CAT File No. W-1748-39
MoT File No. 031871
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Jorge Schmiedchen, Respondent
Aeronautics Act, S.C., c.A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 801.01(2)
Workload, Loss of Separation, Due Diligence, Defences, Air Traffic Control Clearance
William Thornton Tweed
Decision: July 7, 1999
I uphold the Minister's decision and find that the Respondent committed the offence and confirm the monetary penalty in the amount of $250.00. This 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 this determination.
The Review Hearing on the above matter was held Thursday, April 15, 1999 at 10:00 hours at the Federal Court of Canada in Edmonton, Alberta.
The Respondent Jorge Schmiedchen was alleged to have contravened subsection 801.01(2) of the Canadian Aviation Regulations (CARS) as stipulated in the Notice of Assessment of Monetary Penalty dated November 27, 1998.
No air traffic controller shall issue an air traffic control clearance ... except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.
The Respondent admitted the essential elements of the offence. He acknowledged that he issued the air traffic control clearance that resulted in the loss of separation between two Canadian Airlines aircraft. The Respondent cleared CDN 676 to climb from FL 290 to FL 330 into the flight path of CDN 699 which was proceeding in the opposite direction level at FL 310. The two aircraft came within five miles of each other at the same altitude.
At approximately 0130 Z on August 11, 1998 the Respondent relieved two controllers working radar and data in the Alsask position at Edmonton Area Control Centre (ACC).
A transcript of the transmissions between Edmonton ACC, Calgary Enroute and the subject aircraft on August 11, 1998 records the following sequence of events:
At 0137:45 Z the Respondent spoke directly to CDN 699 and acknowledged CDN 699 level at FL 310 and its reroute to Empress;
At 0139:22 Z the Respondent cleared CDN 676 to FL 330;
At 0143:04 the Respondent directed CDN 699 to turn right 30 degrees;
At 0143:10 the Respondent directed CDN 676 to turn right 30 degrees;
At 0143:11 "TCAS for avoidance" was transmitted by unidentified source (likely CDN 699);
At 0143:17 CDN 676 "is descending on TCAS";
At 0143:34 CDN 699 reports he is by the traffic;
At 0143:47 CDN 676 reports "we had that at one point 100 feet difference and closing but we had most probably lateral separation of a couple miles".
Notwithstanding the Respondent's admission to the facts as set out above, he argued that he had exercised all due diligence and that in spite of so doing separation was lost. I disagree.
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.
In the Tribunal Appeal Determination Marsh v. Minister of Transport- CAT File No. C-1095-02:
Diligence is defined as "the attention and care legally expected or required of a person." The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.
ARGUMENTS AND FINDINGS
The focus of the Respondent's argument was that his workload was too high and as a result of that workload he made a mistake for which he should not be held responsible. He further argued that the party that is really responsible for the loss of separation is Nav Canada. The Respondent stated that he had not been properly trained by Nav Canada to be a supervisor and that Nav Canada understaffed the Edmonton ACC.
Nav Canada is not before the Tribunal nor is it my mandate to determine or comment on Nav Canada's training or overall staffing levels and I will not.
The Applicant acknowledged in its evidence that the Respondent was busy when the clearance that resulted in the loss of separation was issued. I accept that as fact and agree that an excessive workload could have been a contributing factor. The evidence was not sufficient to support a conclusion that the workload was excessive for a controller of Mr. Schmiedchen's experience at the time of the incident and I make no finding on that issue.
The evidence was that the Respondent assumed responsibility for a sector with the knowledge that it was moderately busy at the time and foreseeable that the sector could get busier.
The due diligence required here would be that when relieving controllers for their breaks the supervisor should first determine the present and likely coverage required at the station during the break and then take reasonable steps to ensure that adequate coverage is maintained or some procedure such as flow control is implemented to maintain air safety.
The Respondent's workload at the relevant time was created by the Respondent when he relieved two controllers at the same time. The evidence did not support the Respondent's decision to relieve both controllers at the same time. He could have relieved the other controllers one at a time maintaining two controllers on the sector and reduced the workload that he argued was the reason for the error.
The Respondent on cross-examination admitted that even after he realized how busy the sector was getting he took no steps to reduce his workload.
There was also a student controller on duty; however, the evidence indicated that the student was attached to one of the two controllers that was on a break and could not have been used to alleviate the workload of the Respondent.
The Respondent also presented documentary evidence that regulatory sanction is an ineffective way to compel compliance with regulations. That is not the issue before this Tribunal. The Respondent is an Air Traffic Controller and as such is a document holder as defined in the Aeronautics Act. When the Respondent obtained his licence he accepted the responsibilities that went with it and the regulated environment in which he chose to work.
The Respondent has suggested that in the event I find for the Applicant that I should reduce the sanction. I am not persuaded. The sanction is consistent with sanctions that have been imposed on other document holders for a first offence.
At the start of the hearing I ordered that all witnesses be excluded until after they had testified. Counsel for the Respondent asked that his expert be entitled to remain throughout the hearing to assist him during the hearing process. The Respondent was available to assist and instruct Counsel. I ruled against this request indicating that in my opinion the role of the expert is to assist the Hearing Officer with a particular issue on which the witness has expertise. The expert witness should be posed a hypothetical question, and give his or her opinion based on the hypothetical. The expert should not hear and be influenced by the evidence before giving an opinion. Procedural fairness requires that the Hearing Officer alone hears all the evidence, weighs that evidence and gives his or her decision based on the evidence. The Hearing Officer cannot be seen to be relying on an expert witness's opinion of the evidence.
Mr. Schmiedchen did not take all the steps he reasonably could have to ensure that there was adequate coverage for the air traffic control sector for which he was responsible. In the circumstances he cannot be said to have exercised all due diligence.
I uphold the Minister's decision and find that the Respondent committed the offence and confirm the monetary penalty in the amount of $250.00.
William T. Tweed
Civil Aviation Tribunal
Allister W. Ogilvie, E. David Dover, William G. McDonald
Decision: December 14, 1999
The Appeal Panel chooses not to disturb the Member's finding of facts and finds no reviewable error of law. The Panel upholds the determination made by the Tribunal Member at Review. The monetary penalty of $250.00 is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.
An Appeal Hearing on the above matter was held November 22, 1999, at 10:00 hours at the Federal Court of Canada in Edmonton, Alberta.
Mr. J. Schmiedchen is an employee of NAV CANADA in the position of Operational Controller Supervisor in the Edmonton Area Control Centre. He has been in that position for almost seven years and has been a controller for many years prior to that.
Upon reporting for work on August 11, 1998, Mr. Schmiedchen attended to some supervisory duties before starting his controller functions. At approximately 7:30 local time he relieved two controllers in the Alsask sector, to allow them to have a break. At that point he assumed the function of a radar controller as well as doing data work and passing estimates to and receiving estimates from Winnipeg.
Sometime after having relieved the other controllers, it became apparent to him that a potential conflict in aircraft positioning was occurring in his sector. He issued instructions to both aircraft to alter headings so as to avoid the conflict. Both aircraft altered direction as instructed, and changed altitudes pursuant to an internal collision avoidance warning system.
An investigation of the occurrence lead the Minister of Transport to allege that Mr. Schmiedchen had contravened subsection 801.01(2) of the Canadian Aviation Regulations (CARs) as stipulated in the Notice of Assessment of Monetary Penalty dated November 27, 1998. "No air traffic controller shall issue an air traffic control clearance ... except in accordance with the Canadian Domestic Air Traffic Control Separation Standards." Mr. Schmiedchen contested the allegation and a Review Hearing was convened on April 15, 1999.
Mr. William Tweed, the Hearing Member rendered a written decision on the matter and determined the following: "I uphold the Minister's decision and find that the Respondent committed the offence and confirm the monetary penalty in the amount of $250.00."
GROUNDS FOR APPEAL
From that decision Mr. Schmiedchen has appealed on the following grounds:
The Respondent maintains that the Civil Aviation Tribunal erred in both fact and law in confirming the Minister's decision that the Respondent was in violation of the Canadian Aviation Regulations (CARs), section 801.01(2) and, alternatively, in upholding the $250.00 monetary penalty imposed by the Minister on the Respondent.
CARs section 801.01(2) provides:
No air traffic controller shall issue an air traffic control clearance ... except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.
The Applicant alleged that the Respondent was in violation of section 801.01(2) in clearing CDN 676 to climb from FL 290 to FL 330 into the flight path of CDN 699 on August 11th, 1998 while working as an operational air traffic controller in the Calgary Enroute Specialty at Edmonton Area Control Centre. A loss of separation occurred.
The Respondent submits that the evidence presented at the hearing established that the Respondent exercised due diligence in carrying out his duties as an air traffic controller, given that the Respondent was put in the situation that led to the loss of separation as a result of the inadequate staffing and related workplace policies of the Respondent's employer, NAV CANADA.
In the alternative, the culpability of NAV CANADA in contributing to the loss of separation that occurred must be reflected in assessing the penalty, given that NAV CANADA was not even the subject of any enforcement action by the Minister. Further, it is submitted that the monetary penalty itself is an arbitrary amount, not supported by the principles of corrective punishment in a safety-centred environment.
Subsection 801.01(2) of the CARs states: "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 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."
SUBMISSIONS AS TO FACTS
It is common ground between the parties that Mr. J. Schmiedchen was the controller in the operational position when a loss of separation between CDN 699 and CDN 676 occurred. The Appellant (Respondent at Review) submits that the evidence presented at the hearing established that the Appellant exercised due diligence in carrying out his duties as an air traffic controller, given that the Appellant was put in the situation that led to the loss of separation as a result of the inadequate staffing and related workplace policies of the Appellant's employer, NAV CANADA.
Appellant's Submissions — Ground 1 Due Diligence
Mr. P. Barnacle, legal counsel for the Canadian Air Traffic Control Association appeared on behalf of Mr. Schmiedchen. He presented oral argument and relied upon his prior written submission to the Member at the Review Hearing.
Mr. Barnacle explained to us that Transport Canada had, prior to November 1 of 1996, been both the employer and regulator of air traffic controllers. On November 6 NAV CANADA, a corporation, took over the Canadian air navigation system and with that became the employer of the controllers. Transport Canada retained the role of regulator, able to take action for violations pursuant to the CARs.
In both his oral presentation and written material he was of the view that the evidence showed there to be longtime staffing shortages, lack of regulation pertaining to both the required staffing levels and time to work before relief among other issues. Mr. Tweed, the Hearing Member found that NAV CANADA was not before the Tribunal and that it was not his mandate to comment on its training or staffing.
Mr. Barnacle submits that was an error of law. He urges that all of these factors must be considered in coming to a determination, as the occurrence cannot be viewed in isolation.
Mr. Tweed found that the Appellant assumed responsibility for the sector with the knowledge that it was moderately busy at the time and foreseeable that the sector could get busier. This finding was an error on the evidence, according to Mr. Barnacle. He asserts that the evidence shows it became busier unexpectedly with many reroutes that could not be foreseen.
The Member's finding that Mr. Schmiedchen's workload was created by himself, by relieving two controllers at once was an error of fact and law. Mr. Schmiedchen felt that he could handle the traffic and both of the other controllers were already overdue for breaks. The real problem was the lack of staffing and the lack of stand-back supervision.
The finding that Mr. Schmiedchen took no steps to reduce his workload was also in error on Mr. Tweed's part. Counsel asserts that there was no viable alternative for him, as being so busy limited his ability to call for help.
Mr. Barnacle asserted that Mr. Tweed's failure to consider the reality of the working environment that Mr. Schmiedchen found himself in was also an error.
Mr. Hector, Transport Canada's Appeals Officer, submitted that the evidence of Mr. McDonald showed that staffing shortage was not a new problem, as it existed over the course of Mr. McDonald's career of 30 years as an air traffic controller. Knowing that it was a problem Mr. Schmiedchen should have been even more vigilant.
He pointed out that it was the Appellant's testimony that if the traffic was moderate to heavy there would always be two people in a position but acted contrary to his own statement when he alone took over the sector when he had characterized the traffic on the heavy side of moderate.
It was submitted that the Appellant did have other options open to him to give the controllers in the Alsask sector a break such as relieving only one person at a time or combing sectors. Mr. Hector pointed out Mr. McDonald's testimony also included the suggestion that one could reduce workload by restricting the traffic flow appropriately.
DISCUSSION — GROUND 1
As Mr. Schmiechen had admitted to the essential elements of the offence at the Review Hearing, it then became incumbent on him to prove, on a balance of probabilities, that he exercised all due diligence to avoid the commission of the offence. The Hearing Officer, Mr. Tweed, held that he did not exercise all due diligence in the circumstances.
Counsel for Mr. Schmiedchen appeals from that finding, citing in his presentation that Mr. Tweed made errors of fact and law in coming to that conclusion as the evidence showed that Mr. Schmiedchen had exercised all due diligence.
Mr. Tweed, having acknowledged the availability of the defence of due diligence with reference to section 8.5 of the Aeronautics Act, was then guided by the standard enunciated in the Marsh case which states:
Diligence is defined as 'the attention and care legally expected or required of a person.' The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.
At page 3 of the Review Determination Mr. Tweed makes factual findings on evidence which drew him to the conclusion that due diligence was not exercised.
Regarding the standard of review of factual finding two Tribunal cases provide guidance. In Moore, the Appeal Panel agreed that: "I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of two grounds. The first is an entire absence of evidence to support it.... The second is, notwithstanding that there is some evidence concerning the finding, it is [nonetheless] unreasonable and incapable of being supported by the evidence."
The Appeal Panel in Phillips stated: "Unless the findings of the hearing officer are patently unreasonable and cannot be supported by the testimony—under oath—the Appeal Tribunal should be reluctant to substitute its findings."
Our review of the transcript shows that Mr. Tweed's various findings of fact are based on the evidence and that his findings of fact are not unreasonable.
One illustration is the relief of two controllers at the same time. Mr. Tweed's view was that the Appellant created his own workload by relieving both of them at once. In addressing that issue in written submission the Appellant took a different view, stating that: "The controllers had been working without a break for at least two hours... The Respondent [Appellant here] felt that the traffic was such that he could provide them with a break that is needed after that length of time working a position."
The point was reiterated in other paragraphs stating that providing a break was not an error as those two controllers had worked the longest.
This relief of the controller must be viewed in the context of due diligence in preventing the contravention, not in the context of workplace practice regarding breaks. As the contravention was the loss of separation when under Mr. Schmiedchen's control it was not unreasonable for Mr. Tweed to find that relieving two controllers instead of retaining one to keep a higher number of controllers active, was not duly diligent.
We have reviewed each finding of fact and conclude that each was based on evidence and his findings on each were not unreasonable.
The Appellant also asserts error of law. The materials before us and the arguments presented assert that Mr. Schmiedchen was put in the situation which led to the loss of separation as a result of inadequate staffing and related workplace policies of the Appellant's employer NAV CANADA.
In the second paragraph of his findings Mr. Tweed stated that it was not his mandate to determine or comment on NAV CANADA's training or staffing levels.
Mr. Barnacle argues that this is an error of law as one should look to all the attendant facts and circumstances. We do agree that one has to look at all the facts and circumstances as the determination of whether one is duly diligent is dependent upon the circumstances that prevail at the time.
However, Mr. Tweed was correct in stating that it was not his mandate to determine NAV CANADA's training or overall staffing levels. That is an issue to be negotiated between employer and employees in collective bargaining. There can be no doubt that the task is not in his domain. He also chose not to comment upon the training or staffing levels. NAV CANADA was not before the Tribunal to present its view on those issues. In the circumstance it was correct not to comment on them. However that is not to say that he did not take into account the circumstances prevailing at the time. That he did take them into account is illustrated in the third paragraph where he states: "The Applicant [Respondent here] acknowledged in its evidence that the Respondent [Appellant here] was busy when the clearance that resulted in the loss of separation was issued. I accept that as fact and agree that an excessive workload could have been a contributing factor."
The second ground for appeal relates to sanction imposed. That ground has two parts. The first states: "In the alternative, the culpability of NAV CANADA in contributing to the loss of separation that occurred must be reflected in assessing the penalty, given that NAV CANADA was not even the subject of any enforcement action by the Minister."
Given that NAV CANADA was not the subject of any enforcement action there cannot be any finding of culpability to be reflected in assessing the penalty given. Therefore, we must dismiss this portion of this ground for appeal.
The second portion of the ground states: "Further, it is submitted that the monetary penalty itself is an arbitrary amount, not supported by the principles of corrective punishment in a safety-centred environment."
In the written submissions that were before Mr. Tweed, the Minister made scant reference to sanction, stating only that the penalty assessed was appropriate in the circumstances. Mr. Barnacle's written reply addressed sanction at length concluding that there should be justification given to the Tribunal as to why a particular penalty is justified. He did not provide authority for that proposition, and we are not aware of any Tribunal jurisprudence to that effect.
A review of Tribunal cases reveals a diversity of approaches to the subject of sanction. In some instances it is not addressed at all. We are not convinced that the Minister must provide evidence to prove that the sanction is justified. Such evidence may assist the Member in assessing an appropriate penalty just as evidence from the Respondent may help to sway the Member to a contrary position, but it is not a requirement.
Mr. Tweed had the benefit of the parties' submissions. He stated: "I am not persuaded." This clearly indicates that he put his mind to the parties' opposing views. In other Tribunal cases where a breach of the same provision (801.01(2)) occurred the penalty assessed for a first offence was $250.00. In these two cases the persons were not IFR controllers but airport controllers.
As the quantum of the sanction was within prescribed guidelines and was consistent with sanctions for similar offences and Mr. Tweed did put his mind to arguments of the parties, we cannot agree that he made an error in upholding the sanction.
Reasons for Appeal Determination by:
Allister Ogilvie, Vice-Chairperson
David Dover, Member
William G. McDonald, Member
 Leslie G. Marsh v. Minister of Transport, CAT File No. C-1095-02, Appeal Determination.
 Trent Wade Moore v. Minister of Transport, CAT File No. C-0138-33, Appeal Determination.
 Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, Appeal Determination.
 Final Argument Submissions of the Respondent [Appellant here] at 3, para. 12.
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