The Lack of Proper Focus

One private pilot’s legal wrangle with Transport Canada raises the larger issues
of fairness and common sense. TC might benefit from both  .  .  .

My article “Issues related to Quality Assurance” in the October–November issue was missing some information that I had included in my original draft, but was somehow omitted in the final print version. To fill you in, the Transport Canada (TC) auditor exemption for the One-Person Approved Maintenance Organization (AMO, as approved by TC) can be found at this TC website: http://www.tc.gc.ca/CivilAviation/Regserv/Affairs/exemptions/docs/en/1827.htm . Last issue you may have noticed some improvement in my grammar
away from the usage of big words and snarky comments. I’m back.

To start off this issue, an email from Wayne Dick has me drawn back to expound upon our old friend, the Airworthiness Directive (AD). Mr. Dick’s query relates to the status of AD records involving service bulletins issued by the TC Holder and his emphasis is on the requirements of the various Civil Aviation Authorities (CAAs) when aircraft containing these “Service Bulletin Airworthiness Directives” (SBAD) are exported and imported from and to Canada. The answer is not a simple “Do This” procedure, but involves a lot of work on your part.

First, a bit of background info. As many of you know, when the CAAs, including TC, contemplate issuing an AD to address an aircraft problem they issue the AD incorporating TC Holder documents such as service bulletins, letters or kits. This is the case with many ADs because it is the TC Holder’s responsibility to provide “continued airworthiness” support to aircraft owners, and because the TC Holder usually has the design knowledge to better devise corrective action. If the CAA that issues the AD is also the CAA responsible for the type certificate (and the TC Holder), then that CAA conscripts the TC Holder to engineer and publish an adequate corrective action in a documentary form such as a service bulletin. When that corrective action is deemed adequate, that CAA publishes the AD referring to that service bulletin.

That process involves the TC Holder in the ongoing continued airworthiness of the aircraft including the making and selling of improved parts.  It also saves the government a bunch of time, paper and money in engineering work.

Now for the Canadian Aviation Regulations (CARS, which is a law of Canada), and your involvement. Here is a listing of TC requirements and informative notes regarding ADs that you need to have at hand and some familiarity with:

•    CAR 605.84 Aircraft Maintenance – General has the requirement to comply with ADs and provides the details of the requirement.
•    CAR 605 Schedule II item four addresses AD technical recording.
•    TC approved STandarD (STD) 625.84 Aircraft Maintenance – General Information Note IV provides more information on applicability.
•    STD 625.93 Technical Records – General paragraph four Information Note ii) provides alternate technical record format.
•    STD 625 Appendix H is the big picture document providing an AD summary in 1,200 words.
•    STD 571.10 Maintenance Release paragraph (three) addresses responsibility as per CAR 605.84.
•    STD 571.10 paragraph (four) Table – Types Of Work – Additional Standards, item (g) identifies records content requirements

Note that the regulations specify the owner responsible for ADs. When importing an aircraft into Canada, you get lists of all the effective Canadian and applicable foreign ADs. The next step is to research the aircraft records. The next step addresses the perplexity that Mr. Dick related to. (See my interpretation in the table.) The AD record found is on the left and your action on the right:

Note: The reference to International Agreements refers to the limited acceptance of foreign maintenance certifications. The TC web page listing this is: http://www.tc.gc.ca/eng/civilaviation/standards/int-menu-3668.htm . It also includes EASA/Europe if the organization is also approved by TC.

If TC is true to form, the TC digerati will soon change those web pages so nobody can find the information.

Now for something completely different. Many aviation professionals and amateurs work and play in fear of big brother TC. If you have a TC enforcement action started against you, you have the right to demand a Transportation Appeal Tribunal of Canada (TATC) hearing. That notification is contained in whatever form you receive notifying you of the TC action. If you disagree with the punishment, you need to appeal to the TATC immediately as indicated on the form. The principle behind the use of the TATC is to save you from the cost and complexity of going to court. It is alleged to provide you with the opportunity to argue your case free of delays and contortions of the legal system and of the generally unintelligible legal lexicology of lawyers with all of the attendant court costs. The theory is that you show up at the TATC hearing with your support information and witnesses if necessary for a fair hearing. The procedures are conducted in a common-sense manner and you will be given a full opportunity to be heard.

The “judge” of the TATC hearing is one or three people with some aviation background who listen intently to what you present, and they record every word. The hearing is an appeal so you will be the Applicant. TC will be the Respondent and will be represented by a Civil Aviation Safety Inspector (CASI) from the TC Enforcement section and the CASI that originated the action.

For a complete guide to the process for the applicant which may be you, visit: http://www.tatc.gc.ca/s5/s31/eng/guide-applicants-aviation-mode
That’s the way it is intended to work, but TC has been known to try to foil the fairness factor of the process and that is my next topic.

Recently I attended a TATC hearing held here in Vancouver. In this case, I will refer to the Applicant as Mr. B.  He was appealing a $1,000 fine for flying a helicopter with some expired parts installed. After about 40 years of flying with a clean record, Mr. B. felt that he had been unfairly punished and ought to have received a warning known as an Oral Counseling. Mr. B. and the TC enforcement people had agreed that they didn’t need to involve the use of lawyers. Mr. B. showed up at the hearing where, lo and behold, the unthinkable happened. TC showed up with their high-powered legal counsel flown in from Ottawa for this hearing. Mr. B. was dismayed by this turn of events but kept up his determination to present his case. If TC meant to flatter Mr. B. with all their specialist’s attentions, it did not happen.

Mr. B. was very well prepared to argue his position. He had so much evidence to present that the hearing went on well beyond the allotted time of three or four days. Due to the busy schedules of all involved, including Mr. B., the hearing was extended to four (yes, four) sessions spread out over 13 (yes, 13) months. This hearing was “heard” by the TATC chairman, the very knowledgeable and sensible Mr. Hall. After considerable rumination on the hearings, the TATC decision stated that, “due to mitigating factors, the penalty is lowered from $1,000 to $100.” Those mitigating factors included having received the apparent blessing for this ferry flight by the aircraft TC Holder and by the AMO/AME that had been maintaining the aircraft under commercial registration.

Very few people will ever know how much it cost to prosecute this non-professional pilot flying his privately registered aircraft on a single ferry flight. Mr. Hall and the TC lawyer came from Ottawa and stayed downtown for a couple of weeks. Other costs included the rental of the courtroom, hiring the court reporter and the pay of the other TC employees in constant attendance. This would have cost more than a trip to the Swiss Alps or Aruba.

Once again, at the time I am writing this, the minister has shown his pugnacious side. TC has appealed the decision and aims to “get their man.” Sometimes I think some TC personnel see themselves as major crime fighters.

Now the whole process starts over at the TATC second level. There will be three TATC members for the appeal to the appeal. They and the TC legal counsel will be brought into Vancouver and put up in a downtown hotel with all the attendant costs. I will keep you informed of the changes in this case. By the time you read this, the TATC decision will be posted at: http://www.tatc.gc.ca/decision/decision.php?&lang=eng

My purpose of going into detail on these hearings is to draw your attention to the underlying factors and to point out the possibility of this being you. Most of the CARs and attending standards are a complex mix. For the most part, they are impenetrable to people who are not expert in a particular aspect. For example, I don’t understand piloting and air traffic control in sufficient detail to stay out of trouble. Almost all operators, both private and commercial, totally depend on the knowledge and skills of maintenance personnel to keep their aircraft and operation legal. If the AME/AMO says the aircraft is good to fly, the pilot operator takes it and flies around until the next scheduled check. This fact needs to be recognized by the minister and staff, not only to be fair to the industry and the individuals involved in it, but also to properly focus the TC resources as they are eroded. The perspective or argument regarding fairness has its merits. At some point in the process, this factor needs to be weighed by the authorities.Before jumping on the person or company with enforcement, the minister needs to ask this question of self: “What is the cheapest way to get future compliance?”

With that, I see I have run out of time and space, so Ta-Ta For Now.

Please be aware that I am not a lawyer or legal expert. What I write in my column is not legal advice or legal opinion. If you face a legal issue, you must get specific legal advice from a lawyer and preferably one with experience in the aviation matters in your own country.