Decisions

CAT File No. A-1789-25
MoT File No. MA 5802-006397 (MAH MON)

CIVIL AVIATION TRIBUNAL

BETWEEN:

John A. Lockhart, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss. 7.1(1)(b), 37(1);
Canadian Aviation Regulations, SOR/96-433, s. 605.94
Charter of Rights and Freedoms, s. 13
Maintenance Performance Rules SOR/96-433, s. 571.02(1)

Aircraft Maintenance Engineer, Suspension, Incompetence, Evidence, Burden of Proof


Review Determination
Allister W. Ogilvie


Decision: June 11, 1999

The evidence before me shows that Dr. Lockhart lacks knowledge in certain areas and needs to become conversant with current regulations. The evidence falls short of proving that he is incompetent. In the result I refer the matter back to the Minister for his reconsideration.

A Review Hearing on the above matter was held Thursday, May 20, 1999 at 11:30 hours at the Court of Queen's Bench, in the city of Moncton, New Brunswick.

BACKGROUND

Dr. Lockhart resides in Bath, New Brunswick. For many years he practised medicine as a general surgeon in Bath and the surrounding areas. As well as his medical qualifications he also obtained a pilot licence and an aircraft maintenance engineer licence (AME). He enjoyed working on aircraft and over the years rebuilt and restored over 20 aircraft.

One of the aircraft he had rebuilt and subsequently sold was a Beech G-35 C-GRUJ, which was involved in an incident or accident in Savannah, Georgia, U.S.A. As it was a Canadian registered aircraft, the United States authorities contacted their counterparts in Transport Canada. In the follow-up investigation it was ascertained that Dr. Lockhart had signed the last 100-hour inspection on the aircraft.

As a result of that investigation, Transport Canada alleged against Dr. Lockhart two counts of failure to make adequate entries in the journey log. The Civil Aviation Tribunal heard those allegations on October 29, 1998[1] (the first hearing). The hearing member, Mrs. Smith, dismissed the Minister's allegations on both counts.

A Civil Aviation Enforcement Inspector attending that hearing was of the opinion that the doctor's testimony showed that he lacked an understanding of the rules and regulations. A memo to that effect was forwarded to the Manager of Maintenance and Manufacturing, Atlantic Region, Mr. D. Alston. He requested that one of his inspectors review the evidence available and conduct a further inspection.

To that end, the inspector obtained and reviewed a transcript of the first hearing and concluded that Dr. Lockhart did not possess the required knowledge of current aviation regulations. He then recommended that Dr. Lockhart's AME licence be suspended.

The AME licence was suspended effective December 11, 1998. He requested a Civil Aviation Tribunal review of that decision, which brings us here today.

EVIDENCE

Mr. Doug Miles and Mr. Keith Whalen presented the case for the Minister. Dr. Lockhart represented himself.

Prior to the hearing, Dr. Lockhart had subpoenas issued to Mr. W. Malone, Regional Director of Civil Aviation, Atlantic Region, Mr. K. Whalen, Regional Manager of Enforcement, Atlantic Region and to Mr. D. Miles, Aviation Enforcement Inspector, to ensure their attendance. These gentlemen attended and were questioned by Dr. Lockhart, but their knowledge in the matter was not relevant to the question in issue.

Mr. C. Daigle was the inspector assigned to review the transcript and to conduct an investigation and to make a recommendation. His review caused him concerns in certain areas, such as Dr. Lockhart's knowledge of regulations, of what constituted a technical record, and of what "out of phase" inspection items were. These areas of concern were set out in his memo to file dated 98/11/30 (Exhibit M-5). To ensure a full understanding of them, it is reproduced herein.

APPENDIX B

Memo to file file

MA5802-006397(MAH)

Date : 98/11/30

SUBJECT: REVIEW OF CIVIL AVIATION TRIBUNAL TRANSCRIPT

I have reviewed the transcript of the Civil Aviation tribunal for the Civil Aviation hearing held on October 29, 1998 between the Minister of Transport & Mr. John Andrew Lockhart and highlight the following areas of concern:

  • In the transcript, Mr. Lockhart repeatedly stated (and firmly believes) that all maintenance carried out to an aircraft needs only to be recorded in the aircraft technical logs. His comments also indicate that he does not know what an aircraft technical record consists of or what details must be recorded in an aircraft Journey log. (Refer to transcript pages 22, 56, 57, 58, 69, 86, 87, 89, 90, 91 & 101)
  • Mr. Lockhart's comments make it clear that he has no knowledge as to what "out of phase" items are. (Refer to transcript pages 57, 58 & 86)
  • Mr. Lockhart's comments make it clear that he has no knowledge of current rules relating to maintenance requirements & the standards used for aircraft inspections.

This is especially evident in his statements relating to him "carrying out an annual inspection in accordance with the standards contained in all three", in this case, meaning the standards contained in the airworthiness manual, the manufacturer's recommendations, and his own.

His lack of knowledge is also evident in his comments relating to the annual inspection being carried out in compliance with the Condition & Conformity inspection (CCI) procedures contained in the E & I Manual. This procedure has not been in effect since April 1, 1989. Furthermore, Beech G35 aircraft C- GRUJ's journey log has not been annotated in accordance with CAR 625.86(C) to reflect the maintenance schedule in use. (Refer to transcript pages 66 & 105)

Mr. Lockhart's comments with respect to repairing the Magnetic compass (specialized work) and lack of log entries relating to an independent check following the re-installation of surface controls also re-affirm that he has no knowledge of the current rules. (Refer to transcript pages 101, 102 & 103)

My review of the transcript & discussions held with the three inspectors involved with this hearing indicates that Mr. Lockhart does not have the required knowledge of current regulations with respect to aircraft maintenance.

As Mr. Lockhart does not possess the required knowledge of current Aviation Regulations related to aircraft maintenance, he is not competent to perform the duties of an Aircraft maintenance engineer (AME). In accordance with Aeronautics Act section 7.1.1(b), it is recommended that his AME licence number M006397 be suspended forthwith for reasons of incompetence.

As far as conditions of re-instatement Mr. Lockhart will have to successfully complete the Transport Canada examination on the Air Regulations. As he is not employed full (or even part time) in the performance of Aircraft Maintenance, he will also have to provide documentary evidence that he meets the recency of experience requirements of CAR 403.05.

Further to this, in his description of the "maintenance" carried out to aircraft C-GRUJ, (pages 101-106) Mr. Lockhart does not indicate that any work was carried out to the then 5 year "corrosion inspection" to the aircraft's propeller.

As a result of this review, it is recommended that this aircraft & its technical records be inspected to verify that it indeed meets all of the applicable airworthiness requirements. Furthermore, as Mr. Lockhart is not up to date on current rules & procedures, the question also needs to be asked with "other" aircraft he has been maintaining & certifying.

Claude Daigle
Civil Aviation Safety Inspector
Aircraft Maintenance & Manufacturing
Transport Canada Centre, Moncton

He concluded that Dr. Lockhart's AME licence should be suspended forthwith for reasons of incompetence. Mr. Daigle took the action of suspending the licence pursuant to the authority granted to him by the delegation of authority (Exhibit M-12).

Documentary evidence regarding the requirement to adhere to a maintenance schedule, the need to conform to appropriate standards for that schedule and the appropriate wording of a maintenance release was entered through Mr. Daigle (Exhibits M-6, M-7, M-8 and M-9). As well Exhibit M-10 addressed Maintenance Performance Rules.

It was Mr. Daigle's testimony that a procedure for inspecting aircraft, known as a Condition and Conformity Inspection (CCI) which was found in the former Engineer and Inspection Manual (E & I) was discontinued in 1989. The CCI was not necessarily the equivalent of a 50-hour or of a 100-hour inspection.

Mr. Daigle pointed out in the transcript at p. 105 (Exhibit M-4) that although the procedure had been discontinued, Dr. Lockhart testified that he had inspected the aircraft and that he found it to be in compliance with the CCI procedures described in the E & I manual. He testified further that his review revealed that Dr. Lockhart had repaired a compass, a task which he did not have authority to do unless he had the appropriate tools and equipment. As well, Dr. Lockhart had performed work for which a second signature was required but the additional signature was not entered in the record.

A photocopied excerpt from an aircraft technical record (Air Time and Engineer Record) which was purported to be that of aircraft GRU was entered through Mr. Daigle, but he quite candidly admitted that he could not determine the authenticity of the document. The wording of the log entry was compared to the transcript and he concluded that it was probably the correct record.

Dr. Lockhart cross-examined Mr. Daigle on the testimony regarding the repair of the compass. Exhibit D-1 was an aircraft parts catalogue (Wag-Aero) in which was found a compass repair kit. Mr. Daigle conceded that someone could effect a repair if he used the most recent tools, the most recent instructions and was following the latest methods.

Dr. Lockhart chose to call Mr. Daigle as one of his witnesses as well. The summary of Mr. Daigle's findings, reproduced earlier, was attached to a letter to Dr. Lockhart from Mr. Daigle dated December 21, 1998 (Exhibit D-2), and Dr. Lockhart questioned him on some points. Regarding "out-of-phase" tasks Mr. Daigle insisted that the transcript showed Dr. Lockhart's lack of knowledge and asserted that the transcript showed that Mr. Miles had helped him out in that area. He remained steadfast in his assertion that Dr. Lockhart's description of such tasks did not resemble that required by the Canadian Aviation Regulations (CARs).

When questioned about the time frames in which procedures regarding tube and fabric aircraft and stressed skin construction aircraft were established, Mr. Daigle acknowledged that he did not know. He did concede that Dr. Lockhart was qualified to repair a compass. During questioning Mr. Daigle referred to there being no reference to the maintenance schedule being included in the journey log and that there was no mention in the transcript of the 5-year corrosion inspection for the aircraft propeller. He conceded that he did not review the propellor log but made an assumption based on the transcript of the hearing.

Dr. Lockhart also called Mr. D. Alston. Through him it was established that under the current regulations, an aircraft is only declared airworthy at Import, Export and Manufacture. The engineer on an annual inspection does not sign it as airworthy, he just signs for the maintenance he has done. A reference to the journey log would be the only way to establish an aircraft's airworthiness.

Dr. Lockhart gave testimony on his own behalf. He recounted his background in aviation, stating that he had rebuilt and repaired over 20 aircraft. He held both a pilot and engineer licence. Working on aircraft provided him a pleasant departure from his profession of medicine, in which he practised as a general surgeon. His AME licence was endorsed as M2 S 31, S32, S33.

He conceded that he had been under the impression that the requirement for a second signature for certain work had been discontinued. Therefore, he acknowledged being remiss in not assuring that the second signature was entered in the technical record. However, he had been present when the work was done and was satisfied that it was properly accomplished.

He declared that the corrosion inspection on the propeller had been done and submitted Exhibit D-8, an excerpt from the propellor log to verify his point.

Mr. Miles cross-examined Dr. Lockhart. He posed numerous questions regarding the compass overhaul concentrating on whether the Doctor had used the latest tools and techniques.

It was established that Dr. Lockhart had only some of the current regulations in his possession, did not know which regulations he should have and was not familiar with the regulations relating to a maintenance release. Dr. Lockhart very candidly admitted that he did not know as much as he should.

THE LAW

Paragraph 7.1(1)(b) if the Aeronautics Act:

7.1 (1) Where the Minister decides

(...) (b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(...)

ARGUMENT

Minister - Mr. Miles argued that he had shown that Dr. Lockhart had failed to keep up with the regulations, had used a stamp regarding certification that was out of date and was not familiar with current maintenance release procedures.

Document holder - Dr. Lockhart pointed out that Mr. Daigle had changed his position regarding the compass overhaul and had drawn an erroneous conclusion regarding the propellor corrosion inspection.

He noted that there was never any threat to airworthiness. Although he was not fully conversant with the current rules he did not feel that this warranted the suspension of his licence.

DISCUSSION

Issue: The issue to be decided is whether or not Dr. Lockhart is competent to hold an AME licence.

The burden of proof to establish that fact is on the Minister. "Proof" is defined in Black's Law Dictionary 5th edition, as "The effect of evidence; the establishment of a fact by evidence."

Evidence, in turn is defined in the same publication as: "Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact."

That the Aeronautics Act contemplates the production of evidence for proof of allegations under paragraph 7.1(1)(b) is shown by the review procedure outlined at subsection 7.1(6) where it stipulates that the Tribunal shall provide the Minister and the document holder with a full opportunity to present evidence and make representations in relation to the suspension.

Subsection 37(1) of the Aeronautics Act provides that the Tribunal is not bound by any legal or technical rules of evidence.

That is not to say that no rules apply regarding evidence. The constraints on evidence found in the Act are that it must be fair and within the bounds of natural justice. The Tribunal cannot accept evidence that is inadmissible in a court by reason of any privilege under the law of evidence.

The basic criterion of evidence is that it must be relevant. That is, it must go to establishing some fact needed in order to prove an allegation. All relevant evidence is not necessarily of equal probative value. The Tribunal must assess the weight to be attributed to it. In assessing weight one can consider the reliability and persuasiveness of the evidence. As an example witness testimony sworn under oath or affirmation may be considered more reliable than unsworn statements or hearsay evidence.

I have reviewed the basic requirements for evidence because of the nature and quality of the Minister's evidence in this case.

Mr. Daigle reviewed the transcript of the first hearing. His thoughts and conclusions based on the transcript are found in his memo to file 98/11/30 (Exhibit M-5), reproduced earlier.

Although not raised by Dr. Lockhart, the use of the transcript (Exhibit M-4) from the first hearing as evidence in this hearing raises the issue of section 13 of the Canadian Charter of Rights and Freedoms:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

The subsequent use of testimony in other proceedings has been addressed in jurisprudence and various texts. In Administrative Law in Canada[2] it states:

A transcript of the testimony of a person given in any prior proceeding is admissible against that person in a subsequent administrative proceeding, unless the witness, when testifying, claimed the protections of the applicable provincial Evidence Act and that Act applies to the proceedings in which the testimony is tendered in evidence. Neither s. 13 of the Charter nor s. 5 of the Canada Evidence Act[3] applies because they preclude only the subsequent use of testimony to incriminate the witness, i.e., to prove their guilt in a criminal proceeding. They do not prevent the use of testimony against the witness in administrative proceedings.[4]

As the suspension of licence because of alleged incompetence is not a criminal proceeding but rather an administrative proceeding, the transcript of testimony of the first hearing can be used as evidence in this hearing. It must be noted that in addressing this issue the text speaks to the testimony of a witness. A review of the transcript shows that Dr. Lockhart is called as a witness duly sworn at page 95 of the transcript. It is only after that point that Dr. Lockhart was giving testimony. What he said prior to that was not given in evidence. This fact was noted in the first hearing, where, when addressing Dr. Lockhart's description of events while Dr. Lockhart cross-examined Mr. Miles, the Chairperson stated:

Dr. Lockhart, are you going to ask a question about this, because while you're giving the background this is not under oath and I can't take this into consideration, ...[5]

It is apparent that Mr. Daigle, upon reading the transcript as a whole, formed an adverse inference regarding Dr. Lockhart's competence. He was free to do so. However, he should then have conducted a further investigation and gathered evidence which affirmed his opinion. That evidence could then be presented before this hearing to prove the allegation.

Although Mr. Daigle was free to draw any inference that he may, I cannot concur with some of the adverse inferences that he has drawn. The combination of drawing adverse inference and failing to gather evidence is well illustrated by the issue of the 5-year corrosion inspection on the propellor.

Mr. Daigle's memo states that in the description of maintenance, Dr. Lockhart did not indicate that any work was carried out to the then 5-year "corrosion inspection". I do note that in this instance, Dr. Lockhart was a witness giving testimony. That the 5-year inspection was not mentioned is correct. Does that mean it was not carried out? For reasons unknown, Dr. Lockhart did not mention it. Inspector Brooks did not probe the issue on cross-examination. However, at this hearing Dr. Lockhart gave testimony that it was accomplished. The Minister's representative did not gather evidence on the point such as obtaining and reviewing the propellor technical log, or questioning Dr. Lockhart on the point but rather merely made an erroneous assumption that inspection was not done.

It can be seen that any adverse inference drawn on that point would be wrongly held. If many of the inferences that were drawn were also incorrect would the conclusion regarding Dr. Lockhart's competence also be incorrect?

Another illustration is the concern over the repair of the compass. Mr. Daigle states in his memo that Dr. Lockhart's comments with respect to repairing the magnetic compass (witness testimony transcript pages 101, 102 and 103) also reaffirms that he has no knowledge of the current rules. Before this hearing was completed, Mr. Daigle had himself conceded that Dr. Lockhart could accomplish that task. But, had he previously drawn an adverse inference?

The first two paragraphs of Mr. Daigle's memo are also illustrative of this point. He alleges lack of knowledge on Dr. Lockhart's behalf in certain areas but with one exception (i.e., transcript page 101), he bases his conclusion on other than sworn testimony. When not acting as a witness, Dr. Lockhart's role was that of cross-examiner, a person who will pose questions, not to add to his own knowledge but to test the knowledge of the witness. Posing questions during cross-examination does not illustrate ignorance of the subject on behalf of the person conducting the cross-examination.

Mr. Daigle makes reference to aircraft C-GRUJ's journey log not being annotated in accordance with CARs 625.86(c) and in so doing refers to pages 66 and 105. At page 66, Dr. Lockhart is engaging in cross-examination. At page 105 (in testimony) he is describing entries that he made in the aircraft technical log. The aircraft journey log was not put into evidence. Lacking that evidence I am unable to see how Mr. Daigle concluded that the journey log was not properly annotated.

Dr. Lockhart's statements in the transcript prior to his being sworn as a witness at page 95 are not testimony. As stated in Blake's text, it is the testimony of the witness in a previous hearing that is admissible. Therefore these prior statements are inadmissible as evidence here.

The photocopied pages from the technical log that form Exhibit M-13 would be relevant; however, Mr. Daigle very honestly stated that he could not be sure where they came from. No other person was called to vouch for its authenticity. The Minister did not go to the trouble to get the original. Thus the exhibit is not reliable so I give it no weight.

Dr. Lockhart admitted that he did not enter signatures of an independent check for a certain task and admitted that he was mistaken as to the requirement to do so.

His testimony in the first hearing shows that he did not sign the technical record in accordance with the current terminology. He had made reference to the CCI and E & I manual, neither of which are in current usage.

He testified that he had signed the aircraft as being airworthy, whereas Mr. Alston's evidence was that doing so in that forum was not correct. Under cross-examination he admitted that he did not possess all of the current regulations and did not know which ones he should have, nor was he familiar with the current standard for a maintenance release.

Is this sufficient evidence to find Dr. Lockhart incompetent? It is interesting to note the latitude the Minister's representatives allow themselves. Some examples are illustrative of the point.

The first hearing came about because the Minister had alleged that certain scheduled maintenance items had to be entered in the journey log. When Mr. Miles was asked what else should go in the journey log he replied:

Change the engine oil. Remove the spark plugs and clean them; reinstall them. Did you change the air filter? Did you inspect the air filter? What standard did you inspect the aircraft to? etc., etc.[6]

When Inspector Davis was asked where it specifically says you have to put a compass swing in the journey log he replied:

It's found in schedule '1' of subsection 605.94(1), item 9 — 'Particulars of any maintenance action.'[7]

That answer without any further would seem to verify their belief, but regulations, to be understood, must be read as a whole. Inspector Davis neglected to state that the section he relied upon said: "Particulars of any maintenance action or elementary work performed in respect of item 2, 5 or 8."

Item 2 addresses aircraft empty weight and empty centre of gravity and changes to it. Item 5 addresses particulars of abnormal occurrences. Item 8 addresses particulars of defects.

It is difficult to perceive how anyone could categorize changing engine oil, spark plugs, air filters and other items of scheduled maintenance into the areas addressed by items 2, 5 or 8. However, to paraphrase Mr. Daigle's first point in his memo, the Minister's representatives stated (and firmly believe) that all maintenance carried out to an aircraft needs to be recorded in the journey log.

The hearing officer in that first case did not agree with the Minister's interpretation of subsection 605.94(1) of the CARs as is indicated by her statement:

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.[8]

As that finding was not appealed, I take it that the Minister concurred.

Simply put, the Minister's representatives did not understand the legislation. Dr. Lockhart was put to the time and trouble of defending himself not because of his own error but because of the error of the Minister's representatives.

I believe that a lack of understanding of legislation was also raised at this hearing regarding the issue of repairing a compass. When Dr. Lockhart cross-examined Mr. Daigle on compass repair, the answers were that there was no problem if he used the most recent tools, followed the most recent instruction and was following the latest methods. Mr. Miles cross-examined Dr. Lockhart on the same point and his questions concentrated on the latest tools, equipment and recommended practices.

The thrust of these questions can be understood in light of Minister's Exhibit M-10, Maintenance Performance Rules, where it states:

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 ...

Again the provision must be read as a whole. The words "most recent" must be read in the context of the subsections that follow:

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.

For example in (a) if a manufacturer of an aeronautical product ceased producing that product in 1965 and did not change the maintenance manual or develop new instructions for continued airworthiness since that time, then the "most recent" would be that available in 1965.

Regarding the compass there was no evidence introduced as to what "most recent" was in the context of that particular aeronautical product. Without that context "most recent" cannot be defined. The Minister's emphasis on most recent being in current time i.e., 1999 is meaningless.

Mr. Daigle's memo makes some mention of Dr. Lockhart's usage of terms that are no longer current. That is not a failing unique to Dr. Lockhart. It was Inspector Noel's testimony that he had an ATR (Airline Transport Rating) pilot licence[9]. That terminology has been replaced by A.T.P.L. (Airline Transport Pilot Licence). When Mr. Miles was questioned whether he would be curious enough to look in the aircraft technical log to see if there is a particular entry he replied: "Not when I'm doing an investigation concerning a violation of the journey log order."[10]

The Aircraft Journey Log Order, ANO VIII No. 2, has long been superseded by provisions in the CARs.

Transport Canada's lack of knowledge of regulations, misinterpretation of regulations and misuse of terminology in no way affects, vitiates or ameliorates Dr. Lockhart's lack of knowledge. I use them only as guides as to the level or standard of knowledge when assessing the threshold for incompetence.

Mr. Daigle has taken many factors into account in his decision making process which are not supported by evidence. I, however, am constrained by the Aeronautics Act to base my decision on the evidence. Does the evidence received prove, on a balance of probability, that Dr. Lockhart is incompetent? Mr. Miles offered some jurisprudence to aid in the understanding of that term.

In two cases to which he refers, Charles Saville v. Minister of Transport[11] and Jelle Dykstra v. Minister of Transport[12] both applicants had their AME licences suspended under paragraph 7.1(1)(b) of the Act because of alleged incompetence. In both cases an investigation revealed serious airworthiness defects in aircraft following recent certification by the AMEs. The quality of the workmanship or lack of it and the certification of defective aircraft as airworthy were central to the findings. In this instance the Minister has not challenged the airworthiness of the aircraft or the quality of the workmanship. Consequently they offer no guidance as to competence in the present circumstance.

In the cases Norcanair v. Minister of Transport[13] a suspension was issued to an Approved Maintenance Organization for failure to comply with the conditions subject to which it was issued. Among the issues raised was the failure to maintain and to release the aircraft in accordance with the company manual. These were but a small sample of many deficiencies found. Although an aircraft release, not in accordance with standards, is similar to the present circumstances, the hearing member dealt with the overall deficiencies and did not provide any guidance on that narrow point.

Elias Ruben Marin v. Minister of Transport[14] was also a case of an AME suspension due to alleged incompetence stemming from his certification of aircraft as airworthy when they did not meet the required standard. As well his knowledge of regulatory requirements was called into issue when during an audit he was unable to answer certain questions on regulations and standards.

When addressing that issue the hearing member, Mr. Mortimer, stated at page 7:

When he was unable to provide answers to two questions on where in the Airworthiness Manual specific subjects would be found, Mr. Marin asked if memorization of all regulations was a realistic requirement. Transport Canada replied that blanket memorization of regulations is not a requirement, but that an AME should know when to refer to regulations. Nevertheless, Transport Canada argued that Mr. Marin lacked adequate knowledge to hold his AME licence because of his inability to answer those questions. Failure to answer two questions, however, is not a sufficient basis on which to conclude that an engineer does not have adequate knowledge to hold a licence.

The Tribunal did confirm the suspension stating that he had failed to meet his responsibility and exercise the degree of thoroughness required when he certified aircraft that were defective. The member also stated at page10:

To what degree this failure should be attributed to a lack of knowledge or to a lack of application to the task has not been fully determined.

The Marin case made reference to another file Daniel L. Lafayette v. Minister of Transport[15] where a pilot's licence was suspended because of alleged incompetence. The hearing member, Mr. Rushford, stated that while the Aeronautics Act permits Transport Canada to suspend a licence for incompetence, neither the Act nor the Regulations were of assistance in defining the term.

Mr. Rushford made reference to several dictionary definitions and to a case of the B.C. Supreme Court[16]. The dictionary definitions generally characterized incompetence as a lack of ability[17], lack of capacity or fitness[18].

In the case he referred to, the court found, in part:

  1. The particular definition placed upon the word 'incompetency' should be molded by the object of the enactment in which the word appears.
  2. All the definitions of 'incompetency' focus on the lack of ability, capacity or fitness for a particular purpose.

The object of the enactment in which incompetence appears (i.e., Aeronautics Act) is aviation safety. It is to be understood in that light. I believe that the cases reviewed reflect that purpose. In Saville, Dykstra and Marin the aircraft had been certified as airworthy when they were not. The quality of the workmanship was an issue. The resultant suspension of the AME licences reflects the concern for safety.

Here there was no issue as to the airworthiness of the aircraft or the quality of workmanship. The incompetence alleged goes to lack of knowledge.

In Marin, Transport Canada acknowledged that blanket memorization of the regulations was not a requirement, but that an AME should know when to refer to the regulations. The member declared that the failure to answer two questions was not sufficient to conclude that an engineer does not have adequate knowledge to hold a licence.

Mr. Daigle's memo outlines numerous areas where he finds Dr. Lockhart's knowledge to be lacking. However, a consideration of the evidence has considerably narrowed those areas, as was previously noted.

Given the definition of incompetence as lack of ability, capacity, I do not feel that the lack of some knowledge reflects those terms. There was no evidence entered as to what the acceptable level of knowledge would be.

Certainly the standard could not be perfection. This can be ascertained by the lack of knowledge and misuse of terminology by representatives of the Minister. Surely the bar should not be set higher for the aviation community than for representatives of the Minister.

DETERMINATION

The evidence before me shows that Dr. Lockhart lacks knowledge in certain areas and needs to become conversant with current regulations. The evidence falls short of proving that he is incompetent. In the result I refer the matter back to the Minister for his reconsideration.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] CAT File No. A-1643-04.

[2] S. Blake, Administrative Law in Canada, 2d ed. (Toronto and Vancouver: Buttersworth, 1997) at 52.

[3] R.S.C. 1985, c. C-5.

[4] Knutson v. Sask. Registered Nurses Assn. (1990), 75 D.L.R. (4th) 723 (Sask. C.A.); except in Ontario where consent of the party is required before transcripts from another proceeding may be admitted in evidence: SPPA, s. 15.1 [am. S.O. 1994, c. 27, s. 56(30)].

[5] Transcript (Exhibit M-4) at page 61, line 19-22.

[6] Transcript at page 66.

[7] Transcript at page 87.

[8] John Andrew Lockhart v. Minister of Transport (CAT File No. A-1643-04) page 9.

[9] Transcript at page 17.

[10] Transcript at page 60.

[11] CAT File No. W-1309-04.

[12] CAT File No. W-0213-04.

[13] CAT File Nos C-0279-10 and C-0280-10.

[14] CAT File No. W-0240-04.

[15] CAT File No. C-0163-02.

rd Mason and Registered Nurses Association of B.C. 102 DLR (3) page 225.

[17] Black's Law Dictionnary.

[18] Funk and Wagnall's New Standard Unabridged Dictionnary of the English Language.