TATC File No. P-2644-12
MoT File No. 5008-FLSD
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Odyssey Air Ltd., Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)b)
Decision: July 29, 2003
A review hearing on the above matter was held March 11, 2003 at 10:00 hours at the Federal Court of Canada, in Vancouver, British Columbia.
A Notice of Suspension of the certificate of airworthiness ("C of A") of DHC-2 (Beaver) aircraft C-FLSD was originally issued by Transport Canada on August 14, 2002 (the "First Notice"). After a complaint to upper management at Transport Canada made by Mr. Wirth, principal of Odyssey Air Ltd., Transport Canada rescinded the First Notice on September 30, 2002, and replaced it with a Notice of Suspension dated September 30, 2002 (the "Second Notice"). The document holder requested in writing a Tribunal review of both the First and Second Notices, although at the hearing he recognized that the Tribunal is limited to a review of the Second Notice because the first had been rescinded.
Subsection 7.1(8) of the Aeronautics Act:
(8) On a review under this section of a decision of the Minister to suspend, cancel or refuse to renew a Canadian aviation document, the member of the Tribunal conducting the review may determine the matter by confirming the suspension, cancellation or refusal to renew or by referring the matter back to the Minister for reconsideration.
The Canadian Aviation Regulations (CARs):
571.02 (1) Subject to subsection (2), a person who performs maintenance or elementary work on an aeronautical product shall use the most recent methods, techniques, practices, parts, materials, tools, equipment and test apparatuses that are
(a) specified for the aeronautical product in the most recent maintenance manual or instructions for continued airworthiness developed by the manufacturer of that aeronautical product;
(b) equivalent to those specified by the manufacturer of that aeronautical product in the most recent maintenance manual or instructions for continued airworthiness; or
(c) in accordance with recognized industry practices at the time the maintenance or elementary work is performed.
(2) A person who performs maintenance or elementary work pursuant to subsection (1) shall ensure that any measuring device or test equipment used
(a) meets the specifications of the manufacturer of the aeronautical product with respect to accuracy, taking into account the intended use; and
(b) where calibration requirements are published by the manufacturer of the measuring device or test equipment, is calibrated in conformity with a national standard.[as worded before 2003-06-01]
(3) Except if the work is performed in respect of an aircraft that is operated under a special certificate of airworthiness in the owner-maintenance or amateur-built classification, no person shall supervise, or perform without supervision, an inspection using a method set out in column I of an item of Schedule I to this Subpart unless the person holds the personnel certification set out in column II of that item.
571.06(1) Except as provided in subsection (5) and in the case of aircraft that are operated under a special certificate of airworthiness in the owner-maintenance classification, a person who signs a maintenance release in respect of a major repair or major modification on an aeronautical product shall ensure that the major repair or major modification conforms to the requirements of the relevant technical data
(a) that have been approved or the use of which has been approved within the meaning of the term "approved data" in section 571.06 of the Airworthiness Manual; or
(b) that have been established within the meaning of the term "specified data" in section 571.06 of the Airworthiness Manual.
(2) Except as provided in subsection (5), a person who signs a maintenance release in respect of a repair or modification, other than a major repair or major modification, shall ensure that the repair or modification conforms to the requirements of the relevant technical data within the meaning of the term "acceptable data" in section 571.06 of the Airworthiness Manual.
571.07 (1) No person shall install a new part on an aeronautical product unless the part meets the standards of airworthiness applicable to the installation of new parts and, subject to subsections (2) and (3), has been certified in accordance with Chapter 561 of the Airworthiness Manual.
571.08 (1) No person shall install a used part on an aeronautical product, other than aircraft that are operated under a special certificate of airworthiness in the owner-maintenance or amateur-built classification, unless the part meets the standards of airworthiness that are applicable to the installation of used parts and are set out in Chapter 571 of the Airworthiness Manual and
(a) is an airworthy part that has been removed from an aircraft for immediate installation on another aircraft;
(b) is an airworthy part that has undergone maintenance for which a maintenance release has been signed pursuant to paragraph 571.11(2)(c); or
(c) has been inspected and tested to ensure that the part conforms to its type design and is in a safe condition, and a maintenance release has been signed to that effect.
571. 12 A person who performs a major repair or major modification on an aeronautical product or installs on an aircraft a part that has undergone a major repair or major modification shall report the action to the Minister in accordance with the procedures specified in section 571.12 of the Airworthiness Manual.
Definition of "acceptable data" in section 571.06 of the Airworthiness Manual:
"acceptable data" - includes:
(a) drawings and methods recommended by the manufacturer of the aircraft, component, or appliance;
(b) Transport Canada advisory documents; and,
(c) advisory documents issued by foreign airworthiness authorities with whom Canada has entered into airworthiness agreements or memoranda of understanding such as current issues of Advisory Circular 43.13-1 and -2 issued by the FAA, Civil Aviation Information Publications (CAIPs) issued by the Civil Aviation Authority (CAA) of the United Kingdom, or Advisory Circular, Joint (ACJs) issued by the Joint Aviation Authority (JAA).
The Minister of Transport first called witness Mr. Gordon Swanson. In June 2002, Mr. Swanson was assigned to be a member of a Transport Canada maintenance audit team reviewing the technical records of aircraft that had been worked on by a company called Pacific Aircraft Salvage ("P.A.S."). Mr. Swanson testified that P.A.S. had been in the business of rebuilding damaged DHC-2 aircraft. Transport Canada had become concerned about deficiencies in P.A.S.'s maintenance records. Odyssey Air's Beaver C-FLSD was one of a number of aircraft that had been damaged in an accident and rebuilt by P.A.S. In the year 2000, Transport Canada had issued a C of A for C-FLSD after it was rebuilt.
At the time of the hearing, Mr. Swanson said that 12 notices of inspection of aircraft had been issued in respect of aircraft worked on by P.A.S., and two notices of suspension had been issued, one being that concerning C-FLSD. He testified that there were a number of outstanding investigations of other aircraft.
Mr. Swanson said that the main concern with P.A.S. was with the documentation surrounding the replacement of parts and the installation of modifications. There were also some concerns about physical workmanship. P.A.S. was unable to meet the requirements of a corrective action plan set out by Transport Canada. Ultimately, Transport Canada cancelled P.A.S. approvals to do maintenance work.
In May 2002 Transport Canada contacted Mr. Wirth, the principal of Odyssey Air, and advised him to make C-FLSD's records ready for inspection. Mr. Wirth agreed, met with Transport Canada in Penticton, and made plans for Transport Canada to physically inspect the aircraft and its records on August 1, 2002.
On August 1, 2002 in Penticton, Mr. Swanson and Mr. Moscrop of Transport Canada met with two non-destructive testing technicians ("NDTs") that they had hired from Kelowna to measure the skin of C-FLSD. They asked Mr. Wirth for the complete technical records of C-FLSD. He gave them what he had and told them that the technical records for the aircraft had been lost between May and August 2002. Those records had been partially recreated. Mr. Swanson inspected and photographed the aircraft, took notes, and attempted to identify the modifications that had been done on the aircraft, so that when he looked at the records he could see what they said about the modifications. Mr. Moscrop spent his day looking through the records. The NDTs spent the day on the aircraft and later provided Mr. Swanson with a report.
Mr. Swanson testified that he got a lot of data that day, some of which confirmed concerns raised by the previous P.A.S. audit, but he said he could not make decisions at that point until he analyzed the data. Mr. Swanson took one month to analyze his own information as well as that provided by Mr. Moscrop and the NDTs. He said he ended up with 90-95 items of non-conformance, some of which he said were definite safety items. He made a report which he gave to Mr. Wirth. He also issued a Notice of Suspension of C-FLSD's C of A, grounding the aircraft due to safety concerns.
Mr. Swanson met with Mr. Wirth to discuss this First Notice. Mr. Wirth then contacted upper management at Transport Canada. It was decided that because of the vast number of non-conformities, some risk management would be applied, and the First Notice would be rescinded and a new one issued, in fairness to the owner. The conditions for reinstatement of the C of A were added to the second notice to assist the owner in dealing with the most significant safety items.
The appendix to the Second Notice listed 12 grounds for suspension with corresponding conditions for reinstatement. At the hearing, Mr. Swanson gave detailed evidence as to each of the 12 items, describing his safety concerns with respect to each of the items.
Under cross-examination, Mr. Swanson admitted he was Superintendent of Aircraft Maintenance and Manufacturing for Transport Canada, based in Richmond. He said he keeps himself involved in inspections but that is not the main part of his job. He confirmed his earlier evidence regarding the dates and number of items contained in the First and Second Notices. He admitted that ultimately, Odyssey Air complied with the 12 requirements set out in the Second Notice. He also confirmed his earlier evidence that Notices of Suspension were issued only in respect of two aircraft that P.A.S. had worked on, C-FLSD and one other, although problems were identified on over 70 aircraft, and Notices of Suspension were issued on approximately 12 other aircraft. Investigations were ongoing.
Mr. Swanson admitted he had been given an affidavit from an aircraft maintenance engineer ("AME"), Mr. Andrews, attesting to the fact that Mr. Andrews had lost C-FLSD's technical records. He admitted that the inspection he did on August 1, 2002 was based on the recreated technical records of C-FLSD provided by Mr. Wirth, since the originals had been lost. Mr. Swanson also admitted he knew that some of C-FLSD's records were on file at Transport Canada. However he maintained that the CARs require an aircraft owner to have custody and control of all records, and that he is to perform his investigation of an aircraft based on the records provided by the owner. He said that later he saw some records in the Transport Canada file that enabled him to remove some items from his list of deficiencies with respect to C-FLSD. He also said that although on August 1 he was assessing the owner's technical records only, when he issued the First Notice it included all records available. Mr. Swanson's position was that Transport Canada does not give an owner full access to his aircraft file unless he completes an Access to Information form, which form Transport Canada gave to Mr. Wirth.
Mr. Swanson admitted he did not contact Mr. Holmes, the AME who had originally issued C-FLSD's C of A in May, 2000. He said it was not unusual that a C of A would have been issued and then deficiencies found in a later audit, even though the aircraft had undergone no further work. He said this is because the AME issuing the C of A would have placed a lot of weight on certification by the AMEs who did the work on the aircraft.
Also under cross-examination, Mr. Swanson said that in narrowing the items of non-conformance from 95 down to 12, they confined themselves to the most important, primary structural items. He said they tried to condense the material and pick items that would be illustrations or examples of non-conformance from the First Notice.
Mr. Wirth cross-examined Mr. Swanson in detail on each of the 12 items listed in the Second Notice and the steps taken by Odyssey Air to successfully resolve these issues. Mr. Swanson explained again his reasoning on each of the issues and how they were rectified by the owner.
On re-examination, Mr. Swanson explained that after discussions within Transport Canada, he understood the surprise to Mr. Wirth upon receiving the First Notice with 95 items of non-conformance on a freshly overhauled aircraft. He explained that the Second Notice was made in a good faith attempt to condense the problems, to make the Notice less overwhelming to the owner, and to more clearly tell the owner how he could get C-FLSD's C of A reinstated.
Mr. Wirth then testified as the owner of Odyssey Air, a small company formed for the purpose of buying wrecked aircraft and having them rebuilt. P.A.S. was one of the companies Odyssey used to rebuild aircraft. Mr. Wirth had P.A.S. rebuild C-FLSD two years after he imported it from Alaska. He said P.A.S. took two years to rebuild the aircraft because the company was not very diligent. The rebuild was complete in the spring of 2000 and a C of A was issued by Mr. Holmes, an approved maintenance organization ("AMO") in Victoria. Mr. Holmes was given the entire aircraft records to review at that time and upon issue of the C of A, Mr. Wirth paid $200,000 to P.A.S. for the rebuild. No structural work was done on the aircraft after that time, except that floats were installed.
On May 5, 2001 an annual inspection was done on the aircraft. On July 10, 2002, a second annual inspection was done. Mr. Andrews of Kittyhawk Aviation was to do the July 2002 annual inspection. Accordingly, Mr. Wirth had left all C-FLSD's records and logbooks with him. The only things Mr. Wirth retained were supplemental type certificates ("STC") and a bag of maintenance release tags. When Mr. Wirth returned from holidays, Mr. Andrews told him he had lost the logbooks, had tried to find them, and could not. So Mr. Wirth had to recreate the logbooks before the annual inspection could be done. He called Mr. Manyk of Transport Canada, who told him what to do to recreate the records.
Mr. Wirth said he discovered later that when Mr. Holmes had done the C of A, he had photocopied all C-FLSD's records that existed at that time. However, in July 2002, Mr. Wirth did not know this and had to run around and try to recreate everything.
The new journey log that Mr. Wirth created included an affidavit from Mr. Andrews saying he had lost all the records. He asked Mr. Andrews to try to get the records from Transport Canada but was told he could not get them. Accordingly, all Mr. Wirth had when Mr. Swanson arrived to do the inspection of C-FLSD on August 1, 2002, were the records he had managed to recreate.
Mr. Swanson informed Mr. Wirth mid-August that his aircraft was grounded. Mr. Wirth testified that when he received the First Notice with 95 items of non-conformance, he was in a state of shock and disbelief. He had to cancel a leasing arrangement he had made for the aircraft. The aircraft was grounded from August 14 to December 14, 2002, and he was unable to use or sell the aircraft during that time period.
Mr. Wirth called and met with Mr. Swanson and Mr. McNab of Transport Canada to go over the list of items from the First Notice. He said at the end he was confused and did not know how to address the many items. Mr. Wirth testified that Mr. Swanson told him it would be difficult to get the C of A back. Although Mr. Swanson said he would assist, he denied Mr. Wirth access to his documents. A written request to the same effect to Mr. McNab was also denied, although Mr. McNab provided Mr. Wirth with an Access to Information form. Mr. Wirth declined to pursue that route to get his aircraft's documents.
On August 21, Mr. Wirth called Ottawa and registered a complaint against Mr. Swanson describing the 95-item First Notice. On August 22 he wrote a letter to Mr. Sherritt, the Director of Aircraft Maintenance and Manufacturing for Transport Canada in Ottawa. He then received a call from Transport Canada advising him that conduct of his file had been transferred to another inspector, Mr. Labrecque. Mr. Wirth met with Mr. Labrecque on September 23 and went through the 95 items. Mr. Wirth testified that Mr. Labrecque told him he would prepare a list of real items.
From August 21 to September 23 Mr. Wirth had tried to resolve some of the 95 items. He had an NDT test the skin surfaces of C-FLSD on September 19, 2002. He said many errors were found in the NDT report that Transport Canada had relied upon. Mr. Wirth said he did not find this surprising since he had talked to the Kelowna NDTs and found there were about five inherent inaccuracies in their testing. Also, Mr. Wirth stated that even though some of the discrepancies they found were immaterial, Mr. Swanson relied on them to make allegations of nonconformity.
Mr. Wirth testified he had also met with P.A.S. to try to address some of the 95 issues. Mr. Wirth thought that all the issues could be addressed by paperwork. He spent two-three days at P.A.S. He met with Mr. Labrecque on September 23 and was told that Transport Canada was going to rescind the First Notice. The 95 issues were distilled down to 12.
Mr. Wirth stated his opinion that there were only five real issues with respect to the aircraft. He said if those issues had been identified on August 14, he could have had his aircraft back much sooner.
Mr. Wirth said that after receiving the Second Notice, he requested the C of A back because it involved only documents. Mr. Wirth said he had to get drawings from Bombardier that showed how to make a part, and had to agree not to copy it and to return it. In other words, it was not even possible to have such a drawing retained as part of an aircraft's technical records. It cost him $750 to get the drawings to support the repair. These drawings were referred to in conformity certificates.
Mr. Wirth said that the only physical work that was done on the aircraft was that a couple of rivets were replaced on wing panels. Mr. Wirth checked P.A.S. records and concluded that the original rivet work had been done long before and had survived two annual inspections.
Under cross-examination, Mr. Wirth admitted that he was offered the Access to Information process to get his aircraft records, but declined to take that route. He said he believed that that is not the only way to get records, but that the owner is allowed to have his aircraft's records. He said when he called Ottawa about it they sent the records the next day. He also pointed out that he was not offered the Access to Information form until after he received the First Notice with 95 items. He said Mr. Manyk gave him a list of the airworthiness directives (ADs) but he eventually found out from Mr. Holmes that all the aircraft records were in the Transport Canada file.
Mr. Wirth admitted that alternate skins had been installed in one area of the aircraft, and that Mr. Swanson identified differences from the DHC-2 manual with respect to the repair and replacement of those skins.
I have reviewed the total of 40 documents that were submitted as evidence at the hearing.
Mr. Mears made submissions on behalf of Transport Canada. He said that the principles of airworthiness require that repairs and replacement of parts be documented and workmanship must be shown to be of good quality. He recognized that the unsuspecting owner in this case was put in a difficult situation. A C of A had been issued for his aircraft following work done by an AMO called P.A.S., and the issuance of that certificate was based on the certifications of AMEs working for P.A.S. Transport Canada undertook an audit of P.A.S. and found that the records for the owner's aircraft in this case, C-FLSD, were deficient and cast safety concerns. Transport Canada's certification of P.A.S. as an AMO was ultimately cancelled by Transport Canada.
Mr. Mears submitted that Transport Canada has a duty to protect the public and said if C-FLSD had not been grounded, Transport Canada could have been seen to have been negligent. He recognized that it took the owner time and money to put the aircraft right, and now that he has done that, he has the assurance that it is right. Finally, Mr. Mears submitted that Transport Canada acted reasonably and took appropriate action in this matter.
Mr. Wirth made submissions on behalf of Odyssey Air. He recognized that it was difficult to address the issues he was concerned about because the Tribunal was limited in its review to the Second Notice. He submitted that he had been unfairly dealt with by Transport Canada. He reiterated that the First Notice contained 95 items. He said it was rescinded by Transport Canada while it was under appeal.
Mr. Wirth had expected that his aircraft would be safe after P.A.S. had completed its work and a C of A had been issued for C-FLSD. He had paid $200,000 to P.A.S. upon issuance of the C of A. Yet, after another inspection of his aircraft by Transport Canada, 95 issues were raised about the safety of his aircraft and the C of A was suspended. Realizing he could not deal with 95 issues, Mr. Wirth had to resort to complaining to Ottawa, and he ended up with a second Notice of Suspension listing 12 items. Because of the first suspension, Mr. Wirth lost a lease of his aircraft, had to take it off the market, and lost the use of his aircraft for months. His view was that there was nothing in the 95 items that affected safety. His view was that had the inspection been done properly in the first place, so that there were only the 12 items listed, the aircraft would never have been grounded.
Mr. Wirth requested that the 95 issues be struck from the record of Odyssey Air and that the $410 he had to pay to Transport Canada to get C-FLSD's C of A reinstated be paid back to him. He said he was not asking anything in respect of the second Notice of Suspension particularly, but he wanted the First Notice off his record. However, when I asked him what he wanted in respect of the Second Notice, he added that he actually also wanted the Second Notice removed from his aircraft's record, since he thought that the aircraft should not have been grounded for the items involved.
Mr. Wirth queried how one could work in an industry when one official approves an aircraft's C of A, then another finds 95 items wrong with the aircraft and suspends the C of A, then another finds only 12 items wrong with the aircraft. He wondered if there were different standards by which different inspectors worked.
As Mr. Wirth recognized in his submissions, I am limited to a review of the Second Notice only, since the First Notice has already been cancelled by Transport Canada. Nevertheless Mr. Wirth has asked that the record of the First Notice be removed from his aircraft's records. I would assume that has already been done, since the First Notice no longer exists. If not, I can only suggest to Mr. Wirth that he pursue the issue further with Transport Canada.
Mr. Wirth's position is that the Second Notice should also be removed from his aircraft's record, since he thought the aircraft should not have been grounded for the items involved. Mr. Wirth's evidence was that the only physical repair done on the aircraft prior to reinstatement of the C of A was the replacement of a couple of rivets on the wing panel. In his testimony, Mr. Wirth stated his opinion that there were only five "real" items described in the Second Notice.
Undoubtably, Mr. Wirth and Odyssey Air have been the victims of an unfortunate combination of circumstances surrounding the overhaul and maintenance of C-FLSD. A number of persons or organizations contributed to this series of events. The company that salvaged the aeroplane, P.A.S., failed a Transport Canada audit and ultimately had its AMO certification cancelled. The evidence shows that P.A.S.' documentation of its work was generally inadequate and failed to meet the standards required by the CARs. Further, the AME assigned to do C-FLSD's annual inspection in July 2002 lost the aircraft logbooks. Then, in my view, Transport Canada initially acted unreasonably and unfairly by failing to provide Mr. Wirth with all of C-FLSD's documentation held in Transport Canada files, once they discovered the aircraft records had been lost. The First Notice issued by Transport Canada, containing 95 items, was apparently insupportable, since they rescinded the First Notice and replaced it with the 12-item Second Notice.
I have reviewed the evidence as to each of the 12 grounds for suspension set out in the second Notice as well as the CARs sections referred to for each item. My findings as to each of the 12 grounds are as follows, and are numbered in the same way as they are in the appendix to the Second Notice.
1. CARs 571.06(2) requires that "a person who signs a maintenance release [...] shall ensure that the repair or modification conforms to the requirements of the relevant technical data within the meaning of the term 'acceptable data' in section 571.06 of the Airworthiness Manual."
Airworthiness Manual Standard 571.06(1) defines "acceptable data" as including "drawings and methods recommended by the manufacturer of the aircraft [...]."
There was no evidence to show that the person who signed the maintenance release in respect of the skins on C-FLSD did not ensure that the repair or modification conformed to requirements, as required by CARs 571.06(2). Rather, the evidence was that the skin thickness did conform to the manufacturer's requirements. CARs 571.06(2) does not appear to require that reference be made to "relevant technical data" as alleged by item 1. Therefore I find the evidence did not prove a violation of CARs 571.06(2).
2. Documentation required by CARs 571.07 or 571.08 was missing from C-FLSD's records. This issue was resolved by the document holder providing Transport Canada with the required documents. The evidence proved a violation in this case because the documentation was required by the CARs sections referred to in the second ground for suspension.
3. This item was proved by the evidence and resolved in the same manner as ground for suspension number 2.
4. No CARs section was referred to in the appendix item number 4, so I can find no violation has been made out with respect to that alleged ground for suspension.
5. As with items 2 and 3, required parts documentation had been missing so there was a violation with respect to this item. It was resolved by the document holder providing the required certifications.
6. I find that a violation was proved by the evidence because the work order referred to an incorrect drawing. Therefore it appeared that the signatory for the installation did not ensure that the installation conformed to the requirements of the relevant technical data as required by CARs 571.06. However I see nothing in that section that would require retention of a drawing, particularly when the manufacturer does not allow people to retain the drawing as part of an aircraft's technical records.
7. That the failure to carry out a required static balance check amounted to a violation of CARs 571.02 was not disputed by the document holder. I find the evidence proved a violation of that section of the CARs.
8. -10. These items related to the installation of floats, steps and water rudders on C-FLSD. There was no evidence that the signatory did not ensure that the manufacturer's requirements were met as required by CARs 571.06(1). However, on the evidence I find there was a violation of CARs 571.12 because the installations were not reported to Transport Canada.
11. CARs 571.08 requires a maintenance release in this instance which was not in the records. Therefore there was a violation of that section, that ultimately was rectified by the document holder producing a maintenance release.
12. There was a violation of CARs 571.02 because some rivets did not meet the required standard. However, the evidence was that only a couple of rivets were replaced.
I find that the evidence has proven CARs violations in respect of grounds of suspension 2, 3, 5, 6, 7, 8, 9, 10, 11 and 12, but not in respect of items 1 and 4. I also accept Mr. Mears' submission that the principles of airworthiness require that repairs and replacement of parts be documented and workmanship must be shown to be of good quality. The evidence shows there were deficiencies with respect to C-FLSD in that regard, some of which amounted to CARs violations.
On the other hand, from the evidence it appears that while there were deficiencies in documentation, there were no actual safety hazards resulting from the condition of aircraft C-FLSD. Further, I agree with Mr. Wirth that Transport Canada acted unfairly by failing to provide him with all available records once they knew that his own aircraft records had been lost by another party. I think this case also raises questions of credibility and fairness to aircraft owners, when a 95-item Notice of Suspension can be transformed into a 12-item Notice of Suspension, and still no actual problem with the aeroplane is proved.
Considering all the circumstances, I am not satisfied from the evidence that the proven grounds for suspension, as set out in the Second Notice, were reasonably sufficient to require a suspension of C-FLSD's C of A.
I refer the Minister's decision to issue the Notice of Suspension dated 2002/09/30 in respect of aircraft C-FLSD back to the Minister for reconsideration.
Transportation Appeal Tribunal of Canada
- Date modified: