TATC File No. W-3675-33
MoT File No. 5504-70147 P/B
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Brent Allan Gerald Lukian, Applicant
- and -
Minister of Transport, Respondent
Canadian Aviation Regulations, SOR/96 433, para. 602.31(1)(a)
Richard F. Willems
Decision: December 2, 2011
Citation: Lukian v. Canada (Minister of Transport), 2011 TATCE 33 (Review)
Heard in Edmonton, Alberta, on January 26, 2011
Held: The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Brent Allan Gerald Lukian, contravened paragraph 602.31(1)(a) of the Canadian Aviation Regulations. I dismiss the monetary penalty of $750.
 On February 23, 2010, the Minister of Transport ("Minister") issued a Notice of Assessment of Monetary Penalty ("Notice") to the Applicant, Brent Allan Gerald Lukian, 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, while acting as pilot-in-command (PIC) of a Cessna C‑172, registered as C-GJSE.
 Schedule A to the Notice reads as follows:
#1 – CARs 602.31(1)(a)
On or about the 6th day of October 2009, at or near Fort McMurray, Alberta, being the pilot‑in‑command of an aircraft, to wit a Cessna C‑172, Canadian registration C‑GJSE, you did fail to comply with and acknowledge, to the appropriate air traffic control unit, namely Fort McMurray Tower, all the air traffic control clearances directed to and received by you, more specifically a clearance for a full stop landing when you continued with an unauthorized take off, a violation of Canadian Aviation Regulations 602.31(1)(a).
MONETARY PENALTY - $750.00
 Paragraph 602.31(1)(a) of the CARs, concerning compliance with air traffic control (ATC) instructions and clearances, reads 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
(1) Guy Bernard Duhoux
 Guy Bernard Duhoux is a Civil Aviation Inspector with the Aviation Enforcement branch at Transport Canada. He has been employed with Transport Canada for 10 years and has been involved in the aviation industry since 1971 in a wide spectrum of positions.
 On October 9, 2009, Inspector Duhoux was assigned to this case involving an alleged contravention of paragraph 602.31(1)(a) of the CARs by Mr. Lukian at Fort McMurray Airport ("Airport"), in Fort McMurray, Alberta. The Canadian Aviation Daily Occurrence Reporting System (CADORS) report for October 6, 2009 (Exhibit M‑5) indicated to Inspector Duhoux that aircraft C-GJSE had been cleared to land on Runway 25 at the Airport.
 However, while on the runway, the pilot informed ATC that he would be remaining in the circuit and took off again before a take‑off clearance could be issued. On January 4, 2010, Inspector Duhoux received the Daily Flight Record for October 6, 2009 (Exhibit M‑1) from McMurray Aviation, based in Fort McMurray. The Daily Flight Record identifies the aircraft as "JSE" and "Lukian" as PIC, and indicates that the aircraft was airborne from "1330" to "1414" local time.
 The ATC compact disc (CD) audio recording of the October 6, 2009 incident at Fort McMurray Airport was provided by NAV CANADA to Mr. Duhoux and entered as evidence at the Review Hearing (Exhibit M‑4). The CD contains several transmissions between ATC and aircraft C‑GJSE. When listening to the CD, one can hear that "JSE" is cleared to land on Runway 25 and that the winds are reported at 310 degrees at 9 knots, gusting to 15 knots. The next transmission on the CD is "JSE" advising ATC that they would be remaining in the circuit, followed immediately by a clearance from Tower Control for them to do a touch and go.
(1) Brent Allan Gerald Lukian
 Mr. Lukian is employed as an Instructor with McMurray Aviation. Mr. Lukian agreed that he was flying aircraft C‑GJSE with a commercial student on October 6, 2009. They were operating under special visual flight rules conditions.
 At touch down, during a soft field landing using full flaps, the student was having difficulty controlling the aircraft with the amount of crosswind and, as a result, in Mr. Lukian's words, "the wind did pick us up a little bit". Later in his testimony, Mr. Lukian stated that the wind picked them up once or twice, after which he told Tower Control that he would like to remain in the circuit.
 Mr. Lukian testified that he was the PIC of aircraft C-GJSE at Fort McMurray Airport on October 6, 2009. The Daily Flight Record shows "Lukian" as PIC and a student as his customer. The ATC CD (Exhibit M‑4) confirms that "JSE" was cleared to land on Runway 25 in Fort McMurray. The CD also indicates that the winds at that time were at 310 degrees at 9 knots, gusting to 15 knots, which could be fairly difficult to handle in a Cessna C‑172 using full flaps. The next transmission on the CD is "JSE" advising Tower Control that they would be remaining in the circuit, followed immediately by Tower Control clearing "JSE" for a touch and go.
 Mr. Lukian testified that the student was having trouble controlling the aircraft during landing due to the windy conditions and, after one or two bounces, he decided to "remain in the circuit".
 The ATC CD evidence (Exhibit M‑4) presented by the Minister's Representative only shows that a landing clearance was given and that, at a later time, "JSE" advised ATC that they were remaining in the circuit. The CADORS report (Exhibit M‑5) wording is somewhat different from the CD evidence. Its narrative states that, "[w]hen on the runway, the pilot informed the tower controller he would be remaining in the circuit and took off before takeoff clearance could be issued". Based on these two pieces of evidence alone, without the controller who had issued the clearances present, I cannot ascertain where G‑CJSE was in relation to the runway or what stage of flight the aircraft was at when that clearance was issued. The CADORS report on its own does not carry enough weight to convince me of the aircraft's position while all this was taking place.
 Mr. Lukian's testimony is the only evidence given by a person who took part in this event. He testified that, due to the windy crosswind conditions encountered during the landing, he elected to apply power and abort the landing. As PIC of the aircraft, Mr. Lukian had full authority to make decisions with regards to the safe operation of his aircraft.
 The Minister has not proven, on a balance of probabilities, that the Applicant, Brent Allan Gerald Lukian, contravened paragraph 602.31(1)(a) of the CARs. The monetary penalty of $750 is dismissed.
December 2, 2011
Richard F. Willems
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