Decisions

TATC File No. W-3710-02
MoT File No. 5504-070834 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Damiano Dalla-Longa, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433; para. 602.31(1)(a) and 602.128(2)(a)


Review Determination
Herbert Lee


Decision: June 28, 2012

Citation: Dalla-Longa v. Canada (Minister of Transport), 2012 TATCE 19 (Review)

Heard in Calgary, Alberta, on May 3-5 and June 21, 2011

Held: The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Damiano Dalla‑Longa, is liable for counts 1, 2 and 3 listed on the Notice of Suspension. The thirty (30) day suspensions for counts 1 and 2 shall be served concurrently and the sixty (60) day suspension for count 3 is maintained for a total suspension of ninety (90) days. This suspension will commence thirty-five (35) days following service of this Determination.

TATC File Nos.: W‑3710‑02 and W‑3709‑33

I. BACKGROUND

[1] On June 15, 2010, a Notice of Suspension ("Suspension Notice"), TATC File No. W‑3710-02, was issued to the Applicant, Damiano Dalla-Longa, by the Minister of Transport ("Minister") in respect of alleged contraventions of paragraphs 602.31(1)(a) and 602.128(2)(a) of the Canadian Aviation Regulations, SOR/96-433, ("CARs"), pursuant to section 6.9 of the Aeronautics Act, R.S.C., 1985, c. A‑2 ("Act"). The alleged contraventions are set out in Schedule A to the Suspension Notice as follows:

#1 – CARs 602.31(1)(a)

On or about the 7th day of February, 2010, at or near Calgary, Alberta, as the pilot-in-command of an aircraft, to wit, a Cessna 414A, Canadian registration C-FTEC, on your first approach, you did not comply with all [emphasis added] of the air traffic control instructions directed to and received by the pilot-in-command, specifically "climb runway heading, climb to 7000 feet", contrary to subsection 602.31(1)(a) of the Canadian Aviation Regulations.

SUSPENSION – 30 DAYS

#2 – CARs 602.31(1)(a)

On or about the 7th day of February, 2010, at or near Calgary, Alberta, as the pilot-in-command of an aircraft, to wit, a Cessna 414A, Canadian registration C-FTEC, on your second approach, you did not comply with all of the air traffic control instructions directed to and received by the pilot‑in‑command, specifically "pull up and go around, turn left, fly heading 070, climb to 7000" [emphasis added], contrary to subsection 602.31(1)(a) of the Canadian Aviation Regulations.

SUSPENSION – 30 DAYS

#3 – CARs 602.128(2)(a)

On or about the 7th day of February, 2010, at or near Calgary, Alberta, as the pilot‑in‑command of an IFR aircraft, to wit, a Cessna 414A, Canadian registration C-FTEC, when the required visual reference necessary to continue the approach to land had not been established, in the case of a CAT I precision approach, continued the final approach descent below the decision height, contrary to subsection 602.128(2)(a) of the Canadian Aviation Regulations.

SUSPENSION – 60 DAYS

TOTAL SUSPENSION – 120 DAYS

[2] On June 24, 2010, Mr. Dalla‑Longa was also issued a Notice of Assessment of Monetary Penalty ("Penalty Notice"), TATC File No. W-3709-33, by the Minister in respect of a contravention of subsection 605.94(1) of the CARs, pursuant to section 7.7 of the Act. The Penalty Notice reads as follows:

#1 – CARs 605.94(1)

Between the 12th day of August, 2009 and the 25th day of December, 2009 on at least one occasion, at or near Calgary, Alberta, being the pilot-in-command of an aircraft, to wit, a Cessna 414A, Canadian register C-FTEC, you failed to enter into the journey logbook, as soon as practical after the flight, but at the latest before the next flight, the particulars of a defect in a part of that aircraft that became apparent during flight operations contrary to subsection 605.94(1) of the CARs.

MONETARY PENALTY - $1,000.00

TOTAL MONETARY PENALTY - $1,000.00

[3] On July 26, 2010, the Applicant requested a review of the Minister's decision by the Transportation Appeal Tribunal of Canada ("Tribunal"). The Applicant also requested a Stay of Suspension regarding the Suspension Notice, which was granted by the Tribunal on August 4, 2010, until the review of the Minister's decision had been concluded.

II. STATUTES AND REGULATIONS

[4] Sections 6.9 and 7.7 of the Act, relating to suspensions of Canadian aviation documents and assessments of monetary penalties respectively, read as follows:

6.9 (1) If the Minister decides to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued has contravened any provision of this Part or of any regulation, notice, order, security measure or emergency direction made under this Part, the Minister shall… notify the holder, owner or operator of that decision…

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention…

[5] Paragraph 602.31(1)(a) of the CARs, concerning air traffic control compliance; paragraph 602.128(2)(a) of the CARs, concerning Instrument Flight Rules ("IFR") approach procedures; and subsection 605.94(1) of the CARs, as well as Item 9 of Schedule I to subsection 605.94(1) of the CARs, concerning journey log requirements, read 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

602.128 (2) No pilot-in-command of an IFR aircraft shall, unless the required visual reference necessary to continue the approach to land has been established,

(a) in the case of a CAT I or CAT II precision approach, continue the final approach descent below the decision height; or

605.94 (1) The particulars set out in column I of an item in Schedule I to this Division shall be recorded in the journey log at the time set out in column II of the item and by the person responsible for making entries set out in column III of that item.

SCHEDULE I

(Subsection 605.94(1) and Item 3 of Schedule II)

JOURNEY LOG

Item

Particulars to be entered

Time of entry

Person responsible for entry

     

9.

Particulars of any defect in any part of the aircraft or its equipment that becomes apparent during flight operations

As soon as practicable after the defect is discovered but, at the latest, before the next flight

The pilot-in-command of the aircraft

III. PRELIMINARY MOTIONS

[6] At the beginning of the Hearing, Mr. Dalla‑Longa and the Minister jointly submitted two preliminary motions. The first motion, based on their pre-Hearing conversations, was that the Minister's witness, Gerrit Vermeer, would be excluded from the Hearing until all the testimony of the Minister's other witnesses had been concluded; the motion further agreed to divide the Hearing into two parts for the sake of clarity: the first part would concern the Suspension Notice and the second, the Penalty Notice. The joint submission of this motion was granted.

[7] Although the Minister has the burden of proof concerning all of the alleged contraventions, through a second preliminary motion the Applicant, Mr. Dalla‑Longa, confirmed that he was flying the aircraft indicated in the Notices, which is a Cessna 414A, registered as C‑FTEC ("C-FTEC"), on February 7, 2010. This preliminary motion was also granted.

IV. EVIDENCE

A. Suspension Notice – TATC File No.: W‑3710-02

(1) Minister

(a) Brent Lopushinsky

(i) May 3, 2010 (Day 1)

[8] Brent Lopushinsky is a NAV CANADA air traffic controller, Operations Specialist for the air traffic control ("ATC") tower, with 23 years of experience as an air traffic controller and supervisor. He currently spends approximately twenty percent of his time working as an air traffic controller and the other eighty percent addressing regulatory issues, procedures, training, equipment issues, and working with the Calgary International Airport Authority and its customers. Mr. Lopushinsky has extensive working experience as an air traffic controller, supervisor, and equipment specialist for the ATC tower and, accordingly, I granted him expert witness status. Mr. Dalla-Longa voiced no objections.

[9] The Minister requested that I qualify Mr. Lopushinsky as an expert primarily so that he could interpret and describe the Radar Data Extractor ("RADEX") and Airport Surface Detection Equipment ("ASDE"), as well as control procedures, which were used as evidence at the Hearing. Mr. Lopushinsky described this equipment set-up as a specialized system for the voice recording of ATC radio conversations with pilots, which are gathered with tower radar and ground radar recordings.

[10] On the screen in the Hearing room that was a part of the equipment set-up, C‑FTEC was represented as a hexagon-shaped symbol with a triangle in it, with a leader line and data tag. The numbers in the representation show the aircraft's altitude above ground, ASL, the transponder code and ground speed computed by the radar. Mr. Lopushinsky indicated that the equipment set-up is a very rough guideline of some of the transmissions that took place between ATC and C‑FTEC on February 7, 2010, at the Calgary International Airport in Calgary, Alberta, and should not be considered all-encompassing. The transmissions were recorded over 45 to 50 minutes during which C-FTEC conducted three instrument landing system ("ILS") approaches, missing two, eventually landing the third. There was also a trail of dots shown behind the aircraft symbol, each representing one radar sweep with a six-second update covering four nautical miles from the threshold, the runway, and the green (grassed areas adjacent to the runways and apron). Also, the large dots on the screen represented one-nautical-mile markers. A green line indicated a predicted track line (calculated by a computer). The equipment operates in real time and recordings of all the radio transmissions between the ATCs and the pilot of C‑FTEC, Mr. Dalla‑Longa, during the incident could also be heard. Mr. Lopushinsky synchronized the audio recording and images on the screen in order to demonstrate the events.

[11] For Mr. Lopushinsky's presentation, the Minister further provided an exhibit designated as the "Time Frame for the Sequence of Events" (Exhibit M‑1) and a compact disc ("CD") for the voice recordings only (without radar video), designated as "Tower and Ground Transmission WAV File (CD)" (Exhibit M‑1(A)).

[12] The first approach for C-FTEC on the screen showed an erratic trail of dots all the way to the Calgary International Airport but its pilot, Mr. Dalla‑Longa, did not call for a missed approach. The audio recording indicated the instruction from ATC to the pilot, Mr. Dalla‑Longa, was to climb the runway heading (Runway 16) to 7 000 feet ASL. The images on the screen showed that C‑FTEC was flying to the left of Runway 16 and turned to Runway 10 as if to head east at 100°. The resulting missed approach caused an Air Canada departure flight to be placed on hold on the ground, as confirmed by the audio recording. Mr. Lopushinsky stated that the weather at the time was very poor, and ATC could not actually see any of the maneuvering areas of the airport; therefore, they could not see the taxiways.

[13] The Minister provided an "Approach Plate for Runway 16 YYC" (Exhibit M‑2) to provide a better illustration of the Calgary International Airport ground areas and runway locations. The Minister also submitted a "Package of the Ground ASDE and RAMP First Approach" (Exhibit M‑3), which showed the radar sweep images and recordings during Mr. Dalla‑Longa's first approach.

[14] C-FTEC's second approach was shown visually and through recordings. It was established that during the approach, the controller told the pilot, Mr. Dalla‑Longa, that C-FTEC was slightly east of the approach as C‑FTEC was descending to Taxiway Charlie, and instructed the pilot to "pull up, go around, turn left".

[15] In the audio recording for the second approach, a pilot from Continental Airlines ("Continental") flying aircraft CO636 also reported a Cessna flying in front of his aircraft, which almost landed on Taxiway Charlie in an unusual air space. When questioned by the Minister, Mr. Lopushinsky indicated that C‑FTEC, after having missed its initial approach and after the ATC had confirmed this with its pilot, was still in the air. The pilot, Mr. Dalla‑Longa, was then instructed by ATC to fly heading 070°, and climb to 7 000 feet ASL. However, on the screen, C‑FTEC did not appear to have turned left to establish the heading of 070° and continued to fly to the west of the runway heading, seemingly turning right to 200° for a brief time, then returning to 070° after reaching the end of the runway area.

[16] The Minister presented an "Area Record Plan for Calgary International Airport" (Exhibit M‑4) to show the aerodrome map for Calgary International Airport. All the aircraft positions on the screen were clearly explained by Mr. Lopushinsky and were understood by both Mr. Dalla‑Longa and the Minister.

[17] The audio recording during C-FTEC's second approach indicates a position hand-off took place in the Control Tower. Specifically, Chris McDonald, the first tower controller who communicated with Mr. Dalla-Longa, handed his position off to Shawn Regamey, then Mr. McDonald went on a break. All of the radio frequencies and all of their telephone conversations were recorded and I have carefully reviewed them. When the pilots of CO636 reported C‑FTEC approaching at a low altitude in an unusual place on Taxiway Charlie, Mr. Regamey, now the tower controller, spoke with the ground controller to avoid a potential conflict with any vehicles or aircraft on Taxiway Charlie.

[18] The Minister presented a "Ground ASDE Second Approach and RAMP Package" (Exhibit M‑5) to indicate the track recording (trail of dots) for C‑FTEC on its second approach to Taxiway Charlie as it crossed Runway 16 and continued its heading west (after the tower controller had instructed Mr. Dalla-Longa to fly to 070° east), then climbed to 7 000 feet ASL for a short while, then turned back to the east to 070° at the end of the area of Runway 16.

[19] The Minister further asked Mr. Lopushinsky to show the Tribunal a comparison of C‑FTEC's flight path on the second approach with other aircraft on the airborne radar. He indicated how the other aircraft maintained a straight approach for the landing while C‑FTEC had a "left‑right, left‑right" glide slope during low altitude on the approach.

[20] Evidence showed that the third approach for C-FTEC was a very straight line and resulted in a successful landing.

[21] Under cross-examination, Mr. Lopushinsky stated that there might have been some deviation in C‑FTEC's recorded groundspeed to within 10 knots and that the altitude number in the screen images is from the transponder in C‑FTEC to the radar site, read by primary and secondary radars.

[22] While cross-examining Mr. Lopushinsky, audio recordings of the first approach indicated that Mr. Dalla‑Longa acknowledged the missed approach instructions from Tower Control; however, Mr. Dalla‑Longa was unable to explain his reasons for apparently flying on a heading of 100°.

[23] During the second approach, there were approximately thirty seconds of delay between the tower controller instructing Mr. Dalla‑Longa to turn onto a new heading and C‑FTEC turning onto 070°. There were no reports of equipment issues inflight, nor any "PAN PAN PAN" calls (international radiotelephony urgency signal), nor any communication regarding equipment malfunctions during the approach. Also, the controller twice reminded Mr. Dalla‑Longa that he was off-course to the east of Runway 16.

[24] Under re-examination, Mr. Lopushinsky was asked to address the image showing C‑FTEC missing the requested altitude of 3 756 feet ASL around half a mile of Runway 16. He stated that if the aircraft altimeter was accurate, then C‑FTEC was 45 feet Above Ground Level ("AGL") when descending over Taxiway Charlie at 3 600 feet ASL whereas the runway is 3 555 fee ASL at threshold.

(ii) May 4, 2010 (Day 2)

[25] On the second day of the Review Hearing, the Minister requested that Mr. Lopushinsky return to the witness stand to act as an expert witness in order to clear up some technical details.

[26] Mr. Lopushinsky confirmed how RADEX works on the screen. The radar blip record, known as the "tag", for C‑FTEC shows "046" with an up‑pointing arrow, meaning 4 600 feet ASL with a climb trend. The speed is rounded up to the nearest 100 knots and the altitude is rounded up or down to the nearest hundredth foot. The altitude information is from the aircraft transponder in conjunction with the encoding altimeter, and is considered accurate within legal tolerances. The speed data is calculated by the radar.

[27] When the radar blip cannot read an area, that area is known as "coasts", shown in blue on the screen. The blip indicates where the radar thinks the aircraft is, but by virtue of its colour lets the viewer know that it is an interpolation and not always an accurate one.

[28] There was no cross‑examination on Mr. Lopushinsky's brief testimony that day.

(iii) May 5, 2010 (Day 3)

[29] Under re-examination by the Minister, Mr. Lopushinsky clarified various technical issues and data with regard to ILS Runway 16 at Calgary International Airport. Mr. Lopushinsky stated that the glide path antenna was located approximately 1 500 to 2 000 feet south of the threshold off of the west side, between Runway 16 and Taxiway Alpha, about 120 meters from the centreline of the runway. A glide path antenna is generally co-located with runway visual range ("RVR") Alpha, so that when a pilot sees the RVR Alpha symbol, it serves as a rough guide as to where the glide path is for that approach.

[30] Mr. Lopushinsky stated that the localizer for Runway 16 is at the opposite end of the runway and that this is a standard for any ILS Runway. The localizer antenna is at the opposite threshold. Mr. Lopushinsky also stated that the decision height of 201 feet AGL for Runway 16 is approximately half a nautical mile back from the runway.

(b) Captain David Skinner

[31] Captain David Skinner has been a Continental pilot for a Boeing B737 for the last five years. Captain Skinner has 25 years of professional pilot experience and has also been a flight engineer on an Airbus A300, a Boeing B747, a co-pilot on a McDonnell Douglas DC‑9, a Boeing B737. He has worked for Continental for 22 years. He was in command of CO636 on February 7, 2010, and witnessed C-FTEC on its second approach to Runway 16 at the Calgary International Airport.

[32] Captain Skinner confirmed that he was holding CO636 at Spot 8 on Taxiway Charlie to go to intersection Charlie 6 to Runway 16 for departure from the Calgary International Airport. When he and his first officer ("F/O") undertook their look-out check to the right, they saw a twin-engine Cessna come out of the clouds and descend to approximately 50 feet AGL in a landing configuration, apparently unaware that the aircraft was on course to land on the Taxiway; Captain Skinner thought the pilot had assumed that it was a runway. The Cessna (understood to be C-FTEC) flew right in front of the nose of CO636; Captain Skinner did not see it climb out again as the Cessna was by then beyond his lateral, visual range. Captain Skinner saw C‑FTEC at a highly irregular altitude such that it was in a severe bank to the right and a severe nose-down. He and his F/O thought that C‑FTEC was about to crash in front of them.

[33] According to Captain Skinner, the weather was at the bare minimum to approach and land. In his opinion, however, the weather conditions were IFR acceptable, although he believed there to be an approximately one hundred‑foot ceiling, such that there was a very low ceiling with just a half-mile of visibility. In technical terms, there was a 2 600‑foot RVR.

[34] The Minister introduced an "Irregularity Report from Continental Airlines" (Exhibit M‑7) and confirmed that the document was written by Captain Skinner. The report was compiled by Captain Skinner; his F/O, Aaron Kunzen, was not directly involved in the preparation of the report. They had, however, extensively discussed the situation and both officers felt they had the same perspective on events.

[35] Under cross-examination, Captain Skinner was asked how he determined that the pilot of C-FTEC might have intended to land on the taxiway. Captain Skinner indicated that in his 25‑plus years of flying experience, to see an aircraft squarely lining up with a surface with its flaps down, whether a taxiway or a runway, at an altitude of just a few feet above the ground, he would say that they were either doing a low pass or landing. As a low pass was not likely in this case, he concluded that the pilot of C-FTEC was trying to land his aircraft. He mentioned that there is an established policy for a normal go-around and thought that the pilot of C-FTEC was either unaware of this, or did not follow it.

(c) First Officer Aaron Kunzen

[36] F/O Aaron Kunzen was the F/O on CO636 on February 7, 2010, at the Calgary International Airport. He has been an F/O with Continental Airlines for four years, since December 2006, and had worked at Continental Express as a captain from 1998 until 2006 before joining Continental Airlines. He has more than 16 years of professional experience as a pilot. He recalled that the weather was bad— 100 feet overcast with freezing fog. The weather conditions were in low IFR and his aircraft needed to do an ILS approach into the airport given the weather conditions.

[37] CO636 had to be de-iced before operating outbound because of the weather; the pilots only had a certain amount of time to get out of the airport due to the de-icing fluid on the aircraft. When CO636 turned right onto Taxiway Charlie, he saw a Twin Cessna aircraft fly across his aircraft's windscreen.

[38] After F/O Kunzen confirmed his aircraft's position using his map and the tarmac signage, he observed that he was at the intersection of Charlie 6 and Charlie and turning northbound. He witnessed C‑FTEC "banking at a 60°, the 45o–60°-degree bank"; C‑FTEC had abnormal pitching and rolling patterns and was too close to the ground. He thought the aircraft was iced up with contamination and was unable to fly and that it was crashing. Afterwards, he saw the aircraft level its wings and continue its descent to land on Taxiway Charlie.

[39] F/O Kunzen testified that he attempted to call Ground Control to advise an air traffic controller of the situation but did not get a response. He then tried to watch what was going on and waited until he could get a word over to Tower Control. He guessed that the visibility was less than half a mile and that C‑FTEC was so low to the ground that if it did not land, it was at least within inches of touching down when he saw the aircraft take off again. If there had been an airliner or another aircraft on that taxiway, there would have been an impact.

[40] When the Minister asked Mr. Lopushinsky to play back the radio communication from the event, F/O Kunzen confirmed it was his voice and that the image on the screen showing the ASDE indicated Mr. Dalla-Longa's aircraft moving at 77 knots and continuing along Taxiway Charlie at 79 knots, 77 knots, 78 knots, 79 knots on the date and time in question.

[41] Under cross-examination, Mr. Dalla‑Longa questioned why the other pilots from WestJet or Air Canada did not see him or report his second approach. F/O Kunzen stated that he could not answer for other pilots and mentioned that it could have simply been the position of the other aircraft.

[42] F/O Kunzen also confirmed CO636's position in that he was able to see any aircraft approaching or landing on Runway 16 and Taxiway Charlie. F/O Kunzen confirmed he saw C‑FTEC fly across his windscreen at 50 feet AGL and mentioned that if C‑FTEC had been lined up on Runway 16, it would have been a lot further away, which concerned him given the distance from the Taxiway to the Runway.

[43] According to F/O Kunzen, the cloud ceiling was 100 feet; Mr. Dalla‑Longa mentioned that the Meteorological Terminal Aviation Routine Weather Report ("METAR") for the day was 300 feet of vertical visibility. When Mr. Dalla‑Longa questioned F/O Kunzen as to whether a problem with the horizontal situation indicator ("HSI") could have affected the approach, specifically problems with full-needle deflection, F/O Kunzen stressed that go-around procedures are established practices and that it is not prudent to continue to land past decision height if a landing is not assured.

[44] F/O Kunzen, under cross-examination, indicated that he thought the event occurred in the morning. During re-examination, the Minister clarified that the alleged infraction occurred at 1:38 p.m. Calgary local time (20:38 Zulu) on February 7, 2010. He also clarified the position of CO636 as holding short for take‑off on Runway 16 at intersection Charlie 6. F/O Kunzen also agreed that the cloud ceiling might have been different from what his aircraft was experiencing, particularly given that METAR information can vary at a large airport such as Calgary International.

[45] During re‑examination, the Minister confirmed with Mr. Lopushinsky that Calgary International Airport is a CAT I approach airport. Mr. Lopushinsky further confirmed that at a CAT I airport, all aircraft approach using the same criteria, such that once pilots reach decision height, if they do not see the approach lights, then they cannot continue their course, and are required to "go around".

(d) Chris McDonald

[46] Chris McDonald has worked for NAV CANADA as an air traffic controller for over 18 years in all tower control positions such as airport, ground, clearance delivery, and apron advisory service. On February 7, 2010, Mr. McDonald was working at the Calgary International Airport's Control Tower. He could not recall the actual time of the event but did recall that it was an IFR day. He received a hand-off from Calgary Terminal on C‑FTEC straight in on Runway 16.

[47] C-FTEC appeared to be lined up on the correct runway so Mr. McDonald gave a landing clearance to Mr. Dalla-Longa after he indicated that he wanted to go to Customs. When the aircraft was at a point about four nautical miles north of the airfield, it appeared to be off‑centre and therefore Mr. McDonald advised Mr. Dalla-Longa to correct his approach, which the pilot did. At a position about half mile north of the airfield, the aircraft was again off-centre. Consequently, Mr. McDonald decided that it was an unstable approach in poor weather and instructed Mr. Dalla-Longa to go around and climb the runway heading to maintain 7 000 feet ASL.

[48] An Air Canada flight was lined up on Runway 10 for departure and Mr. McDonald determined that C‑FTEC was going through the intersection of Runways 10 and 16. He initiated a take‑off clearance for the Air Canada flight from Runway 10. When he noticed on his radar that C‑FTEC appeared to be making a turn to the east, he cancelled the take‑off clearance for Air Canada and enquired from C‑FTEC the details of its heading.

[49] In the audio recording for the approach, we could hear Mr. Dalla-Longa responding to ATC that he was turning to a 163° heading, then Mr. McDonald advising him that his aircraft appeared to be flying an outbound track of 100°. Mr. McDonald then instructed him to continue straight ahead and climb to 7 000 feet ASL. Mr. Dalla‑Longa confirmed he was headed to 100°. Mr. McDonald did not want to get Mr. Dalla-Longa disoriented in the clouds and he had a clear sky in the east; therefore, he instructed him to fly straight on 100° to go around for the second approach.

[50] After Mr. McDonald authorized the overshoot and had a conversation with ATC hotline, he expected C‑FTEC to have reached 4 000 feet ASL. However, it seemed to him that C‑FTEC had quickly descended off centreline. With technical assistance from Mr. Lopushinsky, who used the radar diagrams, it was shown that C‑FTEC was at 3 700 feet ASL at 80 knots and still in descent. Mr. McDonald stated that this was inconsistent with what he had issued to C‑FTEC a few seconds prior.

[51] During re-examination, the Minister asked Mr. McDonald whether Mr. Dalla‑Longa complied with his initial missed approach instructions, and with the second set of instructions to fly on a 100° heading. Mr. McDonald testified that the pilot did not follow his first instructions to fly at a heading of 163° but did comply with the second set of instructions to fly at a 100° heading.

[52] During his re‑cross examination of Mr. McDonald, Mr. Dalla‑Longa asked Mr. Lopushinsky to play back the audio recording in order to listen to the communication between Mr. McDonald and himself. He pointed out that he acknowledged the overshoot instructions for the first approach. The instruction to C-FTEC was to climb to 7 000 feet ASL; the recording indicated that Mr. Dalla‑Longa repeated the instruction to climb to 7 000 feet ASL.

(e) Shawn Regamey

[53] Shawn Regamey has been an air traffic controller for eight and half years, and has been based at the Calgary International Airport for approximately three years. He confirmed that he was on duty in the Control Tower on February 7, 2010, starting at 1:30 p.m. (20:30 Zulu).

[54] Having taken over as tower controller from Mr. McDonald, Mr. Regamey was told that C‑FTEC had had issues with its first approach and with the missed approach instructions; therefore, Mr. McDonald advised Mr. Regamey to be particularly vigilant in dealing with C‑FTEC.

[55] When C-FTEC radioed the Tower at about ten nautical miles on his second approach, Mr. Regamey gave Mr. Dalla‑Longa standard instructions, such that the RVR at the airport at that time was 3 000 to 4 000 feet ASL. Mr. Regamey asked the pilot to confirm that the field was in sight, which was acknowledged by the pilot.

[56] Shortly thereafter, Mr. Regamey noticed C‑FTEC was flying abnormally compared to the other aircraft and that its position was a little further west on the approach; accordingly, he reminded the pilot that he was off the approach, positing to himself that maybe there was an equipment problem. He advised Mr. Dalla-Longa a second time that C‑FTEC was slightly east of the approach when the aircraft was on about a quarter‑mile final.

[57] Mr. Regamey recalled that C-FTEC appeared to be correcting itself on its short final when it veered hard to the left and did a sharp turn. Mr. Regamey was not sure the "radar" had recognized C‑FTEC because it was at a low altitude. However, when he checked the ASDE, the ground radar, it had assigned a tag to a target going 77 knots along Taxiway Charlie. As ground traffic does not perform taxi maneuvers at the airport at 77 knots without Tower Control knowing about it, he assumed that it was C-FTEC because the target actually showed a speed. An Air Canada flight's speed, sitting on Taxiway Charlie waiting for departure, read "000".

[58] Seeing C-FTEC's speed, he anticipated that its pilot would radio for either an overshoot or to land the aircraft. At the last second, he saw the aircraft jump then heard the commotion with ground controller Todd Gabel who told him that Continental's pilots had seen C‑FTEC flying along Taxiway Charlie. The audio recording indicates that Mr. Regamey did instruct Mr. Dalla‑Longa to report the field in sight after the landing clearance had been issued and Mr. Dalla‑Longa replied back: "Report the field in sight, Tango Echo Charlie". He also gave the missed approach instruction to pull up and go around, turn left, fly to 070° and climb to 7 000 feet ASL. The pilot first acknowledged the instruction by responding that he was turning to 070° and climbing to 5 000 feet ASL. When he was corrected by Mr. Regamey that the flight level was 7 000 feet, Mr. Dalla‑Longa acknowledged 5 000 feet up to 7 000 feet. Mr. Regamey confirmed that the voice on the radio transmission was his.

[59] Mr. Regamey then gave the departure tower controller a "heads-up" that C-FTEC was going to go around. Such was the seriousness of this incident that Mr. Regamey subsequently asked to be relieved of duty for the remainder of his shift and took a further two additional days off work in response to the high stress level that this situation caused him.

[60] Under cross‑examination, Mr. Dalla‑Longa asked that Mr. Regamey revisit the airborne radar playback on the screen in order to be able to answer his questions. Mr. Regamey indicated that he would not have known when the pilot of C‑FTEC powered-up the missed approach for the go around until it was confirmed by the pilot. Mr. Regamey did agree that Mr. Dalla‑Longa acknowledged his missed approach instruction to turn at 070°, within a period of time that did follow his instruction.

[61] Under re-examination, Mr. Regamey confirmed that the Missed Approach Point ("MAP") is half a mile from the threshold of Runway 16, and that if a pilot is having trouble either flying or using the aircraft's instruments he initiates a go-around, subject to a confirmation from Tower Control.

[62] Mr. Regamey also confirmed that the Calgary International Airport's Control Tower is located at the west of Runway 16 at 3 710 feet ASL, which is around 200 feet AGL. Mr. Regamey also stated that he would not want people flying around 50 feet AGL anywhere near the Control Tower. The target (C-FTEC's tag) on the screen showed that the aircraft descended to 3 600 feet ASL (about 45 feet AGL), then climbed to 3 800 feet ASL after approximately 36 seconds. The Minister asked Mr. Regamey about his instructions to Mr. Dalla‑Longa for the second missed approach clearance, enquiring whether he felt that Mr. Dalla‑Longa complied with the instructions within a reasonable timeframe. The response from Mr. Regamey was that the pilot did comply, but that it took quite a while.

(f) Todd Gabel

[63] Todd Gabel has been working as a NAV CANADA air traffic controller at the Calgary International Airport since 1989. He was on duty at the time of the alleged contraventions onFebruary 7, 2010, having started his evening shift at 1:30 p.m. He was on Ground Control on the day in question.

[64] Mr. Gabel testified that the weather was not good and that only two runways were active: Runways 16 and 10. He was assisting two aircraft: a Continental flight and a WestJet flight. One of the Continental pilots radioed to say that a Cessna had flown on top of Taxiway Charlie. A few seconds later, Mr. Gabel saw the Cessna show up on the ASDE, whereupon he shouted over to Tower Control through radio that C-FTEC was over top of Taxiway Charlie; the Continental pilot reported that he had a near miss with the errant C‑FTEC. Mr. Gabel discussed the matter further with Mr. Regamey, the tower controller. Mr. Regamey asked him to make sure that no other aircraft were on Taxiway Charlie because it seemed that C‑FTEC was going to land on Taxiway Charlie. Mr. Regamey indicated that it appeared no other aircraft were on Taxiway Charlie; Mr. Gabel stated that he believes Mr. Regamey also asked the pilot of C‑FTEC if he was in the air or on the ground at that point.

[65] Mr. Gabel also asked the Continental pilot if the errant aircraft had landed. The Continental pilot replied that he was not sure if it had touched down or not, but if not, it was very close to the ground.

[66] On the airport diagram (a copy similar to but larger than Exhibit M‑4 placed on the board) at the Hearing, Mr. Gabel clearly pointed out where CO636 was on Charlie 6 and where the WestJet flight was on Charlie 8. Mr. Gabel testified that if CO636 had arrived at Taxiway Charlie a minute earlier it would have been hit by C‑FTEC. While playing back the audio recording, Mr. Gabel confirmed to the Minister that the voice on the tape is his, and that he was providing different clearances to different aircraft. Mr. Gabel stated that he did not come back to work until the next day due to the emotional stress of the near collision.

[67] Under cross‑examination, Mr. Gabel stated that he would not have been as upset in the case of an overshoot, but that the seriousness of the incident and the potential for a considerable loss of life had shaken him.

(g) Inspector Gerrit Vermeer

[68] Inspector Gerrit Vermeer has been a civil aviation safety inspector with Transport Canada in Edmonton for three years. One of his primary duties is the investigation of alleged infractions of the CARs and the Act. He confirmed that he met Mr. Dalla‑Longa during the course of his investigation.

[69] It is Inspector Vermeer's daily practice to review the Civil Aviation Daily Occurrence Reporting System ("CADORS") reports, which are recorded by Transport Canada and then issued to inspectors. On February 8, 2010, he became aware of the incident involving C‑FTEC at the Calgary International Airport.

[70] Shortly thereafter, he was assigned to investigate whether the pilot of C‑FTEC had violated the CARs. When he found there were grounds to warrant further review, he requested NAV CANADA secure the recordings of both the radar and the audio files for the incident from Tower and Ground Control communications at the Calgary International Airport. After completing his investigation, he sent a letter to Mr. Dalla‑Longa addressing the provision of the CARs that had potentially been violated. He identified the particulars of the incident including the date, time and place. He also issued a statutory caution to Mr. Dalla‑Longa advising him of his rights according to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ("Charter"), including the right to counsel (section 10). He further cautioned that anything said (in writing or verbally) could be used as evidence against him.

[71] Mr. Dalla‑Longa was given a 30-day window to respond to the allegations. During that time, Inspector Vermeer began to gather information and communicate with CO636's crew and continued his discussions with NAV CANADA to further understand the situation.

[72] A month later, Mr. Dalla‑Longa contacted Inspector Vermeer by telephone; at the beginning of the telephone conversation Inspector Vermeer again asked Mr. Dalla-Longa if he understood his Charter rights and the statutory caution in the letter. Mr. Dalla-Longa confirmed that he was aware of his rights.

[73] Mr. Dalla-Longa explained to him that he undertook a return trip from Kalispell, Montana to the Calgary International Airport on February 7, 2010 with a full load of passengers. He realized that the weather was at or below the minimums required, so he decided to delay his return departure for about 45 minutes to an hour. Tailwinds were better than expected, however, and they arrived in the Calgary, Alberta area before the weather had improved.

[74] During his first landing approach, Mr. Dalla‑Longa told Inspector Vermeer that when he arrived in Calgary, the approach fix was to the south of Calgary and C‑FTEC was vectored onto ILS Runway 16 at the Calgary International Airport. He had difficulty getting onto the glide slope and had equipment issues. Furthermore, at some point, Mr. Dalla‑Longa decided that he was near the end of Runway 16 and would go around, which he did. Yet when Inspector Vermeer reviewed the tapes for the first approach, he noted that during the process, C‑FTEC was advised by Tower Control to initiate a missed approach procedure, fly runway heading 163º, climb to 7 000 feet ASL, which was acknowledged by Mr. Dalla‑Longa. During cross‑examination, there were questions concerning "snag" not being recorded in C‑FTEC's Aircraft Journey Log (as it related to Mr. Dalla‑Longa's claim that he had equipment issues), which was introduced and designated as "Aircraft Journey Log Copy for C‑FTEC" (Exhibit M‑9).

(2) Applicant

(a) Michael Kardash

[75] Michael Kardash was one of the passengers on C-FTEC on February 7, 2010, on a flight from Kalispell, Montana to the Calgary International Airport. Mr. Kardash is also a visual flight rules ("VFR")‑rated pilot with approximately 120 flying hours; he had flown with Mr. Dalla‑Longa on roughly five occasions prior to the incident.

[76] Mr. Kardash recalled that Mr. Dalla-Longa had told him that the weather in Calgary was not particularly good and that there was about 800 feet of visibility on the runway(s). Mr. Dalla‑Longa introduced Mr. Vermeer's notes on the conversation with Mr. Kardash (Exhibit A‑1) as evidence.

[77] Mr. Kardash felt that Mr. Dalla-Longa's demeanour was normal for him and indicated that he himself never felt uncomfortable. Mr. Kardash described the first approach as decent and indicated that he helped Mr. Dalla‑Longa by looking out for the runway; he did not see the runway, however. He had no idea where he was visually and was unable to find a good reference point on the ground.

[78] During the first approach, Mr. Kardash did not pay much attention to the instruments. On the second and the third approaches, however, he kept his eyes on the instruments. He also testified that he did not recall any conversation between Mr. Dalla‑Longa and ATC during the initial approach.

[79] Mr. Kardash testified that he could not recall the radio conversation from the air traffic controllers regarding the "go around" instruction, nor any conversation between Mr. Dalla‑Longa and ATC during the initial approach and was unsure of the heading of C‑FTEC during the initial approach as he did not look at the instruments. On the second and third approaches, however, he did keep his eyes on the instruments.

[80] Mr. Kardash stated that the aircraft rose very quickly during the first missed approach but he did not know the rate of climb.

[81] During the second approach, Mr. Kardash stated that he did not notice the instruments at all before coming out from cloud. After coming into the final approach, he tried to help to find the runway by visual scanning. He also started to read the altimeter, although he did not recall seeing the altimeter drop below 4 000 feet.

[82] After he saw the ground on the second approach, he did not watch the altimeter; therefore, he was not sure how low the aircraft was before it pulled up for a go around. When he noticed the ground was not the runway, he started to say so but Mr. Dalla‑Longa had powered up and pulled up the aircraft back into cloud. He said that it took around two to three seconds to climb again. He believes they were climbing because he could feel the pressure on the seat of the aircraft.

[83] Under cross‑examination, Mr. Kardash agreed that he had taken Mr. Dalla-Longa's word that the autopilot was giving him problems. As stated previously, Mr. Kardash is a VFR pilot and he indicated that as he is not an IFR pilot, he did not question Mr. Dalla‑Longa.

(b) Fred Warnke

[84] Fred Warnke is an avionics technician and the owner of Peace Hills Aviation Ltd., an Approved Maintenance Organization ("AMO") that specializes in avionics maintenance, including navigation systems, communication systems and autopilot systems; his business is based in Edmonton, Alberta. Mr. Warnke has been a licensed aircraft maintenance engineer ("AME") for 20 years, and has 30 years of experience in the avionics field. Generally, his company handles single and twin-engine aircraft, pistons, turbines and jets primarily for private owners, commuters and corporate customers. He stated that his reputation is excellent in the industry, and that he is monitored by Transport Canada and has trained extensively within their AMO program.

[85] Mr. Dalla‑Longa sought to introduce Mr. Warnke as an expert witness. Mr. Warnke did not prepare his resume for the Hearing. Mr. Warnke indicated that during his first 10 years in the avionics industry there was no requirement for an avionics licence; he was one of the first individuals to obtain an avionics licence in Canada. He took electrical engineering at the University of Alberta and he holds an AME designation. His company's AMO designation covers avionics, instruments and components but not engine replacements. He is the principal of the company and employs five additional staff. With no objection from the Minister, I granted Mr. Warnke status as an expert witness.

[86] Mr. Warnke received a telephone call from someone he cannot recall regarding the C‑FTEC incident of February 7, 2010. He subsequently examined C‑FTEC and found that the autopilot system did not respond properly to altitude holds or navigation commands. When he checked more thoroughly, he found that the Cannon connector in the back of the autopilot flight instrument was not secure. It was "half on, half off", so he secured it and retested the autopilot system and found that it worked properly on the ground. Mr. Warnke entered this defect into C‑FTEC's Aircraft Journey Log. Through Mr. Warnke, Mr. Dalla‑Longa introduced the work order for this operation designated "Peace Hills Aviation Ltd. Work Order" (Exhibit A‑2).

[87] Mr. Warnke indicated that the flight director's performance and the autopilot itself would both have been affected prior to the repair work on the Cannon connector and that it would not necessarily have been immediately obvious to Mr. Dalla‑Longa inflight that there was a problem. The autopilot malfunction would have potentially taken the aircraft in the wrong direction, however, and also affected climbing, and/or descending, and/or turning to port or starboard.

[88] Mr. Warnke also stated that the autopilot malfunction would not have affected the HSI and that even though C‑FTEC's HSI had been sent to his workshop for repair three times before the incident, he felt that they were finally able to identify the problem and repair the HSI by replacing its bearings.

[89] Mr. Warnke stated that he opened the work order on February 19, 2010, and inspected the instruments on February 23, 2010 (Exhibit A‑2). He recalled that Mr. Dalla-Longa contacted him prior to May 22, 2010, and mentioned that the autopilot did not maintain NAV course, although it appeared to be working properly with respect to heading modes. Accordingly, he and Mr. Dalla‑Longa started to focus their attention on the HSI.

[90] In May 2010, Mr. Warnke checked the autopilot container while C‑FTEC was grounded and found that while the left and right deviation was working correctly, the course pointer had no output; these are both required for the NAV or ILS approach modes. Both signals are combined to give a pilot a proper intercept and line on an approach. Mr. Warnke stated that with the course pointer missing, the autopilot would not do an ILS approach. He stated that if the HSI indicates that the aircraft is centered on track, the aircraft is probably centered on track but the aircraft heading could be incorrect. Mr. Warnke pointed out that a course pointer failure is strictly related to the autopilot and if a pilot were to hand-fly without the autopilot, the HSI system would operate normally. Also in May 2010, when Mr. Warnke checked the HSI, he found that it was exhibiting a hard failure rather than an intermittent one, which he had assessed before.

[91] Mr. Warnke explained that as directional gyros ("DG") age, their bearings start to deteriorate and cause friction (called ‘precession'), which is a tendency to drift caused by the spinning of the gyro. Normally this drift is small and is correctable by the internal circuits of the unit but as the bearings wear, the friction becomes higher and measurement precision becomes a bigger problem. This instrument then starts to become intermittent, which increases until a failure is noticed by the operator. When asked by Mr. Dalla‑Longa if it could have therefore created the problems that Mr. Dalla‑Longa claims he faced during the incident, Mr. Warnke indicated that it could have.

[92] The same bearings problem could have also affected the ILS approaches and the HSI because the October 28 log from the HSI repair note reads "head still deviating" (Exhibit A‑3). Mr. Warnke sent the HSI to his shop for repairs twice, then in October he sent it to Bristow Instruments (1977) Ltd. and had the bearings replaced and the HSI overhauled.

[93] Under cross‑examination, Mr. Warnke stated that there is a manual disconnect for the autopilot and that if the pilot has a problem with the autopilot, the remedy is to disconnect the autopilot and hand-fly the aircraft. He further testified that if the autopilot Cannon connector is loose, it nevertheless does not affect the compass, altimeter, very high‑frequency omnidirectional range (VOR) navigation system, localizer or the HSI.

[94] There was also a DG located on the right‑hand side of the co‑pilot which was not removed for a service check on February 23, 2010.

[95] When the Minister showed Mr. Warnke the map in the Hearing room (a poster sized map of Calgary International Airport placed on a notice board, similar to Exhibit M‑4) for ILS or non‑directional beacon ("NDB") Runway 16 and indicated the different positions for C‑FTEC during its approaches, Mr. Warnke explained when and where the localizer needle on the HSI would have been centered if the aircraft had been flying at the indicated positions on the map. He also indicated that the localizer operates with a beam like an ILS approach. The VOR is a general heading taken from the VOR beam somewhere such as the runway.

[96] Also, if the HSI is not functioning properly, a 30° bank back and forth would increase the G-forces, increase the precession problem and increase the "stickiness" of the equipment.

[97] Under cross‑examination, Mr.  Warnke confirmed that the altimeter would work properly even if the autopilot flight director failed, because it is an independent system. The autopilot has its own altitude sensing device for altitude hold; he confirmed that C‑FTEC has this type of equipment. Mr. Warnke also confirmed that if the aircraft was on the centerline, regardless of any other failures, the HSI bearings would be locked and the localizer needle would show the centerline.

[98] The disconnect function for the autopilot has a control on the control wheel and on the autopilot itself. Furthermore, if the circuit breaker for the autopilot is tripped, it automatically disconnects the autopilot operation. In such cases, the "back-up system" is the NAV2 radio and the DG on the right side.

[99] During re‑examination, Mr. Dalla‑Longa introduced into evidence an invoice copy designated as "Peace Hills Aviation Ltd. Invoice 2341" (Exhibit A‑4(A)). Mr. Warnke stated that the Invoice was related to the autopilot's "off light" failure, which means that it did not show when the system was disengaged manually or automatically.

[100] During re-cross examination, Mr. Warnke was asked the following by the Minister: even if the autopilot's Cannon connecter was malfunctioning or even if the HSI was unserviceable, when C‑FTEC crossed a runway when flying at 3762 feet ASL, would this have prevented the pilot from deciding that he was at decision height and had to go around? He responded that it would not have.

[101] Upon reviewing the Court Reporter's notes for Mr. Warnke's testimony, the Minister indicated that he personally found Mr. Warnke's answers to be inconsistent with respect to the HSI service check on February 23, 2010. Referring to the Court Reporter's notes, he reconfirmed that Mr. Warnke stated that he checked the HSI on February 23, 2010, and that it appeared to be working correctly at that time. Yet when Mr. Dalla‑Longa re-directed and confirmed with Mr. Warnke that "the problems with the HSI, in all likelihood, existed on February 7, 2010, some of them," Mr. Warnke replied: "I believe so, yes."

[102] With respect to the DG on the right-hand side, Mr. Warnke stated that he did not examine it on February 23, 2010, and that he could not recall details about the later changing of the DG in Calgary. Mr. Warnke seemed to be unaware of any history of defects concerning the HSI, the autopilot system, the DG or the altimeter encoding system for C‑FTEC prior to February 7, 2010.

[103] Under re-examination by Mr. Dalla‑Longa, Mr. Warnke indicated that during the annual check, the DG was not checked and that the DG would normally be only checked if and when an issue arose with it.

[104] Under recross examination, Mr. Warnke indicated that a transponder, encoding altimeter and an altimeter check for an IFR-rated aircraft is not done annually, but bi-annually.

(c) Stephen Kennedy

[105] Stephen Kennedy is a class 2 flight instructor with more than six years of experience. He started flying in 1997 and holds a multi-IFR endorsement rating. He currently flies IFR at least 20 to 30 hours a month and holds an airline transport pilot licence ("ATPL"). He has over 3 000 total flying hours, 900 hours as pilot‑in‑command ("PIC"), 300 hours in instrument meteorological conditions ("IMC"), and 300 hours on a Cessna 414. I did not allow Mr. Kennedy to act as an expert witness. Mr. Kennedy has only approximately 300 flying hours in IMC and less than 300 hours on the Cessna 414. Although we value his total of 3 000 hours in flying experience, I cannot be convinced to qualify him as an expert witness in this case.

[106] Mr. Kennedy stated that, prior to the incident, he had twice conducted Mr. Dalla-Longa's IFR renewal and had appraised Mr. Dalla‑Longa as above average in his attitude toward safety, and someone who follows rules and procedures; he has never had an issue trying to prevent him from doing something unsafe. He agreed that Mr. Dalla‑Longa is good at asking questions when he does not understand something while they are flying together.

[107] Under cross‑examination, Mr. Kennedy testified that he has known Mr. Dalla‑Longa for four years and over the course of the last year, he had probably flown with Mr. Dalla‑Longa once a month.

[108] The Minister showed Mr. Kennedy the approach plate for ILS Runway 16 at Calgary International Airport. Mr. Kennedy stated the minimum descent there is up to 385 feet AGL and the decision height is 201 feet and definitely not at the threshold. For a non-precision approach, the limits are higher and aircraft cannot go past 300 feet AGL. Mr. Kennedy stated that, in his opinion, the decision height is not a half-a-mile beyond the threshold. He stated that for Runway 16 when a break-out occurs at 200 feet, the aircraft is probably closer than 200 feet to the actual threshold itself. Mr. Kennedy explained that the glide slope puts the aircraft at the thousand‑foot markers and continuing. The 3° glide path takes aircraft to the thousand‑foot marker, not the threshold, and therefore inside the half-mile when an aircraft breaks out for Runway 16 at the Calgary International Airport. However, he also stated that he has never exactly looked at the details of the Calgary International Airport, but the decision height is definitely inside half a mile, not half a mile beyond the aerodrome threshold.

[109] Mr. Kennedy confirmed the procedure at decision height, such that if a pilot does not see anything he should go around. It would be a major error if a pilot did not pull up at decision height and initiate a go-around procedure.

[110] The Minister also questioned Mr. Kennedy regarding the needle deflection on the VOR or the localizer when flying down Taxiway Charlie. Mr. Kennedy stated that the normal procedure for an overshoot of Runway 16 at the Calgary International Airport would be to climb to 7 000 feet ASL and follow a 163° runway heading.

[111] The Minister asked Mr. Kennedy some questions about the localizer needle when flying over Taxiway Charlie. Mr. Kennedy explained that the localizer needles are on the far end of Runway 16 at the Calgary International Airport and therefore an aircraft landing on Runway 16 is still 12 000 feet from those needles. The localizer needles are not that accurate that far back. When an aircraft is coming down the approach, it is getting nearer to the antennae of the localizer; there are three antennae at the end of Runway 16. When an aircraft gets closer to those antennae, the chance for error decreases and the pilot actually flies more precisely. The problem is that the aircraft is still not "dead on" because the runway is long enough for 12 000 feet. On shorter runways, an aircraft is even closer in because it is closer to the antennae. However, Mr. Kennedy has no idea how far the localizer needles need to be off to get a full deflection at 12 000 feet. He stated that he would not be quite sure unless he was to go fly it and find out.

[112] Under cross‑examination, Mr. Kennedy stated that he had recommended Mr. Dalla‑Longa for further IFR flight training because of the February 7, 2010 incident (at which time Mr. Dalla‑Longa's IFR rating was cancelled). Mr. Kennedy recommends 20.1 hours of training on basic altitude movements under the hood, including rated climbs, descents, turns as well as partial panel (altitude indicator failures, holds and approaches).

[113] The first IFR flight test for Mr. Dalla-Longa was unsuccessful, but he later passed one after he cleared up the communication issues he was having with the controller's requests.

[114] Mr. Kennedy confirmed that the primary instruments during an ILS approach are the altimeter and radar altimeter. He also stated that if he was flying into the Calgary International Airport on ILS Runway 16 with 200 feet overcast and 2 600 feet RVR, with the glide slope below him and the localizer to the right of him in a non-stabilized approach, his reaction would be to power up and go around.

[115] Under re-examination, Mr. Kennedy agreed that Mr. Dalla‑Longa is the type of pilot who would ask questions if he did not know what procedure to follow.

(d) Damiano Dalla-Longa

[116] Mr. Dalla-Longa was the PIC of C‑FTEC on February 7, 2010, as it was coming in for a landing at the Calgary International Airport.

[117] On February 7, 2010, he planned a flight from Kalispell, Montana to Calgary International Airport. This was a route that he had flown at least 30 times previously. This flight had a full load of passengers; therefore, he was very conscious of weight and balance. Under oath, he stated that he has never flown over weight.

[118] He checked the weather report before leaving Kalispell, Montana, and learned that the weather at that time was showing a cloud ceiling of 300 feet, half a mile of visibility, with 200 feet being the minimum. He knew that he had never flown into this kind of weather condition alone before. There was a window of time to fly to Calgary and he recalled that, maybe at 2:00 p.m. local time (21:00 Zulu), the cloud ceiling might have been 600 feet at a mile and a half and, as he had never dealt with such weather conditions before, he waited in Kalispell and due to the weather conditions, delayed his departure for Calgary International Airport.

[119] Later, Mr. Dalla-Longa checked with his friends about the weather at the Calgary International Airport and he believed there was a window coming up in about three hours. He recalled that he had delayed his planned departure by around 45 minutes and had his fuel planned for an alternative airport in Lethbridge, Alberta, and that he had lots of fuel to get there, all within the requirements. He also had Medicine Hat, Alberta, in mind as the weather there was even better.

[120] On the first approach to Calgary International Airport, he was still above the cloud level at 5 000 feet plus ASL. Shortly thereafter, he realized that the aircraft was not descending the way he wanted. This had happened to him before because he had previously pushed the altitude hold button on the autopilot by accident. After he checked the altitude hold button he disengaged the autopilot, pushing the button on the left-hand side, and then re-engaged the heading selector button. He also noticed that the aircraft was slightly east of the threshold of Runway 16, the glide slope in total IMC.

[121] He was aware that he was flying above the glide slope and that he would encounter the MAP; he also testified that he knew that the Calgary International Airport had a long runway; he still felt, however, that something was not right with the autopilot on C‑FTEC at that time. He never saw the ground and never got down to 200 feet AGL when he started his first approach. He was thinking that maybe he had done something wrong and had had his head down to check, at which time he received an instruction from the ATC to fly runway heading 7 000 feet ASL.

[122] He was somewhat confused by the situation, but noticed that the heading was "10, 110" and that he was ready to swing back over to 163°. By that time, ATC had come on the radio and asked, "are you at 163?" He replied, "turning to 163".

[123] He broke out of the clouds and contacted Departure on the radio to authorize a second approach and headed to 340° to switch over to Arrival, then started his normal landing procedures, but he was still confused by what had gone wrong with the first missed approach. During the second approach, he stated that he got a better altitude; he then confirmed with Tower Control that he had the autopilot coupled and was proceeding to his landing.

[124] He asked fellow pilot Mr. Kardash to assist him by letting him know when the altitude had reached 3 800 feet ASL, and to verbally confirm when he was able to see the ground. Mr. Dalla‑Longa was focused on the landing, the glide slope was coming down better and he had set the radar altimeter to 250 feet AGL.

[125] Mr. Dalla-Longa admitted that he made some mistakes, but affirmed that he was under a lot of pressure at the time. Mr. Dalla‑Longa stated that his evidence was, at times, at variance from Mr. Kardash's testimony. For example, Mr. Dalla‑Longa testified that he went down the runway a little bit and started to lose altitude, but he does not agree he was as low as two or five feet AGL as the Continental pilots testified. He then got the flaps out, gears out and got the power back and got ready to get out of the situation. He does not know where the "wild turns" that were mentioned came from because, according to his calculations and the weight allowances for C‑FTEC found in its Pilot Operating Handbook ("POH"), he thought the aircraft would have stalled.

[126] As he was going down the runway and powering up, he knew about the decision height and the risks of stalling. He knew there was no flat spot on the precision ILS approach. C‑FTEC was flying at 80 knots at that moment. Mr. Dalla‑Longa was familiar with the field and noticed that he was off to the right-hand side; he would not pull up in such a circumstance in case the aircraft were to stall. His quick decision was to get the speed up, gear up and put the flaps up slowly in order to avoid losing lift. Mr. Dalla‑Longa stated that he should not have let his speed drop so low. He noticed that there was no full deflection on the aircraft's instruments, but did notice that his aircraft's global positioning system ("GPS") indicated the runway was not on his current approach.

[127] Mr. Dalla-Longa stated that he did not see any other aircraft, only the runway lights. He agreed in hindsight that CO636 was there but he did not see it at the time. He knew that he was climbing over the east of Runway 16 so he started heading east when he received the ATC's instructions to "pull up and go around." Shortly thereafter, the ATC asked him to confirm whether he was still in the air, then instructed him to fly 070° up to 7 000 feet ASL. He then "repeated it, 070 up to 5 000" and then he adjusted the altitude back to 7 000 feet and turned left to follow the instructions for the missed approach.

[128] He had sufficient fuel on C‑FTEC and could have diverted it to Lethbridge, Alberta, but he suspected there was something wrong with the HSI. He then decided to do another approach.

[129] For the third approach, Mr. Dalla‑Longa assigned Mr. Kardash as a backup to read out headings at various points, while Mr. Dalla‑Longa manually flew C-FTEC to land at the Calgary International Airport. This time, he did not trust the autopilot or the HSI; his third approach was successful, but Mr. Dalla‑Longa remained concerned about the previous two missed approaches.

[130] Mr. Dalla-Longa stressed his training and also confirmed the series of equipment repairs as described at the Hearing. He stated that he practiced a lot of ILS training (even voluntarily going to SimCom in the United States of America for simulator training while his IFR rating was cancelled.) He got his IFR rating back on May 26, 2010, and on July 27, 2010, he received the Suspension Notice from Transport Canada for "another" 120‑day suspension.

[131] Mr. Dalla-Longa did not agree with Transport Canada's decision, and he filed a Request for Review. He stressed again that he had an HSI problem; he never saw the ground due to the autopilot problem during his approaches. He was upset in reading Inspector Vermeer's notes, specifically where they stated that: "[i]t appears Mr. Dalla-Longa has got his own ILS procedures." He emphasized that one of the things that he has learned in his training is "aviate, navigate and communicate."

[132] He also stressed that during the second approach, as he came to the decision height, his speed was down and that, if he had pulled up, there would have been a good chance that the aircraft would have stalled and he would have been in a dangerous situation.

[133] Mr. Dalla-Longa stated that he realizes that he violated some of the CARs because he did not go up right away and descended below decision height; however, he does not think the charges in the Suspension Notice are reasonable in light of the full circumstances.

[134] Mr. Dalla-Longa stated that he felt there were a number of inaccuracies in the various reports and that he was also facing "double jeopardy."

[135] Under cross‑examination, Mr. Dalla‑Longa stated that his first approach on February 7, 2010, was under very bad weather conditions given that he is a single-engine pilot with five years of IFR rating experience. He recalled that he has approximately 200 hours total IMC flying time. Mr. Dalla-Longa admitted that his IFR rating has some personal limits.

[136] The Minister asked Mr. Dalla-Longa if he had considered his personal limitations in such bad weather and Mr. Dalla‑Longa admitted that he was concerned, such that while he was within his personal limitations, his decision to land at Calgary International Airport instead of the alternative airports at Lethbridge or Medicine Hat, Alberta might not have been the right one.

[137] When the Minister asked Mr. Dalla‑Longa about the tolerance limit on the aircraft altimeter for the departure setting, Mr. Dalla-Longa stated that he could not remember the actual limit.

[138] The Minister discussed the first approach with Mr. Dalla‑Longa, who stated that he was aware that he was flying above the glide slope and that he had an equipment issue with the autopilot, but felt he had made the right decision at the time. The Minister pointed out that the radar recording showed that C-FTEC had flown below 200 feet AGL on the first approach, but Mr. Dalla‑Longa did not concur and stated that he did not get below 200 feet. The Minister reminded him that Mr. Kardash testified that he himself did not look at the altimeter during the first approach so could not corroborate Mr. Dalla‑Longa's testimony. Mr. Dalla‑Longa still felt that he was correct and did not fly below 200 feet during his first approach.

[139] Mr. Dalla‑Longa restated that he was above 200 feet, not at decision height, and had passed the MAP. He was struggling with some instruments so he went past the MAP and did not fully realize to what extent he had passed the MAP.

[140] Mr. Dalla‑Longa stated that according to the POH recommended airspeed to fly an ILS approach, the configuration is "3° degrees, 120, 130 [knots]." He admitted he was flying slower than he should have been during the second approach and probably going 93 knots due to 10 knots of headwind. Mr. Dalla‑Longa explained that he was descending, had got the flaps out and was landing while trying to keep 110 knots, and that the error allowance is for 10 knots and he was flying at 90 knots.

[141] Mr. Dalla-Longa stated that he felt he had appropriately completed his due diligence, although in hindsight he did perhaps not do quite enough.

B. Penalty Notice – TATC File No.: W‑3709-33

(1) Minister

(a) Gerrit Vermeer

[142] Sometime after February, Inspector Vermeer checked the Aircraft Journey Log for C‑FTEC with respect to the incident on February 7, 2010. He found therein what he considered to be evidence of a violation of the CARs.

[143] As Mr. Dalla‑Longa had indicated that he might have had equipment problems that day, Inspector Vermeer looked at the Aircraft Journey Log to see if those problems had been written in it, but he did not find them. Inspector Vermeer started paging back to check for any discrepancies in the Aircraft Journey Log, which is his normal procedure.

[144] Inspector Vermeer brought certified copies of the Aircraft Journey Log for C‑FTEC with him; the Minister introduced the "Aircraft Journey Logbook Record for Aircraft C-FTEC" (Exhibit M‑1).

[145] After examining the Aircraft Journey Log, Inspector Vermeer had a conversation with Mr. Dalla‑Longa during which he noted, among other things, that when he went back three flights, he noticed an entry on December 24, 2009 regarding "flap motor popping circuit breaker, flap motor replaced on flight deck T/L [Technical Log] 8370‑47NP." Inspector Vermeer stated that whoever was responsible for the flight on December 6, 2009 had been writing information in the Aircraft Journey Log, but for whatever reason had chosen not to write this flap motor circuit breaker issue in the defect section.

[146] These entries in the Aircraft Journey Log indicated the recorded information that was important in the signatory's mind, but this flap motor circuit breaker issue, it appeared, had not been written by the AME who had done the repair and no record of "snag" had been entered.

[147] When Inspector Vermeer scrolled through the Aircraft Journey Log again (Exhibit M‑1, Penalty Notice) he found an entry on August 13, 2009 stating: "Pilot report landing gear takes two tries to lock up, found nose gear doors tight, adjusted and swung gear successfully multiple cycles" as well as other information. This maintenance entry was made by an AME who entered it into the Aircraft Journey Log; the pilot had verbally communicated to the AME that there was a problem with C‑FTEC's landing gear.

[148] Referring to the two previous entries, Inspector Vermeer indicated that the aircraft had flown from Springbank Airport in Calgary to Kalispell, Montana, stayed a day or two, then flew back to Calgary. There was no defect entry made in the Aircraft Journey Log for this journey.

[149] Inspector Vermeer also found one entry on June 18, 2009, which stated that en route to Calgary International Airport, a light was reported as staying on and the aircraft required two tries to lock gear (and other information); the holder of Maintenance Licence 236398 had received a report from someone indicating that they were having this landing gear issue. Again, no defect had been written in the Aircraft Journey Log, just like the above‑mentioned entries, as required by subsection 605.94(1) of the CARs.

[150] Inspector Vermeer stated that in his branch (Enforcement), there is a statute of limitations (section 26 of the Act) in terms of what they can pursue in a 12‑month period. He went further back and this seemed to be the pattern of operation for this aircraft such that important entries were missing from C‑FTEC's Aircraft Journey Log and that is where the charges regarding subsection 605.94(1) of the CARs came from.

[151] Before the event on February 7, 2010, there were three instances of "snags" reported as being repaired without defects written in the Aircraft Journey Log.

[152] Inspector Vermeer stated that the risk of failing to note these issues is that someone else who may fly that aircraft would have no idea of the history of the aircraft. It could cause the pilot to be unaware of problems. Also, failing to make an entry would potentially allow the owner to avoid paying for maintenance or to defer from doing maintenance, which is in itself a very dangerous practice.

[153] Inspector Vermeer issued only one charge for these three discovered omissions, even though an individual could be charged for each offence separately.

[154] Under cross-examination, in a discussion concerning the "flap motor popping circuit" maintenance note on December 24, 2009, Inspector Vermeer stated that Mr. Kennedy would have been the PIC on December 4 and 6, 2009. Mr. Dalla-Longa introduced "Aircraft Journey Log Entry From November 7 to 11, 2008 Copy" (Exhibit A‑1) as evidence.

[155] Mr. Dalla-Longa indicated, during cross-examination, that C‑FTEC is operated privately and that it was highly unlikely that another pilot would operate the aircraft. Inspector Vermeer countered that the Aircraft Journey Log showed that different people had flown this aircraft in the past and that the defect entry should have been written up right after the flight. He also stated that he took into account the fact that it is a privately operated aircraft when assessing the penalty.

[156] Mr. Dalla-Longa stated that he was not delaying maintenance, but Inspector Vermeer stated that offences charged under the CARs are strict liability offences and ignorance of the CARs is not an excuse. Inspector Vermeer indicated that section 605.94 of the CARs is directed specifically to the PIC and section 605.96 of the CARs is directed specifically to the aircraft owners.

[157] Under re-examination, the Minister asked whether it was possible that Mr. Kennedy was the PIC during the flights on December 4 and 6, 2009 in the Aircraft Journey Log. Inspector Vermeer stated that it is entirely possible but he is not sure of the relationship and what was going on in the cockpit of C‑FTEC at that time.

[158] Inspector Vermeer stated that the other two instances (June 11 and August 3, 2009) in the Aircraft Journey Log indicate that Mr. Dalla‑Longa was alone as PIC. If it is the case that Mr. Kennedy was the pilot on December 4 and 6, 2009 that would leave two out of the three instances (counting the December dates as one instance).

(2) Applicant

(a) Damiano Dalla-Longa

[159] Damiano Dalla-Longa stated that the landing gear issue first happened on November 11, 2008 and that it had happened on other occasions, but that he only logged this problem in the Aircraft Journey Log (Exhibit A‑1, Penalty Notice) for this first time on November 11, 2008.

[160] Shortly thereafter, C‑FTEC's annual inspection came up and the aviation maintenance company he used inspected the landing gear and reported it as fixed. He found this problem reoccurred on February 20, June 18 and August 13, 2009. April 9, 2010 was the last time the landing gear problem happened and that was the last time that it was fixed.

[161] Before the landing gear was finally fixed, even after the annual inspection, he was never convinced that it had been fixed. He had, however, been advised by the AME who worked on it that it was okay to fly, so he flew the aircraft. He did telephone the AME concerning what had happened. He stated that putting an entry in C‑FTEC's Aircraft Journey Log would not cause anything to happen.

[162] Mr. Dalla‑Longa stated his profession is accounting, and that he is very conscientious about getting things fixed; he was not convinced the landing gear problem had been fixed on February 7, 2010. The landing gear was finally fixed but he did not mark down the landing gear problems in C‑FTEC's Aircraft Journey Log every time. He indicated that he had talked to an AME about problems with his aircraft's landing gear after some flights, and suggested that he had ordered the repairs be done; however, he did not log these problems beyond the first instance.

[163] Concerning the second issue of the circuit breaker popping, he stated that he was coming in for a landing when the circuit breaker popped. He then pushed it in, put the landing gear down, and thought that everything was okay as it was not popping anymore. The next day, he talked to the AME about the circuit breaker and had him change it. As he did not think it was a defect, he did not enter it into C‑FTEC's Aircraft Journey Log. In hindsight, he realizes that this was an error on his part.

[164] Under cross‑examination, Mr. Dalla‑Longa read a maintenance note from an AME stating that C‑FTEC had been inspected and was found to be in safe condition to ferry from the Calgary International Airport to Springbank Airport, where it was fixed by Cavalier Aviation Ltd. Due to its length, Mr. Dalla‑Longa did not enter the note into C‑FTEC's Aircraft Journey Log. The note was not entered into evidence.

[165] When asked by the Minister if he was the PIC for the cited journey with Mr. Kennedy to Kalispell on December 4, 2009, Mr. Dalla‑Longa stated that he was the PIC.

[166] Regarding a meeting Mr. Dalla‑Longa had in Edmonton with Inspector Vermeer and Mark Fraser (one of the Minister's representatives at the Hearing), Mr. Dalla‑Longa testified that he does not remember what he said. He stated he did not really know that there was an HSI problem, nor was he sure what was going on at that time. He recalled Mr. Fraser asking him about C‑FTEC's Aircraft Journey Log, which spurred Mr. Dalla‑Longa to write additional information in it following the meeting. He recollected with some degree of uncertainty that he had made a log entry about the autopilot being unserviceable.

[167] He stated that it was probably a mistake on his part to not put the HSI and autopilot issues in the Aircraft Journey Log on February 7, 2010.

[168] Mr. Dalla‑Longa also agreed that a licensed pilot is required to have reasonable knowledge of the CARs and noted that he made a conscientious effort to stay current as to the CARs, particularly regarding CARs that are important to safety.

V. ARGUMENTS

A. Suspension Notice

(1) Minister

[169] The Minister submitted that the evidence established, on a balance of probabilities, that the three counts outlined in the Suspension Notice did occur. The Minister stated that due diligence has not been established for counts 1 and 2, and that for count 3, Mr. Dalla‑Longa left the decision height without visual confirmation of the runway as per his own evidence; therefore, I should find him guilty on all three charges.

[170] The Minister submitted that the most salient evidence was the very clear testimony from the air traffic controllers, Mr. McDonald and Mr. Regamey. The gravamen of count 1 is where it states in the Suspension Notice that Mr. Dalla‑Longa was instructed by Mr. McDonald to "climb runway heading, climb to 7 000 feet." Mr. Dalla‑Longa acknowledged on the radio that he was to climb to 7 000 feet ASL but he actually turned well away to a heading of 100°, which is some 60° left of where the ATC's instructions indicated he should have turned. This was confirmed by the audio recording for the event (Exhibit M‑1(A)).

[171] Count 2 revolved around the second missed approach. The Minister submitted that the gravamen of that offence is that Mr. Dalla‑Longa was instructed to "pull up and go around, turn left, fly heading 070, climb to 7 000," but he replied that he was going to 5 000 feet ASL and the controller corrected him by saying climb to 7 000 feet ASL. However, the evidence showed that Mr. Dalla‑Longa flew about 165° to 200° which took him to the west of Runway 16 where the Control Tower is about 200 feet AGL with other buildings around the same height. At that time, Mr. Dalla‑Longa was flying anywhere between 50 to 200 feet AGL.

[172] The evidence indicates that it took anywhere from 25 to 35 seconds for Mr. Dalla‑Longa to initiate the turn. Mr. Dalla‑Longa claimed that 30 seconds is not really too bad, but the Minister disagreed with this assessment given C‑FTEC's low altitude flying west of the runway and drifting off towards where the Control Tower and other buildings are at 200 feet AGL at Calgary International Airport. Mr. Dalla‑Longa was required to immediately comply with the ATC's instructions.

[173] The Minister further addressed the issue of a possible autopilot failure, including the possibility of a sticking DG or HSI. However, the problem apparently occurred on the first approach. As other pilots testified, if a pilot has such a problem, he goes around and declares the problem to Tower Control—he does not continue his descent. Mr. Dalla-Longa failed to do this in that instance.

[174] Mr. Dalla-Longa also had other instruments besides the autopilot, which could have reasonably told him what his headings were. In respect of the autopilot malfunction, all three pilots testified that they do not wait for the autopilot to fly them into the ground; they would just disconnect it and hand-fly the aircraft. Mr. Dalla‑Longa did not do so until the latter stages of the flight.

[175] Mr. Dalla-Longa's third approach demonstrates that he managed to overcome the difficulties of the malfunctioning instruments and make a perfect approach.

[176] If Mr. Dalla-Longa did find that something was wrong with C‑FTEC's instruments, he should have gone around to enter protected air space. Mr. Dalla-Longa's second approach was the most dangerous one as he almost hit another aircraft and ended up flying at a low altitude where the Control Tower and other buildings are. This was a very serious failure on the part of Mr. Dalla‑Longa.

[177] The evidence for counts 1 and 2 shows, on a balance of probabilities, that Mr. Dalla‑Longa committed the offences.

[178] The Minister noted that count 3 was initially charged under section 602.128 of the CARs which deals with leaving decision height without having the runway environment in sight. According to the evidence of virtually all of the pilot witnesses, if one does not have the runway environment in sight at decision height, one should immediately conduct a go-around for a missed approach.

[179] The expert witness, Mr. Lopushinsky, stated that the decision height for Runway 16 at Calgary International Airport is more or less half a mile back from the airport's threshold. Both Continental pilots witnessed Mr. Dalla-Longa's aircraft flying right in front of them, basically within 100–150 feet, and it appeared to them that C‑FTEC was going to land.

[180] Mr. Dalla-Longa was below 200 feet, which was detected by the ASDE. Mr. Dalla‑Longa also stated that he never had the runway in sight. The aircraft altimeter on C-FTEC was working correctly at that time. Mr. Dalla‑Longa stated that his altimeter, as far as he knew, was functioning properly at that time. Mr. Dalla‑Longa also had the radar altimeter as the backup.

[181] The Minister submits that, on a balance of probabilities, Mr. Dalla‑Longa did, in fact, leave decision height without having the runway in sight and, accordingly, asks me to find that he committed the offence indicated in count 3.

(2) Applicant

[182] Mr. Dalla-Longa argues that counts 1 to 3 of the Suspension Notice should be dismissed for the following reasons:

1. the investigation done by Transport Canada was incomplete and unfair; and

2. the proposed sanctions violate the principle of "double jeopardy"

[183] Mr. Dalla-Longa states that it was unfair for Transport Canada not to have got a statement from Mr. Warnke as Mr. Warnke's evidence as an expert witness crucially proves that Mr. Dalla‑Longa was having equipment problems at the time of the February 7, 2010 incident.

[184] Inspector Vermeer took pictures of the runway, C‑FTEC, and asked questions about icing and other matters on the day of investigation with various people but did not ask what repairs had been done and did not look into pre‑existing equipment issues. Mr. Dalla‑Longa had repeatedly told him that he had been having equipment issues. Inspector Vermeer eventually telephoned Mr. Dalla‑Longa back and advised him that he had communicated with Mr. Warnke through a third party.

[185] Mr. Dalla-Longa states that Inspector Vermeer advised him that because autopilot and HSI deficiencies were not in the Aircraft Journey Log, they could not be cited as mitigating factors against the charge. Mr. Dalla‑Longa states that he did not know there was a deficiency on February 7, 2010, and notes that Mr. Warnke gave evidence that these problems were intermittent.

[186] Mr. Dalla-Longa stressed that the autopilot and HSI problems caused his two missed approaches. Although the Minister spoke about the backup instruments on C‑FTEC and that one can disconnect the autopilot, Mr. Dalla‑Longa gave evidence that through all of the commotion that took place, he ultimately landed the aircraft by hand.

[187] Mr. Dalla-Longa questioned why Mr. Warnke was never asked to give a report or provide any information on the repair work done during the Transport Canada investigation of the incident. Mr. Dalla‑Longa asked me to consider how Transport Canada could have come to a correct conclusion with incorrect and incomplete information. He questions how Inspector Vermeer could have come to a correct conclusion without the repair work information.

[188] Mr. Dalla-Longa states that Inspector Vermeer's penalty assessment was overridden by his superiors and amended to include language that cast Mr. Dalla-Longa's character in a poor light. The final assessment concluded that significant punitive action was required to ensure future compliance. Mr. Dalla‑Longa denies that he had any motive for ignoring ATC instructions. He was in a difficult situation and was not attempting to establish his own IFR approach criteria.

[189] Mr. Dalla-Longa submitted that these equipment issues were the root cause of the events in question; Transport Canada has failed to prove their case on a balance of probabilities because they did not have all the information needed to come to a proper conclusion. Transport Canada misinterpreted his attempt to defend or explain himself as a statement that he never did anything wrong.

[190] He also submits that Transport Canada, by its own admission, and exemplified by the evidence given by Mr. Kunzen, was under pressure to "get him."

[191] Mr. Dalla-Longa stated that he studied 35 to 40 Tribunal cases including the double jeopardy issue and has concluded that the penalties applied to him were far too harsh.

[192] Mr. Dalla‑Longa states that Mr. Warnke gave evidence that the problems were quite likely the result of issues with the HSI. Upon hearing this argument, the Minister rebutted and asked Mr. Dalla‑Longa to identify where Mr. Warnke said that, but Mr. Dalla-Longa was unable to cite the exact line. In examining the actual Transcript the following exchange is found on pages 525 and 526 (‘Q' refers to the Minister and ‘A' to Mr. Warnke):

23 Q Now, you said that you found the canon plug --

24 and I'm not doubting that at all -- I'm just

25 saying to you, you said you found the canon plug.

26 It was loose, it was intermittent. That canon

1 plug, did it affect the compass?

2 A No.

3 Q Did it affect the altimeter?

4 A No.

5 Q Did it affect the VOR?

6 A No.

7 Q Did it affect the localizer?

8 A No.

9 Q And did it affect the HSI?

10 A No.

[193] Mr. Dalla-Longa rebutted by referring to page 548 of the Transcript (‘Q' refers to Mr. Dalla‑Longa and ‘A' to Mr. Warnke):

12 Q And he finally figured out what the problem was.

13 One question that I forgot to ask, I think I

14 forgot to ask. The HSI you said -- correct me if

15 you didn't say this. The problems with the HSI,

16 in all likelihood, existed on February 7th, 2010,

17 some of them?

18 A I believe so, yes.

[194] He further submits that Mr. Regamey stopped in the middle of a sentence while giving him instructions to ask Mr. Dalla‑Longa if he was in the air or on the ground. Mr. Dalla‑Longa recalls that he asked Mr. Regamey if the 30-second delay in responding to the ATC was within acceptable standards and Mr. Regamey replied that it was.

[195] Mr. Dalla‑Longa further indicates that he was not trying to invent missed approach procedures but that he simply did not have a lot of time to react.

[196] Mr. Dalla‑Longa submits that Transport Canada cancelled his IFR rating and suspended it a further 120 days after he had re-earned it. He asks how such a penalty helps him to become a safer pilot.

[197] Mr. Dalla‑Longa quoted eight cases regarding his claim of double jeopardy including Andrew Boyd v. Canada (Minister of Transport), 2002, CAT File No. O-2418-71; Kienapple v. The Queen, [1975] 1 S.C.R. 729; and R. v. Shubley [1990] 1 S.C.R. 3.

[198] Mr. Dalla-Longa stresses that he did not intentionally violate any of the CARs and asks me to consider that the suspension of his Private Pilot Licence does nothing to upgrade his pilot qualifications.

(3) Minister's Rebuttal

[199] The Minister rebuts that whether it was a poor investigation or not, I have the facts before me by way of evidence and testimony. A Tribunal Member's role is not to question how the investigation was carried out. That said, he submits that there was no wrongdoing in the investigation. Nobody unduly influenced Inspector Vermeer in his investigation or testimony; he was not offered any inducements nor threatened to alter his investigation. There is no evidence to support the idea that Inspector Vermeer did something unlawful, illegal or irregular. Inspector Vermeer felt that it was not necessary to interview Mr. Warnke as expressed in his testimony.

[200] The Minister addresses the penalties Inspector Vermeer had initially decided upon for the three counts that would later appear in the Suspension Notice: $750 for each of counts 1 and 2 and $1 500 for count 3. His supervisor looked at the whole file and decided that there were aggravating circumstances, which he has the right to do in his capacity as an adjudicator. He assessed the elements and issued suspensions. The reason for the suspensions is that there was a blatant mistake in the supervisor's point of view. Mr. Dalla‑Longa continued with the approach after reaching decision height on two occasions and Mr. Dalla‑Longa flew at a low level where he had no business flying. Five airliners were put in jeopardy, especially CO636, and its two pilots testified that C‑FTEC just about flew into them.

[201] The Minister submitted that the supervisor's viewpoint was that there were two separate incidents. In the first approach, Mr. Dalla‑Longa left the decision height and did not respond to turn instructions from Tower Control. In the second approach, he did not respond to instructions from Tower Control, and left the decision height again. All pilots that testified know that when a pilot is at the decision height and cannot see the runway or airport, you go up and go around without any second thought. That is the reason that Inspector Vermeer's supervisor gave for the aggravated penalties.

[202] The Minister further addressed the double jeopardy issue and responded to Mr. Dalla‑Longa's numerous cases. Kienapple is a landmark case from 1975 and refers to the principle of not assigning multiple convictions for the same act. The Boyd and the Shubley cases concern double jeopardy. These cases all distinguish between a conviction and a suspension or civil remedy.

[203] The Minister noted that Mr. Dalla-Longa stated that his IFR rating was suspended when in fact it was cancelled. His IFR rating was cancelled because he was found to no longer meet the standard, but he retained his private pilot licence. It should also be noted that the suspension was stayed, pending the outcome of this Hearing. Furthermore, the cancellation of Mr. Dalla‑Longa's IFR rating was not a conviction; it was a regulatory cancellation based on the conclusion that Mr. Dalla‑Longa's IFR skills were insufficient and that he no longer met the qualifications for an IFR rating. This was not a penalty, but an administrative cancellation.

[204] The Minister states that holding a pilot licence is a privilege, not a right. Pilot licencing is a regulated activity. If one does not meet the qualifications to hold a pilot licence, it has to be revoked for reasons of public safety.

[205] The Minister notes that although Mr. Dalla‑Longa insists that equipment failure was a key factor in missing the approaches, Mr. Warnke indicated that this would not have affected the compass, altimeter, VOR, localizer or HSI. The essential instruments, like the altimeter, would have been able to tell Mr. Dalla‑Longa that he needed to go around at that time. Mr. Dalla‑Longa stated that his altimeter was working fine. Mr. Warnke said the compass and the DG on the co‑pilot side were working. Besides the HSI, there were operable instruments that would have afforded sufficient information for Mr. Dalla‑Longa to draw the correct conclusions. The counts in the Suspension Notice are strict liability offences and the only applicable defence is due diligence.

[206] The Minister stated that there were no accidents and no fatalities so due diligence would have been the number one requirement to have prevented the incidents from happening. Mr. Dalla‑Longa had an alternative airport to land in Lethbridge and the weather was good there at that time. Landing at Lethbridge was one of the things he could have done to be duly diligent.

[207] The altimeter would have confirmed that he was beneath his decision height and he should have concluded to himself that he needed to go around.

[208] The Minister concluded that a double jeopardy defence is insufficient for this situation as a suspension for regulatory reasons is neither a penalty nor a punishment.

(4) Applicant's Rebuttal

[209] Mr. Dalla‑Longa states that he feels it was harsh to cancel his IFR rating. Even though an IFR rating is not a licence, it still forms part of his overall licence. He has some 900 hours today and if he has 1 800 hours tomorrow he will be a better pilot; 120 days of suspension will be onerous to him.

B. Penalty Notice

(1) Minister

[210] The Minister addressed the allegation in the Penalty Notice, which was Mr. Dalla‑Longa's failure to enter into C‑FTEC's Aircraft Journey Log the particulars of a material aircraft defect of C‑FTEC as soon as was practicable after the defect had been discovered (and at the latest before the next flight).

[211] In his evidence, Mr. Dalla‑Longa candidly admitted that he was the PIC for all three instances for which important information had not been logged. The Minister only charged Mr. Dalla‑Longa with one count due to the one-year statute of limitations.

[212] The Minister notes that Mr. Dalla‑Longa does not disagree that he failed to make those entries but feels that the penalty assessed ($1 000) was excessive.

[213] The Minister states that the penalty reflects the fact that there were three offences (though Mr. Dalla‑Longa was only charged for one) and that a pattern of failing to log important information on the part of Mr. Dalla‑Longa had been established, hence the need for a significant penalty.

[214] The Minister further submits that it is not uncommon for somebody to get a $2 500 fine for leaving their Aircraft Journey Log, their Certificate of Registration or their Certificate of Airworthiness at home, potentially resulting in a $7 500 total penalty.

[215] The Minister stated that the monetary penalty was not excessive and should be left as is.

[216] The Minister referred to the principles of law and quoted the 2011 version of Martin's Criminal Code, section 19 [as read]: "Ignorance of the law by a person who commits an offence is not an excuse for committing that offence."

[217] The Minster therefore asks me to find Mr. Dalla‑Longa guilty of count 1 in the Penalty Notice.

(2) Applicant

[218] Mr. Dalla-Longa states that while he really did not consider a circuit breaker problem to be a defect that required logging, his understanding is that there is an element of subjectivity in the Penalty Notice. Accordingly, he would like me to consider this subjectivity as a mitigating circumstance insofar as he did talk to an AME (either face-to-face or over the phone). Mr. Dalla‑Longa argues that it was more important to actually get the repairs done rather than to write an entry into the Aircraft Journey Log. In hindsight, Mr. Dalla‑Longa concedes that this was an error in his judgement and that the matter should have been recorded in the Aircraft Journey Log. Mr. Dalla‑Longa requests that, since he acted in good faith, and not for any nefarious reasons, I should lower the monetary penalty.

VI. ANALYSIS

A. Suspension Notice – TATC File No.: W‑3710-02

[219] I have carefully considered all of the evidence and have found that the testimonies of the Minister's witnesses were generally more credible than those of the Applicant.

[220] The Applicant argued that he did not intentionally violate the CARs; rather, he claimed to have had equipment issues during his first and second approaches, which he attempted to manage in the air.

[221] The defence of due diligence requires that the alleged offender prove, on a balance of probabilities, that he took all reasonable care to avoid the commission of the offence. The defence of necessity requires that the alleged offence must have been unavoidable and that there was no reasonable alternative course of action. I find, in these circumstances, that a defence of due diligence and a defence of necessity are insufficiently supported by the evidence.

[222] Specifically, for the offences alleged in count 1, Mr. Dalla‑Longa received the overshoot instructions from the ATC on Runway 16's heading (of 163º) and was directed to climb to 7 000 feet ASL. Importantly, he did acknowledge these instructions on the radio and replied that he was climbing to 7 000 feet. Mr. Dalla‑Longa's suggestion that he was addressing equipment issues during the missed approach and did not realize that he was on heading 100º does not stand in my judgement.

[223] If the DG was out, he should have had a heading (HDG) flag, but surely he should have noticed the heading read 100º. According to the evidence, the DG and the compass were both serviceable. Also, if the HSI had been malfunctioning, there would have been a little red flag to warn the pilot that the instrument could not be relied on.

[224] For counts 2 and 3, the evidence clearly supports that the PIC, Mr. Dalla‑Longa, did not comply with all of the ATC instructions, specifically the direction to "pull up and go around, turn left, fly heading 070, climb to 7 000"; and before the required visual reference necessary to continue the approach to land was established, he compounded his error by continuing his final approach descent from below the decision height, contrary to paragraph 602.128(2)(a) of the CARs.

[225] Mr. Dalla‑Longa submitted in his testimony that he did not look at the GPS; nevertheless, he was east of Runway 16 and was directed by ATC to increase his altitude, go around, and fly left—instructions which he acknowledged to ATC. He did not do as instructed, however, and instead made a right turn and flew level for 30 seconds, then turned left to the instructed heading of 070º. Mr. Dalla‑Longa should have started his turn immediately after being instructed to do so, and then communicated to the ATC that he had done this.

[226] In other words, Mr. Dalla‑Longa continued descending and almost landed on the taxiway, then turned sharply right and flew away. He and his passengers are lucky to be alive.

[227] The record should state, however, that the 30-second gap in and of itself was deemed to be "reasonable" by the ATC, Mr. Regamey, and by Mr. Lopushinsky, the expert witness for the Minister. The problem was not the gap of time, it was what did and did not happen during the gap.

[228] Mr. Dalla‑Longa was instructed to report the field in sight by the ATC, and he acknowledged and replied to these instructions on the radio but when at the decision height, he could not visually find Runway 16 and failed to report back to the ATC for the go around.

[229] Mr. Dalla‑Longa submitted that a suspension or a monetary penalty cannot in itself make a better pilot, and on numerous instances, quoted the maxim "aviate, navigate, communicate". In my considered opinion, however, a good pilot does not only have to focus on his or her technical flying skills, but on an even higher consideration: airmanship.

[230] The book, Redefining Airmanship, T. Kern, McGraw-Hill, 1996, describes ‘airmanship' as follows:

Airmanship is the consistent use of good judgment [my emphasis] and well-developed skills to accomplish flight objectives. This consistency is founded on a cornerstone of uncompromising flight discipline and is developed through systematic skill acquisition and proficiency. A high state of situational awareness completes the airmanship picture and is obtained through knowledge of one's self, aircraft, environment, team and risk.

[231] Furthermore, SKYbrary, a website repository of safety knowledge related to air traffic management ("ATM") and aviation safety in general, provides very useful information concerning the foundations of airmanship:

The Foundations of Airmanship

Knowledge

Knowledge of Aircraft

  • Deep understanding of aircraft sub-systems, emergency procedures, cockpit automation, aircraft flight characteristics and operating limits.

Knowledge of Environment

  • Understanding the physical environment and the effects on aircraft control.
  • Understanding the regulatory environment.
  • Understanding the organizational environment and the challenges posed to airmanship.

Knowledge of Risk

  • Understanding the risks to discipline, skill and proficiency, knowledge…

[232] Regarding mitigating factors, this was a first-time offence under a, albeit self-created, stressful circumstance, in which Mr. Dalla‑Longa lacked experience. Furthermore, the first and second missed approaches were essentially a repetition of the same errors. Therefore, the suspension of 30 days for each of counts 1 and 2 shall be served concurrently yet maintained in order to encourage the aviator to maintain good discipline in airmanship and to employ safe flying practices. There are, however, no mitigating factors for count 3; therefore, the suspension of 60 days is upheld.

B. Penalty Notice – TATC File No.: W‑3709-33

[233] With respect to the Penalty Notice, Mr. Dalla‑Longa clearly failed to enter important information into C‑FTEC's Aircraft Journey Log, such as the particulars of a defect in a part of C‑FTEC that became apparent during a flight, as soon as was practical after the flight, or at least before the next flight. To his credit, Mr. Dalla‑Longa admitted his mistake. He stated that his practice is to sit down and talk to the AME and repair any defect; he asked me to consider this as a mitigating factor. Since this is also a first offence for Mr. Dalla‑Longa and he accepted responsibility for this error, I reduce the monetary penalty from $1 000 to $500.

VII. DETERMINATION

A. TATC File No.: W‑3710-02

[234] The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Damiano Dalla-Longa, is liable for counts 1, 2 and 3 listed on the Notice of Suspension. The thirty (30) day suspensions for counts 1 and 2 shall be served concurrently and the sixty (60) day suspension for count 3 is maintained for a total of ninety (90) days of suspension.

B. TATC File No.: W‑3709-33

[235] The Minister of Transport has also proven, on a balance of probabilities, that the Applicant, Damiano Dalla‑Longa, has contravened subsection 605.94(1) of the Canadian Aviation Regulations. Due to mitigating circumstances, the penalty is reduced from $1 000 to $500.

June 28, 2012

Herbert Lee

Member


Appeal decision
Elizabeth MacNab, Patrick T. Dowd, Arnold Marvin Olson


Decision: March 18, 2013

Citation: Dalla-Longa v. Canada (Minister of Transport), 2013 TATCE 4 (Appeal)

Heard in Calgary, Alberta, on November 15, 2012

APPEAL DECISION AND REASONS

Held: The Appeal is dismissed and the Determination of the Review Member is upheld.

The thirty (30) day suspensions for counts 1 and 2 shall be served concurrently and the sixty (60) day suspension for count 3 is maintained for a total suspension of ninety (90) days. This suspension will commence thirty-five (35) days following service of this Decision.

I. BACKGROUND

[1] On June 15, 2010, the Minister of Transport (Minister) issued a Notice of Suspension (Notice) to Damiano Dalla‑Longa, pursuant to section 6.9 of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act). The Notice imposed a total suspension of 120 days in relation to three alleged contraventions of the Canadian Aviation Regulations, SOR/96-433 (CARs), set out in Schedule A to the Notice as follows:

#1 – CARs 602.31(1)(a)

On or about the 7th day of February, 2010, at or near Calgary, Alberta, as the pilot-in-command of an aircraft, to wit, a Cessna 414A, Canadian registration C-FTEC, on your first approach, you did not comply with all [emphasis added] of the air traffic control instructions directed to and received by the pilot-in-command, specifically “climb runway heading, climb to 7000 feet”, contrary to subsection 602.31(1)(a) of the Canadian Aviation Regulations.

SUSPENSION – 30 DAYS

#2 – CARs 602.31(1)(a)

On or about the 7th day of February, 2010, at or near Calgary, Alberta, as the pilot-in-command of an aircraft, to wit, a Cessna 414A, Canadian registration C-FTEC, on your second approach, you did not comply with all of the air traffic control instructions directed to and received by the pilot‑in‑command, specifically “pull up and go around, turn left, fly heading 070, climb to 7000” [emphasis added], contrary to subsection 602.31(1)(a) of the Canadian Aviation Regulations.

SUSPENSION – 30 DAYS

#3 – CARs 602.128(2)(a)

On or about the 7th day of February, 2010, at or near Calgary, Alberta, as the pilot‑in‑command of an IFR aircraft, to wit, a Cessna 414A, Canadian registration C-FTEC, when the required visual reference necessary to continue the approach to land had not been established, in the case of a CAT I precision approach, continued the final approach descent below the decision height, contrary to subsection 602.128(2)(a) of the Canadian Aviation Regulations.

SUSPENSION – 60 DAYS

TOTAL SUSPENSION – 120 DAYS

[2] On July 26, 2010, Mr. Dalla‑Longa submitted a Request for Review to the Transportation Appeal Tribunal of Canada (Tribunal), and on August 4, 2010, the Tribunal stayed the suspension until the review of the Minister's decision had been concluded.

[3] The charges set out in the Notice arose from two attempts by Mr. Dalla-Longa to land at the Calgary International Airport in poor weather conditions. Following the first approach, during the go-around phase, the aircraft had turned to a heading of 100 degrees when instructed to fly on the runway heading of 163 degrees. Following the second approach, the aircraft was aligned with a taxiway rather than the runway. In relation to this attempt, the aircraft was alleged to have descended below decision height without the required visual reference, and the pilot‑in‑command (PIC) was alleged to have not adequately complied with the air traffic controller's (ATC) instructions.

II. REVIEW DETERMINATION

[4] The Review Hearing, which also included consideration of another matter that was not the subject of appeal, took place in two sessions over May 3 to 5, 2011 and June 21, 2011. The Review Member found that the Minister had proven all three counts on a balance of probabilities, but held that the 30 day suspension assessed in relation to each of the first two counts should be served concurrently since they related to essentially the same offence. Thus, the total suspension period was reduced from 120 to 90 days.

III. GROUNDS FOR APPEAL

[5] Mr. Dalla‑Longa's Request for Appeal was filed on July 31, 2012. While largely couched as a narrative, he set out four areas on which he would argue his appeal. The first relates to equipment issues and alleges that the Review Member either did not properly consider, or was mistaken in his conclusions on issues relating to equipment.

[6] The second ground of appeal relates to the adequacy of the investigation, both in relation to pressure placed on the Investigating Officer, Inspector Gerrit Vermeer, and to his decisions regarding the collection of evidence.

[7] The third ground of appeal is that he disagrees with the findings relating to Count 3, specifically, that he descended to 50 feet above ground level (AGL).

[8] The fourth basis for the appeal is that the suspension under section 6.9 of the Act constitutes double jeopardy. In the event, Mr. Dalla‑Longa did not pursue this ground.

IV. ARGUMENTS

A. Appellant

[9] The Minister's Representative objected to a number of Mr. Dalla‑Longa's arguments on the basis that they were attempts to introduce evidence that was not available at the Review Hearing. The Appeal Panel allowed the arguments, but pointed out that if no evidence from the Review Hearing could be found in support, they would not be considered in reaching a conclusion.

[10] The Appellant argued that the investigators did not adequately investigate or consider the equipment problems that were affecting the first two landing attempts. He argued that the Investigating Officer took the position that possible equipment failure is not relevant to determining whether a contravention has taken place and pointed out that, although informed of the possible equipment failure by an Aircraft Maintenance Engineer (AME) who he interviewed, the Investigating Officer failed to follow up on the matter or interview the person responsible for repairing the equipment.

[11] He challenged the Investigating Officer's conclusion that he accepted no responsibility for the infractions, and pointed out that he had accepted some responsibility in his opening statement at the Review Hearing. He further argued that this conclusion by the Investigating Officer influenced the supervisor's position that the Appellant had apparently established his own instrument flight rules (IFR) procedures. This may have been a factor in the supervisor's determination that the penalty should be a suspension rather than the monetary penalty recommended by the Investigating Officer.

[12] The Appellant suggested that the Minister seemed to imply that the evidence of Fred Warnke, the Appellant's expert witness, was inconsistent. The Appellant argued that any inconsistencies could be explained by the six‑week interval in the Review Hearing that took place between his testimony and the June 21, 2011 Tribunal session, and because he was questioned by two representatives of the Minister. For example, he stated that a possible inconsistency could be explained by a question in one instance referring to the autopilot being engaged while a second question on the same subject did not include that reference. The Appellant suggested that the Review Member took the alleged inconsistencies into account in reaching his Determination.

[13] The Appellant minutely analyzed the Review Member's Determination and argued that it contained numerous errors and misinterpretations. He suggested that the Review Member was in error in his finding in paragraph [15] in that he was referring to the Appellant's actions after the first incomplete instruction during the second approach, and he pointed out that both Brent Lopushinsky, the Minister's expert witness, and Shawn Regamey, one of the ATCs, acknowledged that he obeyed the complete instruction within a reasonable timeframe.

[14] He suggested that the Review Member's comment in paragraph [22] that he could not explain why he was flying at 100 degrees during his first approach is irrelevant since it refers to a period when he was not giving evidence but rather cross‑examining the Minister's witness. His later evidence and that of Mr. Warnke did later provide an explanation.

[15] Paragraph [33] of the Review Determination refers to the evidence of the PIC of the Continental aircraft, Captain Skinner, that the ceiling was 100 feet. The Appellant disagrees with this and maintains that it was 300 feet. He also challenged the Review Member's seeming acceptance of the statement that the Appellant was either unaware of or did not follow the established procedure for a go-around. He also argued that the evidence of the First Officer was inconsistent and incorrect.

[16] He argued that in several places the Review Member's analysis of his or his witnesses' evidence was incorrect. In paragraph [73], Inspector Vermeer indicates that Mr. Dalla‑Longa stated to him that the weather was at or below minimums when the Appellant decided to delay his departure for Calgary; Mr. Dalla‑Longa alleges that this statement was incorrect and that the weather was above minimums. The Review Member also misinterpreted the evidence of Michael Kardash in paragraph [81] in saying that the witness did not notice the altimeter until they had come out of cloud. In paragraph [88], the Review Member states that Mr. Warnke testified that the horizontal situation indicator (HSI) was sent for repair before the date of the incident when, in fact, it was sent after that date. The Appellant also disagrees with the Review Member's statement in paragraph [93] that Mr. Warnke testified that a loose cannon connecter would not affect the localizer.

[17] The Appellant argued that the Review Member was in error in paragraph [127] when he described Mr. Dalla‑Longa as stating that the Appellant was heading east over the runway of his second approach when, in fact, he was heading west to get back to Runway 16. In paragraph [131] the statement that the Appellant never saw the ground is inaccurate. He did not see the ground on the first approach, but he did on the second. He argued that he did not contravene paragraph 602.128(2)(a) of the CARs because he saw the runway environment before he reached decision height.

[18] The Appellant noted that in paragraph [138], the Review Member repeated the Minister's assertion that he flew below decision height on the first approach. While this was not a subject of a charge, the Appellant argued that it may have influenced the Review Member's Determination on the actual contraventions charged.

[19] The Appellant refuted the Minister's arguments at the Review Hearing, as set out in the Review Member's Determination. He objected to the statement in paragraph [171] that he was flying between 50 to 200 feet AGL on the basis that a Minister's witness said that that altitude could not be determined from the airport surface detection equipment (ASDE) readings. He also objected to the Minister's argument, cited in paragraph [172], that a delay of between 25 and 30 seconds in following the ATC instruction was too long given the low altitude and placement of his aircraft west of the runway. In support, he cited the evidence of two of the Minister's witnesses that the delay in compliance was not unreasonable.

[20] In dealing with the Minister's argument as set out in paragraph [178], that if the runway is not in sight at decision height, the pilot should immediately conduct a missed approach, the Appellant argued that his uncontradicted evidence was that the ceiling was 300 feet and thus above decision height. He cited the meteorological terminal aviation routine weather reports (METARs) in support of the ceiling height and Mr. Kardash's evidence starting at page 441 of the transcript as support for his position that he had the runway in sight. Furthermore, he pointed out that his own evidence was that he had seen white lights.

[21] In discussing the Review Member's analysis leading to his Determination, the Appellant referred to the statement in paragraph [223], that if the HSI was malfunctioning, there would have been a red flag to alert the pilot to that fact; the Appellant argued that the red flag only appears when the bearings seize up. He also referred to the finding that he turned to the right rather than to the left as instructed, and repeated that two of the Minister's witnesses had said that the period of delay in following the instruction was not unreasonable.

[22] The Appellant argued that he had performed due diligence in preparing for the flight by checking the weather, having adequate fuel to go someplace else, and checking the weather at Springbank Airport, Calgary. He repeated that he was not aware of any equipment problem until the second attempt.

[23] In summarizing his arguments, the Appellant said that with respect to Count 1, he was following the runway heading and did not notice that the aircraft had turned to the left, most probably because the HSI was sticking and not giving an accurate heading. He submitted that with regard to Count 2, he was in a confusing situation and was given confusing instructions by the ATC while he was attempting to get back to the runway centerline. He obeyed the instruction that was clear as soon as he could and within a reasonable time. In relation to Count 3, he challenged the Review Member's reliance on the evidence of the Continental pilots and submitted that his own evidence, based on instrumentation and independent data, is preferable. He pointed out that he had no motive for committing infractions of the CARs, but that the Minister “had a motive, I submit, of coming back with some scalps”.

B. Minister

(1) Written Submissions

[24] The Minister submitted both written and oral arguments. In his written submissions, he argued that findings of fact by a review member should be given great deference and not overturned unless they are unreasonable. On questions of law, an appeal panel may reach its own conclusion.

[25] He submitted that there was evidence that supported the Review Member's findings with respect to all three counts of the charge, and outlined the evidence given by Mr. Lopushinsky in relation to Count 1, and that of the Continental pilots in relation to Counts 2 and 3, that supported these findings. With regard to possible equipment failure, he referred to the testimonies of several pilots that the proper procedure is to declare the problem to Tower Control and to initiate a go‑around. Three pilots testified that where there is an autopilot malfunction, they would disconnect the autopilot and hand‑fly the aircraft. Furthermore, even if there were equipment problems, other instruments that could have been consulted were not affected. The altimeter, which admittedly was working, would have been able to tell the pilot that he needed to go around. Finally, he noted that the Review Member preferred the evidence of the Continental pilots to that of the Appellant with regard to the altitude of the aircraft when it flew across the front of their windscreen.

[26] In responding to the first ground for appeal, that the Review Member did not properly understand the equipment issues raised by the Appellant, the Minister submitted that these issues did not prevent the Appellant from disconnecting the autopilot and hand‑flying the aircraft or declaring the problem and doing a go-around. The Review Member did not state that the HSI was repaired prior to the date of the incident and, in fact, specifically mentions the opening of a work order on February 19, 2010. Finally, there were always instruments giving accurate readings that could have been consulted.

[27] Concerning the second ground of appeal, that there was pressure placed on the investigation, he stated that there was no evidence of any improper influence from either the Continental pilots or the airport authority, and the Determination of the Review Member confirms that the investigators were justified in bringing the charges against the Appellant.

[28] The third ground of appeal was a challenge to the evidence of the Continental pilots. The Minister submitted that it was clear that the Appellant did not comply with the ATC instructions and did not have the required visual reference. There is no reason to doubt the Continental pilots' testimony as to the height of the Appellant's aircraft above the ground. The Review Member gave more weight to that evidence than that of the Appellant.

(2) Oral Argument

[29] The Minister's representative repeated that there was no evidence of undue pressure in the investigation, and referred to the Investigating Officer's specific denial concerning pressure on page 363 of the Review Hearing transcript. He pointed out that the Minister must determine how to carry out an investigation and that the decision not to interview Mr. Warnke, who was not involved in the incident, was within his discretion. Additionally, insofar as equipment failure was a factor, it would be part of the defence. He also stated that, while the Investigating Officer might recommend a penalty, it was not unusual for his superiors to substitute a different penalty as part of their function.

[30] The Minister's representative referred to the conflicting testimony of the height of the aircraft in relation to the third count. He contended that the testimony of the Continental pilots that the aircraft passed in front of them at a height of 50 feet was unprejudiced and disinterested. While these pilots were upset at the near accident, there was no evidence that they were on a mission to punish the Appellant. The Review Member found that they were more credible on this point than the Appellant, as was his right. It is very difficult for an Appeal Panel to overturn a finding of credibility.

[31] With regard to the defence of due diligence, there was clear evidence that the Appellant could have and should have consulted other available instruments that were giving accurate information. He had enough fuel on board to fly to an alternate destination. He did not follow the usual procedure with regard to equipment failure and hand‑fly the aircraft. In fact, it took him an inordinate amount of time to realize that he had an equipment problem. At no time, even after the second approach, did he inform Tower Control that he had equipment problems, nor did he on the second approach, as the Review Member found in paragraph [225] of the Review Determination, start his turn immediately after being instructed to do so and report that he had done so to ATC.

[32] He referred to the Appellant's testimony on page 668 of the Review Hearing transcript that at decision height his “energy” (speed) was down and that to pull up might have caused the aircraft to stall, and submitted that this was an admission that he did not go for a missed approach at decision height when he did not have the required visual reference. Furthermore, if he had had that visual reference, he would not have found himself over the taxiway rather than the runway.

[33] The Minister's representative referred to the Review Member's finding of fact on paragraph [228] that the Appellant could not visually find the runway at decision height and failed to report back to ATC for the go‑around, and repeated that an appeal panel should give considerable deference to such findings.

C. Appellant in Reply

[34] With regard to the first count, the Appellant argued that the real issue was why he was flying at 100 degrees. He informed ATC that he was turning to 163 degrees. He agreed that he never saw the ground on the first approach, but repeated that he saw the runway before decision height on the second approach, and cites Mr. Kardash's testimony in support. He challenged the statement that he developed his own instrument landing system (ILS) procedures. On the second approach, he had visual reference at 300 feet AGL and it was after he had that reference that he continued below 200 feet. He repeated, however, that he never went as low as 50 feet. He responded to the Review Member's comment in paragraph [228] that he failed to report back to ATC when he had the field in sight, by stating that he was trying to figure out where he was and did not want to be distracted.

V. ANALYSIS/DISCUSSION

A. Standard of Review

[35] The Minister argued that the standard of review for an appeal panel when reviewing a review member's determination is that set out in Genn v. Canada (Minister of Transport), 2012 TATCE 7, TATC File No. P‑3739‑02 (Appeal). In that matter, the Appeal Panel reviewed both Tribunal and judicial decisions on the standard of review for administrative decisions and determined that in matters of fact or of mixed fact and law, considerable deference should be given to the determination of the person who originally heard the matter. That determination should be accepted so long as it falls within a range of outcomes reasonably supported by the evidence at the hearing. On questions of law, however, the Appeal Panel is entitled to its own view. This analysis was adopted by the Appeal Panel in Mashowski v. Canada (Minister of Transport), 2012 TATCE 28, TATC File No. W‑3592‑02 (Appeal),and will be applied in this matter.

B. Adequacy of Investigation

[36] The Appellant challenged the adequacy of the investigation on the basis that there was undue pressure placed upon the Investigating Officer by the Continental pilots and the airport authority. The Minister responded that there was no evidence of pressure and that it was specifically denied by the Investigating Officer that any such pressure existed. The Appeal Panel has reviewed the evidence on this point and sees no reason to doubt the denial given by the Investigating Officer set out on page 363 of the Review Hearing transcript.

[37] The Appellant also argued that the investigation was inadequate on the grounds that there was no follow‑up or consideration given to the equipment problems that he argued were affecting the aircraft. He objected to the Investigating Officer's characterization of the information given to him by an AME as hearsay and criticized his failure to follow up with Mr. Warnke, the avionics expert. In response, the Minister pointed out that the method of carrying out the investigation was left to the discretion of the investigator. The Minister's responsibility is to prove that the alleged contraventions took place. Since they are strict liability offences, once it has been shown that all the elements of each offence actually took place, the offence has been proven. Equipment problems do not mean that there has been no offence, although they may be of assistance in showing a defence of due diligence. The Appeal Panel agrees with the Minister's position on this point.

[38] The Appellant challenged the Investigating Officer's conclusion that he accepted no responsibility for the contraventions and suggested that this statement may have influenced the supervisor in changing the suggested monetary penalties to suspensions. He pointed out that he had accepted some responsibility in his opening statement. Of course, his opening statement occurred long after the investigation and could not have influenced the Minister's conclusions. The transcript of the Review Hearing reveals the Appellant's attitude during his cross‑examination of the Investigating Officer. On pages 403 and 404 of the transcript, Mr. Dalla‑Longa stated the following:

And I am submitting to you as evidence – and I will give the information tomorrow – that I had equipment problems, that I handled those equipment problems in a manner that was within my competence level. Other people might have done a much better job.

Now, if that is interpreted by you to mean I am not accepting any responsibility, I have an issue with that. And I have an issue with it because it ends up, I believe, getting me a suspension that I don't deserve…

[39] It seems to the Appeal Panel that this excerpt reveals an attitude, which the Appellant maintains throughout, that would support a statement by the Investigating Officer that the Appellant did not accept responsibility for the contraventions. However, there is no evidence that such a statement influenced the change by the supervisor from the suggested monetary penalties to suspensions, and the allegation that it did is pure speculation on the part of the Appellant.

C. The Review Member's Determination

[40] The Appellant argued that there were numerous mistakes of fact and erroneous interpretations made by the Review Member that influenced his Determination as to whether the Appellant had contravened the CARs as alleged. He suggested that the Review Member's statement in paragraph [15] relating to Count 2, that he turned right, referred to his actions after the first incomplete instruction. The Appellant pointed out that two of the Minister's witnesses stated that a delay of 30 seconds in following an instruction is not unreasonable and he had followed the complete instruction in that time.

[41] The Review Member, however, in his analysis, set out his understanding of the matter in paragraphs [225] and [227]. In paragraph [227], he acknowledged that two of the Minister's witnesses stated that a delay of 30 seconds was not unreasonable. He found that the problem was not the gap in time but rather what did or did not happen during the gap. In paragraph [225], he found that after acknowledging the instruction and making a right turn, the Appellant flew level for 30 seconds before turning left as instructed. The Appeal Panel agrees with the Review Member's finding that the circumstances were such that the delay in complying with the instruction constituted a contravention of paragraph 602.31(1)(a) of the CARs. This is the case whether or not the right turn occurred before or after the instruction since it was the path of the aircraft, which crossed two runways at a low altitude before making the left turn as instructed, that created a dangerous situation.

[42] The Appellant objected to the statement in paragraph [24] made by the Minister's expert witness, Mr. Lopushinsky, that he was 45 feet AGL when descending over Taxiway Charlie, on the basis that he could not find the reference, and that the witness's evidence was that ground radar could only show that an aircraft is between 300 feet and ground level. In fact, the reference was to the altitude at one half‑mile from the threshold and is found on pages 132 and 133 of the Review Hearing transcript.

[43] The Appellant challenged the Review Member's summary of his evidence in a number of instances. He did not say, as suggested by the Review Member in paragraph [73], that he delayed his departure from Montana because the weather was below minimums and cited the METAR in support. He alleged that the statement in paragraph [81], that Mr. Kardash did not watch the instruments during the second approach until the aircraft came out of the clouds, was incorrect, as the actual evidence was that he was watching the altimeter. He stated that the Review Member was in error in paragraph [88] when he said that the HSI was sent for repair before the date of the incident and he also disagreed with the statement in paragraph [93] that a loose cannon connector would not affect the localizer.

[44] In paragraph [127], the Review Member stated that the Appellant's evidence was that he was heading east after his right turn on the second approach when his testimony was that he was flying west. In paragraph [131], the Review Member stated that the Appellant never saw the ground, and, while this is true of the first approach, his evidence was that he did see the ground on the second approach. The Appellant suggests that the Review Member was wrong in the speeds mentioned in paragraph [140].

[45] The Appeal Panel has considered all these matters and finds that none of the alleged errors were of sufficient magnitude to make the Review Member's findings unreasonable. While the Appellant may not have delayed his departure from Montana because the weather was below minimums, he did delay it because he was concerned about the weather. While the Review Member may have been wrong that Mr. Kardash did not watch the altimeter until the aircraft was out of the clouds, the point of his evidence is that he never saw the altimeter go below 4 000 feet, and this point was noted by the Review Member.

[46] While the statement in paragraph [88] that the HSI was sent for repair before the date of the incident is not correct, it is clear from other paragraphs that the Review Member understood from Mr. Warnke's evidence that any examination took place later. In paragraph [86], he mentioned evidence that Mr. Warnke was contacted after the incident when he found that the autopilot did not respond properly; in paragraphs [89] to [92] he outlined the actions taken with regard to the instrument, all of which took place after February 7, 2010. Finally, he repeated the Appellant's position in paragraph [101] when he stated that Mr. Warnke confirmed that he examined the HSI on February 23, 2010, and in response to a question from the Appellant, stated that he believed the problem existed on February 7, 2010.

[47] Similarly, while at one point he said that the Appellant never saw the ground on either approach, in paragraph [127], he repeated the evidence that he saw the runway lights.

[48] There was ample evidence given at the Review Hearing (Mr. Warnke, Review Hearing transcript, p. 526) that a loose cannon connecter would not affect the HSI display showing course deviation (localizer information).

[49] The Appeal Panel concludes that, while there were some mistakes in the Review Member's recounting of the evidence, when the Review determination is read as a whole, it is clear that he understood all the salient points put forward by the witnesses. Consequently, none of these mistakes, to the extent that they exist, can form a basis for overturning the Review Member's findings of fact with regard to the contraventions. His findings clearly come within the range of reasonable outcomes.

D. The Review Member's Findings on Count 3

[50] The Appellant argued that he did not contravene paragraph 602.128(2)(a) of the CARs. He believes that he had the required visual reference and denied that he descended below decision height. Paragraph 602.128(2)(a) prohibits a pilot of an IFR aircraft from continuing the final approach descent below the decision height unless the required visual reference necessary to continue the approach to land has been established.

[51] Subsection 101.01(1) of the CARs defines “required visual reference” as follows:

in respect of an aircraft on an approach to a runway, means that portion of the approach area of the runway or those visual aids that, when viewed by the pilot of the aircraft, enable the pilot to make an assessment of the aircraft position and rate of change of position, in order to continue the approach and complete a landing

[52] The Appellant has stated that he saw the “runway environment” seemingly because he saw both blue and white lights (Review Hearing transcript, p. 646). The regulatory requirement, however, is that the pilot must have the “required visual reference” and, in this case, the Appellant was so far from the centerline of the runway that it cannot be said that a glimpse of the white runway lights met that requirement as set out in the definition. In fact, when he broke through the clouds, the Appellant's aircraft was lined up with the blue lights to land on the taxiway, and insofar as he had an “environment” in sight, it was the taxiway environment.

[53] The Appellant challenged the Review Member's finding that the evidence of the Continental pilots was more credible than that of himself and his witness, Mr. Kardash, and suggested that his evidence that the ceiling was 300 feet AGL was uncontradicted. The Minister responded that findings of credibility by a Review Member should be given deference and such determinations are extremely difficult to overturn. The Appeal Panel agrees with the Minister that there is no reason to disagree with the Review Member's assessment of credibility. While the Continental pilots were understandably upset, their assessment of the height of the Appellant's aircraft was disinterested and based on many years of experience. Further support is given to their estimate of the height of the aircraft by the evidence that the runway could not be seen from the control tower, which is approximately 200 feet AGL, because of the cloud cover.

E. Due Diligence

[54] The Appellant maintains that he exercised all due diligence throughout. He pointed to the planning that he did in Montana, as well as to his monitoring the tower once across the border, checking the weather, having enough fuel to fly to an alternate airport, and checking another local airport after the first landing attempt. The Appeal Panel agrees that all of these are elements to be taken into account when determining if a defence of due diligence would apply. We find, however, that there are many other elements relating to the defence that were not followed by the Appellant.

[55] The defence is established by section 8.5 of the Aeronautics Act which provides as follows:

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.

[56] The Appellant quite properly took the weather into account when planning the flight and clearly felt that he would not land in the prevailing conditions. His evidence concerning that was quite specific: “I am not going to do that” (Review Hearing Transcript, p. 638). He took precautions to avoid having to land in conditions that he considered unsuitable. These precautions included a delay in taking off because the weather forecast was for a later improvement. In spite of the delay, however, he arrived at Calgary before this improvement. At that point, he could have decided to go to an alternate airport since he had prepared for that eventuality. Alternatively, he could have circled the Calgary International Airport since he knew that the weather there was forecast to improve. Either of these alternatives would have been a continuation of the due diligence that was exercised in planning the flight.

[57] Instead, he decided to carry out an ILS landing, and in the course of his first two attempts, committed a number of contraventions. His position is that these contraventions were the result of an intermittent instrument failure that caused the autopilot to malfunction. Instrument malfunction, however, is not in itself a defence although it may support such a defence if it is shown that the instrument has been maintained in accordance with the regulatory requirements, and that there have been no earlier indications of malfunction and also, and in this case more importantly, that there were no other means of avoiding the contravention.

[58] The Appellant's evidence with regard to the first attempt at landing is that he knew that something was wrong and thought he was having trouble with the autopilot, so he disengaged and reengaged it during the descent. Several witnesses, including the Appellant's witnesses, Mr. Warnke and Stephen Kennedy, testified that, at this point, a prudent pilot would switch off the autopilot and hand‑fly the aircraft. This circumstance forms the basis of instrument flying; the ability to execute a hand-flown instrument approach to a decision height and, upon not seeing the required visual cues for a safe landing, to execute a missed approach. In addition, the Appellant failed to follow procedures in failing to initiate a go-around at decision height. Instead, he relied on the length of the runway in the hopes of obtaining the required visual range at a point where he would still be able to land.

[59] Nevertheless, the Appellant continued to use the autopilot although his testimony was that during this period he took a couple of glances at the global positioning system (GPS) which was giving him different information (Review Hearing transcript, p. 643). He did not, however, realize that his aircraft had turned more by than 45 degrees until after he had been instructed to carry out a missed approach on the runway heading of 163 degrees, when he “looked up” and saw on the HSI that his heading was 100 degrees. After carrying out a missed approach, he then attempted to land a second time, relying on the autopilot although he was informed that he was east of the glide path, and eventually lining up with Taxiway Charlie, rather than the runway.

[60] The Appellant claimed that the problems he encountered were caused by a loose cannon connector in back of the HSI which caused problems with the autopilot function and errors in the course deviation indicator (CDI), and by worn bearings in the HSI that were sticky at inopportune times, causing aircraft heading errors.

[61] While there is evidence that problems were subsequently identified with the HSI that may have caused problems on an intermittent basis, the Appeal Panel is asked to infer that these problems were occurring on February 7, 2010, to the extent that they caused the aircraft to function in a manner that resulted in the difficulties in the first two approaches. The actual evidence, however, was that the worn bearings could have caused sticking of the HSI. The Appellant's expert witness, Mr. Warnke, also stated that heading indication errors caused by sticky bearings would not occur suddenly and for the first time in such a manner. He said that “typically, what happens is … it will totally fail after some time but they gradually become more and more intermittent until a failure is noticed by the operator” (Review Hearing transcript, pp. 513‑514), and that “these bearings do not fail suddenly. They get poorer and poorer over a long period of time” (Review Hearing transcript, p. 516). Yet no evidence was introduced, either orally or through logbook entries, that this latent problem had been developing before February 7, 2010. Furthermore, there was also evidence throughout the Review Hearing (for example, Mr. Warnke's evidence, Review Hearing transcript, p. 526) that a loose cannon connector would not affect the HSI display showing course deviation, for example, localizer information.

[62] Furthermore, it seems that the HSI was accurate at the time of the first go-around since it showed that the aircraft was on the same heading as that indicated by the radar.

[63] More importantly, even if the HSI was not accurate, the Appeal Panel notes that there were other instruments that were working correctly that would have informed the Appellant of his true heading had he been scanning them rather than concentrating on the autopilot problems. Compliance with the ATC instructions on both missed approaches did not require the use of a CDI or autopilot. They needed only heading and altitude references both of which were available and accurate.

[64] The defence of due diligence requires that the pilot exercise good airmanship. While some aspects of airmanship are established by regulation, many others are dependent upon the exercise of good judgment and accepted practices. The Appeal Panel is of the opinion that the Appellant failed to follow the practices that characterize good airmanship during his first two attempts to land at the Calgary International Airport. First of all, he attempted to land in weather conditions that he had earlier recognized were unsuitable. Then, he failed to follow the accepted practice of turning off the autopilot when it was malfunctioning and hand‑flying the aircraft. He compounded this error by relying on the autopilot during the second approach. While relying on the autopilot, he did not review other instruments that would have given him correct information or, if he did, as with the GPS on the first attempt, he did not pay adequate attention to that information. He conducted the second approach in such a way that he could not, in his opinion, immediately follow the ATC instruction for a missed approach because his speed or energy was such that he feared that the aircraft would stall if he did so. Failure to take any of these steps makes it clear that a defence of due diligence is not available.

[65] The Appeal Panel notes that the Appellant objected to the Review Member's statement in paragraph [226] of his Determination that the Appellant and his passengers are lucky to be alive. The Appeal Panel agrees with the statement of the Review Member.

VI. DECISION

[66] The Appeal is dismissed and the Determination of the Review Member is upheld. The thirty (30) day suspensions for counts 1 and 2 shall be served concurrently and the sixty (60) day suspension for count 3 is maintained for a total suspension of ninety (90) days.

March 18, 2013

Reasons for the Appeal Decision: Elizabeth A. MacNab, Member

Concurred by: P. Terry Dowd, Member

Arnold Olson, Member