot R/H brake master cylinder leaking 3- R/H main gear actuator leaking 4- Hydraulic leak on belly 5- Leaking fitting in belly." This list of corrective action to be taken was apparently passed on to Mr. Bélanger. Messrs. Bélanger and Thibodeau returned to Bromont that same day.
In the days that followed, Mr. Coward had several telephone conversations with Mr. Bélanger about repairing the five main deficiencies noted before completing the final sale. According to these telephone conversations, the oil leak was not serious and the bolts had been cleaned and silicone applied.
Then, on January 27, 2002, Mr. Thibodeau flew the aeroplane from Bromont to Oshawa and the final sale was concluded with Mr. Coward, and the broker was still Mr. Gaétan Bélanger.
Exhibit M-2 was then filed, namely, the journey log of aircraft C-GTKA, and according to Mr. Coward the repairs were done by Aviation R. Goulet Inc., under the signature of Mr. Robert Goulet (M206135):
Jan.8 2002 Beech B24R S/N : MC-289 C-GTKA 2257.6 hrs.
- Cleaned engine compartment, ground run up carried out and checked for oil leaks.
- Retorqued lower base nuts on cylinders #1 & 3.
- Replaced leaking seals on both co-pilot brake master cylinders.
- Replaced leaking seal on LH brake galiper and replaced outboard lining.
- The maintenance described above has been performed in accordance with the applicable standards of airworthiness.
Exhibit M-3 , which is the log for the Lycoming IO-360-A1B6 engine, contains the same information as appears in M-2 for January 8, 2002.
Still on January 27, 2002, the witness, with his instructor and a passenger, conducted a flight of about three hours, and before this flight the oil level was checked and was about four pints, and one pint of oil was added. The flight went very well, but on landing, there was oil on the front wheel of the landing gear. The oil level was again checked and was just over four pints. The aircraft was towed inside, and the next day the oil level was again checked and had dropped to just barely four pints and there was a stain on the landing gear.
Thus, on January 28, 2002, a second inspection was done by Messrs. Bayes and Werry. There was an oil leak and silicone was present. The through-stud bolt was therefore replaced by Mr. Bayes, at a cost of $800.00.
Mr. Coward, on ending his testimony, said that he was very vulnerable given his lack of aviation experience, and especially as a new owner. Very frustrated, he felt that the corrective action had not been done to standard, and in cross-examination he confirmed that he had discussed the list of deficiencies (M-1) with Mr. Bélanger.
Mr. Michel Béland called as his second witness Mr. John Bayes, who has been an aircraft maintenance engineer (AME) since 1970 and works for the Canadian Flight Academy in Oshawa on piston-engine aircraft.
On December 21, 2002, he made a full inspection of aircraft C-GTKA at the request of Mr. Tom Coward before the latter made the purchase.
Specifically, according to the mandate given, the purpose of the inspection was to determine whether there were any defects to be rectified and to check the journey log of the aircraft in question. This work was performed by his student, Mr. Wayne Werry, and he himself supervised the whole operation. Mr. Bayes compiled the deficiencies and it was he who prepared the list (M-1), except for the last item, which is not in his writing. According to him, the first five items noted were the most important, and there was no reason for this type of engine to have an oil leak for about 200 flying hours.
In this regard, he referred to Exhibit M-3, the engine log of C-GTKA, and on September 9, 2001, there were 239.9 hours. And at the time of the annual inspection, also done by Aviation R. Goulet Inc., on October 17, 2001 (M206135) (Aviation R. Goulet Inc. AMO 152-90) (Approved Maintenance Organization), the time was the same (TSMOH).
The witness then identified with an arrow, on a photograph of the engine (M-4 – Service Instruction No. 1123D), the site of the oil leak. Mr. Bayes confirmed that he had passed on the list of deficiencies to Mr. Coward in December 2001, on December 21 to be specific, and on January 28, 2002, he made a second inspection to ensure that the oil leak was fixed and that the proper repair(s) had been carried out.
He and Mr. Werry noted the presence of silicone between the three nuts, and he indicated all of this to the Tribunal with a second arrow (see M-4 for the site of his find).
He said it was a very quick repair and that the symptoms had been treated, but not the cause. He repaired this oil leak himself, according to the manufacture's instructions, on February 11, 2002 (M-2), to comply with the certificate of airworthiness. The middle-upper through-bolt of the #2 cylinder was replaced (M-5):
Maintenance completed - Feb. 11, 2002
Investigated engine oil leak. #2 cylinder removed. Middle-upper engine through bolt replaced new, P/N 76220P02. Cylinder reinstalled & torqued. Inter-cylinder baffle by #1 & 3 cylinders repaired. Alternate air duct at air box repaired. Engine run-up completed; no leaks.
Hydraulic leak discovered on belly of aircraft. Hydraulic line at landing gear pump found loose; tightened & leak checked-serviceable.
R/H taxi light replaced new. Various anchor nuts replaced with rivnuts on centre belly panel. Defroster control cable repositioned & lubricated. [M-2]
Still according to Mr. Bayes, before making this repair, he consulted a resource person in Toronto about the right parts and the right technique to be used, and the work performed on January 8, 2002 (M-2), was not regular work. Mr. Bayes felt that the intermediary had taken advantage of Mr. Coward because there was still an oil leak, and that is why, on February 21, 2002, he wrote Mr. Coward a letter (M-6), of which the Tribunal accepts the following elements:
In particular, the following items which were observed at the time of the prepurchase inspection, were not rectified by the seller:
- Engine oil leak
- Hydraulic leak on belly of aircraft
- Burnt out taxi light
Apparently Gaetan had a maintenance facility look at the oil leak. They siliconed a few cylinder base nuts. This practice is called treating the symptom, not the cause.
After you accepted the aircraft (in good faith that this and other snags were rectified), we discovered that the engine still leaked oil. It didn't even slow the leak down, which tells me that:
- the maintenance facility didn't even check to see if the engine leaked, or
- if they did check, it would have obviously still been leaking, and were given direction not to pursue this problem any further.
Once we investigated the problem, it became obvious that we had to install a new through-bolt. Now our engine has no oil leaks.
The hydraulic leak that was noticed on the belly of the aircraft during the prepurchase inspection was not addressed by Gaetan's maintenance facility. Once our facility troubleshot this leak, it was discovered that a hydraulic line from the power pack was loose. It was tightened and there are now no leaks.
The taxi light was obviously an oversight. While this is just a minor snag, the repair took a little longer than normal, because screws had to be drilled out.
[...] I believe that, if you present Gaetan with the proper facts, and since he is a professional aircraft dealer, I am sure you will find that he will reimburse you for these expenses.
In cross-examination by Mr. Goulet, Mr. Bayes confirmed that the pre-purchase inspection was done December 21, 2001 (M-2), and that the deficiencies found by Mr. Werry and himself were included on the list (M-1) that he passed on to Mr. Coward, who was to talk it over with the agent.
Mr. Goulet was surprised that the list (M-1) did not identify the aircraft in question and what is more, that there was no entry in the journey log of C-GTKA, as required under item 8 in Schedule I of subsection 605.94(1) of the CARs. The Respondent also said that he never had this list.
Referring to Exhibit M-4, the Respondent asked about the location of the oil leak with the presence of silicone and whether the leak was from the bolt. The witness replied that Exhibit M-4 was not the engine in question, but that the leak was right around the through-bolt—and he indicated the location in blue on Exhibit M-4 with a light rectangle—and said that this through-bolt had been replaced. Finally, the witness said that at the time of both inspections, there had been oil leak on the engine.
As his third witness, Mr. Béland called Mr. Wayne Werry, who was working under the supervision of Mr. Bayes as a student mechanic in December 2001 and January and February 2002. He did not become a certified AME until August 2002, and worked at the Canadian Flight Academy.
On December 21, 2001, under the supervision of his boss, Mr. Bayes, he carried out an initial inspection, as an apprentice, of aircraft C-GTKA. The deficiencies were noted (M-1). Everything was checked over by Mr. Bayes and according to him, the leak was below the #3 cylinder at the through-bolt that joins cylinders #2 and #4. He referred the Tribunal to the blue arrow indicated earlier by the previous witness. Still according to Mr. Werry, there was no silicone present on December 21, 2001, and on January 28, 2002, during a second inspection, there was an oil leak at the same spot and there was orange silicone present that had not been there in December 2001. There was also hydraulic fluid on the floor (4th point of M-1). He mentioned these deficiencies to Mr. Bayes, who checked for himself. The Respondent, Mr. Robert Goulet, had no questions for Mr. Werry.
As his fourth witness, Mr. Béland called Mr. Randy Miller, a Transport Canada safety inspector for two years.
He investigated a complaint concerning maintenance for an oil leak at the level of a through-bolt where silicone had apparently been applied to the base nuts of a Lycoming engine. First, he contacted the company's customer service department (M-7) by e-mail on April 29, 2002, about an oil leak on a model IO-360-A1B6 engine manufactured in 1974. This oil leak was at the level of the middle-upper through-bolt of the #2 cylinder. Mr. Mike Caldera, of the Lycoming company, sent him Service Instruction no. 1290D dated May 23, 1997, on the subject "Repair of Oil Leakage at Crankcase Thru-Stud Locations; Assembled and Unassembled Engines. Models Affected: IO – Note: Engines incorporating body-fit thru-studs can be identified by the presence of spacers and ½-20 nuts securing the thru-studs just forward of the no. 2 cylinder location" (M-8).
In this document, there are three repair options, but none includes a recommendation to apply silicone:
PART I – INSTALLATION OF AN OVERSIZE THRU-STUD; ASSEMBLED ENGINE
PART II – INSTALLATION OF P/N 72075 OIL SEAL AT THRU-STUD BORE LOCATIONS; DISASSEMBLED ENGINE
PART III – INSTALLATION OF AN OVERSIZE THRU-STUD IN A THRU-STUD BORE MODIFIED TO INCLUDE THE P/N 72075 OIL SEAL; DISASSEMBLED ENGINE
According to Mr. Miller, there was also the Service Instruction from Textron Lycoming dated May 23, 1997, bearing number 1123C, on the following subject:
Installation of Dowels and Rubber O-Ring Seals at Crankcase Thru-Stud Locations
PART I. Installation of P/N 75302 Dowel at Thru-Stud Locations
PART II. Installation of P/N 75302-P10 Oversize Dowel at Thru-Stud Locations
PART III. Installation of P/N STD-2013 O-Ring Seal at Doweled Thru-Stud Locations [M-9]
It makes no reference to the application of silicone.
On April 30, 2002, Mr. Miller asked Mr. John Donaldson (M-10) about the right technique to be used to repair an oil leak on a Lycoming IO-360-A1B6 engine occurring "from the middle upper engine thru-bolt (#2 Cylinder)" and Mr. Donaldson referred him to the aforementioned bulletin, i.e., 1290E (M-8), which mentions the installation of an "oversize stud."
On May 23, 2002, Mr. Miller asked Mr. Greg Mansell for a second opinion about the same problem of this oil leak and Mr. Mansell told him "The correct method is "th" install an oversize thru bolt IAW published procedures from Lycoming" (M-11). Again, there was still no mention of applying silicone.
A third opinion, still for the same problem, was asked of Mr. John Leggat on May 7, 2002, and he had a two-part answer (M-12):
[...] Fix, is to dismantle engine, have the crankcase lap and line bored. Industry attempts, with some success, to seal the thru stud bore, with either O rings at both ends of thru stud, or we have seen the bore plugged with a sealant of some kind. Cannot say this method is Lycoming approved, but does at the time save a lot of time and money if it is successfull. Hope this is a help [sic]
Finally, Mr. Miller filed the notes taken (M-13) during a telephone conversation with Mr. Goulet on May 23, 2002, of which the Tribunal accepts the following pertinent elements:
- He stated that the engine had only 75 hours on it since being overhauled. He stated that he had talked with the engine shop and in the case of the oil leak they used to put some 'high-temp' silicone on the base. If this didn't solve the problem, the cylinder had to be removed and a seal was installed between the cylinder base and the crankcase, or they would have to replace the 'thru-stud' with an oversize 'thru-stud'.
- He stated that he had to put silicone on the studs or take the engine apart.
- He stated the oil leak came from inside the crankcase.
- He stated that if he found an oil leak around a 'thru-stud' he would try using some silicone, clean the threads and if this didn't work he would contact the customer and advise him/her that the 'thru-stud' would have to be removed and an oversize 'thru-stud' would have to be installed, rather than trying to seal it from the outside of the engine.
- He stated that he did what the customer asked him to do.
- He said on the 'thru-bolt' the Lycoming Direct Drive Engine Overhaul Manual (page 6-22) states that some Parker Thread Lube is to be put on the 'thru-stud'.
- Mr. Goulet stated that there was a small oil leak and there was no use to change the 'thru-stud' at that point because the engine had about 73 hours since it had come back from repair in October 2000.
- He stated that if the aircraft was still owned by one of his customers he would have discussed the oil leak problem more thoroughly.
- He stated that during the time period of the pre-purchase inspection and the repair he had done on the aircraft, the aircraft had been flown, and not returned to his shop, so he didn't know if there was still an oil leak or not.
- He stated that he retorqued the base nut to see if the problem was rectified, but the new owner took possession of the aircraft before he was able to do a follow-up.
- He stated that his work report stated that he retorqued the nut, after putting some silicone on it. The logbook stated, 'retorqued lower base nuts on cylinder #1 & 3.'
- He stated that he did not talk with the AME that had done the pre-purchase inspection. The AME had dealt with Mr. Belanger, who was the broker. [Underlining is that of the undersigned.]
Mr. Miller concluded his testimony by saying that the new owner again noted this oil leak and the presence of silicone. This situation called for Mr. Bayes to install an "oversize thru-stud." In cross-examination, Mr. Goulet had no questions for the witness.
- Evidence of the Respondent
Mr. Goulet represented himself and said that he deplored the fact that he had been proceeded against under his AMO licence 152-90 – Aviation R. Goulet Inc., rather than under his personal AME licence (M206135), since he does not use his AMO number for repairs done privately. Referring to Exhibit M-2, he maintained that he made no repair to the #2 cylinder, but only retorqued the base nuts of cylinders #1 and 3. Referring to the journey log (M-2), he found it surprising that the date of the pre-purchase inspection was not specified and that the date turned out to be December 21, 2001, and thought it unusual that the list of several irregularities noted was not entered in the journey log, as required under item 8 in Schedule I of subsection 605.94(1) of the CARs, which reads as follows (D-3):
Journey Log Requirements
605. 94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.
Particulars to Be Entered
Time of Entry
Person Responsible for Entry
Particulars of any defect in any part of the aircraft or its equipment
As soon as practicable after defect is discovered but, at the latest, before the next flight
The person who discovered the defect
As for the famous list (M-1) of deficiencies noted, he questioned its validity (D-2), as there was no aircraft identification, no date entered and no AME signature. He himself did not learn of this list until November 2002 when he was sent the disclosure documents. Mr. Goulet wished to point out to the Tribunal that there was no photograph identifying aircraft C-GTKA, its engine and the repair of the oil leak using silicone (D-2).
He never saw silicone in December 2001 and January 2002. He never applied it and did no work whatsoever on the #2 cylinder, and if silicone was present in late January 2002, anyone could have applied it, since the aeroplane was flown after he did his work on January 8, 2002; he referred to the journey log of C-GTKA. The aircraft was in fact flown on January 8, 2002, from Bromont to Sherbrooke and Sherbrooke to Bromont, and no oil leak was reported to him. And on January 27, 2002, the aircraft was flown from Bromont to Oshawa.
Regarding the Case Report of May 30, 2002, signed by Mr. Randy Miller (D-4), Mr. Goulet said that he has a very poor understanding of English and that his telephone conversation of May 23, 2002 with Mr. Miller was of no account, particularly with respect to the application of silicone. Moreover, on page 2 of this Case Report, he found it strange that the Synopsis did not seem consistent with regard to the time of his intervention, i.e., that of January 8, 2002 (D-1):
An aircraft bearing the registration marks C-GTKA was purchased by the new owner (Mr. Tom Coward) on January 27, 2002 from a broker in Quebec (Mr. Gaetan Belanger). The new owner had his AME do a pre-purchase inspection in which several discrepancies were found. The AME was concerned mainly about an engine oil leak and the maintenance procedure that was previously used to repair this leak. The oil leak around the 'thru-bolt' was found to have been repaired by cleaning away the excess oil and putting silicone around the base nut.
Also, on page 8 of this same Case Report, Mr. Goulet questions the fact that it clearly seems that the list of deficiencies was passed on to the broker, Mr. Gaétan Bélanger:
On December 22, 2001, Mr. Coward called Mr. Belanger (the broker) and passed on the list. Mr. Belanger is also an AME. It was decided that the AME doing the repair work in Quebec (Robert Goulet – Aviation R. Goulet Inc.) and Mr. Bayes (AME – did pre-purchase inspection) should discuss the issues. A conference call did take place.
After the conference call Mr. Bayes contacted Mr. Coward to express his concern about the repairs that were done on the aircraft. Mr. Bayes' main concerns were an engine oil leak, a hydraulic leak and the taxi light. In particular the way the engine oil leak was said to be repaired concerned him. The oil leak around the 'thru-bolt' was found to have been repaired by cleaning away the excess oil and putting silicone around the base nut. This was done by Mr. Goulet. Mr. Belanger had also told Mr. Coward that this was the method to repair the leak. Mr. Coward stated that at this point he felt caught in the middle between three (3) AMEs and that his only option was to accept the repairs in good faith and recheck all items said to be repaired when the aircraft returned to Oshawa at purchase.
Still with regard to this same document, Mr. Goulet thought it odd (D-2) that Mr. Bayes was uncertain whether or not there had been silicone present during this initial inspection. He referred to page 9 of the document (D-4):
Mr. Bayes stated that the sellers of the aircraft knew there was an oil leak after the pre-purchase was completed. He stated that he wasn't completely sure if there was silicone on the engine at that time but is pretty sure there wasn't. [...]
In cross-examination by Mr. Béland, Mr. Goulet did not recall having performed other work for the broker, Mr. Gaétan Bélanger, and it seems he did not have a great deal of respect for him. As for aircraft C-GTKA, Mr. Bélanger asked him to repair certain items, including an oil leak, but did not use Lycoming's Service Instruction (M-8), specifically "Part I – Installation of an Oversize thru-stud; Assembled Engine." He did not know the cost and did not have the necessary equipment to make such a repair. However, he estimated that it would take between two and four hours to do this type of repair, at an hourly rate of $55. As for the other two methods (M-8), he thought the repair was major and costly, but was not qualified and did not open engines.
The cost of a tube of HYLOMAR Aviation Grade silicone and CRC RTV Silicone Sealant Red (D-2) would be about $22.
Mr. Goulet denied having called a mechanic at a machine shop on January 8, 2002, to find out how to plug this oil leak, namely, with silicone, if the oversize thru-stud proved ineffective. He made this consultation at the start of procedures, in May or June 2002.
As for his telephone conversation with Mr. Randy Miller on May 23, 2002 (M-13), during which he apparently confirmed to this inspector that he attempted to plug the leak with silicone, Mr. Goulet withdrew his statement and attributed his making such a statement to Mr. Miller to his poor understanding of English (D-4).
Still in cross-examination, Mr. Béland handed Mr. Robert Goulet a letter dated July 16, 2002, which was signed by him and addressed to Mr. Joseph M. Szwalek (M-14), in which he again said he had performed only the work mentioned in the journey log on January 8, 2002, and regretted not having followed up on the oil leak. Mr. Béland, still with regard to this document, was surprised that Mr. Goulet never wrote that he had not applied silicone and Mr. Béland found this silence very intriguing. In response to this allegation, Mr. Goulet said he had never worked on the #2 cylinder, had never removed it, and had received no instruction from Mr. Bélanger to apply silicone.
- For the Applicant
According to Mr. Béland, representing the Minister of Transport, Aviation R. Goulet Inc. performed substandard work on aircraft C-GTKA owned by Mr. Tom Coward since January 27, 2002.
Messrs. Bayes and Werry made a pre-purchase inspection (December 21, 2001) and the main problems included an oil leak after 239 hours of flight time.
On January 27, 2002, a pint of oil was added (for a total of five pints) and a flight of about three hours was made, and on landing there was oil on the "Nose Wheel Flying Gear" and the oil level was four pints.
On January 28, 2002, Messrs. Bayes and Werry made a second inspection. There was an oil leak at the level of the through-bolt at the #2 cylinder. After everything had been cleaned away, there was orange silicone present that had not been there at the time of the pre-purchase inspection.
Mr. Goulet apparently confirmed to Mr. Miller that he had used silicone, but the second operation carried out by Mr. Bayes, namely, the installation of an "Oversize Thru-stud" (February 11, 2002), at a cost of $800, apparently fixed this defect.
The only person to have worked on aircraft C-GTKA was Mr. Robert Goulet, on behalf of Aviation R. Goulet Inc. As for the theory that someone else could have done it, the Respondent should have provided evidence.
Regarding the list of deficiencies noted on December 21, 2002 (M-1), three witnesses have stated that it did indeed pertain to aircraft C-GTKA.
The work performed by Mr. Goulet therefore was not in accordance with Lycoming's Service Instructions 1290D and 1123C. Moreover, after Mr. Miller consulted three specialists (M-10, M-11 and M-12), two rejected the technique of applying silicone, and the third (Mr. Leggat) mentioned applying a sealant, but this technique is not approved by the manufacturer Lycoming.
Thus, the application of silicone reduces costs, but is contrary to recognized aviation practices.
The monetary penalty is intended to be a deterrent, to prevent repeat offences and to set the example for the aviation community. The amount of $625 seems fair considering certain aggravating factors, as the act was deliberate, i.e., the application of silicone to stop an oil leak, which is a very serious, if not dangerous, problem. This action also took advantage of Mr. Coward's good faith.
- For the Respondent
Mr. Goulet submits that this oil leak was not that serious and questions why the repair was not done in Oshawa on December 21, 2001. After making his repair, Mr. Thibodeau flew for a little over an hour and no oil leak was reported to him. And as for the repairs he made on January 8, 2002, and those made by Mr. Bayes on February 11, 2002, there was a difference of nine engine-hours. Finally, he said he never had in his possession the list of deficiencies noted in December 2001 (M-1) and no journey log entry was made on December 21, 2001, in Oshawa.
REASONS FOR DETERMINATION
First of all, the Tribunal wishes to point out that in arriving at its determination, it will not use the document entitled "Case Report" prepared by Mr. Randy Miller, of Transport Canada, dated May 30, 2002 (D-4), and filed by the Respondent himself, except with regard to the elements submitted by him during his defence.
The Tribunal must therefore determine, on the balance of probabilities, whether the Applicant has met its burden of proof in proving all the elements of the offence with which the Respondent is charged, pursuant to subsection 571.02(1) of the CARs, and the penalty therefor.
The Tribunal accepts the following relevant elements of the documentary and testimonial evidence:
Regarding the identification of the aircraft itself, it is indeed a Beech Sierra registered as C-GTKA (M-2), and for the following reasons:
A. This is indeed the aircraft Mr. Coward found in December 2001 on a Web site for whom the broker was Mr. Gaétan Bélanger.
B. The testimony of three people, Messrs. Coward, Bayes and Werry, confirm this fact.
C. This is indeed the aircraft that was flown from Bromont to Oshawa on December 21, 2001.
D. This is indeed the aircraft that Mr. Bayes and his student Mr. Werry inspected on that date.
E. Finally, this is indeed the aircraft on which Mr. Robert Goulet, on behalf of Aviation R. Goulet Inc., performed maintenance work on January 8, 2002. (M-2)
This being established, this Beech Sierra C-GTKA has a Lycoming four-cylinder engine, model IO-360-A1B6 (M-3).
The Tribunal is also aware that the list of deficiencies noted in the document (M-1) does not contain such identification of the aircraft and there is no date entered, but this is indeed the list that Mr. Bayes passed on to the broker Mr. Bélanger on December 21, 2001, and to Mr. Coward.
Also, Messrs. Bayes and Werry, according to the mandate they were given by Mr. Coward, had no serious reason to draw up such a list for application to any other aircraft at all.
And it is indeed the aircraft on which Mr. Robert Goulet, on behalf of Aviation R. Goulet Inc., performed maintenance work on January 8, 2002, as the journey log of C-GTKA (M-2) attests with regard to an oil leak.
Further, it is indeed the aircraft that Mr. Coward purchased on January 27, 2002, after an initial pre-purchase inspection on December 21, 2001.
Now, as for the list of deficiencies noted by Messrs. Bayes and Werry on December 21, 2001, in particular an oil leak (M-1), the Tribunal believes, as the Respondent submits, that it would have been desirable, as required by subsection 605.94(1) of the CARs, to enter everything in the journey log of C-GTKA.
But this is not the deciding factor for the Tribunal, although it would have been desirable, since Mr. Coward had not authorized Messrs. Bayes and Werry to make repairs because he did not yet own aircraft C-GTKA; and it was as an act of good faith that on December 21, 2001, they passed on this list of deficiencies to the broker, Mr. Bélanger and the future owner Mr. Tom Coward, on behalf of the Canadian Flight Academy.
Moreover, Mr. Gaétan Bélanger, a broker who also holds an AME licence, could just as well have entered it in the journey log of the aircraft in question before returning to Bromont that December 21, 2001.
As for the fact that Transport Canada decided to proceed against Aviation R. Goulet Inc. as the AMO, rather than against Mr. Robert Goulet as the AME, Civil Aviation Tribunal jurisprudence has confirmed, on a number of occasions, that it is the exclusive privilege of Transport Canada to proceed against a corporation or an individual.
Now, to get to the crux of the actual matter, namely, an oil leak on the Lycoming engine of aircraft C-GTKA that was allegedly not plugged in accordance with practices recognized in the aeronautical industry, pursuant to subsection 571.02(1) of the CARs, the Tribunal finds the Respondent liable.
The person who performed maintenance work on aircraft C-GTKA on January 8, 2002, as shown in the journey log of this aircraft (M-2), according to the testimony of Mr. Robert Goulet himself, and according to the summary of his telephone conversation with Mr. Randy Miller, a Transport Canada investigator, on May 23, 2002 (M-8), was indeed Mr. Robert Goulet, on behalf of Aviation R. Goulet Inc.
We must refer to section 101.01 of the CARs regarding elementary work, and "aeronautical product" is defined in section 511.01 of the CARs and here, it is indeed aircraft C-GTKA.
As for the most recent methods, techniques, practices, parts, materials, tools, equipment and test apparatuses, it seems evident to the Tribunal that the application of silicone around the base nuts of the cylinder head of the engine for an oil leak on the middle-upper through-bolt at the #2 cylinder (M-4, M-5) does not meet the standards stipulated in Service Instructions 1290E and 1121C (M-8, M-9) of the manufacturer Lycoming.
This practice conflicts with the testimony of the two AMEs (Messrs. Bayes and Werry) and Mr. Goulet's verbal admission of this fact to Mr. Miller on May 23, 2002 (M-13).
During his testimony, Mr. Goulet vehemently denied having applied silicone around the nuts, but here, the Tribunal has a great deal of difficulty understanding how, despite the Respondent's limited understanding of English, Mr. Miller was able to write three pages of text if the person to whom he was speaking did not understand his questions (M-13).
We might add that Mr. Bayes, who has his AME licence, expressed concern about this practice to Mr. Coward in a letter dated February 21, 2002 (M-6).
Regarding Mr. Bayes' statement to Mr. Miller (D-4, p. 9), it is true, as the Respondent submits, that Mr. Bayes was not entirely certain that no silicone was present on December 21, 2001, but during his testimony, he asserts this quite clearly, and his student at the time, Mr. Werry, also confirmed that none was present.
With regard to paragraphs (a) and (b) of subsection 571.02(1) of the CARs, the practice of applying silicone around the base nuts is inconsistent with Lycoming Service Instructions 1290E (M-8) and 1123C (M-9) and the testimony of Messrs. Bayes and Werry.
It is also interesting to note that Mr. Robert Goulet confirmed having performed this maintenance work to Mr. Randy Miller on May 23, 2002, but subsequently denied it in his testimony at the review hearing.
As for paragraph (c) of the same subsection 571.02(1) of the CARs, of the four experts consulted, to wit, Messrs. Coldera, Mansell, Donaldson and Leggat (M-7, M-10, M-11 and M-12), only the last said "[...] we have seen the bore plugged with a sealant of some kind [...]," but went on to say "[...] Cannot say this method is Lycoming approved, but does at the time save a lot of time and money if it is successfull. [sic] [...]."
The first three refer to the Lycoming Service Instruction 1290E: "[...] The correct method is [to] install an oversize thru bolt."
With respect to the Respondent's defence regarding follow-up to his repair of January 8, 2002, the Tribunal, referring to the journey log of aircraft C-GTKA (M-2), notes that this aircraft flew only from Bromont to Sherbrooke (0.9 hours) on January 8, 2002, and was still in Bromont until January 27, 2002, that is, before leaving for Oshawa, and even though no oil leak was reported to him, an inspection and a second ground run-up could have been done under his supervision out of professional concern.
Finally, Mr. Robert Goulet presented no one at all who may have performed this maintenance work, i.e., the application of silicone around the nuts, and there is no other entry in the journey log between that of January 8, 2002, and that of Mr. Bayes on February 11, 2002.
As for the monetary penalty assessed for such an offence in the amount of $625, half the amount suggested for a corporation, the Tribunal has reduced it to $400, as a number of people may have had a role to play in this maintenance process, but the Tribunal is unable to determine to what extent.
The Tribunal confirms the decision of Transport Canada, but reduces the monetary penalty of $625 to the amount of $400.
Dr. Michel Larose
Civil Aviation Tribunal
 Regional Manager, Aviation Enforcement, Ontario Region.
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