Decisions

CAT File No. Q-1724-39
MoT File No. NAP6504-P94455-30915

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Serge Dorion, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss. 7.7, 7.9
Canadian Aviation Regulations, SOR/96-433, s. 801.01(2)

Responsibility, On the Job Training, Ground Controller, Instructor, Due diligence, Defences, Air Traffic Controller


Review Determination
Pierre Rivest


Decision: June 15, 1999

TRANSLATION

The Tribunal dismisses the allegation against the Respondent and cancels the assessed monetary penalty of $250.00.

A Review Hearing on the above matter was held Tuesday, May 18, 1999 at 10:00 hours, at the Federal Court of Canada, Quebec City, Quebec. The witnesses were sworn in.

BACKGROUND

The Respondent, Mr. Serge Dorion, is an air traffic controller at Jean-Lesage Airport in Quebec.

On March 2, 1998, at approximately 13:40 hours UTC, as air controller at the Jean-Lesage Airport in Quebec, he allegedly cleared flight ICN 1629 to take off from runway 24, without having resumed control over this runway, which had been released to the ground controller earlier, thereby causing a risk of collision with a vehicle crossing the same runway, contrary to the Canadian Domestic Air Traffic Control Separation Standards (Standards), section 821, chapter 1, paragraph 2.6(a).

At the time of the incident, the Respondent was acting as controller/instructor. He was assessed a monetary penalty of $250.00 which was to be paid no later than December 7, 1998. On December 10, 1998, the Tribunal informed the parties that it would make arrangements for a hearing pursuant to section 7.9 of the Aeronautics Act because it had been informed that the said penalty had not been paid.

Before starting to present his evidence, Mr. Tamborriello, the Minister's representative, filed a document of "admissions" to certain facts (Exhibit M-1) as well as a document to correct a page number in "MANOPS ATC 1-10" (M-1c). These admissions and corrections were corroborated by the Respondent's representative, Mr. Sean T. McGee.

THE LAW

Subsection 801.01(2) of the Canadian Aviation Regulations (CARs) states:

(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, paragraph 2.6(a) of the Standards reads (M-5):

2.6 Separation of Pedestrians and Vehicles from Aircraft using the Runway

Ground traffic such as pedestrians, vehicles, or construction equipment shall be kept away from taxiing aircraft by holding ground traffic:

(a) at least 200 feet from the edge of an active runway, unless other holding positions are established by markings or signs; or

(b) at a sufficient distance from the edge of the runway to ensure that no hazard is created to arriving or departing aircraft, if it is not practicable to comply with (a).

THE EVIDENCE

For the Minister, witness Marcel Pratte

Mr. Tamborriello sought to have Mr. Marcel Pratte heard as an expert witness to explain the following points to the Tribunal:

  • the procedures followed in a control tower when a trainee is in training;
  • the responsibilities of each of the controllers in such circumstances;
  • how, in his opinion, he interprets what happened on March 2, 1998 after having listened to the tape recording of radio communications that took place during the incident. Mr. Pratte is a former air traffic controller who is now retired.

Mr. McGee started by objecting to the testimony of Mr. Pratte as he did not necessarily consider him to be an expert, and particularly because on March 2, 1998, Mr. Pratte was the Respondent's supervisor.

After hearing a description of Mr. Pratte's curriculum vitae (particularly the fact that he had worked as an instructor at the national air control school in the past and because he worked on implementing some of the procedures in that field), and after being informed that he was not present in the control tower on March 2nd, I accepted that he testify as an expert witness.

From his testimony, the following essentially emerged:

1. Responsibility and jurisdiction of an air traffic controller:

It is the air controller (also called the airport controller; Exhibit T-1, par. 361 (A) who holds jurisdiction over what takes place in a control tower and movements of individuals and vehicles at the airport as well as aircraft that circulate on the ground, take off or land, are under his responsibility. He is the one who decides which runway (or runways) will be used for take-offs and landings.

He then delegates the responsibility for traffic areas, including runway(s) that are not in use, to the ground controller.

The ground controller cannot have anyone circulate on an active runway that is under the authority of the air controller without his consent. However, the air controller cannot have an aircraft take off or land on an inactive runway.

2. System of control and coordination

Inside a control tower, in order to coordinate instructions that may be given by the two controllers (air and ground), the following methods are available:

(a) verbal discussions between the air and ground controllers regarding their intentions;

(b) a panel (or console) in front of each controller on which a system of illuminated lights, green and red, indicates for each runway whether it is active or not. When the light is red for a given runway, the light for the same runway is green on the other panel. In this way, there can be no confusion over the use of the runway in question;

(c) at the same time, when radio communications are recorded, a high or low-frequency sound, synchronized with the green or red illuminated lights, is emitted. When the lit indicator is green (to indicate an active runway), a high-frequency sound is used. A low-frequency sound is used for a runway with a red light.

During the incident in March 1998, witness Pratte, from listening to the magnetic tape of radio communications (Exhibit M-2), was able to determine that runway 06-24 was under the responsibility of the ground controller (the sound emitted on the magnetic tape during the communication transmitted by the air controller was of a low-frequency). He concluded that the light on the console of the air controller had to be red, and green on that of the ground controller, thus the error made by the air controller.

3. The responsibilities of the controller/instructor

It is normal for a trainee controller to be in the control tower. This means that his licence has not yet been endorsed with a specific function at a selected airport. He therefore works under the authority of a controller/instructor.

In such a circumstance, the controller/instructor is fully responsible for what the trainee does. While giving him increasing freedom of action while the training progresses, the controller/instructor must assume full responsibility for the instructions given by the trainee, just as if he were giving them himself. His function as controller therefore does not change because of the fact that he is acting as an instructor. There is no sharing of responsibility between him and the trainee.

The witness recognizes that this is a task that may sometimes be very demanding, but the system is designed that way. The controller/instructor must therefore always be ready to intervene before an unfortunate incident occurs.

Section 113.6 of the document entitled Air Traffic Control Manual of Operations[1] (Exhibit M-3) stipulates:

Requirements for the presence and functions of the position are the same for an instructor with a trainee as for a controller alone in the position. The instructor must be able to resume the position at any time without having to ask the student for details of the operations in the sector. (N)

This is why such a controller receives appropriate training before acting as a controller/instructor.

4. Incident of March 2, 1998

By analysing the radio communications (Exhibits M-2 and M-4), the witness concluded that the result of the error made by the trainee (for which the controller/instructor, the Respondent, is responsible) was that runway 06-24 was used simultaneously by a truck and an aeroplane which meant that the separation requirement specified in section 821, chapter 1, paragraph 2.6(a) of the Standards (Exhibit M-5) was not met.

CROSS-EXAMINATION

During the cross-examination, the witness, examined by Mr. McGee, added the following information:

  • when a trainee is being trained, the control tower must have two microphones so that the controller/instructor can cut the communication made by a trainee and correct a situation that does not seem appropriate. In such circumstances (use of two microphones), calls received from outside of the tower come through on a speaker. However, if there is only one microphone available, or if reception on the speaker is not good, a communications headset must be used by the controller/instructor.
  • The witness confirmed that the objective of this type of training is to help the trainee become autonomous to the point that he can make all the required decisions by himself. He repeated that this requires a lot of attention on the part of the controller/instructor who must at all times have a clear "picture" of the entire situation. The controller/instructor might even have to react within seconds.
  • The witness summarized the events as follows: During the incident, flight ICN 1629 received clearance from the ground controller to circulate on runway 24 (Exhibit M-4, page (c); 1340:00). At 1340:10, the ground controller asked ICN 1629 to contact the tower when he reached "echo" (Exhibit M-4, page (c)). At 1342:02 (M-4, page (a), the air controller (trainee) allowed that aeroplane to line up on runway 24 and cleared it to take off at 1342:24 (in document M-2, the witness says 1342:27 which is an error with relation to the transcript of audio tape M-4). It is not possible to determine, at any point, when control of runway 24 changed from the ground controller to the air controller. Everything leads us to believe, if we rely on the low-frequency sound on the magnetic tape (Exhibit M-2), that the transfer of responsibility had not been made at the time of take-off.
  • However, the witness cannot say when exactly the truck crossed the runway or at what location.
  • Furthermore, there was some question of another aeroplane approaching the airport to land and the Respondent should definitely have been aware of it.
  • Finally, the witness cannot establish if there really was an emergency or not regarding the conflict between the truck and aeroplane ICN 1629, but that it was up to the air controller to coordinate with the ground controller to resume responsibility of the runway and make the truck stop before take-off clearance was given.

For the Respondent

The Respondent testified on his own behalf, questioned by Mr. McGee. In his testimony, he confirmed the following:

  • The radio communications as transcribed in document M-4 correctly reflect what happened.
  • The trainee (someone by the name of Thivierge) had been working with him for three months and was progressing very well, to the point that he was letting him act very autonomously when controlling "light" traffic. There was no reason he could not manage the situation as it presented itself during the incident of March 2nd.
  • He confirmed that both controllers, air and ground, must ensure that there is a constant coordination of all decisions to be made concerning each other.
  • At the time of the incident, there was only one microphone available for himself and the trainee. The headset referred to by witness Pratte was available to be used, but that is not mandatory when there are only three aircraft or less to be controlled, which was the case.
  • He followed all the discussions between the trainee, the ground controller and the air traffic control unit and everything was going well.
  • It was when he heard the trainee clear flight ICN 1629 for take-off that he realized there could be a problem with the truck. At that moment, he had three choices:

(a) coordinate with the ground controller to have him stop the truck from crossing the runway;

(b) order the aeroplane to abort its take-off which could result in the aeroplane approaching on runway 06 (facing the aeroplane that was taking off) having to pull up;

(c) let it all play out normally, judging that there was no danger because the truck had ample time to cross the runway. Besides, the truck had already cleared the runway before the take-off clearance had been given.

The trainee then told him that he was expecting the ground controller to return control of the runway to him at any moment.

  • After the incident, he discussed the whole situation with the trainee.
  • Out of all the possible risks, he believed he chose the option with the least risk.
  • The Respondent submitted that his decision had to be made very quickly and, once again, that he made the best decision under the circumstances. He knew that the ground controller was responsible for the runway, but that he had to return control to the air controller as soon as the truck had crossed. This is what document T-1 indicates in paragraph 361 B (the entries in the document were made by the witness).

Under cross-examination, the Respondent maintained his earlier testimony and confirmed that at the time when the take-off clearance was given by the trainee, he knew the runway was under the ground controller's jurisdiction.

Under redirect examination, he added that until the trainee gave ICN 1629 the take-off clearance, he consciously let the trainee make all his decisions by himself, while supervising everything he did, since this is part of the training. Besides, everything was proceeding normally and he had no reason to intervene because no precarious situation was presenting itself.

ARGUMENT

For the Applicant

In addition to referring to certain statutory instruments, Mr. Tamborriello brought up the following points:

  • The position of controller/instructor involves a double responsibility as controller and as instructor, but this is a single position and the controller occupying it is responsible for the trainee as if he were controlling the air traffic, and when he acts as air controller, he is responsible for the entire airport.
  • At the time of the incident, the Respondent knew he did not have jurisdiction over runway 24, that the indicator lights confirmed that the runway was under the authority of the ground controller and that there was a truck being driven at the airport.
  • The Respondent had ample time to act before the incident happened and he should not have let the trainee go as far as to create a situation in which there was risk of collision.
  • Finally, Mr. Tamborriello does not believe that the defence of due diligence applies (section 8.5 of the Aeronautics Act).

For the Respondent

In his argument, Mr. McGee insisted on two important points: first, on the fact that it is not the Respondent who gave the take-off clearance and, second, his opinion on the issue of responsibility of the controller/instructor regarding the trainee.

He submits that subsection 801.01(2) of the CARs is very specific and clear in the sense that it mentions the controller that issues a clearance or instruction (see the section in question under the paragraph entitled "The Law" at the beginning of this report).

According to Mr. McGee, the Respondent, the controller at that time, never issued a take-off clearance. The trainee was talking on the microphone.

Regarding the issue of the controller's responsibility for the trainee, nothing in the act says that the controller/instructor is responsible for the actions of trainees, contrary to what was submitted by the expert witness, Mr. Pratte. That is impossible and, should the trainee give a clearance that is not appropriate for the situation, the only responsibility the controller/instructor has is to correct the situation for the better, according to the circumstances. There is nothing in the act that places a legal responsibility on the controller/instructor for what the trainee does.

The proof is the devolved responsibility of the pilot-in-command who, under the Aeronautics Act (subsection 8.4(3)), is held responsible for everything that happens in his aircraft, even if he did not make the error himself. For the time being, this is not the case as it concerns the air traffic controller because there is nothing similar in the act.

Finally, Mr. McGee submitted that regardless of what is written in the act, the Respondent demonstrated good judgement as an instructor and due diligence as a controller. The trainee's decision was made without warning and took the Respondent by surprise since, up until then, everything was proceeding normally and, as instructor, he had to let the trainee go as far as possible in making decisions. At the time of the incident, the Respondent quickly grasped the situation and, from the options available to him, he chose the best, realizing that there was no danger for the take-off to proceed normally.

For the Minister

In a final submission, Mr. Tamborriello argued that the issue of devolved responsibility of the pilot-in-command in subsection 8.4(3) of the Aeronautics Act, is based on the fact of a case that involves shared responsibilities and that this does not apply to air traffic controllers because the controller/instructor does not share his responsibility with the trainee. He has sole responsibility and the trainee has none.

Subsection 8.4(3) reads:

(3) The pilot-in-command of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless the offence was committed without the consent of the pilot-in-command and, where found to have committed the offence, the pilot-in-command is liable to the penalty provided as punishment therefor.

ANALYSIS AND CONCLUSION

Let us first have a look at the admissions:

  • the time, date and the incident itself are not contested;
  • the Respondent does not deny that the trainee gave a take-off clearance while the air controller did not have responsibility for the runway since the indicator light on the console was red.

Before making a decision, the following aspects must be analysed: the allegation, facts, opinions and interpretations.

The allegation

The allegation includes three elements and it is up to the Minister to prove them on a balance of probabilities:

  1. the air controller (the Respondent), cleared flight ICN 1629 to take off from runway 24 without having resumed control of the runway which was earlier released to the ground controller;
  2. this caused a risk of collision with a vehicle that was crossing the same runway;
  3. this was contrary to the Canadian Domestic Air Traffic Control Separation Standards, section 821, chapter 1, paragraph 2.6(a).

I will respond to each of these three elements by analysing the three following aspects which are the facts, opinions and interpretations.

1. The facts:

During the incident, runway 06-24 was under the responsibility of the ground controller. The Respondent provided evidence himself and the low-frequency sound from the magnetic tape, as heard and described by expert witness Mr. Pratte, provided proof that was not contradicted.

A take-off clearance was definitely given to ICN 1629 (M-4, page (a)) by the trainee who was working under the supervision of the air controller.

In addition, we know that a truck was circulating at the airport and that it crossed runway 06-24. The radio communications provide proof of this.

However, it is not certain when exactly the truck in question crossed the runway, or even at which position of 06 or 24, or how far from the edge of the runway it was when the take-off clearance was given. For the moment, in my opinion, the risk of collision is not certain.

This brings us to the third element of the allegation which is "... contrary to the Standards ...." The Standards mention 200 feet (M-5, paragraph 2.6(a)):

2.6 Separation of Pedestrians and Vehicles from Aircraft using the Runway

Ground traffic such as pedestrians, vehicles, or construction equipment shall be kept away from taxiing aircraft by holding ground traffic:

(a) at least 200 feet from the edge of an active runway, unless other holding positions are established by markings or signs

200 feet is crossed quickly and, except for the pilot's comment at 1346:09 (M-4, page (b): "we saw a truck crossing the take-off path..."), no other testimony or document indicates the position of the truck at the time of take-off.

Considering that the truck could have crossed 550' at the most (200' on each side of the runway plus the width of the runway of 150') and, at a minimum, a few feet if he had already crossed the runway, at a speed that is unknown to us, we cannot determine the exact position of the truck at the time the take-off clearance was given. Since none of the flight crew members of the aeroplane was present, the Tribunal must consider this comment with great reservation and not give more than a little weight to this third element of the allegation.

We will now have a look at the other aspects mentioned earlier.

2. The opinions

Several opinions were expressed on the following subjects:

  • risk of collision; this element is also part of the allegation. Nothing was really entered into evidence to support this opinion and this brings us back to paragraph 1 above.
  • control of the situation should have been taken earlier by the Respondent and he gave the trainee too much liberty.

This is very questionable. It is well known that the person giving the training (here, the instructor) must, as the person in training (here, the trainee) progresses, let the trainee take more initiative. A flight instructor may, for example, go as far as to let his student complete a bad landing in order to evaluate the student's ability for correcting and keeping control of the aircraft in such a circumstance.

Obviously, there is a limit to the freedom left to the student to ensure, as a last resort, that the student avoids an accident. To do this, the instructor must be ready to relieve the student before a catastrophe, throughout a manoeuvre or while such a situation develops. A surgeon in charge of a surgical operation would act the same way with a physician in training.

This is the crucial point in this case. Could the controller/instructor, who seems to have properly monitored the situation in progress (nothing proves the contrary), have anticipated that the trainee would make a decision to give a take-off clearance while he did not have control of the runway? Did the Respondent correctly judge that the situation did not, at least up to that point, present a risk or seem urgent? Would he have had time to avoid the incident? Did he correctly weigh the pros and cons of the urgency that developed after the incident and did he make the right decision, considering the options available to him?

In order, based on the testimony heard and the documents submitted as evidence, on a balance of probabilities, I respond:

  • no, nothing indicates that the controller/instructor could normally have anticipated what happened;
  • yes, he judged the situation correctly;
  • no, he would not have had the time to stop the radio communication in which the take-off clearance was given;
  • yes, in hindsight, he made the right decision in letting the take-off continue. We cannot forget that there was another aeroplane, the one on approach, AAQ 100 (M-4, page (b), 1344:53) for runway 06, facing the take-off of ICN 1629.

This is how, in my opinion, section 8.5 of the Aeronautics Act regarding due diligence can apply.

This section states, "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."

The interpretations

Mr. McGee gave his interpretation of two important elements to the Tribunal: first, the question of knowing who actually gave the take-off clearance, which brings us back to the issue of shared responsibility in communications between the controller and the trainee, and, secondly, the concept of responsibility, in a legal sense.

According to Mr. McGee, it was not the Respondent, even if he was the official controller, who gave the take-off clearance. It is not his voice we hear on the magnetic tape, but that of the trainee. The notice of allegation is therefore incorrect when it refers to the Respondent as the one who gave the take-off clearance. A distinction should have been made between the Respondent and the trainee.

I referred Mr. McGee to the Manual of Operations (Exhibit M-3) which states, in paragraph 113.6:

Requirements for the presence and functions of the position are the same for an instructor with a trainee as for a controller alone in the position. The instructor must be able to resume the position at any time without having to ask the student for details of the operations in the sector. (N)

I interpret this paragraph as indicating that we are dealing with, even when two people are involved (a controller and his student), a position that is one and the same. This is also the interpretation given by the Minister's representative on this topic and I admit that he is right. Even if it is the voice of the trainee, that is not important. It is as if the official controller had spoken.

What remains is the issue of legal responsibility for each of the people who occupy the same position. Who is responsible for what and for whom?

Mr. McGee submits that we should separate the responsibilities of the controller/instructor from those of the trainee. He uses subsection 8.4(3) of the Aeronautics Act mentioned earlier as proof.

This section makes the pilot-in-command responsible for what others may do illegally and this responsibility is written into the act. Nothing of this sort can be found in the act regarding the air traffic controller. It is on this interpretation that Mr. McGee bases his conclusion that we cannot legally make the Respondent responsible for an error made by the trainee because this is not written in the act.

With all due respect for Mr. McGee, I must dissociate myself from his interpretation of the concept of responsibility.

In fact, in addition to the comments I made earlier regarding devolved responsibilities of the pilot-in-command, we must look at what the concept of responsibility represents for any person to whom a task is assigned and who accepted it.

Dictionaries are unanimous about what the word responsibility means:

  • Larousse: (translation) "Ability to make a decision without first referring to a higher authority; obligation to correct a mistake, to assume a responsibility, a commitment"
  • The Petit Robert goes further: (translation) "someone who must submit to and accept the consequences of his actions, to be accountable; who must (by law) repair the damages he caused by his error — who must submit to the punishment prescribed by the law — the experts believe that the accused who is not responsible for his actions is not of sound mind, is irresponsible, etc."

This is exactly what applies to the air traffic controller when he accepts the responsibility of being an instructor at the same time. This is what an aircraft maintenance engineer does when he confirms that an aircraft is airworthy after having assigned a task to an apprentice.

The Respondent was therefore responsible for the trainee assigned to him and who was, under his supervision, doing his training. We cannot separate the two people unless we can find a section in the act that specifically states the contrary, which is not the case in aviation regarding air traffic controllers.

Finally, if the controller/instructor is not responsible for the actions of the trainee, considering that the trainee cannot control alone because he does not have a licence to do so, that would amount to say that nobody in the control tower is responsible.

CONCLUSION

In conclusion, I consider that the positions of controller/instructor and trainee are inseparable and that the Respondent is responsible for the incident caused by the trainee on March 2, 1998. The runway was under the authority of the ground controller. However, the count has not been proven in its entirety, particularly as it concerns the "risk of collision" and the exact position of the truck at the time of take-off. Finally, in any case, in the circumstances, the Respondent acted with due diligence and in such a manner that he may be given the benefit of the doubt according to the intent of section 8.5 of the Aeronautics Act.

DETERMINATION

For all the reasons put forward above, I dismiss the allegation against the Respondent and cancel the assessed monetary penalty of $250.00.

Pierre Rivest
Member
Civil Aviation Tribunal


[1] Document No. TP 703E from Transport Canada, April 15, 1993.