Decisions

TATC File No. P-2777-41
MoT File No. EMS 49054

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

North Vancouver Airlines Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 605.84(1)(c)


Review Determination
Sandra Lloyd


Decision: September 30, 2003

The Minister has proved that North Vancouver Airlines Ltd. has contravened paragraph 605.84(1)(c) of the Canadian Aviation Regulations. The penalty of $5,000.00 assessed by the Minister is upheld. This amount must be paid to the Receiver General for Canada and received by the Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held August 20, 2003 at 10:00 hours at the Federal Court of Canada, in Vancouver, British Columbia.

BACKGROUND

Transport Canada Civil Aviation Enforcement assessed a $5,000.00 penalty against North Vancouver Airlines Ltd. [hereinafter NVA]. The Minister of Transport alleges that NVA violated paragraph 605.84(1)(c) of the Canadian Aviation Regulations (CARs), in that it permitted twin Beech aircraft C-GNVB to take off on approximately 365 flights when A.D. 95-03-03 (hereinafter the A.D.) was overdue for compliance with respect to C-GNVB's left propeller.

THE LAW

Paragraph 605.84(1)(c) of the CARs:

605.84 (1) Subject to subsections (3) and (4), no person shall conduct a take-off or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, other than an aircraft operated under a special certificate of airworthiness in the owner-maintenance or amateur-built classification, unless the aircraft

[...]

(c) except as provided in subsection (2), meets the requirements of any notices that are equivalent to airworthiness directives and that are issued by

(i) the competent authority of the foreign state that, at the time the notice was issued, is responsible for the type certification of the aircraft, engine, propeller or appliance, or

(ii) for an aeronautical product in respect of which no type certificate has been issued, the competent authority of the foreign state that manufactured the aeronautical product.

EVIDENCE

The Minister called two witnesses. The first witness, Mr. Rick Haymond, is an experienced Aircraft Maintenance Engineer (AME) and an Inspector with Transport Canada Maintenance and Manufacturing. He was part of an audit team that inspected NVA and C-GNVB in the fall of 2002. During that audit it was discovered that the A.D. had not been accomplished on

C-GNVB's left propeller, within the required time frame. Mr. Haymond identified the A.D. and a Confirmation Request Form that showed that NVA had not accomplished the A.D. in a timely fashion. The A.D. is required every 3000 hours or 60 days, whichever comes first.

The second witness, Mr. Claudio Rosa, is a Civil Aviation Inspector with Civil Aviation Enforcement and is also an experienced AME. He was assigned this case for investigation. A secretary's certificate identified NVA as the registered owner of C-GNVB. Mr. Rosa identified the serial number on the left hand propeller of C-GNVB and identified documents that detailed the initial compliance with the A.D. when the aircraft was first registered. The left hand propeller was installed on C-GNVB when the total airframe time was 9933 hours and the A.D. was accomplished at that time. The evidence showed that the A.D. was not again accomplished until after the Transport Canada inspection of fall 2002. Ninety-one months and 3964 hours had elapsed on the aircraft since the A.D. had originally been done.

Both witnesses were cross-examined by Mr. Kokai-Kuun for NVA. Both witnesses were evasive in answering a couple of questions, for reasons indiscernible to me, although they did ultimately answer all relevant questions. The cross-examinations did not contradict the witnesses' evidence of the violation.

Mr. Rosa admitted that NVA did accomplish the A.D. as soon as they were made aware of the non-compliance. Under re-examination, Mr. Rosa said that Transport Canada had not granted any extension to the A.D.

Mr. Kokai-Kuun gave evidence on behalf of NVA. He is an experienced commercial pilot and has acted as chief pilot, operations manager, and maintenance coordinator for NVA. Mr. Kokai-Kuun said it was the policy of NVA to comply with all A.D.'s. He said the maintenance coordinator for NVA at the relevant time was Mr. Paul Hales, who he said has an excellent reputation in the field of aircraft maintenance.

Mr. Kokai-Kuun admitted that the propeller had gone long overdue on the A.D. but said it had not gone overdue with respect to the time before overhaul (TBO). Transport Canada had given an extension to NVA, to 4000 hours, with respect to the TBO for C-GNVB's propellers, because of NVA's good record. Mr. Kokai-Kuun said compliance with the overhaul would have automatically resulted in compliance with the A.D.

Mr. Kokai-Kuun also said that in spite of the fact that neither an overhaul nor the A.D. had been done on the propeller, the propeller had been on and off the aircraft several times because of other maintenance, such as engine overhaul.

Mr. Kokai-Kuun said he believed that NVA, Mr. Hales and he had done their due diligence to ensure that A.D.'s were complied with and said the slip-up on the propeller A.D. was made because the TBO had been increased by Transport Canada. The A.D. was missed because it came due before the overhaul. Mr. Kokai-Kuun said if a wrong date is put in their computer then a wrong date comes out, and that is what happened here.

On cross-examination Mr Kokai-Kuun admitted that he is not an AME.

SUBMISSIONS

Mr. Bulfone for the Minister of Transport submitted that the evidence had established all elements of the violation. He said notwithstanding that the failure to comply with the A.D. was a slip-up, the regulations are clear and this is a strict liability offence. He submitted that the due diligence defence requires that a person exercise all the care and attention that could be legally expected of a person, and what is due diligence depends on the circumstances. He submitted that due diligence did not apply to this charge. He said that it is incumbent on Transport Canada to ensure that the regulations are complied with and that a message must be sent to both the individual and to the aviation community as a whole to combat any trends toward complacency.

With respect to the amount of the sanction, Mr. Bulfone submitted that the safety implications from failing to comply with A.D.'s are substantial. He said that the maximum penalty for a violation of paragraph 605.84(1)(c) of the CARs is $25,000.00, and that $5,000.00 is the recommended penalty for a first offence.

Mr. Kokai-Kuun submitted that he believes that all airlines must comply with the CARs and A.D.'s and must be held accountable for failures to do so. He did not dispute the facts as presented by the Minister, although he said he could have disputed some of the evidence. He complained that the Minister's witnesses had given evasive answers to simple questions about maintenance. Mr. Kokai-Kuun pointed out that the A.D. coincided with the standard overhaul hours for the propeller involved. He admitted that as far as he knew, the manufacturer had not extended the A.D. to go along with Transport Canada's TBO extensions for the propeller. He pointed out that NVA had not been accused of going over the overhaul time for the propeller.

He submitted that there was no real safety issue presented by the failure to comply with the A.D. in this instance because the propeller was looked at every 100 hours in any case. However he conceded that A.D.'s must be followed and that it is Transport Canada's mandate to ensure they are followed.

Finally, Mr. Kokai-Kuun advised that NVA is no longer operating as an airline. He said this fact has nothing to do with Transport Canada but that he had sold the assets of NVA and voluntarily released its operating certificate. He said NVA has no ability to pay a penalty. He said it is important that NVA violated an A.D.; admitted that NVA had lost (at the hearing); but said that the Minister of Transport showed poorly because the witnesses were evasive. Therefore he asked that the sanction be as small as possible.

DISCUSSION

Having heard the evidence and submissions of both the parties, it is clear that the Minister has proved the offence as alleged. The only issue for me to decide is the amount of the sanction.

The penalty assessed by the Minister is much less than the maximum allowed for the offence. It is very important that operators comply with A.D.'s and that they have a fail-safe system for ensuring compliance. There can be very serious safety implications from failing to comply with A.D.'s.

I have already commented above on the evasiveness of the witnesses and I do not consider it relevant to the outcome of this matter.

I understand from Mr. Kokai-Kuun that NVA has no ability to pay any penalty, as all the assets of NVA have been sold. I therefore infer that no hardship will be caused by confirming the penalty as assessed by the Minister.

Considering all the above, I see no reason to interfere with the penalty assessed by the Minister.

DETERMINATION

The Minister has proved the offence as alleged and I confirm the penalty assessed by the Minister.

Sandra K. Lloyd
Member
Transportation Appeal Tribunal of Canada