Decisions

CAT File No. C-1933-33
MoT File No. RAP5504-P390713-033484 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Amy Louise McInnis, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433. s. 602.104(2)(a)(i)

Uncontrolled aerodrome, Due diligence, Failure to report intention


Review Determination
E. David Dover


Decision: March 29, 2000

I find that Amy Louise McInnis did contravene subparagraph 602.104(2)(a)(i) of the Canadian Aviation Regulations, and I confirm the Minister's decision to assess a monetary penalty of $500. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this Determination.

A Review Hearing on the above matter was held on Tuesday, March 14, 2000 at 10:00 hours in the conference room of the Siniktarvik Hotel at Rankin Inlet, Nunavut.

The witnesses were sworn in by the attending court reporter. The witnesses excepting the document holder, Amy McInnis, were excused from the room prior to the commencement of proceedings. There were no pre-hearing conferences held between the parties.

BACKGROUND

On October 13, 1999, a monetary penalty of $500.00 was assessed against Ms. Amy Louise McInnis, the Respondent, pursuant to section 7.7 of the Aeronautics Act, for having contravened subparagraph 602.104(2)(a)(i) of the Canadian Aviation Regulations:

at approximately 2043 hours UTC, on or about the 2nd day of April, 1999, at or near Resolute Bay, Northwest Territories, being pilot-in-command of an IFR aircraft, to wit, a DeHavilland DHC-6, bearing Canadian registration marks C-FASG, operating as FAB 8060, you did fail to report your intentions regarding the operation of the aircraft five minutes before the estimated time of commencing the approach procedure, stating the estimated time of landing.

The incident occurred on the approach for landing of a Twin Otter aircraft, registration C-FASG, operating as flight number FAB 8060 at Resolute Bay, Nunavut.[1] The flight was conducted under IFR flight rules and was commanded by Captain Amy Louise McInnis and First Officer Ashley Drew. Earlier in the day the flight originated in Iqaluit, Nunavut with a stop in Hall Beach, Nunavut with the final destination being Resolute Bay.

The purpose of the flight was to position the aircraft in Resolute Bay as well as conduct a training mission for the first officer, Mr. Ashley Drew. Both the captain and the first officer were employed by First Air, the owner of the aircraft.

There were no passengers on the flight.

THE LAW

Part VI, Subpart 2-Operating and Flight Rules, section 602.104 of the Canadian Aviation Regulations:

Reporting Procedures for IFR Aircraft When Approaching or Landing at an Uncontrolled Aerodrome

602. 104 (1) This section applies to persons operating IFR aircraft when approaching or landing at an uncontrolled aerodrome, whether or not the aerodrome lies within an MF area.

(2) The pilot-in-command of an IFR aircraft who intends to conduct an approach to or a landing at an uncontrolled aerodrome shall report

(a) the pilot-in-command's intentions regarding the operation of the aircraft

(i) five minutes before the estimated time of commencing the approach procedure, stating the estimated time of landing,

[...]

OPENING STATEMENTS

Mr. Welwood indicated his intention to call three witnesses. He confirmed that there had been no pre-hearing conferences.

Mr. Waller indicated his intention to call two witnesses, one being the document holder and the other the first officer on flight FAB 8060. He stated that it was his intention to address past communications problems with the Resolute Bay radio facility.

Both Mr. Welwood and Mr. Waller agreed that the portion of the flight from Hall Beach to Resolute Bay known as FAB 8060 was conducted under IFR flight rules.

FOR THE APPLICANT—The Minister of Transport

The case presenting officer, Mr. Jim Welwood, presented three witnesses.

J. D. Gaudry, Aviation Enforcement Inspector, Prairie and Northern Region. Mr. Gaudry is the investigating officer assigned to the case number RAP5504-P390713-033484 (P) concerning the incident occurring at approximately 2043 hours UTC, April 2, 1999 at or near Resolute Bay, involving Captain Amy Louise McInnis.

Mr. Gaudry entered the following exhibits:

M-l Certificate of Registration of Aircraft for C-FASG, de Havilland DHC-6 Series 300, Serial No. 373, owner Bradley Air Services Limited, Carp, Ontario

M-2 Certificate of Airworthiness CF-A S G, de Havilland DHC-6 series 300, Serial No. 373, category normal, dated October 4, 1973

M-3 CADORS PNR Regional Report dated 4/6/1999

This report indicates that flight 8060 estimated arrival at Resolute Bay at 2124Z on April 2, 1999. It arrived at 2053Z and because no contact with Resolute Bay Community Aerodrome Radio Station (CARS) prior to 2124Z a communications search was initiated at 2124Z by a CARS operator. It was determined that the aircraft was on the ground at Resolute Bay.

M-4 First Air Flight Log Book-This copy indicates that the aircraft C-FASG departed YUX (Hall Beach) at 1723Z and arrived at YRT (Resolute Bay) at 2053Z. It also indicates that the captain is Ms. McInnis and the first officer is Mr. Drew.

M-5 Package of five (5) documents outlining the following items:

  1. ATS Document Request from Mr. Gaudry to NAV CANADA.
  2. Communications record for FAB 8060, in the vicinity of Resolute Bay (YRB) and gathered by NORTH BAY IFSS (YYB). The entry indicates the FAB 8060 broadcast its intentions to commence its decent to Resolute Bay (YRB) at 20:31:25 on a frequency of 126.7. This report also contains information the Resolute Bay CARS requested information about FAB 8060 at 21:25 and received a negative reply from North Bay. At 2134 and 2135 North Bay (YYB) called FAB 8060 on all frequencies with no reply. At 22:01:50 Resolute Bay CARS advises North Bay that FAB 8060 is on the ground at Resolute Bay.
  3. NAV CANADA journal for the CARS at Resolute Bay dated April 2, 1999. This report indicates that the weather observation was commenced at 2051Z at YRB. A call was broadcast to FAB 8060 on 122.1 at 2130 with no reply. At 2142Z the duty officer is advised that FAB 8060 is possibly overdue and is checking with Baker Lake, Hall Beach, Edmonton Centre and First Air dispatch. First Air dispatch advises Resolute Bay CARS at 2200Z that FAB 8060 has landed at Resolute Bay at 2053Z. The Resolute Bay CARS notes that FAB 8060 did not call for arrival information.
  4. CARS ARR/DEP LOG-Entry 19 from Resolute Bay CARS indicates an enquiry about FAB 8060. Entry 22 from Resolute Bay CARS indicates that FAB 8060 A2053 and did not call the Resolute Bay CARS. This was recorded at 2202Z.
  5. Flight plan data-This transcript indicates that FAB 8060 is at Hall Beach (YUX) at 1727Z and will be filing an IFR flight plan and to please close the flight note.

M-6 This is a copy of page B591 from the Canada Flight Supplement. Contained in the section titled "COMM" is the requirement under MF (mandatory frequency) to contact arpt rdo on 122.1 25 NM 5000 ASL.

M-7 This exhibit is taken from the Canada Air Pilot dated March 25, 1999 effective to May 20, 1999. The pages submitted are specifically 116 to 120. The specific reference is contained in the top left corner of each sheet. "NO CTL - BROADCAST INTENTIONS ON 126.7 WITHIN 15 MINS OF ETA AND PRIOR TO DESCENT. THEN ON MF 5 MIN PRIOR TO COMMENCING APCH. APRT RADIO 122.1 (MF 5 NM)."

M-8 This exhibit contains copies of METAR (actual) weather reports and TAF (terminal area forecasts) for Rankin Inlet (CYRB) for the period when FAB 8060 landed at Rankin Inlet on April 2, 1999. The specific report that is of concern is the METAR report for the period 022000Z to 022100Z. This report indicates that the weather is IFR. Specifically runway 35 has a visibility of 2200 feet in blowing snow. At 2100Z this lowers to runway 35 0900 feet in blowing snow. There were no special weather reports issued during the time period between 022000Z and 022100Z.

M-9 This exhibit is a copy of a registered letter receipt issued to Amy Louise McInnis and signed for by Denise McInnis on 1999/10/19.

Witness Mr. J. D. Gaudry

Mr. Gaudry was sworn in as a witness. He testified that all the documents submitted by him were true copies of original documents.

He stated that when the file was assigned to him he tried to contact Ms. McInnis by telephone at her home and by leaving messages with her employer at Resolute Bay and Ottawa. He was unable to contact Ms. McInnis.

Cross-examination by Mr. Steve Waller

Mr. Gaudry testified that prior to joining Transport Canada as a pilot and an inspector he had extensive experience as a line pilot with various private sector airline organizations. Mr. Gaudry testified that on April 2, 1999 there were three people on duty at the Resolute Bay and they were:

  • Mr. M. Manik Radio operator trainee
  • Mr. Ed. D. Heron CARS operations manager for arctic CARS radio programs
  • Mr. T. W. Rogers Aviation Program Officer

He testified that his investigation revealed that FAB 8060 reported to North Bay FSS (flight service station) on frequency 126.7 at 20:31:25 (Exhibit M-5).

He testified that Resolute Bay was an uncontrolled airport with a mandatory reporting frequency of 122.1 (Exhibits M-6 and M-7).

He stated that nowhere in his investigation could he find that FAB had communicated on 122.1. He further stated that the radiocommunications of 122.1 are not recorded anywhere within the system.

He stated that he had discussed the situation with Mr. Heron and Mr. Rogers but not Mr. Manik. He denied being aware of any communication problems with the Resolute Bay FSS in the past.

Witness Mr. E. D. Heron

Mr. Heron was sworn in as a witness. He testified that he was responsible for all the training, certification and quality control at the CARS in the Nunavut region.

He testified that he was present in the Resolute Bay CARS facility together with Mr. Rogers and Mr. Manik from 0800 to 1600 hours local time or 1400Z - 2200Z time on April 2, 1999. His purpose was to monitor Mr. Rogers who was observing the performance of the trainee, Mr. Manik.

Mr. Heron testified that he was seated at an adjacent table to both Mr. Rogers and Mr. Manik. He stated that he could hear all the radio transmissions during the period he was present in the facility. He stated that he was absent on two occasions from the facility and not at a time when the other two operators were absent.

He stated that he was present but alone in the radio adjacent to the radio installation during the period from 2051Z to 2053Z when the other two individuals were doing the weather observation (M-5). He stated that he heard no radio calls during this period. Mr. Heron testified that at the filed ETA of 2124Z for FAB 8060 he heard the trainee, Mr. Manik, trying to contact flight FAB 8060 as well as Baker Lake and North Bay as to the whereabouts of FAB 8060 (M-5). He also stated that he was advised that North Bay had contacted Edmonton Centre about FAB 8060. Mr. Heron stated that it was unusual to have two supervisors in the radio facility at one time but this was a training occurrence.

Cross-examination

Mr. Heron admitted that there had been problems in switching the facility at Resolute Bay from an FSS to a CARS facility. It was his testimony that the communication frequency had switched from 122.2 to 122.1 and that there had been language problems. Mr. Heron stated that he had not received any written complaints about the communication problems at Resolute Bay. All verbal problems had, after investigation, proven not to be valid. He testified that all radios were checked for proper operations prior to each shift and there were no problems identified with the radios in Resolute Bay. He stated that he was not aware of the volume control being turned down. He testified that he was advised by First Air dispatch at 2149 that FAB 8060 had landed at 2053 in Resolute Bay (M-5).

Witness Mr. T. W. Rogers

Mr. Rogers was sworn in as a witness. He testified that he was employed as an Aviation Program Officer for the Nunavut area. His responsibility was the initial certification of new observer communicators and reclassification of these same individuals. He stated that he was present in the CARS radio facility on April 2, 1999, 0800 - 1600 hours local time or 1400Z - 2200Z time. The purpose of his presence was to observe and train an observer communicator, Mr. Manik. Mr. Rogers testified that Mr. Heron was also present in the radio facility during this shift. He stated that Mr. Heron was there to monitor his performance in conducting his training procedure of Mr. Manik.

Mr. Rogers testified that the details of FAB 8060 were illustrated on a "strip" which indicated an IFR flight with an arrival time of 2124Z. When FAB 8060 did not report on the MF at the arrival time of 2124Z, he instructed the observer communicator to initiate a communication search (M-5).

Mr. Rogers testified that he entered on the INIT column of the CARS journal sheet dated April 2, 1999 times 2200 and 2203 that FAB 8060 had not called YRB CARS and had landed at 2053Z (M-5). Mr. Rogers testified that he and Mr. Manik had departed the radio room at 2051Z and returned at 2053Z to conduct the weather observation (M-5).

He further testified that the visibility was so low that they were unable to see the taxiway or the aircraft parked at the First Air facility. He stated that the broadcast was made by the CARS radio to all traffic indicating the fact that the operators would be away from 2051Z to 2053Z.

Mr. Rogers testified that he was adjacent to the station occupied by Mr. Manik and that Mr. Heron was present in the radio room when he and Mr. Manik were outside doing the weather observation.

He further stated that the radios in the radio room had been checked at the beginning of the shift. The change from 122.2 to 122.1 was accomplished by changing the crystals in the existing radios. Mr. Rogers stated that the CARS radio does not monitor 126.7 and had not heard the approach transmission on that frequency from FAB 8060. Mr. Rogers testified that at no time did he hear any transmissions from FAB 8060.

FOR THE RESPONDENT—The document holder

Mr. Waller, the agent for Ms. McInnis, submitted the following exhibits:

D-l The exhibit is a copy of a Line Report/Incident Report dated April 2, 1999 and submitted May 2, 1999 indicating the non-response by the Resolute Bay CARS to the call down by flight FAB 8060 following their landing at Resolute Bay. Ms. McInnis stated that she submitted this report.

D-2 The exhibit is a copy of a letter dated July 2, 1999 from Mr. J. D. Gaudry to Amy Louise McInnis indicating the investigation of a possible violation committed by herself at 2053 hours UTC at Resolute Bay.

D-3 The copy of the letter dated October 13, 1999 to Amy Louise McInnis from Bill Hanson outlines the Notice of Assessment of Monetary Penalty levied against Ms. McInnis.

Witness Amy Louise McInnis—for the Document Holder

The witness was sworn. Ms. McInnis stated that she was employed by First Air of Ottawa as a captain on Twin Otters and that she had commenced her employment in February of 1996. She stated that she was authorized by the MoT to conduct company IFR check rides and do recurrent training of First Air pilots on Twin Otters. She stated that the Twin Otters were based in Iqaluit and Resolute Bay. She stated that approximately 99% of her take-offs and landings were conducted at uncontrolled airports. Ms. McInnis stated that she was used to flying in the extremes of weather in Northern Canada.

Ms. McInnis testified that on April 2, 1999 she flew as captain a Twin Otter from Iqaluit to Resolute Bay with an intermediate stop in Hall Beach. This was a continuation of a flight that had originated in Ottawa, on the day before. The purpose of the flight was to position the aircraft in Resolute Bay and conduct a familiarization flight for the co-pilot, Mr. Ashley Drew, who was a new employee. The Iqaluit to Resolute Bay portion of the flight statistics is contained in Exhibit M-4.

During the flight she stated that she had no troubles with the aircraft radios at Iqaluit or Hall Beach. She further stated that she obtained the IFR clearance from Baker Lake and received the METAR and TAF reports on the high frequency aircraft radio from Iqaluit.

She stated that a broadcast on 126.7 was made approximately 15 minutes before landing and North Bay acknowledged this (M-5). Ms. McInnis testified that the Twin Otter flight FAB 8060 was equipped with two VHF and one HF radios.

Ms. McInnis testified that both she and the co-pilot, Mr. Ashley Drew, tried on two occasions each to contact Resolute Bay on 122.1. The contents of these transmissions were to advise the CARS and all stations listening on this frequency as to what approach procedure FAB 8060 was going to fly. She stated that there was no response from the CARS or any other station.

Ms. McInnis stated that she called on frequency 122.1 five minutes prior to passing the positions, fix outbound, fix inbound and clearing the runway. None of these transmissions were acknowledged. Ms. McInnis stated that the radios in the aircraft did not indicate a problem and she flew the same aircraft three days later and experienced no radio problems.

Ms. McInnis stated that she parked the aircraft at the First Air hangar and when the First Air dispatch at Iqaluit telephoned for the time down she reported 2053Z. Ms. McInnis stated that at no time did she have any conversations with Mr. Gaudry. She stated that she did receive the letters outlined in Exhibits D-2 and D-3.

Ms. McInnis testified that during the period from January 1999 to June 1999 she experienced delayed or no response on at least ten occasions when trying to communicate with Resolute Bay CARS. Upon investigation she did not receive an adequate reply.

She stated that even though the weather was IFR with high crosswinds the workload in the aircraft was not excessive.

Witness Mr. Ashley Drew

Mr. Drew was sworn in as a witness. He testified that he commenced his employment with First Air on April 1, 1999. He stated that he obtained his PPC on Twin Otters from other operators of Twin Otters. He testified that he was familiar with operating in and out of uncontrolled airports. He further stated that his experience in the North was limited. The flight from Ottawa to Resolute Bay was to be a familiarization flight.

He stated that he was unable to remember who flew flight FAB 8060 from Hall Beach to Resolute Bay. Mr. Drew did not remember any in flight transmissions on frequency 122.1 during the approach to Resolute Bay.

Mr. Drew did acknowledge transmitting to the Resolute Bay CARS on 122.1 after flight FAB 8060 had landed and was on the taxiway. The reason for this recall was because of the poor visibility and strong winds. Mr. Drew stated that he can only remember situations like this and not general occurrences.

Mr. Drew stated that he only heard about this case two weeks ago.

Mr. Drew stated that he experienced delays and language problems with the Resolute Bay CARS on April 4 and 5, 1999.

Cross-examination

Mr. Drew stated that he was concerned when there was no reply from the CARS on 122.1. He further stated that he does not remember who made the radio call to the CARS.

There being no further evidence the evidentiary record was closed.

CLOSING STATEMENTS

Mr. J. K. Welwood for the Applicant

Evidence has shown:

  • The aircraft arrived at Resolute Bay 2053Z.
  • The pilot-in-command was Ms. McInnis with Mr. Ashley Drew as the first officer.
  • The flight was IFR.
  • Both Mr. Heron and Mr. Rogers stated that the aircraft did not contact Resolute Bay CARS on frequency 122.1.
  • The Resolute Bay CARS initiated a communication search with no whereabouts of the aircraft obtained.
  • Three CARS specialists were on duty at Resolute Bay.
  • Mr. Drew is not credible as a witness.
  • Jurisprudence Minister of Transport v. Richard James Taylor (CAT File No. C-1749-33) does not apply in this situation.
  • On a balance of probabilities, the Minister has proven the offence did occur.

Mr. Steve Waller for the Respondent

Mr. Waller states subsection 7.9(5) of the Aeronautics Act requires: "(a) the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister".

It is Mr. Waller's argument that the Minister has not proven his case.

Section 8.5 of the Aeronautics Act states: "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."

It is Mr. Waller's submission that the document holder exercised all due diligence.

Subparagraph 602.104(2)(a)(i) of the Canadian Aviation Regulations states: "[...] shall report [...] five minutes before the estimated time of commencing the approach procedure, stating the estimated time of landing [...]."

It is Mr. Waller's submission that this was done on frequency 122.1.

Subsection 602.98(1) of the Canadian Aviation Regulations states:

(1) Every report made pursuant to this Division shall be made on the mandatory frequency that has been specified for use in the applicable MF area.

(2) Every report referred to in subsection (1) shall be

(a) directed to the ground station associated with the MF area, if a ground station exists and is in operation; or

(b) broadcast, if a ground station does not exist or is not in operation.

It is Mr. Waller's argument that the ground station was not listening or unable to listen on frequency 122.1. Mr. Waller asks the question "What could the Respondent do to communicate in this situation?" Mr. Waller states that the crew of FAB 8060 was experienced in flight and working with uncontrolled airports.

Mr. Waller questioned the fact that Mr. Gaudry in his collection of evidence did not talk to Mr. Manik.

Mr. Waller argues that the flight crew endeavoured to communicate on 122.1 and they exercised all due diligence by broadcasting their intentions about their approach to Resolute Bay.

ANALYSIS

The evidence shows that:

  1. The aircraft was properly registered and licensed (M-1 and M-2).
  2. A situation did occur and was reported (M-3).
  3. The aircraft was flown between Hall Beach and Resolute Bay by Captain McInnis and First Officer Ashley Drew landing at 2053Z (M-4).
  4. Communication from the aircraft was taped on frequency 126.7 at 20:31:25 by North Bay. There were no further recorded communications between ground stations and the aircraft (M-5).
  5. Exhibits M-6 and M-7 outline the procedure to be followed.
  6. Exhibit M-8 indicates that the weather was IFR.
  7. Exhibit M-9 verifies that the Respondent received the notice in a proper manner.
  8. Exhibit D-l indicates problems with unfamiliarity with the new co-pilot and the high winds.
  9. Exhibit D-2 explains the possible violation to Ms. McInnis.
  10. Exhibit D-3 is the Notice of Assessment of Monetary Penalty.

Subparagraph 602.104(2)(a)(i) of the Canadian Aviation Regulations states: "[...] shall report [...] five minutes before the estimated time of commencing the approach procedure, stating the estimated time of landing [...]."

It is Ms. McInnis's testimony that FAB 8060 landed at Resolute Bay at 2053Z (M-4). Ms. McInnis testified she flew a full approach on runway 17 calling outbound, inbound and clearing the runway.

Time sequence Procedure   Landing 2053
  Approach  2.00 min.   2051
  Inbound  1.00 min.   2050
  Procedure T  2.00 min.   2048
  Outbound  1.00 min.   2047
  5-min. call  5.00 min.   2042
Recorded call on 126.7   11.00 min.   2031

It is Mr. Rogers's evidence that he and Mr. Manik exited the radio facility from 2051 to 2053 to conduct a weather observation. Following the time sequence both Mr. Rogers and Mr. Heron were present in the radio facility for the 5-min. call, outbound call, the inbound call and the clear of runway call. Mr. Manik was also present during these times but he was not presented as a witness. It is the testimony of Mr. Heron that he was present for all the landing sequence and he heard no radio transmissions.

The first officer, Mr. Drew, was unable to remember any of the radio sequences except the call exiting the runway. His testimony is not reliable and his information I discredit.

Based on the evidence of Mr. Heron and Mr. Rogers and the fact that no evidence was introduced to indicate that either the aircraft radios were inoperable, I find that the calls to the Resolute Bay CARS were not made or received on the frequency 122.1.

Mr. Waller for the Respondent introduces section 8.5 of the Aeronautics Act. This states: "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."

Ms. McInnis testified that the aircraft operating as FAB 8060 was equipped with two VHF and one HF radios.

She testified that earlier in the day she received the weather report from Iqaluit on the high frequency radio.

It is also testimony that arctic radio on 126.7 received her call at 20:31:25 commencing her approach.

Subsection 602.137(1) of the Canadian Aviation Regulations states:

Two-way Radiocommunication Failure in IFR Flight

[...]

(a) maintain a listening watch on the appropriate frequency for control messages or further clearance and acknowledge receipt of any such messages, if possible, by any means available;

(b) set the transponder to code 7600; and

(c) attempt to establish communications with any air traffic services facility or other aircraft, inform the facility or aircraft of the difficulty and request it to relay the information to the last air traffic control unit with which communications had been established.

In looking at Exhibit M-6 it is clear that there are no time restrictions on the operation of the Resolute Bay CARS. Further the frequencies of 126.7, 123.55 and the HF of 5680 are available and in the event of the failure of 122.1 these frequencies could have been used as an alternate or backup communications for the MF 122.1.

Ms. McInnis testified that the workload on the aircraft was not high and the weather conditions were mainly obscured for the last 100 feet of the approach.

There was no evidence introduced to indicate that FAB 8060 had experienced a loss of radiocommunication and taken the appropriate action to ensure that communication was restored and their IFR position verified.

I find that only communicating on one frequency, which is not replying, and not accessing other frequencies which are listed in Exhibit M-6 does not constitute due diligence.

DETERMINATION

I find that Amy Louise McInnis did contravene subparagraph 602.104(2)(a)(i) of the Canadian Aviation Regulations, and I confirm the Minister's decision to assess a monetary penalty of $500.

E. David Dover
Member
Civil Aviation Tribunal


[1] Resolute Bay, Northwest Territories became Resolute Bay, Nunavut on April 1, 1999.


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


Decision: January 5, 2001

The Tribunal Member concluded, based on the evidence of Mr. Heron and Mr. Rogers and the fact that no evidence was introduced to indicate that either the aircraft radios were inoperable, that the calls to the Resolute Bay CARS were not made or received on the frequency 122.1. This Appeal Panel accepts and agrees with the review Member's finding on the basis of credibility. Having accepted the Tribunal Member's finding that the calls were not made, we accordingly determine that due diligence can in such circumstances have no application to the facts of this case. We therefore dismiss the Appeal and confirm the monetary penalty of $500.. 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.

The appeal of the within matter was held Friday, July 28, 2000 at 10:00 hours in the 18th floor hearing room of the Standard Life building, in the City of Ottawa in the Province of Ontario.

BACKGROUND

The facts of this case are succinctly set out in the review determination as follows: The incident giving rise to the Minister's allegation herein occurred on the approach for landing of a Twin Otter aircraft, registration C-FASG, operating as flight number FAB 8060 at Resolute Bay, Nunavut. The flight was conducted under IFR flight rules and was commanded by Captain Amy Louise McInnis and First Officer Ashley Drew. Earlier in the day the flight originated in Iqaluit, Nunavut with a stop in Hall Beach, Nunavut with the final destination being Resolute Bay. The purpose of the flight was to position the aircraft in Resolute Bay as well as conduct a training mission for the first officer, Mr. Ashley Drew. Both the captain and the first officer were employed by First Air, the owner of the aircraft.

The Minister assessed a monetary penalty in the amount of $500 for an alleged contravention of subparagraph 602.104(2)(a)(i) of the Canadian Aviation Regulations as against Ms. McInnis. The matter was heard at review hearing before Tribunal Member Dover who confirmed the Minister's decision to assess the aforementioned penalty.

On April 7, 2000, counsel for Ms. McInnis appealed the review determination on the following grounds:

1. The learned Member conducted a fundamentally unreasonable assessment of the evidence by:

(a) generally failing to consider or take into account evidence of an exculpatory nature;

(b) failing to consider or draw the appropriate inferences from the fact that the Minister chose to lead no evidence from the person who had responsibility for operation of the radio console in the Resolute Bay CARS during the alleged incident.

2. The learned Member failed to place the burden of proof on the Minister as required by the Act.

3. The learned Member denied the appellant natural justice and procedural fairness, by relying in his decision on an issue that was never raised at the hearing, namely the use of alternative radio frequencies.

4. The learned Member erred in finding that the use of such alternative radio frequencies was relevant to the question of compliance with or due diligence in attempting to comply with, subsection 602.104(2)(a)(i) of the Canadian Aviation Regulations.

5. The learned Member erred in relying on a subsection of the regulations, 602.137(1), that had no application whatsoever to the contravention with which the appellant had been charged. The error was compounded by the omission from the learned Member's reasons of the very passage of that subsection that revealed it to be inapplicable to the appellant's situation.

THE LAW

Part VI, Subpart 2-Operating and Flight Rules, section 602.104 of the Canadian Aviation Regulations:

Reporting Procedures of IFR Aircraft When Approaching or Landing at an Uncontrolled Aerodrome

602.104 (1) This section applies to persons operating IFR aircraft when approaching or landing at an uncontrolled aerodrome, whether or not the aerodrome lies within a MF area.

(2) The pilot-in-command of an IFR aircraft who intends to conduct an approach to or a landing at an uncontrolled aerodrome shall report

(a) the pilot-in-command's intentions regarding the operation of the aircraft

(i) five minutes before the estimated time of commencing the approach procedure, stating the estimated time of landing,

[...]

FACTS

The factual situation is that there is a training pilot, an experienced instructor, who is pilot-in-command with a new pilot as flight crew member in a difficult weather situation as depicted in Exhibit M-8. There is no evidence of a malfunctioning radio.

At the Community Aerodrome Radio Station (CARS) at Resolute Bay, there is a highly unusual situation of having three persons manning this station. Mr. Ed. D. Heron who was the CARS operations manager for the arctic CARS radio programs, Mr. T. W. Rogers, an Aviation Program Officer and Mr. M. Manik who was a radio operator trainee. Mr. Manik was a new hire and a trainee who subsequently changed employment. Mr. Heron was very senior and was in the room at all times relevant to this alleged infraction. At one point Mr. Rogers left the room with Mr. Manik to check the weather.

There was no evidence that the radios at the CARS station were malfunctioning or that the volume was turned down. The defence counsel suggests that this might have been the case but there is no evidence to support this conjecture. In fact, the evidence relating to the radios is that they were checked before the shift and that at least one other call made during that shift had been received a couple of hours earlier. In fact given the weather report not too many aircraft were landing at that time.

The pilot-in-command McInnis stated in her evidence that she made seven calls and the radios were working. The evidence of the person manning the flight station was to the effect that the calls were not received and that the radios were working. The evidence on this very crucial point conflicts and at the review hearing the Tribunal Member presiding accepted the evidence produced by the Minister and chose not to accept the evidence of Ms. McInnis.

ISSUE FOR DETERMINATION

How is it that an instructor, a training pilot with a great deal of experience familiar with flying in the north at uncontrolled airports often in adverse weather conditions, though perhaps not always as severe as on the day of this flight, testifies that she made seven calls on mandatory frequency (the co-pilot has no recollection of any of these calls) and this evidence is not accepted? Rather, the Hearing Officer accepts evidence of two CARS attendants that these calls were not heard on their radio and thus the Hearing Officer concludes that the calls were not made.

ANALYSIS

There are two basic areas to be addressed on appeal: contravention and due diligence.

1) CONTRAVENTION

The issue of contravention was decided on the basis of credibility. The Appellant's evidence was that she had made seven calls on mandatory frequency. It was the Respondent's position that there were three persons at the CARS station, two of these persons gave evidence that these calls were not heard. The third of these three persons was not called as a witness, a fact that was referenced by Appellant's counsel more than once. We are not moved by this fact. We do not know whether the Respondent attempted to contact this witness, although we do know from the evidence that they had not spoken to him. There is, however, no property in a witness and it was open to the Appellant's counsel to locate him and to call his evidence if he wished. The Tribunal does not advise the Minister what evidence to call but only judges the adequacy of the evidence it does call.

The Appellant said that she made seven calls and, before we can accept this evidence, we must weigh it with the evidence of the two senior people at the CARS who say that they did not hear the calls and as a result, a communication check was made. We know that the Appellant's radios were working both before and after the time frame of the alleged infraction. The co-pilot is of no assistance respecting the seven calls as he does not recall any of the mandatory calls required to be made when approaching and landing at Resolute Bay on April 2, 1999.

The co-pilot's evidence was that he had only heard about this case two weeks before the review hearing. He stated that he had no recollection of the seven calls which the pilot-in-command states she made, but he had specific and detailed recollection of the ground call transmitting to the Resolute Bay CARS on 122.1 after flight FAB 8060 had landed and was on the taxiway. He said that the reason for his remembering this call was because of the poor visibility and strong winds. He further stated that there was no reply from the CARS on 122.1 but he does not remember who made the ground radio call to the CARS.

The Respondent's summary of the evidence as it relates to the assertion that no calls were made to Resolute Bay CARS by FAB 8060 on April 2, 2000 is found at pages 2 to 5 inclusive of its factum. He summarizes Mr. Heron's evidence with appropriate references to the transcript as follows: that he was in the CARS at the material times, supervising Mr. Rogers who was training a new radio operator; that he was eight to ten feet from the radio, and could hear all transmissions and messages received by the radio from his position; that the one or two times he was out of earshot of the radio, the Aviation Programs Officer and the trainee were in the room; that he did not hear any radio calls from FAB 8060 on that day; that there was no time that the CARS station was unattended that day.

He summarized the evidence relating to the functioning of the radio equipment by referencing the following testimony: that problems with pilot communication with the station related to pilots not being aware that the station was now a CARS station and in one case there were language difficulties; that specific complaints had not been identified; that reports of non-service at Resolute Bay were anecdotal and unsubstantiated. He said that frequencies on the radios at the CARS were preselected and could not be changed except by a technician; that the radio was checked at the beginning of the shift on the date in question and that he was not aware of communication problems with other aircraft on that date.

The Respondent summarized Mr. Rogers's evidence: that he was in the CARS at the material times, providing on the job training to a new radio operator, Mr. Matthew Manik; that his work station was next to the observer/communicator; that he could hear all the radio calls being transmitted from and received by the CARS in Resolute Bay; that when he and Mr. Manik left the building at 20:15 UTC to do a weather observation, Mr. Heron remained in the building; that there was no time when the radio was unattended; and that when the aircraft was overdue he showed the new radio operator how to do a COM search.

Similarly, Mr. Rogers testified that a mandatory radio check is done at the beginning of each shift and that he observed Mr. Manik doing that check; and that he talked to other aircraft during the shift including a jet that came in from the south.

The issue before us is essentially one of credibility and the Tribunal Member at review saw these three witnesses in the witness box as they gave evidence under oath. Mr. Dover the Tribunal Member accepted the evidence of the CARS personnel.

There is much speculation as to what might have happened but we are here to review the facts and the evidence that was before the Tribunal Member at review as judged by him and we are not in a better position to evaluate it. We do not find his conclusion patently unreasonable and the Appeal Panel ought not to overturn the review decision on the issue of credibility as the Tribunal Member at review observed the witnesses giving their testimony and was in the best position to make the determination as to credibility.

We have sympathy for the Appellant but the jurisprudence governing this case on the issue of credibility is clearly stated. In the Phillip's case,[1] the Appeal Panel stated:

The hearings officer is in the best position to be able to determine which evidence on the record he prefers; which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. 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. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance. In R. v. Reid a decision of Furlong, C.J.N. of the Supreme Court of Newfoundland (C.A.) on November 6, 1978, the Court commented on this function of an Appeal Tribunal when facts are found in the proceeding at first instance which it is asked to reject. We interpret the determination of G.R. Mitchell when he says:

"The captain also stated that he had seen the crossed ropes in place over the load and further stated that the load was placed full across the cabin."

as an acceptance of this evidence in preference to the evidence to the contrary. Furlong, J. reports on p. 70 of the judgment:

"The principle in my opinion has been so firmly established and for so long that it should scarcely ever be a source of argument today. In Montgomerie and Company (Limited) v. Wallace-James (1904) A.C. 73 Lord Halsbury stated,

'Where a question of fact has been decided by a tribunal which has seen and heard the witnesses the greatest weight ought to be attached to the finding of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in a way that no appellate tribunal can have. But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court.'

In Concurring Reasons for Decision in the Moore case[2], a Member of the Appeal Panel stated as follows:

I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law, (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is non-the-less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearings officer.

This distinction may be subtle, but it is vital both to the preservation of the integrity of the Appeal process and the safeguarding of the fundamental rights of the individual.

While the writer may have come to a different impression on the facts as recorded in the transcript of the proceeding, I can not say that Mr. MacPherson's findings are so unreasonable that a trier of fact, acting judicially, could not possibly have come to the same conclusion. Accordingly, I would uphold the decision of the member for the reasons stated above.

2) DUE DILIGENCE

On the foregoing facts, what is due diligence or what is all due diligence? If you are required to make the call and it does not come through to the CARS what is the pilot required to show to prove all due diligence in this case? i.e. How does she show that she did everything necessary to comply with the regulation that says that she must report on mandatory frequency five minutes before arrival.

The Tribunal Member at review said that in the circumstances of this case she did not show due diligence because to do so would have required that she go to the other frequency and as authority for this proposition the Member cites the Canadian Aviation Regulations. The Minister of Transport's representative said essentially the same thing but cited as his reference the Canada Flight Supplement. Counsel for the defence has said that the proper procedure was to stay on the same frequency that is the mandatory frequency and report to traffic since you cannot report to the CARS station.

This Panel has considered and rejected the submission of going to the other frequency. Mandatory frequency reporting is a mandatory report dictated by aviation safety considerations. We believe it would be undesirable to leave the mandatory frequency in such circumstances since you need to be in a position to hear other aircraft in the vicinity (if any) and staying on mandatory frequency is the way to be in a position to hear them. Furthermore, this is what the A.I.P. Canada says to do and we believe that a reasonably prudent pilot would do this.

But is this due diligence? Defence counsel submits that it is due diligence to stay on the frequency and broadcast to traffic. However, we are of the view that due diligence has no application on the facts of this case. Rather, due diligence would only work in these facts if she or her co-pilot had said that we tried to broadcast to CARS but could not due to reasons beyond our control such as a radio malfunction. However, if she did not report, she could not be said to be duly diligent. That is to say that if she tried to but could not then due diligence would work, but in this case her evidence that she tried was not accepted by the Tribunal Member at review and on the rejection of that evidence, there is no due diligence. In other words, the finding on the basis of credibility that she did not make the calls, excludes the defence of due diligence for the Appellant.

DETERMINATION

The appeal is dismissed. The Tribunal Member concluded, based on the evidence of Mr. Heron and Mr. Rogers and the fact that no evidence was introduced to indicate that either the aircraft radios were inoperable, that the calls to the Resolute Bay CARS were not made or received on the frequency 122.1. This Appeal Panel accepts and agrees with the review Member's finding on the basis of credibility. Having accepted the Tribunal Member's finding that the calls were not made, we accordingly determine that due diligence can in such circumstances have no application to the facts of this case.

Reasons for Appeal Determination:

Faye Smith, Chairperson

Concurred:

Dr. Samuel Birenbaum, Member
Pierre Beaudry, Member


[1] Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, pages 7 & 8 (Appeal Determination).

[2] Trent Wade Moore v. Minister of Transport, CAT File No. C-0138-33, page 6 (Appeal Determination).