Decisions

CAT File No. C-1941-41
MoT File No. RAP5504-Z-033173 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

NAV CANADA, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
CADORS Manual, Fourth Edition- February 1995, TP 4044 ss.1, 5.2,11.1, 12
Canadian Aviation Regulations, SOR/ 96-433, s. 807.01, 602.31

Due diligence, Failure to report an aviation occurrence, Regulatory infraction, ATC


Review Determination
Samuel J. Birenbaum


Decision: October 19, 2000

I conclude that NAV CANADA was not in breach of section 807.01 of the Canadian Aviation Regulations and thus dismiss the charge and the associated monetary penalty.

A Review Hearing on the above matter was held Wednesday, July 19 and Thursday, July 20, 2000 at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

On February 9, 1999 at 0420 hours UTC, an aircraft registered C-GLKA departed Winnipeg for Churchill according to an instrument flight plan, and was cleared to 11,000 feet. After entering uncontrolled airspace, the aircraft climbed to 13,000 feet to escape icing conditions, but without a clearance to do so. Upon re-entering controlled airspace, without advising air traffic control (ATC) of an altitude change, the pilot was informed of an alleged violation by the air traffic controller and referred to a supervisor for further discussion.

Subsequently, the holder of the ATS operations certificate, NAV CANADA, was charged under section 807.01 of the Canadian Aviation Regulations (CARs) with failure to report to the Minister aviation occurrence information specified in the CADORS Manual,[1] in accordance with the criteria and reporting procedures specified in that manual. NAV CANADA failed to report a regulatory infraction which involved a commercial carrier, namely C-GLKA, which entered controlled airspace in the vicinity of Gillam, Manitoba, at 13,000 feet when it was cleared to maintain 11,000 feet. A monetary penalty of $2,500 was assessed by Transport Canada, leading to this Review Hearing.

THE LAW

Section 807.01 of the CARs requires that "The holder of an ATS operations certificate shall report to the Minister any aviation occurrence information specified in the CADORS Manual in accordance with the criteria and reporting procedures specified in that manual." The CADORS Manual, annex A, Reportable Occurrences, requires the reporting of "regulatory infractions which have immediate safety implications, involve commercial carriers or may generate media attention".

MINISTER'S EVIDENCE

The Minister's representative, Mr. G. Hector, asked for an order to exclude witnesses and this was granted. He called his first witness, Mr. Robert Bruce McDonald, who was duly sworn.

Mr. McDonald is a civil aviation inspector for Transport Canada who has 34 years of experience with air traffic control services as an air traffic controller, manager, supervisor and instructor.

He was performing the duties of manager of the Vancouver tower and control centre during the period in question. Mr. McDonald acknowledged that Exhibit M-1 was a photocopy of ATS operations certificate No. 01, issued to NAV CANADA on October 28, 1996, effective November 1, 1996. He stated that on March 15, 1999 he was given a file, including an audio tape dealing with a February 9, 1999 incident, in order to determine why the event in question was not reported. He met with the operations manager, Mr. L. Anderson, in April 1999.

On May 31, 1999, he sent a letter reproduced in Exhibit M-2, informing Mr. Anderson of a possible violation of section 807.01. The response from Mr. Anderson for NAV CANADA is contained in Exhibit M-3, and states that the letter of M-2 was forwarded to the NAV CANADA legal department and he referred future discussions to that department. This is confirmed in Exhibit M-4, a letter to Mr. McDonald.

Exhibit M-5 consists of the case report prepared by this witness. The report indicates that on February 15, 1999 the chief pilot of Keewatin Air Limited called the Winnipeg enforcement office to discuss a possible error one of his pilots had committed on February 9, 1999 in the vicinity of Churchill. A MEDEVAC flight had changed altitude while out of controlled airspace, and re-entered controlled airspace without obtaining clearance for the new altitude. The event was never reported by the Winnipeg Area Control Centre even though it involved a commercial carrier.

The inspector's recommendation was that a monetary penalty be assessed. The report further indicates complete cooperation from the Winnipeg Area Control Centre initially but that later discussions were directed to the legal department of NAV CANADA. Page 4 of M-5 is a handwritten report from the regional superintendent of investigations indicating the presence of conflicting traffic at the time. Under the signature is a statement:

My adjudication is as follows:

No mitigation - $2500

Offence proven

[Signed by supervisor, Bill Hanson, November 3, 1999]

This concluded the examination in chief of Mr. McDonald.

On cross-examination Mr. McDonald confirmed that he has worked with air traffic control services for 33 years and moved to Transport Canada in February 1998. He stated that recording tapes are maintained for a period of 30 days, after which time they are usually recycled. He stated that his first contact with NAV CANADA was in April of 1999 and that the first written communication was after the tapes would have been recycled. He stated that the tapes were requested by Mr. Jim Welwood who asked for the voice tapes of an exchange between the aircraft and air traffic control centre. He stated that NAV CANADA was not informed of any possible violation of theirs, and thus would not have known at this time that they would be investigated. He further stated that he did not discuss any matters with legal counsel of NAV CANADA although he stated that he might have called them to discuss mitigating factors. He confirmed that Transport Canada was aware approximately six days after the incident that there was a possible NAV CANADA violation, but NAV CANADA was not informed for approximately 90 days. He further confirmed that on February 9, 1999 it was noted that there was a possible conflict with another aircraft requesting a descent, due to icing, and that there might have been a loss of separation (M-5 page 4). In this instance a loss of separation did not occur.

On redirect, Mr. Hector asked the witness to refer to M-4, second paragraph. In this letter from NAV CANADA legal counsel Mr. Patrick Floyd to Inspector Bruce McDonald, Mr. Floyd stated after a briefing he would advise Mr. McDonald further. Although this was in the letter, no further communication was received by Mr. McDonald from Patrick Floyd.

The next witness was Mr. Walter Mandela, chief pilot and vice president of Keewatin Air. He stated that on February 9, 1999 he received a phone call from one of his pilots indicating that the aircraft C-GLKA had entered airspace without a clearance, and upon the pilot's request for advice, he asked the pilot to complete the captain's trip report.

A copy of this report is contained in Exhibit M-6. The captain, in his report, confirms the need to change altitude due to icing, and indicates that he passed this on to the flight service centre at YIV but forgot to request further clearance south of YGX. He is aware that air traffic control was not happy, and the captain reported the event to flight operations by phone on February 9th. He further testified that when he received the aircraft journey log, Exhibit M-7, he notified Mr. Bill Hanson of enforcement of his cooperation, and sent a copy of the log and of the trip report to him.

On cross-examination, Mr. Mandela confirmed that he is an experienced pilot with 13,000 hours, and that he holds an airline transport pilot licence. He felt that the crew of the aircraft in question behaved appropriately in changing altitude, and he expected no further action from Transport Canada.

He initiated his call to Transport Canada in order to pre-empt further investigation. He was satisfied with Transport Canada's decision not to charge the crew with a violation.

The next witness was Mr. Bill Hanson, regional superintendent of enforcement for Transport Canada. Mr. Hanson states that he is an experienced pilot with over 13,000 hours, and he has been a chief pilot in the past, and for five years he has performed check rides and company audits. In 1989 he was transferred to the enforcement division and received his first notification of the events in question from Mr. Mandela on February 15, 1999. Initially, he was informed of the events by the crew, but he received no notification, as required in the CADORS Manual. He asked his assistant, Mr. Jim Welwood, to follow up on this during his absence on vacation. The matter was sent to Mr. McDonald for investigation. A report was subsequently sent to Mr. Welwood for comments, and finally, to Mr. Hanson for final adjudication. The witness felt the offence was proven. There was no mitigation, nor possible aggravation, and since this was a first time offence, he applied the sanction of $2,500. He recalled receiving a telephone call from Mr. Floyd on December 10th, and a record of this call was entered as Exhibit M-9, but there was no further communication with Mr. Floyd. Notes of this telephone conversation indicate that this was not a reportable incident since the pilots had exercised due diligence in changing altitude to avoid icing. Mr. Hanson replied that it was the duty of NAV CANADA to report the incident for possible investigation only, and that a determination of offence was not the duty of NAV CANADA.

On cross-examination Mr. Hanson confirmed that he was first notified of the occurrence a few days after the fact, and that M-7, the aircraft journey log, dated February 8, 1999, was received about February 15th. He thus knew of a potential violation under section 807.01 of the CARs by NAV CANADA six days after the event, but the CADORS Manual requires reporting within two to three days. He did not advise NAV CANADA on February 15, 1999 that they were under investigation, and since tapes were essentially erased every 30 days, it was possible that critical evidence was lost. When asked why no steps were taken to advise NAV CANADA, he replied this was not normal procedure, and he was away at the time. He confirmed that there might have been other recorded evidence on tapes such as phone conversations and ground communications, but that this information was not requested. He concluded that only the recordings of conversations between the aircraft and air traffic control services were relevant. He agreed that there could be no infraction if the actions of a pilot are done in the interest of safety. When asked if there was a charge laid against the pilots, this witness refused to answer on the basis of confidentiality, and that an answer would breach what he perceived to be a duty to confidentiality. At this point the witness was asked to leave the room, and I proceeded to hear argument about whether the witness was required to answer this question. Mr. Fenn for NAV CANADA proceeded to argue subsections 37(1) and (5) of the Aeronautics Act, dealing with public interest, and providing no privilege. He further argued that the only privileged testimony was that of lawyer-client communication, self incrimination, husband-wife relationships, and perhaps, a few other specific situations in law which did not cover the current situation facing this witness. In particular, the public interest outweighs any need to attach confidentiality to the information in question. I concurred with this argument, and upon the return of this witness, I asked him to answer the question.

Mr. Hanson stated that his investigation indicated that this was a first offence against the pilot, and for a variety of reasons, no charges were laid against the crew of the aircraft. He concluded after complete investigation that he could see no finding of guilt against the captain of the aircraft. Exhibit M-10 was then introduced into evidence, an ATS Documentation Request form, signed by J. Welwood, requesting a condensed voice tape between 0345 Zulu and 0445 Zulu on radio frequency 134.5 dealing with aircraft C-GLKA, as well as the flight strips for this aircraft.

Exhibit M-11 indicates a reply from NAV CANADA confirming that they have retained the information requested. On redirect, the witness replied that a regulatory infraction occurred when there was a change in altitude without a clearance in controlled airspace, and thus, this infraction had to be reported. He confirmed that the pilots were not charged because they had reported the incident immediately to their chief pilot and subsequently to Transport Canada. Their attitude was repentant and apologetic. He felt that they had learned their lesson and no punishment was needed. He stated that he had these powers of adjudication but that such powers were not delegated to NAV CANADA.

The next witness, Mr. James Keith Welwood, testified that he is a civil aviation inspector with Transport Canada, a pilot since 1971, previously with air navigation services for 12 years, subsequently for four years with enforcement. He stated that, at the request of Mr. Hanson, he secured a condensed voice tape. After listening to the tape, he opened the file which he forwarded to Mr. McDonald. Exhibit M-11 is a copy of a memo from Mr. McLaren to Mr. Jim Welwood confirming the retention of voice data from the Winnipeg Centre North low radar position and a copy of flight data strip dealing with C-GLKA. He confirmed that the written notation on M-5 on the top part of page 4 was made by him. On cross-examination he confirmed that he has 12,000 hours of flying experience and a current ATR certificate. He was referred to Exhibit M-8, a written note to "Jim" from "Bill", and confirmed that Jim referred to himself, Jim Welwood. The note asked him to call Walter Mandela and indicated that the signatory was interested in dealing with NAV CANADA on its failure to report, more so than dealing with the pilots on their intrusion into controlled airspace. The witness was asked to refer to M-10, the request for the tape and flight strip and confirmed that no other information was requested.

The request dealt with the frequency 134.5 and the period of time between 0345 and 0445 Zulu. He confirmed that NAV CANADA was not notified of a possible violation, and that it was his duty to secure all perishable evidence, including other tapes that might be available.

The last witness was Mr. Kevin Gary Wallace, an air traffic controller employed by NAV CANADA, at the Winnipeg Area Control Centre. He was able to identify that the tape and the transcript contained his voice, and were essentially correct. He was aware of the change in altitude of the aircraft from 11,000 to 13,000 feet; before he contacted the pilot.

Next introduced into evidence was Exhibit M-13, a tape and accompanying transcript. The witness confirmed that climbing in uncontrolled airspace to a new altitude in the presence of icing was a correct procedure but that, upon entering controlled airspace at this new altitude without a clearance caused a problem for another aircraft requesting a new altitude because of icing. He, therefore, reported the event to his manager but confirmed that there was no loss of separation, and that he had the aircraft under radar surveillance at the time. He was aware that the aircraft was at 13,000 feet, not at its assigned 11,000 feet altitude, and that the other aircraft at 16,000 feet did not declare an emergency.

RESPONDENT'S EVIDENCE

Mr. Fenn for NAV CANADA introduced his only witness, Mr. A. Shewfelt, the shift manager in the control centre. Mr. Shewfelt entered air traffic control services in 1963 as a radio operator, subsequently became an air traffic controller, supervisor, and was eventually employed by NAV CANADA as a shift manager supervising a number of people within several specialty groups. On February 9, 1999, C-GLKA aircraft was noted to be at 13,000 feet, not its assigned 11,000 feet altitude, and attempts to contact the aircraft were unsuccessful until it entered controlled airspace. A phone call between the pilot and himself took place on a recorded line but the tape on this line was not obtained. The reason was that he was not informed of a possible violation requiring the use of this tape until several months after the event. This conversation with the pilot included the satisfactory explanation of the need to climb to 13,000 feet due to icing, and he was satisfied that the aircraft was unable to communicate this until it re-entered controlled airspace. Since there was a good explanation, there was, therefore, no regulatory infraction, nor violation. He stated that this has been the policy of Transport Canada prior to the transfer of navigation services to NAV CANADA. Since this episode, however, all incidents are now reported to Transport Canada. He emphasized that, prior to this event, his procedure not to report situations such as these was standard Transport Canada policy, and this policy was continued under directions of NAV CANADA. He felt that there was no safety issue involved, and that he would have been able to secure the ground communication tapes if requested to do so within 30 days of the event.

On redirect, he confirmed that there are two reel-to-reel tapes with multiple channels on each, recording air and ground communications, and that the ground communication in question may still exist on the tape held. He states that he is obligated to file reports of all possible infractions. This concluded the evidentiary part of this Review Hearing.

On July 20, the hearing was resumed for closing arguments. Mr. Hector concluded on behalf of the Minister that the testimony of Mr. Hanson and Mr. Welwood clearly indicated that NAV CANADA was the holder of an ATS operations certificate; that the aircraft C-GLKA was cleared to fly at 11,000 feet on an IFR flight plan, but while in uncontrolled airspace, changed altitude to 13,000 feet because of icing, then re-entered controlled airspace at 13,000 feet without an appropriate ATC clearance having been received and accepted by the pilot-in-command. This was a contravention of section 602.31 of the CARs and in addition of subsection 602.121(2) of the CARs which states that "No pilot-in-command of an aircraft shall conduct an IFR flight within controlled airspace unless the aircraft is operated in accordance with an air traffic control clearance pursuant to 602.31."

Furthermore, in accordance with annex A of the CADORS Manual, the holder of an ATS operations certificate must report any "regulatory infractions which have immediate safety implications, involve commercial carriers, or may generate media attention." He countered the NAV CANADA defence of not being notified early enough with the observations that by March 15, 1999, evidence indicated that NAV CANADA was aware of a possible regulatory violation, and that correspondence had occurred between NAV CANADA and Transport Canada, and with the legal counsel for NAV CANADA to ensure that this information was known. The tape that NAV CANADA saved consisted of multiple channels which contained the appropriate transmissions between NAV CANADA and the aircraft and may also have contained surface telephone communications, as well. The latter were not specifically requested nor searched for. Thus NAV CANADA failed to exercise due diligence to obtain this information, and was thus not prejudiced in its defence.

He further stated that it is not the duty of NAV CANADA to decide guilt or regulatory infraction but merely to report regulatory infractions to the Minister who may then, according to section 4.2 and subsections 5.9(2) and 7.7(1) of the Aeronautics Act, act upon the information, or delegate to others the role of investigation as permitted by the Aeronautics Act. These delegated responsibilities can be granted or removed only by ministerial authority. The duty of NAV CANADA, in his opinion, was to report apparent or obvious events that may represent regulatory infractions, but not to adjudicate these.

Since most of the customers served by NAV CANADA are commercial carriers, it would be inappropriate and a conflict of interest to give NAV CANADA discretionary authority to decide which events to report that may be regulatory infractions. All must be reported. Mr. Hector next asked to speak to sanction and quoted the case of the Wyer[2] in which an appeal of a member's decision to reduce a monetary penalty based on the exercise of due diligence was dismissed. The Appeal Tribunal in its determination stated that an appropriate penalty should be determined by the following: punishment, deterrence, rehabilitation, as well as enforcement recommendations. Mr. Hector stated that the enforcement manual[3] recommended a penalty of $2,500 for a first offence by a corporation. He stated that the CADORS Manual and its reporting obligations are designed to assist in promoting aviation safety.

Mr. Fenn in his reply stated that NAV CANADA was not appointed to enforce the Aeronautics Act, although it was tasked to report occurrences in accordance with criteria established in the CADORS Manual. This task was always previously performed by Transport Canada before the establishment of NAV CANADA, and according to the witness Shewfelt the procedures he now uses are exactly the same as those that existed before this transition of function took place. NAV CANADA cannot, by itself, decide if there is a regulatory infraction but only if there is a possible regulatory infraction. All the witnesses seemed to agree that there was no issue of safety or loss of separation, and no emergency was declared by either aircraft in the sky at the time. After careful investigation by Transport Canada there was a determination that no charge should be laid, and thus, by definition, no regulatory infraction had occurred. The witness Hanson, a chief pilot at the time, stated that he felt that the actions of the pilot would not result in any regulatory discipline. The change in altitude necessitated by weather represents good pilotage and the exercise of due diligence. The Act does not define "regulatory infraction", this being left to the discretion of those using the CADORS Manual. Mr. Fenn took exception to the fact that he was not provided with full disclosure since all available taped conversational evidence was not provided to him, only the aircraft to controller transmissions were retained. He referred to M-8, a request by Bill for Jim to investigate further, and most important, to "secure the tapes" for possible violation of reportable occurrences in the CADORS Manual listed on pages 13 and 14.

Since the pilots involved were not charged with an infraction, this meant that an aircraft incident had most probably not taken place and thus did not require reporting. Transport Canada knew about this event immediately from its other sources, and in the opinion of pilot Shewfelt, with 37 years of experience, this event was not reportable as he interprets CADORS. In the absence of a specific definition, Mr. Fenn submitted that one has to use common sense in the interpretation of this section of the Act. Mr. Fenn concluded that, in the absence of total disclosure, as was noted in the Tribunal appeal heard in 1996, Marsh;[4] In conclusion, Mr. Hector stated that NAV CANADA has no authority to perform any judicial functions, and that in October 1996, it took over under a set of new regulations, functions previously performed by others. The new regulations grant no discretion in reporting, and the air traffic controller justifiably was aware of a breach of the regulations admitted by the pilot, on M-6 when he stated he forgot to request a new clearance. No defect in radio equipment was reported nor listed in M-7, but the event was thoroughly investigated by Transport Canada who chose not to lay a specific charge, although it recognized that the actions of the pilot were in breach of existing regulations.

THE LAW

NAV CANADA was charged with being in breach of section 807.01 of the CARs which states: "The holder of an ATS operations certificate shall report to the Minister any aviation occurrence information specified in the CADORS Manual in accordance with the criteria and reporting procedures specified in that manual." NAV CANADA was the holder of an ATS operations certificate, and on February 9, 1999, near Winnipeg, Manitoba, failed to report to the Minister aviation occurrence information specified in the CADORS Manual. The occurrence consisted of the failure of the crew of C-GLKA to report when they entered controlled airspace in the vicinity of Gillam, Manitoba, an altitude change of 13,000 feet whereas they had been cleared on an IFR flight plan to 11,000 feet. The CADORS Manual in its introduction, states, "The Civil Aviation Daily Occurrence Reporting System has been established to provide senior management with timely information concerning operational occurrences within the National Civil Air Transportation System (NCATS). It is intended to supplement, not replace normal operational and functional reporting systems and investigation procedures. The information from CADORS is used in the early identification of potential hazards and system deficiencies, and to assist in the assessment of associated risks." In annex A of the manual, included in CADORS reportable occurrences, is item 12, Regulatory Infractions, "which have immediate safety implications, involve commercial carriers or may generate media attention".

CONCLUSIONS

The facts surrounding the flight of C-GLKA on February 9, 1999 are not disputed. The crew made wise decisions in the avoidance of icing conditions but upon re-entering controlled airspace at an unassigned altitude, the pilot stated he "forgot" to request this altitude change from ATC. Since the aircraft had been out of radio range in uncontrolled airspace, we are not certain if an attempt by the aircraft prior to the first contact with ATC would have been successful. ATC, on the other hand, had ample information available to it to know the altitude and location of the aircraft, and although inconvenient to another aircraft at 16,000 feet, there was no loss of separation nor hazard involved, according to the evidence. Pressed upon to perform his tasks in a professional manner, with the tools at his disposal, and the options available to him, the air traffic controller was aware of the skies he was controlling and was not hampered in maintaining the separation of aircraft required in aviation. The only possible regulatory infraction under these circumstances is the delay by the pilot in communicating orally to the air traffic controller information which the controller already had before him. Whether this was a true oversight as indicated by the pilot in his response to questioning from the controller, or whether this delay was occasioned by being out of radio range at the time, can only be surmised.

Since the term regulatory infraction is not clearly defined, we must look to other sources to understand it. Subsection 602.121(2) of the CARs states:

(2) No pilot-in-command of an aircraft shall conduct an IFR flight within controlled airspace unless the aircraft is operated in accordance with an air traffic control clearance pursuant to section 602.31.

Subsection 602.31(1) states:

(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

[...]

The aircraft C-GLKA was clearly in breach of this regulation when it changed altitude although it changed altitude for very good reason and flew safely throughout its mission. The CADORS is intended to provide increased safety by assisting, not the pilots, but senior management, in the promotion of aviation safety and early identification of potential hazards and system deficiencies. Reports are required daily, and the possibility of in-depth analysis of events is a luxury not provided to those operating under the CADORS. I am not surprised, therefore, to find confusion in this instance about the definitions, as well as about what needs specific reporting under the regulations. NAV CANADA knew that a flight deviation had occurred for safety reasons, since its employee, the controller, was concerned about the failure of the pilot to report this deviation at the earliest possible instance. How management could benefit and make aviation safer as a result, is not a matter presented to this Tribunal. I suspect, in this instance, where safety was not breached, that the reporting within the CADORS would not result in any improvements in aviation safety for those involved. The greater fault lay with the crew of the aircraft than with the management. The crew members were repentant and an infraction was not charged against them. Within two days of the event, management would be aware of a deviation from the norm but would certainly be unsure if a regulatory infraction had taken place. Subsequent investigation by Transport Canada and the failure to charge the crew with a regulatory infraction must have confirmed to management that it had correctly interpreted the regulation, and thus reassured, that it had acted properly in not sending a notification. Even without this notification, Transport Canada knew of all the events, and undertook its own investigation.

DETERMINATION

I conclude that NAV CANADA is not in breach of section 807.01 of the CARs and thus dismiss the charge and the associated monetary penalty.

Dr. Samuel Birenbaum
Member
Civil Aviation Tribunal


[1] Civil Aviation Daily Occurrence Reporting System.

[2] Minister of Transport v. Kurt William M. Wyer, CAT File No. O-0075-33.

[3] Aviation Enforcement Procedures Manual, Second Edition, 1999, TP 4751E.

[4] Leslie G. Marsh v. Minister of Transport, CAT File No. C-1095-02.


Appeal decision
Allister W. Ogilvie, Carole Anne Soucy, Suzanne Racine


Decision: February 1, 2001

The appeal is allowed and the monetary penalty in the amount of $2,500 is reinstated. 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 on the above matter was held Wednesday, January 10, 2001 at 10:00 hours at the Standard Life Building in Ottawa, Ontario.

BACKGROUND

On February 9, 1999, aircraft C-GLKA was enroute from Winnipeg to Churchill, Manitoba. The flight had been cleared to maintain 11,000 feet in controlled airspace. While in uncontrolled airspace, the aircraft climbed to 13,000 feet to avoid icing conditions. The aircraft re-entered controlled airspace at 13,000 feet, but without informing air traffic control of the altitude change. The pilot was informed that the occurrence might be a violation and was asked by the controller to call the shift supervisor for further discussion, which he did.

The pilot of the aircraft also consulted his chief pilot regarding the occurrence, and he in turn promptly contacted Transport Canada, Enforcement to explain the circumstances of the flight.

Having been alerted of the occurrence Transport Canada officials had expected to receive a report of it through the Civil Aviation Daily Occurrence Reporting System (CADORS). When no report was forthcoming NAV CANADA was charged under section 807.01 of the Canadian Aviation Regulations (CARs) with the failure to report an aviation occurrence as specified in the CADORS Manual.

NAV CANADA contested the allegation at a hearing before a single member on July 19 and 20, 2000. The member concluded that NAV CANADA was not in breach of section 807.01 of the CARs and so dismissed the charge and the penalty.

The Minister of Transport appealed that determination in the following form:

  1. The Member erred in law in interpreting clause 807.01 of the Canadian Aviation Regulations;
  2. The Member erred in law in interpreting the CADORS Manual;
  3. The Member erred in law in interpreting the phrase, "regulatory infraction";
  4. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

ARGUMENT

Appellant

The facts of the case are not in dispute as Mr. Hector, for the Minister of Transport, asserts only errors of law.

Mr. Hector submitted that proper statutory interpretation requires the interpreter to determine the meaning of the legislation in its total context having regard to the purpose of the legislation. The purpose of the Aeronautics Act and the CARs is to ensure aviation safety.

He submits that the member erred in the interpretation of section 807.01 in that the provision makes it mandatory to make a report of an aviation occurrence as is indicated by the use of "shall report."

As the member had found there to have been a breach, it was required to have been reported. The proper interpretation of the Act, regulations and CADORS Manual is that the reporting of any aviation occurrence information is mandatory and not subject to the discretion of the user of the CADORS Manual.

The Minister also submitted that the member erred in law in his interpretation of the phrase "regulatory infraction" contained in section 12 of Annex A of the CADORS Manual. The error was based on the member's interpretation of the nature of strict liability offences and his misinterpretation of the law relating to delegation of authority.

Mr. Hector argued that there are three important points to remember about strict liability offences:

a) The doing of the prohibited act prima facie imports the offence;

b) it is up to the accused to raise and prove the defence of due diligence; and

c) the determination of a due diligence defence is a judicial act involving a consideration of what a reasonable man would have done in the circumstances.

Therefore it would be an error to require a determination of due diligence be adjudicated before a finding that a regulatory infraction had occurred. Rather, he submits the regulatory infraction is the doing of the prohibited act.

Regarding delegation of authority, Mr. Hector contends that only the Minister of Transport is authorized to enforce the Aeronautics Act. He submits that NAV CANADA has no delegated authority which would enable it to act in a judicial manner and weigh the obvious infraction with the explanation by the pilot and thus determine that the pilot should not be charged.

Respondent

Mr. Fenn, on behalf of the Respondent NAV CANADA, argued that the hearing member did not err in fact or in law. He declared that on appeal the findings of the hearing member should not be overturned unless such findings are patently unreasonable and are not supported by the evidence. Mr. Fenn was of the view that it is settled law that findings of fact by the hearing member should not be disturbed on appeal unless the member made some palpable and overriding error which affected his assessment of the facts.

Mr. Fenn maintains that the member did not err in the interpretation of section 807.01 as NAV CANADA complied with the reporting procedures and policies as specified in the CADORS Manual.

He argues that it is common ground that the term "Regulatory infractions" is not defined and thus the member was not surprised to find confusion regarding the definition as well as confusion about what needs to be reported under the regulations.

Mr. Fenn asserts that the member was correct when he concluded that where safety was not breached, the reporting within CADORS would not have resulted in any improvement in aviation safety.

He further states that as there was no regulatory infraction, there was therefore no obligation to report. Thus there was no error which would justify interfering with the findings of the member.

THE LAW

Section 807.01 of the CARs:

Reporting of Aviation Occurrences

807.01 The holder of an ATS operations certificate shall report to the Minister any aviation occurrence information specified in the CADORS Manual in accordance with the criteria and reporting procedures specified in that manual.

CADORS Manual:

1. Introduction

The Civil Aviation Daily Occurrence Reporting System (CADORS) has been established to provide senior management with timely information concerning operational occurrences within the National Civil Air Transportation System (NCATS). It is intended to supplement, not replace, normal operational and functional reporting systems and investigation procedures. Information from CADORS is used in the early identification of potential hazards and system deficiencies, and to assist in the assessment of associated risks.

[...]

5. Investigation Responsibilities

[...]

5. 2 Transport Canada investigation of occurrences reported in CADORS is the responsibility of the appropriate Regional Director General or the Director, Air Traffic Services, Ottawa. The Assistant Deputy Minister, Aviation, or the appropriate Director General may direct the investigation of occurrences which are of special interest or concern.

[...]

11. RELEASE OF CADORS INFORMATION

11.1 CADORS National reports are widely distributed within the Department and are sent to external agencies such as the International Civil Aviation Organization, the Department of National Defence Directorate of Flight Safety, and the Transportation Safety Board. They are also subject to public release under the Access To Information (ATI) Act and are released in response to formal and informal requests, with the disclaimer that they contain preliminary unsubstantiated information. To comply with the Privacy Act section 8, 'Disclosure of Personal Information', names of individuals and other identifying information are removed from the CADORS reports prior to release. Under the interpretation of the Privacy Act, this policy does not apply to aircraft registration, company identification, or flight numbers which are left in the reports. [Emphasis added]

[...]

Annex A

CADORS Reportable Occurrences

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12. Regulatory infractions which have immediate safety implications, involve commercial carriers or may generate media attention.[1]

DISCUSSION

We take Mr. Fenn's argument that the test on appeal, that the findings of the hearing member should not be overturned unless it is established that he made some palpable or overriding error, is applicable to the finding of facts. Here as the facts are not in dispute we are looking at error in law.

The Minister's Notice of Appeal listed three grounds, but Mr. Hector withdrew the second regarding the interpretation of the CADORS Manual leaving the allegations of misinterpreting section 807.01 of the CARs and the term "regulatory infraction."

The hearing member identified as the only possible regulatory infraction the delay by the pilot in communicating to the air traffic controller his altered altitude before the aircraft once again entered controlled airspace. He reviewed subsections 602.121(2) and 602.31(1) of the CARs and stated that there was clearly a breach of that latter regulation. Although having reached that conclusion, the member found NAV CANADA was not in breach of section 807.01 of the CARs, which requires the reporting of a regulatory infraction. In coming to the conclusion we find that the member did err in his interpretation of section 807.01 and the term regulatory infraction.

Annex A of the Manual addresses CADORS Reportable Occurrences. The Annex contains a numbered list of reportable occurrences. At section 12 is found the item in issue, Regulatory infractions. It states:

Regulatory infractions which have immediate safety implications, involve commercial carriers or may generate media attention.

It was common ground in argument that there was no definition of "Regulatory infractions." As well both parties agreed that the section should be read disjunctively. That is, in this instance we are dealing with a regulatory infraction involving a commercial carrier and need not be concerned with the two other facets.

Mr. Fenn argued that the term should be viewed in the entire context of the Aeronautics Act and regulations which would then include possible defences to a breach of a regulation such as necessity of weather or due diligence. Mr. Hector submits that a regulatory infraction is a strict liability offence whereby the doing of the act imports the offence. The application of defences to an infraction is only in issue once a regulatory infraction is detected.

We do not agree with the Respondent's assertion that there was no regulatory infraction because of the application of due diligence. It is well recognized that the seminal case of Sault Ste. Marie[2] recognized that most regulatory offences can be classified as offences of strict liability. Tribunal jurisprudence recognizes that most offences under the Act and regulations are strict liability offences and section 8.5 of the Act codifies the defence of due diligence. It is how the Respondent seeks to apply due diligence, with which we disagree.

The appeal decision in Shermet is most often relied upon in Civil Aviation Tribunal jurisprudence for the proper application of due diligence.[3] In their conclusions the appeal panel stated:

Once the party alleging contravention has proved the constituent elements of a strict liability offence on a balance of probabilities, the onus then shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid the commission of the offence. This assertion respecting a defence to strict liability offences was set out in the case of R. v. Sault Ste. Marie and is also codified in section 8.5 of the Aeronautics Act.

Thus due diligence is a defence to be raised by an alleged contravenor after the Minister proved the constituent elements of the offence. It is not a concept to be applied before the fact to decide whether a contravention has occurred.

In this instance it was not incumbent upon a NAV CANADA employee to find that no regulatory infraction occurred because the pilots exercised due diligence. Rather, had the pilots been charged with a violation, they could have raised it in their own defence.

An understanding of the purpose of the CADORS scheme is helpful in analysing the problem. By definition the CADORS is a daily occurrence reporting system. A regulatory infraction is but one of 15 types of occurrences which are reportable. When an identified occurrence is noticed, it is reported that day. This would generally preclude an in-depth analysis of the occurrence by the person, here a controller, who observes and then reports it. This is substantiated by the disclaimer that accompanies reports, which is specified in section 11. It states in part, at 11.1:

They are also subject to public release under the Access To Information (ATI) Act and are released in response to formal and informal requests, with the disclaimer that they contain preliminary unsubstantiated information. [Emphasis added]

It is difficult to reconcile the description of the reports as preliminary and unsubstantiated, with the concept that all facets of the Act and regulations such as the application of due diligence should be applied to an occurrence before it even becomes reportable.

The reports of occurrences, as preliminary and unsubstantiated information, are passed to others who are tasked with the interpretation. In the CADORS Manual, at section 1 — Introduction, it is stated that the system has been established to provide senior management with timely information concerning operational occurrences in the system. The information can then be used in the early identification of potential hazards and system deficiencies, and to assist in the assessment of associated risks.

Using the facts of this case as a hypothetical example, if senior management had received several reports of similar occurrences, it may be that they would conclude that there were several regulatory infractions but also that the root cause may have been that the radio coverage in the area may have been inadequate. That is, by analysing the reports they might identify a system deficiency. However they must receive the reports before any analysis can be done.

We find that if there is a perceived regulatory infraction it should be the basis of a report which could be utilized by senior management or be investigated by Transport Canada (CADORS Manual section 5.2).

The hearing member found that there had been a breach of a regulation. Even though there is no definition of regulatory infraction, we think that the term is not ambiguous but self descriptive. It is fair to say that a breach of a regulation is a regulatory infraction. However he concluded that there was no requirement to report it. We hold that such a regulatory infraction is a reportable occurrence under the CARs.

Section 807.01 of the CARs then requires NAV CANADA to report such an occurrence. Having found a regulatory infraction, the member was in error in not finding NAV CANADA to have violated section 807.01 as NAV CANADA had a mandatory obligation to report it.

DETERMINATION

The appeal is allowed and the monetary penalty in the amount of $2,500 is reinstated.

Reasons for Appeal Determination:

Allister Ogilvie, Vice-Chairperson

Concurred:

Carole Anne Soucy, Member
Suzanne Racine, Member


[1] CADORS Manual, Fourth Edition – February 1995, TP 4044.

[2] R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.

[3] Shermet v. Minister of Transport, Appeal Determination, CAT File No. C-1021-02.