Decisions

TATC File No. O-3647-33
MoT File No. PAP5504-67698

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Joseph Alexander Donald Doyle, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96 433; paragraph 602.31(1)(a)


Review Determination
Richard F. Willems


Decision: December 21, 2010

Citation: Doyle v. Canada (Minister of Transport), 2010 TATCE 27 (review)

Heard at London, Ontario, on May 19 and 20, 2010

Held: The decision of the Minister of Transport, set out in the Notice of Assessment of Monetary Penalty dated October 26, 2009, is confirmed. The amount of $750 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this Determination.

I. BACKGROUND

[1] On October 26, 2009, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("Notice") to the Applicant, Joseph Alexander Donald Doyle, for an alleged contravention of paragraph 602.31(1)(a) of the Canadian Aviation Regulations ("CARs"), pursuant to section 7.7 of the Aeronautics Act ("Act"). Mr. Doyle is the Chief Flight Instructor for Aero Academy Inc. ("Aero Academy"), based at the London Airport.

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

On or about November 5, 2008, at or about 1824 UTC, at or near London Airport (CYXU) you, as the pilot-in-command of a Cessna 172RG aircraft, bearing registration C-GGBR, did not comply with all of the air traffic control instructions directed to you by the appropriate air traffic control unit and received by you. Specifically, when instructed by the appropriate air traffic control unit to continue on the downwind leg for runway 15 and await instructions to turn onto the base leg; you turned onto the base leg without permission, thereby contravening paragraph 602.31(1)(a) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $750.00

II. STATUTES, REGULATIONS AND POLICIES

[3] Paragraph 602.31(1)(a) of the CARs provides as follows:

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; and

. . .

III. EVIDENCE

A. Minister of Transport

(1) Audra K. Oakes

[4] Audra K. Oakes is a Civil Aviation Safety Inspector in the Aviation Enforcement Branch, at Transport Canada. She was assigned to investigate an incident that was brought to her attention by the Civil Aviation Daily Occurrence Reporting System ("CADORS", Exhibit M-1). She confirmed that the two aircraft involved are both registered to Aero Academy. Duncan Chalmers, Civil Aviation Safety Inspector, at Transport Canada, and Principal Operations Inspector for Aero Academy, was contacted. He was aware of the incident and was currently working on this file. At that point, he asked Inspector Oakes to obtain the NAV CANADA's data, the reason being that this information is retained for only 30 days.

[5] Inspector Oakes received a compact disk ("CD") from the Toronto Area Control Centre ("ACC"), containing the audio and radar data which she used for her initial investigation (Exhibit M-5). At a later date, Inspector Oakes made a copy of the audio data of this incident (Exhibit M-15) from the master at the London Control Tower and a copy of the radar (Exhibit M-17) from the master at the Toronto ACC.

[6] On December 22, 2008, Inspector Oakes met with Inspector Chalmers to discuss this incident. Inspector Chalmers informed her that, shortly after this CADORS report had been issued, he had contacted the Chief Flight Instructor, Mr. Doyle, and asked him for a report. Inspector Chalmers was not satisfied with the report he received by fax from Mr. Doyle because he felt it did not address what was actually provided in the CADORS report. Because of these inconsistencies, he scheduled an on‑site visit to Aero Academy on December 9, 2008. He obtained a copy of the company's Daily Flight Sheets (Exhibit M-7) which indicate that aircraft C‑GGBR was flying on November 5, 2008, between 13:00 and 14:00 (local time), with Mr. Doyle as the Instructor and Richard Douglas Nancarrow on board. Inspector Chalmers was still not satisfied with Mr. Doyle's explanation of this incident, and he asked that the Aviation Enforcement Branch, Transport Canada, start its investigation.

[7] Inspector Oakes reviewed the audio and radar data and produced a transcript of the audio portion (Exhibit M-8). It served as a working tool for her to correlate the events on the CD containing audio and radar data.

[8] After reviewing the audio and radar data, Inspector Oakes concluded that aircraft C‑GGBR was conducting left‑hand circuits and aircraft C-GBJU was conducting right‑hand circuits. Air Traffic Control ("ATC") instructed aircraft C‑GGBR to continue on the downwind and that they would be advised when to turn base. Aircraft C‑GGBR replied that they would continue on the downwind. ATC then asked if they could see the traffic at their 10 o'clock position, to which they replied that they would locate other aircraft when turning final. ATC asked why they were turning, to which they replied that they were on base now. This indicated to Inspector Oakes that aircraft C‑GGBR had not followed the ATC's instruction.

[9] On January 27, 2009, Inspector Oakes sent a letter of investigation to Mr. Doyle (Exhibit M-10). She also recorded a telephone conversation with Mr. Doyle (Exhibit M-11), where she advised him of the alleged contravention and read the Warning to Alleged Offender Statement to him.

[10] On February 23, 2009, Mr. Doyle telephoned Inspector Oakes, stating that he would like to participate in the investigation, and that he was willing to meet with her at the Pearson Transport Canada Centre. He indicated that he had familiarized himself with the CADORS report, and that he had some concerns with the flight of November 5, 2008 (Exhibit M-12).

[11] Mr. Doyle stated that he was the Pilot-in-Command ("PIC") of aircraft C-GGBR on the flight in question, and that Mr. Nancarrow was his student. He indicated that the PIC of aircraft C-GBJU was Udeme Udoh. He said that neither crew saw the other aircraft involved while aircraft C-GGBR was on the base leg. Ms. Udoh had indicated to him that when she did see aircraft C-GGBR, she thought it was ahead of hers (C-GBJU), and that she would be following it (C-GGBR). Mr. Doyle believed that the 120 degree heading assigned by the ATC had caused the paths of the two aircraft to cross a second time. He stated that he might have missed the ATC's instruction to remain on the downwind. Mr. Doyle acknowledged that the aircraft had come into conflict twice, the second time being the result of the 120 degree heading, assigned by ATC.

[12] On March 17, 2009, a meeting took place at the Pearson Transport Canada Centre with Inspectors Oakes and Ian Shimmin, Instructor Slawomir Cieplicki and Mr. Doyle. Inspector Oakes testified that this meeting was not very productive. The discussion was similar to the telephone conversation they had had. Mr. Doyle did acknowledge that he had been the PIC on the flight of November 5, 2008, but offered no explanation for the unauthorized turn from the downwind.

(2) Christopher Kyle Brew

[13] Christopher Kyle Brew has been a licensed Air Traffic Controller for eight years, and he was working the air position at the London Control Tower at the time of this alleged contravention. Mr. Brew listened to the audio CD submitted in evidence (Exhibit M-5), and followed along with the transcript. He testified that the audio data and the transcript were accurate, and he identified his voice.

[14] Mr. Brew confirmed that he had instructed aircraft C-GGBR to continue on the downwind leg, and that he would instruct them when to turn base. He also agreed that aircraft C‑GGBR acknowledged his instruction by transmitting the following message: ". . . continuing on the downwind." In his next contact with aircraft C‑GGBR, he transmitted a traffic advisory, giving them the distance and position of aircraft C‑GBJU in relation to the position of aircraft C‑GGBR and their sequence in the circuit.

[15] Aircraft C-GGBR acknowledged that transmission. After instructing aircraft C‑GBJU to continue the turn to final, Mr. Brew, once again, provided traffic information to aircraft C‑GGBR and asked them if they had the traffic in sight. When they replied in the negative and said that they would try to locate aircraft C-GBJU turning final, he believed them to be on base leg. This was confirmed on their next transmission when they stated: "I'm on base right now actually." At this point, Mr. Brew realized that a conflict was happening and he started issuing instructions in an attempt to separate the two aircraft.

[16] While working with the radar data, Mr. Brew again confirmed all the segments of the events that he testified to, while working with the audio data. He also testified that the radar data is the actual data that he was working with that day.

B. Applicant

(1) Richard Douglas Nancarrow

[17] Mr. Nancarrow was the student on board aircraft C-GGBR, taking dual training from Mr. Doyle. He was getting checked out on the Cessna 172RG. He identified his voice on the audio CD. He recalled another aircraft being fairly close to his while he was landing, or on final, or on base; he was not sure. A year and a half had passed since this incident and he no longer recalls much of the details.

[18] Under cross-examination, Mr. Nancarrow admitted that he understood the Control Tower's instruction to remain on the downwind. He could not recall why he turned base. After seeing the radar data, he agreed that it appeared he had turned on to base without clearance to do so.

(2) Udeme Udoh

[19] Ms. Udoh was the Instructor on board the Cessna 150, registered as C-GBJU, which was the other aircraft involved in this incident at the London Airport on November 5, 2008. She recalled that her aircraft overshot runway 15 centre line, while turning from right base to final, and the ATC instruction to continue the turn and intercept the final approach course for runway 15. She remembered seeing aircraft C-GGBR on a left‑hand downwind, and that aircraft C-GGBR had been instructed to follow her aircraft in the circuit. She also testified that she had the other aircraft in sight during this incident, at one point seeing aircraft C‑GGBR very close to hers. Aircraft C‑GGBR was now ahead of hers, but the controller kept saying that her aircraft was number one on the approach. She indicated that she was uncomfortable with the ATC instruction to aircraft C-GGBR concerning the 120 degree heading, knowing that the heading would bring the two aircraft in conflict. She also recalled that aircraft C-GGBR told the ATC that they did not have aircraft C‑GBJU in sight.

[20] Ms. Udoh testified that prior to the airspace and the staffing changes in the London Control Tower, the number of CADORS reports issued to the instructors and students at Aero Academy was considerably higher.

IV. DISCUSSION

[21] Mr. Doyle argues that of all the CADORS reports issued, he believes that he received a contravention because of his position of Chief Flying Instructor at Aero Academy. My Review Determination today is based on the evidence placed before me in relation to CADORS report 2008O2585 (Exhibit M-1). I have no evidence with regards to any other CADORS reports, other than the fact that they were issued to the company. They are not at issue here today.

[22] In his telephone conversation with Inspector Oakes, Mr. Doyle stated that on the day of the incident, he was the PIC of aircraft C-GGBR and that his student was Mr. Nancarrow (Exhibit M-12). Mr. Doyle, in the meeting that took place on March 17, 2009, again indicated that he had been the PIC of aircraft C‑GGBR on November 5, 2008.

[23] Flight Sheet 11213, dated November 5, 2008 at invoice 8499, shows D. Doyle as the Instructor and R. Nancarrow as the student. Aircraft C-GGBR was involved: time up was 13:00 and time down was 14:00 (local time, Exhibit M-7). As well, Mr. Nancarrow testified that Mr. Doyle was his instructor for the flight on November 5, 2008. I am satisfied that Mr. Doyle was the PIC of the Cessna 172RG, registered as C‑GGBR, on November 5, 2008.

[24] Mr. Doyle, in his closing arguments, implied that because Mr. Nancarrow had situational awareness, he opted to turn base to avoid the conflict with aircraft C-GBJU, which was contrary to the ATC instruction that he was given.

[25] Based on Mr. Nancarrow's testimony, I find that this was not the case. He could not recall why he had turned base. After seeing the radar data, he agreed that it appeared he had turned on to base without clearance to do so.

[26] Mr. Nancarrow agreed that Mr. Doyle was his Instructor on the flight in question. He identified his own voice on the audio recording. Under cross-examination, he agreed that he had understood the Control Tower's instruction to remain on the downwind.

[27] While following the progress of this incident on November 5, 2008, using the audio transcript data (Exhibit M-8), along with the still frames of the radar data (Exhibit M-19), we can see that at 18:22:57, ATC instructed aircraft C‑GGBR to fly left‑hand circuits. At 18:23:00, aircraft C-GGBR replied that they had received the instruction. At 18:24:46, ATC instructed as follows: "GBR continue on the downwind, I'll call the base." At 18:24:48, aircraft C-GGBR replied: "GBR continuing on the downwind". The crew confirmed again that they had received that instruction. We can also see the position and progress of aircraft C-GGBR on radar (Exhibit M-19, still 3). At 18:26:14, ATC issued the following traffic advisory: "GBR, the traffic you're looking for is about your 10 o'clock and about two miles, they've overshot the approach course, they'll be turning back to the south, do you have them?"

[28] At 18:26:22, aircraft C-GGBR replied "Ah, negative, I'll try to pick them up, when I turn final". At 18:26:27, ATC replied: "OK, why are you turning then?" At 18:26:30, aircraft C‑GGBR replied: "I'm on base right now actually." If one follows on the radar stills, the progress of this portion of the flight is obvious with the turn starting at 18:26:20 (Exhibit M‑19, still 9) and established on base leg at 18:26:30 (Exhibit M-19, still 11).

[29] Ms. Udoh testified that, while making decisions regarding the issue of her aircraft having flown through the extended centre line of runway 15, she was not initially concerned with conflict because she had last seen aircraft C-GGBR on the downwind and that aircraft had been told to follow her in the circuit. She was surprised and concerned to see aircraft C‑GGBR inside the turn that was assigned to her by ATC.

[30] In view of the above evidence, I find that Mr. Doyle did not comply with the ATC instruction to continue on the downwind and await instructions to turn onto the base leg.

V. DETERMINATION

[31] The Applicant contravened paragraph 602.31(1)(a) of the CARs. The decision of the Minister, set out in the Notice of October 26, 2009, is confirmed.

December 21, 2010

Richard F. Willems

Member