Decisions

CAT File No. C-1858-33
MoT File No. RAP5504-P307862-033644 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Kenneth Robert Fisher, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, 602.31(1), (3)

Failure to Comply, ATC, Air Traffic Control Clearance


Review Determination
E. David Dover


Decision: October 28, 1999

I find that Mr. Kenneth Fisher did contravene paragraph 602.31(1)(b) of the Canadian Aviation Regulations, and I confirm the Minister's decision to assess a monetary penalty of $175.00. 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 matter was held Thursday, October 14, 1999 at 10:00 hours at the offices of Meyer Compucourt Reporting, Saskatoon, Saskatchewan. The witnesses were sworn in by the attending court reporter. The witnesses were excluded from the Review Hearing prior to commencement of the proceedings. There were no pre-hearing conferences held between the parties.

BACKGROUND

On June 28, 1999, a monetary penalty of $175.00 was assessed against Mr. Kenneth Fisher, the Respondent, pursuant to section 7.7 of the Aeronautics Act, for having contravened paragraph 602.31(1)(b) of the Canadian Aviation Regulations (CARs).

Specifically, Mr. Fisher, at approximately 2243 hours UTC, on or about May 7, 1999, at or near Saskatoon, Saskatchewan, being the pilot-in-command of a British Aerospace P.L.C. Jetstream Model 3112 bearing Canadian registration C-GPDC, failed to comply with an air traffic control (ATC) clearance received and accepted by Mr. Fisher and more specifically Mr. Fisher did not maintain an altitude of 4,000 feet above sea level (ASL) contained within the ATC clearance.

The incident took place following the departure of the Jetstream from runway 15 at John G. Diefenbaker Airport Saskatoon, Saskatchewan. The SID (VECTOR) Six Departure (Standard Instrument Departure) for all runways at Saskatoon/John G. Diefenbaker Airport states as follows: "ALL RUNWAYS: Climb rwy hdg or as assigned by ATC. MAINTAIN 5000 ASL or flight planned altitude, whichever is lower."

Four miles from the departure end of runway 15 there is located the X-ray beacon, which is located on a heading of 147 magnetic. This is the actual magnetic heading of runway 15. On this beacon, performing practice holding procedures, was a training aircraft level at 4,500 feet ASL. If the departing Jetstream was to continue the standard SID procedure and transition to 5,000 feet ASL a passing or conflict would occur with the training aircraft and thus a clearance to maintain 4,000 feet ASL was issued to the Jetstream.

THE LAW

Subsection 602.31(1) of the CARs:

Compliance with Air Traffic Control Instructions and Clearances

602.31 (1) Subject to subsection (3), 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

(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command and

(i) subject to subsection (2), in the case of an IFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received (...)

Subsection 602.31(3) of the CARs:

(3) The pilot-in-command of an aircraft may deviate from an air traffic control clearance or an air traffic control instruction to the extent necessary to carry out a collision avoidance manoeuvre, where the manoeuvre is carried out

(a) in accordance with a resolution advisory generated by an Airborne Collision Avoidance System (ACAS) or a Traffic Alert and Collision Avoidance System (TCAS); or

(b) in response to a warning from a Ground Proximity Warning System (GPWS) on board the aircraft.

FOR THE APPLICANT — THE MINISTER OF TRANSPORT

The Case Presenting Officer, Mr. Greg Holbrook presented three witnesses.

Richard J. C. Gagnon, Aviation Enforcement Inspector, Prairie and Northern Region

Mr. Gagnon testified that he received the file RAP5504-P307862-033644 (P) on May 10, 1999 outlining a situation that had occurred at approximately 2243 hours on May 7, 1999. This involved an AIR SASK Jetstream 3112, registration C-GPDC, owned by La Ronge Aviation Services Ltd.

Mr. Gagnon testified that he requested the following information from AIR SASK and submitted the following documents as exhibits:

Exhibit M-1: Photocopy of aircraft journey log #02108 dated May 7, 1999. Highlighted section indicates aircraft departed Saskatoon at 2241 hours arriving Regina 2316 and crewed by Fisher and Nett.

Exhibit M-2: Photocopy of AIR SASK Aviation 1991 Manifest & Load Control document.

The document indicates that aircraft PDC, operating as flight 701 departed YXE for YQR with Fisher as the captain and Nett as the first officer.

Exhibit M-3: Photocopy of AIR SASK Operational Plan Form.

The document indicates that flight 701 departed the ramp at Saskatoon at 2238, off 2241 with arrival at QR at 2316.

Exhibit M-4: Photocopy of the Transport Canada Applicant Personal Information System Form.

The document indicates that Kenneth Robert Fisher is the holder of a current airline transport pilot licence expiring 1999/06/01.

Exhibit M-5: Photocopy of Certificate of Registration of Aircraft.

Document indicates the aircraft registration C-GPDC, a British Aerospace P.L.C. Jetstream Model 3112 serial 766 is owned by La Ronge Aviation Services Ltd.

It was Mr. Gagnon's testimony that La Ronge Aviation Services Ltd. and AIR SASK are affiliated companies.

Exhibit M-6: Photocopy of Transport Canada Standard Certificate of Airworthiness.

The document indicates that on December 30, 1997 the Certificate of Airworthiness was issued to C-GPDC, a British Aerospace — 3112, serial 766 and operated in the normal category.

Exhibit M-7: Photocopy of the approach plate from the Canada Air Pilot effective February 26, 1998 and was valid at the time of the incident.

The document outlines the approach used to fly an NDB RWY 15 approach and shows the position of the X-ray beacon on which the training aircraft was flying a holding pattern.

Exhibit M-8: Recording tape containing a conversation between Mr. Richard Gagnon and Mr. Kenneth Fisher on June 21, 1999.

Exhibit M-9: This exhibit is a transcript of the conversation recorded on Exhibit M-8.

Mr. Gagnon testified that the tape was produced by a Transport Canada secretary from the Winnipeg office. Mr. Gagnon also testified that Mr. Fisher agreed to have the conversation outlined on this transcript recorded and this consent appears in paragraphs 12 and 13 on page 2 of Exhibit M-9. Mr. Gagnon through testimony and interpretation of Exhibit M-9 outlined the following facts:

  • Mr. Fisher received the letter dated June 2, 1999 outlining the violation under section 602.31 of the CARs. Mr. Fisher concurs.
  • Mr. Fisher agrees that the incident took place in Saskatoon, on May 7, 1999.
  • Mr. Fisher agrees that he is in possession of the tape from ATC.
  • Mr. Fisher on page 3 paragraph 9 states "I didn't think we went beyond two hundred and fifty to three hundred feet."
  • Mr. Fisher on page 3 paragraph 11 states "'oh' and we tried right away to level off."
  • Mr. Fisher on page 5 paragraph 14 states that the weather at the time of the incident was CAVOK.

Exhibit M-10: Recording tape containing conversations between the Saskatoon tower controller, Winnipeg area control centre controller and various aircraft including AIR SASK flight 701 on May 7, 1999.

Mr. Gagnon testified that following the production of the transcripts he inadvertently erased a portion of the tape. He also testified that the tape sent to Mr. Fisher was unedited.

Exhibit M-11: Transcript of Exhibit M-10 specifically the conversation between AIR SASK flight 701 and the tower controller Mr. Ray Stewart Howe.

Exhibit M-12: Transcript of Exhibit M-10 specifically the conversation between AIR SASK flight 701 and the area controller, Mr. Neil Greaves.

This concluded the testimony from Mr. Gagnon.

Mr. Fisher indicated that he had no questions for Mr. Gagnon.

Witness Mr. Ray Stewart Howe

Mr. Howe was sworn in as a witness. Mr. Howe testified that he had been employed by Transport Canada and now NavCanada for twenty-three years. He testified that he was working the ground control position in the Saskatoon control tower on May 7, 1999.

With reference to Exhibit M-11 he testified the contents of the transcript were correct. He testified that he obtained the approval from Winnipeg centre to authorize AIR SASK to use runway 15 instead of the active 09 (paragraph 10, page 1).

He testified that he obtained authority from Winnipeg ATC to issue a SID to AIR SASK 701 with an altitude restriction of 4,000 feet ASL (paragraphs 10 and 11, page 1).

Mr. Howe testified that he issued the clearance to AIR SASK 701 (outlined in paragraph 22) and obtained the readback from AIR SASK 701 (outlined in paragraph 23).

Mr. Howe testified he issued the conflicting traffic advisory to AIR SASK 701 (outlined in paragraph 3, page 3 of the transcript) and obtained the readback from AIR SASK 701 (outlined in paragraph 4, page 3).

Cross-examination

The discussion was general in nature and mainly restricted to how ATC operates.

Witness Mr. Neil Greaves

Mr. Greaves was sworn in as a witness. Mr. Greaves testified that he was employed as an air traffic controller by NavCanada in Winnipeg, Manitoba. He stated that on May 7, 1999 he was the controller responsible for air traffic in Saskatoon.

Mr. Greaves testified that on May 7, 1999 at approximately 2243 hours in Saskatoon runway 09 was active. He received a request from Saskatoon tower to authorize AIR SASK 701 to use runway 15. He issued the authority for the runway change and issued the SID departure with a 4,000-foot ASL restriction for AIR SASK 701.

He testified that he had issued a similar clearance to ATHABASKA 203 shortly before AIR SASK 701 and there had been no problems.

Mr. Greaves noted on the radar that AIR SASK 701 had gone through 4,000 feet ASL and was continuing the climb. He ordered AIR SASK 701 to return to 4,000 feet ASL with "no delay" because AIR SASK 701 was through 4,500 feet ASL he ordered them to "continue in the climb." This dialogue is contained on page 1 of Exhibit M-12.

Mr. Greaves then re-cleared AIR SASK 70l to one seven thousand feet ASL.

Cross-examination

Mr. Greaves stated that it was operating procedure to change SID's when traffic required different procedures. He further stated that the radar reporting altitudes were in 100 feet increments and that the data was upgraded every 12 to 15 seconds.

FOR THE RESPONDENT — MR. KENNETH FISHER

Mr. Fisher testified on his own behalf and was sworn in as a witness. Mr. Fisher presented no witnesses and presented the following exhibits:

Exhibit D-1: Photocopy of an Accident and Incident Report taken from La Ronge Aviation Services Ltd. Operations Manual, page 8.

Mr. Fisher testified that he was the Captain of AIR SASK flight 701 on May 7, 1999 departing Saskatoon, Saskatchewan at 2243Z and in command of a BAE 31 aircraft registration C-GPDC. The co-pilot was Randy Nett. The weather was CAVOK.

Exhibit D-2: Photocopy of a hand written letter dated May 7, 1999 which explains the incident referred to in Exhibit D-l.

Mr. Fisher testified that he received the SID 6 departure with the instructions to maintain 4,000 feet ASL and runway heading after take-off.

Mr. Fisher testified that he was flying the aircraft. The first officer called traffic in sight at 3,800 feet ASL at which point Mr. Fisher looked outside the aircraft and the first officer stated they were now at 4,200 feet ASL. Mr. Fisher started down to 4,000 feet ASL but because they were at 4,500 feet ASL the area controller issued a further clearance to proceed with their climb. The conflicting traffic passed at nine o'clock at ½ to 1 (one) mile separation.

Mr. Fisher testified that the BAE 31 climbs at 3,000 feet per minute or 50 feet per second. Mr. Fisher also testified that C-GPDC is not equipped with TCAS or proximity warning devices. Mr. Fisher further stated that his primary concern in flying is safety of the passengers, the crew and finally the aircraft.

Cross-examination

Mr. Fisher on direct questioning by the case presenter answered as follows:

Mr. Fisher confirmed that he had received the clearance from ATC. Mr. Fisher was not aware of the time when he first understood that he was to level at 4,000 feet ASL.

Mr. Fisher stated that because the crew had the traffic in sight they could continue their climb and it was impossible to give an exact altitude because both the pilots were looking outside and the aircraft was climbing at 50 feet per second.

As there was no further evidence the evidentiary record was closed.

THE MINISTER'S REPRESENTATIVE'S CLOSING ARGUMENT

Mr. Holbrook stated that through exhibits and testimony the Minister has established the following facts:

  • Mr. Fisher was the captain of flight AIR SASK 701.
  • AIR SASK 701 departed Saskatoon, Saskatchewan at approximately 2243Z on May 7, 1999.
  • Mr. Fisher was in command on the Saskatoon to Regina leg.
  • All the documentation for the aircraft was current and in place.
  • The flight crew received and acknowledged the departure clearance with the 4,000-foot ASL restriction.
  • AIR SASK 701 continued their climb through 4,000 feet ASL thus disobeying the departure clearance.

Mr. Holbrook asked that the Minister's sanction be upheld.

MR. FISHER'S CLOSING ARGUMENT

Mr. Fisher stated that his objective was to maintain a high level of safety at all times.

Mr. Fisher indicated that the 4,000-foot ASL restriction caused confusion and his experience was that ATC would change that restriction once the conflicting traffic was identified.

Mr. Fisher indicated that the high performance of the aircraft negated small altitude changes and the crew was doing the best they could while maintaining safety.

ANALYSIS

The wording of paragraph 602.31(1)(b) of the CARs states:

Subject to subsection (3), 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

This was received by AIR SASK flight 701 through Exhibit M-11.

(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command

The control clearance was not adhered to by AIR SASK flight 701 (Exhibit M-12).

(i) subject to subsection (2), in the case of an IFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received (...)

AIR SASK flight 701 read back the clearance with the 4000-foot ASL requirement (Exhibit M-11).

(3) The pilot-in-command of an aircraft may deviate from an air traffic control clearance or an air traffic control instruction to the extent necessary to carry out a collision avoidance manoeuvre.

Prior to the take-off clearance AIR SASK flight 701 was advised by Saskatoon tower that there was "possible traffic for you is a twin Cessna holding over the ... X-ray beacon at four thousand five hundred VFR hold." AIR SASK flight 701 acknowledged the transmission and did not ask for a deviation from their accepted SID.

I am convinced the transmissions between the tower in Saskatoon and the ATC centre in Winnipeg were operational and all required authorities for runway changes and SID modifications were obtained and transmitted by the affected individuals.

I am convinced that Mr. Kenneth Fisher was the captain of AIR SASK flight 701, which departed Saskatoon at approximately 2243Z on May 7, 1999.

The flight crew of AIR SASK flight 701 did not adhere to the issued and accepted clearance and thus are in breach of paragraph 602.31(1)(b) of the CARs.

DETERMINATION

I find that Mr. Kenneth Fisher did contravene paragraph 602.31(1)(b) of the Canadian Aviation Regulations, and I confirm the Minister's decision to assess a monetary penalty of $175.00.

E. David Dover
Member
Civil Aviation Tribunal