TATC File No. W-3391-33
MoT File No. SAP 5504-61701 P/B
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Michel Martin Gagnon, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, 7.7
Canadian Aviation Regulations, SOR/96-433, 602.31(1)(b)
Arnold Price Vaughan
Decision: April 24, 2008
Citation: Gagnon v. Canada (Minister of Transport), 2008 TATCE 21 (review)
Heard at Edmonton, Alberta, on March 26, 2008
Held: I find that the Minister of Transport has proven the allegation that Michel Martin Gagnon has contravened section 602.31(1)(b) of the Canadian Aviation Regulations. However, because of the mitigating circumstances in this case, I reduce the monetary penalty from $750 to $550. The total amount of $550 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.
 On May 22, 2007, the Minister of Transport assessed a monetary penalty of $750 against Michel Martin Gagnon, the applicant, for a contravention of section 602.31(1)(b) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act.
 Annex A of the notice of assessment of monetary penalty states the following:
On or about the 20th day of October 2006, at approximately 0635 hours local time, at or near Calgary International Airport, Calgary, Alberta, you, as pilot-in-command, did not comply with a clearance to hold short of Runway 28 received and accepted by the pilot-in-command, thereby contravening subsection 602.31(1)(b) of the Canadian Aviation Regulations.
MONETARY PENALTY – $750
TOTAL MONETARY PENALTY – $750
II. CANADIAN AVIATION REGULATIONS
 Section 602.31(1)(b) of the CARs reads as follows:
602.31 (1) Subject to subsection (3), the pilot-in-command of an aircraft shall
. . .
(b) comply with all of the air traffic control clearances received and accepted by the pilot‑in‑command and
(i) subject to subsection (2), in the case of an IFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, and
(ii) in the case of a VFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, when so requested by the air traffic control unit.
A. Minister of Transport
(1) Rafael Hubbard
 At the time of the offence, Rafael Hubbard was employed as a pilot with Swanberg Air Inc. He was also the assistant operations manager to Mr. Gagnon, who was the operations manager. When Mr. Gagnon's employment was terminated with Swanberg Air, he became the manager.
 Mr. Hubbard stated that he initially heard about the incident "through the grape vine" and that a memorandum was issued afterwards (exhibit M-2). He described a later telephone conversation, when Mr. Gagnon admitted to the incident, and that he had indeed crossed the hold short line to runway 28. Mr. Gagnon was disputing the monetary penalty, not the facts.
 As the subsequent manager, he dealt with Transport Canada regarding the investigation of a possible contravention of section 602.31(1) of the CARs. He was the action addressee for the investigation letter from Inspector Mark Fraser (exhibit M-1). He collated the required documents (exhibit M-2).
 Mr. Hubbard explained the Safety Management System (SMS) program at Swanberg Air and how incidents were handled. He stated that the program was being "slowly implemented" and that he had limited knowledge about the subject.
 In cross-examination, Mr. Hubbard indicated that it was his understanding that the incident would be handled in "the spirit of SMS".
(2) Mark Fraser
 Inspector Fraser is a trained enforcement investigator with Transport Canada. He holds an airline transport pilot licence and has held previous positions as chief pilot and approved check pilot.
 He received the Civil Aviation Daily Occurrence Report (exhibit M-3) and conducted the follow‑up investigation. He testified to the correctness of the various certificates (exhibits M-4 and M-5) and to the elements of the alleged incident. He also wrote the aviation enforcement case report (exhibit M-11).
 He testified about the facts of the audio evidence and associated transcript from the Calgary air traffic control (ATC) (exhibit M-8), the route of aircraft SB602 (exhibit M-6) and how the pilot‑in‑command should have complied with the hold short procedure, as provided in the Aeronautical Information Manual (AIM; exhibit M-9).
 Inspector Fraser explained the role of the SMS program, as it applies to air operator certificate holders under sections 704 and 705 of the CARs, and the functioning of the protocols.
 The cross-examination focused entirely on the issues involved with the SMS program, as they apply to Swanberg Air.
 In re-examination, the witness confirmed that the "traditional" enforcement process was followed, and not the SMS process. One reason was that Inspector Fraser had learned that Mr. Gagnon was no longer employed by Swanberg Air. Therefore, Mr. Gagnon would not be subject to the SMS program.
(3) Lucas Novak
 Lucas Novak was the ground controller on the morning of October 20, 2006. He had issued the taxi instructions to aircraft SB602. He explained what he had expected the pilot‑in‑command to do, based on the instructions he had given.
 In cross-examination, Mr. Novak was asked how far aircraft SB602 had proceeded over the line. He confirmed that the distance was short and that Canadair RJ aircraft on final to runway 28 had landed safely. There was no need to overshoot.
(4) Calvin Schalin
 Calvin Schalin was the second-in-command on the flight. He was also a safety officer for Swanberg Air. At the time, he had approximately 800 hours as a first officer and held a commercial pilot licence. He gave evidence to the conditions on the flight deck and to his communications with the Calgary ATC.
 He confirmed that he never contacted the Calgary tower and that the aircraft was not cleared on the active runway. When the Jetstream aircraft (SB602) came to a stop, the tail was on the hold short line.
 The witness was questioned in detail by the Minister's representative about the SMS program and the crew resource management (CRM) at Swanberg Air. He stated that the program was in the early development and that he had not followed any CRM courses at the company prior to the incident.
 In cross-examination, Mr. Schalin stated that he did not consider Mr. Gagnon's flying to be unsafe.
(5) Marc Perka
 Marc Perka is the principal operations inspector (POI) for Swanberg Air. At the time of the incident, he was responsible for the regulatory oversight for the document holder. Most of his testimony dealt with a comparison of the SMS process and the traditional enforcement process.
 He testified that the early phase of the SMS program as it applies to certificate holders under section 704 of the CARs was not clear, not defined and still evolving. Terms such as "in the spirit of SMS" or "diligently pursuing SMS" or "under the umbrella of SMS protection" did not add to clarity.
(6) Elwood Schmidt
 Elwood Schmidt is the regional manager for Transport Canada. He holds a B5 designation and has five years experience in enforcement. He was part of the Civil Aviation Directive (CAD) 39 working group. He was qualified by the Tribunal as an expert witness regarding the SMS program.
 His lengthy testimony centered on the history, requirements and implementation of the SMS program. It left no doubt that Swanberg Air did not meet the requirements for this incident to be handled by the SMS. Since this type of "moving violation" held such a risk to aviation safety, it would always be investigated by the Aviation Enforcement Section. Swanberg Air would not handle the investigation internally.
 In cross-examination, the witness discussed the email from Inspector Perka (exhibit M‑10). This email gave the impression that Swanberg Air did meet the SMS criteria, especially since a previous incident had not been investigated by the Aviation Enforcement Section (exhibit A‑3). There were further questions related to paragraph 4 of CAD 39, entitled "Approach" in the Safety Management System Enforcement Procedures Supplementary Guidance (exhibit A‑1). This also added to Mr. Gagnon's impression that the company was operating within the spirit of the SMS program.
 In re-examination, it was brought out that the regional manager for Transport Canada (Inspector Schmidt) had the option to choose the most effective method of adjudication. In this incident, it was the traditional enforcement process.
(1) Calvin Schalin
 The questions directed to the witness mainly centered on his position as a safety officer. This was to prove that the company met the SMS reporting and analysis criteria.
 The cross-examination revealed that the processes in place lacked the depth of reporting, analysis and follow-up in order to handle this incident under the SMS program.
(2) Marc Perka
 As a POI, Inspector Perka explained his comments which led Mr. Gagnon to believe that he would not be assessed a monetary penalty by the Minister of Transport. He did suggest that he would go back to recommend that the Aviation Enforcement Section "close the file" on the runway incursion. He was of the view that there was ambiguity at the time about the SMS program and that no solid framework was in place. He discussed the internal self‑reporting process which would imply that no punitive action be taken.
 The Minister submits that he has proven all the elements of the incident. Transport Canada has correctly followed the procedures. Most importantly, his expert witness testified that the SMS program could not be used as a form of investigation.
 Mr. Gagnon's argument was based on his impression that Swanberg Air did meet the spirit of SMS.
 The wording of section 602.31(1)(b) of the CARs refers to "clearances received and accepted by the pilot-in-command". According to the audio evidence and transcript (exhibit M‑8), the last instruction received and accepted by aircraft SB602 was ". . . you can pick up . . . taxi speed, you'll be next one to go". Section 4.2.5 of the AIM provides that ". . . a pilot is expected to proceed to the taxi‑holding position for the runway assigned for takeoff". It would not be necessary for the ground controller to specifically issue instructions to hold short. Instructions to enter the active runway would be given by the Calgary tower. No such instructions were issued. Mr. Gagnon admitted to making a mistake by proceeding beyond the hold line without clearance.
 The issue of due diligence to avoid the strict liability offence was not raised. Instead, the applicant's argument was to avoid the Aviation Enforcement's monetary penalty by allowing Swanberg Air to conduct an internal investigation as per the SMS protocol. After an exhaustive examination of the Minister's witnesses about the SMS program, I am convinced that the SMS did not apply. Therefore, it was not relevant. Transport Canada was justified in seeking the minimum sanction for a first offence.
 However, because of mitigating factors, I do not confirm the amount of the monetary penalty. The most salient were the actions or lack thereof by the first officer, Mr. Schalin. He testified that he saw the aircraft on short final and that he informed Mr. Gagnon as the hold short line was crossed, which was too late. Mr. Schalin did not check in with tower frequency in a timely manner, which might have resulted in an added warning to hold short. As second‑in‑command, Mr. Schalin did not take any initiative to ensure timely compliance with ATC instructions to hold short. The Minister had already raised the issue about operating procedures which employed the crew concept. Yet, when Mr. Gagnon could have been helped by his crew member, none was forthcoming. This is more damaging when Mr. Schalin admitted he was part of the flight safety committee at Swanberg Air, yet he was not assertive in accident/incident prevention.
 Mr. Gagnon was not helped by a lack of comprehensive and ongoing CRM training at Swanberg Air. Mr. Schalin stated that he received no continuation training in this subject. Given the low experience levels of the pilots, a proactive safety culture and active CRM program should have been mandated by the employer.
 The contributing human factors, which preceded the incident, were never fully explored but may have played a role in the error. The incident happened at approximately 6:35 a.m. The flight planning probably began at 5:30 a.m. Was fatigue a factor or did the crew have time for nourishment prior to flight? Mr. Gagnon did say that he felt stress related to his management position, but no human factors defense was developed. I asked for clarification about the noise level in the Jetstream aircraft (SB602) and it was confirmed that noise levels were high. Finally, Mr. Gagnon made a passing reference to haste; however, time pressures, if any, were never expounded.
 When Mr. Gagnon addressed the monetary penalty, I was concerned because he left me with the impression that the incident was not serious since the preceding aircraft landed safely and the distance across the stop line was not great. However, this incursion was the last link in the chain of events that could have resulted in a serious accident. The other preceding links were formed by poor management skills and situational awareness. The aircraft was approaching a high‑risk flight phase, namely the take-off. Extra vigilance, and not haste, is the reasonable response of a pilot‑in-command. There was no evidence that Mr. Gagnon took extra care. He made an assumption, but never confirmed it with either the ATC or his second-in-command. He did not make an effort to visually check for an aircraft on final, nor did he ask Mr. Schalin. He did not use the resources available to protect himself from errors, especially given the time of the day as well as other human factors involved. Since optimum performance may have been compromised, there was no plan to take extra care. CRM is a two‑way street and the pilot‑in‑command is responsible for setting the level of interactions which, in this case, was wanting. I therefore find that a token sanction is not sufficient for deterrence.
 I find that the Minister of Transport has proven the allegation that Michel Martin Gagnon has contravened section 602.31(1)(b) of the CARs. However, because of the mitigating circumstances in this case, I reduce the monetary penalty from $750 to $550.
April 24, 2008
Arnold P. Vaughan
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