Decisions

CAT File No. Q-1623-39
MoT File No. NAP6504-P-137136-29674

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Georges Asselin, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 801.01(2), 821

Responsibilities of Air Traffic Controller, Conflicting Traffic


Review Determination
Pierre Rivest


Decision: October 19, 1998

TRANSLATION

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

A Review Hearing on the above matter was held Thursday, September 17, 1998, at 10:00 hours at the Federal Court of Canada in Montreal, Quebec. The witnesses were sworn in.

BACKGROUND

Pursuant to section 7.7 of the Aeronautics Act, the Respondent, Mr. Georges Asselin, was alleged to have contravened subsection 801.01(2) of the Canadian Aviation Regulations (CARs).

Specifically, on April 23, 1997, at about 21:15 hours local time, Mr. Asselin, while working as a ground controller in the Montreal/Dorval control tower, allegedly cleared the pilot of flight USA 304 to cross runway 10 while flight AAQ 187 was cleared to land on the same runway, contrary to section 821, Chapter 1, paragraph 2.5(a) of the Canadian Domestic Air Traffic Control Separation Standards.

A monetary penalty of $250.00 was assessed, and as it had not been paid by the specified date of May 19, 1998, the matter was referred to the Tribunal.

THE LAW

Subsection 801.01(2) provides:

801.01 (1) ...

(2) No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.

Paragraph 2.5(a) of Chapter 1 of section 821 of the CARs states:

2.5 Separation of Taxiing Aircraft from Aircraft using the Runway

Taxiing aircraft shall be held until traffic using the runway has passed the point at which the aircraft is holding:

(a) at a taxi holding position, if one has been established;

(...)

THE FACTS

The fact that the Respondent was acting as ground controller at the Montreal/Dorval airport at the time of the alleged incident is not in doubt, and is borne out by document M-1.

At the start of the hearing, however, the Applicant's case presenter, Mr. Tamborriello, informed the Tribunal that the tapes on which the incident was recorded were not available, as they had inadvertently been destroyed. A transcript, handwritten and signed by controller Pierre Toupin, who was responsible for it (Exhibit M-2), and a typed copy (Exhibit M-2a), were produced in their place.

These transcripts were accepted by the Respondent and the Tribunal.

For the Applicant, the Minister

The only witness for the Applicant is Mr. Frank Bisson, who, at the time of the incident, was working as an air controller in the Montreal/Dorval control tower.

After explaining the responsibility of both "air" and "ground" controllers, Mr. Bisson described the incident, which may be summarized as follows:

  • The runway in use at the time for take-off and landing, and under his responsibility, was 06 left.
  • This runway intercepts runway 10/28, which was under the Respondent's responsibility (as were several other ground taxiways), as it was not being used for take-off and landing.
  • At 01:11 hours (Universal Time), Mr. Bisson received a request from the traffic control unit (TCU) for a landing (AAQ 187) on runway 10 (M-2a), which he accepted.
  • After a verbal agreement between the witness (air controller) and the Respondent (ground controller), responsibility for runway 10 was again placed with the witness (air controller).
  • At 01:14:31, Mr. Bisson cleared Liaison 187 (the notice refers to AAQ 187, but the transcript of the radio communication refers to AA 187 and Liaison 187; all these identifications represent the same aeroplane) to land on runway 10. But two minutes later, at 01:16:44, he realized that an aeroplane that was taxiing on the ground was preparing to cross runway 10, moving south; it was USA 304. There followed a brief moment of confusion between the two controllers ("air" and "ground") and, deeming the situation too dangerous (USA 304 crossed runway 10 without ever stopping or reducing its speed), Mr. Bisson decided to have Liaison 187 pull up. End of incident.

In cross-examination, the witness confirmed that at the time of the incident, there were two possible solutions: to stop USA 304 before it crossed runway 10, or to have Liaison 187 pull up. But, at that same moment, the Respondent, Mr. Asselin, had a memory lapse and could no longer remember the identification of the aeroplane on the ground, and this prevented him briefly from making contact to tell it to stop before runway 10. That is when Mr. Bisson chose the option of having the aeroplane pull up on final approach.

In re-examination, the witness explained that it is the responsibility of the ground controller to direct traffic on the ground, as called for by the situation.

For the Respondent, Mr. Asselin

Before questioning his witness, Mr. McGee moved for a dismissal based on the fact that the notice of alleged contravention is not relevant to the CAR section used by Transport Canada and not specific enough. I denied this motion, saying that the testimony and the documents placed in evidence would determine the relevance of the allegation. Mr. McGee then proceeded to question Mr. Asselin, who testified in his own behalf. He provided the following explanations (referring to M-2a and M-3, the airport plan, for what follows):

  • At 01:12:46, he cleared USA 304, which had just landed on runway 06 left, to turn right onto Bravo taxiway, to cross runway 28 (read 10/28) and to contact the apron on another radio frequency; the pilot confirmed the clearance, and at 01:13:08, Mr. Asselin wished him good night.
  • He returned responsibility for runway 10/28 to the air controller before 01:14:31, the time at which Liaison 187 was cleared to land.
  • As the arguments were becoming more technical concerning the communications and verbal procedures in a control tower in situations such as this, Mr. Tamborriello asked to call an expert witness on this subject (no provision for this had been made at the start of the hearing). The Respondent's counsel objected to this request. After hearing the arguments of both parties, I denied the Applicant's request, on the ground that the dispute was not about this particular point of the regulations and that nothing further would be added to the arguments.

I might summarize the rest of Mr. Asselin's testimony (including the cross-examination), relating many of the calculations as to the minutes elapsed between the different clearances given by the two controllers and the manoeuvring of the two aeroplanes involved in the incident, as follows:

  • Usually, US AIR pilots, on leaving runway 06 left (Exhibit M-3), turn onto Bravo taxiway and continue along it until they cross runway 10, and then taxi from the west side to the south side of the boarding gates, towards the gate to which they have been assigned.
  • In the case before us, the pilot of USA 304 turned onto Bravo, as cleared, but left it shortly after, turning left to use Echo taxiway, causing him to cross the middle of runway 10/28.
  • The pilot of USA 304 was entitled to do so, having received no clearance to the contrary.
  • Mr. Asselin, thinking that the pilot of USA 304 would do as all other pilots do and continue straight along Bravo, was not overly concerned, having mentally calculated that the aeroplane in question had ample time to cross runway 10 before Liaison 187 landed; we are talking here of two to three minutes.
  • When the conflict of the paths of the two aeroplanes became apparent, the ground controller, Mr. Asselin, still had time to stop USA 304 at a regulatory distance from runway 10/28; but as a momentary memory lapse caused him to forget the identification of USA 304, he was unable to call it; hence, the air controller's decision to have Liaison 187 pull up, the only solution that remained.

ANALYSIS AND CONCLUSION

Based on a balance of probabilities, I find as follows:

  • There was an air traffic conflict at Montreal/Dorval airport at about 21:15 hours (local time) on April 23, 1997.
  • This conflict was owing to a runway (10/28) being temporarily used for the landing of Liaison 187, whereas shortly before the incident, this same runway was under the responsibility of the ground controller, who had cleared another aeroplane, USA 304, to cross it. It can be assumed that this incident would not have occurred had the pilot of USA 304 followed the same ground trajectory as the other pilots of this company were accustomed to following, but he chose to do otherwise, which was his privilege in the circumstances.
  • Controller Asselin knew that an aeroplane (Liaison 187) had been cleared to land on runway 10; he had even checked verbally with the air controller, Mr. Bisson, transferring responsibility for the runway over to him.
  • At that time, although Controller Bisson was responsible for runway 10, this did not relieve Mr. Asselin, the ground controller, of responsibility for ground movement, including aeroplane USA 304.
  • Knowing that an aeroplane was about to land on runway 10, and thereby intersect Bravo and Echo taxiways, Mr. Asselin should have been more vigilant and monitored the trajectory of USA 304 more closely.
  • In failing to do so, Mr. Asselin had to act quickly when the trajectories of the two aeroplanes conflicted, but unfortunately, he had a memory lapse. Mr. Asselin was responsible for USA 304 and should not have authorized it to change radio frequency so soon, but rather should have given it the necessary instructions to avoid the conflict.
  • Mr. McGee, the Respondent's counsel, argued that the notice of alleged contravention is not specific enough and that the whole matter should be dismissed. After what I have heard, I am satisfied to say that the best solution in the circumstances would have been for Mr. Asselin to stop aeroplane USA 304 before runway 10/28, and that this should have been done at a regulatory distance as required by subsection 801.01(2) of the CARs and as stipulated in paragraph 2.5(a) of Chapter 1 of section 821, which is quite clear. It therefore seems to me that the wording of the notice of alleged contravention is acceptable.
  • Moreover, both parties have confirmed that, in the circumstances, there were only two possible solutions for avoiding a risk of collision: to stop USA 304 before runway 10/28, or to order Liaison 187 to pull up.

The first solution was not possible for reasons we now know, and the air controller therefore had no choice but to opt for the second solution.

Mr. McGee also argued that in his view, there was no traffic conflict; the matter has degenerated into a conflict because Transport Canada wanted to create one.

With all due respect for Mr. McGee, it is not up to him to decide whether or not there was a conflict, but to the air traffic controllers. In this case, the air controller, Mr. Bisson, who was responsible for Liaison 187, judged the situation too risky to allow it to unfold and acted accordingly; this seems to me sufficient to allow the term "conflict."

  • I have also considered the possibility of using section 8.5 of the Aeronautics Act, but have had to reject it:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

I do not believe that Mr. Asselin exercised "all due diligence" in the circumstances.

In fact, while anyone can experience a memory lapse, I believe that the imbroglio might have been avoided had Mr. Asselin monitored the trajectory of USA 304 more closely and stopped it at a regulatory distance, particularly as he already knew that this aeroplane had to cross runway 10, being used for a landing at the time.

I would add that the Respondent's responsibility becomes all the more important, given that he was acting not only as ground controller, but also as control tower supervisor (M-1).

DETERMINATION

I confirm the Minister's decision and uphold the monetary penalty of $250.00.

Pierre Rivest
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Michel G. Boulianne, Michel Larose


Decision: March 18, 1999

TRANSLATION

The Tribunal dismisses the appeal. The submissions made during the appeal did not satisfy the Tribunal that the review determination was unjustified. The monetary penalty of $250.00 is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen (15) days following service of this determination.

An Appeal Hearing on the above matter was held before three designated Tribunal Members on Friday, January 8, 1999 at 11:00 hours, in the Standard Life building, in the city of Ottawa, Ontario.

BACKGROUND

This is a request for appeal introduced by Mr. Georges Asselin to oppose a Review Determination which confirmed the Minister's decision and upheld the monetary penalty of $250.00.

The Appellant was accused, pursuant to section 7.7 of the Aeronautics Acts, of having contravened subsection 801.01(2) of the Canadian Aviation Regulations (CARs) which reads as follows:

801.01 (1) ...

(2) No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.

The compliance reference in the Canadian Domestic Air Traffic Control Separation Standards

reads as follows:

2.5 Separation of Taxiing Aircraft from Aircraft using the Runway

Taxiing aircraft shall be held until traffic using the runway has passed the point at which the aircraft is holding:

(a) at a taxi holding position, if one has been established;

FACTS

On April 23, 1997, the Appellant occupied the position of ground controller in the control tower of Montreal-Dorval, and he allegedly cleared the pilot of flight USA 304 to cross runway 10 while flight AAQ 187 was already cleared to land on that runway thereby committing an offence under the Canadian Domestic Air Traffic Control Separation Standards, section 821, Chapter 1, paragraph 2.5(a).

The evidence entered into the record states the following:

  1. A few moments before the offence, the runway in use for take-offs and landings was 06 left which was under the responsibility of Frank Bisson, who on that day was working as an air controller in the Montreal-Dorval control tower. Runway 06 left intercepts runway 10/28 which, when the sequence of events occurred, was not being used for take-offs and landings and was therefore under the responsibility of the ground controller, which was the Appellant.
  2. After flight USA 304 landed on runway 06 left, responsibility for the flight was transferred to the Appellant for taxiing.
  3. When Mr. Bisson gave the responsibility for USA 304 to the Appellant, Mr. Bisson received a request to allow a landing on runway 10 from the air traffic control unit (ATC unit). Meanwhile, the Appellant cleared USA 304 to taxi on BRAVO taxiway, to cross runway 28 and to contact the apron on another radio frequency. Once the pilot confirmed he had received this clearance, the Appellant sent his regards and they said good-bye.
  4. Meanwhile, Mr. Bisson cleared flight AAQ 187 to land on runway 10 and a few minutes later, he realized that an aeroplane taxiing on the ground was about to cross runway 10 in a southerly direction. Of course, it was USA 304.
  5. An order was given to AAQ 187 immediately by Mr. Bisson to pull up for a new landing.

ANALYSIS

This is a very simple case in which the statutory provisions must be examined and the conduct of the Appellant must be analysed to determine if it was consistent with the application of the prescribed procedure.

In review, the responsibilities of each of the controllers were clearly established and are very well summarized in the determination which is under appeal. The Appellant cannot argue that the arrival of AAQ 187 on runway 10 was unexpected because the responsibility for this runway had been transferred to Mr. Bisson by the Appellant following the request from the ATC unit several minutes earlier. This could have constituted a case of force majeure, in favour of the Appellant.

The Appellant therefore knew there could be, at any time, an arriving aeroplane that might interfere with the taxiing of USA 304. As soon as the existence of this possible conflict between the two types of traffic was known, the Appellant should have stopped the taxiing aeroplane until the active runway, runway 10, was completely clear, or at least warn him to continue taxiing and prepare himself to stop before runway 10.

The issue is not about knowing whether he forgot or if he felt there was no risk. It must be remembered that he had cleared USA 304 to cross to the apron and the pilot was not required to be aware of air traffic, particularly since he was already on ground frequency.

The Appellant obviously cannot argue that he exercised all due diligence because in our opinion, he did not at all. A broader interpretation would be possible if the Appellant had at least warned the pilot of USA 304 of the imminent arrival of another aeroplane, even if he had not given an instruction to stop. Even this minimum precaution was not taken.

Was this a simple oversight? That is possible, at such a late hour; however, this oversight occurred only because the Appellant let a period of time lapse between the moment he cleared USA 304 to taxi and the arrival of AAQ 187. If the Appellant had simply notified USA 304 as soon as he transferred runway 10 to Mr. Bisson, by managing his time properly, he would not have been in the position of forgetting about recontacting USA 304 a few minutes later. This oversight, this lapse in memory, is particularly surprising because there did not appear to be that much activity at the airport at that time of day.

CONCLUSION

The submissions made during the appeal did not satisfy the Tribunal that the review determination was unjustified. The Tribunal therefore dismisses the appeal.

Reasons for appeal determination by:

Faye Smith, Chairperson

Concurred:

Michel Boulianne, Member
Dr. Michel Larose, Member