TATC File No. C-4156-33
MoT File No. 5504-084324 P/B
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Patrick William George Miles, Applicant
- and -
Minister of Transport, Respondent
section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A-2
subsection 602.31(1) of the Canadian Aviation Regulations (SOR/96-433)
Decision: August 3, 2016
Citation: Miles v. Canada (Minister of Transport), 2016 TATCE 20 (Review)
Heard in: Calgary, Alberta, on June 15, 2016, at the Courts Administration Centre
REVIEW DETERMINATION AND REASONS
Held: The Minister of Transport has proven, on a balance of probabilities, that the contravention of subsection 602.31(1) of the Canadian Aviation Regulations by the applicant occurred. The monetary penalty assessed by the Minister of Transport pursuant to section 7.7 of the Aeronautics Act is hereby confirmed and payable by the applicant.
The total amount of $750 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this determination.
 On July 6, 2014 at Springbank Airport, Alberta, the applicant was the pilot-in-command of a Piper PA-18-135 aircraft, bearing Canadian registration mark C-FWGM (“FWGM”). It is alleged by the respondent, the Minister, that the applicant failed to comply with air traffic control instructions to follow a Cessna 172 aircraft turning final for Number 3 in sequence to land on Runway 35 at Springbank Airport, contrary to subsection 602.31(1) of the Canadian Aviation Regulations (SOR/96-433) (CARs).
II. Statute and Regulations
 Subsection 7.7(1) of the Aeronautics Act, R.S.C., 1985, c. A-2, as amended, provides that:
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, in which case the Minister shall … notify the person of his or her decision.
 In this case, the Minister assessed a monetary penalty of $750 against the applicant for the alleged contravention of subsection 602.31(1) of the Canadian Aviation Regulations, which states:
602.31(1)... the pilot-in-command of an aircraft shall
(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and
1) William Scholefield
 Mr. Scholefield testified that he is an investigator in the civil aviation enforcement department of the Prairie and Northern Region of Transport Canada, and has held this position since December 1, 2010. In such capacity, Mr. Scholefield investigates incidents that occur outside of the ordinary, as reported in the Civil Aviation Daily Occurrence Report System (CADORs); detection notices from other inspectors; and complaints from the public and other agencies. The CADORs report for July 6, 2014 (Exhibit M-1) was entered into evidence and Mr. Scholefield advised that he was requested by his manager to investigate the incident in question referred to in the report. Referring to this CADORS report, he testified that at approximately 1910 Zulu hours (13:10 local time), a privately registered Piper PA-18-135 aircraft on a local flight in the Springbank Airport area cut off circuit traffic, namely a Springbank Air Training College Cessna 172P, registration mark C-FDAJ (“FDAJ”), also on a local flight, which the Piper aircraft was sequenced by air traffic control to follow. The CADORs report further stated that FDAJ was instructed to climb and that a Geolyn Pipe Inspection Services Cessna 340A, registration mark C-GREY, on an IFR flight in the Springbank area, also was pulled up.
 Mr. Scholefield advised that he investigated the incident and referred to the Continuing Airworthiness Web Information System for the Piper aircraft in question (Exhibit M-2), namely registration mark C-FWGM (“FWGM”) which, among other matters, indicated the registered owner of that aircraft as being the applicant herein. Mr. Scholefield also referred to the Distributed Air Personnel Licensing System (Exhibit M-3), indicating that the applicant is properly licensed to operate a private pilot aircraft and single engine, land and sea aircraft, and that the applicant's medical report was current at the time of the incident. Mr. Scholefield then referred to the aircraft journey log for FWGM (Exhibit M-4), which indicated the departure and destination points of FWGM that day as being Springbank Airport, and that the incident in question occurred at 1:10 p.m. local time and took place approximately 10 minutes prior to the aircraft landing at Springbank Airport.
 Mr. Scholefield identified a request for information that he prepared and submitted to the site manager for airport operations at Springbank in NavCanada (Exhibit M-5) and stated that he reviewed NavCanada's audio disk for July 6, 2014 and the Winrad radar data disk for the same date.
 Mr. Scholefield testified that he prepared a summary (Exhibit M-8) of the audio disk in respect of the incident on July 6, 2014, covering 12:55 p.m. to 1:06 p.m. (local time) and stated that, based on the audio and radar disks, the applicant was cleared by NavCanada for left downwind for Runway 35 and was requested to make a right-hand circuit due to traffic ahead. Mr. Scholefield also testified that the audio communication indicated that the applicant was instructed by air traffic control that he was Number 3 to follow the Cessna 172 aircraft that was turning final and that the applicant then advised air traffic control he was looking for the Cessna 172 aircraft. The Cessna 172 aircraft was then instructed to climb and FWGM cut in front of the Cessna 172 aircraft. Mr. Scholefield stated that after cutting in front of the traffic to the left side, FWGM was instructed by air traffic control to continue into landing at Springbank Airport as Number 2. Mr. Scholefield testified that this series of incidents indicated that the applicant had not followed the instructions given by the air traffic controller.
 On cross-examination and re-examination, Mr. Scholefield stated that NavCanada is independent of Transport Canada but must comply with the Aeronautics Act and the Canadian Aviation Regulations.
2) Nicholas Vanlaast
 Mr. Vanlaast advised that since April 2015, he has been an air traffic controller at Calgary International Airport and, at the time of the incident, was an air traffic controller at Springbank Airport, a position he held since February 2012. Mr. Vanlaast testified that the role of an air traffic controller is to provide a safe, orderly and expeditious service to air traffic, including provision of flight information services and notices to airmen pertinent to flight, traffic and flight safety matters. He also said that air traffic controllers apply numerous separation standards to aircraft above and beyond the general goal of safety, orderliness and expeditious service.
 Mr. Vanlaast referred to the air traffic controller logbook from Springbank Airport for July 6, 2014 (Exhibit M-9) and, in particular, to the recording therein of the incident in question on July 6, 2014 at 1:10 p.m. local time.
 Mr. Vanlaast also referred to the audio disk recording of communications on the day and times of the incident between air traffic control at Springbank Airport and pilots of aircraft in the vicinity of, and departing to and from, the airport. Mr. Vanlaast explained the audio disk reference to FWGM as sequence Number 3 to follow a “172” that was crossing the highway being a reference to FWGM being directed to follow FDAJ to land.
 Mr. Vanlaast testified as to the contents of a video disk displaying the radar feed at Springbank Airport on the date and times in question and explained that air traffic control uses radar feed as one of a number of sources of surveillance to assist in maintaining aircraft situational awareness. Mr. Vanlaast stated that through the use of radar feed, controllers are able to review the situation of highways and rivers in the airport vicinity.
 Referring to the radar feed, Mr. Vanlaast testified that FWGM was in a climb, FDAJ was approaching the airport from the vicinity of Highway 8, and another Cessna 172 aircraft, registration C-FSKF (“FSKF”), was approaching the airport for landing from the north so that aircraft circuiting was being established by air traffic control. Mr. Vanlaast also stated that the three aircraft were approximately one mile to one and a half miles apart. He stated that the pilot of FWGM indicated that he was looking for traffic and that upon FDAJ joining the final approach and descending out of 6000 feet, it became evident that FWGM was turning into the base leg of the circuit in front of FDAJ. Mr. Vanlaast testified that it became evident to him that a conflict situation existed and, therefore, he issued instructions to FDAJ to climb to 5500 feet to de-conflict. In order to keep traffic moving, Mr. Vanlaast directed FWGM to land.
 Mr. Vanlaast advised that he was also a licensed commercial pilot and that when a pilot is sequenced, it is the pilot's responsibility to visually check the aircraft preceding him to land. Mr. Vanlaast stated that FDAJ had a new LED running light so that the aircraft was visible 5 miles away, and thus an aircraft 1000 feet above FDAJ on a fair weather day could clearly see it.
 In response to the Minister's question as to what a pilot should do if the pilot does not understand a controller's directions, Mr. Vanlaast stated that the pilot should clarify the directions with the air traffic controller and that, where no official phraseology exists, plain language clarification is used. Mr. Vanlaast also stated that based on the time and controller directions given to FWGM in this situation, there was nothing that should have prevented the pilot of FWGM from complying with the air traffic control directions.
 Mr. Vanlaast advised that traffic volume at Springbank Airport on July 6, 2014 was moderate until the occurrence in question, and the occurrence caused the traffic volume to increase. He indicated it was not the busiest day that he had encountered at the airport. On cross-examination, Mr. Vanlaast also advised that Springbank Airport consistently ranks between the tenth and fifteenth busiest airports in Canada, with average movements in the range of 135,000 per year. He stated that traffic does not necessarily increase on weekends when the incident in question occurred and, although the general aviation community is out in force on the weekends and evenings, professional pilot training programs do cause traffic to increase during the week.
 Mr. Vanlaast testified that on July 6, 2014, there was a controller staffing issue at the airport and only three controllers were on staff that day. Ordinarily, one controller would run a ground position to operate traffic on the taxiways and inactive runway, and handle IFR clearances; a second inner tower controller would be responsible for the active runway and traffic circuit from the surface to 1000 feet, and the sequencing of arrivals and departures; and a third outer tower controller would initially give clearance limits so that the inner tower controller could better integrate the arrival and departure stream. On that particular day, Mr. Vanlaast was working both the inner and outer tower controller positions.
 Mr. Vanlaast also stated that in regard to VFR aircraft, separation of aircraft for a landing approach, as determined by air traffic control, is not referred to by distance but rather by timing. He indicated that based on certain assumptions as to runway occupancy and approach speeds of most general aviation aircraft, the separation standard is approximately one mile.
 Mr. Vanlaast also testified that there is no requirement for air traffic control to identify the aircraft another aircraft is to follow in landing, and it is up to the pilot to maintain awareness of which aircraft it is following.
 Mr. Vanlaast confirmed that as an air traffic controller, he did not assume that a pilot viewing the situation from the cockpit window would know the sequence to follow because a pilot is not privy to all the information that the controller has. Mr. Vanlaast also testified that he sequenced FSKF as Number 1 for the landing runway and indicated that verbally so all pilots could hear; that FDAJ was told it was Number 2; and FWGM was advised it was Number 3. Mr. Vanlaast stated that although visually a pilot cannot differentiate one Cessna 172 aircraft from another, and both FSKF and FDAJ were Cessna 172 aircraft, the responsibility for aircraft differentiation is not that of the pilot. Mr. Vanlaast clarified his earlier statement concerning aircraft separation and confirmed that air traffic controllers separate by a certain distance but that the appropriate separation calculation is based on time and not distance. He stated that there is no requirement to keep VFR aircraft who are aware of each other separate by any distance or range unless there is a weight turbulence issue. Mr. Vanlaast also testified that the distance separation translates to time to enable air traffic control to ensure there is adequate separation, and the aircraft in this case could have been separated by a quarter of a mile apart or less and still be adequately separated.
 Mr. Vanlaast confirmed that the applicant did not ask the controller for clarification as to which Cessna 172 he was to follow and that between two VFR aircraft, conflict resolution information by air traffic control is provided to pilots on request but, in this case, no resolution information was requested by the applicant.
 The applicant referred to the audio disk and indicated that the airport was very busy at the time of the incident, and referred in general to infractions by other pilots on the day in question.
 The applicant testified that he did not disagree that he had cut off FDAJ in landing but stated that there were mitigating circumstances and that reviewing the audio disk would indicate other circumstances that same day pursuant to which the air traffic controller's instructions were not followed or were misinterpreted by other pilots. Also, because air traffic control was at times so busy during the day, the controller did not properly advise the applicant of the traffic he had to follow. The applicant also stated that because Mr. Vanlaast was handling both inner and outer controller positions, there was confusion generally that contributed to the incident. The applicant indicated that at one point the controller advised all traffic to “stop talking”.
 In response to the Chair's questions as to whether the audio recording evidenced how the allegation of overly busy traffic at the time of the incident impacted the applicant's particular situation, the applicant responded in the negative. The applicant stated that according to his spatial orientation, the aircraft were stacked together and that he found it difficult to see other aircraft due to the angles of the applicant's aircraft and those of the other aircraft. He also referred to Mr. Vanlaast's previous testimony concerning the “norm” of a one-mile aircraft separation.
 The applicant testified that the traffic was so close together that he misinterpreted the traffic he was to follow and did not confirm instructions to air traffic control because the air traffic controller was handling two controller positions, the airport was very busy and the applicant did not want to further interrupt the air traffic controller. The applicant confirmed that based on his experience at the airport and judging distance from the river, he mistakenly thought that he was to follow landing as Number 2 behind FSFK, rather than behind FDAJ, and he did not confirm with the air traffic controller because of the controller's anxiety level. The applicant testified that although he had not confirmed with or asked for additional information from air traffic control, he was following the aircraft he thought he had to follow.
 Paragraph 602.31(1)(a) of the CARs states that the pilot-in-command of an aircraft shall comply with and acknowledge to the appropriate air traffic controller the air traffic control instructions directed to and received by such pilot. There are no conditions in section 602.31 that modify or lessen such mandatory obligation on the part of the pilot-in-command.
 The elements of the violation as per paragraph 602.31(1)(a) of the CARs and the charge in the Notice of Assessment of Monetary Penalty are as follows:
1) Patrick William George Miles was the pilot-in-command of a Piper PA-18-135 aircraft (registration C-FWGM) on July 6, 2014 at the Springbank Airport;
2) Mr. Miles failed to comply with an air traffic control instruction, more specifically: he failed to follow a 172P aircraft turning final, for Number 3 in sequence to land on Runaway 35.
 In this case, there is no issue that the applicant was operating FWGM on July 6, 2014 at the time the incident occurred; therefore, the first element of the violation was proven. The audio evidence and evidence given by Mr. Vanlaast indicates that the applicant, operating FWGM, was instructed by the air traffic controller, Mr. Vanlaast, that he was Number 3 in sequence and was to follow a Cessna 172 aircraft turning final on Highway 8. There were two Cessna 172 aircraft in sequence, namely FSKF and FDAJ, and Mr. Vanlaast testified that the applicant did not seek to clarify which of the two Cessna aircraft he was to follow. Mr. Vanlaast also testified that he instructed the pilots of the three aircraft in question as to which aircraft was sequenced as Number 1, 2 and 3. Mr. Vanlaast also stated that the applicant's failure to acknowledge or comply with the directions he gave resulted in the diversion of FDAJ. The second element of the violation was proven.
 The applicant has admitted that he cut in front of FDAJ but testified that there were mitigating factors. He indicated that based on his experience and visual awareness, he mistakenly understood that he was Number 2 in sequence and therefore he followed the incorrect aircraft. He also testified that he did not seek clarification from air traffic control because the airport and controller were so busy that he did not wish to further bother the air traffic controller.
 The applicant testified that the air traffic controller said the separation between the traffic was one-half mile, which the applicant stated to be unusually close spacing, resulting in the applicant's confusion as to spatial orientation of the aircraft. The applicant also testified that other pilots that day were misinterpreting the controller's instructions and in another instance, another pilot did not sequence according to the controller's directions. However, the applicant did not introduce evidence as to his allegation that the airport was extraordinarily busy on the day in question and Mr. Vanlaast, who has worked as an air traffic controller at the airport since early 2012, testified that traffic on that day was moderate until the incident occurred.
 The applicant stated that he felt he “had the traffic” based on the distance that the controller stated but he was mistaken. The applicant admitted he should have sought clarification but did not do so because he viewed the controller as being overworked. Therefore, although the applicant may have been under an honest misapprehension as to which aircraft to follow, he admitted he did not seek clarification from the air traffic controller, and it cannot be considered as a defence of due diligence.
 In accordance with subsection 603.31(1), the pilot's responsibility is not to independently determine aircraft sequencing for landing, no matter how experienced the pilot is and how knowledgeable he may be of the airport in question, but to follow air traffic control instructions, including as to sequencing, and to comply with and acknowledge to air traffic control the directions received. The applicant in this case was clearly directed as to sequencing, as evidenced by the audio communication and the testimony of Mr. Vanlaast, but he did not comply with the controller's directions and did not seek clarification. There is no evidence of mitigating circumstances in this matter that would justify such noncompliance or non-acceptance of direction by air traffic control.
 Having heard the evidence and submissions of both parties, it is clear that the Minister has proven the offence as alleged. The penalty assessed by the Minister is fair in the circumstances considering the safety issues that could arise from non-compliance with air traffic control directions. Therefore, I see no reason to interfere with the penalty assessed by the Minister.
 The Minister of Transport has proven, on a balance of probabilities, that the contravention of subsection 602.31(1) of the Canadian Aviation Regulations by the applicant occurred. The monetary penalty of $750 assessed by the Minister of Transport pursuant to section 7.7 of the Aeronautics Act is hereby confirmed and payable by the applicant.
August 3, 2016
Laura Safran, Q.C.
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