Decisions

CAT File No. C-2027-33
MoT File No. RAP5504-040245

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Douglas James Stewart, Respondent

LEGISLATION:
Aeronautics Act, R.S., c.33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.31(1)(a)

Failure to comply with Air Traffic Control instructions


Review Determination
E. David Dover


Decision: August 8, 2000

I find that Mr. Douglas James Stewart did contravene paragraph 602.31(1)(a) of the Canadian Aviation Regulations, and I confirm the Minister's decision to assess a monetary penalty of $250. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within 15 days of service of this determination.

A Review Hearing on the above matter was held Wednesday, July 12, 2000 at 10:00 a.m. at the Provincial Court Building, in Saskatoon, Saskatchewan.

The witnesses excepting Mr. Stewart were excused from the room prior to the commencement of proceedings.

A pre-hearing conference between Mr. Stewart and Mr. Gagnon was held immediately prior to the commencement of the hearing. The results of this conference will be entered prior to the opening statements of this determination.

BACKGROUND

On February 23, 2000, a monetary penalty of $250 was assessed against Mr. Stewart, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport claiming that Mr. Stewart had contravened the following provisions(s):

Canadian Aviation Regulation 602.31(1)(a), in that at approximately 1724 hours UTC, on or about the 16th of September, 1999, at or near Saskatoon, Saskatchewan, being the pilot-in-command of an aircraft, to wit, a Boeing 737-284 bearing Canadian registration marks C-GGWJ, and being operated as WestJet 41, you did fail to comply with all of the air traffic control instructions directed to and received by the pilot-in-command, more specifically, you turned the aircraft at a six mile final for runway 15, when the tower instructed you to turn a ten mile final for runway 15.

On or about 1724 hours UTC, on September 16, 1999, WestJet 41, a Boeing 737, in command of Captain Stewart, was on approach for landing on runway 15 at Saskatoon, Saskatchewan. A clearance to turn a ten-mile final was issued to WestJet 41 to ensure traffic separation from existing aircraft in the circuit. One of these aircraft was a NAV CANADA calibrating aircraft which was proving the integrity of the ILS.[1] The Minister contends that WestJet 41 turned final at six miles rather than the ten miles as stated in the clearance.

THE LAW

Subsection 602.31(1) of the Canadian Aviation Regulations (CARs):

Compliance with Air Traffic Control Instructions and Clearances

602.31 (1) Subject to subsection (3), the pilot-in-command of an aircraft shall

(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and

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

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

(ii) in the case of a VFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, when so requested by the air traffic control unit.

The witnesses were excused.

OPENING STATEMENTS

Opening Statements

Mr. Stewart and Mr. Gagnon stated there was no question or argument from either of their positions as to the ownership or registration of the Boeing 737-284 registration C-­GGWJ and operating as WestJet 41.

Mr. Gagnon stated that he would call two witnesses. He further indicated that it was his intention to show that WestJet 41 turned a six-mile final rather than the ten-mile final as stated in the clearance.

Mr. Stewart made no opening statement.

FOR THE APPLICANT-The Minister of Transport

The case presenting officer, Mr. Richard Gagnon, presented two witnesses.

Inspector Joe Gaudry

The witness was sworn. Mr. Gaudry stated that he was the person assigned to investigate File No. RAP5504-040245 concerning WestJet 41 captained by Mr. Stewart. Mr. Gagnon testified that he talked to Mr. Stewart on October 26, 1999 and during this conversation Mr. Stewart expressed remorse for the incident. Mr. Gagnon further stated that he cautioned Mr. Stewart that statements made by Mr. Stewart could be used against him. Mr. Gagnon stated that it was he who requested the voice tape recordings from NAV CANADA.

Mr. Gagnon entered a number of exhibits:

  • M-1 Notes composed by Inspector Gaudry outline the transcriptions recorded on taped conversations between WestJet 41 and Saskatoon Terminal, Saskatoon Tower and Saskatoon Ground Control.
  • M-2 WestJet aircraft journey log. This document indicates that aircraft C-GGWJ operating as flight 41 departed Edmonton at 1641 UTC arriving Saskatoon at 1729 UTC on September 16 and the captain was D. Stewart.
  • M-3 Certificates of ownership and registration, which are acceptable to the Minister and the document holder as a result of a pre-hearing conference.
  • M-4 Notice of Assessment of Monetary Penalty together with informal conference guidelines as prepared by Transport Canada.
  • M-5 Tape recording of conversations between WestJet 41 and Saskatoon Arrival.
  • M-6 Tape recording of conversations between WestJet 41 and Saskatoon Tower and Ground Control.
  • M-7 Notes from Mr. Nichol indicating infraction and the conflict with NAV CANADA 100 aircraft. The strip from ATC[2] showing WestJet 41 arriving at 1728 UTC VFR.

Mr. Gaudry testified that after reviewing the voice tapes he was able to determine that WestJet 41 did not follow the clearance to commence his turn to final at ten miles but rather commenced his turn at six miles.

Cross-examination

Mr. Stewart had no questions for Mr. Gaudry.

Redirect

There were no questions.

Cory Nichol

The witness was sworn. Mr. Nichol testified that he was on duty in the Saskatoon control tower on September 16, 1999 at approximately 1724 hours UTC. At that time he was the primary controller responsible for all ATC duties in controlling the movements of aircraft in the Saskatoon control zone.

Mr. Nichol testified that it was his voice that was on the tapes entered as M-5 and M-6. He confirmed that he was handed WestJet 41 by Saskatoon Terminal Control. At that time WestJet 41 was VFR and cleared to 5,000 feet (M-l position 426).

Mr. Nichol issued a further clearance to WestJet 41 to maintain 5,000 feet; left turn and join final runway 15, ten miles back (M-l position 437). WestJet 41 acknowledges clearance (M-l position 437).

Mr. Nichol advises WestJet 41 that they are turning a six-mile final and that a conflicting flight check aircraft is operating in the area (M-l positions 477-480). WestJet 41 acknowledges (M-l position 482).

Mr. Nichol testified that when WestJet 41 had switched to Ground Control they were advised that an infraction would be filed and that Doug Stewart transmitted an apology to the controller (M-l position 30-B62).

The "positions" refer to the tape-recording positions and confirmed on the transcript entered as M-l.

Mr. Nichol testified that he was busy and using a ramp radar for positioning of aircraft. He stated that WestJet 41 was too close to the NAV CANADA aircraft and the NAV CANADA aircraft aborted its mission.

Cross-examination

Mr. Nichol stated that he established entry points for a turn in on final approach by the use of geographical locations. He further stated that final approach was defined as centerline of the runway.

Redirect

Mr. Nichol testified that ten miles meant ten DME[3] miles.

FOR THE RESPONDENT-Mr. Stewart

Mr. Stewart was sworn as a witness. Mr. Stewart testified that the ATIS[4] was inoperable and that they had the aircraft set up for a straight in 09 approach. This was amended by Terminal Control to land on runway 15 with a ten-degree turn to the left.

At no time was he given a geographical position to fly to and he received no vectoring. He further stated that his approach speed was correct and that his primary concern was for the safety of the passengers and the aircraft.

Mr. Stewart stated that the aircraft is not equipped with area navigation equipment and that he was unable to obtain a ten-mile fix for runway 15. He was critical that Transport Canada did not obtain the radar transcripts, which would have shown the path of the aircraft. Mr. Stewart testified that it was his belief that using the one in sixty rule, the aircraft would have to turn 130 degrees to make the six-mile entry point.

Cross-examination

Mr. Stewart confirmed that he had not requested a vector to runway 15. He also confirmed that the captain is responsible for all clearances accepted by the flight crew.

Redirect

Mr. Stewart submitted his drawing of the one in sixty rule.

D-l One in sixty rule.

Mr. Stewart testified that the aircraft would have to make at least a 130-degree turn to capture the centerline of the runway and this would exceed a rate one turn, which would cause the passengers some concern.

Mr. Stewart testified that he was using visual reference to obtain the distance from the airport, as there was no DME or specific ground features to obtain an accurate distance from runway 15.

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

FINAL ARGUMENTS

Mr. Gagnon

Mr. Gagnon reviewed the evidence that had been presented by the Minister. He stated that, as captain, Mr. Stewart had to adhere to a clearance if the flight crew accepted it. He also stated that the captain had the option to not accept a clearance or request a change of clearance. He stated that this was not done in this case. For precedence he referred to Minister of Transport v. Kenneth Robert Fisher.[5]

Mr. Stewart

Mr. Stewart stated that a turn in excess of ninety degrees would have been required to obtain the six-mile entry point. He further stated that the controller should have been more observant and stating to the Terminal Controller that he would issue "a big old crank to the left" (M-l position 426) to WestJet 41 was not proper controlling procedures. Mr. Stewart was critical that the radar tapes had not been produced.

ANALYSIS

The wording of subsection 602.31(1) of the CARs states:

Subject to subsection (3), the pilot-in-command of an aircraft shall

(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and

The clearance to enter final at ten miles was issued by ATC to WestJet 41 (M-l position 437).

Subparagraph 602.31(1)(b)(ii) of the CARs states:

(ii) in the case of a VFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, when so requested by the air traffic control unit.

While there is no evidence that there was a request for a read back of the clearance, WestJet 41 did acknowledge the VFR clearance to enter final at ten miles (M-l position 437). To determine the exact position of the aircraft when established on final is impossible to determine.

On review of the evidence and listening to the testimony of various individuals, I am convinced the aircraft turned final inside the ten-mile window.

  1. The NAV CANADA 100 aircraft executed a missed approach because of the conflict with WestJet 41.
  2. The tower operator used his ramp radar for positioning of WestJet 41. This is extremely accurate but I find Transport Canada at fault for not producing the radar tapes.
  3. Mr. Stewart on two occasions expressed remorse and concern about his entry procedures. There is clear evidence that Mr. Stewart knew that the approach was not flown as per the accepted clearance (telephone conversation with Mr. Gaudry and M-l position 62).
  4. The question of due diligence is not an issue because there is no evidence that Mr. Stewart exercised alternate procedures (vectored approach or change in the clearance) (Cross-examination).

Exhibits M-5 and M-6 indicate that the radio transmissions between Winnipeg Centre, Saskatoon ATC and WestJet 41 were operating correctly. Through mutual agreement WestJet 41 was the affected aircraft and it was under the command of Mr. Stewart on September 16, 1999. The flight crew of WestJet 41 did not adhere to the issued and accepted clearances and are thus in breach of paragraph 602.31(1)(a) of the CARs.

DETERMINATION

I find that Mr. Douglas James Stewart did contravene paragraph 602.31(1)(a) of the CARs, and I confirm the Minister's decision to assess a monetary penalty of $250.

E. David Dover
Member
Civil Aviation Tribunal


[1] Instrument landing system (ILS).

[2] Air traffic control (ATC).

[3] Distance measuring equipment (DME).

[4] Automatic terminal information service (ATIS).

[5] CAT File No. C-1858-33.