Decisions

CAT File No. Q-1581-33
MoT File No. NAP-6504-P-139725-30147

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Bruno Saint-jacques, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 103.08, 602.101(e)

FSS Communications, Clearing Runway


Review Determination
Pierre Rivest


Decision: June 15, 1998

TRANSLATION

I uphold the Minister's decision and confirm the assessed monetary penalty of $250.00. The said penalty shall be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within fifteen days of service of this determination.

The Review Hearing on the above matter was held Monday, June 8, 1998, at 10:00 hours at the Federal Court of Canada in Montreal, Quebec. The witnesses were sworn in.

BACKGROUND

The Respondent, Mr. Bruno Saint-Jacques, is accused of having contravened paragraph 602.101(e) of the Canadian Aviation Regulations (CARs) by failing to inform the Mont-Joli flight service station (FSS) ("MF reporting") that he had cleared runway 28 at Baie Comeau, after landing. The offence allegedly occurred July 25, 1997. The flight in question was flight AMO 401. He was assessed a monetary penalty of $250.00 pursuant to section 103.08 of the CARs.

THE LAW

Paragraph 602.101(e) of the CARs provides:

The pilot-in-command of a VFR aircraft arriving at an uncontrolled aerodrome that lies within an MF area shall report

(...)

(e) when clear of the surface on which the aircraft has landed.

THE FACTS

Before the facts were presented, Mr. Jean Paul Leblanc, for the Respondent, filed a motion that he considered the case closed and that there was no reason to proceed with the hearing.

To support his claim, he referred to a letter from the Tribunal (Exhibit T-1), dated January 14, 1998, which states, and I quote, "... that the notice of assessment of monetary penalty ... has been withdrawn, (and that) ... the hearing ... has been cancelled and the file is now closed" (translation).

In reply, the Applicant produced a letter (Exhibit T-2) dated January 14, 1998, in which the Minister rescinds the notice of assessment of October 30, 1997, (because, it says, of a procedural error), and replaces it with that of January 14, 1998, which notice is among the documents of this hearing.

After discussion between the Tribunal and both parties, I denied the Respondent's motion and asked the case presenters if they were ready to proceed with their respective presentations.

The Applicant then produced a document (Exhibit M-1) which is a letter signed by Mr. Jean Paul Leblanc in his capacity as chief pilot of the company Air Montréal, owner of the aircraft involved in the incident of July 25, 1997, in which he states that the copy of the journey log of the aircraft in question (M-1, page 2) is consistent with the facts.

Finally, Mr. Tamborriello corrected the date of a letter sent to the Respondent to which were attached the documents he proposed to disclose at this hearing; the date should have been May 13, 1998, not May 26.

In the last two instances, the Respondent made no objection.

For the Applicant

The Applicant called just one witness, Mr. Richard Bourgeois, a specialist from the Mont-Joli FSS and the person who witnessed the incident of July 25, 1997, involving flight AMO 401.

His testimony, supported by two documents (M-2 and M-3), may be summarized as follows:

  • Flight AMO 401 failed several times to report in while travelling from Mont-Joli to Baie Comeau, and then on to Bonaventure. I accepted, however, only paragraph 3 of his report (M-2, para. 3) as relevant to today's case, namely, that it failed to report in after clearing the Baie Comeau runway.
  • Document M-3 (the transcript of radio communications) shows that between 1250:50 (12 hours, 50 minutes, 50 seconds) and 1258:45, flight AMO 401 did not contact the FSS to report that it was clear of the runway.
  • At 1253:13, Mr. Bourgeois asked the pilot of flight AMO 401 to report in once he had cleared the runway, which he agreed to do.
  • The only communication from flight AMO 401 after that of 1254:00 was at 1301:37, when the same flight confirmed that it had cleared the runway, stating that it was "moving ... for repositioning (on) runway 28 (for) take-off (to) Bonaventure."

The tape recordings from which the transcripts in document M-3 were produced were not available at the hearing, but the Respondent agreed that the said transcripts were consistent with the facts.

In cross-examination, the Respondent attempted primarily to determine what the rule was governing the acceptable and reasonable time lapse between clearing a runway and providing radio confirmation of clearance.

An air traffic control directive (not available) apparently states three to five minutes after an aircraft's report on final. In this particular case, it was a security unit (referred to in document M-3 as Personnel 40) that informed the witness that flight AMO 401 had cleared the runway. Five minutes had passed between the last communication from flight AMO 401 and this confirmation by Personnel 40.

To conclude its evidence, the Applicant submitted to the Tribunal the following additional documents and explanations:

  • Baie Comeau is an uncontrolled airport (Exhibits M-4 and M-5);
  • it is an MF (Mandatory Frequency) area;
  • the mandatory frequency is 118.3 (M-4 and M-5);
  • the definition of an uncontrolled airport is established, when all is said and done, by elimination after reading the definition of a controlled aerodrome in subsection 101.01(l) of the CARs, which reads: "'controlled aerodrome' means an aerodrome at which an air traffic control unit is in operation". Baie Comeau is not such an aerodrome;
  • the definition of "mandatory frequency" is found in subsection 101.01(1) of the CARs: "'mandatory frequency' means a VHF frequency specified in the Canada Air Pilot or the Canada Flight Supplement for the use of radio-equipped aircraft operating within an MF area".
  • subsection 602.98(1) and paragraph 602.98(2)(a) of the CARs stipulate:

602.98 (1) Every report made pursuant to this Division shall be made on the mandatory frequency that has been specified for use in the applicable MF area.

(2) Every report referred to in subsection (1) shall be

(a) directed to the ground station associated with the MF area, if a ground station exists and is in operation;

All these definitions apply to this case.

For the Respondent

The Respondent himself testified and described what happened before and after the incident in question. To summarize:

  • he confirmed that the pre-landing communications, as they appear in the transcript in document M-3, are accurate;
  • he contended that he made contact immediately on clearing the runway, but had some doubt as to the radio frequency used; it may have been on that of Air Satellite to whom he was to deliver a package;
  • the stop in front of the terminal was very brief (about two to three minutes), and he believed there was not necessarily a time limit within which he had to report.

The cross-examination revealed nothing further.

It is important to note that at no time was the quality of the radio communication between Baie Comeau and Mont-Joli questioned.

ARGUMENTS

For the Applicant

Mr. Tamborriello summarized what we had just heard. He dwelt on the issue of the allowable time interval between an aircraft clearing the runway and radio confirmation on the mandatory frequency. He concluded that if the regulations specify no particular time interval, it is because the legislator intended confirmation to be given forthwith. Had the legislator wanted to specify a time interval (as had been done for the flight plan closing), this would have been done.

As the purpose of paragraph 602.101(e) of the CARs is to ensure that the aircraft has indeed landed, as well as to allow FSS specialists to manage air traffic more easily, it is assumed that there must be no delay.

It should be added that section 602.99 of the CARs, requires that a pilot report his intentions by radio before entering a manoeuvring area:

The pilot-in-command of a VFR or IFR aircraft that is operated at an uncontrolled aerodrome that lies within an MF area shall report the pilot-in-command's intentions before entering the manoeuvring area of the aerodrome.

Finally, it is specified that the MF frequency is that stipulated in the Canada Air Pilot or the Canada Flight Supplement and not another frequency chosen by the pilot (subsection 101.01(1) of the CARs).

As for the communication from flight AMO 401 at 1301:37 for repositioning, that pertained to another flight, the one from Baie Comeau to Bonaventure. That contact cannot substitute the one that should have been made during the previous flight from Mont-Joli to Baie Comeau.

For the Respondent

Mr. Leblanc acknowledged that, pursuant to the above cited sections, a pilot must report in once he has cleared the runaway. He repeated that the Respondent did in fact report that he was clear of the runway, but may have used the wrong radio frequency. Furthermore, the Respondent confirmed that he had cleared the runway when he contacted the FSS again at 1301:22.

He added that nowhere does it state that this must be done immediately after leaving the runway or within a specific period of time. In any event, he believed that the seven minutes that had elapsed between the report of flight AMO 401 on final at 1254:00 and the subsequent contact at 1301:22 was acceptable.

Moreover, two minutes after the landing, the Mont-Joli FSS was aware that the aircraft had cleared the runway; at no time was aviation safety compromised.

SUMMARY

The date, time, flight number, radio communication (quality and transcript), pilot-in-command, and obligation to report in after clearing the runway are not questioned.

The issue of the Baie Comeau airport being an uncontrolled aerodrome and the mandatory frequency (MF) are acknowledged. I would add that no other frequency can be accepted as complying with the regulations. Moreover, the regulations state that it is the pilot who must report, and not another unit, whether mobile or stationary.

While the Respondent argued that he made contact as soon as he cleared runway 28 at Baie Comeau, he did not remember the radio frequency.

The point that remains in dispute is therefore the following:

  • The regulations do not stipulate how much time can elapse between an aircraft's clearing of a runway and radio confirmation of such clearance. In this case, the alleged interval was seven minutes. Is that acceptable, reasonable, or too long?

In my view, the regulations make no provision in this last regard, and I do not accept the Applicant's reasoning that if no time interval is specified, the inference is that confirmation be given forthwith. The three-to-five-minute interval cited by the witness Bourgeois in cross-examination is a directive, not a statutory provision. Had flight AMO 401 terminated at Baie Comeau and had the pilot contacted the Mont-Joli station, let us say, ten minutes after clearing the runway, I believe he would have met the requirement of paragraph 602.101(e) of the CARs, at least legally. I would suggest that, given the importance of this section, the desired time interval be set out more clearly in the regulations.

However, when the pilot contacted the Mont-Joli station at 1301:22, it was to reposition himself on the runway and continue on his way to Bonaventure, not to confirm that he had cleared the runway. Although, at that moment, runway clearance was confirmed, it was in response to a question from the FSS specialist, and not at the pilot's initiative.

Finally, I find the monetary penalty assessed to be consistent with Transport Canada policy and see no reason to change it.

DETERMINATION

For all the foregoing reasons, I uphold the Minister's decision and confirm the assessed monetary penalty of $250.00.

Pierre Rivest
Member
Civil Aviation Tribunal


Appeal decision
Carole Anne Soucy, Faye H. Smith, Pierre J. Beauchamp


Decision: November 18, 1998

TRANSLATION

In the circumstances, the Appeal is dismissed and the Review Determination is upheld. The $250.00 monetary penalty, payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

An Appeal Hearing on the above matter was held Friday, November 13, 1998, at 11:00 hours at the Federal Court of Canada in the city of Montreal, Quebec.

DETERMINATION UNDER APPEAL

The Appellant is appealing a determination rendered June 15, 1998 by Member Pierre Rivest, following a request for a review from the Minister of Transport. The Appellant was assessed a monetary penalty in the amount of $250.00 pursuant to section 7.7 of the Aeronautics Act following an alleged contravention of paragraph 602.101(e) of the Canadian Aviation Regulations (CARs).

THE FACTS

The Appellant was alleged to have failed to report to the Mont-Joli flight service station (FSS) ("MF reporting") that he had cleared runway 28 at Baie Comeau after landing on July 25, 1997.

THE LAW

602.101 The pilot-in-command of a VFR aircraft arriving at an uncontrolled aerodrome that lies within an MF area shall report

(...)

(e) when clear of the surface on which the aircraft has landed.

GROUNDS FOR APPEAL

In his request for appeal of July 9, 1998, the Appellant submitted the following ground:

We believe we should take advantage of the right to appeal in this case, because the conversations heard on the non-original tape may not be consistent with the conversations recorded on the original tape of the Mont-Joli FSS, which was never provided to us.

SUBMISSIONS OF THE PARTIES

In his argument, the Appellant stated he did not want to submit any evidence to the effect that there was a problem with the match between the original and non-original tapes. The Appellant contended that in the absence of the original tape, it is difficult to determine the authenticity of the copy submitted by the Minister. Notwithstanding this contention, at the review hearing, the Respondent (the Appellant in this hearing) agreed that the said transcripts were consistent with the facts.

In argument concerning the tape, the Minister's representative pointed out that the Appeal Panel cannot review facts that have been stated and accepted by all parties during the review proceeding. In giving a summary of the relevant facts, the Minister's representative argued that, at the review hearing, the Minister had met the burden of proof regarding the offence cited in the notice of contravention, namely, of paragraph 602.101(e) of the CARs, and there is no reason to overturn the determination.

As for the amount of the penalty, the Appellant found it a little excessive. He believed that as this was his first offence under the Aeronautics Act, the sending of a letter of advice would have been more appropriate than the assessment of a penalty.

The Minister's representative indicated that the amount of the assessed penalty is consistent with Transport Canada policy and is not excessive.

DISCUSSION

The facts were not in dispute. On July 25, 1997, the Appellant was the pilot-in-command of flight AMO 401, a VFR flight between Mont-Joli and Baie Comeau, an uncontrolled aerodrome for which the mandatory frequency is 118.3. After landing at Baie Comeau, the Appellant did not report to the FSS that he had cleared the runway on which the aircraft had landed. It was a security unit which had informed the FSS that flight AMO 401 was clear of the runway and the aircraft had landed safely.

At the review hearing, the Member stated that the regulations stipulate that it is the pilot who must report in, and not another unit, whether mobile or stationary. Although the Respondent (the Appellant in this hearing) contended that he made contact as soon as he cleared runway 28 at Baie Comeau, he did not remember on what radio frequency. He confirmed, however, that he was clear of the runway when he again contacted the FSS at 1301:22. In his determination, the Member expressed the matter in dispute as follows: "The regulations do not stipulate how much time can elapse between an aircraft's clearing of a runway and radio confirmation of such clearance. In this case, the alleged interval was seven minutes. Is that acceptable, reasonable, or too long?".

According to the Appeal Panel, the Member correctly ruled on the matter in dispute as follows: In his view, when the pilot communicated with the Mont-Joli station at 1301:22 it was to reposition over the runway and continue on his way to Bonaventure and not to confirm that he had cleared the runway. Moreover, although at that moment, runway clearance was nevertheless confirmed, it was in response to a question from the FSS specialist and not at the pilot's initiative.

In his determination, the Member, seeing no reason to change the monetary penalty, confirmed the amount, and we concur with this ruling.

DETERMINATION

In the circumstances, the appeal is dismissed and the Review Determination is upheld.

Reasons for appeal determination:

Faye Smith, Chairperson
Carole Anne Soucy, Member
Pierre Beauchamp, Member