CAT File No. C-1429-02
MoT File No. RAP 6504-P236134-029310
CIVIL AVIATION TRIBUNAL
Peter Nagnibeda, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, S.C., c.A-2, s.6.9
Air Navigation Orders, V, No. 34, s.6(a)
Air Regulations, C.R.C. 1978, c.2, s.521(b), 529
Failure to Report Departure Intentions, Failure to Give Way, Due Diligence, Defenses, Pattern of Traffic, Reports on Departure
William C. Pearson, Q.C.
Decision: June 4, 1997
I am not satisfied that the onus of the Minister has been met in Count 1. I therefore dismiss Count 1 and the four-day suspension. In Count 2, I reach the conclusion that once Ministic 300 lets Skyward 752 roll on runway 22 then that aircraft sets the pattern. I therefore dismiss Count 2 and the four-day suspension. I am satisfied that count 3 has been proven. The seven-day licence suspension for Count 3 seems adequate. I will not change it. The suspension shall commence fifteen days after service of this determination.
A Review Hearing on the above matter was held Tuesday, May 6, 1997 at 10:00 hours at the Federal Court of Canada in the city of Winnipeg, Manitoba.
The Applicant was alleged by the Minister to have committed the following contraventions:
Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):
COUNT #1: Air Navigation Order V, No. 34, para 6(a) in that, at approximately 10:00 hours CDT on October 4, 1996, at or near St. Theresa Point, Manitoba, being the pilot-in-command of an aircraft, to wit, an Embraer 110P1, bearing Canadian registration marks C-FSKJ, and being operated as Skyward 752, you did unlawfully fail to report your departure intentions prior to moving onto the take-off runway, when departing from an uncontrolled aerodrome for which a mandatory frequency has been designated.
FURTHER, in that, at approximately 10:00 hours CDT on October 4, 1996, at or near St. Theresa Point, Manitoba, being the pilot-in-command of an aircraft, to wit, an Embraer 110P1, bearing Canadian registration marks C-FSKJ, and being operated as Skyward 752, operated on or in the vicinity of an aerodrome, you did unlawfully fail to conform with or avoid the pattern of traffic formed by other aircraft in operation; a violation of Air Regulation 521(b).
FURTHER, in that, at approximately 10:00 hours CDT on October 4, 1996, at or near St. Theresa Point, Manitoba, being the pilot-in-command of an aircraft, to wit, an Embraer 110P1, bearing Canadian registration marks C-FSKJ, and being operated as Skyward 752, while manoeuvring on the ground, you did unlawfully fail to give way to other aircraft landing or about to land; a violation of Air Regulation 529.
On October 4, 1996, the Applicant, who had landed at St. Theresa Point, prepared to take off for Thompson on runway 22 on which he had landed only a few minutes before as the winds were 170 at 5. Before moving his aircraft, the Applicant did his checks at the ramp and then moved along the taxiway to runway 22. After looking both ways, he entered the said runway and began back tracking. The Applicant states that he made the required announcement on both 122.2, the mandatory frequency, and 126.7 at the ramp and again before he entered the runway from the taxiway. He received no acknowledgement. While he was back tracking, he heard Ministic 300 calling that it was on final for runway 04 and 5 miles out. The Ministic flight 300 was directed to report on final by Winnipeg Radio.
Ministic 300 then reports on final but, upon seeing the Applicant back tracking on runway 22, breaks off its final approach and enters the circuit downwind for runway 04 as stated in the transcript of the FSS tape (Exhibit M-6): "We'll cross over to rejoin left downwind for 04 here, we'll just see if he can get away here." Skyward 752 finally makes contact with Winnipeg Radio after it is airborne from runway 22 clearing with a right turn out for Thompson.
From this array of facts, another must be added. This is the Notam issued for St. Theresa (Exhibit D-l), indicating a blind spot in radio transmissions on the runway and ramps at St. Theresa.
The following possibilities have been considered:
- The radios of Skyward 752 were not working.
- Transmissions of Skyward 752 on the ground were being stepped on.
- Transmission of Ministic 300 to Skyward 752 was stepped on because of Skyward 752 transmission to Winnipeg Radio.
- The blind spot affects more than transmission to Island Lake and Winnipeg.
I dismiss the first possibility because, as soon as Skyward 752 was airborne, communication was established with Ministic 300 and with Winnipeg Radio. Thus all transmissions made by Skyward 752 on the ground were lost or not recorded.
It would appear that, unless aircraft on runway 22 at St. Theresa are able to contact Island Lake, no transmission of such aircraft will be heard by any other aircraft or Winnipeg Radio. I reject No. 2 above as there was clear evidence that Skyward 752 on the ground had no communication to Island Lake and Winnipeg Radio. It would be a remarkable situation, and calling for an incredible set of circumstances, to have Skyward 752 transmissions stepped on by Ministic 300 or vice versa. I conclude that the blind spot on St. Theresa affects the transmission to Island Lake and Winnipeg Radio.
Having reached this conclusion of fact, I must apply it to the alleged contraventions:
The evidence by Mr. Nagnibeda was that he did make the required announcement of his departure while on the ramp. He did not, however, get a response. While back tracking, he said he heard Ministic 300 advise on final for runway 04, but Ministic 300 could not hear him until he was airborne off runway 22. Mr. Nagnibeda states that he announced his intentions to depart St. Theresa, but nobody heard him because of a blind spot to Island Lake. As the onus is on the Minister to establish that he did not make the departure announcement, I am not satisfied that the onus has been met. Count 1 is therefore dismissed.
The evidence is clear that the wind was 170 at 5. Mr. Nagnibeda had landed on runway 22. When he was told by Ministic 300 that it was on runway 04 final, but that he should take off while Ministic 300 joined the circuit downwind for runway 04, Mr. Nagnibeda did just that. On climbing out, he made a climbing right turn. This is alleged to be a breach of failing to "conform with or avoid the pattern of traffic formed by other aircraft." I am not sure who is forming the traffic pattern: Ministic 300 proposing to land on runway 04, or Skyward 752 taking off on runway 22. Certainly Ministic 300 could see Skyward 752 on the ground and watch its take-off on runway 22 (Exhibit M-7). Ministic 300 took evasive action but, being the overtaking aircraft, it properly yielded to Skyward 752. I reach the conclusion that once Ministic 300 lets Skyward 752 roll on runway 22, then that aircraft sets the pattern. I therefore dismiss Count 2.
The evidence is clear that Skyward 752 failed to give way to Ministic 300. It is not clear just where Skyward 752 was on the runway, but it was back tracking on runway 22. Skyward 752 continued to the end of runway 22, turned about and took off. Until Skyward 752 was airborne at 1100 AGL, the blind spot on the radio prevented communication with anybody, including Ministic 300. The contravention is that Mr. Nagnibeda failed to "give way to other aircraft landing or about to land." The evidence is clear that, because Skyward 752 was on the runway, it did not give way to Ministic 300 which was on final and had to abort its landing. I am satisfied that count 3 has been proven.
As to sanction, the seven-day licence suspension seems adequate. I will not change it. The suspension shall commence fifteen days after service of this determination.
William C. Pearson, Q.C.
Civil Aviation Tribunal
Allister W. Ogilvie, Gordon R. Mitchell, Pierre Rivest
Decision: November 3, 1997
We find that the defence of due diligence has been made out. We allow the appeal by the document holder and dismiss the Minister's allegation.
An Appeal Hearing on the above matter was held before the designated Tribunal Members, Wednesday, October 15, 1997 at 10:00 hours at the Federal Court of Canada in the city of Winnipeg, Manitoba.
The Appellant, Mr. Nagnibeda, appealed a ruling handed down June 4, 1997 by Mr. W.C. Pearson, Q.C. The Review Hearing arose from an occurrence at St. Theresa Point airport, Manitoba. It was alleged that Mr. Nagnibeda — the pilot-in-command of Skyward 752 — taxied out onto the active runway when another aircraft, Ministic 300, was on final approach. That manoeuvre resulted in allegations of three violations. They may be summarized as follows:
Count 1: a violation of paragraph 6(a) of Air Navigation Order, Series V, No. 34 in that Mr. Nagnibeda unlawfully failed to report his departure intentions on a mandatory frequency prior to moving onto the take-off runway;
Count 2: a violation of paragraph 521(b) of the Air Regulations in that Mr. Nagnibeda did unlawfully fail to conform with or avoid the pattern of traffic formed by other aircraft in operation;
Count 3: a violation of section 529 of the Air Regulations in that Mr. Nagnibeda did unlawfully fail to give way to other aircraft landing or about to land.
Counts 1 and 2 were resolved in favour of Mr. Nagnibeda. Regarding count 1, Mr. Pearson held that he was not satisfied that the Minister's onus had been met. As to count 2, the Member held that once Ministic 300 let Skyward 752 roll on runway 22, then that aircraft (752) set the traffic pattern.
As regards count 3, Mr. Pearson stated:
The evidence is clear that, because Skyward 752 was on the runway, it did not give way to Ministic 300 which was on final and had to abort its landing. I am satisfied that count 3 has been proven.
It is from that finding that Mr. Nagnibeda now appeals.
GROUNDS FOR APPEAL
Counsel for Mr. Nagnibeda filed an appeal in the following form:
It is the position of the Appellant that the finding of the hearing officer, that Mr. Nagnibeda violated Air Regulation 529, is inconsistent with the evidence and contrary to a finding of fact. It is the position of the Appellant that due diligence was exercised and that due diligence is a defence to the alleged offence.
In accord with his filed appeal, Mr. Tweed, counsel for the Appellant, contended that the violation in question was to be construed as a strict liability offence and, as such, the defence of due diligence applied.
He stated that Mr. Nagnibeda's testimony was that he had looked both ways before entering the runway and had made the appropriate attempts at communication. Also, he pointed out that there was no evidence as to the view afforded, or the ability to see from the cockpit of that aircraft.
The evidence of the Captain in training, Mr. Yuill, was that his aircraft was about four miles back when it sighted Skyward 752. Given the lack of evidence of the view and the evidence that the aircraft was four miles away, Mr. Tweed argued that it would not be unreasonable for Mr. Nagnibeda to have looked but not have seen an aircraft at that distance.
Mr. Nagnibeda's testimony was that turning around was not practical, once hearing Ministic 300, due to the soft shoulders of the runway. In short, Mr. Tweed argued that Mr. Nagnibeda had done all that he was supposed to do, thus establishing due diligence.
The Minister's representative, Ms. Edith Holly, gave oral argument, complemented by written submission. She argued that the Minister had proven all elements of the offence and that the defence raised was not proven on a balance of probabilities. She submitted that the Member's findings of fact and credibility were not unreasonable; therefore, the Member's finding should not be disturbed. For this proposition she cites Minister of Transport v. Thomas Ritchie Phillips (1987).
She noted in argument that St. Theresa airport was subject to a NOTAM and that the Member was correct in relying upon it.
She acknowledged that the defence of due diligence was available as codified in section 8.5 of the Aeronautics Act. However, she contended that due diligence did not operate for Mr. Nagnibeda, as he was aware of the NOTAM; therefore, he should have taken extra precautions to ensure that there were no other aircraft in sight when he attempted the backtracking.
A review of the transcript of the Review Hearing reveals differing views of the facts surrounding the alleged violation. The Ministic crew members were not consistent, as between themselves, the testimony of Mr. Nagnibeda was not in accord with the evidence as revealed by the Flight Service Station (FSS) tape and accompanying transcript.
As a general rule the Member hearing the review is in the best position to assess the facts and make findings of credibility. Indeed the representative of the Minister urged that proposition upon the Tribunal during argument. Tribunal jurisprudence describes the proposition as follows:
Unless the findings of the hearings officer are patently unreasonable and cannot be supported by the testimony — under oath — the Appeal Tribunal should be reluctant to substitute its findings.
In the circumstances of this case, we were persuaded by Ms. Holly's argument and chose not to disturb the Member's finding of fact.
The following summation of fact was made by the Member at Review:
- The evidence is clear that, because Skyward 752 was on the runway, it did not give way to Ministic 300 which was on final and had to abort its landing.
- There is a NOTAM issued for St. Theresa indicating blind spots in radio transmission on the runways and ramps at St. Theresa.
- The Member found that the Minister did not meet his onus to establish that Mr. Nagnibeda did not make the departure announcement.
Section 529 of the Air Regulations:
529. Where an aircraft is in flight or manoeuvring on the ground or water, the pilot-in-command shall give way to other aircraft landing or about to land.
Section 8.5 of the Aeronautics Act:
8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.
DISCUSSION OF ISSUE
Mr. Pearson made a finding of fact that count 3 had been proven. The panel has accepted the facts upon which his decision was made. As argued by the Minister's representative, all elements of the offence were made out.
The operation of due diligence once the elements of the offence are proven was addressed in Harry Edward Joseph Shermet v. Minister of Transport .
Once the party alleging contravention has proved the constituent elements of a strict liability offence on a balance of probabilities, the onus then shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid commission of the offence. This assertion respecting a defence to strict liability offences was set out in the case of R. v. Sault Ste. Marie,  2 S.C.R. 1299, and is also codified in section 8.5 of the Aeronautics Act.
Therefore, the issue before us is whether or not Mr. Nagnibeda has proved on a balance of probabilities that he exercised all due diligence in the circumstances of this case.
The definition of due diligence is addressed in Marsh v. Minister of Transport at page 7.
Diligence is defined as 'the attention and care legally expected or required of a person.' The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.
The actions of a pilot operating in uncontrolled airspace covered by a mandatory frequency are addressed in the Aeronautical Information Publication.
An uncontrolled aerodrome is an aerodrome without a control tower, or one where the tower is not in operation. There is no substitute for alertness while in the vicinity of an uncontrolled aerodrome. It is essential that pilots be aware of and look for other traffic, and exchange traffic information when approaching or departing from an uncontrolled aerodrome, particularly since some aircraft may not have communication capability. To achieve the greatest degree of safety, it is essential that all radio-equipped aircraft monitor a common designated frequency, such as the published MF or ATF, and follow the reporting procedures specified for use in an MF area*, while operating on the manoeuvring area or flying within an MF area surrounding an uncontrolled aerodrome.
*'MF area' means an area in the vicinity of an uncontrolled aerodrome for which an MF has been designated. The area is defined in the COMM Section of the CFS for a particular aerodrome and within which MF procedures apply. Normally, the MF area is a circle with a 5-NM radius capped at 3 000 feet AAE. (Emphasis added)
(MF = Mandatory frequency)
The essence of the procedure outlined in the A.I.P. is that a pilot be aware of and look for other traffic. They must exchange traffic information when approaching or departing from an uncontrolled aerodrome.
As regards exchange of traffic information, count 1 alleged that Skyward 752 did unlawfully fail to report his departure intentions prior to moving to the take-off runway. However, Mr. Pearson found that the Minister failed to meet the onus to establish that he did not make the departure announcement.
Mr. Pearson did not make a finding of fact as to Mr. Nagnibeda's efforts to look for other aircraft, as that facet of the situation did not form part of the allegations. The only evidence on the subject is Mr. Nagnibeda's, and he stated that he did look both ways.
What more could he do? The Minister's representative argued that, because Mr. Nagnibeda was aware of the NOTAM, he should have taken extra precautions to ensure that there were no other aircraft in sight when he started backtracking.
To so assert is to misinterpret the plain language of the NOTAM.
CYST POSSIBLE UNREPORTED TRAFFIC OR VEHICLES ON RWY (runway) DUE TO RADIO BLIND SPOTS TIL APRX 9610311800 (Emphasis added)
When Ministic arrived in the MF area, it encountered exactly what NOTAM warned of — i.e., unreported traffic on the runway, in the form of Skyward 752. The NOTAM does not warn of unreported traffic in the air, which is what the Minister asserts. Knowledge of that NOTAM in these circumstances does not have the effect of placing any "extra precautions" on Mr. Nagnibeda over and above those normally in place.
The Minister's representative did not state what more the pilot of Skyward 752 should have done, only that he should have done it.
We are unable to perceive what more could have been done. He broadcast; he looked; he broadcast again; then he taxied. We find that these actions constitute all due diligence in this circumstance.
In the result we find that the defence of due diligence has been made out. We allow the appeal by the document holder and dismiss the Minister's allegation.
Reasons for Appeal Determination by:
Allister Ogilvie, Vice-Chairperson
Gordon R. Mitchell, Member
Pierre Rivest, Member
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