Decisions

TATC File No. Q-3256-33
MoT File No. N5504-58582

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Pierre-Claude Harvey, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7(1)
Canadian Aviation Regulations, SOR/96-433, s. 602.19(10)

Risk of collision


Review Determination
Michel Larose


Decision: October 2, 2006

TRANSLATION

The Tribunal upholds the decision of the Minister of Transport, but reduces the amount of the monetary penalty to $500. The total amount of the monetary penalty is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

[1]     A review hearing on this matter was held on Wednesday, June 21, 2006 at Bissot Building, in Sept-Îles (Québec), at 10:00 a.m.

INTRODUCTION REMARKS

[2]     The procedure was explained to the two parties. They reached no agreement at the pre-hearing conference. No preliminary motions were filed. Case Presenting Officer Denis Paré filed an admission of facts (M-1) on behalf of the Minister of Transport, and it was signed by both parties, namely, Pierre-Claude Harvey and Mr. Paré. It reads as follows:

[translation]

Admission of Facts

Further to a discussion between the applicant, Mr. Pierre-Claude Harvey, and the Minister's representative, Mr. Denis Paré, the parties have agreed that Mr. Harvey admits the following facts in order to shorten the proceedings in TATC File No. Q-3256-33, MoT File No. N5504-58582.

  1. He is the owner of the Piper Cherokee 180 aircraft registered as C-GNHI.
  2. He was the pilot-in-command of the flight conducted October 28, 2005, bound for the Sept-Îles airport.
  3. He holds a private pilot licence endorsed with night and VFR OTT ratings bearing number 274819.
  4. He landed on runway 31at the Sept-Îles airport at about 19:13Z.

Signed at Sept-Îles this 21st day of June 2006.

Pierre-Claude Harvey                                                                                                         Denis Paré

OBJECT OF THE REVIEW HEARING

[3]     On March 24, 2006, the Minister of Transport sent the applicant a notice of assessment of monetary penalty pursuant to section 7.7 of the Aeronautics Act for having contravened subsection 602.19(10) of the Canadian Aviation Regulations (CAR), assessing against him a monetary penalty of $1 000 payable April 28, 2006. The notice states as follows:

[translation]

On or about October 28, 2005, at about 19:13 hours UTC, in the vicinity of the airport of Sept-Îles, Québec, you conducted a landing of the aircraft registered as C-GNHI on runway 31 when there was an apparent risk of collision with another aircraft in the landing path.

LAW

[4] Section 7.7 of the Aeronautics Act provides as follows:

7.7     (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate 

(a) the designated provision that the Minister believes has been contravened;

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

(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.

[5]     Subsection 602.19(10) of the CARs provides as follows:

602.19 (10) No person shall conduct or attempt to conduct a take-off or landing in an aircraft until there is no apparent risk of collision with any aircraft, person, vessel, vehicle or structure in the take-off or landing path.

FACTS (Documentary and Testimonial Evidence)

[6]     To permit a better understanding of the various testimonies, the Tribunal Member thought it important to reproduce the Sept-Îles aerodrome chart according to the Canada Air Pilot of October 27, 2005 (M-9):

First Witness: Guy Hamel

[7]     Mr. Hamel has been an aviation enforcement inspector with Transport Canada for four years. He is an airline transport pilot, a Class 1 instructor and has 27 years of aviation experience. He has had his own school for 20 years.

[8]     He was assigned this investigation in November 2005. As all the documentary evidence was made available to the applicant at the pre-hearing conference, it is not the Member's intention to reproduce it in full and comment on it in detail, but rather to highlight the steps of Mr. Hamel's investigation, his findings and his conclusions.

[9]     Mr. Hamel obtained from Nav Canada the aviation occurrence report for October 29, 2005, regarding two aircraft, namely, a Beech 19 registered as C-GNEV and a Piper 28A registered as C-GNHI, each operating under visual flight rules (VFR) at Sept-Îles airport (CYZV) and making a landing on October 28, 2005, at 3:13 p.m. (local time), that is, at 1913Z (M-3). This document is the source of record 44 of the Civil Aviation Daily Occurrence Reporting System (CADORS) bearing number 2005Q1894, dated October 31, 2005, which provides additional information about the two aircraft in question and presents the facts (M-2).

[10]     The whole is in accordance with CAR 807.01, which stipulates as follows:

Reporting of Aviation Occurrences

807.01 The holder of an ATS operations certificate shall report to the Minister any aviation occurrence information specified in the CADORS Manual in accordance with the criteria and reporting procedures specified in that manual.

[11]     Mr. Paré filed in evidence exhibit M-5 after searching the official Transport Canada database for the identification of aircraft C-GNHI and its owner.

[12]     Mr. Paré also filed a transcript of the relevant radio communications between the Sept-Îles flight service station (FSS) and the aircraft in question on October 28, 2005, between 19:05:44Z and 19:15:13Z (M-6 and M-6A). The mandatory frequency (MF) is 118.1 MHz and the airport call sign is CYZV. The first aircraft was a Cherokee registered as C-GNHI and the other two aircraft were a Beech Musketeer registered as C-GNEV and a Twin Otter Air Inuit (AIE153). In addition, a cassette or a real-time NICE file of the recordings was filed in evidence, along with the progress strip and the name of the flight service specialist, one Simon Lahaye (M-7).

[13]     Mr. Hamel asked Mr. Lahaye to make a diagram for him of the alleged incident, in particular the positions of the two aircraft on runway 31 when runway 09/27 was closed by a notice to airmen (NOTAM) and runway 05/23 was no longer in use (M-8). This diagram was signed by Messrs. Lahaye and Patrick Desgagnés. In exhibit M-8A, Gilles Langlois, the pilot of aircraft C-GNEV, used a red marker to indicate with two "Xs" on the aerodrome chart the positions of the two aircraft on runway 31.

[14]     Mr. Hamel contacted Sept-Îles Aviation Enr. management personnel and Mr. Langlois, the pilot of aircraft C-GNEV. The latter confirmed what Mr. Lahaye had written and reported (M-3).

[15]     According to the Canada Air Pilot of October 27, 2005 (M-9), runway 31/13 (reduced from 5 771 to 3 900 feet) has no taxiway, necessitating a 180° turn to backtrack and leave via the Delta taxiway at the junction of runway 09/27.

[16]     The Canada Flight Supplement in effect on October 27, 2005 (M-10), gives the following properties: [translation] "Paved surface between thresholds 09 and 13 and paved road mid-way between thresholds 09 and 27 between the runway and the apron not authorized for aircraft movement (CAR 602.96)."

[17]     As a further step, in view of the risk of collision, Mr. Hamel wrote to Mr. Harvey and they had a telephone conversation whose content is unknown to the Tribunal. Mr. Hamel's main findings were that there had been a risk of collision and that there had been no co-ordination between the two pilots. Moreover, because of crosswinds, the run would obviously be longer, at greater speed and with less flap, and there was no communication on final from the pilot of aircraft C-GNHI on MF 118.1 (5NM).

[18]     Mr. Paré concluded his testimony by filing an investigation report – SIGAL 58582 on two contraventions under sections 602.19(10) and 602.102 of the CARs (M-11):

[translation]

1. SYNOPSIS (maximum 5 lines recommended)

C-GNHI, a privately owned Piper PA28, was making a local flight under visual flight rules (VFR) to Sept-Îles (CYZV). C-GNEV, a Beech BE19 operated by Sept-Îles Aviation Enr., was also making a local flight under visual flight rules to Sept-Îles. Runway 09/27 was closed by a notice to airmen (NOTAM). C-GNEV made two missed approaches for runway 31 because of crosswinds. C-GNHI had visual contact with C-GNEV and followed it in the circuit. The two aircraft had a discrete code and were 2 nautical miles apart on downwind. C-GNHI did not call in on final for runway 31. C-GNEV succeeded in landing on runway 31 and requested permission to backtrack. At that moment, C-GNHI advised that it had already landed on r . . . .

. . .

4. ELEMENTS, TABLE OF SANCTIONS AND RESULTS

CHARGE 1 : CAR 602.19(10)

No person shall conduct or attempt to conduct a take-off or landing in an aircraft until there is no apparent risk of collision.

Place

Date

Time

Sept-Îles CYZV, Quebec

2005-10-28

(19:13)

. . .

TABLE OF SANCTIONS: CAR 602.19(10)

. . .

Table of sanctions to be used for contraventions committed on or after May 18, 2005.

Offence

First

Second

Subsequent

. . .      

Amount ($)

1 000 / . . .

   

. . .

CHARGE 2: CAR 602.102

Carrying out circuits within in MF without reporting as required.

Place

Date

Time

Sept-Îles CYZV, Quebec

2005-10-28

(19:13)

. . .

5.4 RECOMMENDING A SANCTION:

. . .

4. Investigator's Recommendations

. . .

(b) CAR 602.102: this is a first offence, oral counselling NFA 10

Second Witness:  Simon Lahaye

[19]     Mr. Lahaye is a flight service specialist at the Sept-Îles FSS. He has worked there since 2001 and was in the air position on October 28, 2005, at 1913Z. It was he who reported the aviation occurrences (M-3), since safety was involved, pursuant to section 807.01 of the CARs, cited above.

[20]     He discussed the incident with his colleague, Mr. Desgagnés, who was with him and provided the weather briefing.

[21]     Referring to his diagram (M-8), he stated that the distance between the threshold of runway 31 and the intersection of former runway 05/23 was 3 900 feet (rather than 5 771 feet); that aircraft C-GNEV stopped at + 2 000 feet from the intersection of runway 31/13 and former runway 05/23; that aircraft C-GNHI landed at + 1 500 feet past the threshold of runway 31; that the distance between aircraft C-GNHI and aircraft C-GNEV was between 500 and 1 000 feet; and that aircraft C-GNHI followed aircraft C-GNEV and left the runway after it.

[22]     Mr. Lahaye referred the Member to two communications (M-6A) in particular:

[translation]

Time

Agency

Communications

. . .    

19:12:56Z

GNEV

NEV, I'm going to make a 180; is that possible sir?

. . .    

19:13:14Z

GNHI

OK, I'm going to move off to the right. For me too, it's a full stop; I'm going to make a 180 and follow you

[23]     He said he did not know that aircraft C-GNHI was going to land, because he was convinced it should have extended its run downwind.

[24]     This would have been possible had the two pilots reached an agreement after communicating with each other. As far as he was concerned, he had never seen this in four years working at that airport.

[25]     On cross-examination, Mr. Lahaye confirmed that he had not seen aircraft C-GNHI land because he was observing, through his spy-glass, aircraft C-GNEV, which had failed both its previous landing attempts, but he did note the position of aircraft C-GNHI once it had landed.

[26]     Regarding the communications, the applicant referred the witness to the following conversations to show his flight progress, his position and his knowledge of the position of aircraft C-GNEV (M-6A):

[translation]

Time

Agency

Communications

. . .    

19:05:59Z

GNHI

HI, on the pull-up. I'm going to maintain runway heading, 2-7-0 then proceed for 1 500 feet over Sept-Îles. I'm going to taxi back behind the traffic for 31

. . .    

19:07:05Z

GNHI

CYZV radio, HI, I'm going to proceed behind the Beech. I have him in sight; he's at my 2 o'clock. I'm going to proceed behind him

. . .    

19:08:30Z

GNHI

CYZV, NHI, is following the Beech so I am # 3

. . .    

19:10:31Z

GNHI

CYZV, NHI, I have traffic at 9 o'clock. I'm getting behind him

[27]     Mr. Harvey thought the distance between the two aircraft was miscalculated, and the witness replied that he calculated it using the visual approach slope indicator system (VASIS).

[28]     Mr. Lahaye again stated that it was unusual for two aircraft to find themselves on the same runway, even at other airports, and that there was no specific procedure for an FSS. It was somewhat more permissive after an agreement between the two pilots, since the Sept-Îles airport was not a controlled airport.

Third Witness: C-GNEV Pilot Gilles Langlois

[29]     Mr. Langlois obtained his licence in 1978. He has owned two aircraft. He has not flown for 10 years.

[30]     On October 28, 2005, in mid-afternoon, he was making a local flight for touch-and-gos with crosswinds and in fact missed two landing attempts. During the third attempt, he extended his downwind run because of the Air Inuit aircraft on runway 31.

[31]     Mr. Langlois therefore called in on final for a full stop. He knew very well that runway 31 had no taxiway and that he had to make a 180° turn and backtrack and leave via Delta at the junction of runway 27. He said that he landed beyond the runway threshold and, with a red marker, he indicated on the aerodrome chart (M-8A) his position and that of aircraft C-GNHI on runway 31.

[32]     When he began his 180° turn, he was surprised to notice the other aircraft, C-GNHI, a distance of 200 feet opposite him. He wondered why the aircraft was there.

[33]     The pilot Harvey told him he was going to let him go ahead, but Mr. Langlois did not think this was safe, since he landed while the runway was clear. He had never seen two aircraft on the same runway. However, he himself did not file a complaint.

[34]     On cross-examination, the applicant referred the witness to the following conversations (M-6A):

[translation]

Time

Agency

Communications

. . .    

19:05:59Z

GNHI

HI, on the pull-up. I'm going to maintain runway heading, 2-7-0 then proceed for 1 500 feet over Sept-Îles. I'm going to taxi back behind the traffic for 31

. . .    

19:07:05Z

GNHI

CYZV radio, HI, I'm going to proceed behind the Beech. I have him in sight; he's at my 2 o'clock. I'm going to proceed behind him

. . .    

19:08:30Z

GNHI

CYZV, NHI, is following the Beech so I am # 3

. . .    

19:10:31Z

GNHI

CYZV, NHI, I have traffic at 9 o'clock. I'm getting behind him

[35]     The witness confirmed that he called in on long final at 19:09:49Z:

translation]

Time

Agency

Communications

. . .    

19:09:49Z

GNEV

OK, NEV, I'm going to get into position for long final 31

APPLICANT'S EVIDENCE

[36]     Mr. Harvey called André Bouchard, who has had a commercial pilot licence for 43 years with 30 000 pilot hours, in particular at Sept-Îles airport.

[37]     The witness stated he had seen two aircraft on the same runway at Montréal–Pierre-Elliott-Trudeau International Airport while one of them was turning off the runway. In his view, this was accepted practice if there was no possibility of collision, and air traffic control often authorized it.

[38]     Regarding subsection 602.19(10) of the CARs, the distance between the two aircraft and their respective speeds were the key factors for assessing the risk of collision.

[39]     Mr. Harvey's aircraft landed within 600 feet and, according to Messrs. Lahaye and Langlois, a distance of 800 to 1 000 feet is safe. The speed of aircraft C-GNHI was calculated at the time to be about 10 to 15 knots.

[40]     Regarding section 602.102 of the CARs, namely, that the pilot Harvey was to call in on final to Sept-Îles, which is not a controlled airport, this was the pilot's responsibility.

[41]     Finally, Mr. Bouchard said he knew of two aircraft finding themselves on runway 09/27 at the same time once before.

[42]     On cross-examination by Mr. Paré, Mr. Bouchard stated that there were in fact taxiways on runway 09/27, and that the runway was 6 552 feet, whereas on runway 31, the distance was 3 900 feet and it was necessary to make a 180° turn. He went on to say he did not think he had seen such a thing happen on runway 31 and that at Sept-Îles, the pilots had full responsibility.

[43]     Mr. Paré got the witness to admit that if there was no agreement between the pilots, there was a risk of collision. Mr. Harvey could not predict when Mr. Langlois would make his 180° turn and, even with a distance between them of 800 to 1 000 feet, a mechanical failure could occur (for example, faulty brakes) leading to a risk of a head-on collision with Mr. Langlois' aircraft or the possibility of ending up in the field.

[44]     Also, even at low speed, i.e., between 10 and 15 knots, from 19:12:56Z to 19:13:14Z, that is, within 18 seconds, aircraft C-GNEV ended up opposite aircraft C-GNHI at a distance of 200 feet.

[45]     Mr. Harvey decided not to testify. The applicant's evidence was considered concluded and we turn now to the submissions of the parties.

RESPONDENT'S SUBMISSIONS

[46]     Mr. Paré made the following points on behalf of the Minister of Transport.

[47]     First, there is an admission of facts regarding the landing of the Piper Cherokee 180 aircraft registered as C-GNHI, flown by Mr. Harvey, on October, 2005, at 1913Z, on runway 31 at Sept-Îles (M-1). Mr. Lahaye has confirmed these facts.

[48]     Mr. Paré believes that the Minister of Transport has discharged its burden of proof, since it has shown all the elements of subsection 602.19(10) of the CARs.

[49]     To that end, according to the testimony of Mr. Lahaye, a flight service specialist at the Sept-Îles FSS, on October 28, 2005, aircraft C-GNHI landed on runway 31 while the other aircraft, C-GNEV (Beech BE19), was still on the same runway at too close a distance, thereby creating a risk of collision.

[50]     Aircraft C-GNEV was making its 180° turn; aircraft C-GNHI was still taxiing along runway 31 and was no more than 800 feet away facing the opposite direction. The CARs do not refer to the distance minima or maxima between two aircraft landing on the same runway, but there must be no apparent risk of collision.

[51]     In this particular case, there was a risk of collision given the wind conditions, that is, crosswinds at more than 10 knots (winds from 240° at 10 and the course line of runway 31 was 310°, for a crosswind component here of 70°).

[52]     Mr. Paré agreed with Mr. Bouchard's statement that the controllers did have a procedure that permitted them to clear a second aircraft to land on a runway occupied by a first in different conditions. These conditions were described in the Air Traffic Control Manual of Operations (MANOPS). Since then, the CARs have been amended with the creation of NAV Canada and there are now standards for what is acceptable. The procedure described is no longer permitted.

[53]     The pilot-in-command of aircraft C-GNEV, Mr. Langlois, confirmed these very facts. He confirmed that Mr. Harvey, the pilot-in-command of aircraft C-GNHI, never stated his intention to land behind him before he had left the runway. No additional safety precautions were taken to eliminate any risk. As stated by Mr. Bouchard, the applicant's witness, it was always possible for a mechanical failure to occur or an emergency situation to arise and thereby prevent the full execution of the planned manœuvre.

[54]     In this particular case, the two pilots had not agreed on any plan. Mr. Langlois confirmed that the crosswinds had hindered his landing, which was longer than usual as a result. The same winds affected the private aircraft flown by Mr. Harvey. According to the owner's manual, when there are crosswinds, the landing must be conducted without flaps at a faster speed, which increases the landing distance. Mr. Langlois confirmed having been very surprised to see an aircraft behind him, then head towards him while he was still on the runway and beginning to taxi back along runway 31 to move off via the Delta taxiway.

[55]     Mr. Harvey was familiar with the Sept-Îles airport and knew very well that Mr. Langlois had to make a 180° turn, but did not know when he would do so.

[56]     Regarding the testimony of Mr. Hamel, an enforcement inspector, he only gave Mr. Harvey oral counselling for failing to call in on final. Also, in view of the other contravention, namely, the risk of collision, he felt it was absolutely necessary to impose a sanction against Mr. Harvey, since the offence committed had far more serious consequences.

APPLICANT'S SUBMISSIONS

[57]     Mr. Harvey pointed out to the Tribunal Member that there had been four communications with the FSS about the progress of his flight. He had aircraft C-GNEV at his 9 o'clock, that is, at the level of his left wing, and followed this aircraft at a distance of at least 2 500 to 3 000 feet.

[58]     He landed before Mr. Langlois, the pilot of aircraft C-GNEV, and, even before the latter made his 180° turn, the two aircraft were taxiing. Mr. Harvey was at least 500 feet from Mr. Langlois, who was heading east as Mr. Harvey was heading west. Also, he preferred to have Mr. Langlois ahead of him in order to predict his movements. The two proceeded to the right.

[59]     Mr. Harvey added that he knew his aircraft well, that it was very safe and could land within a distance of 700 feet.

[60]     He thought he had enough distance and his speed was very low, that is, very slow, since he was moving at no more than 10 or 15 knots.

[61]     Also, Mr. Lahaye did not see him land. Mr. Harvey allowed Mr. Langlois, who was ahead of him, to go first. In that regard, he added that he preferred to have an aircraft in front of, rather than behind him, since that allowed him to see and anticipate the movements of the one ahead.

[62]     Finally, he stated he was at least 500 feet from Mr. Langlois, not 200 feet, because he had in fact stopped.

[63]     In reply, Mr. Paré, for the Minister of Transport, was surprised that Mr. Harvey preferred to have the aircraft in front of him, since he was behind Mr. Langlois' aircraft.

DISCUSSION

[64]     It is always incumbent on the Minister to prove to the Tribunal Member, on the balance of probabilities, the alleged offence under each element of the CARs that the applicant is alleged to have contravened.

[65]     In that regard, Mr. Harvey, the pilot of aircraft C-GNHI, has admitted having landed on runway 31 on October 28, 2005, at 1913Z, at Sept-Îles airport (CYZV) (M-1).

[66]     That runway had no taxiway, except via the Delta at the junction of runway 09/27, which, on October 28, 2005, was closed by a NOTAM until 2000Z.

[67]     In view of these facts, it was therefore necessary after landing to make a 180° turn to taxi back along runway 31 and move off the runway via the Delta taxiway.

[68]     Mr. Lahaye, Flight Service Specialist at the Sept-Îles FSS, Mr. Langlois, the pilot of aircraft C-GNEV, and Mr. Desgagnés, of the same FSS, by his signing of the diagram (M-8), confirmed the fact that the two aircraft found themselves on runway 31 within 18 seconds of each other, that is, at 19:12:56Z and at 19:13:14Z (M-6A).

[69]     When aircraft C-GNHI was behind aircraft C-GNEV, aircraft C-GNHI communicated as follows at 19:13:14Z: [translation] "OK, I'm going to move off to the right. For me too, it's a full stop; I'm going to make a 180° and follow you" (M-6A).

[70]     Earlier, at 19:13:03Z, the Sept-Îles FSS had, however, cleared Mr. Langlois, the pilot of C-GNEV, to make his 180° turn. It was therefore at that point that Mr. Harvey, the pilot of aircraft C-GNHI, not having called in on final, as mentioned earlier, found himself right behind aircraft C-GNEV and then opposite it.

[71]     To be sure, Mr. Lahaye did not see Mr. Harvey, the pilot of aircraft C-GNHI, make his landing because he was closely following the movements of Mr. Langlois, the pilot of aircraft C-GNEV, who had earlier missed two landings in conditions of fairly strong crosswinds.

[72]     Using the VASIS, he calculated the distance between the two aircraft at between 500 and 1 000 feet.

[73]     The Tribunal Member has, of course, received several estimates of the distance separating the two aircraft, their respective speeds and their point of impact at the threshold of runway 31. However, with all due respect to Mr. Bouchard, testifying for the applicant, the Tribunal Member does not believe this is where the crux of the disagreement lies. Mr. Bouchard never stated having seen two aircraft on runway 31/13 on landing, nor did Mr. Lahaye, who has been a flight service specialist at the Sept-Îles FSS for four years.

[74]     Mr. Langlois, the pilot of aircraft C-GNEV, stated he saw aircraft C-GNHI 200 feet opposite him once his 180° turn had been cleared and executed. Mr. Harvey did not make his intentions known on MF 118.1 and, it must be recalled, did not call in on final, hence the first contravention which resulted, at least in part, in the alleged offence, namely, the risk of collision.

[75]     Mr. Harvey stated at 19:08:30Z, as the pilot of aircraft C-GNHI: [translation] "NHI, is following the Beech so I am # 3". Aircraft C-GNEV, however, stated at 19:09:25Z: [translation] "NEV, [I'm] going on base now for 31" and, at 19:09:26Z, the Sept-Îles FSS stated: [translation] "Roger and verify that the Twin Otter [AIE 153] will need to backtrack to leave" (M-6A).

[76]     At 19:09:28Z, C-GNEV stated: [translation] "In that case, I will extend my left downwind, my downwind ..., yes my left downwind for 31". At 19:09:49Z, C-GNEV said: [translation] "OK NEV, I'm going to get into position for long final 31". Then at 19:11:09Z, CYZV stated: [translation] "NEV, the Twin Otter has left runway 31. You are # 1 for runway 31". At 19:11:30Z, AIE153 said: [translation] "AIE153, we are clear" (M-6A).

[77]     Thus, in a word, Mr. Harvey, the pilot of aircraft C-GNHI, should have done as Mr. Langlois, the pilot of aircraft C-GNEV did, which was to extend his downwind run and thereby eliminate the risk of collision. He should also have called in on final and made sure that aircraft C-GNEV had moved off the runway via the Delta taxiway.

[78]     Needless to say, Mr. Harvey did not exercise all due diligence to avoid such a situation, since Mr. Langlois, the pilot of C-GNEV, had no knowledge that Mr. Harvey was landing behind him. The Tribunal Member therefore finds that the Minister of Transport has discharged its burden of proving the alleged offence.

[79]     However, regarding the amount of the monetary penalty assessed, the Tribunal Member cannot agree with the amount of $1 000, because, as a mitigating factor, Mr. Harvey, after 20 years in aviation, has committed no offences and has a clean record. In that regard, the Tribunal Member is satisfied that he presents no risk of re-offending, and the monetary penalty is reduced to $500, payable to the Receiver General for Canada within 35 days of service of this determination.

CONCLUSION

[80]     The Tribunal Member upholds the decision of the Minister of Transport, but reduces the amount of the monetary penalty to $500.

October 2, 2006

Dr. Michel Larose
Member
Transportation Appeal Tribunal of Canada