Decisions

CAT File No. W-1930-39
MoT File No. EMIS 033669

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Stephen Patrick Pozzi, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 801.01(2)

Due Diligence, Mitigating Factors, Loss of Separation, Air Traffic Control Clearance, Aggravating Factors


Review Determination
Allister W. Ogilvie


Decision: April 4, 2000

Mr. Pozzi was in contravention of subsection 801.01(2) of the Canadian Aviation Regulations. I do not find that he exercised all due diligence. Regarding the principles of sanctions enunciated in prior jurisprudence, I reduce the total assessed monetary penalty from the stated $500.00 to $250.00 as I find that the appropriate sanction should be that imposed for a first offence. 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 this determination.

A Review Hearing on the above entitled matter was held Tuesday, February 29, 2000 at 10:00 hours at Edmonton, Alberta.

BACKGROUND

Mr. Pozzi is an air traffic controller assigned to duties in Edmonton. On May 1, 1999, while operating as a departure controller for the Calgary terminal, he issued an air traffic control clearance to an aircraft which eventually led to a loss of required separation between it and another aircraft. The report of this incident lead to Transport Canada investigating and subsequently issuing to Mr. Pozzi a Notice of Assessment of Monetary Penalty containing the following allegation:

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 the following provision(s):

CARs 801.01(2) 'No air traffic controller shall issue an air traffic control clearance ... except in accordance with the Canadian Air Traffic Control Separation Standards.'

On or about May 01, 1999 at approximately 1300Z, in the vicinity of Calgary Alberta, Mr. Stephen Patrick Pozzi, holder of an Air Traffic Control licence, did not provide Air Traffic Control service in accordance with CARs 801.01(2) in particular:

issued clearances to Canadian 960 which caused the aircraft to conflict with Air Canada 270.

The assessed penalty of $500.00 was not paid. The Minister of Transport applied to the Civil Aviation Tribunal to have the matter heard which resulted in the hearing, of February 29, 2000 in the city of Edmonton.

EVIDENCE

Mr. J. R. Pollock represented the Minister of Transport whereas Mr. P. J. Barnacle, counsel for Canadian Air Traffic Control Association (CATCA), represented Mr. Pozzi. The parties presented a binder of documents (Exhibits 1 to 15) which were mutually agreed upon, subject to argument regarding the documents' probative value.

Exhibit 1, an Agreed Statement of Facts established that Mr. Pozzi is the holder of an air traffic controller licence, #367813. On May 1st he was on duty working the Departure Position, Calgary Terminal Specialty in the Edmonton Area Control Centre during the time of the alleged incident.

The incident involved Canadian Airlines Flight 960 and Air Canada Flight 270. Flight 960 departed the Calgary Airport Runway 34 and Mr. Pozzi issued a clearance to the crew to fly a heading of 090 degrees to climb to flight level 250. Air Canada 270 was inbound to Calgary from the North anticipating a landing in Calgary on Runway 28. Canadian 960 was to pass in front of the inbound flight. As the two aircraft came closer together, the Canadian flight was vectored to the right to a heading of 110 degrees and the Air Canada flight was vectored to the left to 110 degrees so the aircraft would parallel one another. Just before this time, lateral separation was reduced to 2.2 miles and vertical separation was less than 1,000 feet.[1]

Upon recognition of this operational irregularity (O.I.) Mr. Pozzi reported it to the shift manager, Mr. Ellis. Mr. Ellis relieved him of duty while Mr. Ellis conducted a preliminary investigation by reviewing the tapes and data. Mr. Ellis concluded that there had been a loss of separation and Mr. Pozzi had been responsible for it. Mr. Pozzi was then relieved from further duty that day.

The report of this O.I. became Canadian Aviation Daily Occurrence Reports (CADORS) No 99C0314 dated 1999/05/01. It came to the attention of Mr. B. McDonald an investigator with Transport Canada. Mr. McDonald formerly worked as a controller for many years in various controller functions. He now investigates alleged air navigation service breaches in the area of Western and Northern Canada.

He initiated his investigation by requesting the audio tapes and radar information be secured. From the audio tapes he created the transcripts that form Exhibits 9 and 10. From the tapes Mr. McDonald concluded that the departure controller, Mr. Pozzi, had issued a clearance that resulted in a loss of the required separation.

The loss of separation was documented by mathematical calculations of radar data as presented at Exhibits 12 and 14. Lateral separation had been reduced to 2.2 miles and vertical separation of 100 feet.[2]

Mr. McDonald also became aware that Mr. Pozzi had experienced a remarkably similar incident on his shift of April 30, 1999, the shift immediately preceding the one in question here.[3]

That incident was also the subject of a CADORS and investigation by Mr. McDonald. Mr. McDonald concluded that the incident was an inadvertent breach with no real danger of collision, but showed lack of judgement. He was investigating and reporting upon both incidents. He recommended a sanction should be issued for one but not both occurrences. Mr. Pozzi had been relieved of duty following the incident of April 30th, while it was being reviewed. He was also reinstated that day.

Mr. Ellis, the shift manager on duty for May 1st, was not aware that Mr. Pozzi had experienced an O.I. within a very short period of time before reporting for duty on the next day.

In his testimony Mr. Ellis stated that at that point in time (May 1999) the shift manager did not get a briefing from the previous shift manager, but would receive a note advising him of the previous shift's activities. The note he received did not advise him of Mr. Pozzi's incident. The procedures regarding the briefings between shifts have since been revised. Mr. Pozzi upon reporting for duty on May 1st did not advise Mr. Ellis of his recent O.I. Mr. Ellis was of the view that if Mr. Pozzi had a problem with returning to work so soon after an incident, he should have advised Mr. Ellis.

In questioning regarding separation standards Mr. Ellis testified that three miles lateral and 1,000 feet vertical were required in this situation.

When investigating the incidents, Mr. McDonald declared that he had attempted to contact Mr. Pozzi by telephone, leaving messages for him, but had no reply. In August he was at the airport terminal building and spoke to Mr. Ellis, whereby he requested Mr. Ellis to relay his request for an interview to Mr. Pozzi. He had anticipated meeting him, after his shift. Mr. McDonald understood that the meeting was arranged but Mr. Pozzi did not attend. Mr. Pozzi never was interviewed by Mr. McDonald.

On cross-examination Mr. McDonald readily acknowledged that there was no obligation on Mr. Pozzi to speak to him. Counsel for Mr. Pozzi questioned Mr. McDonald at length on the interpretation of the radar data, suggesting alternative explanations but he remained adamant that separation was lost prior to the turns being initiated.

On May 1, 1999, the shift supervisor working under Mr. Ellis was Mr. G. Scully. He also testified that he was not briefed regarding Mr. Pozzi's prior incident nor did Mr. Pozzi tell him about it.

Mr. Scully testified as to procedures that were now in place to assist a controller who has had an O.I. The controller goes back to work with supervision to ensure that he is ready in all respects.[4]

Mr. Pozzi is a very experienced air traffic controller who, until April 30th and May 1st had an unblemished record. Through questioning by his counsel, he related the incidents of April 30th and May 1st as well as subsequent events.

He acknowledged that the separation standards required three miles laterally and 1,000 feet vertically. He contended that his training provided that he should control as closely as possible to those standards, but if something were then to go wrong there would be loss of separation.

As to April 30th, after the loss of separation had occurred, he reported the incident and was relieved of duty until the supervisor could do a preliminary investigation. The incident had left him shocked and wondering how it occurred. He did receive a letter reinstating him to the job.

Mr. Pozzi acknowledged that he spoke to neither Mr. Ellis nor Mr. Scully when he reported for duty on May 1st.

He related the details of the second occurrence. Upon recognizing that the traffic had lost separation he reported the incident and was once more relieved of duty while Mr. Ellis conducted the preliminary investigation, which established that there had been a loss of separation.

The occasion left him stunned, shocked and frustrated as he had two incidents within about 12 hours. He felt that his mind had still been on the problem of the night before. Mr. Pozzi declared that he would then take some leave before returning to work.

He testified that the incidents were investigated by the Transportation Safety Board of Canada (TSB). The investigation greatly helped him understand why the incidents had occurred.

Mr. Pozzi denied receiving any telephone messages from Mr. McDonald. However he granted that he had received a message, through Mr. Ellis, that Mr. McDonald wanted to speak to him. However, no CATCA representative was then available to accompany him. After consulting some colleagues he decided not to attend the meeting. He heard no further from Transport Canada until receiving the Notice of Assessment of Monetary Penalty.

ARGUMENT, Minister of Transport

Mr. Pollock for Transport Canada stated that subsection 801.01(2) of the Canadian Aviation Regulations (CARs) was classified as a strict liability offence. On the evidence, both documentary and testimonial, it was clear that there had been a loss of separation.

He submitted that Mr. Pozzi himself had admitted the loss of separation on May 1st and that he had felt responsible for it.

Regarding the incident of April 30th, Mr. Pollock reminded me that no penalty had been assessed for it, but that did not preclude an adjudicator from taking it into consideration for determining a penalty.

Although the shift manager of May 1st was not briefed of the previous night's incident, it was Mr. Pozzi himself who decided to return to duty and Mr. Pozzi who chose not to alert his supervisors of May 1st to the previous night's O.I.

The imposition of a sanction was to serve as both a deterrent to the offender and to others. Mr. Pollock was of the view that all due diligence had not been exercised; therefore, the allegation had been made out and the sanction should be upheld.

ARGUMENT, Mr. Barnacle

Mr. Barnacle stated that the purpose of the Aeronautics Act and CARs was to promote and enhance aviation safety.

The concept of discipline as punishment was not acceptable in a modern aviation context especially when imposed due to an inadvertent error. Rather, in his opinion, the focus should be on rehabilitation and learning from one's mistakes. Certainly there should be no punishment where there is no intention, no negligent or careless behaviour. Discipline for an inadvertent act would not instill advertence.

Mr. Barnacle asserted that the focus should go beyond the event to address all the circumstances that lead to or could have contributed to the incident. Only then could we learn a lesson from the incident. The imposition of a monetary penalty would not enhance the learning process.

Incidents such as those that occurred on April 30th and May 1st can have a profound effect on a controller's emotions, as indicated by Mr. Pozzi's testimony. At the present time, a controller is not allowed to self assess his ability to return to the job but is aided into the reintroduction by having a backup controller complete a check-ride on him before he assumes full duty. That was not available to Mr. Pozzi in 1999.

Mr. Barnacle argued that there should be no finding against Mr. Pozzi as he had operated with all due diligence. That was shown by his utilization of proper procedures. However when something did go wrong he took appropriate action and regained separation.

As well Mr. Barnacle maintains that it is the employer who stipulates that the personnel control to the minimums. It is inevitable that if something goes wrong, separation will be lost.

Alternatively, if I were to find that Mr. Pozzi had not acted with all due diligence, the sanction imposed was inappropriate and should be reduced.

The factors listed as "aggravating" in the assessment of the regional manager were not proper. The incident of April 30th had not been adjudicated and should have been considered closed, so it could not be regarded as a first offence.

The failure of Mr. Pozzi to attend the meeting was improperly considered. Mr. Barnacle maintained that as there was no obligation on the controller to attend a meeting, not attending could not be held against him.

Mr. Barnacle pointed out the decision to impose the penalty and reasons for the penalty were both under the signature of Mr. Ayers. This was improper as the procedure should have been a two-step review.

Regarding the guidelines found in Chapter 11 of the Aviation Enforcement Procedures Manual regarding sanction, it was the position of Mr. Barnacle that only mitigating circumstances were appropriate to consider under those guidelines.

He argued that if there were to be a sanction, it should be reduced.

THE LAW

Subsection 402.04(1) of the CARs

(1) No person shall act as an air traffic controller or exercise the privileges of an air traffic controller licence unless that person holds and can produce while so acting and while exercising such privileges

(a) an air traffic controller licence endorsed with a rating appropriate to the privileges being exercised and with the appropriate operational location; and

Subsection 801.01(2) of the CARs

(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 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.

DISCUSSION

Subsection 801.01(2) of the CARs is a designated provision the contravention of which may be dealt with in accordance with the procedures set out in sections 7.7 to 8.2 of the Aeronautics Act. It is provided at subsection 7.9(5) that the burden of proving that the person appearing before the Tribunal has contravened the provision is upon the Minister.

The Minister must prove each element of the offence on a balance of probabilities. Regarding an alleged breach of subsection 801.01(2) of the CARs, the Minister must prove:

  • the identity of the air traffic controller,
  • that the controller issued the air traffic control clearance,
  • that the clearance issued was not in accordance with the Canadian Domestic Air Traffic Control Separation Standards.

More specifically, that Mr. Pozzi was the air traffic controller on May 1, 1999, who issued a clearance that was not in accordance with the Canadian Domestic Air Traffic Control Separation Standards.

Although not explicitly stated by definition, it can be inferred that the holder of an air traffic controller licence is an air traffic controller. By the Agreed Statement of Facts[5] Mr. Pozzi is the holder of an air traffic controller licence. He was on duty on May 1, 1999 working in the Departure Position of the Edmonton Area Control Centre.[6] Mr. Pozzi acknowledged issuing the air traffic control clearance. Mr. McDonald also testified to that fact. The Radex tapes and read outs[7] show that lateral separation was reduced to as low as 2.2 nautical miles and 100 feet vertical separation. The testimony of Mr. Ellis and that of Mr. Pozzi stipulated that the required separation in that circumstance was three nautical miles and 1,000 feet vertical separation. Therefore, the separation standards of the Canadian Domestic Air Traffic Control Separation Standards were not met. In the result, the Minister has proved, on a balance of probabilities, all elements of the offence.

Mr. Barnacle's argument may be roughly divided into three categories; first due diligence, second punishment and third sanction.

DUE DILIGENCE

Section 8.5 of the Aeronautics Act provides that one will not be found to have been in contravention if the person exercised all due diligence to prevent the contravention.

A recent appeal decision involving an operational controller addressed due diligence.[8] The panel found the Marsh case instructive and quoted from it as follows: [9]

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.

The issue then becomes whether Mr. Pozzi exercised the attention and care expected from an air traffic controller in the circumstances that prevailed on May 1, 1999. I find that he did not exercise the attention and care expected of an experienced air traffic controller so as to engage the defence of due diligence.

Mr. Barnacle submits all due diligence was exercised as he had used approved procedures and once noticing the problems, took prompt action to correct it. He also contends that the employer's directive to control to minimum results in an inevitable loss of separation if something does go amiss.

Mr. Pozzi testified that on the day in question the traffic was light. The situation that he was given to control was very familiar to him and as he put it was "a no-brainer". In spite of that, separation was lost. With the help of TSB investigators he later realized that he missed something. He should have utilized a different phraseology. He also stated that his head was still in the night before. Pozzi was not exercising the attention and care expected of him as a controller as he was still distracted by the events of the night before and utilizing a different phraseology may have prevented the occurrence.

Mr. Barnacle's submission that the employer's instruction to control to the minimum separation standard inevitably leads to loss of separation if an error occurs is not helpful as an argument but is rather a statement of the obvious. Hypothetically, if the standard were to be increased to 10 miles, any deviation from that standard would result in loss of that required separation albeit the aircraft would be much further apart. The minimum separation standard could be extended to any given limit yet the consequence of an inadvertent error would still result in a loss of that separation.

PUNISHMENT

He has argued that the purpose of the Aeronautics Act and subordinate legislation is to promote and enhance safety. In his view discipline for an inadvertent error does not fit within the concept of promoting and enhancing aviation safety.

However, the Aeronautics Act at sections 6.9 and 7.6 imposes penalties for contravention. Under 6.9 the penalty will be a suspension or cancellation of a document whereas under 7.6 a monetary penalty is levied. In this instance the Aeronautics Act at subsection 7.6(2) states:

(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction.

It is clear that, if one is found guilty of an offence, one is liable to the punishment imposed in accordance with the Act. Mr. Barnacle argues that punishment for an inadvertent error is outdated and has no place in a modern context. However the Act does not differentiate between advertent and inadvertent error that results in a contravention. Mr. Barnacle's arguments would be more profitably advanced to a different body, such as the Canadian Aviation Regulation Advisory Council (CARAC), as my duty is to interpret the legislation as it currently stands.

SANCTION

Having found that all due diligence was not exercised, Mr. Pozzi was in violation of the provision. Mr. Barnacle has argued that the sanction of $500.00 is not appropriate in the circumstances. He advances several arguments in support of his assertion.

Although it was acknowledged that Mr. Pozzi was involved in an O.I. on April 30th, that incident never resulted in a finding of a contravention. The case was closed with a recommendation of no sanction. Therefore, Mr. Barnacle submits it was improper to consider it as a prior offence. Hence this offence cannot be categorized and sanctioned as a second offence.

The Transport Canada adjudicator found that Mr. Pozzi not attending a scheduled meeting with Mr. McDonald was an aggravating circumstance. Mr. Barnacle asserts that, as the evidence shows that he was not compelled to attend such a meeting, his non-attendance cannot be considered to be an aggravating circumstance.

He also takes issue with the fact that a certain Mr. Ayers acted in a dual capacity when this file was adjudicated. He argues that Transport Canada's procedure was that each file be given a review by two different people. However, Transport Canada's internal review mechanism and oversight process is its own. Although Mr. Barnacle criticized the fact that the report was twice signed by one individual he did not adduce evidence to show that doing so was improper. It remains his opinion.

In his argument Mr. Barnacle has referred to Transport Canada's Aviation Enforcement Procedures Manual. The portion in evidence is an excerpt from Chapter 11 Table of Sanctions. Under that heading it is stated:

The tables in this chapter provide guidance to the Enforcement staff in the selection of an appropriate sanction. (Exhibit D-18)

The two points to be noted are that the material is for guidance and that guidance is directed to enforcement staff of Transport Canada. Previous Civil Aviation Tribunal cases have also addressed sanction. Of particular interest is Wyer[10] where the appeal panel addressed sanction in some detail. Regarding the authority of Transport Canada's Aviation Enforcement Procedures Manual recommendations the panel stated:

A Civil Aviation Tribunal is not bound by the precedent of its own prior dispositions nor is it bound by the recommended sanction by the Enforcement and Legislation Branch of Transport Canada. Either, however, may be persuasive.

The case was based upon the breach of an Air Navigation Order. The pilot was alleged to have landed a Cessna Citation aircraft at an airport without obtaining an air traffic control clearance.

The panel clearly stated that the failure to comply with an air traffic control clearance was a serious offence. In so stating they went on to address the environment in which controllers and aircrews are enmeshed in the following terms: [11]

The regulatory scheme promulgated by Transport Canada which gives rise to the orderly and safe movements expected in controlled air space must be rigorously enforced and when non-compliance is observed, the infraction disposed of in such a way as to provide both personal and general deterrence in the aviation community and seen by the public to be dealt with in a way which encourages absolute compliance in the interest of safety and the avoidance of any speculation that the fine imposed is nothing more than a licence permitting the breach.

I find the reasoning to be persuasive whether one deals with the people issuing clearances that are to provide for the orderly and safe movement of traffic in controlled airspace or whether one deals with the people who are expected to adhere to those clearances.

The panel did address what they considered to be the paramount consideration in enforcement and how a breach should be considered. They stated:

The enforcement policy should recognize aviation safety as the paramount consideration in determining when and what enforcement action should be taken with due regard to public convenience and economic consequences. The policy should require that [vigorous] enforcement action will be taken with respect to all deliberate breaches of the Aviation Safety Standards which derogate from safety. The issue of what is and what is not a deliberate breach should inevitably give rise to different treatment.[12]

Although the panel stated that a deliberate breach (advertent) should give rise to a different treatment, they did not go so far as to say that no sanction should be imposed for an inadvertent breach, nor could they do so in light of subsection 7.6(2) of the Aeronautics Act.

The panel addressed sanction at length stating that the principles of determining an appropriate penalty include (a) denunciation, (b) deterrence, (c) rehabilitation and (d) enforcement recommendations. They went on to address what may be considered in mitigation and in aggravation.

As to mitigating circumstances Mr. Pozzi's contravention was due to an inadvertent error. He recognized and corrected the error before there was a danger of collision. The aircraft were not compelled to take evasive action on their own. The prior O.I. was investigated but not pursued as an offence so the occurrence of May 1st should be regarded as a first offence.

Regarding aggravating circumstances Mr. Ayers, in coming to his conclusion regarding the quantum of the monetary penalty, found that Mr. Pozzi had not learned from his mistake the day before and was not concerned enough to attend a scheduled meeting.

I do not agree with that assessment. Mr. Pozzi testified that he had learned from the circumstances. It would have been too early to expect that to occur by the next shift, as it took some time and an investigation to allow him to see the problem.

Mr. McDonald had requested a meeting with Mr. Pozzi through Mr. Ellis but there was no evidence that Mr. Pozzi had agreed to meet him. In any case Mr. Pozzi had no obligation to meet with Mr. McDonald. Although someone in Mr. McDonald's situation may have been personally aggravated when a meeting did not occur it is not an aggravating factor of the offence.

However what I find to be aggravating factors are that Mr. Pozzi was well familiar with the situation from prior experience and that by his own statement traffic was light.

CONCLUSION

Mr. Pozzi was in contravention of subsection 801.01(2) of the CARs. I do not find that he exercised all due diligence. Regarding the principles of sanctions enunciated in prior jurisprudence, I reduce the total assessed monetary penalty from the stated $500.00 to $250.00 as I find that the appropriate sanction should be that imposed for a first offence.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Exhibits 7, 8, 9, 10, 11, 12, 14. Testimony of Mr. McDonald.

[2] Exhibit 12 at 1300:59 CPA, 100 feet vertical distance between aircraft 2.20 nautical miles.

[3] Exhibits 4, 5 and 6.

[4] Exhibit D-16.

[5] Exhibit 1.

[6] Ibid.

[7] Exhibits 12 and 14.

[8] Jorge Schmiedchen v. Minister of Transport Appeal, CAT File No. W-1748-39.

[9] Leslie G. Marsh v. Minister of Transport Appeal, CAT File No. C-1095-02.

[10] Minister of Transport v. Kurt William M. Wyer Appeal, CAT File No. O-0075-33.

[11] Ibid. at 5.

[12] Ibid. at 6.


Appeal decision
E. David Dover, Faye H. Smith, William Thornton Tweed


Decision: October 27, 2000

Our consideration of this review decision discloses no reviewable error. We therefore dismiss the appeal and confirm the Vice-Chairperson's decision to assess a monetary penalty of $250.00. This amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

An Appeal Hearing on the above matter was held Friday, August 25, 2000 at 9:00 hours at the Federal Court of Canada, in Edmonton, Alberta.

BACKGROUND

On May 1, 1999, Mr. Pozzi, a licensed Air Traffic Controller, was working the Departure Position, Calgary Terminal Specialty in the Edmonton Area Control Center. He issued a departure clearance to Canadian Airlines Flight 960 which resulted in a loss of separation with inbound Air Canada Flight 270. The aircraft came within 2.2 miles lateral separation and less than 1,000 feet vertical separation, a contravention of subsection 801.01(2) of the Canadian Aviation Regulations (CARs) which 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."

Following this incident Transport Canada issued a Notice of Assessment of Monetary Penalty containing the following allegation:

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 the following provision(s):

CARs 801.01(2) 'No air traffic controller shall issue an air traffic control clearance ... except in accordance with the Canadian Air Traffic Control Separation Standards.'

On or about May 01, 1999 at approximately 1300Z, in the vicinity of Calgary Alberta, Mr. Stephen Patrick Pozzi, holder of an Air Traffic Control licence, did not provide Air Traffic Control service in accordance with CARs 801.01(2) in particular:

issued clearances to Canadian 960 which caused the aircraft to conflict with Air Canada 270.

Following the Review Hearing held on February 28, 2000 at Edmonton, Alberta, Vice-Chairperson Allister Ogilvie confirmed the Minister's decision regarding contravention and reduced the total assessed monetary penalty from the stated $500.00 to $250.00.

GROUNDS OF APPEAL

From that decision, counsel for Mr. Pozzi filed an appeal on April 18, 2000 on the following grounds:

  1. That the Vice-Chairperson erred in fact and law in finding that the Appellant failed to exercise the attention and care expected of an experienced air traffic controller so as to engage the defence of due diligence. The facts established unusual or exceptional circumstances that established due diligence.
  2. That the Vice-Chairperson erred in law in determining that the Aeronautics Act makes no distinction between inadvertent or advertent error, and erred in fact in failing to consider and apply the conduct of the employer, NAV CANADA.
  3. That the Vice-Chairperson erred in law in failing to require the Minister to substantiate the level of penalty applied and erred in fact in assessing the mitigating factors that justified a penalty less than $250.00.
  4. That the Vice-Chairperson erred in law in accepting a concept of "aggravating factors" and determining appropriate penalty. The correct approach is to determine the nature of the event and the appropriate penalty that would normally apply for such an offence. Following which, mitigating factors are considered in determining whether the penalty should be reduced. No factors can increase what is otherwise an appropriate penalty.

DISCUSSION

All of the elements of the offence were either admitted or proven at the hearing. The fact is that loss of separation did occur and Mr. Pozzi, an experienced licensed air traffic controller, was responsible for the issuance of the clearance that lead to the loss of separation.

Section 8.5 of the Aeronautics Act provides that a document holder shall not be held responsible for a regulatory contravention if he or she exercised all due diligence to prevent the contravention. The onus of proof of due diligence rests with the document holder. The onus is therefore with Mr. Pozzi to prove on a balance of probability that he exercised the due diligence required of a licensed air traffic controller to prevent the contravention of the CARs that occurred.

The often quoted Marsh case[1] defines due diligence 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.

Our decision in Norris[2] sets out five tests for due diligence which are also applicable in this case.

To succeed with a due diligence defence the Appellant has to prove one or more of the following:

  1. That the document holder took reasonable steps to obtain all relevant information necessary for the discharge of his or her obligations set out in the CARs;
  2. That notwithstanding the document holder's obligations as set out in the CARs he or she was not in control of the events that led to the infraction;
  3. That the appropriate exercise of the authority and responsibility given the document holder did not prevent the infraction;
  4. That the document holder did not have a reasonable opportunity to discover an error made by another document holder from whom he or she accepted responsibility;
  5. That an equipment failure prevented the document holder from discharging his or her duty.

In the case before us there was no evidence that Mr. Pozzi took any steps to inform himself as to the reasons for the loss of separation that occurred on his preceding shift in circumstances that were remarkably similar to the occurrence before us. Without determining or investigating the reason for the first loss of separation or advising his shift supervisor of the occurrence, he went on to make the same mistake on his next shift. There was no evidence a person or event interfered with Mr. Pozzi's ability to exercise the authority and responsibility he has as an air traffic controller. An appropriate exercise of his authority, altitude restriction until the aircraft passed, a wider vector, or an instruction rather than a clearance could likely have prevented the loss of separation that occurred. There was no evidence to suggest there was another air traffic controller responsible for the issuance of the clearance that resulted in the loss of separation. There is no evidence to suggest that any of his equipment was faulty. In the circumstances it cannot be said that Mr. Pozzi exercised the diligence that should reasonably have been expected of him.

The Appellant's argument that the breach of the CARs was inadvertent and should relieve Mr. Pozzi of responsibility for or at least mitigate the consequences of this infraction is not persuasive. The Minister of Transport through the Aeronautics Act and CARs has established rules and regulations for the aviation industry to protect the public's interest in the safe operation of aircraft. To accomplish this the Minister has decided to license various participants in the industry and impose upon them certain obligations. In this circumstances the failure of the air traffic controller to discharge his duties placed two aircraft closer together than permitted by the regulations. In the circumstances the fine of $250.00 imposed by the Vice-Chairperson for a first offence is appropriate and consistent with fines imposed on other document holders for a first offence. We also agree with the Vice-Chairperson's comments on Mr. Pozzi choosing not to meet with the investigating officer. To choose not to be interviewed is his right and he should not be punished for exercising it.

The Appellant's assertion that the use of punishment in response to inadvertent errors is contrary to the promotion of aviation safety is contrary to the findings of the Dubin Inquiry, the recommendations of which form the basis of the current regulatory enforcement model. We have read the material provided by learned counsel and it makes a good case for his assertion in a labour relations context. This, however, is not a labour relations issue rather this is a public safety issue. The circumstances here are that the document holder, upon whom the Minister has placed responsibilities and obligations, has broken the law. (An exception noted is the "Pros and Cons of Punishment for Achieving Discipline in Aviation" by Jerome F. Ledere.) The law in this case provides for a fine or a suspension and the fine is consistent with fines imposed on other document holders for offences of this seriousness.

The Appellant has also referred to a Grievance Arbitration between NAV CANADA and the Canadian Air Traffic Control Association which is found at Tab 9 of the Appellant's Book of Authorities. The arbitrator found that in the circumstances of that grievance that the labour relations principle of comply now and grieve later was appropriate. The arbitrator found the circumstances of that case did not fit within the exemption which permits an employee to refuse to commit an unlawful act and that it fits within the circumstances of the arbitral doctrine of "Superior Order" which must be complied with.

In that case and on facts before us there is no conflict between the employer's direction and the CARs. The employer is also a document holder and it is bound by the regulation; however, in this circumstance there is no evidence of an employer direction that leads to the infraction. The employer has not been charged with any infraction, and it is not before the Tribunal.

The Appellant has also suggested that air traffic controllers should be treated differently than other document holders because a controller changes positions frequently in the course of a normal workday and as a result must accept responsibility for other air traffic controllers when they assume control of a sector. How the controllers change positions, how frequently it occurs, the check list that is incorporated to ensure that errors are discovered and how regulatory compliance is maintained is an internal matter and is the responsibility of both document holders, the employer and the employee, together with the Minister of Transport, in reviewing and approving the required operating procedures and documents. It cannot relieve the document holders of their duty to comply with the CARs. It is easy to see that a controller's job is different from most other document holders in this regard particularly in regard to the frequency with which they assume responsibilities for others. However in the aviation industry every document holder assumes responsibility for and relies on other document holders to fulfill their prescribed duties and obligations.

The safety of the whole industry depends on each document holder performing his or her duties and obligations. Every document holder that assumes responsibility for others' needs to take reasonable steps to ensure those that have acted before him have discharged their duties. Maintenance audits, check lists and dual signatures are some of the systems that have been put in place by the industry and by regulations to ensure safety and regulatory compliance are maintained.

DETERMINATION

In conclusion, we dismiss the appeal and confirm the review finding of the Vice-Chairperson.

Reasons for Appeal Determination by:

Mr. William T. Tweed

Concurred:

Mrs. Faye Smith
Mr. E. David Dover


[1] Leslie G. Marsh v. Minister of Transport, Appeal Determination, CAT File No. C-1095-02.

[2] John Henry Norris v. Minister of Transport, Appeal Determination, CAT File No. W-1931-39.