Decisions

CAT File No. A-1273-33
MoT File No. 6504-C-006612-27038

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Labrador Travel Air Limited, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7


Review Determination
Ronald E. McLeod


Decision: September 4, 1996

I find Labrador Travel Air Limited did contravene subsection 12(3) of the Air Carriers Using Small Aeroplanes Order. The Minister's assessment of a monetary penalty of $500.00 is confirmed. This amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.

The Review Hearing on the above matter was held Tuesday, August 20, 1996 at 10:00 hours at the Aurora Hotel in the city of Goose Bay, Labrador.

BACKGROUND

The Notice of Assessment of Monetary Penalty issued to Labrador Travel Air Limited reads as follows:

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):

The Air Carriers Using Small Aeroplanes Order (ANO VII, No.3) s. 12(3) in that during the period from the 15th day of May, 1995 to the 7th day of August, 1995, did release for return to service and operate an aircraft, to wit: Partenavia P68C aircraft bearing Canadian nationality and registration marks C-GJSH while not complying with an Airworthiness Directive, namely Airworthiness Directive 93-02-05 which was applicable to engine serial number L-23709-51A installed on C-GJSH and did thereby commit an offence contrary to section 7.6(2) of the Aeronautics Act, R.S., c. A-3, s. 1 as amended.

The Respondent was appearing without the benefit of counsel. Before proceeding with the case, a brief overview of how the hearing would be conducted was given for the benefit of the Respondent.

The Applicant would present the Minister's case following which the Respondent would present his defence. Opportunity for cross-examination, rebuttal and summation for both sides would be allowed.

I enquired of the Applicant if full disclosure of all evidence to be presented had been given to the Respondent, and the reply was in the affirmative. The Respondent indicated he had an evidence package in his possession but had only received it the evening prior to the hearing. He indicated the package had been sent to the Operations Manager, Irving Powell, who was away at the time and the package had been overlooked. The mailing date on the package was August 8, 1996. The Respondent indicated he was willing to proceed with the hearing.

APPLICANT'S PRESENTATION

Mr. Allan Sharpe was sworn. He stated that as an Airworthiness Inspector for Transport Canada he had conducted an audit of Labrador Travel Air Limited August 7, 1995. Mr. Sharpe was the sole auditor. As a result of that audit he discovered a noncompliance of an Airworthiness Directive (AD).

The noncompliance AD was in reference to an aircraft Partenavia, P68C bearing Canadian registration marks C-GJSH and registered to Labrador Travel Air Limited. The remainder of Mr. Sharpe's testimony primarily was concerned with the introduction of a number of exhibits. The first exhibit, M-l, was a copy of a certificate of registration of aircraft (C of R). This showed C-GJSH was a Partenavia, P68C aircraft registered to Labrador Travel Air Limited dated May 13, 1992. A copy of a certificate of airworthiness (C of A) for C-GJSH dated October 28, 1987 was introduced as Exhibit M-2.

Both M-l and M-2 and a number of the subsequent exhibits introduced were photocopies of originals. These photocopies were all stamped with a statement saying "Certified True Copy" and then initialled and dated. Unfortunately the initials on most of the photocopies were illegible. In addition there was no indication as to the identity of the signatory.

A copy of an audit finding against Labrador Travel Air for noncompliance was introduced as Exhibit M-3. This audit finding originated with Mr. Sharpe and was confirmed by Mr. Sharpe under oath.

The audit finding was in regards to a nonconformance with Maintenance Control Manual section 4.1. This states that: "Upon receipt of an A.D. the Quality Manager shall ensure compliance is met and the required log entries are completed." Specifically, FAA AD 93-02-05 had never been carried out on the left hand engine installed on aircraft C-GJSH. This aircraft had flown 139 hours since recurring AD was last carried out on the right engine, which was done during an engine overhaul.

To support the findings of Exhibit M-3, sections 4.0, 4.1 and 4.2 of Labrador Travel Air's Maintenance Control Manual were introduced as Exhibit M-4.

Section 4.1, being Aircraft Inspection Program, outlines proper procedure to be followed regarding all applicable AD's.

The following exhibit, M-5, pertained to the mandatory service bulletin 342B issued by engine manufacturer Textron Lycoming. This referred to fuel lines and support clamp inspection and installation. Among applicable engines subject to this bulletin was IO-360-A1B6, as noted on page 7 of 33 of the service bulletin number 342B.

As a result of the mandatory service bulletin, Exhibit M-5, an Airworthiness Directive was issued by Textron Lycoming as number 342A(B) effective June 14, 1993. This was introduced as Exhibit M-6. The Airworthiness Directive was directed toward the inspection of the fuel injector lines. In order to comply with the AD, inspection of the fuel lines had to be done within 25 hours service time after the effective date of the AD and thereafter at each annual inspection, at each 100-hour inspection, at each engine overhaul and after any maintenance had been performed on the engine where the fuel injector fuel lines had been disconnected, moved or loosened. The fuel injector fuel lines were to be inspected in accordance with Textron Lycoming service bulletin number 342A dated May 26, 1992, and any fuel injector fuel line that did not meet all the return to service conditions specified in that service bulletin had to be replaced as necessary.

Exhibit M-7 is a computerized printout which identified C-GJSH Partenavia P68C as having two engines as follows:

  • both engines Avco Lycoming
    Model IO-360-AlB6, Serial Number L23709-51A
    Model IO-360-AlB6, Serial Number L23717-51A.

An annual airworthiness information report which was attested to by Mr. Sharpe under oath to be correct was then introduced as Exhibit M-8. This report also confirmed that aircraft C-GJSH was equipped with Lycoming engines model IO-360-AlB6, serial numbers L23709-51A and L23717-51A.

Exhibit M-9 was then introduced as a photocopy of the engine log for Avco Lycoming engine model IO-360-AlB6, serial number L-23709-51A. The previous exhibits had confirmed this as the left hand engine of Partenavia P68C aircraft with Canadian marks C-GJSH, registered to Labrador Travel Air. The Case Presenting Officer for the Minister as well as Mr. Sharpe commented that they were only able to obtain the engine log for the left engine, despite a formalized request for both engine logs through a registered letter.

I asked Mr. Sharpe why he did not make copies of the engine logs at the time of the audit, and he answered that a copier was not available at the audit site. Part of Exhibit M-9 was a portion of the engine log pertaining to AD's. This page is titled "Record of Engine Airworthiness Directives (AD's) and Service Bulletins (S-B)". This page showed no entries. Mr. Sharpe did mention that, although the completion of the AD's was supposed to be entered on this page, sometimes entries were put in with the regular maintenance record. Again no evidence or mention of the AD's was seen on the maintenance record pages submitted as part of the engine log. Mr. Sharpe stated that this engine had never had the AD done on it and the second engine which had been overhauled was also over time for the AD inspection.

The next exhibit introduced was M-10, which was a copy of the operating certificate issued by Transport Canada to Labrador Travel Air Limited. Mention was made of the fact that the certificate was subject to the observance and performance by the Air Carrier of the conditions set out in this certificate and to compliance by the Air Carrier with the applicable provisions of the Aeronautics Act, the Air Regulations and Air Navigation Orders made thereunder.

This concluded Mr. Sharpe's initial testimony.

CROSS-EXAMINATION

Mr. Powell mentioned that Mr. Sharpe's testimony regarding availability of a copier at Labrador Travel Air was an error and that in fact they did possess a copier. He asked Mr. Sharpe whether he remembered receiving copies of certain documents that he had requested while the audit was taking place. Mr. Sharpe admitted that, yes, he had received some copies. I asked Mr. Sharpe if he would like to correct his previous testimony regarding his comment that there was no copier available at Labrador Travel Air. He initially could not remember making that comment but on review of his previous testimony he agreed that the comment was an error and corrected it.

RESPONDENT'S PRESENTATION

Mr. Powell was sworn. Mr. Powell stated he was President of Labrador Travel Air Limited and was a pilot with considerable experience having greater than 14,000 hours flying time. He commented that he would never do anything to jeopardize flight safety.

Mr. Powell stated that he is sure his AME inspected the fuel lines as part of the routine maintenance but presumably was not aware that there was an AD to be completed on the inspection. His explanation for this was that they had presumably not received the letter or information regarding this AD and therefore were not aware of it.

Mr. Powell then commented upon the supplying of only one engine log. He stated that he had spoken to someone at Transport Canada in October of 1995, he was not sure who, but they had advised him that he only had to send the one engine log and not both.

On more than one occasion Mr. Powell made uncomplimentary remarks concerning Transport Canada's actions against him necessitating my terminating his remarks. Mr. Powell mentioned under oath that he had been subject to previous Transport Canada action for failure to have bilingual placards in his aircraft and felt that Transport Canada were unfairly penalizing him and not other small aircraft operators in the region.

CROSS-EXAMINATION

Mr. Riopka asked Mr. Powell why they had not responded to Transport Canada's initial written request to supply the engine logs to them in August 1995. Mr. Powell stated that he was unaware of this letter which probably was addressed to his brother who was the Operations Manager.

Mr. Riopka then stated that failure to receive the engine logs after the initial letter of demand of August 1995 necessitated the sending of a registered letter dated September 6, 1995 and entered as Exhibit M-11. This letter requested that Labrador Travel Air, in accordance with paragraph 808(1)(d) of the Air Regulations, submit to Transport Canada the engine logs and aircraft journey log for Partenavia P68C aircraft bearing registration marks C-GJSH. These logs were to be supplied before September 27, 1995. Mr. Riopka indicated that they did not receive the applicable logs on that date. This necessitated further calls to Labrador Travel Air in October resulting in the engine log for the left engine being received by Transport Canada on October 30, 1995. Mr. Powell stated that the registered letter was addressed to Mr. Irving Powell who was out of the province at the time, and perhaps the letter had been overlooked. I mentioned to Mr. Powell that this was a registered letter and would have had to been signed for upon receipt. Mr. Powell offered no comment.

APPLICANT'S SUMMATION

Mr. Riopka's summation was that the Minister has shown that Labrador Travel Air was the owner of an aircraft, Partenavia P68C, bearing registration marks C-GJSH whose engines were subject to an AD by the engine manufacturer. The Minister has also shown that the requirements of this AD were not completed by Labrador Travel Air.

Mr. Riopka indicated that this AD was concerned with flight safety and the possibility for in-flight fire caused by disruption in the fuel lines. The seriousness of this is reflected in the fact that the AD is a recurring AD requiring ongoing compliance.

RESPONDENT'S SUMMATION

The Respondent offered no summation.

DISCUSSION

The Minister has demonstrated that Labrador Travel Air in fact is the owner of aircraft Partenavia P68C with Canadian registration C-GJSH. Transport Canada has also shown that this aircraft is equipped with Avco Lycoming engines which are subject to a service bulletin and subsequent Airworthiness Directive which came into effect June 14, 1993. The Minister has also demonstrated that there is no written record to indicate that Labrador Travel Air has complied with this AD.

The Minister, during the presentation, also indicated difficulty in obtaining appropriate evidence, i.e. the engine logs from Labrador Travel Air.

Mr. Powell was unable to offer any plausible explanation as to why the AD was not complied with. His comment that they presumably had not received the letter concerning this AD may be the case; nevertheless, the onus is with the aircraft operator or owner to be aware of all AD's applicable to their aircraft.

This case is relatively straightforward. The Minister has shown that the Respondent is in violation. The Respondent also has not offered any plausible explanation as to why they did not comply with the AD. Perhaps if the Respondent's AME had given testimony that the work was done, although it was not entered in the log, then this may have modified the seriousness of the violation. I, therefore, wonder why the Respondent requested the hearing if he was not going to provide a vigorous defence or at least plausible reasons as to why they did not comply with the AD.

Mr. Powell in his presentation made numerous disparaging comments toward Transport Canada. He also indicated that he had been subjected to previous Transport Canada enforcement action. Labrador Travel Air's lack of compliance with requests for engine logs would also suggest that Labrador Travel Air failed to appreciate the seriousness of the allegation and violation.

DETERMINATION

Considering the evidence presented by both parties, I find Labrador Travel Air Limited did commit an offence contrary to subsection 7.6(2) of the Aeronautics Act, R.S., c. A-3, s. 1 as amended.

The Minister's assessment of a monetary penalty of $500.00 is confirmed.

Dr. Ronald E. McLeod
Member
Civil Aviation Tribunal