Decisions

CAT File No. C-1349-33
MoT File No. RAP-6504-P-294616-028484

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Joseph André Sylvain Bergeron, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2,s. 7.7
Air Regulations, C.R.C. 1978, c.2, s.521(b)

Pattern of traffic


Review Determination
Philip D. Jardim


Decision: April 25, 1997

I have determined that Captain Bergeron acted contrary to paragraph 521(b) of the Air Regulations. The monetary penalty of $200 assessed by the Minister must stand. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within 15 days of service of this determination.

The Review Hearing on the above matter was held Tuesday, April 22, 1997 at 10:00 hours at the Sunset Inn, at Sioux Lookout, Ontario.

BACKGROUND

On May 16, 1996 at approximately 20:10 hours UTC there were at least four aircraft at or in the vicinity of Sioux Lookout Airport (CYSL). One of these aircraft was a Beechcraft Super Kingair 200, C-FCGU, under the command of Captain Bergeron. The wind velocity (w/v) was in the order of 120/10 – 15, and the traffic pattern was established with runway 16 in use. A Cessna 185, C-GEXS, was actually on long final for runway 16, when Captain Bergeron elected to take off on the opposing runway 34. This caused C-GEXS to take avoiding action to avert a collision, and he executed a 360-degree turn to the right.

The FSS Specialist on duty, Alan Penfold, filed a report on this incident with Transport Canada in Winnipeg. An investigation ensued, and a monetary penalty of $200.00 was assessed against Captain Bergeron, citing him for a violation of paragraph 521(b) of the Air Regulations. Captain Bergeron did not pay the monetary penalty, and the Minister applied to the Tribunal for a hearing.

THE LAW

Paragraph 521(b) of the Air Regulations states as follows:

521. The pilot-in-command of an aircraft operated on or in the vicinity of an aerodrome shall

(...)

(b) conform with or avoid the pattern of traffic formed by other aircraft in operation;

(...)

THE EVIDENCE

At 10:00 hours all of the Minister's representative and witnesses were present and ready for the Hearing. Captain Bergeron had not yet arrived, nor had he communicated his intentions to anyone. I postponed the start of the hearing for thirty minutes to give Captain Bergeron time to either arrive or communicate his intentions. This hearing had originally been scheduled for February 20, 1997 and was postponed to April 22, 1997 at Captain Bergeron's request. Captain Bergeron again approached the Tribunal April 15, 1997 for a further postponement, citing personal reasons and a new job in Toronto. The Minister had vigorously opposed any further postponement, and the Tribunal Registrar, after considering the request, denied it. This was communicated to Captain Bergeron April 15, 1997.

Further, Mr. Richard Gagnon, who was presenting the Minister's case, said that he had tried to contact Captain Bergeron over the preceding two days, right up to the night before the hearing, without success. He understood that Captain Bergeron had found a position with a Toronto-based company, and had flown to Windsor the night before.

At 10:30 hours, I asked Mr. Gagnon to proceed as there was still no sign of, nor word from, Captain Bergeron. Mr. Gagnon called two witnesses, Mr. Ray Brown and Mr. Alan Penfold. Mr. Penfold was excluded during Mr. Brown's testimony.

A series of seven exhibits was tabled by the Minister, including a map of the area (Exhibit M-3), tape recordings of the Flight Service Station (FSS) at Sioux Lookout and Winnipeg ATC, aircraft transmissions and telephone conversations between the FSS and Winnipeg ATC (Exhibit M-4). Exhibits also documented the fact that Captain Bergeron was the pilot-in-command of C-FCGU, and included a letter from Captain Bergeron to Transport Canada.

Arising out of the evidence and the exhibits, the following points are clear:

(1) At the time of the incident, the traffic pattern at Sioux Lookout Airport had established runway 16 as the active runway. The surface wind was in the order of 120/10 – 15Kt.

(2) There were at least four aircraft at or in close proximity to the airport: A Cessna 185, a Cessna 210, a Beaver and C-FCGU – the King Air 200.

(3) The Cessna 185 was on final approach for runway 16, the 210 had just landed on that runway, and the Beaver had just lifted off the adjacent Lake Bigwood and was northwest bound.

(4) Notwithstanding (3) above, and with the full knowledge of all the traffic, Captain Bergeron elected to take off on the reciprocal runway 34. His original Air Traffic Control (ATC) clearance to Big Trout Lake was predicated on a departure from runway 16. He requested the FSS to change this to a runway 34 departure.

(5) This action caused the Cessna 185, C-GEXS, to take evasive action – executing a wide right-hand 360-degree turn. Captain Bergeron's decision to use runway 34 also put him in potential and unnecessary conflict with the Beaver.

(6) Inspector Brown had made all reasonable efforts to contact him prior to imposing the monetary penalty, but Captain Bergeron avoided replying to Mr. Brown. In his letter (Exhibit M-5) written to Transport Canada, only after Transport Canada's imposition of the sanction, Captain Bergeron sought to explain his actions. He sought to lay blame on the Beaver pilot and the FSS. He says, inter alia, in his letter that "...we were now establishing a new active RWY (runway) in RWY 34 and all other traffic should conform to that RWY."

(7) In his letter to Transport Canada, written some four months after the incident, it is apparent that Captain Bergeron was obsessed with saving time, since he had suffered earlier delays due to weather the day of the flight. Not only did his actions not save him time, but they also endangered the lives of persons in his aircraft, in the Cessna 185 and possibly in the Beaver. Had he adhered to his original clearance, and the established traffic pattern at Sioux Lookout at that time on May 16, 1996, he would not have created any conflict, and he would have arrived at Trout Lake in the same time frame, in a completely safe manner.

(8) Although an FSS Specialist does not have the authority of an Air Traffic Controller, in these circumstances, and seeing the folly that Captain Bergeron was about to commit, a comment on the dangers of using runway 34 would have been appropriate.

(9) In addition to alleged breaches of paragraph 521(b) of the Air Regulations, Captain Bergeron could also have been cited for alleged breaches of the following additional sections of the Air Regulations (Exhibit M-7):

520(1)  Negligent or reckless operation of an aircraft endangering life or property.
521(e)  Not taking off into the wind.
523      Creating a collision hazard.
529      Not giving way to other aircraft landing.
531      Attempting to take off when there is risk of collision.

DETERMINATION

In the circumstances, I find that, if anything, Transport Canada has been lenient in this case. Mr. Gagnon is to be complimented on his clear and concise presentation of the facts to the hearing.

At the conclusion of this Review Hearing, I have determined that Captain Bergeron acted contrary to paragraph 521(b) of the Air Regulations. The monetary penalty of $200 assessed by the Minister must stand.

Philip D. Jardim
Member
Civil Aviation Tribunal