Decisions

CAT File No. A-1643-04
MoT File No. 6504P-006397-31118

CIVIL AVIATION TRIBUNAL

BETWEEN:

John Andrew Lockhart, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 6.9
Canadian Aviation Regulations, SOR/96-433, ss. 571.03(a), 571.10(1), 605.92, 605.94, 625.86

Aircraft Maintenance Engineer, Technical Record, Technical Log, Journey Log Entries, Annual Inspection


Review Determination
Faye H. Smith


Decision: January 11, 1999

I find that the Minister has not proved on a balance of probabilities that there is no technical record in either count or that the compass swing was not conducted. I must therefore dismiss the Minister's allegations regarding both counts and cancel the total seven-day suspension.

A Review Hearing on the above matter was held Thursday, October 29, 1998 at 10:00 hours at the Federal Court of Canada, in the city of Fredericton, New Brunswick.

BACKGROUND

Mr. Lockhart's aircraft maintenance engineer licence was suspended pursuant to a Notice of Suspension dated June 5, 1998 as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Canadian Aviation Regulations, s.571.03(a) in that on or about November 19, 1997, you did fail to enter details of maintenance concerning an annual inspection on an aeronautical product, to wit: Beech G35 bearing Canadian registration marks C-GRUJ in the technical record for the aeronautical product thereby committing an offence contrary to section 7.3(3) of the Aeronautics Act, R.S. 1985, c. A-3, s. 1.

Count 2:

Canadian Aviation Regulations, s.571.10(1) in that on or about November 19, 1997, you did certify an annual inspection of an aircraft, to wit: Beech G35 bearing Canadian registration marks C-GRUJ, without ensuring that the standards of airworthiness applicable to the maintenance performed were complied with, namely there was no record of a magness compass swing being conducted, thereby committing an offence contrary to section 7.3(3) of the Aeronautics Act, R.S. 1985, c. A-3, s. 1.

Count 1: 3 day licence suspension

Count 2: 7 day licence suspension to be served concurrently

Total: 7 day licence suspension

An application for review was filed with the Tribunal as was a request for stay of the suspension which was granted by this Tribunal on July 3, 1998.

THE LAW

Section 571.03 of the Canadian Aviation Regulations (CARs) entitled Recording of Maintenance and Elementary Work:

571.03 A person who performs maintenance or elementary work on an aeronautical product shall ensure that

(a) the details required by Chapter 571 of the Airworthiness Manual are entered in the technical record for the aeronautical product, in respect of the task performed; and

(b) the technical record is accurate with respect to any outstanding elements of the work performed, in particular, the need to secure any fastening device that was disturbed to facilitate the work.

Section 571.03 of the Airworthiness Manual Chapter 571:

571.03 Recording of Maintenance and Elementary Work

Information Note:

Compliance with CAR 571.03 is the responsibility of the person performing the work. This regulation is applicable to the making of an entry into a technical record, which is distinct from the maintenance release addressed by CAR 571.10.

(1) A person who performs maintenance or elementary work on an aeronautical product shall ensure that the following information is recorded in the technical records, established in accordance with CAR 605, for the aeronautical product:

Information Note:

Appendix A of the Aircraft Equipment and Maintenance Standards – 625 lists the tasks and conditions associated to elementary work and CAR 605.94 requires that all tasks designated as elementary work be recorded in the journey log.

a) product identification (aircraft registration marking, nomenclature, type/model number, name of manufacturer, part number, and serial number), unless the entry is being made in technical record that contains this information;

b) a brief description of the work performed;

c) where a standard other than the manufacturer's recommended practice is being used, reference to the standard used in the performance of the work;

Information Notes:

(i) If manufacturer's instructions are being followed and there is no optional method provided to perform the work, it is not necessary to state the standards that were used to perform the work. In cases where optional methods can be used, the method chosen shall be referenced. In cases where damage is being assessed, the extent of the damage and the associated reference to manufacturer's limitations shall be referenced.

(ii) If this entry constitutes the maintenance release, ensure that the date on which the work was performed is indicated, and that all other requirements of CAR 571.10 and CAR 605.93 are complied with.

Subsection 571.10(1) of the CARs states:

No person shall sign a maintenance release required pursuant to section 605.85 or permit anyone whom the person supervises to sign a maintenance release, unless the standards of airworthiness applicable to the maintenance performed and stated in Chapter 571 of the Airworthiness Manual have been complied with and the maintenance release meets the applicable requirements specified in section 571.10 of the Airworthiness Manual.

Section 571.10 of the Airworthiness Manual Chapter 571:

Information Note:

Pursuant to CAR 605.85, a maintenance release with respect to maintenance performed on an aeronautical product, a maintenance release shall be completed prior to take off in the affected aircraft. It is a declaration that, with respect to the maintenance performed, the performance rules of CAR 571.02 have been complied with and the applicable standards of airworthiness have been met.

(1) ...

(2) Maintenance Release Record Keeping

(a) ...

(b) Each maintenance release must include the following information:

(i) ...

(ii) a brief description of the work performed, including applicable reference data, when the reference data is not included in the maintenance publications of the manufacturer, and the work order number.

(...)

(4) Notwithstanding the requirement to comply with the Performance Rules in accordance with CAR 571.02, the following additional standards of airworthiness, developed in conformity with CAR 571.10, apply with respect to the types of work indicated in the following table:

Types of Work

Applicable Standards of Airworthiness

j) Work affecting performance of a Magnetic Direction Indicator (MDI), including installation of a replacement indicator.

The MDI shall be calibrated and, in the case of non-stabilised direction magnetic compasses, a new correction card installed.

Section 605.92 of the CARs entitled Requirement to Keep Technical Records:

605.92 (1) Every owner of an aircraft shall keep the following technical records in respect of the aircraft:

(a) a journey log;

(b) subject to subsections (2) and (3), a separate technical record for the airframe, each installed engine and each variable-pitch propeller; and

(...)

(2) The technical records required by paragraph (l)(b) may consist of separate technical records for each component installed in the airframe, engine or propeller.

(3) In the case of a balloon or a glider, all entries in respect of the technical records referred to in paragraphs (l)(b) and (c) may be kept in the journey log.

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 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

2.

Aircraft empty weight and empty centre of gravity and any change to the aircraft empty weight and empty centre of gravity

On commencing keeping a journey log and on bringing a new volume of an existing log into use and, when a change occurs, as soon as practicable after the change but, at the latest, before the next flight

The owner of the aircraft and, for any change, the person who made the change

5.

Particulars of any abnormal occurrence to which the aircraft has been subjected

As soon as practicable after the abnormal occurrence but, at the latest, before the next flight

The pilot-in-command of the aircraft or, where maintenance was being conducted, the operator of the aircraft at the time of the abnormal occurrence

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 625.86 of the CARs General Operating and Flight Rules Standards:

625.86 Maintenance Schedules

(1) Pursuant to CAR 605.86, all aircraft, other than ultra-light or hang-gliders, shall be maintained in accordance with a maintenance schedule, approved by the Minister, that meets the requirements of this Aircraft Equipment and Maintenance Standard 625.

(2) (a) As applicable to the type of aircraft at intervals not exceeding 12 months, Part I and Part II of the Maintenance Schedule detailed in Appendix B of these standards are approved by the Minister for use on other than large aircraft, turbine-powered pressurized aeroplanes, airships, any aeroplane or helicopter operated by a flight training unit under CAR 406, or any aircraft operated by air operators under CAR Part VII.

(b) Owners of non-commercially operated small aircraft and balloons must also comply with Appendix C with respect to out of phase tasks and equipment maintenance requirements.

(...)

Information Notes:

i) Part I of Appendix B of these standards applies only to small piston engine aircraft and small helicopters operated in a flight training unit or in a commercial air service, and is performed at intervals not exceeding 100 hours air time.

Appendix C entitled Out of Phase Tasks and Equipment Maintenance Requirements:

1. All aircraft:

Ensure that any applicable equipment maintenance task required by this appendix is performed at, or before, the next inspection interval listed therein.

(...)

9. Non-stabilized Magnetic Direction Indicators (MDIs)

(a) Except as provided in (b), and (c), non-stabilized magnetic direction indicators shall be calibrated, and a dated correction card installed for each indicator, at at [sic] intervals not exceeding 12 months;

MINISTER'S EVIDENCE

Inspector Brooks presented the Minister's case calling three witnesses including an expert witness. At the outset Inspector Brooks informed the Tribunal that there had been no prior agreement between the parties as to the facts of this matter. Mr. Lockhart requested an order excluding witnesses from the hearing room during the giving of testimony by prior witnesses. This order was granted pursuant to the authority of subsection 16(2) of the Civil Aviation Tribunal Rules. Inspector Brooks made an opening statement and asked that Inspector Davis be excepted from the exclusion order as it was the Minister's objective to call him to give expert testimony on the basis of the evidence to be presented in this case.

Inspector Gary Davis was examined as to his qualifications and accepted as an expert for the purpose requested and permitted to remain in the hearing room throughout the complete testimony in accordance with the motion requested by the Minister's representative.

The Minister's first witness was Inspector Garry Leonard Noel who has worked with the enforcement branch in the Moncton Office of Transport Canada for three years. He testified that in early May he received a telephone call from an inspector from the Federal Aviation Administration (FAA) in Savannah, Georgia regarding the aircraft in question. He learned that the gear of the aircraft had folded up. Inspector Noel determined that the aircraft owner was in Quebec and obtained a copy of pages of the journey log which indicated that the aircraft maintenance engineer who had signed out the aircraft annual inspection was Mr. Lockhart who was in Atlantic region. On May 8th Inspector Noel gave the copy of the journey log pages to Inspector Miles.

These journey log pages were filed as Exhibit M-1. The first page shows the information for the aircraft being a Beech G-35 indicating the serial number and historical data. Page two of the exhibit indicates an annual inspection was carried out on November 19, 1997 and signed off by Mr. Lockhart together with his licence identification number M006397. The description in the log reads as follows:

The notation reads:

I hereby certify that I have completed the nearest equivalent to a annual inspection of the aircraft described herein and it is airworthy. (signed) (licence number)

Inspector Doug Miles is employed in the aviation enforcement branch at the Moncton Regional Office of Transport Canada. Through him Exhibit M-2 was introduced which was a copy of section 571.03 of the CARs entitled Recording of Maintenance and Elementary Work and an Information Note regarding section 571.03. Inspector Miles next read in Exhibit M-3 being section 571.10 of the CARs and the relevant Information Note. He next reviewed the requirement to keep technical records found in sections 605.92 and 605.94 relating to journey log requirements. He also introduced the legislative requirements contained in section 625.86 found in Exhibits M-5 and M-6 regarding aircraft equipment and maintenance schedules. Finally, in relation to the 100-hour inspection, Inspector Miles cites Appendix C entitled Out of Phase Tasks and Equipment Maintenance Requirements.

Inspector Miles advised that upon receipt from Inspector Noel of the journey log pages which are herein filed as Exhibit M-1 he reviewed them, noted the certification of Mr. Lockhart and indicated that he found no details of the maintenance carried out. He stated that this was an omission and that the aircraft maintenance engineer certifying the inspection should have included the standard which was applied as well as any out of phase items.

Exhibit D-1 disclosed that on May 28, 1998 Inspector Miles as part of his investigation telephoned a Mr. Hayes of the FAA in an attempt to determine what maintenance was lacking on the aircraft and was informed that the aircraft did not appear to have been lacking maintenance but Mr. Hayes believed that there were supposed to be entries in the log for any maintenance carried out. He also stated that he is not totally familiar with Canadian requirements but it struck him odd that someone would sign off an annual inspection without entering what type of inspection he did. Inspector Miles informed Mr. Hayes that there would be three other logs to cover the prop, engine and airworthiness directives (AD) and that he should ask the owner to provide them so that he can make entries in the engine log for work that he does. Recorded at the bottom of the page as a conclusion was the notation: "There doesn't appear to be anything to go after Lockhart for except failing to enter details of maintenance in the journey log."

Inspector Miles then sent a letter of investigation dated May 28 setting out the allegations contained in counts 1 and 2 above. Mr. Lockhart telephoned Inspector Miles on May 29 upon receipt of the letter of investigation which he wished to discuss. Mr. Lockhart responded as follows to counts 2 and 1 respectively: "He rebutted by stating that the compass swing had been carried out and a temporary card had been installed. The temporary card was installed due to the fact that there was some cosmetic work to be done and he did not want to use any thinner on their new paint. He also stated that all the work he had done was entered on 3 pages and put in the tech log. The aircraft was then flown to Houlton Maine and Terry Beals finished the inspection. Lockhart then signed the journey log." The foregoing is found at Exhibit M-11.

Inspector Miles noted in his summary that he had reminded Mr. Lockhart that there was nothing entered in the journey log and noted that Mr. Lockhart asked whether Inspector Miles had a copy of the technical log to which the inspector replied that he did not. He added that at any rate the details of the work are to be entered in the journey log also or at least a reference made to where they are located should be entered. Mr. Lockhart replied that he did not think that they (the department) should get too excited over the matter because of all the good work they do.

Under cross-examination by Mr. Lockhart, Inspector Miles stated that the maintenance records must go in the journey log and not just in the technical log. Mr. Lockhart queried that if all of the information is in the technical log why would it have to go into the journey log? He specifically asked Inspector Miles: "If I signed the annual inspection, would you not assume that the compass swing, etc. done and why did you not check the technical logs?" Inspector Miles replied that the records must go in the journey log because the regulations say so.

The Minister next called Inspector Davis who was earlier qualified as an expert witness. In essence he stated that compliance with the regulations has not been met and more details regarding the maintenance carried out were required other than a brief description. He made reference to section 571.03 of the CARs and to item 9 of Schedule I regarding entries in the journey log regarding particulars of maintenance action or elementary work.

DOCUMENT HOLDER'S EVIDENCE

Mr. Lockhart gave sworn evidence based on material which he had brought with him which he indicated were photocopies of the aircraft technical records which he obtained from the present owner of the aircraft. From these records he indicated that he had done the compass swing and had installed a temporary card in the form of a gummed label which was placed on the panel of the aircraft and he read into the record all observations of maintenance items as listed in the present owner's technical log which dated from September 1996.

In conclusion, Mr. Lockhart admitted that the Minister's Exhibit M-1 contained his signature and that there was no contest regarding counts 1 and 2 if the allegations were founded upon the fact that he did not make entries of all maintenance items in the journey log. He further indicated that he was flabbergasted that they did not ask for the technical log and concluded that in his view the journey log was never intended for that kind of entry.

DISCUSSION

By way of background, evidently this aircraft was involved in an incident or accident in Savannah, Georgia. As a result, a FAA Inspector telephoned Moncton Regional Office of Transport Canada following which an Inspector tracked the aircraft to an owner in Quebec. It was ascertained that the journey log disclosed that a 100-hour inspection was signed out by the Applicant.

Upon perusing that entry an inspector in the Moncton aviation enforcement office conducted an investigation and the present action resulted. The action involves an alleged failure to make adequate entries in the journey log. There was, however, at no time any suggestion that the 100-hour inspection was not carried out or that it was improperly done and there are no allegations to suggest that the aircraft was not airworthy.

The facts of this case are not disputed. Mr. Lockhart indicated that he had decided to sell his aircraft and had contracted to have repairs made to the aircraft by a maintenance organization in Houlton, Maine. Mr. Lockhart signed out the aircraft himself regarding the 100-hour inspection after the contract work was completed by the aircraft maintenance engineer in the United States.

During the course of the hearing, discussions ensued between Mr. Lockhart and the Minister of Transport's representatives regarding the rationale for the requirement that details of the work done prior to sign out of the 100-hour inspection be included in the journey log.

Mr. Lockhart who entered these details in the technical log questioned their inclusion in the journey log. The Inspector responded asserting that the requirement was set out in the regulations which must be complied with.

The safety implication of such omission is not apparent since seeing that the 100-hour inspection was done as was indicated in the journey log, why could not one peruse further details as required from the technical log where additional details are recorded. The Minister's witnesses were unable to elaborate other than to say that the journey log accompanies the aircraft and the technical log does not usually do so. They were unable to respond fully to Mr. Lockhart's concern about having to duplicate the information in the journey log. He asserted that the notation of the certification of the 100-hour inspection together with its relevant date and signature was included in that log and that this entry alone imports sufficient evidence that all maintenance in support of the 100-hour inspection was done. It follows that one would seek further detail in the tech log, where such entries were noted.

The allegation in count 1 above states that there was maintenance in the way of an annual inspection done on the said aircraft and that there was no entry of details of maintenance in the technical record contrary to paragraph 571.03(a) of the CARs above.

The requirement to keep technical records is set out in subsection 605.92(1) which requires that every owner of an aircraft keep the following technical records:

(a) journey log;

(b) ... a separate technical record for the airframe, each installed engine and each variable-pitch propeller; and

(...)

The evidence of the Minister was that an entry regarding the certification of the annual inspection was in the journey log but full details of all of the maintenance done were not entered in the journey log. Mr. Lockhart stated under oath that he had put all of these details in the technical log and he read such entries from that technical log into the record.

It seems clear therefore that the Minister has failed to prove that there were no such entries in the technical record. The technical record is comprised of a journey log and a technical log and while the Minister's representatives had copies of pages of the journey log which were obtained during the investigation they apparently never asked for the technical log. Moreover, the Minister's representative did not seek to examine the photocopied pages of the technical log which Mr. Lockhart consulted during the course of the review hearing as he gave his evidence. This lack of interest in the aircraft technical log appears to have been based on the assumption that all of the information was required to be kept in the journey log.

I do not agree with this assumption and do not find basis for it in the legislation. The Minister has asserted that section 605.94 of the CARs states that particulars of column I in Schedule I to Division IV must go in the journey log. The Minister specifically quotes item 9 found in the schedule being particulars of any maintenance action or elementary work performed in respect of item 2, 5 or 8 being matters related to weight and balance, abnormal occurrence and maintenance defects. The three items contemplated in this section all encompass unscheduled maintenance as opposed to scheduled maintenance and it is in my view entirely logical that they be required to be entered in the journey log.

For example, if an abnormal occurrence such as a lightning strike, heavy landing or a propeller strike were to occur en route requiring maintenance as a result, the entry in the journey log is required because that log travels with the aircraft and the technical log is likely to be at the aircraft's maintenance base. Moreover, the legislation provides for the method of copying such entries from the journey log to the technical log. It is clear that what is contemplated by the entries in this schedule are items of unscheduled maintenance rather than scheduled maintenance and I can find no legislative authority to require all details of scheduled maintenance to be included in the journey log rather than the technical log since the requirement in paragraph 571.03(a) is for a technical record as set out in section 605.92.

Subsection 571.10(1) of the CARs states that no person shall sign a maintenance release unless the standards of airworthiness have been complied with. Mr. Lockhart's explanation found in Minister's Exhibit M-11 provides ample explanation regarding the MDI calibration and compass card.

As well, on a read of the applicable legislation, I could not find a requirement to include in the journey log rather than the technical log details of maintenance leading up to the signing of a maintenance release other than the description set out in section 571.10.

In the final analysis I find that the Minister has not proved on a balance of probabilities that there is no technical record in either count or that the compass swing was not conducted. I must therefore dismiss the Minister's allegations regarding both counts since the evidence of Mr. Lockhart clearly demonstrated that the annual inspection and the compass swing (including the posting of a temporary compass card) were done by him and that the required entries were made in the technical record (i.e., technical log) which was in the hands of the new owner from whom the Minister would have directly or indirectly obtained photocopies of the aircraft journey log.

DETERMINATION

I find that the Minister has not proved on a balance of probabilities that there is no technical record in either count or that the compass swing was not conducted. I must therefore dismiss the Minister's allegations regarding both counts and cancel the total seven-day suspension.

Faye Smith
Chairperson
Civil Aviation Tribunal