Decisions

CAT File No. C-1889-33
MoT File No. RAP5504-P237980-033573 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Michael Kelly Friesen, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.100(a)

Failure to report departure intentions, FSS, Reduction of monetary penalty, Uncontrolled aerodrome, AIP


Review Determination
William G. McDonald


Decision: March 6, 2000

I find that the Minister has not proven the contravention of paragraph 602.100(a) of the Canadian Aviation Regulations and I therefore dismiss the minister's allegation and the monetary penalty of $250.

A Review Hearing on the above application was held Friday, February 11, 2000 at 10:00 hours at Federal Court Room No. 2, in the City of Winnipeg, Manitoba.

It is alleged in the Notice of Assessment of Monetary Penalty that Michael Kelly Friesen contravened paragraph 602.100(a) of the Canadian Aviation Regulations (CARs) as follows:

in that at approximately 2237 hours UTC, on or about April 30, 1999, at or near Island Lake, Manitoba, being the pilot-in-command of an IFR aircraft, to wit, a Ratheon Aircraft Company 1900D, bearing Canadian registration marks C-FYSJ, that was departing from an uncontrolled aerodrome, namely, the Island Lake, Manitoba Airport, that lies within an MF area, you did fail, before moving onto the take-off surface, to report the pilot-in-command's departure procedure intentions.

BACKGROUND

At approximately 2237 hours UTC, on April 30, 1999 Ministic Air Flight No. 205 was returning to Winnipeg on a regularly scheduled flight from Island Lake, Manitoba. Ministic 205's pilot-in-command was Captain Michael K. Friesen and the co-pilot was Chris Olson. The Island Lake airport lies within a mandatory frequency (MF) reporting area that is serviced by NAV CANADA flight service specialists based in Winnipeg, Manitoba.

Ministic 205 departed the Island Lake airport for Winnipeg and Transport Canada charged Captain Friesen with contravening paragraph 602.100(a) of the CARs which reads as follows:

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

At the commencement of the Review Hearing the Tribunal Member asked both parties if an informal conference between the parties had been held. Mr. Gagnon, Transport Canada, responded that a pre-hearing discussion had taken place between Transport Canada and Captain Friesen, the result of which was a document titled "Admissions as to facts and Circumstances". The Member accepted the document as Exhibit M-1. Captain Friesen was questioned as to the validity of the document and he concurred with the validity of the document.

The document reads in part:

  1. That Ministic 205 departed Island Lake Manitoba on the 30th day of April 1999 on a flight to Winnipeg, Manitoba
  2. That the flight took place at or around 2237 hours UTC.
  3. That Island Lake is an uncontrolled aerodrome for which a designated Mandatory Frequency is assigned.
  4. That Mr. Friesen acknowledged receipt of the Monetary penalty dated August 11, 1999
  5. Certificate of Registration for aircraft C-FYSJ.
  6. Certificate of Airworthiness for aircraft C-FYSJ.
  7. Canada Flight Supplement dated 25 March 1999
  8. Aircraft journey log for C-FYSJ for April 30, 1999
  9. That he was the pilot-in-command of C-FYSJ

EVIDENCE

Mr. Gagnon called the first witness. Mr. Lloyd Jensen was sworn in and stated that he is an employee of NAV CANADA, as a flight service specialist for the Island Lake MF area and was on duty April 30, 1999.

Mr. Gagnon asked Mr. Jensen to recall the events of April 30, 1999. Mr. Jensen reported that Ministic 205 had called up on the MF and stated their intentions. He responded with the current wind and altimeter setting. He next reported that Ministic 205 called up to state they would be delayed. Mr. Jensen next heard from Ministic 205 when it was clearing the area southbound for Winnipeg.

Mr. Gagnon questioned Mr. Jensen about the procedures to monitor aircraft movements in an MF area. Mr. Jensen gave an explanation of "strip management", the procedure used to monitor aircraft based on time and distance. Mr. Gagnon requested the strips for Ministic 205 from April 30, 1999 be entered as evidence. The Member accepted the strips as Exhibit M-2. Attached with the strips are the NAV CANADA Aviation Occurrence Report and a NAV CANADA Memorandum from S. Werner, Team Leader, Winnipeg FSS (flight service station) to Transport Canada which details the times and actions of Ministic 205 and two other aircraft on April 30, 1999. Mr. Gagnon asked Mr. Jensen if the strip management procedure was a "paper radar" system and that without proper strip management the FSS would lose "the picture" of aircraft movement in the area. Mr. Jensen responded that this was the only method to monitor aircraft movements in a safe manner.

Mr. Gagnon then requested that a NAV CANADA tape for April 30, 1999 be played. The Member granted the request and the tape was played. The tape contained the Island Lake MF area exchanges between Ministic 205, Mr. Jensen, and several other aircraft in the vicinity on that day and time. The tape also contained a telephone recording between Mr. Jensen and Captain Friesen after Ministic 205 landed in Winnipeg as well as a telephone recording between Mr. Doug Moyse of Transport Canada and Captain Friesen during the investigation. Mr. Gagnon asked that a transcript of the tape recording and the tape itself be entered as evidence. The Member accepted the tape and transcript as Exhibit M-3.

Captain Friesen was offered the opportunity to question the witness.

Captain Friesen asked a number of questions regarding strip management and frequency congestion. He asked Mr. Jensen if it was possible to "lose the picture" when the MF was busy, the frequency congested and the FSS working without radar. Mr. Jensen replied that this was a possibility.

Mr. Gagnon was then given the opportunity to ask additional questions. He asked Mr. Jensen if he expects a "call-back" from an aircraft when it returns to the apron. Mr. Jensen responded that he would expect a call-back.

The Member then asked Mr. Jensen what happens to the strip if an aircraft does return to the apron. Mr. Jensen replied that the strip is removed from the active bay and then placed in a pending bay. The witness was excused.

Captain Friesen called his witness, Mr. Chris Olson. Mr. Olson was sworn in and stated that he was the co-pilot on Ministic 205 on the date in question. Captain Friesen asked Mr. Olson to relate the events of April 30, 1999. Mr. Olson explained that he was "pilot flying" on this return leg and that Captain Friesen was "working the radios". He stated that Ministic 205 did call up on the MF and stated their intentions prior to departure. A call on the Ministic Air company frequency was then received with information that an additional passenger had arrived. Captain Friesen then contacted FSS to state that they would be delayed and were returning to pick up an additional passenger. Mr. Olson stated that after picking up the passenger they restated their intentions prior to departure and the response was "roger".

Mr. Gagnon then questioned Mr. Olson about the company frequency. Mr. Gagnon asked Mr. Olson if it was possible to broadcast on the company frequency of 2957. Mr. Olson responded that this could occur. He then stated that they had received the response "roger" which indicated to Captain Friesen and Co-pilot Olson that it was FSS responding. Mr. Olson also stated that he felt they had met the legal requirements to state their intentions. The witness was excused.

Captain Friesen then called himself as a witness and was sworn in.

Captain Friesen recalled the events of April 30, 1999. He offered that he had indeed transmitted the departure intentions after picking up the passenger but admitted that it must have been on the company frequency of 2957. He explained that it is his belief that as he was making the departure broadcast on 2957, Ministic Air Flight 607 was broadcasting at the exact same time and that the "roger" he and Mr. Olson heard was indeed the FSS response to Ministic 607.

Captain Friesen then stated that according to the A.I.P. Canada,[1] he had met the requirements as stated. Section 4.5.7(a)(ii)(A) reads:

(A) Complete pretakeoff check and report departure intentions on the MF or ATF frequency before moving onto the runway. If a delay is encountered, broadcast intentions and expected length of delay;

Captain Friesen maintained that he had not broken any regulations and had followed the regulation as stated by broadcasting "We're going to be delayed a few minutes" to FSS prior to picking up the passenger. Captain Friesen stated that Ministic 205 was delayed 3 to 4 minutes and the regulation does not state how long the delay can be.

The Member asked Mr. Friesen if he would like to submit RAC 4-19, section 4.5.7(ii)(A) as an exhibit. Mr. Friesen asked that the document be entered as an exhibit. The Member accepted the RAC as Exhibit A-1.

Mr. Gagnon asked for a short recess to review the RAC document. The Member granted a 10-minute recess.

Upon resuming Mr. Gagnon questioned Captain Friesen about the time period of the delay and the monitoring of the radios while he was outside the aircraft assisting the passenger to board. Captain Friesen maintained that the delay was only of 3-4 minutes duration and that Mr. Olson was monitoring the radios while he was absent from the cockpit. The witness was excused.

Mr. Gagnon called Mr. Doug Moyse as a witness. Mr. Moyse was sworn in and stated that he was an employee of Transport Canada with approximately 6,000 hours of flying experience of which 1,300 hours were in a Beech 1900. He stated that in a two-member crew environment it was a common practice to have the remaining crew member, in the absence of the other, "guard the frequency" or "guard #1" so that it was clear as to whose responsibility it was to monitor the correct frequency while going to an MF or company frequency.

Mr. Moyse was excused.

The Member closed the evidentiary record and the closing arguments were heard.

MINISTER'S ARGUMENT

Mr. Gagnon stated that Captain Friesen had not recontacted FSS prior to departure after having been asked to do so. He pointed out that it is essential for reporting to be done so that FSS have all the available information to maintain safety for all.

CAPTAIN FRIESEN'S ARGUMENT

Captain Friesen maintained that he had met the regulation by making his intentions known and that the length of the delay did not create any potential for conflict. He and Mr. Olson were monitoring the radios and that the "roger" was mistakenly believed to have been for Ministic 205. Captain Friesen questioned the RAC departure information and stated that the "length of validity" for a broadcast departure intention is unknown.

THE LAW

Operating procedures in MF areas are regulated under the CARs. Departure Procedures are governed under:

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 a vehicle during take-off; and

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

The A.I.P. Canada contains procedures under RAC 4-19, section 4.5.7(a)(ii) Departure:

(A) Complete pretakeoff check and report departure intentions on the MF or ATF frequency before moving onto the runway. If a delay is encountered, broadcast intentions and expected length of delay;

(B) Ascertain by radio on the MF or ATF frequency and by visual observation that no other aircraft or vehicle is likely to come into contact with the aircraft during takeoff; and

(C) Report departing from the aerodrome traffic circuit, and monitor the MF or ATF frequency until well cleared of the area (5 to 10 NM). (CAR 602.100)

The actions of the FSS or specialist are regulated under CARs, Part VIII-Air Navigation Services, section 800.01:

Interpretation

800.01 In this Part,

[...]

"flight information services" means

(a) the dissemination of aviation weather information and aeronautical information for departure, destination and alternate aerodromes along a proposed route of flight,

(b) the dissemination of aviation weather information and aeronautical information to aircraft in flight,

(c) the acceptance, processing and activation of flight plans and flight itineraries, amendments to flight plans and flight itineraries, and cancellations of flight plans and flight itineraries,

(d) the exchange of flight plan information with domestic or foreign governments or agencies or foreign air traffic services units, and

(e) the provision of known information concerning ground and air traffic;

CONCLUSION

The central question before the Tribunal is: Did an infraction under section 602.100 occur?

In deciding whether or not Captain Friesen had committed the infraction, the Minister needed to prove the following facts:

  1. Was Captain Friesen the pilot-in-command of the aircraft C-FYSJ?
  2. Did he fail to report his departure intentions on the MF prior to moving onto the runway?

It is clear that Captain Friesen was the pilot-in-command of C-FYSJ on the date in question. The Admissions as to Facts and Circumstances document and Captain Friesen's testimony under oath prove this point.

Therefore, the central question remains: "Did Captain Friesen fail to report his departure intentions?"

The evidence placed before the Tribunal establishes that Captain Friesen did report his departure intentions. This fact is established by the NAV CANADA tape recording of the conversation between FSS and Ministic 205, the Team Leader's report to Transport Canada which states that at 2236Z "MNS205 reported taxiing for departure runway 12, Island Lake and received an airport advisory." And as well the testimony of FSS Jensen, Captain Friesen and Co-pilot Olson.

Captain Friesen satisfied the CARs in question in that he reported his departure intentions.

The issue then becomes a question regarding the length of the delay. Paragraph 602.100(a) of the CARs does not deal with delays and RAC 4-19, 4.5.7(ii)(A) offers only that the pilot-in-command state the expected length of delay. Captain Friesen met this requirement by reporting "we're going to be delayed a few minutes." The facts placed before the Tribunal suggest that the time frame being dealt with is from 2237Z to 2247Z based on the NAV CANADA Team Leader's Memorandum to Transport Canada. The determination of what constitutes a "length of delay" is not before the Tribunal. Had the legislation intended under paragraph 602.100(a) of the CARs and the RAC 4-19, 4.5.7(ii), that the pilot specify the length of delay to the minute and report back on the MF after the delay was dealt with, it would have stated such. The current legislation does not. It requires the pilot-in-command to report his departure intentions and if a delay is encountered to broadcast on the MF his intentions and expected length of delay. That is what Captain Friesen did.

The other matter raised by the Minister is that of Captain Friesen responding to the FSS request to "let me know when you're taxiing" after Captain Friesen informs FSS of the delay. While certainly a courtesy on the part of flight crews to respond to a request from FSS, again the legislation (CARs, section 800.01, Interpretation) is clear in that it is not compulsory for flight crews to respond to FSS requests.

DETERMINATION

I find that the Minister has not proven the contravention of paragraph 602.100(a) of the CARs and I therefore dismiss the minister's allegation and the monetary penalty of $250.

William G. McDonald
Member
Civil Aviation Tribunal


[1] (Aeronautical Information Publication) RAC 4-19, section 4.5.7(ii), Departure (A).


Appeal decision
Allister W. Ogilvie, Elizabeth M. Wieben, William Thornton Tweed


Decision: June 28, 2000

The appeal is allowed but the monetary penalty is reduced to $50. This amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

An Appeal Hearing in the above matter was held Friday, June 23, 2000 at 13:00 hours, at the Federal Court of Canada, in Winnipeg, Manitoba.

BACKGROUND

Ministic Air Flight 205 was returning to Winnipeg on a regularly scheduled flight from Island Lake, Manitoba. Island Lake Airport is uncontrolled and lies within a mandatory frequency (MF) reporting area that is serviced by NAV CANADA, Flight Service Station (FSS) based in Winnipeg, Manitoba.

Ministic 205 made an initial call on the mandatory frequency indicating that the aircraft would be taxiing for departure runway 12. The flight then received the airport advisory from the FSS. Shortly thereafter Ministic 205 radioed that they were going to be delayed a few minutes as they were to board an additional passenger.

The FSS acknowledged that transmission, asking Ministic 205 to let the FSS know when they were taxiing. The next time the FSS heard from Ministic 205 was several minutes later when the aircraft called clearing the FM area enroute to Winnipeg. The record shows that after the delay but before departing, Ministic 205 again attempted to contact the FSS. However they broadcast their intentions on the company frequency rather than the MF.

Subsequent to that occurrence Transport Canada charged Captain Friesen with the contravention of paragraph 602.100(a) of the Canadian Aviation Regulations (CARs) which reads 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

A hearing of the matter was held before a single member of the Civil Aviation Tribunal on February 11, 2000 in Winnipeg, Manitoba. The hearing member stated:

I find that the Minister has not proven the contravention of paragraph 602.100 (a) of the Canadian Aviation Regulations and I therefore dismiss the Minister's allegation and the monetary penalty of $250.

From this decision the Minister of Transport appealed on the following ground:

The member erred in law in interpreting clause 602.100 (a) of the Canadian Aviation Regulations;

DISCUSSION

The issue in this matter is the interpretation of paragraph 602.100(a). The Minister submits that the proper interpretation of that subsection requires the pilot-in-command to report the departure intentions when the aircraft is about to move onto the takeoff surface. Mr. Hector argued that must be done even if the departure intentions had been reported previously but some intervening event occurred which prevented the aircraft from departing immediately after the radio transmission.

Mr. Friesen relied on the Aeronautical Information Publication Canada (AIP), RAC 4-9, section 4.5.7(a)(ii)(A) which states:

4.5.7 VFR Communication Procedures at Uncontrolled Aerodrome With MF and ATF Areas

[...]

(ii) Departure

(A) Complete pre-takeoff check and report intentions on the MF or ATF frequency before moving onto the runway. If a delay is encountered, broadcast intentions and expected length of delay;

Mr. Friesen argued that he had done just that, reporting a delay and its expected duration and was therefore in compliance with the requirements. He explained that he did make another call after the delay but as it turned out it was not on the MF frequency.

At the Review, the hearing member correctly found the issue to be whether or not Captain Friesen failed to report his departure intentions. He held that Captain Friesen had satisfied the CARs in question in that he did report his departure intentions.

He went on to note that the determination of what constitutes a "length of delay" was not before the Tribunal, but remarked upon the issue. In doing so he stated:

Had the legislation intended under paragraph 602.100(a) of the CARs and the RAC 4-19, 4.5.7(ii), that the pilot specify the length of delay to the minute and report back on the MF after the delay was dealt with, it would have stated such. The current legislation does not. It requires the pilot-in-command to report his departure intentions and if a delay is encountered to broadcast on the MF his intentions and expected length of delay. That is what Captain Friesen did.

With respect we disagree with the member's interpretation. In addressing "current legislation" the member has mixed regulation with information. The allegation that needs to be addressed is the breach of the CARs provision. The information in the AIP can be helpful in the interpretation of regulations but that information is not in itself regulatory. One must comply with the aviation regulations as published in the Aeronautics Act and the CARs. This is noted in the AIP itself in the General Section 1.1.3 where it states:

1.1.3 Aeronautical Information Publications

[...]

The rules of the air and air traffic control procedures are, to the extent practical, incorporated into the main text of A.I.P. Canada in plain language. Where this was not possible, the proper CARs have been incorporated verbatim into the Annexes; however, editorial liberties have been taken in the deletion of definitions not considered essential to the understanding of the intent of the CARs. This has been done to enhance comprehension of the rules and procedures essential to the safety of flight. The inclusion of these rules and procedures in this format does not relieve persons concerned with aviation from their responsibilities to comply with all Canadian aviation regulations as published in the Aeronautics Act and CARs. Where the subject matter of A.I.P. Canada is related to CARs, the legislation is cited. (Emphasis added)

Paragraph 602.100(a) addresses aircraft that are departing. The section should be read as a continuum, that is a series of actions passing one into the other without interruption. Once delayed for any reason the aircraft is no longer departing. Hence a re-broadcast of the departure procedure intentions would be required when the delay is over and the aircraft is once again in the departure mode.

Clearly based on Captain Friesen's own evidence, he had an expectation that a second call on the MF was necessary to alert the FSS and other traffic that he was proceeding with his intended departure, as he did make such a call albeit not on the MF. Unfortunately the circumstances in which it happened did not alert Captain Friesen to the fact he had transmitted on the wrong frequency. There was therefore no transcript of the call and there can be no determination as to whether or not that call would have met the requirement of the CARs.

The material in the AIP is intended to aid in the interpretation of the CARs but in this instance

RAC 4.5.7(a)(ii) has not aided clarity. As written and interpreted by Mr. Friesen and the hearing member one would not be required to re-broadcast a departure intention after a delay. Here the delay was short, but to read the section in that manner opens the Pandora's box of how long a delay must be before a re-broadcast must be made. We find that such an interpretation is inconsistent with the actual regulation which clearly addresses a departing, not delayed aircraft.

The intention of the Aeronautics Act and CARs is to promote aviation safety. In this regard the broadcast of a pilot-in-command's intentions before departure assists others in the area in maintaining awareness of the whereabouts and intentions of other traffic. If such broadcasts are not made in a timely manner the intention of the provision would be defeated.

The monetary penalty adjudicated by the Minister in this instance is $250. However we find that mitigating circumstances exist. In this occurrence flight safety was not compromised. Captain Friesen was attempting to do what he understood to be the appropriate procedure. He did attempt a secondary transmission, which would have alerted other traffic and the FSS but utilized an incorrect frequency. In this circumstance the penalty should be lessened.

In the result we allow the appeal but reduce the monetary penalty to $50.

Reasons for Appeal Determination:

Allister Ogilvie, Vice-Chairperson

Concurred:

William T. Tweed, Member
Elizabeth M. Wieben, Member