Decisions

CAT File No. Q-0460-04
MoT File No. NAP6504-P205848-23245

CIVIL AVIATION TRIBUNAL

BETWEEN:

Bruno Gauthier, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, C. A-2, ss 6.9, 7.7, 28
Air Regulations, C.R.C. 1978, c. 2, s. 221
Civil Aviation Tribunal Rules, SOR/86-594, s. 10

Suspension of Aircraft Maintenance Engineer's Licence (AME), Secondary Evidence, Limitation Period, Destruction of Log Book, Certification of Aircraft as Airworthy


Review Determination
Suzanne Jobin


Decision: December 23, 1996

TRANSLATION

The Tribunal must confirm the decision of the Minister of Transport that the Applicant contravened section 221 of the Air Regulations. After having reviewed all of the practices and the relevant case law, and after having considered the evidence presented by the parties, the Tribunal reduces the one-year suspension of Mr. Gauthier's aircraft maintenance engineer's licence assessed by the Minister of Transport to thirty days.

The Review Hearing on the above matter was held September 9 and 10, 1996, in Quebec City, Quebec.

Owing to the complexity of the case being heard, it was agreed that the parties would submit written arguments to the Tribunal. The argument of Transport Canada was submitted on September 24, 1996, followed by that of the Applicant on October 15, 1996. The Respondent sent a rebuttal to the Applicant's argument on October 23, 1996.

BACKGROUND

On January 13, 1995, Transport Canada sent the Applicant a Notice of Suspension for contraventions, which reads in part 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 section 221 of the Air Regulations.

On June 26, 1992, you certified in the journey log of aircraft C-FWFE that the aircraft was airworthy in accordance with the applicable standards, following the 100-hour inspection, when not all standards had been complied with.

Appendix A, as amended at the Review Hearing at the Applicant's request, states as follows:

Under the aircraft maintenance program, a full inspection of the aircraft was mandatory, as was the review of the aircraft's maintenance documents (Appendix A, section (1) of Chapter 571 of the Airworthiness Manual).

In the course of the 100-hour inspection of aircraft C-FWFE, you failed to carry out the inspection required by airworthiness directives 47-30-05 and CF-90-03R1. You also failed to inspect the engine, as required by Appendix A, section (e) of Chapter 571 of the Airworthiness Manual.

On January 23, 1995, the Applicant's request for a stay of the suspension was granted until a review determination was made.

On April 12, 1995, the Applicant, pursuant to section 10 of the Civil Aviation Tribunal Rules, filed a motion for dismissal of the Notice of Suspension issued by the Respondent on January 13, 1995.

On June 26, 1995, after reviewing all the facts of the case and considering the arguments of the parties, the Tribunal denied the Applicant's motion and ordered a review hearing. This decision of the Tribunal forms an integral part of this determination.

On July 6, 1995, the Applicant filed an appeal of this first instance decision. On July 13, 1995, the Tribunal ruled that it did not have the power to hear an appeal of a ruling made under the regime of section 10 of the Civil Aviation Tribunal Rules.

The Applicant filed an originating notice of motion in the Federal Court of Canada on July 24, 1995.

THE LAW

Section 221 of the Air Regulations stipulates as follows:

No person shall certify an aeronautical product or a component as airworthy or serviceable, or certify an aircraft as released for return to service, unless the applicable standards of airworthiness have been complied with.

Section 28 of the Aeronautics Act stipulates as follows:

In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

THE FACTS

The Applicant, Bruno Gauthier, is an experienced aircraft maintenance engineer. He holds mechanic's licence no. M-205 848. This licence authorizes him to work as a mechanical maintenance technician and a structural maintenance technician.

In this case, the privileges the Minister wishes to suspend for a specified period are those pertaining solely to mechanical maintenance.

Early in June 1992, the owners of a small Aeronca aircraft, registered as C-FWFE, asked Mr. Gauthier to carry out the 100-hour inspection of this aircraft required by Transport Canada regulations.

The Applicant carried out an inspection of the aircraft with François Daigneault and Marie-Josée Caron, the two co-owners of the aircraft. The list of parts needed for the necessary repairs was drawn up at that time. During a second session, on June 26, 1992, certain repairs were made.

Mr. Daigneault and Marie-Josée Caron were present at both inspection and repair sessions. Mr. Daigneault did some minor work on both occasions, while Ms. Caron assisted her co-owner and Mr. Gauthier at these times. Ms. Caron was, however, absent several times during the second inspection session.

Once the necessary work was completed, Mr. Gauthier certified the aircraft registered as C-FWFE as being airworthy in compliance with the applicable standards.

On July 5, 1992, this same aircraft crashed near the Saint-Méthode aerodrome, killing its two occupants, François Daigneault and Réjean Fortin.

SUPPLEMENTARY INFORMATION

The Tribunal acknowledged at the review hearing that it did not have the jurisdiction to rule on the causes of the unfortunate accident which occurred July 5, 1992.

The Tribunal's role in the case was confined to those matters relating to the contraventions alleged by the Minister. In this context, the Tribunal must determine whether the Minister of Transport discharged its burden of proof under the Act. If so, the Tribunal must also rule on the merit of the administrative measures taken.

In its argument, the Applicant disputed the validity of the Notice of Suspension issued by the Minister. In this regard, Mr. Gauthier's counsel repeated in his submissions the basic points of the arguments put forward in the earlier proceeding relating to this case.

The Tribunal dismissed the arguments of the Applicant's counsel, deeming them groundless.

The Tribunal does not believe it appropriate to consider or rule again on these matters, which have already been covered in a decision.

APPLICANT'S ARGUMENTS

Mr. Gauthier's counsel argued that the Notice of Suspension should be dismissed on the grounds that the Minister of Transport failed to present two essential elements to establish proof of the alleged contravention.

In this regard, Mr. Fortin cited the failure to file the journey log or secondary evidence, and the failure to file Chapter 571 of the Airworthiness Manual and Appendix A. He also cited the lack of evidence of the validity or existence of section 221 of the Air Regulations. This section should have been proven.

He argued that the Respondent did not establish that Mr. Gauthier had not carried out the tasks required by airworthiness directive CF-90-03R1. Moreover, he explained that the requirements of airworthiness directive 47-30-05 are equivalent to those of directive CF-90-03R1, and that in complying with this directive, Mr. Gauthier was also complying with directive 47-30-05.

Mr. Fortin acknowledged that Mr. Gauthier did not record in the aircraft technical log that he had complied with directive 47-30-05. He cited, however, section 28 of the Aeronautics Act, which allows evidence to the contrary of record entries required under the Act. This evidence had allegedly been provided by Mr. Gauthier in his testimony.

The Applicant's counsel concluded that, as the Respondent did not prove the alleged contravention, having failed to file and show evidence of operative documents, and did not prove that directives 47-30-05 and CF-90-03R1 had not been complied with, the Tribunal cannot uphold the suspension of the Applicant's licence.

RESPONDENT'S ARGUMENTS

Transport Canada maintained that during the hearing, the Applicant stated he had carried out the 100-hour inspection of the aircraft registered as C-FWFE and had complied with the requirements stated in the Airworthiness Manual. In its testimony, the Applicant confirmed that he had certified the inspection in the aircraft journey log and the aircraft technical log. According to the testimony heard at the hearing, the journey log burned in the aircraft during the accident.

Contrary to the Applicant's claims, the Minister's representative indicated that Chapter 571 of the Airworthiness Manual and Appendix A had been filed at the hearing.

The true copy of the technical log of the registered aircraft contains the certification of the annual inspection, stating that two airworthiness directives, CF-90-03R1 and CF-63-03, were complied with.

The Minister maintained that these entries, made by the Applicant, contravene section 221 of the Air Regulations. In fact, Mr. Gauthier failed to comply with the requirements of Appendix A and those of the applicable airworthiness directives. On this point, the Minister cited the Applicant's testimony and document T-1, the inspection form used by Mr. Gauthier and deemed incomplete by the Respondent.

In this context, it argued that Mr. Gauthier did not have in his possession checklists for ensuring that the airworthiness directives were complied with during the annual inspection.

In this regard, the Respondent explained that the Applicant had not complied with three out of a total of four applicable airworthiness directives, namely, Canadian directive CF-63-03R1, and two American directives, 47-20-01 and 47-30-05. Now, according to the Minister, failure to comply with any one of the three directives nullifies the aircraft's certificate of airworthiness.

The representative of the Minister of Transport also refuted the claims of Mr. Gauthier's counsel that the entry of directive CF-63-03 in the technical log meets the same requirements as those of directive CF-63-03R, and that CF-90-3R1 meets the requirements of directive 47-30-05.

According to the evidence presented, none of these directives can substitute for another.

Transport Canada explained that if Mr. Gauthier had carried out the annual inspection of the aircraft in accordance with the requirements issued, he would have noticed a crack and a bolt missing from the exhaust flange of the aircraft. He would also have tightened the bolt which was loose and corrected the exhaust pipe irregularities.

The Minister's representative considered that Transport Canada had proven, on a balance of probabilities, that the Applicant contravened section 221 of the Air Regulations. He maintained that in this case, the penalty assessed should be upheld. He asked that the Tribunal confirm the Minister's decision.

OBJECTIONS

Counsel for the Applicant objected to the filing of a statutory declaration signed by the Applicant on July 6, 1992. This document reads, in part, as follows:

On June 25 or 26, at the Saint-Honoré airport, I carried out the annual inspection of the Aeronca Chief aeroplane of François Daigneault: pull through compression checks, spark plugs, oils, structure, brakes, fuselage, and all moving parts on the aeroplane. Everything was normal. It departed for Dolbeau, and I have not heard from François since.

Counsel maintained that Mr. Gauthier had not been informed of his rights before signing this statement. The objection filed without prejudice at the hearing is overruled. The Tribunal, while it allows the document, attributes no importance to it. The information it contains has already been confirmed in the Respondent's testimony.

DISCUSSION

The arguments of the Applicant's counsel concerning the failure to file and prove the aircraft journey log, Chapter 571 of the Airworthiness Manual, Appendix A, and section 221 of the Air Regulations cannot be accepted.

The evidence presented at the hearing confirms the Minister's position on the matters relating to the aircraft's journey log. It is the Tribunal's opinion that secondary evidence has satisfactorily established the content of the journey log and the technical log.

The Applicant's testimony is eloquent on this issue. The fact that the text of the Notice of Suspension refers to the journey log is not, in the circumstances, a sufficient element for dismissing the Notice of Suspension. The Tribunal must use its discretion in applying the rules of evidence and procedure while abiding by the broad principles of equity and natural justice.

Contrary to the claims of Mr. Gauthier's counsel, Chapter 571 of the Airworthiness Manual and Appendix A of the same document were filed at the hearing. The Applicant acknowledged having received copies of these documents, and the Tribunal clearly allowed these documents, although it was not deemed appropriate to enter them in the list of exhibits.

As for section 221 of the Air Regulations, these regulations are published and did not need to be proven or filed. The Tribunal has judicial notice of the legislation and of federal regulations in the aeronautics sector.

The Applicant's assumptions and his observations as to the equivalencies of airworthiness directives cannot be accepted without the presentation of evidence or of an expert's opinion which contradicts the expert testimony brought by Transport Canada at the hearing.

In its argument, Transport Canada pointed out, and rightly so, that the regulations in force attribute responsibility for certification of compliance with the applicable standards to the aircraft maintenance engineer. This certification must be entered in the journey log and the aircraft technical log following the prescribed inspection.

The entries in the technical log show that Mr. Gauthier complied only with directives CF-90-03R1 and CF-63-03. There are no entries in the document for the other directives with which he was to comply.

According to the evidence of the Transport Canada expert, the directives for which there are no entries in the technical log or the journey log are to be deemed not complied with. These directives are, according to the Transport Canada expert, directive CF-63-03R1, 47-20-01 and 47-30-05.

The Minister of Transport had to show that the said directives were applicable in this case. Transport Canada met this requirement. It then had to establish that these directives had not been complied with. Here, the Minister showed that no mention of these directives was made in the aircraft technical log. These omissions constitute prima facie evidence that the directives were not complied with.

Moreover, section 593.113 of the Airworthiness Manual, Airworthiness Directives, Subchapter A, stipulates as follows:

Particulars concerning airworthiness directives and compliance therewith shall be recorded in the appropriate section of the aircraft maintenance record pursuant to Chapter 575 of this Manual.

In similar cases, section 28 of the Aeronautics Act allows countering evidence of the missing entry. In this case, the burden of proof rested fully with the Applicant.

The Applicant had to show, on a balance of probabilities, that he had met all the necessary requirements of Transport Canada, notably and specifically, that the directives not entered in the technical log had been complied with, in accordance with the directives issued.

Compliance or non-compliance with these requirements remains a question of fact to be assessed on the basis of the evidence presented.

The Applicant, Mr. Gauthier, with the aid of an inspection form, related what work is done during an annual inspection, referring on occasion to the 1992 inspection. According to his testimony, he used this form, which he himself prepared with the aid of the Airworthiness Manual, Appendix A, and Chapter 571, as a guide during this inspection. (This form was produced at the hearing as Exhibit T-1.)

Mr. Gauthier confirmed that he followed all the instructions contained in this form.

This form does not contain any reference to paragraph 571.5(c) of the Airworthiness Manual, which stipulates that all airworthiness directives applicable to an aircraft must be complied with during an annual inspection.

In his testimony, Mr. Gauthier made no reference to applicable airworthiness directives, either those entered or those not entered in the technical log. He gave no credible explanation for the omission noted from the technical log.

He discussed neither the content of these directives nor their relevance or applicability. No valid reference was made as to what he does to ensure that all applicable airworthiness directives are complied with in accordance with Transport Canada requirements. At the very least, Mr. Gauthier had to address these issues. He did not.

In the absence of the mandatory entries in the technical log, the Applicant had the burden of proving, on a balance of probabilities, that the applicable airworthiness directives had been complied with. He did not provide this proof to the satisfaction of the Tribunal.

Chapter 571 of the Airworthiness Manual, Maintenance of Aeronautical Products, clearly stipulates that:

571. 5(c) The certificate of airworthiness of an aircraft is not in force unless that aircraft is in compliance with:

(...)

(4) All applicable airworthiness directives issued by the Minister and, unless otherwise specified by the Minister, all applicable airworthiness directives and equivalent notices issued by the civil aviation authorities of the countries of origin of the aircraft, ...

According to the Respondent's claims, the Applicant did not comply with the requirements of one of the directives entered in the technical log, namely, directive CF-90-03R1.

An expert witness, having to his credit exceptional experience in the field of aviation, explained at the hearing that following the aircraft accident, he examined certain components of the aircraft.

During this examination, he noticed that a bolt was missing from the exhaust flange and a second bolt was loose. He also noticed a large crack in the exhaust pipe. According to his testimony, this situation existed before the accident and should have been corrected during the annual inspection.

He maintained that the various irregularities noted on inspection could easily have been corrected at the time of the inspection. These irregularities were probably detectable at that time.

Specifically, this expert indicated to the Tribunal that the crack observed must have been apparent "in the five to ten hours of flying time" completed before the accident. Now, according to the evidence presented by Transport Canada, the aircraft had completed approximately 4.5 hours of flying time between the inspection and the time of the accident.

The Applicant's counsel argued, and with good reason, that this estimate is based on the log of pilot Daigneault, and that in the circumstances it was impossible to determine how many hours of flying time were completed between the aircraft inspection and the accident.

Transport Canada had the burden of proving that the Applicant had not complied with airworthiness directive CF-90-03R1 entered in the technical log. It is true that the log containing the relevant information burned in the accident; Transport Canada could, however, have presented secondary evidence, which it did not do. The Applicant did not have to prove that the requirements of this directive had been complied with.

Moreover, the testimony of Ms. Caron as to the work done during the two inspection sessions cannot be accepted. Ms. Caron acknowledged during the hearing that she was absent on several occasions and often did not pay constant attention to the work Mr. Gauthier was doing.

While the Tribunal has considerable reservations about the credibility of Mr. Gauthier's testimony, Transport Canada had the burden of proving the allegations.

The Tribunal is of the opinion that the Minister of Transport has successfully proven that Mr. Gauthier did not comply with the directives not entered in the technical log and applicable in the circumstances. Evidence of non-performance of just one directive is sufficient to prove a contravention of section 221 of the Air Regulations.

The Tribunal must therefore confirm the decision of the Minister of Transport that the Applicant contravened section 221 of the Air Regulations.

The Tribunal must now determine whether the administrative measure taken by the Minister is reasonable in the circumstances. In this regard, the Respondent's representative argued as follows:

Our decision to suspend Mr. Gauthier's licence for this period of time is motivated, firstly, by the seriousness of the events which followed from these actions and omissions, and secondly, by an assessment of his record, which includes prior offences for which he had already been found guilty and convicted.

In his rebuttal, he added that:

Finally, we would point out that the Minister considered all of the Applicant's record before deciding as to the length of the suspension which is disputed here.

The Tribunal cannot accept the reasons cited as the basis for the one-year suspension of Mr. Gauthier's licence. In fact, the Tribunal has clearly established that it does not have the proper jurisdiction to rule on the cause of the accident which destroyed the aircraft belonging to Mr. Daigneault and Ms. Caron. Moreover, no evidence was brought as to the prior conduct or convictions of Mr. Gauthier.

After having reviewed all of the practices and the relevant case law, and after having considered the evidence presented by the parties, the Tribunal reduces the suspension of Mr. Gauthier's aircraft maintenance engineer's licence to thirty days.

Suzanne Jobin
Member
Civil Aviation Tribunal