Decisions

TATC File No. O-2824-02
MoT File No. PAP-5504-049856

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

William R. Long, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Canadian Aviation Regulations, SOR/96-433, s. 605.03(1)

Flight authority


Review Determination
Philip D. Jardim


Decision: September 25, 2003

September 10, 2003
Toronto, Ontario

The Minister of Transport has proven on a balance of probabilities that Captain William R. Long did contravene subsection 605.03(1) of the Canadian Aviation Regulations, pursuant to section 6.9 of the Aeronautics Act. The suspension of three days imposed by the Minister shall stand. Said suspension will commence on the fifteenth day following service of the present determination.

REASONS FOR REVIEW DETERMINATION

A review hearing on the above matter was held Wednesday, September 10, 2003 at 10:00 hours at the Federal Court of Canada, in Toronto, Ontario.

BACKGROUND

On September 21, 2002 Captain William R. Long flew North American Harvard II, CF-HWX. On September 15, 2002 Malcolm Philip Mazurek had flown the same aircraft. At the conclusion of that flight, Mr. Mazurek wrote the following comment in the aircraft journey logbook: "RH outboard elevator bearing excessive play."

There was no record of maintenance performed on the aircraft in the journey logbook. However, Captain Long, who has an Airline Transport Pilot Licence (ATPL), performed a preflight inspection of the aircraft, and judged that in his opinion the bearing was within normal limits. He proceeded to fly the aircraft, despite the fact that an aircraft maintenance engineer (AME) had not inspected the aircraft, nor rectified the reported defect, prior to Captain Long's flight on September 21, 2002.

Transport Canada noted the discrepancy during a routine inspection some time later, and an investigation ensued. As a result of that investigation, Captain Long's ATPL was suspended for three days. Captain Long applied to the Tribunal for a stay of the suspension, and requested a hearing to review the alleged infraction.

THE LAW

Paragraph 605.03(1)(a) of the Canadian Aviation Regulations (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;"

Section 507.11 of the CARs:

"507.11 Unless surrendered, suspended or cancelled, a flight authority issued pursuant to this Subpart remains in force during the period or for the number of flights specified in it or, where no limit is specified, indefinitely, if the aircraft continues to meet the conditions subject to which the flight authority was issued."

Section 507.02 of the CARs:

"507.02 Where an application for a flight authority is made pursuant to section 507.06, the Minister shall issue a certificate of airworthiness in respect of an aircraft

(a) for which an aircraft type design has been certified pursuant to Subpart 11 and the certification is not restricted or provisional;

(b) that conforms to its certified type design; and

(c) that is safe for flight."

Section 605.94 of the CARs entitled 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.

SCHEDULE I

(Subsection 605.94(1))

JOURNEY LOG

Item

Column I

Particulars to Be Entered

Column II

Time of Entry

Column III

Person Responsible for Entry

8.

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

9

Particulars of any maintenance action or elementary work performed in respect of item 2, 5 or 8

As soon as practicable after the maintenance action or elementary work is performed but, at the latest, before the next flight

The person who performed the maintenance action or elementary work"

Section 625.10 of the CARs - General Operating and Flight Rules Standards:

"625.10 Unserviceable Equipment - Aircraft without a Minimum Equipment List

Information Notes:

The following provisions, although considered advisory in nature, have been included in the main body of these standards due to their importance. They are not standards.

(i) CAR 605 requires that all equipment listed in the applicable airworthiness standard, and all equipment required for the particular flight or type of operation, must be functioning correctly prior to flight. The requirement for a particular system or component to be operative can be determined by reference to the type certificate data sheet, operating regulations or the applicable equipment list in the aircraft operating manual.

(ii) Although the responsibility for deciding whether an aircraft may be operated with outstanding defects rests with the pilot in command, an error in this determination could result in a contravention under these regulations. It is for this reason that the regulations require that full details of all defects be entered in the journey log. The pilot in command must be fully aware of the condition of the aircraft if he is to make the correct decision regarding the intended flight. The manner in which the pilot makes this decision, however, will vary according to the type of operation of the aircraft. In the following paragraphs, private and commercial aircraft are considered separately.

[...]

(iv) In the case of an aeroplane or helicopter not operated pursuant to Part IV, or an aircraft not operated pursuant to Part VII, the pilot must review the log prior to flight and decide whether any of the defects recorded affect the airworthiness of the aircraft. Reference may be made to the type certificate data sheet, the aircraft operating manual, or any list provided by the aircraft manufacturer respecting equipment that must be operational for the intended flight. The Minister may also approve a minimum equipment list for use by an owner. Any or all of these may indicate that particular items of equipment are mandatory.

[...]

(vi) Where in doubt, the pilot should obtain the advice of an AME. This is best done by requesting the AME to inspect the defective system or component to determine its effect upon the aircraft's fitness for flight. By following this procedure and obtaining the AME's signature in the log book in the form of a maintenance release, the pilot will be able to demonstrate, if necessary, that he has taken all reasonable steps to ensure the airworthiness of the aircraft. Inspection of defective systems by an AME, although advisable, is not a legal requirment. As stated earlier, it is the pilot's responsibility to determine whether the aircraft is fit for the intended flight."

EVIDENCE

At the outset of the hearing I enquired whether there had been any pre-hearing agreements or an Agreed Statement of Facts. There was indeed such an Agreement which had been signed by both parties and entered as Exhibit M-1. In essence, Captain Long accepts that he operated Harvard CF- HWX on September 21, 2002 and that no maintenance action was carried out on the aircraft, with respect to the entries in the journey logbook, citing a defect in the right hand outboard elevator bearing. Several pilots had also subsequently flown this aircraft, including Mr. Mazurek, who flew it again some three weeks later, on October 6, 2002. Mr. Mazurek again reported the defect with the words: "Same snag as above."

The Minister brought two witnesses to the hearing, both of whom are Transport Canada Inspectors. Mr. Tom Griggs is a Civil Aviation Safety Inspector with Transport Canada with responsibility for overseeing commercial and private operators. He noted the entry in the logbook, and upon investigating the matter determined that corrective action had not been taken to resolve the defect. He issued a Notice of Suspension for an immediate threat to aviation safety, thereby immediately suspending the Certificate of Airworthiness (C of A) of CF- HWX on January 27, 2003 (Exhibit M-6). Mr. Griggs wrote an accompanying letter, dated January 27, 2003 (Exhibit M-7).

On March 30, 2003 Mr. David Gibbons, Chief Technical Officer of the Canadian Harvard Aircraft Association replied to Mr. Tom Griggs (Exhibit M-8). In it he states, inter alia, that he did have this elevator bearing defect inspected by an AME, after grounding the aircraft. The play in the bearing was very minor and could only be felt in the extreme down position. The bearing defect was deferred to the annual inspection, and the bolt in question was replaced. Mr. Gibbons did not mention the following:

a) When he grounded the aircraft; or,

b) The date on which he had an AME inspect the elevator bearing, judge it to be a minor defect, sign a maintenance release, and defer it to the annual inspection.

In his letter, Mr. Gibbons admits that he was in error in "not having the AME make the appropriate entry in the journey log."

Mr. Ross Beck, Transport Canada Civil Aviation Inspector, Enforcement Branch, conducted the investigation and concluded that the defect entered by Mr. Mazurek after his flight on September 15, 2002 had not been attended to, nor inspected, since there were no appropriate entries in the Journey Logbook (Exhibit M-4).

Mr. Harris, Counsel for Captain Long, cross-examined both witnesses, and during the cross-examination of Mr. Griggs, introduced as Exhibit D-9 a document entitled "Staff Instruction"1, issued by Transport Canada to its inspectors. Mr. Harris highlighted sections 1.1 and 1.2 of this document. These two sections give a background to the recording of defects, their gravity, and their effect on a flight authority. In essence, it appeared to me that Mr. Harris was seeking to minimize the elevator bearing defect as a minor one, which did not render the aircraft unsafe for flight. In commenting on this document, Ms. Elliott drew the attention of the hearing to section 6.0 which provides guidance on a suspension of a flight authority for failure to comply with conditions. This section gives examples of deficiencies which constitute a failure to meet the conditions of a flight authority: These include, inter alia, "any defect which causes the aircraft to be unfit for flight."

Mr. Harris sought from Mr. Griggs an opinion on what defects would not affect a flight authority. Mr. Griggs replied: "A blown landing light in a Day/VFR operation." An elevator bearing does not come under that category.

Although there were exchanges between Mr. Harris and the Transport Canada witnesses about the wear on components over time, the tolerances on wear, both witnesses were adamant that the manufacturer had issued no tolerances for elevator bearings. Hence, when wear is detected, the only appropriate action is replacement.

Ms. Elliott rested the Minister's case, and Mr. Harris called Mr. Steve Martin, an AME, as his first witness. He sought to have Mr. Martin established as an expert witness. Mr. Martin was not involved with the maintenance of CF-HWX during the period in question, but has extensive experience working on Harvard aircraft. He had been Director of Maintenance for the Canadian Warplane Heritage for some 2½ years. Ms. Elliott had no objection to the approval of Mr. Martin's expertise on Harvards, so I accepted him as an expert witness.

While Mr. Martin testified that he did not necessarily agree that the flight authority of

CF-HWX had been invalidated by the defect, he himself had not inspected the aircraft. He said that judgments on bearing condition were subjective, and were a matter of the AME's experience with that type. He would have sought the opinion of others before making a decision. Mr. Harris said that the aircraft had flown some 77 hours in the six months since its annual inspection. In answer to Mr. Harris's question about the amount of wear in a bearing after 77 hours of flight, he would not be drawn out, except to say that it was unlikely that a bearing would develop significant wear during this period.

In answer to Ms. Elliott's cross-examination, Mr. Martin agreed that once a defect had been reported, the aircraft had to be inspected by an AME and a maintenance release issued and recorded in the logbook before further flight. While Mr. Martin would not be drawn out on Ms. Elliott's question as to whether aerobatic flight subjected aircraft and their elevators, in particular, to additional stress, he did say that aerobatics could have an effect.

Captain Long testified that he is a highly experienced pilot, and learned to fly in the Harvard in 1954. He has some 1800 hours on the type and has wide experience instructing, and has been on safety committees, courses etc. He has an ATPL and is currently employed by Air Canada as an instructor on the Airbus A320.

He testified that he performed a pre-flight inspection on CF-HWX before taking off on September 21, 2002. He judged from his experience that there was nothing wrong with the RH outboard elevator bearing of the aircraft. He was satisfied that the aircraft was fit for flight, and was not concerned about the entry in the journey logbook by Mr. Mazurek on September 15, 2002. He presented Exhibit D-13, a red unserviceable tag, which would have been affixed to the canopy of the aircraft, had it been grounded. He said that Mr. Mazurek had a private pilot licence, and just 200 hours on the Harvard. He had not spoken to Mr. Mazurek about the defect.

Captain Long testified that, in his opinion, a defect in the journey logbook with an aircraft in "this type of operation" did not have to be cleared before flight. I questioned Mr. Long whether he was saying that defects entered in private aircraft logbooks carry a different weight from those entered in an A320 commercial aircraft logbook. He answered that there is; the pilot has the authority to assess defects in a private aircraft.

DISCUSSION

The agreed statement of facts, and the evidence make it clear that Captain Long flew Harvard CF- HWX on September 21, 2002 without having a qualified AME inspect the defect and sign a maintenance release in the journey logbook.

Paragraph 605.03(1)(a) of the CARs forbids the operation of an aircraft whose flight authority is not in effect. In addition to this regulation, the following sections of the CARs are closely related and highly relevant:

  • Section 507.11 describes the duration of a flight authority. It says in effect that the aircraft must continue to meet the conditions subject to which the flight authority was issued. In this case, the aircraft had a defect reported on the RH elevator outer bearing. This is a serious matter, which must be inspected, replaced, if necessary, and a maintenance release signed in the journey logbook by a qualified AME before further flight. This was not done for some considerable time, which means that the flight authority for CF-HWX was not valid until this was done.
  • Section 507.02 deals with Certificates of Airworthiness and the related flight authority for the issuance of a C of A. Paragraph (b) states that the aircraft must conform to its certified type design. Paragraph (c) states that the aircraft must be safe for flight. The reported defect in the elevator bearing was not inspected by a qualified AME before flight, therefore with a defective elevator reported, this regulation was breached.
  • Subsections 605.10(1) and (2) describe the requirements for unserviceable equipment in an aircraft of this type. It essentially forbids take-off unless "an entry recording the actions referred to in paragraphs (a) and (b) is made in the journey log, as applicable"2. There was no entry made in the journey logbook describing the rectification action taken on the elevator bearing prior to the flight on September 21, 2002.
  • Subsection 605.94(1), SCHEDULE I, in particular, items 8 and 9, describe the requirements for recording defects in the journey logbook, and the maintenance action taken by a qualified person who performed the required work. This was not done before the flight on September 21, 2002.

Notwithstanding Captain Long's considerable experience, he is not an AME and therefore not qualified to sign off this defect, nor is he qualified to declare the aircraft fit for flight with this potentially serious defect. Any pilot knows that an aircraft elevator is the most critical flight control on any aircraft, regardless of what type of operation is involved, and particularly for an aerobatic aircraft.

I cannot find any regulation which permits Captain Long or any pilot to declare an aircraft fit for flight after a serious defect is reported, and NOT signed off by an AME. There was no evidence adduced in support of this.

Mr. Harris played heavily on the substantial experience of Captain Long, compared with the relative inexperience of Mr. Mazurek, who had reported the defect. I find that this is missing the point. Mr. Mazurek observed an anomaly/defect in a crucial flight control of an aircraft used extensively for aerobatics. He was concerned about the safety and continued airworthiness of that elevator, and the aircraft.

DETERMINATION

In the circumstances, the Minister has certainly proven on a balance of probabilities that the alleged infraction did take place. I find that the sanction imposed is, if anything, very lenient. At the conclusion of this review hearing before this Tribunal, I have determined that Captain William R. Long did contravene subsection 605.03(1) of the Canadian Aviation Regulations, pursuant to section 6.9 of the Aeronautics Act. The suspension of three days imposed by the Minister shall stand.


Appeal decision
Allister W. Ogilvie, John D. Issenman, Samuel J. Birenbaum


Decision: May 5, 2004

We allow the appeal and dismiss the penalty.

An appeal hearing on the above entitled matter was held Tuesday, December 16, 2003 at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

BACKGROUND

On September 21, 2002, Captain William R. Long flew North American Harvard II, CF-HWX. On September 15, 2002, Malcolm Philip Mazurek had flown the same aircraft. At the conclusion of that flight, Mr. Mazurek wrote the following comment in the aircraft journey log book: "RH outboard elevator bearing excessive play."

There was no record of maintenance performed on the aircraft in the journey log book. However, Captain Long, who has an airline transport pilot licence (ATPL), performed a pre-flight inspection of the aircraft and judged that in his opinion the bearing was within normal limits. He proceeded to fly the aircraft, despite the fact that an aircraft maintenance engineer (AME) had not inspected the aircraft nor rectified the reported defect prior to Captain Long's flight on September 21, 2002.

Transport Canada noted the discrepancy during a routine inspection some time later and an investigation ensued. As a result of that investigation, Captain Long's ATPL was suspended for three days. Captain Long applied to the Tribunal for a stay of the suspension and requested a hearing to review the alleged infraction.

That review hearing was held before a single member, Mr. P. Jardim, on September 10, 2003 in Toronto, Ontario. He concluded that the Minister of Transport had proven that Mr. Long did contravene subsection 605.03(1) of the Canadian Aviation Regulations (CARs).

From that decision Mr. Long appealed in the following form:

GROUNDS OF APPEAL

The grounds of the appeal are, briefly, that the learned Member erred in:

  1. admitting into evidence the opinion of Inspector Tom Griggs regarding the proper interpretation of the Canadian Aviation Regulations;
  2. receiving hearsay evidence;
  3. holding that the flight authority of the subject aircraft was not in effect on September 21, 2003;
  4. misconstruing or reversing the burden of proof;
  5. applying the law to facts not properly established; and
  6. endorsing a 'zero tolerance' policy for component wear.

SUBMISSIONS OF THE PARTIES

Appellant

Mr. Harris asserts that the decision rendered by the Member is based upon an unfounded premise; namely that the aircraft was flown while its elevator hinge bearing was significantly defective to the point that the aircraft was unfit for flight. The proposition that the elevator was defective was not proven in his opinion. On that basis we were invited to overturn the Member's decision.

The only evidence to suggest the elevator hinge bearing might have been defective was the journey log entry of September 15, 2002 which indicated that the aircraft's right-hand outboard elevator bearing exhibited "excessive play." There was no statement that the bearing was defective or unsafe or unairworthy. The use of those words implies a subjective impression.

Evidence to the contrary was given by Mr. Long who testified that when he inspected the elevator on September 21 the outboard elevator hinge was normal and did not display excessive play.

Mr. Harris argued that the Member erred in his assessment of Mr. Mazurek's journey log entry when he found that it showed Mr. Mazurek was concerned about the safety and airworthiness of the aircraft. Such a view is unsupported by evidence in his view.

Respondent

The Member had found that Mr. Long operated the aircraft when no flight authority was in effect and found further that due diligence had not been exercised. We are asked to uphold those findings.

The Minister submits that the test to be applied when reviewing a Member's findings of fact is that those findings should not be disturbed on appeal unless they are patently unreasonable. Jurisprudence was provided as to the meaning to be attributed to "patently unreasonable."

The Member's finding of facts was not patently unreasonable as the findings were supported by the testimony of Inspector Griggs.

THE LAW

Paragraph 605.03(1)(a) 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;

...

Subsection 101.01(1) of the CARs:

'flight authority' means a certificate of airworthiness, ... attesting to an aircraft's fitness for flight ...;

'airworthy', in respect of an aeronautical product, means in a fit and safe state for flight and in conformity with its type design;

Subsection 3(1) of the Aeronautics Act:

'aeronautical product' means any aircraft, ...

Section 507.11 of the CARs:

507.11 Unless surrendered, suspended or cancelled, a flight authority issued pursuant to this Subpart remains in force during the period or for the number of flights specified in it or, where no limit is specified, indefinitely, if the aircraft continues to meet the conditions subject to which the flight authority was issued.

Section 605.94 of the CARs entitled 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.

 

Column I

Column II

Column III

Item

Particulars to Be Entered

Time of Entry

Person Responsible for Entry

8.

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

9.

Particulars of any maintenance action or elementary work performed in respect of item 2, 5 or 8

As soon as practicable after the maintenance action or elementary work is performed but, at the latest, before the next flight

The person who performed the maintenance action or elementary work

Section 625.10 of the Operating and Flight Rules Standards:

625.10 Unserviceable Equipment - Aircraft without a Minimum Equipment List

Information Notes:

The following provisions, although considered advisory in nature, have been included in the main body of these standards due to their importance. They are not standards.

(i) CAR 605 requires that all equipment listed in the applicable airworthiness standard, and all equipment required for the particular flight or type of operation, must be functioning correctly prior to flight. The requirement for a particular system or component to be operative can be determined by reference to the type certificate data sheet, operating regulations or the applicable equipment list in the aircraft operating manual.

(ii) Although the responsibility for deciding whether an aircraft may be operated with outstanding defects rests with the pilot in command, an error in this determination could result in a contravention under these regulations. It is for this reason that the regulations require that full details of all defects be entered in the journey log. The pilot in command must be fully aware of the condition of the aircraft if he is to make the correct decision regarding the intended flight. The manner in which the pilot makes this decision, however, will vary according to the type of operation of the aircraft. In the following paragraphs, private and commercial aircraft are considered separately.

(iii) [not applicable]

(iv) In the case of an aeroplane or helicopter not operated pursuant to Part IV, or an aircraft not operated pursuant to Part VII, the pilot must review the log prior to flight and decide whether any of the defects recorded affect the airworthiness of the aircraft. Reference may be made to the type certificate data sheet, the aircraft operating manual, or any list provided by the aircraft manufacturer respecting equipment that must be operational for the intended flight. The Minister may also approve a minimum equipment list for use by an owner. Any or all of these may indicate that particular items of equipment are mandatory.

(v) [not applicable]

(vi) Where in doubt, the pilot should obtain the advice of an AME. This is best done by requesting the AME to inspect the defective system or component to determine its effect upon the aircraft's fitness for flight. By following this procedure and obtaining the AME's signature in the log book in the form of a maintenance release, the pilot will be able to demonstrate, if necessary, that he has taken all reasonable steps to ensure the airworthiness of the aircraft. Inspection of defective systems by an AME, although advisable, is not a legal requirement. As stated earlier, it is the pilot's responsibility to determine whether the aircraft is fit for the intended flight.

DISCUSSION

Facts

There is no issue as to Mr. Long's operation of the aircraft on the time and date in question. There was no record of maintenance performed on the aircraft between September 15, 2002, when Mr. Mazurek entered a defect in the journey log book, and September 21, when Mr. Long flew the aircraft.

The Minister has submitted that the Member's findings of fact should not be disturbed unless they are patently unreasonable. We are of the view that the standard should be one of reasonableness.

Standard of Review

In the Respondent's factum we were referred to a Civil Aviation Tribunal case[1] for the proposition that a Member's finding of fact should not be disturbed on appeal unless they are patently unreasonable.

As to the meaning of "patently unreasonable," a recent case[2] was submitted as guidance. In that case the term was described in various ways including "clearly irrational"or "evidently not in accordance with reason."

We find that the case does not give guidance to us on the matter as it deals with a significantly different issue. Although the words "patently unreasonable" are the same, the context in which they are applied is decidedly different. The discussions by the Supreme Court were in the context of a judicial review by a superior court of an inferior tribunal's decision. That is not the case here.

On a judicial review the standard of review may be determined by conducting a pragmatic and functional analysis in accord with the factors enunciated by the Supreme Court in Pushpanathan.[3] Those factors include the presence or absence of a privative clause, the expertise of the tribunal, the purpose and objective of the constituent legislation and the nature of the issue to be resolved. The object of the analysis is to determine whether Parliament intended the court or the tribunal to make the decision for the disposition of the case.

After having taken such an analysis, a court may find that great deference should be given to a tribunal in some instances. The cases show that the stronger the privative clause and the more specialized the tribunal the more likely it is that the standard of judicial review will be "patently unreasonable."

However we are not engaged in a judicial review but in an internal appeal within the same Tribunal. The original determination is not protected by a privative clause but rather is subject to a statutory right of appeal to the next level within the Tribunal. Both the member at first instance and the appeal panel have expertise in the field.

We find that the pertinent quote relied upon in the Phillips case refers to findings of the credibility of witnesses. That can be seen by reading the sentence following the one in which the term "patently unreasonable" was found: "Unless the findings of the hearing officer are patently unreasonable and cannot be supported by the testimony - under oath - the Appeal Tribunal should be reluctant to substitute its findings. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance." [Emphasis added] This explanatory sentence shows that the author was referring to findings of credibility.

That conclusion is reinforced by the case which was used by the Tribunal in Phillips for authority for the proposition, R. v. Reid.[4]

In that case the judge relied on a decision in Montgomerie and Company (Limited) v. Wallace-James.[5] Lord Halsbury stated:

Where a question of fact has been decided by a tribunal, which has seen and heard the witnesses, the greatest weight ought to be attached to the finding of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in a way that no appellate tribunal can have. But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court.

Having spoken to the passage quoted above as well as two other cases Furlong J. went on to say at page 4, "It is proper, I think, to say that once an appellate court is satisfied that the evidence heard in the court below is dependent upon the credibility of the witnesses, strong evidence to the contrary must exist to disturb the conclusion of this credibility." [Emphasis added] The Tribunal Member in Phillips goes on to adopt that latter passage.

We find that "patently unreasonable" as applied in the Phillips case applies to findings of credibility of witnesses. It is not a statement of the standard of review to be applied when a Tribunal appeal panel reviews a member's determination.

In this case we are dealing with a review of the initial hearing member's determination by a panel of three members who also have expertise in the particular transportation sector. The appeal is to be on the merits based on the record of the proceeding held before the single member. It is to be conducted by oral argument. It may hear evidence not previously available if it is necessary for the purpose of the appeal.

That type of appeal is more analogous to one provided by an appeal to a superior court than it is to a judicial review by a court.

Although each statutory right of appeal is dependent upon the particular wording found in its own legislation, a review of some principles enunciated by the Supreme Court in an appeal of a decision of a tribunal is helpful in this analysis.

Canada (Director of Investigation and Research Competition Act) v. Southam Inc.[6] on appeal from the Federal Court of Appeal addressed the standard of appellate review.

The Tribunal had investigated whether there had been substantial lessening of competition between certain newspaper outlets in the lower mainland of British Columbia. The Tribunal ordered Southam to divest certain holdings as it was found that a concentration of holdings was likely to lessen competition. Appeals of the decision ended up in the Supreme Court.

Iacobucci J. for the court framed his ultimate question as what standard of review an appellate court should apply in a case such as the one before him. He concluded that the answer should be reasonableness simpliciter. That is the reviewing court must inquire whether the decision was reasonable.

In coming to that decision he considered several factors.

Where there was a statutory right of appeal, the court need not look to see whether the Tribunal exceeded its jurisdiction by breaching the rules of natural justice or rendering a decision that was patently unreasonable. The court stated that the standard of patent unreasonableness was principally a jurisdictional test and the statutory right of appeal puts the jurisdictional question to rest.

A most important factor to be considered was the area of expertise of the Tribunal. He concluded that even where there was a statutory right of appeal, deference should be shown by the appeal court to opinions of a specialized lower tribunal on matters squarely within its jurisdiction. He reasoned that if Parliament entrusted a matter to a tribunal it was because the tribunal enjoyed some advantage that judges did not. Thus a review of the decision should be on a standard more deferential than correctness. The standard should be whether the decision of the tribunal was unreasonable. That is to say an unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination. A defect, if there is one, could be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn.

The appellate review by a court of a tribunal's determination is not quite equivalent to an internal tribunal review. For instance the appeal provisions are particular to its own legislation. The court recognizes and gives some deference to the tribunal's expertise, but in our case both levels of hearing possess expertise. However it is more analogous than is judicial review. We find that a standard of review that should be applied in our deliberation is also whether the decision is unreasonable.

Although the court cases are instructive, we need only heed our own jurisprudence to reach that conclusion. In the appeal decision in Moore[7] the Member stating concurring reasons stated:

I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law, .... The second is, notwithstanding that there is some evidence concerning the finding, it is nonetheless unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearing officer.

This decision recognizes that findings that are "unreasonable" may be subject to review rather than only those that are "patently unreasonable" as is proposed in the Minister's factum. As discussed above we find that "patently unreasonable" as used in Phillips was referring to findings of credibility. Further "patently unreasonable" as a standard of review in judicial review proceedings is a jurisdictional issue put to rest when a statutory appeal is provided thus not applicable here. We would also note that although the Phillips decision has often been utilized for the proposition put forth by the Minister, the decisions of our own Tribunal are not binding upon those that follow (Wyer decision).[8]

In the text Administrative Tribunals in Canada[9] it states: "The appellate tribunal should not require the appellant to show that the subordinate tribunal's decision was patently unreasonable before interfering. It should assess the evidence it has heard and come to its own decision, but may give weight to the decision under appeal."

As the Aeronautics Act and its subordinate legislation are generally concerned with aviation safety we do not think that a decision which may have safety consequences should have to be patently unreasonable, i.e., clearly irrational before it may be found wanting.

We find that the standard of review as between the determination at first instance and that on appeal in Transportation Appeal Tribunal of Canada proceedings is whether the findings are "unreasonable."

DISCUSSION

Subsection 605.03(1) of the CARs stipulates that no person shall operate an aircraft unless a flight authority is in effect. The Member found that Mr. Long had flown the aircraft when the flight authority was not in effect.

Issue

The issue before us is whether the Member's finding was reasonable. We find the Member's conclusion that the aircraft was unairworthy, because a bearing was defective, is not supported by the evidence and therefore unreasonable. We allow the appeal and address the Appellant's grounds below:

Ground 1 Admitting into evidence the opinion of Inspector Tom Griggs regarding the proper interpretation of the CARs.

We concur with the Appellant that eliciting opinion evidence of the application of the law to the facts is a matter for argument rather than evidence. However we find that in this instance it did not materially affect the decision so deny this ground.

The transcript does show that Inspector Griggs was being asked for his opinion regarding the interpretation of the CARs. For example at page 21 of the transcript Ms. Elliot asks: "Please read out to us 507.11 and 507.2, and explain how it applies to CFHX in this case."

In another Tribunal case[10] the Minister attempted to tender an inspector as an expert on the application of the regulations to certain operators. In denying to accept him as an expert in the application of regulations the Member stated:

I did not accept him as an expert witness on the application of the regulations because the application of the law to the facts is a matter for argument and is not a matter of evidence. Further, the application of the law to the facts is the ultimate issue that the Tribunal is being asked to decide.

That instance dealt with an expert witness. We find the rationale applies in general, that is the application of the law to the facts should be a matter of argument rather than evidence.

Ground 2 Receiving hearsay evidence

We do not agree that it was an error to receive hearsay evidence so dismiss this ground. The Tribunal is not bound by the legal and technical rules of evidence of which hearsay is a prime example. Authors on administrative law matters have recognized that hearsay is admissible in an administrative hearing context while noting that it should be ascribed less weight than direct testimony.[11] It has been recognized in Tribunal jurisprudence that hearsay evidence may be of some value if verified or corroborated by other evidence or if it forms the corroboration of some other evidence.[12]

Ground 4 Misconstruing or reversing the burden of proof

The Member does seem to hold that Captain Long must show the existence of a permissive regulation rather than the Minister establishing a prohibitory regulation when he states at page 7,

"I cannot find any regulation which permits Captain Long or any pilot to declare an aircraft fit for flight after a serious defect is reported, and not signed off by an AME. There was no evidence adduced in support of this."

The regulations and advisory material do not state that the pilot must declare an aircraft with an outstanding defect fit but rather that the pilot is to make a decision whether or not to operate the aircraft with that defect. Should the decision be wrong Transport may allege that a violation has occurred.

Item 8 of Schedule I to section 605.94 regarding journey log entries requires the person discovering a defect to note its particulars in the log as soon as practicable after it is discovered. Mr. Mazurek did just that by his September 15 entry.

That section does not provide that such a defect must be rectified and a release signed before the next flight as the Member finds. An assessment of the defect must be made. That is stipulated in the advisory material found in section 625.10 of the Operating and Flight Rules Standards. The entire section is produced above but for ease of reference we repeat the pertinent stipulations.

(ii) Although the responsibility for deciding whether an aircraft may be operated with outstanding defects rests with the pilot in command, an error in this determination could result in a contravention under these regulations. [emphasis added]

Mr. Long as pilot-in-command decided that the aircraft could be operated with the defect outstanding. Transport Canada alleges that he made an error in doing so.

(vi) Where in doubt, the pilot should obtain the advice of an AME.... Inspection of defective systems by an AME, although advisable, is not a legal requirement. As stated earlier, it is the pilot's responsibility to determine whether the aircraft is fit for the intended flight. [emphasis added]

We agree that the Member's search for a permissive regulation seems to shift the burden to the document holder but his comments did not go to the allegation before him but seemed concerned with finding a regulation addressing the requirement for an AME signature. Thus, they were not necessary for his determination on the CARs 605.03 allegation.

He was correct in ascribing the burden of proof to be upon the Minister in his finding regarding the actual contravention before him, CARs 605.03. Therefore, we dismiss this ground.

Ground 3 flight authority of the subject aircraft was not in effect

Ground 5 applying law to facts not properly established

Ground 6 endorsing a zero tolerance policy for component wear

These grounds are amenable to be being discussed together. We allow the appeal on these grounds. We find that it was not reasonable for the Member to find that there was a defective bearing, which rendered the aircraft unairworthy, based on the evidence before him.

The sole evidence of a defect is the journey log book entry of September 15 that states "R H outer elev bearing excessive play." This entry then brings about the Member's finding that the aircraft is unairworthy because a bearing was defective to the point that the aircraft was unsafe for flight.

Any conclusions about the entry's meaning must be based on inference or assumption. Mr. Mazurek, the entry's author, was not a witness. The record does not show that anyone questioned him to ascertain his view of "excessive." No one from Transport Canada actually inspected the aircraft.

Where no question arises as to truthfulness, and where the question is as to the proper inference to be drawn from truthful evidence, then the original Tribunal is in no better position to decide than the persons of an appeal panel.[13] Here there was no issue raised at the review hearing as to the truthfulness of the log book entry. We find that we are in as good a position to draw the proper inference as was the Member.

If you only read the entry, the words "excessive play" may lead you to conclude that the component was other than normal. We can understand the inspector's consternation when first reading it. But the hearing Member and this panel have had the advantage of assessing all the evidence adduced.

We find the inference ascribed to the entry by the Member to be unfounded. He states in the decision, "Mr. Mazurek observed an anomaly/defect in a crucial flight control of an aircraft used extensively for aerobatics. He was concerned about the safety and continued airworthiness of that elevator, and the aircraft."

The Member concludes that the aircraft was used "extensively" for aerobatics but we are unable to find the basis for his conclusion in the record. Inspector Griggs, when asked if he knew what the aircraft was used for, replied that to the best of his knowledge it was used for aerobatic practice and for use for members of the association. He did not break down the usage as to time spent in aerobatics as compared to use for the association. The Member's use of "extensive" is much akin to the log entry of "excessive" in that we do not know what either means. The record does show that the aircraft was flown approximately 77 hours between its last inspection and September 15, when the entry was made. How much of that time was in aerobatics is an unknown. The only witness who could have told the Tribunal whether it was used extensively for aerobatics was Mr. Long, and no one posed that question to him.

The Member felt the entry showed a concern for safety and the aircraft's continued airworthiness. More telling than his words are the actions of Mr. Mazurek. From them we have drawn an inference contrary to the one reached by the Member. The pilot went on to fly that same aircraft on September 21 and October 6, noting the same snag again but nevertheless flying the aircraft. He flew it twice on November 11. Not only did he fly the aircraft on those dates but the log shows that in each instance he took with him a crew/passenger. Rather than showing concern about the safety and continued airworthiness of the aircraft, we feel that displays confidence in it.

Evidence adduced through Mr. Long indicates that the Harvard Association had a methodology in place to ground an aircraft if a pilot considered it not to be airworthy. Mr. Mazurek did not take that action. We can infer from that he did not consider the aircraft to be unairworthy.

The Minister has argued that the Member's finding was not patently unreasonable as it was supported by the testimony of Inspector Griggs. But Inspector Griggs' testimony was also based on the assumption that the log entry meant that the bearing was defective. He stated that the aircraft had a defect against the type design as the aircraft was not originally manufactured or certified with a defective elevator bearing. He must infer from the entry of "excessive play" that the bearing was defective because he never personally inspected it and Mr. Mazurek was not called to explain it.

However there is direct evidence that there was not excessive play. Mr. Long, the chief pilot of the Harvard Association, flew the aircraft twice on September 21. He testified that he was aware of the log entry and hence paid special attention to the right-hand outboard elevator. He found it to be perfectly normal on both of his pre-flight inspections that day. The Member in reviewing Mr. Long's testimony does not make any adverse finding regarding his credibility but rather seems to dismiss it on the basis that he is not an AME who can sign off the defect nor declare the aircraft fit for flight.

Although none of them were called to testify as to the fitness of the aircraft, or otherwise, we note from the log book that about five pilots other than Messrs. Long and Mazurek also flew the aircraft after the defect had been noted. We can infer from their actions that they too did not find the aircraft to be unairworthy.

Mr. Steven Martin was qualified as an expert on the maintenance of Harvard aircraft. He agreed that the manufacturer had not specified a particular tolerance for elevator hinge bearings. He did not agree with the proposition that, as there were no objective tolerances within the manufacturer's documentation, there would then be a zero tolerance policy in that any wear whatsoever of the component would be a defect against type design. The intent was that a component be inspected and a judgement as to its airworthiness be made. The Member ignored this latter testimony from the expert witness when he concluded that when wear was detected the only appropriate action was replacement. The Minister's witness was an experienced AME but was not endorsed as an expert. We think it appropriate to give more weight to the expert's testimony as the Member gave no indication that the expert was not credible nor that he lacked confidence in his expertise.

There is evidence from the person who eventually actually inspected the aircraft that it was not defective. The AME inspecting it on behalf of the Harvard Association found the play was very minor and the replacement of the bearing was deferred to the next inspection. Having deferred it to the next inspection indicates that the AME did not consider it to be unfit (Exhibit M-8). That is the bearing was not defective.

This evidence is at least second degree hearsay, but was entered by the Minister and accepted by the Member during the course of the hearing. The Tribunal is not bound by the technical rules of evidence so hearsay may be admitted. We are aware of its inherently weaker reliability and weight considerations. However in this instance it is corroborative of Mr. Long's finding regarding that the elevator's function was normal. It is also consistent with the expert's view that as the manufacturer had not specified a tolerance then the component should be inspected and a judgement made. The AME inspected the elevator's function, found very minor play and deferred the bearing replacement to the next annual inspection.

CONCLUSION

We find that the Member's finding that the flight authority was not in effect was not supported by the evidence.

The only evidence of any defect on the aircraft is found in the two journey log entries. The first entry refers to excessive play in the bearing. The author of the statement was not called to testify. Therefore the entry amounts to an assertion made by a person, not in attendance, and thus not under oath nor subject to cross-examination. The Minister and the Member inferred from that statement that the bearing was defective and thus the aircraft was unfit. As discussed above we have come to a contrary conclusion based on three considerations:

1) the direct evidence from Mr. Long that the elevator was perfectly normal. His testimony on that point was under oath and it did not vary under cross-examination. The Member did not make any adverse finding regarding his credibility. The Member did not say why he rejected the direct evidence.

2) the inference to be drawn from the log entries. The actions of the pilot speak louder than his words. We have inferred that the pilot did not consider the aircraft to be unairworthy as he continued to fly the aircraft, with crew/passenger. He did not ground the aircraft as being unairworthy.

3) the corroborative hearsay evidence, that the AME who actually inspected the elevator found the play to be minor and deferred its rectification. The deferral of rectification until a later date indicates that at the time the bearing was not defective.

DECISION

We allow the document holder's appeal on grounds 3, 5 and 6.

Reasons for Appeal Decision by:

Allister Ogilvie
Vice-Chairperson

Concurred:

Dr. Samuel Birenbaum
Member

John D. Issenman
Member


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

[2] Toronto (City) v. Canadian Union of Public Employees, 2003 SCC 63.

[3] Pushpanathan v. Minister of Citizenship and Immigration [1998] 1 S.C.R. 982.

[4] A decision of Furlong J. of the Supreme Court of Newfoundland (Appeal) (1979) N.J. No. 10.

[5] (1904) A.C. 73.

[6] [1997] 1 S.C.R. 748.

[7] Trent Wade Moore v. Minister of Transport, CAT File No. C-0138-33.

[8] Minister of Transport v. Kurt William M. Wyer, CAT File No. O-0075-33.

[9] Sara Blake, Administrative Law in Canada, 2nd ed. (Toronto and Vancouver: Butterworths, 1997) c. 6 at 137.

[10] Minister of Transport v. Stage Air Limited, CAT File No. W-2446-41.

[11] Supra note 9 at 51.

[12] Minister of Transport v. James Jeffrey Rowan, CAT File No. A-1500-33.

[13] Supra note 5.