Decisions

TATC File No. O-3558-41
MoT File No. PAP5504-EMS66820

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Sierra Fox Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, section 602.21


Review Determination
Richard F. Willems


Decision: September 24, 2010

Citation: Sierra Fox Inc. v. Canada (Minister of Transport), 2010 TATCE 23 (review)

Heard at Toronto, Ontario, on July 21 and 22, 2009 and on January 5, 6, 26, 27 and 28, 2010

Heard at Barrie, Ontario, on March 15, 2010

Held: The Minister of Transport did prove, on a balance of probabilities, that Sierra Fox Inc. did contravene section 602.21 of the Canadian Aviation Regulations. The assessed monetary penalty of $5,000 is upheld. This amount is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

1. BACKGROUND

[1] On January 8, 2009, the Minister of Transport issued a Notice of Assessment of Monetary Penalty ("Notice") to Sierra Fox Inc. ("Sierra Fox") for having contravened section 602.21 of the Canadian Aviation Regulations ("CARs"), pursuant to section 7.7 of the Aeronautics Act ("Act").

[2] Schedule A of the Notice states the following:

On or about August 1, 2008, at approximately 1925 UTC, at or near Muskoka Airport, Muskoka Ontario, Sierra Fox Inc. carrying on business as Ferrari Flight Training, operated a Cessna 172F aircraft, bearing registration marks C-FRVX, in such proximity to another aircraft that created a risk of collision thereby contravening section 602.21 of the Canadian Aviation Regulations. Under subsection 8.4(1) of the Aeronautics Act, you as the registered owner of the aircraft are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefore. Monetary Penalty assessed $5000.00

[3] On January 23, 2009, the Transportation Appeal Tribunal of Canada ("Tribunal") received a request from Sandro Ferrari, on behalf of Sierra Fox, asking to have the above matter heard as soon as possible.

II. STATUTES AND REGULATIONS

[4] Section 602.21 of the CARs provides as follows:

602.21 No person shall operate an aircraft in such proximity to another aircraft as to create a risk of collision.

[5] Subsection 8.4(1) of the Act provides as follows:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

III. MOTION

[6] At the commencement of the Review Hearing on July 21, 2009, Counsel for the Applicant submitted a motion to the Tribunal which reads in part as follows:

  1. An Order quashing the Notice of Assessment of Monetary Penalty dated January 8, 2009, as against Sierra Fox Inc. c.o.b. Ferrari Flight Training, referencing File No. PAP5504-EMS 66820.
  2. An Order dismissing the charge as against Sierra Fox Inc. c.o.b. Ferrari Flight Training for the alleged contravention of section 602.21 of the Canadian Aviation Regulations.
  3. Costs of this motion and the hearing on a substantial indemnity basis.
  4. Such further and other relief as this Honourable Tribunal may deem just.

IV. SUBMISSIONS

A. Applicant

[7] The Applicant's Counsel requested an Order quashing the Notice dated January 8, 2009. In summary, she states that the wording of the Notice contained such critical defects and omissions that it fails to give the Applicant proper notice of the charges made against it, therefore making it impossible to answer them.

[8] The first point of the Motion specifies that the Notice fails to provide any information about the aircraft in which Sierra Fox is alleged to have operated in close proximity. The second point indicates the failure to specify if the incident took place in the air or on the ground. The third point mentions that the Notice is poorly written as it is impossible to determine which of the many aircraft operating at the Muskoka Airport that day created the risk of collision or to which aircraft they were in close proximity to. Applicant's Counsel also takes issue with the three dates. The Notice alleges that the contravention occurred on August 1, 2008. The Civil Aviation Daily Occurrence Reporting System ("CADORs"), that forms the basis of the charge, shows the date as August 3, 2008, and the Detection Notice states that the incident occurred on August 5, 2008. Applicant's Counsel asks for costs of the Motion and the hearing.

B. Minister of Transport

[9] Larry Lipiec, the Minister's representative, argues that the absence in the Notice of the registration of the other aircraft involved does not make it null and void. He states that the required natural justice and procedural fairness required at the Tribunal was complied with by the Minister. The Notice informed the Applicant of the nature of the contravention and the subsequent disclosure package was provided to the Applicant with all the information required to make out its case. In reply to the submission of Applicant's Counsel that the Notice was ambiguous and incomprehensive, the Minister submits that the Notice is almost verbatim of the wording of the regulation itself and that the Notice is addressed to Sierra Fox, leaving no doubt as to the identity of the recipient of the Notice. The Minister submits, with regards to the three dates involved, that the CADORs report starts the procedure. The investigation which follows sorts out the problem of the dates, as all of the dates in the disclosure package refer to August 1, 2008. He also submits that, in the entirety of this case, the Minister behaved in good faith. The Notice was issued based on facts brought to the Minister's attention and was in no way motivated by frivolous or vexatious reasons.

C. Applicant's Reply

[10] Applicant's Counsel argues that the main thrust of this case is that Sierra Fox operated in close proximity to another aircraft. However, Sierra Fox has no recollection of coming in close proximity to other aircraft. Applicant's Counsel argues that the charge should reflect the identity of the other aircraft involved. She goes on to indicate that there are other inconsistencies in the disclosure package provided by Transport Canada which make it impossible to prepare a defence.

D. Ruling

[11] I have considered the submissions submitted by the Applicant's Counsel and the Minister.

[12] Subsection 7.7(2) of the Act prescribes the information that a Notice shall include:

7.7(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate

(a) the designated provision that the Minister believes has been contravened;

(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and

(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.

[13] I agreed with Applicant's Counsel that the Minister is required to give the Applicant adequate notice of the allegation. In addition to the Notice that was provided to the Applicant, it is clear that there has been considerable disclosure of the Minister's case, and the particulars of the facts that they will rely on. In my view, the disclosure is adequate. In coming to my conclusion, I acknowledged that the Applicant's arguments, the dates, the identification of the other aircraft, and the issue itself, are relevant issues in this hearing. The Motion was, however, denied.

V. EVIDENCE

A. Minister of Transport

(1) Raul Eric Hernandez

[14] Raul Eric Hernandez was the flight service specialist trainee working the Muskoka Airport position, for Timmins Radio, in Timmins, Ontario, under the supervision of Stephen Surcon, on August 1, 2008. At the hearing, he was in possession of a CD on which he had made a digital copy of the air to air communications of August 1, 2008, as well as the telephone conversations Mr. Surcon had with the captain of the Learjet N811RA ("Lear") and the pilot of aircraft C-FYPP ("YPP").

[15] Mr. Hernandez had used a new and unopened disk and had made a digital copy recording from the Nav Canada master digital voice logger. He confirmed that the logger was in working order, that the CD had been unaltered since the recording, and that it had been in his possession ever since or was locked up in his apartment to which he is the only one to have the keys. The system used for the playback at the hearing is called Nice Media Player. He described it as uncompressed, and that we would be listening to this recording in real time. This is the first time of many times at this hearing that we would listen to the digital recording (Exhibit M‑1) and would follow along using the transcript of the air to air communication from Muskoka Airport on August 1, 2008 (Exhibit M‑2).

[16] After listening to the CD to the point where the transcript ended, Applicant's Counsel requested to hear the rest of the tape and more specifically, the recording until the Cessna 172 aircraft, bearing the registration marks C‑FRVX ("RVX") had landed. She wanted Mr. Hernandez to note the amount of time it took RVX to do the circuits following the incident in question. After listening to that portion of the recording, Mr. Hernandez stated that he was unsure at what he was looking for in order to testify as to what time RVX reported backtracking. He was, however, able to identify the voices of Mr. Surcon and of his own on the recording.

[17] Mr. Hernandez explained that since he is in a remote location he could only speculate as to the position of aircraft in the Muskoka area. To keep track of the position and movements of aircraft at Muskoka Airport, he uses two mechanisms: the Data Flight Strips and the Directional Finding ("DF") Unit. The Data Flight Strips are used to identify the aircraft registration, the type of aircraft, and the upcoming pilot's intentions as relayed by them. The DF shows only the bearing of the aircraft relative to the DF site antenna when an aircraft is transmitting. Using these tools and the voice transmissions of all the aircraft in the Muskoka area, Mr. Hernandez provides traffic information as requested, or in the interest of safety, as he feels necessary.

[18] From the CD and the transcript, we could follow the procedures and thought process Mr. Hernandez used to form a picture of what was going on at the Muskoka Airport that day. Using the information he had, when he was asked by the Lear where the traffic for runway 18 was, Mr. Hernandez relayed that they were both downwind for runway 18. Shortly thereafter, RVX called turning short final touch and go for runway 18. Then, Mr. Hernandez immediately advised the Lear that there was a Cessna on short final 18, and asked for the Lear's position. The Lear replied that they were on short final 36. He then asked if RVX could do a missed approach.

[19] At the Member's request, Mr. Hernandez, on Exhibits M‑5 through M‑8, indicated the positions where he believed the various aircraft involved were at the times marked, and these times correlated with the transcript. Under cross‑examination, Mr. Hernandez was challenged on various issues brought up during his testimony. He explained that any information he passed on to the aircraft involved in this incident was based on the best information available given the fact that he was not at the Muskoka Airport. At various times during this incident, Mr. Hernandez advised aircraft that runways 18 and 36 were both active. Again, he stated that all he was doing was providing the information to the pilots using the Muskoka Airport but the final decision as to the procedure used remains with the pilots.

(2) Rachel Bernacki

[20] Rachel Bernacki was the first officer of the Lear on a flight from White Plains, New York to Muskoka, Ontario, on August 1, 2008. The captain of this flight was Jon Ottney. Once having been cleared for the Global Navigation System ("GNS") 36 approach to the Muskoka Airport, she, as pilot not flying ("PNF"), contacted Timmins Radio and was told that the traffic at that time was two aircraft in the circuit for runway 18. The Lear crew decided to continue with the approach for runway 36, the main factor being the wind reported as 280 at 10 knots. The runway at Muskoka Airport was approaching a limiting length for the Lear, and any tailwind component was not acceptable. As the approach continued, they monitored the progress of the other aircraft by listening to the radio transmissions, and by monitoring the Traffic Alert and Collision Avoidance System ("TCAS") on board the aircraft. At that point in the approach, they were satisfied that the aircraft downwind would not be a factor. The Lear crew was under the impression that at least one of the aircraft on downwind would be extending the downwind to accommodate them. There was a total of three aircraft showing on the TCAS, two of which they believe were the Cessnas in the downwind for runway 18.

[21] Mrs. Bernacki estimated that when the Lear was about one mile on final for runway 36, they observed one of the Cessnas making an abrupt steep turn from the downwind directly to the threshold of runway 18 and, while at the start of this procedure, making a radio call indicating that he was on short final for runway 18 and intending to do a touch and go. They continued their approach, and when asked by Timmins Radio for their position, they replied short final for runway 36. Subsequently, Timmins Radio asked RVX to break off their approach but RVX continued toward the runway, while speaking to Timmins Radio about Toronto Center, the CARs, and how they relate to the approach and landing on runway 36.

[22] The Lear crew, once they were able to transmit on the frequency, advised that they were landing on runway 36, given the fact that RVX was not complying with the request of Timmins Radio, and they now had no idea about intentions. Mrs. Bernacki observed the orange Cessna (RVX) continue its approach to runway 18, overflying them at what she estimated at 50 feet directly overtop of them, while at the same time asking Timmins Radio if they were going to file a violation against the Lear. After listening to the CD (Exhibit M‑1) and reading the transcript (Exhibit M‑2), Mrs. Bernacki indicated that when she wrote her email and co-authored the company report, she incorrectly believed that one of the Cessnas had agreed to extend its downwind leg of the circuit to accommodate the Lear's arrival.

[23] Under cross‑examination, Mrs. Bernacki explained how the Lear crew used a combination of TCAS and visual observation of the traffic situation in front of them. The TCAS gave them a rough idea of where the traffic was in relation to their aircraft but did not specifically identify the registration of the aircraft. She advised that you would know where traffic was, and if the aircraft has the proper equipment, it would usually indicate its altitude in relation to your aircraft.

VI. SUBMISSIONS BY THE APPLICANT

[24] At the start of the hearing reconvened on January 5, 2010, two documents were submitted by Mr. Ferrari. The first document was a letter appointing Mr. Ferrari as agent for Sierra Fox at these proceedings and the second document was the Affidavit of Mr. Ferrari.

A. Summary of the Affidavit of Mr. Ferrari

[25] In his Affidavit, Sandro Ferrari states that Paul Spiers and Martina Wassmer, both inspectors with Transport Canada, went to his office on September 30, 2009, to do an inspection of Ferrari Flight Training. However, while in his office, they wanted to talk about CADORs and the rules governing the operation of an aircraft in the circuit while aircraft were doing simulated IFR approaches to another runway. Mr. Ferrari also states that he informed Mr. Spiers that the rules he was talking about were also the rules he would be using in his defence in the case before the Tribunal but Mr. Spiers continued questioning him. Mr. Ferrari then produced documents to support the arguments he would be using to defend himself before the Tribunal. Mr. Ferrari mentions that the inspectors did not follow the proper procedures to set up an inspection, which should have been requested by letter and not by phone. Furthermore, in his view, the real reason for the visit was not an inspection but to talk about CADORs. As Mr. Spiers was aware of Mr. Ferrari's case before the Tribunal, [in fact, according to Mr. Ferrari, he initiated the investigation himself], Mr. Ferrari alleges that it was the intention of Mr. Spiers to interfere deliberately with him as a witness.

[26] Consequently, based on the above-noted incident, Mr. Ferrari believes that his right to a fair and unbiased hearing has been interfered with, and that Transport Canada has acted in a deceitful and bad faith manner in order to interfere with his testimony and engage in tactics of intimidation. The conduct of Transport Canada constitutes a breach of his rights in this hearing. Therefore, Mr. Ferrari requests that a mistrial be declared.

[27] In response, the Minister's representative stated that the reason for Mr. Spiers' visit had been for an entirely different incident and therefore, had no bearing on the matter before the Tribunal.

B. Ruling

[28] The motion was dismissed. The inspection by Transport Canada on September 30, 2009 was based on an incident not related to the matter that is before the Tribunal. Therefore, the motion was dismissed.

C. The CD issue

[29] Mr. Ferrari brought up another issue during Mr. Surcon's direct examination. After listening to the CD (Exhibit M‑1) or tape, as it was also referred to, Mr. Ferrari submitted that the tape that was just listened to is not the same tape he has in his disclosure package, because it is of a different length. Mr. Hernandez had made a copy from the digital voice logger and had brought that copy with him to the hearing (Exhibit M‑1) and we are using that copy at this hearing. The CD (Exhibit M‑1) is longer than the transcript made by Inspector Oonagh Elliott. Mr. Lipiec, the Minister's representative, explained that the Minister was only relying on the portion of the tape covered by the transcript.

[30] With the help of Mr. Kurk, assistant to the Minister's representative, Mr. Lipiec, Mr. Ferrari and myself, the CD (Exhibit M‑1) was run on the computer and the times of each transmission were recorded. At the end of this procedure, we found many errors. I found that this was not acceptable and asked Mr. Lipiec to solve this problem. He was then advised to use a newer version of the Nice Media Player. Once this new version was used, we all, including Mr. Ferrari, agreed that the times recorded on the CD (Exhibit M‑1) were acceptable. The new version of Nice Media Player also solved the issue of the time error on page 7 of the transcript (Exhibit M‑2) where the time of (192340UTC) followed by the time (152355UTC). After listening to the CD (Exhibit M‑1), it was obvious that this was a typographical error.

[31] I entered into evidence the working document (Exhibit M‑2a) which was made to record the times of each transmission on the CD (Exhibit M‑1). We also made the document (Exhibit M‑2b) which recorded the times of the remaining transmissions of RVX, as recorded on the CD (Exhibit M‑1) by Mr. Hernandez when he made the CD from the master digital voice recorder. The document (Exhibit M‑2b) was made on Mr. Ferrari's request. Exhibit M‑33 is the original CD made from the Nav Canada master digital voice logger which was sent to Inspector Elliott, and which she used to make the transcript (Exhibit M‑2). Under cross‑examination, she explained that she created it to help her while working up the event, finding it easier to refer to it than to start up the CD each time. My final ruling was that the CD entered as Exhibit M‑1 and the transcript made by Inspector Elliott (Exhibit M‑2) were acceptable.

VII. EVIDENCE

A. Minister of Transport (continued)

(3) Stephen Surcon

[32] Stephen Surcon is a Flight Service Specialist. He was overseeing Mr. Hernandez on August 1, 2008. He was, at all times, in a position to observe and monitor Mr. Hernandez. Mr. Surcon is the instructor, and should the trainee be overwhelmed by events, he sorts out the issues to make sure safety is not compromised.

[33] Mr. Surcon listened to the tape, and indicated to us where his voice was on the recording. He explained that when RVX transmitted "is there some reason why he can't comply with the CARs", he replied "because Toronto Center cleared him specifically for runway 36 approach, so that's why". He reacted in that manner, as he felt that the radio was not a place to debate or to discuss those types of issues. He wanted to remind RVX that the Lear's last known intentions and clearance were a straight in approach to runway 36 and that the Lear had not been cleared to do anything else. Mr. Surcon also described what was happening when RVX called turning short final 18 touch and go, and he had to speculate as to the position of the aircraft involved, as he was not in Muskoka. He had to assume that RVX had done a normal circuit, which would have put it below 500 feet above ground level ("AGL") and lined up with runway 18. The Lear told him that they were on short final for runway 36. This puts two aircraft flying towards each other, at opposite ends of a runway, possibly below 500 feet AGL. Mr. Surcon filed a CADORs Report later that day. He also spoke on the telephone regarding this issue to the Lear Captain, as well as to the pilot of YPP.

[34] Mr. Surcon was vigorously cross‑examined by Mr. Ferrari concerning his knowledge of, involvement in, and conversations about the incident. None of what I heard cast a shadow of doubt on what this witness said under direct‑examination. Much of what Mr. Surcon was asked to speak to during cross‑examination was to give his opinion as to policy, regulations, and to what the pilots concerned could or should have done.

(4) Glenn Moore

[35] Glenn Moore and his instructor, Edward Vincent Pasquale, were doing circuits at the Muskoka Airport on August 1, 2008, in Mr. Moore's Garmin 1000 glass cockpit equipped Cessna 182 (YPP). After listening to the CD recording (Exhibit M‑1), Mr. Moore identified, not only his voice doing most of the radio work, but also Mr. Pasquale's voice, on the two transmissions that he made. Mr. Moore also indicated on the airport diagrams the various positions of aircraft RVX, YPP, and the Lear (N811RA), and the progress of these aircraft as he saw this incident unfold (Exhibits M‑13 to M‑16).

[36] The first thing that was shown was that RVX was ahead of YPP in the circuit. Mr. Moore had the impression, at that time, that YPP was going faster than RVX. Then, instead of turning base, RVX, from a point on the downwind, turned towards the button of runway 18 at about a 35 to 40 degree angle, with a relatively steep angle of descent. The pilots in YPP decided to stay high and extended their downwind and base legs. They eventually departed the area to the west and continued on to Collingwood. As Mr. Moore flew abeam the end of runway 18, he could see RVX, at what he described as "a couple of hundred feet" off the ground, on short final, and that he was lining up with runway 18. He estimates that RVX overflew the Lear at 100 to 150 feet and just to the left of the Lear. He based his calculation on the proportional scale of the two aircraft involved as he saw the situation from 1 800 feet above sea level ("ASL").

[37] During cross‑examination, several inaccuracies were found between what Mr. Moore said on the recording, and what he remembered taking place on August 1, 2008, as indicated in his email to Ms. Elliott (Exhibit M‑18). I find these inaccuracies to be normal inconsistencies brought on by writing an email at some later date. In my opinion, none of these are crucial to the event as it unfolded. Again, during this cross‑examination, nothing was uncovered that changed the testimony of Mr. Moore as he remembers this incident taking place.

(5) Edward Vincent Pasquale

[38] Edward Vincent Pasquale was the flight instructor and pilot-in-command ("PIC") on board YPP on August 1, 2008. He identified his own voice and that of Mr. Moore's on the CD recording and agreed that the recording was accurate. He described the event as it unfolded from the downwind position of YPP. At that time, Mr. Moore had brought to his attention that RVX was starting a turn and was descending. From his position in the right seat of the cockpit, he was unable to see RVX in the turn because the descent had already started. However, once YPP was banked in the left turn, he was able to see the runway with the Lear on its rollout, and the orange Cessna 172 (RVX) overflying very close to the Lear. It is Mr. Pasquale's belief, from what he witnessed, that the pilot in RVX deliberately turned base early so as to be able to be at the opposite end of the runway the Lear was intending to land on, with the intent to create a direct conflict with the Lear during the final stages of its approach and landing.

[39] Cross-examination of this witness revealed nothing that changed my understanding of the event that took place that day as described by the witness under direct-examination.

(6) Oonagh Elliott

[40] Inspector Elliott is a Transport Canada Civil Aviation Safety Inspector who was assigned as the investigator for this case. Inspector Spiers, a Civil Aviation Safety Inspector, and Principal Operations Inspector (POI) for Ferrari Flight Training, issued a Detection Notice based on a CADORs report, which reflected the alleged violation date as being August 3, 2008.

[41] During the investigation, Inspector Elliott made sure of the accuracy of all the information she had on the aircraft involved, backing it up with, in this case, the audio from the Flight Service Station ("FSS") Timmins, and speaking to and getting statements from the people involved. She verified that the three aircraft directly involved were YPP, RVX, and Lear N811RA.

[42] Inspector Elliott talked first to Mr. Moore, the aircraft owner and one of the pilots on board YPP during this event. He was the first one to confirm that the date of this incident was August 1, 2008. She received an email with his statement, a copy of a fuel slip confirming that YPP bought fuel in Collingwood on August 1, 2008. In his statement, Mr. Moore explained that from his position in the circuit behind RVX, he saw RVX make a decisive turn towards the north end of the runway as if it had to get there in some kind of urgency. He noted RVX in a head-on situation with the Lear, and it overflew the Lear once it was rolling down the runway at about the 4 000 to 4 500 foot mark.

[43] While this investigation was ongoing, Inspector Elliott received an unsolicited letter from Mr. Ferrari expressing concerns with the Timmins FFS and the procedures used for the Muskoka Airport. It also described an incident that took place on August 1, 2008, which Inspector Elliott believed to be the same incident described by Mr. Moore. Mr. Ferrari, in his letter, referred to the Lear registration N811RA as being involved. The name of the pilot flying the RVX was not given.

[44] Inspector Elliott then confirmed the times in Mr. Moore's personal Logbook as well as the Journey Logbook for his aircraft YPP. The dates and times in the two documents authenticated August 1, 2008, and the UTC times recorded in the Journey Logbook reflect that the aircraft was airborne at the time of the incident. Mr. Moore's personal log shows that they had been in Muskoka on that day.

[45] Mr. Pasquale told Inspector Elliott, during a telephone conversation, that the pilot of RVX varied his normal circuit to somehow put himself in the possibility of conflict with the Lear by turning early, and going right down to the threshold of runway 18 while the Lear was landing on runway 36, and then doing an overshoot. To Inspector Elliott, it appeared that the pilot of RVX had put himself into a situation that could have caused a risk of collision. The fact that the Lear had been making position reports during the approach to runway 36, and that everyone knew what the Lear was doing and its intentions, were also discussed during the telephone conversations between Inspector Elliott, Messrs. Moore and Pasquale. On the contrary, nobody knew where RVX was going because it stopped making position reports until its short final to runway 18.

[46] Inspector Elliott requested and received a CD of the audio recording of this event done by Timmins FSS. After listening to the CD, she confirmed the accuracy of what Mr. Pasquale had told her about the events that took place on August 1, 2008 and, once more, that the three aircraft referred to in the CADORs report were in fact involved in the incident. Inspector Elliott prepared the transcript (Exhibit M‑2) as a guide to assist anyone who would need to listen to the recording. She testified that the times are approximate, being just a tool to help work with the audio recording and to create a general picture of what transpired on August 1, 2008.

[47] On the last part of the CD are the telephone calls, one from Captain Ottney, the other from Mr. Pasquale. Both expressed concerns about the severity of the incident. Both of their descriptions of what happened were consistent with the statements of the other pilots and the decision was made to continue with the investigation.

[48] Inspector Elliott next testified that she telephoned Captain Ottney requesting a copy of the report he had sent to his Chief Pilot at Jetsmart Inc. In an email dated August 26, 2008, to Inspector Elliott, Captain Ottney explained how the flight progressed towards Muskoka, that the weather was obtained and that the decision was made to do the RNAV 36 approach (Exhibit M‑12). Over the SASOS intersection, Toronto Center instructed the Lear to contact Timmins Radio which reissued the weather, traffic, and the presence of the two Cessna aircraft in the circuit for runway 18. Captain Ottney's understanding at that time was that the traffic was accommodating the Lear's approach on runway 36. On short final, the Lear crew heard an aircraft transmit "turning short final", and observed one of the Cessnas turn from its downwind leg directly to final, cutting its base leg to a 45 degree leg and flying over the Lear at about 50 feet during its rollout. Inspector Elliott now had four pilots describing a similar event.

[49] Under cross‑examination, Inspector Elliott reaffirmed the facts she had discovered during the course of her investigation. I heard nothing that changed my mind on the issues brought forward during direct examination. The inconsistencies discovered between the audio recording and statements made or written at some point after the event were not critical to the outcome of this incident.

B. The Applicant

(1) Timothy Brosnahan

[50] Timothy Brosnahan is an employee of the Muskoka Airport. On August 1, 2008, he was on the south ramp half way between the terminal building and the Ministry of Natural Resources ("M & R") building. He was chatting with the Customs Officers while they were getting ready to park the inbound Lear. He was monitoring the Muskoka frequency 122.3 as he usually does when working the ramp, in order to keep informed of the inbound traffic. He recalled that two aircraft were in the circuit for runway 18, and that the Lear, inbound from the south, was intending to do an RNAV approach for runway 36. He also recalled RVX, being one of the aircraft based at the Muskoka Airport, and it was being used to do some student training that morning.

[51] In direct examination, Mr.  Ferrari asked Mr. Brosnahan: "Where was RVX when you saw it?" He replied: "I didn't really have a visual on it on the downwind, which they declared they were on downwind, because I was on the south ramp. So, really, we have a little bit of a limited view towards the north end of the airport which would be the approach of 18." Mr. Ferrari continued: "Okay. What was it doing when you saw it?" Mr. Brosnahan replied, "I had last seen it on downwind".

[52] Mr. Brosnahan testified that the first time he saw the Lear was when it was coming over the numbers of runway 36 on its landing. The first time he saw RVX, after seeing the Lear over the numbers on runway 36, was when it was climbing south bound through 700 to 800 feet on the west side of runway 18. He recalled the Lear as taxiing back to the south end, if not clearing onto the ramp at the time RVX was climbing out. He also testified that from his position on the south ramp that day, he was unable to see the threshold of runway 18.

(2) Richard Gurbin

[53] Richard Gurbin was the student doing circuits at the Muskoka Airport with his instructor, Mr. Ferrari, on board RVX. He first learned to fly in the late 70s and was taking dual instruction to gain his recurrency. Mr. Gurbin testified that RVX does not have a transponder. While he and Mr. Ferrari were doing circuits on runway 18, several aircraft stated their intentions of using runway 36 and, in fact, several did. Because of his limited recent flight experience, this situation upset him and made him very nervous. When the Lear came on the frequency, Mr. Gurbin felt that it did not announce its plans, but asserted them. He also felt that Timmins Radio encouraged this procedure. He found that interesting because there was no discussion about it, and he felt that the aircraft already in the circuit were not being considered.

[54] Mr. Gurbin was on the early downwind when he remembered someone saying that the Lear was three minutes out. He continued with his normal circuit. The radio frequency was very busy during this time and he was unable to make any calls until he was turning final, which is about the same time he saw the Lear just off the south end of the field. He was surprised to see the Lear that close; he had expected that he would have had enough time to land and get off on taxiway alpha. Once he saw the Lear, he stopped his descent at about 600 feet or more, did a climbing right turn to a point half a mile west of the runway. At this point, about midfield, half a mile to the west of the runway, he observed the Lear on the runway. Subsequently, he joined the circuit and continued his training.

VIII. DISCUSSION

[55] Every witness at this hearing testified that this incident took place on August 1, 2008.

[56] Mr. Hernandez testified that his DF equipment indicated that the aircraft was to the north when RVX transmitted "RVX turning short final 18, touch and go". Based on these two facts, Mr. Hernandez also testified that he had to assume the worst, namely, that RVX was on short final to runway 18. He relayed that information to the Lear who replied that they were on short final to 36.

[57] Mr. Surcon, the instructor overseeing Mr. Hernandez on August 1, 2008, testified that he was physically beside Mr. Hernandez for the duration of this incident. He also stated that he did approve of the way Mr. Hernandez handled the situation. He agreed that the recording (Exhibit M‑1) is an accurate description of the events that happened that day. From what he heard that day he has no doubt that RVX was on short final to runway 18 while the Lear was on short final to runway 36. Both aircraft, in calling short final, would indicate to him that they were below 500 AGL, based on the closing speed and that fact alone would tell him that these aircraft were coming into close proximity to one another.

[58] Mr. Surcon agreed that Exhibit M‑3 is an accurate transcript of a conversation between himself and Captain Ottney. It is obvious to me, from this conversation, that Captain Ottney was the PIC of the Lear during this incident. He filed the report regarding this incident with his Chief Pilot (Exhibit M‑12). The events described in the report were very similar to what we heard from the others involved.

[59] Mrs. Bernacki, the First Officer on the Lear, testified that she co-authored this report. I am giving considerable weight behind it given the fact that this crew reported this event to their Chief Pilot, and this report would now be on file for their superiors at Jetsmart to read, including the Federal Aviation Administration ("FAA"). Mrs. Bernacki also testified that she observed a Cessna leave the downwind in an abrupt steep turn, and while in this turn, calling that it was turning short final. She, in reply to the request of Timmins Radio as to the Lear's position, advised that they were on short final to runway 36. When the Cessna continued towards the runway, even after Timmins Radio had asked it to break off its approach, they decided that the best thing to do was to continue for the landing. They stated that fact so everyone, especially the pilot aboard the Cessna, would know their intentions. The Cessna continued towards the runway and overflew them at about 50 feet. In her view, if they would have had to do an overshoot for whatever reason, the Cessna would have been in their direct path, leaving them with no options.

[60] The pilots in YPP, from their position abeam the end of the runway at 1800 feet ASL, were in a good position to watch the progress of this event given that they were in a high-wing aircraft. They observed RVX set up for a short approach to runway 18 in a head-on situation with the Lear on the runway. Mr. Moore estimated the altitude of the Cessna at 150 feet AGL or less over the Lear. Mr. Pasquale described the event as RVX flying very close to the Lear as it was rolling down the runway.

[61] Inspector Elliott, under testimony, described to us how she filled in many of the gaps in this case. The evidence she gathered shows us that RVX is owned by Sierra Fox and that Sierra Fox was charged vicariously due to the fact that the pilot at the time was unknown to the Minister. There is no lack of evidence to show that RVX was operating at the Muskoka Airport that day. The CD recording has RVX identified on it. The other pilots involved and the FSS operators testified to its authenticity. Mr. Gurbin and Mr. Brosnahan also testified that RVX was flying at the Muskoka Airport that day. The testimony of Mrs. Bernacki, Messrs. Moore and Pasquale, along with the report the Lear crew filed with their Chief Pilot, basically is telling the same story. I am convinced that RVX was intentionally flown to be in a position at the opposite end of the runway to be in conflict with the Lear's normal flight operations.

[62] We have varying stories as to the height that RVX passed over the Lear as it rolled down the runway. I have more concern as to RVX's position at the opposite end of the landing runway, and to the fact that nobody, especially the Lear crew, had any idea of what RVX was going to do. Had the Lear done a missed approach, when the nose of the aircraft came up, they would have lost sight of the aircraft that was doing strange manoeuvres without following normal procedures. The pilot of RVX, by placing the aircraft where he did, removed most of the Lear crew's options in the event of an overshoot, and had he landed on the runway before them, or done a touch and go, as he indicated, it could have been disastrous. With the closing speed of these two aircraft, the definition of close proximity was changing rapidly

[63] Mr. Brosnahan, in his testimony, initially testified that he did not really have a visual of RVX on the downwind, but in his very next statement, he testified that he had last seen it on the downwind. He tells us that from where he was on the south ramp, he was limited as to what he could see towards the north end of the airport, and that he first saw RVX on the overshoot, south of the Bravo taxiway on the west side of the runway, climbing through 700 or 800 feet. He recalled seeing the Lear taxiing back to the south end, possibly clearing the runway, when he saw RVX on the overshoot. It is obvious that he did not see the portion of this event that took place towards the north. He is the only witness that has the overshoot happening while the Lear is backtracking, or possibly clearing the runway while all the others have RVX flying over the Lear on its rollout at the end of its landing. These statements leave doubt in my mind as to how much, if any, Mr. Brosnahan saw of this incident.

[64] Mr. Gurbin's description of the final stages of this event is quite different from the other witnesses, including the Applicant's other witness, Mr. Brosnahan. Mr. Gurbin claimed to have never gone below 600 feet AGL, and once the overshoot was initiated, he made a right climbing turn to a point half a mile west of the runway abeam a point halfway down the runway. The other pilots and Mr. Brosnahan placed RVX close to the runway on the missed approach. The turn that was required to get to a point half a mile west of the runway, and half way down the length of the runway, would not have gone unnoticed by any of the witnesses at the Muskoka Airport. This description of the overshoot, being the only one quite different from every witness to this event, gives it little credibility.

[65] The situation escalated from an everyday event to a dangerous event that could have been disastrous. Safety in aviation is everybody's responsibility. At uncontrolled airports, such as Muskoka, everyone flying into, working at, and providing services, has this responsibility. Without Air Traffic Control being at the airport, and without any radar to rely on, there has to be a lot of cooperation between the pilots of the vastly different types and speeds of aircraft using it. As far as I can see, everyone involved in this event, except Mr. Ferrari, did their best to work safely. Mr. Ferrari is not a newcomer to flying with approximately 22,000 hours of flying time. He operates a flying school and he is its chief flying instructor. This school has the authority to train recreational, private and commercial pilots. This puts even more responsibility on his shoulders.

IX. DETERMINATION

[66] I find that the RVX was intentionally flown in close proximity to the Lear, and did create a risk of collision. The Minister of Transport did prove, on the balance of probabilities, that Sierra Fox Inc. did contravene section 602.21 of the CARs, and the Applicant is therefore liable to a penalty of $5,000.

September 24, 2010

Richard F. Willems

Member