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Amendment 0 (1986-87)

TRANSLATION

CAT File No. Q-0033-12

CIVIL AVIATION TRIBUNAL

BETWEEN:

Gérald Boulianne

- and -

Minister of Transport

ANO II, No. 3, s. 3(d)

Certificate of registration

The applicant purchased an amateur-built helicopter in the United States and one year later, filed an application for a certificate of registration. The respondent issued a certificate of registration but cancelled it two months later. The applicant filed for review.

On review, the Minister's decision was confirmed. The applicant's helicopter was not eligible for the certificate since more than 50 per cent of the construction had to be carried out and controlled in Canada. The Tribunal held that it cannot grant a derogation from the regulations. Furthermore, an aviation document is obtained under precise rules and stringent standards; it is revocable whenever the holder does not meet these standards.

REVIEW DETERMINATION Rouleau

October 9, 1987
Jonquière, Quebec

DISMISS the Applicant's request and CONFIRM the decision dated March 26, 1986, cancelling the certificate of registration of the Scorpion II aircraft, serial No 2557.

On June 25, 1984, the applicant purchased an amateur-built Scorpion II helicopter, serial No 2557 (exhibit M-1) in the United States. At that time, no amateur-built helicopter could be registered in Canada. It was only after May 16, 1985 that Air Navigation Order, Series II, No 3 was amended to authorize the issuance of a flight permit to amateur-built helicopters and, consequently, the issuance of a certificate of registration to such helicopters.

On May 21, 1985, the applicant therefore filed with the Department of Transport an application for a certificate of registration (exhibit M-4) for the helicopter he had acquired one year earlier.

On February 10, 1986, the applicant received the certificate of registration (exhibit M-6), for his Scorpion II aircraft, serial No 2557. However, on March 26, 1986, Transport Canada withdrew this certificate of registration from him and cancelled it.

On August 18, 1987, the applicant filed with the Registrar of the Civil Aviation Tribunal a request for review of Transport Canada's decision to withdraw his certificate of registration and not to grant him his flight permit.

Although the certificate of registration and flight permit were obviously interrelated, the Tribunal has jurisdiction only over the decision to withdraw his certificate of registration, since it was the only Canadian civil aviation document in the file.

Therefore, in this decision, we are disposing of the request for review of Transport Canada's decision to cancel the certificate of registration of the DeNunzio Scorpion II helicopter, serial No 2557.

Before purchasing the helicopter, the applicant had made inquiries of two Transport Canada representatives, whose name he cannot remember, regarding the procedures to be followed in obtaining his permits in Canada if he proceeded with the purchase of the said aircraft. The first representative allegedly told him that he would never be able to have this type of aircraft registered in Canada; the second apparently mentioned that the Act would be amended and that it was only a matter of days or months before amateur-built helicopters would be approved in Canada.

He also spoke with Mr. Fiset, President of the Amateur Sport Flying Association, who thought that in Western Canada the amateur building of helicopters would perhaps be allowed.

Although this information seemed contradictory and vague, the applicant nonetheless proceeded to purchase the said helicopter on June 25, 1984 and brought it into Canada shortly after. Mr. Boulianne argued that if this type of helicopter was not approved in Canada, customs ought not to have allowed its entry in Canada. Obviously, the Tribunal cannot accept this argument since it has no jurisdiction over Canada Customs. In any events, it is not illegal to own this type of helicopter; what is illegal is to fly it in Canada without a flight permit and without a certificate of registration.

In June 1984, there was no Act or Order permitting amateur-built helicopters to be registered in Canada. Mr. Boulianne stated that in order to obtain his certificate of registration his only recourse, on the recommendation of a Transport Canada representative, was to exert political pressure so as to speed up the passage of the amendment permitting the registration of amateur-built helicopters. Therefore, on April 30, 1985, he sent a letter to the Minister of State for Transport, the answer to which is filed as exhibit M-15.

Since the amendment was passed on May 16, 1985, Mr. Fortin and Mr. Deroy proceeded to inspect the said aircraft on May 21, 1985, at the request of Transport Canada's Ottawa Office. Their report was filed as exhibit M-3.

On February 10, 1986, Mr. Boulianne received the registration certificate (exhibit M-6) for the said aircraft. The delay between the inspection and the certification was due to the fact that the aircraft was still registered in the United States and it took fairly long to have registration cancelled.

On March 26, 1986, the applicant received a document notifying him that his certificate (exhibit M-9) was cancelled because the helicopter was not eligible for the said certificate.

In fact, according to section 1.8.6 of the Engineering and Inspection Manual, more than 50 per cent of the construction must be carried out and controlled in Canada.

"1.8.6 Construction

(a) the major portion (more than 50 per cent) of an amateur-built aircraft, including those supplied in kit form, shall be fabricated from raw materials and assembled..."

Section 9.3.1.7 (exhibit M-14) of the flight permits regulations reads as follows:

"9.3.1.7 ELIGIBILITY OF FOREIGN AMATEUR-BUILT AIRCRAFT

Except as otherwise provided in the Engineering and Inspection Manual amateur-built aircraft manufactured and/or assembled outside of Canada (imported either in a partially completed or a completed state) are not eligible for the issuance of a Canadian certificate of registration or flight permit."

The applicant argued that he followed the instructions of Transport Canada's representatives and that he was misled. Since he had always acted in good faith, since he had done the repairs suggested in the inspection report and since, according to him, Transport Canada made an error, the Minister of Transport should give him back his certificate of registration.

The letters of April 7, 1986 and December 20, 1986, filed as exhibits M-10 and M-11, give a fairly succinct summary of the applicant's arguments.

The spokesman for Transport Canada admitted the main facts.

Mr. Fortin, an inspector with Transport Canada, testified that he had received a request from Mr. Khouzam of the Ottawa office to inspect an amateur-built helicopter.

Mr. Fortin and Mr. Deroy carried out the said inspection and noted that the helicopter was not airworthy. The recommendations in the report (exhibit M-3) are directly related to restoring its airworthiness. They noted that the aircraft was secondhand and built in the United States. The request came from a superior in Ottawa, so that they were under the impression that he was aware that the aircraft was foreign built.

According to Mr. Bourgault, the misunderstanding revolved on the fact that the Ottawa office did not know that the helicopter had been built in the United States.

He filed as exhibits M-7 and M-8 two internal messages referring to this misunderstanding and asking that the certificate of registration sent to Mr. Boulianne be withdrawn.

He admitted that there had been a lack of communication between Quebec and Ottawa offices.

The certificate of registration was issued in good faith. As soon as Transport Canada's representatives noticed the error, they acted immediately. The regulations (exhibits M-13 and M-14) on this subject are clear.

According to Mr. Bourgault, Transport Canada cannot permit such a major derogation of the Act and does not want to set a precedent.

The applicant admits that Transport Canada's representatives acted in good faith but, given the circumstances, he would like his case to be considered an exception.

The Tribunal cannot grant a derogation; it must apply the Act and, where necessary, interpret it. The regulations applicable to the present case do not lend themselves to interpretation.

Furthermore, an aviation document is obtained under precise rules and stringent standards; it is revocable whenever the holder does not meet these standards.

FOR THESE REASONS, THE TRIBUNAL DISMISSES the applicant's request and CONFIRMS the decision dated March 26, 1986, cancelling the certificate of registration of the Scorpion II aircraft, serial No 2557.

Date modified:

2010-03-31

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