Decisions

CAT File No. C-2350-33
MoT File No. RAP5504-043675 (P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

James Robert Greaves, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.96(3)g)


Review Determination
E. David Dover


Decision: January 21, 2002

The Minister has proven, on a balance of probabilities, each element of the offence. Mr. Greaves did not exercise all due diligence. The monetary penalty in the particular circumstances of this case is appropriate. I uphold the Minister's decision to assess a monetary penalty of $150. 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 Tuesday, January 15, 2002 at 10:00 hours at the Federal Court of Canada, in Winnipeg, Manitoba.

There were no pre-hearing conferences between the Applicant and the Respondent.

BACKGROUND

On September 4, 2001, the Minister of Transport assessed a monetary penalty of $150 against Mr. Greaves, the Respondent, pursuant to section 7.7 of the Aeronautics Act claiming that he had contravened the following provisions(s):

Canadian Aviation Regulation 602.96(3)(g), in that at approximately 1744 hours UTC, on or about the 14th day of February, 2001, being the pilot-in-command of an aircraft, to wit, a Diamond Aircraft Industries Inc., DA 20-A1 bearing Canadian registration marks C-FCLR, operating at or in the vicinity of a controlled aerodrome, namely Winnipeg International Airport, you did fail to obtain from the appropriate air traffic control unit, by radio communications or by visual signal, clearance to take off at the said aerodrome.

THE LAW

Section 602.96 of the Canadian Aviation Regulations (CARs) states:

602.96 (1) This section applies to persons operating VFR or IFR aircraft at or in the vicinity of an uncontrolled or controlled aerodrome.

[...]

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall
(a) observe aerodrome traffic for the purpose of avoiding a collision;
(b) conform to or avoid the pattern of traffic formed by other aircraft in operation;
(c) make all turns to the left when operating within the aerodrome traffic circuit, except where right turns are specified by the Minister in the Canada Flight Supplement or where otherwise authorized by the appropriate air traffic control unit;
(d) where the aerodrome is an airport, comply with any airport operating restrictions specified by the Minister in the Canada Flight Supplement;
(e) where practicable, land and take off into the wind unless otherwise authorized by the appropriate air traffic control unit;
(f) maintain a continuous listening watch on the appropriate frequency for aerodrome control communications or, if this is not possible and an air traffic control unit is in operation at the aerodrome, keep a watch for such instructions as may be issued by visual means by the air traffic control unit; and
(g) where the aerodrome is a controlled aerodrome, obtain from the appropriate air traffic control unit, either by radio communication or by visual signal, clearance to taxi, take off from or land at the aerodrome.

[...]

Motion to Amend Notice

Prior to the commencement of the hearing the Minister requested the following amendment:

The Minister wishes to notify the Civil Aviation Tribunal of its intention to amend the Notice of Monetary Penalty dated September 4, 2001 from "approximately 1744 hours UTC" to "approximately 1840 hours UTC".

There was no objection from Mr. Greaves and the motion to amend was so granted.

Opening Statements

Mr. Welwood stated that the Minister would prove that Mr. Greaves was the pilot-in-command of a Diamond Aircraft Industries Inc. DA 20-A1 aircraft bearing registration C-FCLR which departed Winnipeg International Airport at approximately 1840 hours UTC on February 14, 2001 without a clearance from air traffic control.

Mr. Greaves stated that he was not arguing the fact that he had or had not received a clearance for takeoff from air traffic control.

He stated that as a qualified and prudent pilot he had exercised "due diligence" for initiating the departure sequence.

FOR THE APPLICANT - The Minister of Transport

The case presenting officer, Mr. Jim Welwood, presented one witness, Mr. Joe Gaudry, who was sworn.

Mr. Gaudry stated that Transport Canada employed him as an inspector with the Enforcement Branch in Winnipeg, Manitoba. He entered the following items as evidence:

Exhibit M-1: Transport Canada Notice of Assessment of Monetary Penalty dated September 4, 2001 stating that James Robert Greaves had violated section 7.7 of the Aeronautics Act, and a penalty of $150 had been assessed.

Exhibit M-2: Canada Post confirmation of delivery to Mr. Greaves.

Exhibit M-3: Flying Colors Pilot Training General Aviation Inc. Daily Flight Log. The log indicates that Mr. Greaves was the pilot-in-command of CLR on February 14, 2001 and was accompanied by a student or passenger, a Mr. Tim Brown.

Exhibit M-4: Certificate of airworthiness for C-FCLR

Exhibit M-5: Certificate of registration for C-FCLR

Exhibit M-6: Designated Airspace Handbook. Page 32 of this publication indicates that Winnipeg International Airport is situated in Class D airspace. This airspace has a seven-mile radius.

Exhibit M-7: Definition of "controlled aerodrome" "an aerodrome at which an air traffic control unit is in operation" Mr. Gaudry testified that Winnipeg has an air traffic control unit in operation.

Exhibit M-8: Mr. Gaudry indicated that subsection 800.01(1) of the CARs states:

"air traffic control unit" means
[...]
(c) an air traffic control tower established to provide air traffic control services at an aerodrome;

Winnipeg International Airport has this facility.

Exhibit M-9: Canada Flight Supplement effective 25 January 2001 with aerodrome facility directory for Winnipeg International Airport. Mr. Gaudry testified that this document indicates that the tower has a continuous service and communicates on frequency 118.3.

Exhibit M-10: Mr. Gaudry testified that he obtained a (real-time) copy of the transcript of the Winnipeg control tower voice tape for the period when C-FCLR was operating at Winnipeg on February 14, 2001. The tape was played at the hearing, and he further indicated that the written transcript was produced by Mr. Welwood.

Exhibit M-11: Mr. Gaudry testified that he received this handwritten communication, referred to as the tower log, indicating that FCLR had departed runway 18 without clearance and that after review by tower officials no air traffic services (ATS) malfunctions had occurred.

Cross-examination

Mr. Gaudry agreed after questioning by Mr. Greaves that only one flight was undertaken by Mr. Greaves as the letters FTD indicate the use of a flight training device not an aircraft as outlined in Exhibit M-3. Mr. Gaudry agreed with Mr. Greaves that there was background noise and possible squealing on the radio transmissions specifically concerning the clearances issued to another aircraft (CFL).

Mr. Gaudry answered that he had two tapes, one entered as Exhibit M-10 and known as the real-time tape. He also indicated that he had a tape, the condensed tape, which specifically covered the movements of Mr. Greaves' aircraft C-FCLR.

Mr. Gaudry stated that he had given the "benefit of doubt" to Mr. Greaves in reducing the recommendation for sanction because of the presence of a student and the fact that the aircraft had a new radio package with a different squelch control.

THE RESPONDENT - Mr. James Robert Greaves

Mr. Greaves was sworn as a witness and entered the following Exhibits:

Exhibit D-1: Mr. Greaves submitted two flight test statistics reports dated January 15, 1990 to January 15, 2002 and August 31, 2000 to August 31, 2001. Both these documents indicate that Mr. Greaves performed at a higher than average level in his discharge of flying duties.

Exhibit D-2: Mr. Greaves submitted a transcript of the (condensed) control tower tape received from Mr. Gaudry. The tape was played for the hearing. Mr. Greaves testified that in his opinion a clearance was not issued for
C-FCLR to depart but rather there was confusion with the transmission because two aircraft were transmitting at the same time. Mr. Greaves stated that he had a number of options:

  • Click the mike-transmitting button
  • Read back the clearance
  • Commence the take-off procedure
  • Confirm or request a new clearance

Mr. Greaves stated that in his opinion the two simultaneous transmissions were of exactly the same length and thus were confusing.

Exhibit D-3: Case report prepared by Inspector Gaudry, indication that Mr. Greaves admits to the incident but because of mitigating circumstances Mr. Gaudry reduces his recommendation for the monetary penalty.

Re-direct

Mr. Greaves confirmed that no clearance was issued.

The evidentiary record was closed.

Closing Statements

Mr. Welwood stated that Mr. Greaves was the pilot-in-command of aircraft C-FCLR that departed Winnipeg International Airport on February 14, 2001 without a clearance.

Mr. Greaves stated that he was not given a clearance to take off. He further stated that he admits to being cleared to position on the runway and hold. He states that in his opinion he exercised "due diligence." He assumed that he was cleared for the takeoff and when he observed the departing aircraft turning from runway heading he initiated his departure sequence. Mr. Greaves requested that his notice of assessment be changed to a letter of warning.

ANALYSIS

Mr. Greaves, the document holder, admits to not receiving a clearance to depart from Winnipeg International Airport. With his unauthorized departure he contends that he exercised due diligence in observing the aircraft departing ahead of his aircraft and in some way communicated his action to the tower.

Diligence is defined as "the attention and care legally expected or required of a person".[1] The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.

I reject that Mr. Greaves carried out due diligence as he did not confirm his actions with the control tower when radio interference was experienced and this is an exceptional circumstance. While I am critical of the tower controller for not issuing the command "CLR hold your position" it is my opinion that the responsibility of the safe operation of an aircraft must always rest with the pilot-in-command of that aircraft.

DETERMINATION

The Minister has proven, on a balance of probabilities, each element of the offence. The proof has come from the evidence presented, through witness testimony and documentary evidence such as exhibits. Mr. Greaves did not exercise all due diligence. The monetary penalty in the particular circumstances of this case is appropriate. I uphold the Minister's decision to assess a monetary penalty of $150.

E. David Dover
Member
Civil Aviation Tribunal


[1]Minister of Transport v. Stephen Patrick Pozzi, CAT File No. W-1930-39.


Appeal decision
Allister W. Ogilvie, Elizabeth M. Wieben, Faye H. Smith


Decision: May 21, 2002

We dismiss the appeal. We note that Mr. Greaves was cooperative with Transport Canada throughout and admitted to the facts of the allegation. He was genuinely concerned with safe procedure although he did make an error. In dismissing the appeal, the Aeronautics Act constrains us from substituting our decision for the determination appealed against. However, were that not so, we would have found that the case was amenable to counselling rather than penalty. The monetary penalty of $150, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

An appeal hearing on the above entitled matter was held Thursday, May 9, 2002 at 10:00 hours at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

The Minister of Transport alleged that Mr. Greaves conducted a takeoff from the Winnipeg International Airport on February 14, 2001 without having obtained a clearance from the Winnipeg air traffic control unit.

A hearing of that matter was held before a single Tribunal member on January 15, 2002. The member determined that the Minister had proven each element of the offence and found that Mr. Greaves did not exercise all due diligence. He confirmed the monetary penalty of $150.

Mr. Greaves appeals that decision.

GROUNDS OF APPEAL

Two grounds of appeal were asserted:

  1. the hearing member misunderstood the facts;
  2. the hearing member misapplied the law of due diligence.

DISCUSSION

The facts are not in issue. At the review hearing and at appeal, Mr. Greaves conceded that he had taken off without a clearance. He did take issue with the member's interpretation of his testimony regarding whether there had been confusion or doubt in his mind at the time. He illustrated his point with reference to his testimony showing that at no time did he doubt that he had a clearance. We find that the member's interpretation of the testimony is not an error which would cause us to overturn his conclusion.

Mr. Greaves also appeals from the member's application of the defence of due diligence arguing that the member erred in its application. He relies upon the principles enunciated in the Sault Ste. Marie[1] decision. At page 1326 of that decision it states in part:

... This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, ...

Our review of the record convinces us that it was not reasonable for him to have believed that the clearance that he relied upon was directed to him. The audio tape recording in evidence is not amenable to that interpretation. It is clear that it was not directed to him.

For that reason we find that the due diligence defence is not applicable and thus the member did not err in his finding.

In this circumstance no hazard was created. However, the possibility of serious consequences occurring when one pilot acts upon another's clearance cannot be diminished. In a safety-sensitive environment there is no room for believing in a mistaken set of facts. The pilots must, by read-back or any other means ensure that they are only acting upon their clearance.

DETERMINATION

We dismiss the appeal. We note that Mr. Greaves was cooperative with Transport Canada throughout and admitted to the facts of the allegation. He was genuinely concerned with safe procedure although he did make an error. In dismissing the appeal, the Aeronautics Act constrains us from substituting our decision for the determination appealed against. However, were that not so, we would have found that the case was amenable to counselling rather than penalty.

Reasons for Appeal Determination by :

Allister Ogilvie, Vice-Chairperson

Concurred :

Faye Smith, Chairperson
Elizabeth Wieben, Member


[1] [1978] 2 S.C.R. 1299.