Decisions

CAT File No. C-1697-33
MoT File No. RAP6504-P392628-031469 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Paul George Daoust, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, ss.7.7, 8.1(4), 8.5, 37(1), 37(5)
Canadian Aviation Regulations, SOR/96-433, s.602.96(3)(g)

Vague Evidence, Taxiing, Take-off, Strict Liability, Landing, Hearsay, Due Diligence, Defences, Controlled Aerodrome, Air Traffic Control Clearance


Review Determination
Allister W. Ogilvie


Decision: January 19, 1999

I uphold the decision of the Minister and confirm the sanction of $250.00. The payment shall be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Tuesday, January 12, 1999 at 13:00 hours at the Federal Court of Canada, in Winnipeg, Manitoba.

BACKGROUND

In the spring of 1998, Mr. Daoust purchased a Mooney aircraft, C-GOEN. He and an acquaintance were each flying their respective aircraft from Edmonton, Alberta, to Midland, Ontario. On Sunday morning of June 14, 1998 they stopped at St. Andrews, Manitoba, awaiting an improvement in the weather. About 11:00, having received a favourable weather briefing, Mr. Daoust decided to depart. He was unable to communicate with the tower but did receive the automatic terminal information service (ATIS). He taxied out and took off on runway 36, but soon encountered a low ceiling.

He reoriented himself and returned to land on the same runway. During the course of this departure and return, he was unable to communicate with the control tower. That resulted in the allegation that Mr. Daoust failed to obtain the appropriate clearances for taxi, take-off or landing.

EVIDENCE

In an agreed statement of fact, Mr. Daoust stipulated to having been the pilot-in-command operating aircraft C-GOEN on June 14, 1998, at St. Andrews, Manitoba. The evidence establishes that Winnipeg/St. Andrews is a controlled aerodrome and that the incident occurred during the tower's operational hours.

The control tower tape of the radio transmissions transmitted and received was secured. A condensed tape and transcript of these transmissions was made and entered into evidence.

Neither the tape nor transcript reveals the controllers giving aircraft C-GOEN a clearance to taxi, take off or land. The ground controller on duty testified that when he observed the aircraft taxi, he attempted to stop it by means of visual light signals directed to the pilot. He did not give the aircraft clearance to taxi either by radio transmission or light signal.

The tower controller was not present to testify. However, he had submitted a written aviation incident report of the occurrence in the course of his duties. In it he outlined the aircraft's movements from taxi to take-off, flight and return to landing and described his efforts to alert the aircraft that it was without a clearance.

His testimony is hearsay evidence.

The text The Law of Evidence in Canada[1] explains the concept of hearsay as follows:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

The rule against hearsay is an example of one of the many legal or technical rules of evidence developed for courts to help them accomplish their mandates. However, these rules do not necessarily serve the purpose of an administrative tribunal.

This has been recognized by providing a legislated exemption from the strict adherence to the legal and technical rules in the form of section 37 of the Aeronautics Act where it states:

37.(1) Subject to subsection (5), the Tribunal or a member thereof is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(5) The Tribunal or a member thereof may not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

That is not to say that no rules apply regarding evidence. The constraints on evidence found in the Act are that it must be fair and within the bounds of natural justice. The Tribunal cannot accept evidence that is inadmissible in a court by reason of any privilege under the law of evidence. Of course, the basic criterion is that it must be relevant. However, not all relevant evidence is of equal probative value. The hearing officer must decide what weight to ascribe to relevant evidence.

Hearsay evidence can be of value, especially if verified or corroborated by other evidence or if it forms the corroboration of some other evidence.

In this instance the report is corroborated by oral testimony of the ground controller and that of the condensed tape so can be accorded considerable weight.

Mr. Daoust explained that he had been sitting at St. Andrews awaiting an improvement in weather. He had checked the weather several times and just before 11:00 was advised that it had improved to 4,000 feet and 10 miles visibility. He listened to the ATIS. Being unsuccessful at contacting the tower on his radio, he assumed that it was not in operation and took the ATIS message as instruction to proceed to runway 36. Mr. Daoust stated that this was the manner in which he was used to proceeding in his home environment of Buttonville, when that tower was closed.

After take-off he soon encountered low cloud, circled the airport to reorient himself and landed back on runway 36 and taxied back to the ramp.

Mr. Daoust had not seen the various light signals directed at him other then the green light to land. He acknowledged that at no point did he receive from the tower clearance to take off.

THE LAW

Section 602.96 of the Canadian Aviation Regulations (CARs):

602.96 (1) This section applies to persons operating VFR or IFR aircraft at or in the vicinity of an uncontrolled or controlled aerodrome.

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

(...)

(g) where the aerodrome is a controlled aerodrome, obtain from the appropriate air traffic control unit, either by radio communication or by visual signal, clearance to taxi, take off from or land at the aerodrome.

Section 8.5 of the Aeronautics Act:

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.

THE ISSUE

The issue to be decided is whether or not Mr. Daoust failed to obtain clearance to taxi, take off from or land at St. Andrews aerodrome on June 14, 1998 at approximately 11:00.

DISCUSSION

To establish a contravention of paragraph 602.96(3)(g) of the CARs the Minister must prove:

  • the identity of the pilot-in-command
  • that he operated the aircraft at the time and date in question
  • that the aerodrome was controlled
  • that the pilot-in-command failed to obtain the appropriate clearance to taxi, take off from or land at the aerodrome

The agreed statement of fact establishes the first two elements. The Canada Flight Supplement of April 23, 1998, valid for the period in question provides that St. Andrews is a controlled aerodrome.

The tape and transcript of attempted radio transmission between the tower and aircraft show that no clearances were transmitted to the aircraft. The ground controller testified that he had not cleared the aircraft to taxi to the active runway. These facets of the evidence establish that no clearance for taxi or take-off was given. Mr. Daoust did receive a clearance to land via a light signal from the tower. In cross-examination, Mr. Daoust admitted that he had not received any clearances by radio. His testimony reveals that he was operating under the assumption that the tower was not operating at that time.

The Minister has proved that Mr. Daoust did not obtain clearance to taxi or take off from St. Andrews aerodrome. He did receive a green light from the tower clearing him to land when he returned to runway 36. The allegation uses the disjunctive particle "or" in addressing the aircraft movements: "clearance to taxi, take-off from, or landing at the said aerodrome."

The effect is to express an alternative or choice. Thus the Minister need not prove that no clearance was obtained to taxi, take off from and land at an aerodrome. It is sufficient that one element be proved and here, two elements are proved.

As the violation is one of strict liability, the establishment of the elements of the offence makes out the offence. It may be countered by establishing that one took all necessary measures to prevent the offence from having taken place, that is establishing due diligence. Mr. Daoust explained his repeated attempts to communicate with the tower by radio. He described having received garbled transmissions, which might have resulted from frequency splash-over.

In this circumstance it cannot be argued that due diligence was established as the pilot had the means and opportunity to know when the tower operated, but did not avail himself of that knowledge.

I commend Mr. Daoust for having stipulated to the operation of the aircraft and for being forthright in describing his mistaken assumption regarding tower hours of operation. I believe he takes his obligations as pilot seriously and that he attempted to follow correct procedures. However, as the elements of the offence have been established, I am obliged to find that the allegation has been proven.

DETERMINATION

In the result I uphold the decision of the Minister and confirm the sanction of $250.00.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] J. Sopinka, S. Lederman & A. Bryant, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) at 156.


Appeal decision
Faye H. Smith, Pierre Rivest, Samuel J. Birenbaum


Decision: May 12, 1999

The Appeal is denied. The Appellant, Paul George Daoust, contravened paragraph 602.96(3)(g) of the Canadian Aviation Regulations, and did not exercise all due diligence to prevent the contravention. The decision of the Minister to apply a sanction of $250.00 is confirmed. This amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

An Appeal Hearing in the above matter was held Thursday, April 29, 1999, at 10:00 hours, at the Federal Court of Canada, in Toronto, Ontario.

BACKGROUND

This appeal resulted from a determination made by Mr. Allister Ogilvie following a review hearing held in Winnipeg, Manitoba on January 12, 1999. Mr. Daoust was alleged to have contravened paragraph 602.96(3)(g) of the Canadian Aviation Regulations (CARs) in that he attempted to take off and fly within a controlled aerodrome without having obtained from the appropriate air traffic control unit, either by radio communication or by visual signal, a clearance to taxi or take off.

Mr. Ogilvie found that Mr. Daoust did contravene paragraph 602.96(3)(g) of the CARs and confirmed the Minister's sanction of $250.00. Mr. Ogilvie determined that Mr. Daoust failed to obtain a clearance to taxi or take off at St. Andrews aerodrome on June 14, 1998 at approximately 11:00 hours.

GROUNDS FOR APPEAL

The Appellant indicated five grounds for the appeal:

  • he interpreted a sentence within the ATIS which stated "pilots are requested to taxi to runway 36 and hold short" as a clearance to taxi, and thus he felt that he did not contravene his obligation to taxi only after obtaining a clearance to do so;
  • he received a visual green light as a signal for clearance to land;
  • the air traffic controller on duty at the time was unable to be present at the review hearing and his evidence was, therefore, hearsay and should not have been accepted;
  • the evidence of the ground controller should be dismissed because his answers to questioning were indefinite and vague;
  • he was unable to hear the tower transmission due to mechanical or radio problems.

THE LAW

Section 602.96 of the CARs:

602.96 (1) This section applies to persons operating VFR or IFR aircraft at or in the vicinity of an uncontrolled or controlled aerodrome

(...)

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

(...)

(g) where the aerodrome is a controlled aerodrome, obtain from the appropriate air traffic control unit, either by radio communication or by visual signal, clearance to taxi, take off from or land at the aerodrome.

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 a person exercised all due diligence to prevent the contravention.

To establish a contravention of the above, the Minister must prove:

  • the identity of the pilot-in-command;
  • that he operated the aircraft at the time and date in question;
  • that the aerodrome was controlled;
  • that the pilot-in-command failed to obtain the appropriate clearance to taxi, take off from or land at the aerodrome;
  • that there was a lack of due diligence in the prevention of any contravention.

THE EVIDENCE

Mr. A. Ogilvie at the review hearing determined that Mr. Daoust was pilot-in-command, operating aircraft C-GOEN on June 14, 1998 at St. Andrews, Manitoba, and that he taxied to the active runway and took off without a clearance to do so. Mr. Daoust argued that he received a green signal light as a clearance to land, and there was no disagreement with this statement. In his argument, the Appellant stated that he mistakenly felt that the control tower was closed, and had failed to check the Canada Flight Supplement available to him in the cockpit for the appropriate hours of operation of the tower. Upon hearing the automatically transmitted ATIS, he misunderstood a statement to indicate a clearance to taxi and hold short of runway 36. His subsequent attempts to contact the tower failed, and he decided to proceed with his take-off. He had to land because he encountered bad weather and landed with an approved signal light from the tower.

The Appellant further argued that the absence of the air traffic controller at his hearing denied him an opportunity to present his case, and that the evidence given by the ground controller was vague, often accompanied by the words "I think." A condensed tape presented in evidence at the review hearing was questioned by the Appellant as not being an accurate representation of all the events that took place, and did not contain two calls that he felt he had made in attempting to reach the tower. Mr. Daoust stated he only had 350 hours of experience at the time, and was flying a new aircraft which he was eager to get to his home base in Buttonville, Ontario. The pilot felt that in view of all the circumstances at the time, he believed he had permission for the take-off. He further stated that, considering the fact of his past experience, and the conditions that existed at the time, he exercised due diligence before proceeding to take off, and that he conducted his flight in a careful manner. He did, however, state that he did not conduct it in a prudent manner. He stated that another pilot in the circuit at the time had experienced problems with radio transmission, and perhaps there was some technical reason for this.

Mr. Glenn Hector for the Respondent stated that section 602.96 of the CARs clearly requires the pilot to have a clearance for take-off, and the pilot did not have it. Thus, there was no error in law on the part of Mr. Ogilvie in his review determination. His findings, in fact, were not unreasonable, since the condensed tape is an accurate rendition of the tower tape. Additionally, there was much corroborative evidence to the evidence of the ground controller, and thus, its probative value is enhanced.

REASONS FOR DETERMINATION

The appeal hearing was based on the record which included a transcript with exhibits of the original review hearing, the notice of assessment, the review determination by Mr. A. Ogilvie, and the request for and grounds for the appeal. Under subsection 8.1(4) of the Aeronautics Act, the Tribunal may dismiss or allow the appeal.

The review member's determination was based upon several findings of fact. Generally, findings of fact should not be disturbed on appeal unless they are patently unreasonable, and cannot be supported by the sworn testimony. We are certainly satisfied from the transcript of the proceedings that Mr. Ogilvie's findings of fact at the review hearing are not unreasonable, and that a trier of fact acting judicially could not possibly have come to a different conclusion.

Mr. Ogilvie did not rely solely on hearsay statements of Mr. Coram but also referred to the tower tape, the testimony of Robert Legras, and the admissions of Mr. Daoust in the agreed statement of fact. Mr. Daoust testified that he did not see the various light signals directed at him, other than the green light signal to land.

He further acknowledged that at no point did he receive from the tower a clearance to take off. The member is not bound by legal or technical rules of evidence in conducting matters that come before the Tribunal, as noted in subsections 37(1) and 37(5) of the Aeronautics Act:

37.(1) Subject to subsection (5), the Tribunal or a member thereof is not bound by any legal or technical rules of evidence in conducting any matter that comes before it or the member and in all such matters shall be dealt with by the Tribunal or member as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(...)

(5) The Tribunal or a member thereof may not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

Thus, Mr. Ogilvie was free to hear the evidence considered hearsay and could assign whatever value he determined to it based on other issues and evidence presented at the review hearing. Particular hearsay evidence is admissible when it is corroborative of other testimony or when it is corroborated by other testimony and is not the only evidence tendered as proof of the fact.

The member found that the tape and transcript showed no clearances were transmitted to the aircraft. Mr. David Armishaw, an air traffic controller since 1989 and manager of the St. Andrews tower for five years, testified that he secured the original tower tape from which he made a condensed copy, which he mailed to Transport Canada. The tape produced at the hearing was a tape he prepared as identified by his handwriting. This tape was an accurate copy of the tower tape and not modified in any way. Thus, the findings of fact based on this tape were reasonable, particularly because they were corroborated by other evidence, and in part, by the admissions of the Appellant.

The testimony of Robert Legras was accompanied by some uncertainty and indefinite responses at the hearing. A review of the transcript indicates that this witness frequently spoke in this manner, and thus his comments of "I think" may not represent uncertainty, but rather a style which is unique to him. In any event, the evidence he presented was corroborated by other testimony as well as by material on the tape. We find that the review member was correct in accepting this testimony, and he has the authority to do so under the Aeronautics Act.

This Tribunal was asked to consider the defence of due diligence on the part of Mr. Daoust. In the Tribunal appeal determination of Marsh v. Minister of Transport[1]:

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.

Failure on the part of Mr. Daoust to consult the Canada Flight Supplement which indicated that St. Andrews is a controlled aerodrome, and which listed the required radio frequencies as well as the hours that the control tower was open, indicated a lack of due diligence in these circumstances. Furthermore, his acceptance of an ATIS message as a clearance to taxi indicates a lack of sufficient aviation knowledge for safe operation of an aircraft in a controlled aerodrome.

In view of the failure on the part of Mr. Daoust to proceed safely in the absence of established radio contact with a control tower, the member was correct in not reducing the sanction imposed.

CONCLUSION

The Appellant does not dispute the fact that he proceeded to taxi, then to take off, and then to land, without radiocommunication from the control tower, in the mistaken belief, at least initially, that the control tower was closed. Before proceeding to taxi, the Appellant listened to the ATIS message and mistakenly felt that this was a clearance to taxi to runway 36 and to hold short. After doing so, he attempted to communicate with the tower and was unable to do so. At this time he made his most grievous error of attempting a take-off in the absence of a clearance in a controlled aerodrome. He did this on the mistaken belief that the tower was closed although he had, within his cockpit, a Canada Flight Supplement which could have given him the information he needed at this time. Although there was no mishap in this instance, the invasion of an active runway and a take-off without communication from a controller can result in grievous harm and property damage. This is an action which a prudent pilot should never take.

In his argument of due diligence, the Respondent states that he made several attempts to contact the tower but felt that there was either a problem with the radios, either his or that in the tower, or that the tower was closed. At this point in time he had several alternatives, all of which would have been safe ones, such as returning to investigate the problems, but he chose the most dangerous alternative of all, that is to proceed with a take-off without a clearance. Since he encountered bad weather, he returned immediately to land, and at this time was able to detect the green signal light approving his landing.

DETERMINATION

This Tribunal is convinced that the findings of fact by the hearing officer were correct as was his decision to not change the sanction. Accordingly, we uphold the Review Determination of Mr. Allister Ogilvie.

Reasons for Appeal Determination:

Faye Smith, Chairperson

Concurred:

S. Birenbaum, M.D., C.C.F.P., Member
Pierre Rivest, Member


[1] CAT File No. C-1095-02, Page 7.