CAT File No. A-1232-33
MoT File No. 6504-P-056110-27637
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Paul Duchin, Respondent
Aeronautics Act, S.C., C. A-2, S. 7.7
Air Regulations, C.R.C. 1978, c. 2, s. 210(1)(a)
Strict Liability Offences, Defences, Due Diligence, Certificate of Airworthiness
Decision: May 2, 1996
I find Mr. Paul Duchin was in contravention of paragraph 210(1)(a) of the Air Regulations and confirm the assessed penalty of $250.00. This amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.
The Review Hearing on the above matter was held April 10, 1996 at 13:00 hours at the Federal Court of Canada in the city of Halifax, Nova Scotia.
The Notice of Assessment of Monetary Penalty states:
Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):
Air Regulations, C.R.C. 1978, c.2, Section 210 (1)(a) in that on or about the 7th day of November 1995, at or near the Halifax International Airport, Nova Scotia, you did fly an aircraft to wit: Bell 206B helicopter bearing Canadian Nationality and Registration marks C-FDOD while the Certificate of Airworthiness was not in force due to the fact that the aircraft engine turbine outlet temperature had exceeded the maximum temperature specified in the Bell 206B Aircraft Flight Manual, thereby committing an offence contrary to the Aeronautics Act, R.S., c.A-3, s.s. 7.6(2)
The particulars of the case are as follows:
Bell 206B C-FDOD is a helicopter owned and operated by Transport Canada, usually based in Quebec but frequently used in the Atlantic region.
On November 7, 1995, Delta Oscar Delta was flown from Moncton to Halifax International Airport by Transport Canada Inspector Brian Murdock in company with Transport Canada Inspector James Ross MacKay, a passenger. Inspector Murdock testified that no defects were noted in the aircraft during that flight.
Upon arrival the inspector parked the aircraft at the airport's IMP/Cougar facilities and proceeded to the main terminal for lunch.
By prearrangement with Inspector Murdock, the Respondent, Inspector Paul Duchin of Transport Canada, Halifax, was to fly C-FDOD while Messrs. Murdock and MacKay were at the Cougar facilities. At the time of the alleged offence, Inspector Duchin was in the employ of the Minister, but since retired.
INSPECTOR MURDOCK'S TESTIMONY
Mr. Murdock stated that he and Inspector MacKay left the IMP/Cougar facilities at the Halifax International Airport to go to the terminal to have lunch. The aircraft was sitting on the ramp at IMP when they left. Upon returning from lunch they entered the side door of the IMP facility that borders on the security fence with access to the ramp. They were able to see the aircraft.
Mr. Murdock said he noticed that the strobe light was on in the aircraft, and that there was somebody in the front and some passengers on board, but he added that was not unusual because he and Mr. MacKay knew that Inspector Duchin had made arrangements to use the aircraft in Halifax.
As they approached the side door, the inspectors heard the start sequence begin. Mr. Murdock said that you would hear two things in the start sequence. Number one is the sound of the starter and the turbine winding, whining would be a better word, whining up, and the snapping sound of the igniter. Then the next thing heard would be the combustion on the introduction of fuel to the system.
Mr. Murdock said he heard all of those things, except that, on combustion, the starter and the igniter stopped. He added that it was hard to tell at what point the starter and igniter recovered, but there was obviously a problem during the start sequence.
The start finished. Inspectors MacKay and Murdock went upstairs to Cougar Helicopter where they were carrying out inspections and audits. The aircraft registered CF-DOD departed with Inspector Duchin flying.
Mr. Murdock said that, upon the aircraft's return, he and Inspector MacKay were sitting in the office of the Chief Pilot at Cougar where there is a large window that directly overlooks the ramp and the landing area. The aircraft landed and shut down. The passengers disembarked, and Mr. Murdock noted that Inspector Duchin was still sitting in the pilot-in-command seat with the door closed after the rotors had come to a stop.
Based on his experience, Mr. Murdock said he knew that, when a start has failed or there is a problem with the start where the starter is released early in the start sequence, the potential is for an "over-temp."
He added that he knew this aircraft had an "over-temp" indicator, that if 927 degrees was exceeded during the start a little black ball would turn to a white ball.
Based on his experience, he thought there may have been some temperature problems at the start. He told Inspector MacKay that he was going to go out while Inspector Duchin was still with the aircraft and check the over-temp indicator to see if the black ball was white.
Inspector Duchin was still sitting in the pilot-in-command seat, and Mr. Murdock said he opened the door and looked in at the over-temp indicator. He said the ball was in fact white.
At that point Mr. Murdock assumed, because of what he had heard on the start, that the temperature had been exceeded, but that indicator also monitors other parameters as well as temperature.
Mr. Murdock asked Mr. Duchin what kind of problem he had and noted that the white ball was down. Mr. Duchin said that his finger slipped off the starter button during the start. Mr. Murdock suggested to him, not only as an experienced pilot but also in capacity as a training pilot for Transport Canada, that should he encounter that kind of problem during a start, the best thing to do is simply to abort the start and not continue, to get rid of the fuel and shut the throttle off.
Mr. Murdock pointed out that the white ball was down. He thought Mr. Duchin probably knew that at the time. Mr. Murdock added that Mr. Duchin then said he knew he should have aborted the start, but he did not see the white ball until he finished the start. Mr. Murdock suggested to him that the best thing to do at that point would be to contact Maintenance and that an entry in the Journey Logbook would have to be made, and that the aircraft was unserviceable.
Mr. Murdock then left the aircraft and went back upstairs to the office where Inspector MacKay was. Inspector Duchin came up very shortly after that with the log book in his hand, and they then basically said the same thing. He talked about doing a start with one hand where the standard is two.
Mr. Murdock repeated that if he ever did encounter that problem again, the best thing to do would be to abort the start, and Mr. Duchin again said that he did not see the white ball until after he finished the start. Mr. Murdock suggested to him that if he sees the white ball he should not fly, because the white ball indicates, in this case, an "over-temp." If there is an "over-temp" on a start, then the Certificate of Airworthiness is not going to be in force.
MR. DUCHIN'S TESTIMONY
At the Hearing Mr. Duchin made a point that this was the first time he had ever seen this instrument. He had never flown an aircraft with this instrument until this aircraft was brought from Quebec City. He added that this was covered in Flight Safety, but many other gauges were also covered in a very short time, and he was not familiar with this instrument. This is the first aircraft with this instrument he has gotten into. The aircraft he flew with Transport Canada before that never had this instrument.
MR. DUCHIN'S SUMMATION
In summation, Mr. Duchin took issue with Mr. Murdock's testimony. He said he started flying jet aircraft in January 1956 in the Air Force in T-33's. Starting temperature was very much overemphasised. Temperatures to him were very important in flying aircraft. When he started this aircraft, the gauge did not exceed the flight manual's temperature when he was looking at it. He knew nothing about the white ball, because these aircraft have four or five different instruments. Every Transport Canada aircraft has a different instrument panel, has different instruments, and so forth. He did recall in ground school there was something mentioned about a white ball. There was never anything to his understanding, any white ball, that made the aircraft unserviceable. The over-temperature made the aircraft unserviceable.
He stated that when he was starting this aircraft his finger did not slip off, but it momentarily relaxed on the starter where it disengaged for one second. It was a very short moment. He depressed the starter again, and he watched the gauge. This gauge is completely different from a normal gauge which, in a jet aircraft, has a needle. As it is going, the speed goes up; it is in an analogue and it tells how fast it is going. If it is going very fast, the start must be aborted right away. That is normal. This did not happen. This gauge had a digital reading. It was counting readings. Mr. Duchin did not know how accurate it was — how fast it was responding. Nevertheless, he could not believe it would go to 800. It dropped into 900 and went right back to 800. He was of the opinion the temperature had not been exceeded. He continued the start and continued the flight.
When he came back from the flight, he landed the aircraft. Being very conscious of temperature over-temp — and this was a hotter temperature than normal because of the momentary release of the starter — he wanted to inform Inspectors Murdock and MacKay, because he was always taught to be open. He had nothing to hide, that he did have an over-temperature. He landed the aircraft, and passengers got out. He shut the aircraft off, got out and took out the tie-downs from the cargo. He noticed that the overnight bags were inside, and he was shutting the aircraft down for the night. He then grabbed the bags with the flight log and went upstairs to talk to the inspectors. Nobody came to meet him at the aircraft. In fact, refuellers and the people who were waiting for him in the lobby never saw anybody come to the aircraft to talk to him.
Mr. Duchin said he was very hurt to hear such testimony, that he never even heard existed, that occurred today. When he came up to the office to give the bags to both inspectors and explained to them that he did a hotter start than he would normally have in this aircraft, that is when Mr. Murdock said that he should have aborted. Mr. Duchin then immediately went back to the aircraft from there and checked that the ball was out. He then phoned Maintenance in Moncton, because he knew it was something that had to be looked at. He wanted a mechanic to come look at it. Phil, the chief mechanic at Moncton, told him that if the ball is out an entry has to be made. Mr. Duchin asked what he should do and was told to call Jim Clack and was given the number in Shearwater. He called and told him what had happened and was told to make an entry. The entry he made in the log book was an entry after the fact. He did not know why Messrs. MacKay and Murdock would say that he said he knew the ball had popped out, that he "over-temped" it. That was not the case. The aircraft was signed out as unserviceable.
The aircraft was then checked; it was one degree over. The aircraft was later found serviceable and flown back. Mr. Duchin said he never knowingly flew the unserviceable aircraft. He would never do that. He had no reason to do that. It was not his livelihood. He was just flying it for fun. He does not fly unserviceable aircraft. He was flabbergasted that the inspectors would try to pin something like this on him because he was leaving or left Transport Canada. He said he did not fly an unserviceable aircraft, and this is why he was here. He added he was going to pursue this to the end result, because he did not think he did anything wrong. That concluded Mr. Duchin's summation.
The Tribunal Member asked both parties, who both seemed to agree, whether or not the excess temperature beyond the allowable was significant. He also asked where a layman should place that 928 degrees in the process.
Mr. Duchin replied he only saw 900, zero, zero, peak on the gauge. He did not see 928. He added he did not know; that is why he asked Jim Clack how this was recorded. This is like the black boxes; they are not accurate. They give roundabout figures.
Mr. Miles stated he did not believe the one degree was an issue. The issue is that the white flag appeared. At that time no one knew whether it was ten degrees, one degree, a hundred degrees, but the temperature had been exceeded; therefore, the aircraft should not have been flown.
Mr. Duchin replied that there is no place in the manual that says the aircraft should not be flown with the ball out. He said he could not find it any place. He did not know what grounds they had. He reported that it had to be looked at, but there is no place in the manual that says when the white ball is out the aircraft is unserviceable, as the inspectors claim it is.
MR. MILES, THE CASE PRESENTING OFFICER FOR THE MINISTER, SUMMARIZED AS FOLLOWS:
As he stated in his opening remarks, Mr. Miles said the Minister's intention was to show beyond the balance of probability that Mr. Duchin violated paragraph 210(1)(a) of the Air Regulations by flying an aircraft while the Certificate of Airworthiness was not in force. Mr. Miles believed Transport Canada has done that. Mr. Murdock has testified that he personally heard an interruption in the start sequence, and after the flight he noted that the white ball on the turbine outlet temperature indicator was indicating an over-temp condition or that a limit had been exceeded after the aircraft landed.
Mr. MacKay also testified that he personally heard an interruption in the start-up sequence and that he personally overheard Mr. Duchin tell Mr. Murdock that his finger had slipped off the switch during the start sequence. Even Mr. Duchin admitted to Mr. Grant in his statement, entered as Exhibit M-3, that his finger had slipped off the starter as he opened the fuel. Two witnesses testified that the turbine outlet temperature indicator was extensively discussed during ground school for the aircraft; therefore, Mr. Duchin must have been aware — or at the very least should have been aware — of the operation of this particular indicator.
Mr. Clack testified that the readings he extracted from the indicator showed that an over-temp condition took place during the start-up sequence and that such an action would render the aircraft not airworthy, and therefore the Certificate of Airworthiness would not be in force.
According to testimony, the white ball appeared, and the limit was exceeded by one degree; however, at the time that the white ball appears no one knows how much is exceeded; it could be ten degrees, it could be a hundred degrees. In this particular case it was one degree, and there was very little damage, if any, to the engine; however, it could have been catastrophic. Granted, in this particular case, it was not.
Mr. Miles also reminded the Tribunal that this violation is not a mens rea offence, but rather a strict liability offence; therefore, the Minister is not required to show that Mr. Duchin purposely violated the regulations, only that an offence took place and that Mr. Duchin was the offender.
Cases before the Tribunal are decided on the facts presented. The Hearing Officer is not empowered to offer legal or other advice as to the presentations of either side.
That given, this Hearing revolved around what weight may be put to the various facts in testimony.
The Case Presenting Officer stated that the case involves the principle of strict liability and not mens rea (an element of guilt or KNOWINGLY performing an act of commission or omission which would result in an offence). The case centres, in simplest terms, on whether or not an offence occurred.
On the one hand, the Minister's witnesses testified that the flight previous to that taken by the Respondent occurred without incident vis-à-vis the turbine outlet temperature gauge or any other instrumentation.
The Respondent countered that there are many instruments in various aircraft operated by Transport Canada and that he had not seen this particular variant previously; although, he seems to indicate knowledge of the existence of such an instrument during training with Flight Safety.
In the absence of any corroboration by witnesses for the Respondent, I am at a loss to find in favour of the Respondent. If Inspector Duchin did not know of the specifics of the turbine outlet temperature gauge, he still ought to have known of this aspect.
It appears simple logic that a pilot-in-command should be competent in all respects to fly that machine. If not, then he/she does so at peril of breaking the regulations, in this case invalidating the aircraft's Certificate of Airworthiness. That is what happened in the present case, in my view. Such breach may or may not relate to competence. Almost all pilots, I suspect, at one time or another have flown an aircraft without complete knowledge of the workings of every instrument and every dial and switch in the cockpit in complete and minute detail.
But the reality of being pilot-in-command requires that competence. Without it there would always be a grey area within all regulations where one may ask after the fact: "was this good enough in this case?"
There appeared no evidence at the Review Hearing that either party questioned when the white ball appeared. It apparently occurred — and without any shred of evidence to the contrary — during pre-flight of the aircraft while it was in command of Inspector Duchin.
Further, while the temperature was indicated as exceeded by only one degree on start up, the fact is irrelevant in that the recording device may have recorded an overage of just one degree or one hundred degrees or more. It cannot be ascertained. Such, apparently, is the nature of the instrument. Indeed, in testimony by Mr. Clack, he called the turbine outlet temperature gauge a "tattle-tale" instrument. That is obviously the purpose for which it was placed in the aircraft — to register an "over-temp" among other things, whether advertent, inadvertent or otherwise.
In such circumstances, and lacking any evidence of malfunction of the instrument or any other causal effect beyond the control of the pilot-in-command, I am compelled to find in favour of the Minister.
On the evidence presented at the Review Hearing and on the strict liability of the applicable regulations, I find Mr. Paul Duchin was in contravention of paragraph 210(1)(a) of the Air Regulations and confirm the assessed penalty of $250.00.
Civil Aviation Tribunal
Allister W. Ogilvie, Philip D. Jardim, Suzanne Jobin
Decision: November 12, 1996
The Tribunal dismisses the appeal and upholds the member's Review Determination. The assessed monetary penalty of $250.00 is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.
An Appeal Hearing on the above matter was held before the three designated Tribunal members, Wednesday, November 6, 1996 at 10:00 hours at the Public Works Canada BTV Boardroom, in the city of Halifax, Nova Scotia.
Mr. P. Duchin is appealing the Review Determination made by Mr. Orville Pulsifer on May 2, 1996.
In the determination at the first instance, the Tribunal member upheld the Minister's allegation to the effect that paragraph 210(1)(a) of the Air Regulations had been violated.
The grounds for appeal may be summed up as follows:
- that he did not knowingly operate an aircraft that was unserviceable;
- that the case against him was based on hearsay evidence;
- that the credibility of the Minister's witnesses was questionable in that some of their statements made under oath were false.
PRELIMINARY ISSUE – WITNESSES/NEW EVIDENCE
By letters of June 16, June 24 and October 19, 1996, Mr. Duchin gave notice to the Tribunal of his request to call a witness (or witnesses) not called at the Review Hearing. The correspondence of June 24 advised that, although he wished to introduce such witness(es), no new evidence or subjects would be introduced.
Mr. Duchin made a verbal request to introduce one witness at the commencement of the Appeal Hearing. He explained that the witness was a passenger in the aircraft on the flight that is the subject matter of these proceedings, and that as such the witness could refute evidence given by Transport Canada inspectors at the Review Hearing.
The Tribunal concluded that, as the witness was a passenger on the flight in question, his testimony should have been previously available at the Review Hearing.
The application of subsection 8.1(3) of the Aeronautics Act was brought to the Appellant's attention:
8.1(3) An appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available.
The request to call a new witness was denied as not being necessary for the purposes of the appeal.
In oral argument the Appellant further asserted that there was no damage to the aircraft because of an over temperature, and that the gauge, if it were to be believed, had revealed that the over temperature was only 1 degree.
The Appellant argued that there were inconsistencies between Transport Canada Inspectors' statements in the transcript of the Review Hearing and statements made in internal Transport Canada documents which would infer a lack of credibility of the inspectors.
Further, he had no knowledge of the significance of the ball in the turbine outlet temperature gauge, and the subject was inadequately covered, if at all, in his training. He pointed out that nothing in the manuals stated that one could not fly the aircraft after the ball dropped.
The Appellant reiterated that the two Transport Canada inspectors were wrong in their assertions as they had either misunderstood or fabricated the story.
Based on his oral arguments and his written grounds for appeal, the Appellant would like to see the appeal be allowed and the Minister's decision overturned.
The Respondent argued that Mr. Duchin was an experienced pilot, had appropriate training and ought to have been aware of the significance of the white ball appearing on start-up.
The issue was the appearance of the ball and consequences which flowed from such appearance. Once the ball had dropped, indicating an over temperature, an inspection of the aircraft was required. In absence of such inspection, the Certificate of Airworthiness became invalid.
The Respondent argued that the evidence at the Review Hearing, showed on a balance of probabilities that the ball had dropped during the start sequence of the flight in question, and that the log book showed that the Appellant had nevertheless completed such flight.
It was asserted that intent was of no relevance as the alleged offence was one of strict liability.
In closing, the Respondent argued that all elements of the Minister's case had been proven, no defence of due diligence was proffered, and the Minister had satisfied the onus of proof on a balance of probabilities.
Based on the oral arguments and a written submission, the Minister requested that the appeal be denied and the determination of the member be confirmed.
The submissions of the Appellant and the grounds for appeal raised are insufficient to cause the Appeal Panel to overturn the member's decision for the following reasons:
The Appellant argues that he did not knowingly operate an aircraft that was unserviceable. The member's finding of fact was that the Appellant did operate the flight after the turbine outlet temperature gauge indicated an over temperature during the pre-flight phase of the aircraft.
The offence in question is one of strict liability. It is not required that the offence was accomplished knowingly or that it was intended. Once the party alleging a contravention has proved the constituent elements of a strict liability offence on a balance of probabilities, the onus then shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid commission of the offence. These precepts can be found in R v. Sault Ste. Marie,  2 S.C.R. 1299 and in section 8.5 of the Aeronautics Act. The Appellant did not adduce any evidence that he exercised all due diligence.
Therefore the Appellant's argument that he did not knowingly operate an unserviceable aircraft is not sufficient to relieve him of the responsibility for having done so.
The Appellant argued that there was no damage to the aircraft due to the over temperature, which was only one degree. As well it was asserted that he had no knowledge of the significance of the ball, that the subject was inadequately covered in his training and that nothing in the flight manuals stated that no flight was to be conducted after the ball dropped.
These arguments are irrelevant in light of the nature of the strict liability offence. It is the performance of the prohibited act that is the offence not the consequence that flows from it.
The Appellant further argued that the case against him was hearsay. To so argue is to misunderstand the nature of the evidence at the initial hearing. Black's Law Dictionary defines hearsay as "A statement, other than one made by the declarant while testifying at the trial hearing offered in evidence to prove the truth of the matter asserted." A review of the record of the proceedings would indicate that the member utilized the direct evidence of Transport Canada Inspectors Murdock and MacKay to come to his decision. In any event, pursuant to subsection 37(1) of the Aeronautics Act, the Tribunal is allowed to use hearsay evidence, when proffered, as it is not bound by any legal or technical rules of evidence in conducting any matter that comes before it. This argument on appeal must then be denied.
The Appellant argued that there were reasons to question the credibility of some of the Minister's witnesses because of inconsistencies between statements made under oath and statements found in correspondence. In argument he further asserts that the inspectors may have misunderstood or fabricated parts of the testimony. It is the nature of the Appeal Hearing, pursuant to subsection 8.1(3) of the Aeronautics Act, that it be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken. The members of the Appeal Panel do not have an opportunity to view and hear the witnesses in order to enable them to make an assessment of credibility. That function must necessarily be the purview of the member at the Review Hearing. Thus he is best able to assess which witness testimony is preferable, which witness is credible.
The findings of credibility of the member on review should not normally be disturbed unless the record shows that the findings are patently unreasonable and cannot be supported by the testimony (Minister of Transport and Thomas Ritchie Phillips, CAT File No. C-0014-33).
In this case the Appeal Panel does not perceive the member's findings were unreasonable or not supported by testimony and so finds no justification for allowing the appeal on this ground.
For the above-noted reasons, the Tribunal dismisses the appeal and upholds the member's Review Determination.
Reasons for Appeal Determination by:
Allister Ogilvie, Vice-Chairperson
Suzanne Jobin, Member
Philip D. Jardim, Member
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