CAT File No. O-0318-04
CIVIL AVIATION TRIBUNAL
BETWEEN:
Richard Whitney Bailey
- and -
Minister of Transport
Aeronautics Act, R.S.C. 1985, c. A-2, as am., s. 7.3(1)(a)
Knowingly making false representations for the purposes of obtaining a Certificate of
Airworthiness
Subsequent to having inspected and repaired an aircraft which had been submerged in a lake, the
applicant sought to obtain a certificate of airworthiness (C of A). The applicant signed a note stating
that the requirements of AMA 571.207 had been met, when this was not the case. The Minister
issued a 30 day suspension.
On review, the Tribunal confirmed the Minister's decision, holding that the applicant knowingly
made a false statement for the purposes of obtaining a new C of A. This conclusion was based on a
review of the facts known by the applicant at the time he wrote the note. The Minister's sanction was
upheld, with reasons.
REVIEW DETERMINATION Eberhard
September 10, 1992
Timmins, Ontario
The suspension is hereby confirmed and shall REASONS FOR DETERMINATION
commence at 24:00 o'clock on November 1, 1992, and
shall end at 24:00 o'clock on December 1, 1992. BACKGROUND
This is a matter arising pursuant to section 6.9 of the
Aeronautics Act where the Minister of Transport
decided to suspend the Canadian aviation document of
Richard Whitney Bailey on the grounds set out in a
2 Richard Whitney Bailey v. Minister of Transport
Notice of Suspension dated February 26, 1992. The Certificate of Airworthiness (C. of A.) for an aircraft
document in question is an engineers licence. The which has been subject to any abnormal occurrence is
allegation reads in part as follows: not in force unless the aircraft has been inspected for
damage resulting from the occurrence. Where the
"--- you have contravened the following inspection involves disassembly, the inspection is to be
provision(s): Aeronautics Act s. 7.3(1)(a) in that, performed by an appropriate licensed Aircraft
on or about June 3, 1991, in support of an Maintenance Engineer (AME).
application for a Certificate of Airworthiness for
Cessna C185 Aircraft, bearing registration The aircraft, submerged in Lake Ontario in September
CF-MMR, you knowingly submitted a hand
1989, was subsequently extricated and transported to
written letter to the Department of Transport,
Timmins District Office, stating that,
Earlton, Ontario. The Applicant applied for a C. of A.
"Requirements for AMA 571/207, Para.(9) have on May 21, 1991 on a form dated May 15, 1991
been met in regards to circuit breakers and (Exhibit M-4).
switches in CF-MMR C-185". On the strength of
this letter a Certificate of Airworthiness was With the application, Transport Canada received a
issued. Subsequently, during a routine work report in which there was no reference to the
inspection on June 14, 1991, by an Airworthiness replacement of circuit breakers in the aircraft.
inspector, it was found that per AMA 571/207
paragraph 9.(c)(4) toggle switches and circuit On May 22, 1991, inspector Treleaven advised the
breakers had not been replaced." Applicant that the circuit breakers had to be replaced.
Mr. Treleaven advised that the C. of A. would be
The suspension was to come into effect on March 27, issued only after circuit breakers and switches were
1992, and remain in effect until April 27, 1992. On changed in accordance with AMA 571-207(9). By fax
application, the suspension was stayed pending the on the same day, the Applicant enclosed a revised
result of this hearing." "Work Report" for the engine and other engine
requirements (Exhibit M-6). The additional Work
Paragraph 7.3(1)(a) of the Aeronautics Act reads as Report stated, in part:
follows:
"--- New C/B breakers and one toggle switch to
"7.3(1) No person shall be changed to compliled [sic] with 571/207.(9).
Although C/B's wre [sic] checked to verifiy [sic]
(a) knowingly make any false representation for that they did trip when their load was exceeded.
the purpose of obtaining a Canadian aviation As this is a privatley [sic] reg. aircraft most items
document or any privilege accorded thereby" are on a condition bases [sic] I felt that this forum
[sic] of testing these items would be ok. as per
The Minister called two airworthiness inspectors in the 571.207 item 3 on introduction the procedures
persons of Reginald Phillips and Robert Treleaven. described were not intended to be complete or to
The applicant testified himself and called a character cover all circumstances but that it was a guide to
witness, the Reverend James Smith. use and it was the responsibity [sic] of the
individual concerned to assess the circumstances
and decide on the apprpiate [sic] action to take."
THE FACTS
I am satisfied that there are two types of circuit
The facts which I accept are as follows. Cessna
breakers: Firstly, those which, due to their design, can
Aircraft 185, registered as CF-MMR required an
be dismantled, cleaned and dried and put back into
inspection after an "abnormal occurrence" as defined
service; and secondly, those which can not be put back
in Airworthiness Manual Advisory (AMA) dated
into service because they cannot be dismantled and
January 31, 1987, by virtue of an immersion in water.
Particulars of the AMA, Chapter 571.207 states that a
Richard Whitney Bailey v. Minister of Transport 3
reassembled. The Cessna 185 has circuit breakers "--- I would been (sic) installing them. On May
which fall into the second category. 25/91 when the owner arrived".
It was the opinion of inspector Treleaven, which I The Applicant had as of the time of the unscheduled
accept, that the Cessna in question had the circuit inspection of June 14, 1991, not "signed off" the Log
breakers that required replacement following an Book for the aircraft, which in his own mind meant that
immersion in water to meet the airworthiness test. It the aircraft was still unserviceable. He agreed that the
was for this reason that the Applicant was informed owner of the aircraft would not have been able to
that the C. of A. would not be issued because the work lawfully fly the aircraft as a result of not having made
report did not confirm that the breakers had been the necessary Log Book entries. It was the Applicant's
replaced. belief that two requirements had to be fulfilled in order
for a C. of A. to be in effect: Firstly, that the Minister
While the evidence is not clear, it was sometime had issued a C. of A.; and secondly, that an AME had
shortly after this exchange of communications that the "certified in the log book that the aircraft was
Applicant received new circuit breakers. For reasons airworthy."
that are not fully explained or clarified, the breakers
were not put into the aircraft. The Applicant testified The Applicant testified that the owner of the aircraft
that the owner had instructed that they not be put in. had advised him that Transport Canada required a
The Applicant apparently complied. letter to be on file in connection with the circuit
breakers. Regrettably, the owner did not testify, and
On June 3, 1991, the Applicant wrote a handwritten while it is not relevant to the issue to be decided, it
note to Transport Canada (c/o the Timmins Office) would have been helpful to better understand the
(Exhibit M-3) in respect of this outstanding item. The precise instructions given to the Applicant by the
note reads in its entirety: owner. I say it is irrelevant because this is not a case
dealing with the question of whether or not the aircraft
"RE: Requirements for AMA 571/207 par. (9) was in fact unserviceable by virtue of it not having in
have been met in regards to Circuit Breakers and force a current C. of A., but rather an issue relating to
switches in CF-MMR C-185." the basis upon which the C. of A. was issued by the
Minister. Accordingly, it is not relevant whether or not
The document is signed by the Applicant, Richard the letter written on June 3, 1991, by the Applicant,
Bailey. was motivated by some specific direction by the owner
or on the basis of some misunderstanding by the owner
On June 14, 1991, inspector Treleaven attended the in respect of the requirements of Transport Canada.
Earlton Airport where the Applicant carries on
business as an Aircraft Maintenance Engineer. The significant issue revolves around the facts known
Inconversation with Mr. Bailey, he was shown the on June 3, 1991 by Mr. Bailey; namely, that Transport
aircraft and did a cursory inspection. He noted that the Canada would not issue a C. of A. unless the Minister's
circuit breakers appeared not to have been replaced representative, Treleaven, was satisfied that the circuit
and after questioning the Applicant, received the breakers had in fact been changed.
admission that Mr. Bailey had not in fact changed
them, notwithstanding the telefaxed letter of June 3, On this critical issue, the Applicant knew that a letter
1991. had to be written in order to persuade Transport
Canada to issue a C. of A.
Bailey said, that while he had not changed them, he "---
was going to do it". In a letter dated December 2, 1991 I am satisfied on the facts that the letter of June 3, 1991
(Exhibit M-2), in an attempt to respond to the to the Minister advising that the requirements of AMA
allegations before me, the Applicant wrote: 571.207 had been satisfactorily complied with was
intended to prompt Transport Canada to issue a C. of
4 Richard Whitney Bailey v. Minister of Transport
A. There is no doubt in my mind that Mr. Bailey sent detailed instructions. In case of any conflict, the
the letter knowing that the effect of the letter would be manufacturer's instructions will prevail. The
to routinely generate the C. of A. from the Transport procedures described are not intended to be
Canada offices. complete, or to cover all circumstances. It is the
responsibility of the individual concerned to
assess the circumstances of each case and decide
I am further satisfied that at the time of writing the
on the appropriate course of action. In doubtful
letter, Mr. Bailey knew that the circuit breakers had not cases, the nearest Department of Transport
been replaced. (DOT) regional or district office should be
consulted."
The Applicant testified, and I accept his evidence on
this point, that he was perfectly aware of the In the case before me, there had obviously been
requirements set out in AMA 571.207. He disagrees consultation between the AME (Bailey) and the DOT
however that an inspector with Transport Canada (Treleaven). It was made perfectly clear to Mr. Bailey
could refuse to issue a C. of A. in the event that the that Mr. Treleaven would not authorize the issuance of
requirements for an inspection of an aircraft after an a C. of A. without compliance with this AMA. This
abnormal occurrence and general advice, set out in particular AMA goes on to refer specifically to the
AMAs to be heeded by AMEs during the course of inspections required regarding aircraft which have
such inspections, were mandatory. been immersed in water. Paragraph 9 of the Advisory
deals with this issue. It reads in part as follows:
The effect of the acceptance of this proposition would
be to allow maintenance engineers to simply ignore the "IMMERSION IN WATER. The following
directions and recommendations found in such AMAs. requirements are based on immersion in non
While there is agreement that these "advisory contaminated water; it is the responsibility of the
documents" are "not mandatory" or (in the words of AME performing the inspection to determine if
the Applicant, "Non-Regulatory"), they are important any contaminating elements exist, and extend the
guides to determine whether or not an aircraft can be scope of the inspection as necessary. ---The
certified. The advisories are very specific and in this general inspection requirements for aircraft
which have been immersed in water are listed
case include the introduction which reads in part as
below. ---"
follows:
Among the categories listed is one for "Electrical and
"Aircraft are approved to operate within certain
limits which are considered to constitute normal
Avionics Equipment" in which there is reference to the
operation. If these limits are exceeded due to relevant items:
abnormal occurrences, or if the aircraft is
exposed to some hazard or stress which was not "(4) replace toggle switches and circuit
catered for in the original design, the integrity of breakers."
the structure or the performance of the
powerplant(s) or systems could be impaired. The AMA leaves no uncertainty as to the inspection
Any report or evidence which indicates that requirements for circuit breakers.
approved limits have been exceeded, or that the
aircraft may have sustained damage, will This certitude is further corroborated by documentary
necessitate an inspection to ensure that the evidence from the manufacturers of the circuit
aircraft is still airworthy. The following breakers in question. Transport Canada requested of
paragraphs outline in general terms the
Potter and Brumfield (a Siemens Company) of
inspections required after some of the more
common occurrences. The procedures described
Princeton, Indiana, the manufacturer of the "W-58"
are intended to supplement manufacturer's circuits in question, what manufacturer airworthiness
recommendations, or to cater for those instances requirements would be in the event of immersion in
where the manufacturer has not provided any
Richard Whitney Bailey v. Minister of Transport 5
uncontaminated waters. The Application Engineer clients. Transgressions must be dealt with firmly so as
from Potter and Brumfield responded as follows: to ensure that the trust which is so necessary in
facilitating the regulatory scheme, deters others from
"In answer to your inquiry regarding Potter and betraying the code of ethics which is the foundation of
Brumfield W58 circuit breakers submerged in the relationship between Aircraft Maintenance
water, Potter and Brumfield Engineering Dept. Engineers and others in the aviation community.
recommends that these units be discarded. No
amount of testing, cleaning or baking can assure
Here, the Applicant clearly was aware that a Transport
that these units are suitable for use. Due to the
Canada Airworthiness Inspector would not have issued
design and construction it is impractical to
disassemble and clean a W-58 circuit breaker." a C. of A. were it not for the representation made to
him by an Aircraft Maintenance Engineer. Obviously,
CONCLUSION he disagreed with the Inspectors' authority and reasons
for withholding the C. of A., but this is of little help to
In summary, I am satisfied that the Airworthiness him in responding to this charge. As well, it may be
Inspector was correct in his assessment that this Cessna that pressure from his customer (the owner of the
185 required the replacement of its circuit breakers. I aircraft) led him to make the statement to foster the
am further satisfied the Applicant was aware that prior commercial relationship or for some other unexplained
to the writing of his letter of June 3, 1991, Transport reason. This will be an expensive and embarrassing
Canada would not issue a C. of A. until such time as the lesson for this AME. But, a professional relationship
authorities were satisfied that the circuit breakers had demands nothing less than the integrity of a licensee
been replaced. Further, I am satisfied that the letter of who is expected to resist the impulse to act or be
June 3, 1991, was written by the Applicant with a view influenced by a client in a way which is inconsistent
to satisfy the condition imposed by Treleaven for its with his higher duty to the aviation community and to
issuance. his vocation.
Bailey knew that, in submitting the handwritten letter It was on the basis of the trust implicit in the
to Transport Canada stating that the requirements for acceptance of his representation that the C. of A. was
AMA 571/207, Para (9) had been met in regard to the issued. It does not take much of an imagination to
circuit breakers and switches, he made a false envision the tragic consequences which could result
representation. from breaches of this particular section of the
Aeronautics Act. Accordingly, I find no reason
On the basis of my findings of fact, I conclude that the tointerfere with the imposition of a 30-day suspension
Applicant knowingly made the false representation for of the Engineering licence of the Applicant by
the purpose of obtaining a Canadian aviation Transport Canada.
document, and has therefore contravened paragraph
7.3(1)(a) of the Aeronautics Act. Accordingly, the suspension is hereby confirmed and
shall commence at 24:00 o'clock on November 1,
I have considered the matter of the sanction imposed 1992, and shall end at 24:00 o'clock on December 1,
by Transport Canada in the form of an engineering 1992.
licence suspension for a period of 30 days. Clearly, it
is expected that professionals operating within the
framework of the regulatory scheme promulgated by
the Aeronautics Act must provide accurate
information upon request. They must be deterred from
misleading those persons ultimately responsible for
aviation safety by making false declarations or
representations to facilitate the interests of private