Decisions

CAT File No. C-1749-33
MoT File No. RAP6504-P090344-031938(P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Richard James Taylor, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.100(b)

Take-Off, Radio Failure as a Defence, Malfunction, Failure to Obtain Take-Off Clearance, Helicopter


Review Determination
David S. Ahmed


Decision: April 9, 1999

I uphold the Minister's decision to assess Mr. Taylor a monetary penalty of $250 on the grounds that he contravened paragraph 602.100(b) of the Canadian Aviation Regulations on July 31, 1998. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

A Review Hearing on the above-entitled matter was held Thursday, March 25, 1999 at 10:00 hours at Meyer Compucourt Reporting, Royal Bank Building, Regina, Saskatchewan.

INTRODUCTION

At approximately 23:58Z, on July 31, 1998, Regina Flight Services received a transmission from Mr. Richard James Taylor, who was pilot-in-command of a Bell 206L-l helicopter bearing Canadian registration C-FNEG, indicating that he was intending to land at Buffalo Narrows airport in Saskatchewan. He informed them that he was 13 miles northeast from the airport and was going to land at the forestry pad. Regina radio gave him the appropriate information, including traffic, etc., and this was acknowledged by Mr. Taylor who indicated that he would call when he was on final approach for the forestry pad. The next transmission that Regina radio received from Mr. Taylor was to inform them that he was on final approach for the fire cache. This was acknowledged by Regina radio who then requested that he report to them when he had landed his helicopter. Some minutes went by and because Regina radio had not heard any more from Mr. Taylor they attempted to contact him to ascertain whether he had landed. This transmission was not acknowledged by Mr. Taylor. Some minutes later, Regina radio received a transmission from Mr. Taylor that not only had he landed at Buffalo Narrows but was airborne again and was enroute to Île-à-la-Crosse. Regina radio acknowledged Mr. Taylor's transmission and asked him to inform them when he was clear of the zone. They also requested that he monitor the frequency that they were transmitting on when he was in the five-mile zone because this was a requirement by the Canadian Aviation Regulations (CARs). A few minutes later, Mr. Taylor informed Regina radio that he was clear of the zone at an altitude of 2,000 feet.

Because Mr. Taylor did not ask for take-off clearance when departing Buffalo Narrows airport, he was reported to Transport Canada presumably by Regina Flight Services. As a result, he received a Notice of Assessment of Monetary Penalty from Transport Canada, Aviation Enforcement in Winnipeg, Manitoba, part of which read as follows:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Canadian Aviation Regulation 602.100(b), in that at approximately 23:58Z, on or about July 31, 1998, at or near Buffalo Narrows, Saskatchewan, being the pilot-in-command of a VFR aircraft, to wit, a Bell 206L-1 helicopter bearing Canadian Registration C-FNEG, that departed from an uncontrolled aerodrome, that lies within an MF area, namely the fire cache heliport near the Buffalo Narrows, Saskatchewan airport, you did fail to, before take-off, ascertain by radiocommunication and by visual observation that there was no likelihood of collision with another aircraft during take-off, and more specifically, you did not make a radio transmission on the mandatory frequency to state your intentions and receive a traffic advisory prior to take-off.

Mr. Taylor was informed that he was assessed a monetary penalty of $250 which was to be paid on or before January 12, 1999 to Transport Canada. He was also informed that if the full amount of the penalty was not received by the aforementioned date the Civil Aviation Tribunal would be informed and that the Tribunal would request that he appear before it to hear the allegations against him. This then was the reason for this Review Hearing.

THE REVIEW HEARING

A few days before the hearing was due to commence, I was informed by the Tribunal registry that Mr. R. J. Taylor, for personal reasons, was unable to attend in person. The day before the hearing, we received a sworn statement from Mr. Taylor that read as follows:

I have been a licensed helicopter pilot for over 30 years with no accidents or incidents. I have flown in 10 provinces and 8 countries and have landed at many hundreds of airports. On the 31 of July 1998 I took over CF NEG from another pilot and spent the morning stowing away its spares and checking the machine thoroughly, as there was no engineer with the machine. It would be my first day flying for Saskatchewan Forestry. In the course of four flights that afternoon I had about a half dozen times when I was receiving nothing on my headset. At each landing I swapped around each headset in the machine and tried coupling and uncoupling the leads to the antennas and fiddled with the headset jacks. On the last flight of the day the radios appeared to be working going into Buffalo Narrows and I got Forestry and ATC clearance.

On the take off I called and got Forestry clearance and called for clearance in between another aircraft doing a long series of transmissions. One of the passengers said to me you've got clearance and because of the continual headset problems I presumed that it had been given to me and due to headset and wiring problems I had missed it. I took off keeping clear of the runway centerline and cleared out of the area. Due to radio problems this helicopter did not fly again at Ile-a-la-crosse as forestry did not want it until the problem was fixed.

I telephoned the company Canadian Territorial Helicopters after landing and asked them for help with the radios. By this time we had worked out that the radio problem was on the Wulfsburg forestry FM only. However the people in Calgary who fix the company's radios were all away on the long week-end (civic holiday) and would not be back until Tuesday.

Finally at Pelican Narrows I was told to re program the 2 guard frequencies and switch the guard and main frequencies at the same time. This was something I did not know before, as a guard is a separate internal radio. We finally worked out that the main radio was failing on reception only. But on the 31 of July it was uncertain whether the problem was headsets, mixer box, either of the radios or the antennas'.

In your telephone conversation with Joe Barr of CTH on the 20th of August although he knew there were major radio problems at this time he did not mention it to you. You did the audit of the company on the 29/ 30th of September I was telephoned at Norway House and told not to return until October 1st. As presumably they did not want you to talk to me. At the end of the season I was glad that I was the only long ranger contract pilot left not leaving in an argument and going to the Labor Board.

Do you keep statistics on aircraft companies such as labor board disputes and pilot turnover?

THE EVIDENCE

The Case Presenting Officer for Transport Canada was Mr. Eckhard Dittbrenner. Mr. Dittbrenner is an Aviation Enforcement Inspector with Transport Canada, Prairie and Northern Region. After introducing himself, he gave a brief background of the case and then called upon his first witness, Mr. Greg Holbrook.

Mr. Holbrook's Evidence

Mr. Holbrook was duly sworn in. Upon request, he informed us that he was an Aviation Enforcement Inspector with Transport Canada. During the course of Mr. Holbrook's testimony, nine exhibits were referred to. Some of these exhibits confirmed the fact that the helicopter in question was Canadian registered, had been flown by Mr. Taylor on the day in question, etc., etc. Exhibit M-4 dealt with the issue of mandatory frequency (MF). It explained that MF was a VHF frequency specified in the Canada Air Pilot or the Canada Flight Supplement for the use of radio equipped aircraft operating within an MF area. It included an extract from the CARs that read as follows:

MF Reporting Procedures on Departure

602.100. The pilot-in-command of a VFR or IFR aircraft that is departing from an uncontrolled aerodrome that lies within an MF area shall a) before moving onto the take-off surface, report the pilot-in-command's departure procedure intentions;

b) before take-off, ascertain by radiocommunication and by visual observation that there is no likelihood of collision with another aircraft or vehicle during take-off; and

c) after take-off, report departing from the aerodrome traffic circuit.

Other exhibits included aerial photographs of the Buffalo Narrows airport and a transcript of radio transmissions that occurred between Regina Flight Services and aircraft operating in the vicinity of Buffalo Narrows airport including the helicopter in question piloted by Mr. Taylor.

After the conclusion of Mr. Holbrook's testimony, Mr. Dittbrenner called upon his second witness, Mr. G. Busch.

Mr. Busch's Testimony

Upon request, Mr. Busch informed us that he was employed by NAV Canada as a Flight Service Specialist. He was currently stationed in Regina, Saskatchewan, where he had been for the past three years. He confirmed that he was working on the day in question, to wit, July 31, 1998 when the alleged infraction took place.

During his testimony, Mr. Busch confirmed that Mr. Taylor had contacted Regina radio, on the day in question, indicating that he was l3 miles to the northeast from the Buffalo Narrows airport. He also confirmed that shortly afterwards Mr. Taylor reported that he was on final approach and was requested to give a "down" call but heard nothing more from him until a later transmission which reported that Mr. Taylor's helicopter was airborne again.

At this stage, Mr. Dittbrenner requested, and was given, permission to play a tape recording of the events that took place on the day in question. After listening to the whole tape, it was obvious that this was a true and accurate record of the events that have been alluded to before.

Following Mr. Busch's testimony, inspector Dittbrenner was given the opportunity to make a closing statement. He submitted, that in the Minister's opinion, there was indisputable evidence to show that Mr. Taylor had not reported to Regina radio when he had landed his helicopter. There was also, in the Minister's opinion, indisputable evidence that Mr. Taylor had not requested take-off clearance before embarking on his journey to Île-à-la-Crosse from Buffalo Narrows. He made reference to Mr. Taylor's statement made in his affidavit indicating that Mr. Taylor thought that one of his passengers had heard the Regina radio issuing a take-off clearance which is why he subsequently continued to his destination. He concluded that this was not an acceptable reason and, even if this had been the case, Mr. Taylor had shown an obvious lack of airmanship.

Mr. Dittbrenner concluded by making reference to Mr. Taylor's claim that he had been having problems with his radios on most of the day in question. He maintained that this was not an acceptable excuse because, if this had been the case, why did Mr. Taylor not enter this in his journey log on the day in question after he had completed his flight under the heading of maintenance and, specifically the defects section. The fact that the radios had not been reported on as malfunctioning in the journey log was confirmed by Mr. Dittbrenner's submission of Exhibit M-7 (which was a copy of the journey log pertaining to helicopter C-FNEG including flights conducted on July 31, 1998).

Lastly, Mr. Dittbrenner spoke to sanctions. He pointed out that the sort of offence in which Mr. Taylor was proceeded against could lead to a sanction of up to $1,000. A first offence of this nature usually resulted in a sanction of $250 which was the penalty that had been levied against Mr. Taylor. He urged me to uphold this $250 penalty.

DETERMINATION

After having carefully studied all the information that was made available to me at the Review Hearing, I uphold the Minister's decision to assess Mr. Taylor a monetary penalty of $250 on the grounds that he contravened paragraph 602.100(b) of the Canadian Aviation Regulations on July 31, 1998.

Dr. David Ahmed
Member
Civil Aviation Tribunal