Decisions

CAT File No. Q-1683-39
MoT File No. NAP6504-P147980-30675

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Peter Hudgin, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss.7.7, 7.8(2)
Canadian Aviation Regulations, SOR/96-433, 801.01(2)

Student, Runway Conflict, On the Job Training, New Evidence at the Appeal Level, Force Majeure, Instructor, Appeal Procedure, Air Controller


Review Determination
Michel Larose


Decision: January 20, 1999

TRANSLATION

Under these circumstances, the Tribunal confirms the Minister of Transport's allegation that the Respondent contravened subsection 801.01(2) of the Canadian Aviation Regulations and section 821, Chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards. The amount of the monetary penalty is maintained at $250. That amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of determination.

A Review Hearing on the above matter was held Tuesday, December 15, 1998, at 10:00 hours at the Federal Court of Canada in Montreal, Quebec.

OBJECTIVE OF THE REVIEW HEARING

The Minister of Transport, represented by Mr. Tamborriello, asked the Civil Aviation Tribunal to confirm a Notice of monetary penalty assessed against Mr. Peter Hudgin July 27, 1998. This monetary penalty in the amount of $250 was to be paid by Mr. Hudgin on or before the prescribed deadline of August 31, 1998.

The Notice of Assessment of Monetary Penalty reads as follows:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened subsection 801.01(2) of the Canadian Aviation Regulations.

On or about December 16, 1997, as an airport controller, you allowed AAQ249 to take off on Dorval airport runway 28, while ROY921 was already cleared to cross the same runway.

The monetary penalty not having been paid, subsection 7.8(2) of the Aeronautics Act therefore applies.

PREAMBLE

The member explained the procedure specifying that the burden of proof is on the Minister of Transport.

The parties did not raise any preliminary motions and no pre-hearing agreement was reached.

THE LAW

The monetary penalty was assessed pursuant to section 7.7 of the Aeronautics Act:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a),

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

The Respondent allegedly contravened subsection 801.01(2) of the Canadian Aviation Regulations[1] (CARs):

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.

specifically section 821, Chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards (standards):

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;

As for specific definitions, the Tribunal refers to the following sections of the CARs:

101.01 (1) In these Regulations:

"air traffic control clearance" means an authorization issued by an air traffic control unit that authorizes an aircraft to proceed within controlled airspace in accordance with the conditions specified by that unit; (autorisation du contrôle de la circulation aérienne)

and according to the CARs Part VIII—Air Navigation Services, Interpretation:

800.01 (1) In this Part,

"air traffic control unit" means

(c) an air traffic control tower established to provide air traffic control services at an aerodrome; (unité de contrôle de la circulation aérienne)

THE FACTS (Based on documentary and testimonial evidence)

Mr. Tamborriello called as a witness Mr. Robert Carlsen, air traffic controller and supervisor for Transport Canada at Dorval. Mr. Carlsen entered as Exhibit A-1, the transcript of conversations between the Dorval control tower (Ground position and Air position) and two pilots, on December 16, 1997, between 21:53:11 and 21:55:22. This typewritten document from NAV Canada was taken from the original audiotape recording.

The crux of the issue is based on these exchanges (A-1) (emphasis added):

TRANSCRIPT—TRANSCRIPTION

Unit—Unité
Tour de Dorval
Sector—Secteur
Aéroport
Date 16 déc. 1997
Position—Poste
Air
Time—Heure
Agency—Agence Communications  (ground/ground) (air/ground)—(sol/sol) (air/sol)
2153:11 Tour Roy nine two one left on Bravo two, cross runway two eight, on the other side contact apron one two one decimal zero.
2153:17 Roy 921 Roy nine two one Roger and we had no birds on the approach path.
2153:21 Tour O.K. Roger
2153:30 AAQ 249 Tour Liaison deux quarante neuf à l'écart de la deux huit prêt au décollage.
2153:34 Tour Liaison deux quarante neuf alignez-vous piste deux huit.
2153:36 AAQ 249 On s'aligne Liaison deux quarante neuf.
2153:55 Tour Liaison
2153:56 Tour Liaison deux quatre neuf, vous êtes prêt à rouler maintenant?
2154:04 AAQ 249 Affirmatif, deux quatre neuf.
2154:07 Tour Liaison deux quatre neuf, (euh), en vol, les départs fréquence un deux quatre six cinq, autorisé à décoller piste deux huit, du trafic deux milles en final.
2154:14 AAQ 249 En vol cent vingt-quatre soixante cinq Liaison deux quatre neuf.

TRANSCRIPT—TRANSCRIPTION

Unit—Unité Tour de Dorval Sector—Secteur Aéroport Date 16 déc. 1997 Position—Poste Sol
Time—Heure Agency—Agence Communications  (ground/ground) (air/ground)—(sol/sol) (air/sol)
2154:54 Roy 921 And Ah Dorval ground it's Roy nine two one.
2154:59 Ground Roy nine two one (euh) ground.
2155:01 Roy 921 Yes sir we were cleared to cross two eight but there is an aircraft taking off euh, were holding short.
2155:14 Ground OK Roy nine two one, I check your remarks (ah) cross runway two eight now and (ah) contact (ah) apron one two one zero.
2155:22 Roy 921 Two one zero thank you.

Subsequently, Mr. Tamborriello wished to submit a letter from NAV Canada, but Mr. McGee objected. The Tribunal member initially sustained the objection because the author was not present to authenticate it, but later the member revised his ruling and overruled the objection as the Respondent was already in possession of the letter before the hearing. This letter (Exhibit A-2) was addressed to Mr. Denis Deroy, Aviation Enforcement Inspector, Transport Canada, by Mr. Roger Buisson, General Manager, IFR Operations – Montreal, the contents of which letter are as follows:

SUBJECT: Occurrence of December 16, 1997–Roy 921

Sir,

The controller on duty during the occurrence involving ROY 921 was Mr. Peter Hudgin of the Dorval tower. His address is as follows:

309 Penn Road
Beaconsfield, QC H9W 1B5

For further information, contact Gaétan Brochu at 633-3310.

[translation]

At the end of his testimony, Mr. Carlsen positioned Roy921 at 21:53:11 on Exhibit A-3 which is a drawing entitled "Montreal Airports, DORVAL, Site Plan, Ground Marking."

Roy921 is on Bravo 2, back of runway 28/10, the runway it was cleared to cross at 21:53:11 with the order to contact the ground controller on frequency 1210 after having crossed said runway 28/10.

In the second part of the hearing, Mr. Hudgin testified at the request of his counsel, Mr. McGee, and the Tribunal has retained the following facts:

Mr. Hudgin has been a controller since 1973. He has worked at Dorval since 1979. On December 16, 1997, he held the position of air controller at the Dorval tower.

The typewritten transcript of the audiotape recording of the occurrence of December 16, 1997 (A-1) does not contain in any way his own words with the pilot of Roy921 but rather those of the student, Mr. Sylvain Paquette. He confirmed the fact that he was the air controller for this student; however, he did not know if the student had his air traffic controller licence.

While supervising the conversations taking place between the student air controller and the pilot, he had many other tasks to accomplish at the same time, namely to watch the radar screens, visually observe outside weather conditions and take care of various equipment. He contended that he was unaware of the conversation that took place at 21:53:11 between the student and the pilot of Roy921. Moreover, he contends that, at that time, there was a problem with the headsets and the reception was poor.

In the third part of the hearing, at the request of the Tribunal, Mr. Carlsen said that he could not identify the voice or the voices on the original audiotape recording. Subsequently, in answer to many questions from Mr. Tamborriello and Mr. McGee, he said that as supervisor he considered that the controller remains responsible for his student, though he was not relying on any official document, specific regulation or legal text to support his opinion.

As for the conversations, he could not say whether one could miss part of a conversation even when supervising those of his student, but he confirmed that one type of headset (1 out of 3) had been replaced after the occurrence in question. He confirmed as well the other tasks that the air controller must accomplish, but all is done within priorities set in light of different situations that occur. He confirmed as well the fact that the controller has all the necessary tools to correct errors but that it is all done within the constraints of time and on condition that errors are noticed and/or that they are known.

ARGUMENTS

According to the Minister of Transport, through his representative, Mr. Tamborriello, all the elements of subsection 801.01(2) of the CARs and of section 821, Chapter 1, section 2.5 of the standards are present in this case. Consequently, there is an offence. Mr. Hudgin was in fact the air controller on duty December 16, 1997, in accordance with document A-2 and according to his own admission. The air transcripts for 21:53:11, 21:54:07 and ground transcripts for 21:55:01 depart from the above-mentioned CARs.

Moreover, according to Mr. Tamborriello, even if Mr. Hudgin had not been aware of the conversation held by his student at 21:53:11, he is not any less responsible, and the other tasks he had and the headset problem cannot excuse him from having allowed Roy921 to cross runway 28/10 from Bravo 2 taxiway while AAQ249 was cleared to take off.

As for the penalty to be assessed under the Aeronautics Act (7.7) and according to section 103.08 of the CARs, a first offence under subsection 801.01(2) in the amount of $250 in accordance with the Regulatory Compliance Procedures Manual[2] appears appropriate and reasonable because the safety aspect of noncompliance with regulations must not be minimized.

Furthermore, Mr. Tamborriello adds that there was no major emergency that caused or contributed to this breach and if the pilot of Roy921 had not been so alert, for he was the one who in fact corrected the conflict, there would have been a strong possibility of collision. The entire situation was under the professional responsibility of the Respondent and this responsibility was even greater given that he was the controller/instructor for his student, Mr. Sylvain Paquette.

Commenting on the Respondent's defence regarding the clearance given at 21:53:11, he points out to the Tribunal that the fact of not having heard the clearance much less having given it himself, that the quality of the headset and the reception were poor, and that the air controller has other tasks to accomplish are not sufficient reasons to invoke the application of section 8.5 of the Aeronautics Act: "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."

Regarding the arguments of Mr. McGee for the Respondent, the Tribunal has considered the following elements:

Concerning a potential breach of subsection 801.01(2) of the CARs, Transport Canada did not prove that it was the Respondent who had the conversation at 21:53:11 (air controller with the pilot of Roy921). The Respondent cannot be totally responsible for his student because no legal document to this effect has been submitted.

It is the student who has not exercised all "due diligence." NAV Canada has problems with the headsets, the quality and volume of sound in transmissions of conversations which become problematic. Moreover, Roy921 did not cross runway 28/10. The Respondent was not informed that Roy921 was beyond the "taxi holding position." The Respondent cannot be held responsible for the conversation (pilot of Roy921 and ground controller) at 21:55:01 because he had not heard the conversation at 21:53:11 (air controller and pilot of Roy921). Furthermore, no one realized this actual situation and on a balance of probabilities, Mr. Peter Hudgin cannot be held responsible for the conversation at 21:53:11, that is, the clearance to cross 28/10 from Bravo 2 taxiway.

Finally, in reply, Mr. Tamborriello added that Mr. Peter Hudgin was giving training and he had to adhere even more closely to subsections 801.02(1), (2) and (3) of the CARs because Dorval has class A, B, C and D airspace and it is the basic error at 21:53:11 that is alleged against him, and not that there had been a runway crossing:

801.02 (1) Where air traffic control services are provided to aircraft operating in Class A or Class B airspace, the services shall include separation between aircraft.

(2) Where air traffic control services are provided to aircraft operating in Class C airspace, the services shall include

(a) conflict resolution between IFR aircraft and VFR aircraft;

(b) traffic information; and

(c) separation between IFR aircraft, and between all aircraft during runway operations.

(3) Where air traffic control services are provided to aircraft operating in Class D airspace, the services shall include

(a) traffic information; and

(b) separation between IFR aircraft, and between all aircraft during runway operations.

DISCUSSION

The Tribunal must first decide whether the Minister has proved, on a balance of probabilities, that all elements of the case under review are present and in fact constitute a contravention of subsection 801.01(2) of the CARs and section 821, Chapter 1, paragraph 2.5(a) of the standards.

After analysis of the documentary and testimonial evidence, the Tribunal concludes that there was in fact a contravention of the above-mentioned CARs, being a strict liability offence, on December 16, 1997 for the following reasons:

First, at 21:53:11 on December 16, 1997 at Dorval, the student air controller, Mr. Sylvain Paquette, under the tutorship of Mr. Peter Hudgin, the Respondent air controller on duty, did give the pilot of Roy921 who was at the entrance of Bravo 2, arriving from 24/6, clearance to taxi on this path and cross the 28/10 without having to stop, while asking the pilot to change to radio frequency 1210 (ground control frequency) after having crossed this active runway.

Then:

  • 23 seconds later (21:53:34), the control tower cleared AAQ249 to line up on 28 (air controller, i.e., student and air controller/instructor or tutor);
  • 53 seconds later (21:54:04), AAQ249 indicated it was ready to taxi;
  • 56 seconds later (21:54:07), the control tower cleared AAQ249 to take off on runway 28 (air controller, i.e., student and air controller/instructor or tutor);
  • 63 seconds later (21:54:14), AAQ249 is in flight and its radio frequency is that previously given, 12465 (air frequency).

But during this relatively short time, the pilot of Roy921, before crossing 28/10 at its intersection with Bravo 2, noticed at 21:54:54, 103 seconds (1 minute 43 seconds) after having received clearance, that an emergency conflict developed and therefore contacted the ground controller on his 1210 ground frequency at 21:55:01, 110 seconds (1 minute 50 seconds) later and informed him that an aircraft was taking off on runway 28, and that he was therefore keeping off that runway.

Secondly, the possibility for conflict existed because if it had not been for the alertness of the pilot of Roy921, a collision could have occurred. In fact, it is easy to think that it takes approximately close to two minutes to taxi on Bravo 2 and cross runway 28, because the pilot of Roy921 stopped on the apron at 103 seconds just before 28/10. As for AAQ249, it took off 63 seconds after the air clearance for Roy921 at 21:53:11. The Tribunal deduces that the clearance at 21:53:11 was still valid, that the air controller did not inquire in any way about Roy921's position on Bravo and it is highly possible he miscalculated the amount of time it would take Roy921 to cross 28/10 by letting AAQ249 take off.

Thirdly, this being the case, the Tribunal gives the Respondent much credibility but does not think he can invoke the defence of having "exercised all due diligence" (section 8.5 of the Aeronautics Act previously cited) because even if he had no knowledge of the clearance given to Roy921 at 21:53:11 and as a result of his not knowing this established fact, he did not take all necessary precautions to avoid a conflict, in spite of certain secondary mitigating factors such as: defective headsets, poor reception of the communications and the other tasks that an air controller must accomplish. In fact, the Respondent cannot in light of a delegated act minimize his professional responsibility, because his function as air controller/instructor or tutor commands him to be twice as vigilant, even if no regulation or other legal document has been submitted to the Tribunal concerning the responsibility of an air controller with a student.

Furthermore, the Respondent, an experienced controller, could have required before the occurrence of the said incident that constant exchanges be made between him, his student and the ground controller within the context of training. Also the Tribunal notes that there was no operational constraint or other reason to cause this occurrence but it understands that it is all attributable to a moment of inattention or distraction which, nonetheless, does not eliminate responsibility for the offence.

As for the penalty to be assessed, two determining principles are, maintaining aviation safety to protect society, and prevention to avoid a second offence. These principles having been established, the penalty must meet the objectives of deterrence and rehabilitation.

This penalty was assessed at $250 for a first offence in accordance with the Regulatory Compliance Procedures Manual. The Tribunal must always take into account aggravating or mitigating factors, and it considers that the Respondent has a clean record, that he has extensive experience and competence in aviation, that certain factors surrounded the offence, e.g., quality of headsets and reception, and that there was no premeditation but simple distraction within a training situation, but it remains nevertheless that safety was compromised and for this reason, the Tribunal maintains the penalty at $250.

DETERMINATION

Under these circumstances, the Tribunal confirms the Minister of Transport's allegation that the Respondent contravened subsection 801.01(2) of the Canadian Aviation Regulations and section 821, Chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards. The amount of the penalty is maintained at $250.

Michel Larose, M.D.
Member
Civil Aviation Tribunal


[1] Part VIII—Air Navigation Services, Subpart 1—Air Traffic Services, General.

[2] First Edition, March 1995, Transport Canada, Aviation (TP 4751E).


Appeal decision
Faye H. Smith, Michel G. Boulianne, Pierre Rivest


Decision: August 6, 1999

TRANSLATION

The appeal is dismissed. The appeal panel confirms the decision of the Minister of Transport in that the Appellant contravened subsection 801.01(2) of the Canadian Aviation Regulations and section 821, chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards. The amount of the penalty is confirmed at $250.00 and 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, May 7, 1999 at 10:30 hours, in the Standard Life building, in the city of Ottawa, Ontario.

BACKGROUND

On December 16, 1997, between 21:45 and 22:00 hours, the Appellant was working in the control tower at Dorval Airport, as air traffic controller for the Air section.

At the same time, Sylvain Paquette, a student in training, was in the control tower under the supervision of the Appellant, in as much as we can define exactly what this "supervision" is and what that involves for the person with this responsibility.

Mr. Hudgin is appealing a determination made on January 20, 1999 by Dr. Michel Larose, member at the review level, who confirmed the decision of the Minister of Transport to the effect that the Respondent had contravened subsection 801.01(2) of the Canadian Aviation Regulations (CARs) and section 821, Chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards (Standards). The amount of the penalty maintained is $250.00.

GROUNDS FOR THE APPEAL

The Appellant gave the following grounds for appeal in his document of March 4, 1999:

  1. The Tribunal erred both in fact and in law, in confirming the Minister's decision and maintaining the penalty assessed by the Minister.
  2. The documentary and testimonial evidence presented at the review hearing does not support the Tribunal member's conclusion that the alleged contravention did in fact occur.
  3. The evidence does not clearly show that the Appellant contravened the sections of the law stated in the determination; more specifically subsection 801.01(2) of the CARs.

The Appellant submits that no evidence was put forward to the effect that the Appellant did in fact issue an air traffic control instruction or an air traffic control clearance contrary to section 821, chapter 1, paragraph 2.5(a) of the Standards.

The Appellant contends that he cannot be held responsible for the illegal actions of a student or trainee and that no official document or legal text provides for or oversees control pursuant to which he could be held responsible.

The Appellant also submits that this is a case of force majeure because of the defective equipment made available to both the Appellant and the student who was working with him that night.

PRELIMINARY MOTION

At the beginning of the hearing, the Minister of Transport made a motion to introduce new evidence that had not been filed in the first instance, which included the following documents:

A. Nav Canada, Air Traffic Control Manual of Operations (ATC MANOPS), section 113.6.

B. Nav Canada, Air Traffic Services Administration and Management Manual (ATSAMM), section 203.4.

C. Nav Canada, Services de la circulation aérienne, Manuel d'emplacement, section 1.5.4.

D. Civil Air Navigation Services Commercialization Act, R.S.C. 1985, c. C-29.7, s. 9.

E. Transports Canada, Air Traffic Control Manual of Operations (ATC MANOPS), TP703E, section 113.6.

F. Canadian Aviation Regulations, Part VIII, Subpart I.

Subsection 8.1(3) of the Aeronautics Act which deals with new evidence on appeal reads as follows:

(3) An appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available.

The subsection clearly indicates that the appeal will be heard based on the evidence presented before the Hearing Officer including the transcript. This subsection uses the words "evidence not previously available."

It is the opinion of this panel that items A, B and C were available to the Minister at the time of the review hearing and ought not to be introduced on appeal. This panel therefore concludes that these items are not new evidence within the meaning of subsection 8.1(3) of the Act.

The rationale for this decision is the fact that there was nothing in the appellant's submissions that was new or different from the submissions made at the review hearing as disclosed in the transcript. Hence, the substance of the Respondent's application was known at the time of review in December of 1998 and if the Minister's representative had been taken by surprise, he could have at that time made a request for adjournment in order to prepare accordingly. There is an onus on the Minister to disclose all its evidence but there is no reciprocal right of disclosure that applies to the defence. Bear in mind as well that the burden of proof rests with the Minister to conduct its investigation and to prove its case. The Tribunal refers to the determination of Mr. Rushford in the case of Kerry Michael Kokoska and the Minister of Transport[1] where he states:

This section of the Act prevents both Document Holders and the Minister alike from using the Initial Hearing as a 'testing ground' for their case and then later correcting their deficiencies at the Appeal level by introducing additional new evidence. All evidence which is 'available' must be introduced at the Initial Hearing and if parties fail to do so, they do so at their peril. Parties to proceedings before the Tribunal cannot correct deficiencies at the Appeal level unless such evidence was not available at the Initial Hearing, and then only if the Tribunal 'deems it necessary for the purpose of the Appeal'.

The Respondent submitted that items D, E and F are public documents. The Tribunal would note that item E is not relevant as that document was repealed and as well item D is not relevant in the light of the ruling above. Item F being legislation is not evidence and may be referred to without requesting permission of the Tribunal. Accordingly, only item F above may be referred to as part of the Respondent's case.

THE LAW

Subsection 801.01(2) of the CARs reads as follows:

(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.

Section 821, Chapter 1, section 2.5 of the 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;

(...)

THE APPELLANT'S ARGUMENTS

Most of the facts regarding the events that occurred, both in the tower and on the various runways or taxiways, are acknowledged and uncontested as can be seen in the transcript of notes.

There is no doubt that on that night there was an ambiguity or omission regarding traffic on the ground and on the runways cleared for both flights AAQ249 and ROY921. These two flights were in a potential conflict and could have been involved in a collision. The Appellant's counsel submits that the Tribunal member erred at the review when he concluded that the Appellant's attitude constituted a contravention of the existing regulation. According to him, the Minister never established, through the evidence presented during the review, that the Appellant had in fact issued an air traffic control instruction or clearance that was contrary to section 821 described above. On the contrary, all the evidence shows that Mr. Sylvain Paquette, air traffic control student, under the supervision of the Appellant, is the one who gave a clearance to cross runway 28/10 at 21:53:11 to ROY921 and then cleared AAQ249 to take off on runway 28 at 21:54:07. According to counsel for the Appellant, how can we say that the Appellant contravened subsection 801.01(2) of the CARs?

According to his counsel, the Appellant cannot be held accountable for the actions of the student under his control because of the fact that no regulations or official or legal documents exist regarding the responsibility of an air traffic controller for a student. The uncontested evidence of the presence of defective equipment as submitted in review exonerates the Appellant of all responsibility. Counsel therefore concluded that the submissions of the Appellant should be accepted and that the determination made by the review member on January 20, 1999 should be reversed, as should the penalty assessed.

THE RESPONDENT'S ARGUMENTS

The Respondent's representative submits first and foremost that generally findings of fact and of credibility should not be overturned on appeal unless there is a total absence of evidence to support the conclusions of the review determination. The Minister's submissions are that a student in training does not, in the sense of the law, hold an air traffic controller licence. When he exercises the privileges of an air traffic controller, he operates under the supervision, protection and jurisdiction of someone who is a holder of a valid licence. If, for example, Transport Canada had imposed a suspension of the licence instead of assessing a penalty, it would have been impossible to suspend the licence of Sylvain Paquette since he did not have one. This is why Transport Canada proceeded against the Appellant since he was the holder of an air traffic controller licence and was responsible for what occurred while he was on duty and he was responsible for the consequences.

The Respondent's representative also referred to the key principles of the Quebec Civil Code, specifically section 1463:

The principal is liable to reparation for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his recourses against them.

Professor Jean-Louis Beaudoin states that in this section the words agents and servants have always been interpreted in a broad sense:

Tribunals have always interpreted the notion of agent/servant very broadly. An agent/servant acts for someone else, even beyond the relationship created through a business or work contract.[2]

The subordination between the principal and his agent does not require a contractual relationship; rather it should be interpreted in the light of the facts. Is there truly a power of supervision, direction and monitoring? The answer seems clear according to the Respondent's representative:

The subordinate relationship between the principal and the agent/servant originates from many types of situations. Jurisprudence does not require contractual relationships, even if, through their obligatory content, some contracts encourage the establishment of a master and servant relationship while others on the contrary exclude such a requirement.[3]

An analysis of the jurisprudence reveals that far from insisting on the characterization of the contract to deduce the existence of the master and servant relationship, tribunals examine the factual relationship between the parties very critically. When the relationship grants a power of control, direction and supervision that is specific and sufficient regarding the manner in which functions should be performed by the other, judges identify the resulting subordination as a characteristic of a master and servant relationship. On the other hand, if this power does not exist or remains general, they opt for the opposite solution.[4]

Placed in situations in which the agent/servant could logically be subordinate to several people, tribunals only try to determine who in fact had the power of supervision, direction and control at the time the prejudice was caused. In other words, the simple judicial appearance of a permanent master and servant relationship regarding the usual principal is not sufficient to maintain his responsibility when the damage is caused at a time when someone else controlled the activities of the agent/servant for his own purposes, as determined by the facts. In this case, it is the exclusivity of authority and of the subordination relationship that matters.[5]

Finally the Respondent's representative reminded us of the obligation of the reasonable man who determines the proper care and attention for the circumstances. What remains to be seen is if the Appellant acted as a reasonable person to avoid the possibility of this situation occurring or to correct it, as required. While it is obvious that this interpretation emanates from the facts, and that this is a specific case, we can use some key guiding principles regarding the appropriate conduct of someone who exercises due diligence.

To know if all due diligence was exercised in the circumstances, we must go beyond the balance of probabilities. The Appellant must establish that he took the measures that a reasonable person would have taken in the circumstances. Taking measures also involves analysing the general conduct of the person at the time of the allegations. Under this interpretation of reasonable doubt, we must be able to use common sense based on the established facts.

An analysis of appropriate conduct must show that the Appellant did what any normal instructor would have done in similar circumstances.

DISCUSSION

First of all, it is important to remember the following facts:

  1. The Appellant was with Sylvain Paquette in the control tower.
  2. The Appellant, according to the facts, had Sylvain Paquette under his jurisdiction and control.
  3. The equipment was sporadically defective and this was known to the Appellant for some time.
  4. The evidence does not show that the equipment became defective during this working period; rather this situation had existed for some time.
  5. The Appellant was not listening while the student was working since he stated that he had not heard the conversation because he was busy doing something else.
  6. The sporadic transmission problems do not seem to have existed at that time because the two flights, ROY921 and AAQ249, correctly understood the instructions given to them. In any case, no evidence to the contrary was provided by the Appellant.
  7. In his own admission, the Appellant acknowledges that the primary excuse he made for not having heard the radio exchange of 21:53:11 between Mr. Paquette and the two aircraft was first that he was busy with other tasks at that exact time and, second, because the headsets were "not the best headsets"[6].

We note two aggravating circumstances in these generally accepted and proven facts:

  • First of all, if the Appellant was aware that the equipment was defective, and especially since someone was under his responsibility, he should have been twice as prudent and diligent.
  • The Appellant did not hear the conversation because he was busy with something else at the time due to his numerous functions.

We can therefore deduct that if he had been alone in the control tower, he would not have worked on other tasks, but would have monitored what was going on in the traffic areas under his responsibility. This is what a prudent man would have done. The fact that he was with a student, an apprentice in training, does not relieve him of the responsibility he would have had if he had been alone in the control tower. In fact, normally an air traffic controller would have focussed all his attention on his work when responsible for controlling air traffic, in the air and on the ground on the runways being used. We doubt that in the instructions which are given to controllers one could refer to other tasks, important but secondary, which would take precedence over their primary task. It is only when the controlling work has stopped, so to speak, that they can perform other tasks which might include completing reports, performing required verifications related to their work, checking screens, taking messages, etc.

It is difficult to imagine that the controller would have taken advantage of the presence of a student, believing that he was additional help for completing his tasks. This is not additional help, but an additional task given to him. In other words, he is to train and supervise the student or trainee while performing his usual tasks. If he had been supervising or sat beside the student, he would have immediately noticed the potential conflict that was about to occur because an aircraft had been given clearance to circulate, meaning that it would cross the runway being used at any moment. This is so true that the pilot himself contacted the ground controller to check if the clearance to circulate was still valid since he had just heard the clearance given to another flight to take off from the runway he was about to cross.

If the Appellant had been listening at that moment, or had been monitoring visually, considering the communication problems due to the equipment, he would have corrected the situation immediately. Not only did he not take appropriate measures to ensure that this did not happen, but he was not able to correct it immediately because he was not available or was not monitoring.

The Tribunal finds that the determining factor for finding fault was that the Appellant was busy with other tasks. This is the main reason he did not hear the transmission or did not pay attention. It is also important to remember that the volume of traffic on the night in question does not appear to be a determining factor that could have caused a force majeure situation and could have justified a moment of distraction, which could temper the concept of due diligence.

Respecting the fact that there is no legislation or regulation to determine or oversee the responsibility or obligation of the air traffic controller, or any other employee regarding a trainee or student, we find it difficult to believe that the absence of text relieves the contravenor from the application of the broader general principles of law as it concerns the principal-servant, employer-employee and principal-agent relationships.

The Tribunal accepts the broader principles of law noted in the doctrine and jurisprudence regarding due diligence and the conduct of a reasonable man in such circumstances, as shown by the Minister.

The Appellant did not convince us that he exercised all due diligence to ensure that this situation would not occur or be corrected quickly.

CONCLUSION

Given the general admission to the facts that occurred on the night in question at Dorval Airport, and given that the Tribunal accepts the Appellant's obligation to control and supervise the trainee under his guidance, and given that the evidence reveals that the attitude of the Appellant should have been of increased prudence due to the defective equipment at the time and should not have devoted himself to other tasks at a time when his "student" was performing the primary function of a controller which was to direct air traffic, we came to the conclusion that the review determination was well-founded.

The appeal panel cannot accept the defence based on lack of responsibility as provided for in the law, regarding an employee under his control and jurisdiction. The appeal panel also cannot accept the exception of force majeure due to defective equipment and the urgency to perform other operations, as dealt with above.

DETERMINATION

The appeal is dismissed. The appeal panel confirms the decision of the Minister of Transport in that the Appellant contravened subsection 801.01(2) of the Canadian Aviation Regulations and section 821, chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards. The amount of the penalty is confirmed at $250.00.

Reasons for Appeal Determination: 

Faye Smith, Chairperson

Concurred:

Michel Boulianne, Member
Pierre Rivest, Member


[1] CAT File No. P-0053-33, appeal determination rendered on June 20, 1989, at page 5.

[2] Jean-Louis Beaudoin, La responsabilité civile, 4th edition, Les Éditions Yvon Blais, p. 350, #610 (translation).

[3] Jean-Louis Beaudoin, La responsabilité civile, 4th edition, Les Éditions Yvon Blais, p. 359, #630.

[4] Ibid, p. 363, #638.

[5] Ibid, p. 368, #650.

[6] Transcript, p. 35.