Decisions

CAT File No. W-1931-39
MoT File No. EMIS 034332

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

John Henry Norris, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.6(2), 7.7, 8.5
Canadian Aviation Regulations, SOR/96-433, s. 801.01(2)

Loss of separation, Sanction, Expert witness, Air traffic controller, Due diligence, Advertent and inadvertent errors


Review Determination
Allister W. Ogilvie


Decision: April 4, 2000

Mr. Norris was in contravention of subsection 801.01(2) of the Canadian Aviation Regulations and did not exercise all due diligence. The monetary penalty in the particular circumstance of this case is appropriate. I uphold the Minister's decision to assess a monetary penalty of $1,000.00. 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 February 28, 2000 at 10:00 hours at Edmonton, Alberta.

BACKGROUND

On August 6, 1999, Korean Airlines Flight KAL 257 a Boeing 747 was in Canadian airspace while enroute from Anchorage to New York. A Lufthansa Boeing 747, Flight DLH 493 was also transiting Canadian airspace while enroute from Vancouver to Dusseldorf. Both aircraft were at flight level 330 over northern Alberta.

The headings flown by the aircraft would have resulted in their converging at roughly a 90-degree angle. When the aircraft were in close proximity to one another the air traffic controller recognized that there would be a loss of separation and instructed the Lufthansa flight to alter headings for traffic avoidance.

Before the aircraft responded to the controller's instruction both aircraft crews received a Terrain Collision Avoidance System (TCAS) warning and both took evasive action.

The report of this incident lead to a Transport Canada investigation and subsequently it issued to the controller, Mr. Norris, 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 August 06, 1999 at approximately 1155Z, in the vicinity of Fort Chipewyan Alberta, Mr. John Henry Norris, holder of an Air Traffic Control licence, did not provide Air Traffic Control service in accordance with CARs 801.01(2) in particular: 

permitted Korean Air 257 and Loufthansa 493 to close to approximately .5 of a mile at Flight Level 330

The assessed penalty of $1,000.00 was not paid. The Minister of Transport applied to the Civil Aviation Tribunal to have the matter heard which brought about the hearing of February 28, 2000, in the city of Edmonton.

PRELIMINARY OBJECTION

Mr. Pollock on behalf of the Minister wished to qualify Mr. R. B. McDonald as an expert witness in the matter. Mr. Barnacle on behalf of the Respondent Mr. Norris objected to having Mr. McDonald qualified as an expert. The basis for the objection was that Mr. McDonald was the case investigator, wrote the case report and made a recommendation for adjudication and was therefore not independent, which is a criterion for an expert witness.

Mr. Barnacle provided authority for his proposition.[1] The essence of the authority is that an expert witness should provide independent assistance to the Tribunal not assume the role of an advocate.

Mr. Pollock resisted, saying that Mr. McDonald's presence in his position was because he possessed expertise in air navigation services issues.

RULING

Objection upheld. Mr. McDonald was not allowed to give opinion evidence as an expert in this particular matter. His multi-faceted role in the case, before giving evidence resembles that of an advocate rather than one providing independent assistance.

This is not any blanket restriction on Transport Canada personnel giving expert evidence. Rather each case must be viewed on its merits. The Minister was not prevented from utilizing Mr. McDonald to present factual evidence.

EVIDENCE

Mr. Pollock presented evidence for the Minister of Transport. His witness was Mr. R. B. McDonald, the Transport Canada investigator.

Mr. McDonald became aware of the apparent loss of separation incident through his review of the Canadian Aviation Daily Occurrence Reports (CADORs). He requested that NAV CANADA secure the audio tapes and radar readouts of the incident and requested an interview with the controller who was responsible for that sector, Mr. Norris.

Through an Agreed Statement of Facts between the parties, it has been established that Mr. Norris is a licensed air traffic controller and that he was on duty in Bison Radar and Data Position, Edmonton Area Control Centre during the incident of August 6, 1999, involving Korean Air 257 and Lufthansa 493.[2]

From the radar data collected, three radar data printouts were created.[3] These show the aircraft approaching one another, commencing taking evasive action and having passed one another. Mr. McDonald submitted that this material showed that the aircraft passed within about .48 of a nautical mile laterally and about 300 feet vertically. He stated that the separation required by the standards in this type of environment was five miles. He was of the view that the controller responsible was Mr. Norris.

The transcript of the audio tapes showed that the Lufthansa flight received a TCAS warning.[4] TCAS is on board equipment that can detect either terrain or the transponder code of a nearby aircraft and provide a warning to the aircrew to take action that provides a resolution to the conflict.

Mr. McDonald asserted that all equipment in the control centre had been operating properly. He felt that Mr. Norris had not used all the tools available to aid him. He could have used range and bearing lines and the projection of track lines but had not. He was of the view that traffic was light at the time of the occurrence.

Cross-examination delved into some procedural aspects of controlling on that day. Mr. McDonald was questioned regarding the Northern Airspace Display Systems (NADS). It was revealed that the primary function of the system was to provide information, advice and guidance to specified sectors to assist in resolving traffic conflicts. Although the system was functioning, Mr. McDonald conceded that Mr. Norris had apparently not been alerted by the NADS controller of the possible conflict.

Exhibit 10 displays the flight progress strips that were utilized at the time of the incident. Mr. Barnacle asserted that a progress strip should contain a red "w"on it to alert a controller of a potential conflict. Here the conflict would have been the same altitude. The strips in evidence did not have a "w". Mr. McDonald answered that a "w" should be put on the strip if a conflict had been recognized.

On redirect questioning Mr. McDonald stated that Mr. Norris was still required to monitor the situation even in the absence of a conflict advisory. Regarding the progress strips he said that the lack of a warning on a progress strip did not alleviate the controller of responsibility.

When cross-examined on sanction and particularly Exhibit 4, Mr. McDonald identified the signature on the report as that of Mr. Ayers. A second signature on that report was also identified as Mr. Ayers's, who he said, had been in an acting position for a Mr. Muffitt.

Mr. Norris gave evidence on his own behalf. It was revealed that he is a very experienced controller and had worked many areas of control previously. He was qualified in the sector in which he performed his function on August 6, 1999.

He was briefed regarding the situation in the sector by a Mr. Mathews the controller that he was to relieve. Mr. Mathews advised that the traffic was light. Mr. Norris accepted the briefing and took over the sector. After a while in position he became aware of the conflict and issued instructions to the aircraft to resolve it.

The solution he applied came from his own experience as he testified that controllers do not receive training on how to resolve a conflict once it has occurred. Subsequent to the incident, Mr. Norris reported to his supervisor and was relieved from duty.

Regarding procedures that day Mr. Norris maintained that he had not been given a conflict warning through the NADS controller nor through the addition of "w" on the flight progress strips. On the hand-over briefing, no check list had be utilized. He asserted that one must accept the briefing given as only the controller in position is knowledgeable about his sector.

It was established on cross-examination that Mr. Norris had been in position about one-half hour before the conflict. He considered the traffic to be very light. He acknowledged that the data strips for both aircraft indicated flight level 330 and he was aware of the converging at 90 degrees which should have alerted him to the problem.

ARGUMENT—The Minister

Mr. Pollock argued that the Agreed Statement of Facts and the evidence established all elements of the offence. Mr. Norris was the licensed air traffic controller on duty on August 6, 1999. Testimony showed that the traffic did not have the required separation. Mr. Pollock asserts that there was no evidence of due diligence.

ARGUMENT—Document Holder

Mr. Barnacle submitted that there were two issues to be addressed. He did not dispute that the loss of separation had occurred, but argued that Mr. Norris acted with due diligence. However if that were not the case, the sanction is inappropriate.

He submits that it is important to recognize that events arise out of circumstances with causal links. The air traffic control system is built with redundances to provide both physical and procedural backups. When a procedure breaks down, the redundancy is to catch the error.

In this case Mr. Norris's error was inadvertent. There was no allegation of negligence or carelessness. Procedures that should have been followed were not. There had been a breakdown in the system.

Mr. Barnacle contended that no one should be punished for an inadvertent error. In this situation where the redundancies did not work, Mr. Norris was the last link, but we should not stop at him but look at the whole system. He asserts that the progress strips were deficient, there was no conflict alert from the NADS, the sector briefing was inadequate and that controllers do not receive training in procedures to resolve conflicts once recognized.

Alternatively if I were to find that Mr. Norris did not act with all due diligence, then the sanction is inappropriate. He declared the Minister had provided no evidence regarding the penalty and that a decision could not be made without evidence. All that was before us was Mr. McDonald's report.[5] That showed that there should be a two-step review of the sanction but it was the same person, Mr. Ayers, who both agreed and concurred with the report. The report itself was deficient as it inaccurately identified the progress strips as properly done.

Mr. Barnacle referred to Chapter 11 of the Aviation Enforcement Procedures Manual, Table of Sanctions.[6] Although this was a first offence, he says the maximum fine of $1,000.00 was imposed with no justification.

THE LAW

Subsection 402.04(1) of the Canadian Aviation Regulations (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 Aeronautic 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

The Minister is required to prove, on a balance of probabilities, that each element of the offence has been committed. 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.

In this case the proof of the elements is not in dispute. Although not explicitly stated by definition it can be inferred that the holder of an air traffic controller licence is an air traffic controller.[7] By Agreed Statement of Facts Mr. Norris acknowledged that he was a licensed air traffic controller and that he was on duty on August 6, 1999 in the sector in question. The evidence shows that while conducting his duties he issued a clearance which was not in accordance with the standards. This was established by the testimony of Mr. McDonald and the agreed upon documentary evidence. Therefore all elements of the offence have been made out and thus a contravention is established.

THE ISSUES

Section 8.5 of the Aeronautics Act provides that no person shall be found to have contravened a provision if that person exercised all due diligence to prevent the contravention.

The issue is then, whether on August 6, 1999 Mr. Norris exercised all due diligence. The concept of all due diligence has been addressed in the Civil Aviation Tribunal jurisprudence regarding an air traffic controller in the Schmiedchen case.[8] The Appeal panel found the decision in Marsh[9] to be instructive. It stated:

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.

I find that Mr. Norris did not exercise the attention and care required of an experienced air traffic controller in this circumstance.

The evidence showed that the progress strips did not contain a "w" that may have alerted Mr. Norris to a possible conflict. But it is not known if that lack of a warning was an error on someone else's behalf or whether the person who provided the strip simply did not recognize the potential conflict. As well issue was raised about the adequacy of the briefing given to Mr. Norris as he assumed responsibility for the sector. In either case Mr. Norris was in the position for quite some time before the incident so as an experienced controller should have been able to make an appropriate evaluation of the potential for conflict for himself.

Mr. Barnacle raised the issue of the lack of a NADS warning to Mr. Norris. It may be that a NADS advice and guidance would have aided Mr. Norris in recognizing a conflict. However the responsibility was still that of Mr. Norris as indicated in the NADS Procedures – Coordination at 403.4[10] where it states: "Responsibility for the separation of aircraft remains solely with the sector controller."

Mr. McDonald testified that Mr. Norris had not utilized all the functions of his equipment, some of which could have aided him in recognizing the situation. All equipment that he did have was operating properly.

In summary Mr. Norris is an experienced controller who was in his position for some time before the occurrence. Therefore, he had time to evaluate the air traffic in the sector before the occurrence. He acknowledged that traffic was very light. All his equipment was functioning properly. He did not utilize some of the functions of his equipment that could have aided him in his evaluation of the circumstance. Traffic under his control did not have the required separation. In this circumstance it cannot be said that Mr. Norris exercised the attention and care expected of an experienced air traffic controller so as to engage the defence of due diligence.

SANCTION

Mr. Barnacle is of the view that to punish one for inadvertent error is not corrective but merely punitive in nature. However the provisions of the Aeronautics Act do not distinguish between advertent or inadvertent error that results in a contravention. Subsection 7.6(2) provides that a person who contravenes a designated provision is guilty of an offence and liable to punishment. It is my duty to interpret the regulations as they are written. His argument may be more profitably advanced to a different body such as the Canadian Aviation Regulation Advisory Council (CARAC).

He also asserts that Transport Canada did not follow its own procedures. This he says is shown in Exhibit 4, the case report by the inspector, Mr. McDonald. In that report Mr. McDonald recommends a monetary sanction. On the next page of the report, a signature, identified as that of Mr. Ayers, is found in two places, first under Regional Superintendent of Investigations Division and next under RAEP (Routing Symbol). Under the first Mr. Ayers writes "Agree" under the next he states "Concur" and goes to adjudicate a monetary penalty of $1,000.00 stating that "Aggr[a]vation is the excellent opportunity for colli[s]ion if TCAS was not functioning, coupled with extremely light traffic."

Mr. Barnacle contends this is improper as it should be a two-step review, not one whereby one person agrees and then concurs with himself. He also maintains that it is based on Mr. McDonald's report which he says is deficient. Further it was argued that there must be evidence to uphold such a sanction and no evidence was tendered. Although it was a first offence, the penalty levied was the maximum rather than the one suggested for a first offence in Transport Canada's own manual.[11]

Transport Canada's internal review mechanism and oversight process is its own. Mr. Barnacle criticized the fact that the report was twice signed by one individual, but he did not adduce evidence to show that doing so was actually improper or that by doing so in any way negated the consequences. It remains his opinion.

He maintains that no evidence was given by Transport Canada in regards to the sanction. I do not agree with that characterization. The reasons provided for the sanction were terse and abrupt, but not lacking in clarity. The notation on Exhibit 4, shows Mr. Ayers adjudged the penalty to be $1,000.00 as he found the aggravating circumstance to be the excellent opportunity for collision if TCAS was not functioning coupled with extremely light traffic. Both facets were addressed in evidence.

Mr. Barnacle has made several references to Exhibit D-17 which is an excerpt from Transport Canada's Aviation Enforcement Procedures Manual. The portion in evidence is 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."

Two points to be noted are that the material is for guidance and that it is directed to the enforcement staff of Transport Canada. As it is guidance material, I do not see that any non-adherence to its structures has any negative consequence on the recommendation. As the material is intended for Transport Canada enforcement staff, it has no binding effect on the Tribunal.

A prior appeal case in the Civil Aviation Tribunal jurisprudence provides guidance regarding sanction that I find appropriate.[12] It addresses sanctions in some detail.

The facts involved the alleged breach of Air Navigation Order Series 5, Number 23, section 5 in that a pilot was alleged to have landed a Cessna Citation aircraft at an airport without obtaining an appropriate air traffic control clearance.

The member at first instance upheld the allegation but reduced the penalty from $100.00 to $25.00. The Minister of Transport appealed on the grounds that it was an error to reduce the penalty on the basis of findings of fact not supported by evidence and that it was an error to reduce the penalty without justification.

The hearing member had reduced the fine on the basis of mitigation in that there was no threat to safety and the inadvertent error was explained by the pilot.

Regarding Transport Canada's Enforcement Manual the appeal panel stated: [13]

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 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: [14]

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 instructive 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.[15]

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.

Having regard to the principles enunciated in the Wyer decision, I am not disposed to alter the penalty. In mitigation it was Mr. Norris's first offence. There was no evidence of the occurrence being caused by other than inadvertent error. There was evidence that some of the systems that should have aided him, such as the NADS, did not do so.

But there are aggravating circumstances. There was imminent and extreme danger to aviation safety where two of the largest types of civil commercial aircraft came within about one-half mile of one another at the same altitude in an environment where the standard of separation is five miles.

Although it may have been an inadvertent error, the controller was not able to explain why it happened. Further he was very experienced and himself stated that the traffic was very light. Evidence was adduced to the effect that he did not utilize some functions of his equipment that may have aided him in the assessment of the coming conflict.

CONCLUSION

Mr. Norris did not exercise all due diligence. The monetary penalty in the particular circumstance of this case is appropriate. I uphold the Minister's decision to assess a monetary penalty of $1,000.00.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] a. Fellowes, McNeil v. Kansa General International Insurance Co. 40 O.R. (3d) 456 at p.4.

b. The Law of Evidence in Canada, Sopinka Lederman Bryant, p. 624, 12:44.

c. Minister of Transport v. Scmiedchen Review CAT File No. W-1748-39.

[2] Exhibit 1.

[3] Exhibit 9.

[4] Exhibit 11, p. 6, 7.

[5] Exhibit 4.

[6] Exhibit D-17, p. 11 – 98.

[7] CARs 402.04(1) Prohibitions, 402.07 Privileges.

[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] Exhibit D-16, North High Specialty Procedures, Operations Letter #99/45, December 9, 1999.

[11] Exhibit D-17.

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

[13] Ibid. at 5.

[14] Ibid.

[15] 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 Minister's decision to assess a monetary penalty of $1,000.00. 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 August 6, 1999, Korean Airlines Flight KAL 257, a Boeing 747 was in Canadian airspace while enroute from Anchorage to New York. A Lufthansa Boeing 747, Flight DLH 493 was also transiting Canadian airspace while enroute from Vancouver to Dusseldorf. Both aircraft were at flight level 330 over northern Alberta. The headings flown by the aircraft would have resulted in their converging at roughly a 90-degree angle. When the aircraft were in close proximity to one another the air traffic controller recognized that there would be a loss of separation and instructed the Lufthansa flight to alter headings for traffic avoidance. Before the aircraft responded to the controller's instruction both aircraft flight crews received a Terrain Collision Avoidance System (TCAS) warning and both took evasive action.

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 August 06, 1999 at approximately 1155Z, in the vicinity of Fort Chipewyan Alberta, Mr. John Henry Norris, holder of an Air Traffic Control licence, did not provide Air Traffic Control service in accordance with CARs 801.01(2) in particular:

permitted Korean Air 257 and Loufthansa 493 to close to approximately .5 of a mile at Flight Level 330

Following the Review Hearing held on February 28, 2000 at Edmonton, Alberta, Vice-Chairperson Allister Ogilvie upheld the Minister of Transport's decision to assess a monetary penalty of $1,000.

GROUNDS OF APPEAL

From that decision, counsel for Mr. Norris 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 $1,000.
  4. That the Vice-Chairperson erred in law in accepting a concept of "aggravating factors" in 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.

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 while Mr. Norris, an experienced licensed air traffic controller, was responsible for that sector and for providing separation for the two aircraft involved.

The Aeronautics Act is essentially a codification of the Supreme Court of Canada decision R. v. Sault Ste. Marie regarding strict liability offences and provides that a document holder that has exercised due diligence is relieved of responsibility for the regulatory infraction. The onus of proof of due diligence rests with the document holder. The onus is therefore with Mr. Norris 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 Canadian Aviation Regulations (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.

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. Norris took any steps to inform himself as to the circumstances of the traffic for which he became responsible. There was no evidence a person or event interfered with Mr. Norris' ability to exercise the authority and responsibility he has as an air traffic controller. The appropriate exercise of his authority to control the sector would have prevented the loss of separation that occurred. He had a reasonable opportunity to discover the conflict and prevent it from occurring. He was in control of the sector for approximately 30 minutes and there were only three or four aircraft in his sector. There is no evidence to suggest that any of his equipment was faulty. In fact, the evidence was that all the equipment was functioning correctly and that if had he used it he would have discovered the conflict. In the circumstances it cannot be said that Mr. Norris 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. Norris 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 case the Appellant, Mr. Norris, was a licensed air traffic controller and the CARs imposed upon him part of the responsibility for the safety of the passengers and crew onboard KAL 257 and DLH 493. His part was to provide separation for the two aircraft in accordance with the minimum standards set out in subsection 801.01(2) of the CARs: "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."

The facts are that he did not discharge that obligation and that there is no reasonable excuse for his failure to prevent what he ought to have foreseen. The object of a sanction in a public welfare offence is to place pressure upon individuals, in this case the document holder, to discharge their whole duty. When a breach is serious, as in this case, the statute provides that a significant fine may be imposed. In this circumstance the failure of the air traffic controller to discharge his duties placed members of the public in extreme danger. The significance would have been no less had it been two small aircraft instead of the two very large aircraft that were involved. The seriousness is in that human lives were placed at risk. In the circumstances of such regulatory infractions the Minister has imposed fines of $1,000 for first offences which have been upheld by this Tribunal. Intent is not an issue in this case.

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 can see nothing in this fact situation that suggests a reasonable excuse for the infraction. The document holder did not discharge his duty and did not prove that he took all reasonable steps to comply with the CARs. He did not prove on the balance of probabilities that he exercised the due diligence required of him.

We therefore dismiss the appeal and confirm the Minister's decision to assess a monetary penalty of $1,000.

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.