TATC File No. W-3198-33
MoT File No. SAP-5504-56216 P/B
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Daniel Ernst Wenger, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7(1)
Canadian Aviation Document, SOR/96-433, s. 602.31(1)a)
Decision: February 13, 2007
Heard at Calgary, Alberta, on November 21-23, 2006
Held : The evidence does not prove on a balance of probabilities that the applicant contravened section 602.31(1)(a) of the Canadian Aviation Regulations, SOR/96-433, as alleged. The penalty of $250 is cancelled.
 This matter concerns a Notice of Assessment of Monetary Penalty in the amount of $250 dated August 26, 2005, and issued by Transport Canada, Aviation Enforcement, Edmonton office, to the applicant, Daniel Ernst Wenger. The notice alleges that the applicant contravened section 602.31(1)(a) of the Canadian Aviation Regulations (CARs) on or about February 14, 2005, at the Calgary International Airport when, as pilot-in-command of Air Canada Jazz flight 8505, he failed to comply with an air traffic control (ATC) instruction directed to and received by him.
A. Pre-hearing Teleconference
 A teleconference was held on August 29, 2006 where matters of disclosure and the setting of a hearing date were discussed with the parties and the Tribunal Registrar. A written teleconference ruling dated October 20, 2006 was forwarded to the parties.
II. MOTION FOR DISMISSAL
 At the commencement of the hearing, Aidan Butterfield, counsel for the applicant, made a motion for dismissal. He submitted that the principle of stare decisis applies to the Tribunal and that two previous determinations of the Tribunal dictated that this matter be dismissed. The Minister took the position that the evidence needed to go in before a determination of the matter could be made.
 No witnesses had yet appeared before the Tribunal nor had any agreement as to facts been submitted. The Tribunal is not bound in law by previous Tribunal decisions. Section 7.91(3) of the Aeronautics Act mandates that the member must provide both the Minister and the document holder with a fair hearing. To have dismissed the matter without hearing the evidence would have been a denial of the Minister's right to be heard.
 The motion for dismissal was denied.
A. Minister of Transport
(1) Dan Hamelin
 Transport Canada Enforcement received from Nav Canada a Civil Aviation Daily Occurrence Reporting System (CADORS) report (exhibit M-1) alleging that on February 14, 2005, at the Calgary International Airport, an ATC operating irregularity/incursion incident had occurred involving Jazz 8505 and Jazz 8150. Dan Hamelin identified a Transport Canada Enforcement Management System "In-Basket Complaint" printout (exhibit M-2) which contained a synopsis of the incident. That document notes that Mr. Hamelin was assigned to investigate the matter. As investigator, Mr. Hamelin completed an Air Traffic Service (ATS) Documentation Request form (exhibit M-3) in order to obtain the relevant ATC tapes from Nav Canada. After listening to the tapes, he formed the opinion that a violation of section 602.31(1)(a) of the CARs had occurred when Jazz 8505 crossed runway 34 after being instructed by the Calgary ground controller to hold short of that runway.
 Mr. Hamelin telephoned a chief pilot at Jazz who informed him that the pilot-in-command of Jazz 8505 was Captain Wenger. He then contacted Captain Wenger by telephone and by letter and asked for a statement from him. Captain Wenger chose not to provide a statement.
 Mr. Hamelin submitted a report to his supervisor (exhibit A-1) stating his opinion that a violation of section 602.31(1)(a) of the CARs had occurred and that a monetary penalty consistent with a first offence be imposed against the applicant. The supervisor agreed and the notice was delivered to Captain Wenger.
 At the hearing, Mr. Hamelin identified a copy of the relevant ATC tape and a transcript of that tape (exhibits M-7).
(2) John Exley
 Calgary tower site manager John Exley identified and explained a series of photos taken from the ground radar at Calgary International Airport during the relevant times (exhibit M-8). The photos show the position and movement of Jazz 8505, Jazz 8554, Jazz 8150 and several other aircraft on the ground at Calgary International Airport at and around the time of the alleged incident. Mr. Exley also identified a diagram of the Calgary tower and the seating positions of the air traffic controllers therein (exhibit M-9), as well as a large Calgary aerodrome chart (exhibit M-10).
(3) Yvan Savard
 Yvan Savard was the ground controller who communicated with Jazz 8505 and Jazz 8554 at the relevant times on February 14, 2005. He described his communications with those aircraft, marked aircraft positions on the aerodrome chart (exhibit M-10), and explained the view he had, from his station, of the aircraft movements that occurred. He identified his voice on the ATC tape and reviewed the transcript (exhibits M-7) as well as the radar photos (exhibit M-8).
(1) Daniel Ernst Wenger
 Captain Wenger described his airline experience and his communications with Mr. Hamelin during the investigation. He had little recollection of the events of February 14, 2005, as he was unaware until some months afterward that anything unusual had taken place.
(2) Doug Catterall
 Doug Catterall was the pilot-in-command of Jazz 8150 at the time of the alleged incident. His aircraft was cleared to take off from runway 34. Late in the take-off roll, he saw an aircraft crossing the runway ahead of him. He determined there was no risk of collision or hazard and so continued the take-off. Captain Catterall said he has the highest professional and personal regard for Captain Wenger.
(3) Richard Zimmerman
 Richard Zimmerman is a management and check pilot with Jazz. He described Jazz' standard operating procedures regarding taxiing, ATC communications, and passenger announcements. Captain Zimmerman holds Captain Wenger in the highest regard as a professional pilot.
 Captain Zimmerman noted that Jazz has a lot of 8's and 5's together in its flight numbers in Western Canada, which on occasion causes confusion. He said the Jazz Flight Safety department is making efforts to get the "8" dropped off the flight numbers.
(4) Will Hendriks
 Will Hendriks was the first officer operating with Captain Wenger on Jazz 8505 at the relevant times. He was handling the radio communications while Captain Wenger taxied the aircraft. He explained that he had initially received an instruction from the ground controller to hold short of runway 34. He said he later received a clearance to cross runway 34 to Charlie Juliet and taxi to the apron, which he read back and was acknowledged by the controller. Captain Wenger was making an announcement to the passengers at that time. Mr. Hendriks said he wrote down the clearance, showed it to Captain Wenger, and verbally advised him of the clearance. He looked to the right and Captain Wenger to the left before they crossed the runway, and observed that it was clear of traffic. He said it was after that check when he first noticed something unusual, in that he saw a Dash 8 flying overhead at some altitude. He did not perceive any danger.
(5) Max Shnitka
 Max Shnitka is an experienced Jazz pilot. He testified as to standard operating procedures regarding taxiing, radio communications, and passenger announcements. He was acting captain of Jazz 8554, finishing his line indoctrination on the Regional Jet, at the relevant times. He recalled that the ground controller had instructed his aircraft to hold short of runway 28. Shortly afterward he received an instruction to cross runway 28, then taxi on Charlie, Juliet and Golf taxiways. He and the check captain with him paused at this instruction as they observed an aircraft on short final for runway 28. They then heard someone else read back their clearance. They knew something was wrong so did not move their aircraft. Captain Shnitka testified that Captain Wenger is regarded by his peers as a very safe pilot.
 Written submissions were filed by counsel for the respondent and for the applicant. They raised a number of issues, which are addressed in the discussion below.
 Section 3(1) of the Aeronautics Act, R.S.C. 1985, c. A-2, reads:
"pilot-in-command" means, in relation to an aircraft, the pilot having responsibility and authority for the operation and safety of the aircraft during flight time. …
 Section 7.91(3) of the Aeronautics Act reads:
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
 Section 8.5 of the Aeronautics Act reads:
8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.
 Section 101.01(1) of the CARs reads:
"air traffic control instruction" - means a directive issued by an air traffic control unit for air traffic control purposes. …
 Section 602.31(1)(a) of the CARs reads:
602.31(1) Subject to subsection (3), the pilot-in-command of an aircraft shall
(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command. …
B. Case Law
 The following cases were submitted by the applicant and the respondent in their written submissions:
- Canada (Minister of Transport) v. Hudgin, , review determination, CAT file no. Q-1683-39,  C.A.T.D. no. 4 (QL);
- Hudgin v. Canada (Minister of Transport), 2002 FCA 102,  F.C.J. no. 369 (QL);
- Canada (Minister of Transport) v. Wyer, , appeal determination, CAT file no. O-0075-33,  C.A.T.D. no. 123 (QL);
- Canada (Minister of Transport) v. Lynch, , review determination, CAT file no. A-1476-33,  C.A.T.D. no. 4 (QL); and
- Canada (Minister of Transport) v. Grotkopp, , review determination, TATC file no. Q-2877-33,  C.T.A.T.D. no. 8 (QL).
 Inspector Hamelin gave evidence that Captain Wenger was the pilot-in-command of Jazz 8505 at the relevant times. No evidence to the contrary was submitted. The identity of Captain Wenger as pilot-in-command was confirmed by First Officer Hendriks.
 Counsel for the applicant submitted that Captain Wenger could not have contravened section 602.31(1)(a) of the CARs as it was the first officer, not Captain Wenger himself, who communicated with ATC. I reject that submission. Section 602.31(1)(a) is clear in fixing responsibility for failures to follow ATC instructions on the pilot-in-command. There is no equivalent provision placing responsibility on first officers for failures to follow instructions. It would be nonsensical to have the provision apply only to the situation where a pilot-in-command was handling the radio.
 As counsel for the Minister notes, the Aeronautics Act, the CARs, and Tribunal jurisprudence all recognize the final accountability of the pilot-in-command. It is well accepted in the industry that the pilot-in-command bears the responsibility for the conduct of his or her flight, including compliance with ATC procedures.
 During the hearing, counsel for the applicant also alleged that the investigation of this matter was flawed and that there was confusion in the tower. Counsel for the Minister submitted that the existence of any flaws in the investigatory process is irrelevant unless those flaws are somehow able to impeach the reliability of the evidence produced by the investigation. He also submitted that whether or not there was confusion in the tower is irrelevant. I agree with the Minister's submissions on those points.
 The ATC tape (exhibit M-7) proves that the ground controller, Mr. Savard, issued an instruction to Jazz 8505 to hold short of runway 34 and that Jazz 8505 acknowledged the hold short instruction:
23:42:11 GND: Jazz 8505 good day taxi Juliet hold short of 34
23:42:15 8505: Hold Short of 34 Jazz 8505
 The radar photos (exhibit M-8), together with the ATC tape and transcript (exhibits M-7) and evidence of Mr. Savard, show that Jazz 8505 taxied across runway 34 at 23:44:02 before the controller intended to issue any instruction or clearance to Jazz 8505 permitting it to do so.
 However, prior to Jazz 8505 crossing runway 34, the ATC tape shows that the controller issued to Jazz 8554 a clearance to cross runway 28. That clearance was erroneously read back by Jazz 8505:
23:43:18 GND: Jazz 8554 cross 28 without too much delay left here at Charlie, Juliet Golf to the ramp
23:43:24 8505: Cross 34 Charlie Juliet Golf Jazz 8505
 The ground controller responded "Roger" to that transmission. He was anticipating 8554 to read back, but 8505 read back the clearance. He did not catch the first officer's errors of identity and runway number. Clearly, the controller believed the transmission had come from Jazz 8554, in spite that Jazz 8505's flight number and the runway number were clearly audible on the ATC tape. Mr. Savard agreed that it was simply a matter of inadvertence.
 Mr. Savard said that once he had issued the hold short clearance to 8505, he considered that situation resolved. He knew he was not going to have a chance to get 8505 across runway 34 until Jazz 8150 departed from that runway. He turned his attention to the area of runway 28, where Jazz 8554 was holding short and another aircraft was on final. He had been told by the tower coordinator to get Jazz 8554 across runway 28 without delay because of the flight that was on final. By the time he turned his attention back to scanning the other areas of the airport, it was too late to tell 8505 to stop.
 There was no readback or other transmission from Jazz 8554 indicating to either Jazz 8505 or the tower controller that an error of identity had occurred.
 All the communications on the ATC tape are clear, although the words "left here at" in the controller's transmission at 23:43:18 are somewhat quieter than the other words in his transmission.
 The issue for me to determine is whether the tower controller's reply "Roger" to the erroneous readback from Jazz 8505 amounted to a clearance which superseded the prior hold short instruction. Counsel for the Minister argues that 8505's crossing of runway 34 was not consistent with any reasonable interpretation of the instruction issued by the ground controller at 23:43:18. He submits that when 8505 mistakenly replied and acted on the instruction, its error was entirely self-induced. He characterizes the conduct of 8505 as negligent.
 Mr. Exley's evidence was that there cannot be a readback from an aircraft pilot unless a clearance has first been issued to that aircraft. Mr. Savard does not agree with that opinion; he said that the transmission he received from 8505 at 23:43:24 was a readback. He said he ordinarily acknowledges readbacks.
 I agree with Mr. Savard that 8505's transmission can properly be referred to as a readback, even though it was incorrect and was intended for another aircraft. The first officer repeated — that is, "read back" — what he thought was contained in the controller's transmission. In any case, what is most important to determine is not so much the term to be given to the transmission, but the reasonable interpretation to be given to the words contained in the transmissions made by the pilot and the controller.
 When a pilot repeats a clearance that he thinks he has heard from a controller, he is in effect asking the controller for confirmation that he has understood a controller's communication correctly. A reply "Roger" from a controller means "yes, you have understood me correctly and you may proceed in the manner which you have described".
 I agree with the submission of counsel for the applicant that, in Grotkopp, the Tribunal has clearly enunciated the relative responsibilities of the participants in a pilot/ATS communication exchange. The following excerpt from ¶ 53 of that determination is directly applicable to the circumstances of this matter:
Readback presents the ground controller with an opportunity to correct any misunderstanding, on the part of the pilot, as to the instruction. If the readback is not consistent with the instruction, the ground controller must correct it to prevent any improper aircraft movement. An inappropriate readback must be corrected by the controller. Where there is no correction following the readback, the pilot is entitled to proceed in the belief that his or her perception of the instruction is correct.
 I do not agree with the Minister's submission that 8505's crossing of runway 34 was not consistent with any reasonable interpretation of the instruction issued by the ground controller at 23:43:18. It is true that 8505's first officer made an error of flight number and runway number. The controller made the same errors when he said "Roger". Both the first officer and the controller heard what they expected to hear — a common communications error. The remainder of the transmission at 23:43:24 can be reasonably interpreted as a request for confirmation that 8505 was cleared to cross Charlie taxiway and to taxi on Juliet and Golf taxiways.
 An "air traffic control clearance" is defined in the CARs as an authorization issued by an air traffic control unit that authorizes an aircraft to proceed in accordance with the conditions specified by that unit. I find that the controller's response "Roger" to Jazz 8505's erroneous readback of the runway crossing clearance is properly interpreted as a clearance to Jazz 8505 which supersedes the prior hold short clearance.
 It follows that I find the evidence did not prove the offence. Therefore, it is not necessary to address the due diligence defence. However, I note that the evidence showed that Captain Wenger and his first officer adhered to standard operating procedures at all relevant times. Further, although there was a "technical" loss of separation between Jazz 8505 and Jazz 8150, none of the pilots involved perceived that their aircraft had come close to one another.
 The incident discussed here illustrates the safety challenges presented by Simultaneous Intersecting Runway Operations (SIROPS), procedures that allow distractions during the taxi phase of flight, and airlines' use of similar flight numbers in the same regional areas. It is well known in the industry, and was mentioned by Captain Zimmerman, that similar flight numbers can cause confusion for air traffic controllers and pilots. I note that even Nav Canada's CADORS report contained an error in a flight number, mistaking Jazz 8445 for Jazz 8554.
 The evidence does not prove the offence on a balance of probabilities, because the controller's "Roger" to Jazz 8505's transmission "Cross 34 Charlie Juliet Golf Jazz 8505" was a clearance to cross runway 34 which superseded the controller's previous instruction to Jazz 8505 to hold short.
 The evidence does not prove on a balance of probabilities that the applicant contravened section 602.31(1)(a) of the CARs as alleged. The penalty of $250 is cancelled.
February 13, 2007
Sandra K. Lloyd
- Date modified: