Airworthiness and conformity to type design
YESTERDAY, my attention was drawn to a recent legal judgement detailing how Transport Canada had wrongly interpreted its own regulations and handing a small but significant victory to aircraft owners and operators. If you’re an owner, an operator, or if you’re planning on taking a flight test any time soon you’ll want to read this.
One of the elements of most Transport Canada flight tests is to test the candidate’s knowledge of airworthiness requirements. You will probably know that in order to fly an airplane, that airplane has to have a “flight authority” – a document from the government permitting the airplane to fly. In most cases that flight authority takes the form of a Certificate of Airworthiness. Regulation 605.03 stipulates
605.03 (1) No person shall operate an aircraft in flight unless
(a) a flight authority is in effect in respect of the aircraft;
(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and
(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.
When an aircraft has a Certificate of Airworthiness, you will see that Regulation 502.07 and 502.11 together work to provide the conditions under which the C of A is valid:
507.11 Unless surrendered, suspended or cancelled, a flight authority issued pursuant to this Subpart remains in force ... if the aircraft continues to meet the conditions subject to which the flight authority was issued.
What are the conditions subject to which the C of A was issued? Here they are:
507.02 Where an application for a flight authority is made pursuant to section 507.06, the Minister shall issue a certificate of airworthiness in respect of an aircraft
(a) for which an aircraft type design has been certified by the Minister and the certification is not in respect of a restricted category aircraft;
(b) that conforms to its certified type design; and
(c) that is safe for flight.
So the C of A is valid as long as the aircraft both conforms to its type design, and is safe for flight.
Now Transport Canada has long held that any broken part or defect renders the aircraft no longer in conformity with its type design, thereby temporarily invalidating the C of A, without which it is not allowed to fly. According to this argument all defects, no matter how minor, must be fixed before an aircraft can lawfully fly.
Note that here is a special section of the regulations dealing with defective equipment and whether defects there can be deferred – but if your defect is in part of the airplane proper, and not in something fitted to it (like a flight instrument), then there is no deferral process. Fix – or stay on the ground.
An example of how this worked was an enforcement action brought against Exploits Valley Air Services (EVAS), a small Canadian airline, which in 2018 was issued a fine of $5000 by Transport Canada for flying a Beech 1900 aircraft with a cracked landing gear cover. There were also a couple of missing rivets. The justification for the fine, said TC, was that the defects rendered the airplane out of conformity with its type design, invalidating the C of A. Therefore it had no valid flight authority at the time it flew.
EVAS appealed to the Transportation Appeal Tribunal of Canada – the body set up to adjudicate disputes between Transport Canada as the regulator, and those against whom TC decided to take enforcement action – fines, penalties, suspensions and the like.
The first appeal went in favour of TC – the fine was upheld. So EVAS appealed to the next level – a three member panel. They appealed on a whole range of grounds, a case of throwing everything at the wall and seeing what sticks. But the appeal panel threw out Transport Canada’s case on the very first point of appeal, that the first tribunal (and Transport Canada) had wrongly interpreted the law. Quite reasonably the panel’s analysis began with the definition of “type design”, which is listed in the regulations as follows:
type design means
(a) the drawings and specifications, and a listing of those drawings and specifications that are necessary to define the design features of an aeronautical product in compliance with the standards applicable to the aeronautical product,
(b) the information on dimensions, materials and manufacturing processes that is necessary to define the structural strength of an aeronautical product,
(c) the approved sections of the aircraft flight manual, where required by the applicable standards of airworthiness,
(d) the airworthiness limitations section of the instructions for continued airworthiness specified in the applicable chapters of the Airworthiness Manual; and
(e) any other data necessary to allow, by comparison, the determination of the airworthiness and, where applicable, the environmental characteristics of later aeronautical products of the same type or model;
The panel said that because of the wording of this section, the list was exhaustive. If a document or data was not included in the list, it could not be part of the type design. In particular:
A … notable feature of this definition is that, by paragraph (d), the only portion of the aircraft instructions for continuing airworthiness (generally, the aircraft maintenance manual and related documents) that is part of the “type design” is the “limitations section”. It follows that the remainder of the maintenance manual is not part of the type design.
We therefore note that when the Minister’s witness testified that the maintenance manual and the illustrated parts catalogue are part of the type design, he was incorrect as a matter of law. Rather, in accordance with the CARs definition, only the limitations section of the maintenance manual is part of the type design, and parts catalogues are not part of the type design.
Relating this back to the definition of “airworthiness”, clearly wear, damage or other unserviceability could render the aircraft not airworthy under the rubric of “fit and safe state for flight”. So too could a failure to follow a maintenance manual or any other requirement mandated by the Minister. However, it is far from clear that any such issue also inevitably engages a question of conformity with the type design.
They went on:
[W]e are forced to reject an interpretation of the CARs that would deem any aircraft which is not in new condition and not within a tolerance explicitly specified in the instructions for continued maintenance, to be non-conforming. Such an aircraft might well be unfit, or not in a safe state for flight. But to say that it is also non-conforming is to add an additional and unnecessary element to the interpretation of the CARs that is neither found in a plain reading nor supported by the scheme or purpose of the regulations.
 Rather, our view is that the occurrence of a defect in an aircraft part does not, in itself, raise a question of its conformity to type design. Rather, it brings into question whether the part is in a fit and safe state for flight.
And with that, the panel allowed the appeal; because TC had already admitted that the defect for which EVAS was fined was not a safety matter, and did not render the aircraft unfit for flight, the enforcement action was ended and the fine cancelled.
This is quite a big deal for those of us (aircraft owners and operators) who are responsible for having aircraft maintained and for compliance with regulation, and who are committed to staying on the right side of what can seem some quite draconian requirements. It makes it clear that for Transport Canada to issue a fine for flying an aircraft that is not in factory-new condition (and which are?) it has to make a case that there is a defect that actually renders an aircraft either unsafe or unfit for flight. Although that might seem like common sense to most, it has not until this ruling been the position that Transport Canada has adopted. So this result seems like quite a big deal to me.
You can read the full tribunal decision here – it’s well worth a read.
As an end note, let me say that although I don’t know what EVAS spent on lawyers’ fees, it was probably a lot more than the $5,000 they saved on appeal. What they did do was buy the rest of us a useful precedent. You might want to say thank you!