Decisions

CAT File No. C-2461-33
MoT File No. RAP5504-45957 P/B

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Michael William Graham, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, s. 602.96(3) (g)

Failure to obtain take-off clearance, Controlled aerodrome, Airport security


Review Determination
Elizabeth M. Wieben


Decision: August 26, 2002

I confirm Transport Canada's finding of a contravention of paragraph 602.96(3)(g) of the Canadian Aviation Regulations by Mr. Graham and leave the fine at $250. That amount, made payable to the Receiver General for Canada, 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 Thursday, July 18, 2002 at 10:00 hours, at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

Mr. Michael Graham was pilot-in-command of aircraft C-GPYJ November 18, 2001 at St. Andrews airport in Manitoba. After being cleared to position and backtrack on runway 36, he attempted to take off without a clearance. He was instructed by the tower to abort the takeoff and did so. Another aircraft was on runway 31 at the time and was also taking off. Mr. Graham subsequently taxied back and took off a short time later with a proper clearance. This matter came to the attention of Transport Canada, and Mr. Graham was charged with having contravened paragraph 602.96(3)(g) of the Canadian Aviation Regulations (CARs).

Paragraph 602.96(3)(g) of the CARs:

602.96 [...]

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall
[...]
(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.

Mr. Jim Welwood was the case presenting officer for Transport Canada, and Mr. Graham chose to have Mr. Don Hiscock represent him at the hearing.

EVIDENCE

Mr. William Moyse who was the investigating enforcement officer was a witness for Transport Canada. Evidence was submitted in the form of a certified true copy of the aircraft journey log for C-GPYJ which showed that on November 18, 2001, Mr. Graham had departed St. Andrews airport at 14:20. A copy of the November 1, 2001 Canada Flight Supplement was submitted to show that St. Andrews is a controlled airport.

Mr. Moyse testified that he had contacted Mr. Graham to indicate that Transport Canada was investigating his flight for an alleged infraction of paragraph 602.96(3)(g) of the CARs and that he cautioned Mr. Graham that he was not obliged to speak. Mr. Graham had indicated he was willing to "talk." Mr. Moyse stated that Mr. Graham told him that he (Graham) had made a mistake and that as of November 22, he was off flying status.

Evidence from tower logs on November 18 at 2015Z was submitted by Transport Canada to show that C-GPYJ started a take-off roll without a clearance and that he was instructed to abort due to conflicting traffic departing runway 31. Transport Canada also submitted a printed transcript of the St. Andrews tower tape for November 18, 2001, and in addition an actual tape was played for the Member and participants to hear.

The transcript and tape clearly showed that the pilot of aircraft C-GPYJ had attempted to take off without a clearance and was stopped from doing so only by the controller issuing an "abort" instruction.

During his cross-examination of Mr. Moyse, Mr. Hiscock attempted to separate out the aborted takeoff from the actual takeoff which took place moments later.

Mr. Hiscock attempted also to establish that someone else might have been at the controls at the time of the aborted takeoff and that someone else could have been manipulating the controls.

Transport Canada reiterated its position that the aborted takeoff (take-off run) was by definition under the CARs a takeoff and that there was only the name of Mr. Graham in the journey log, and no evidence that someone else was flying.

At the conclusion of Transport Canada's evidence and the cross-examination of Mr. Moyse, Mr. Hiscock stated that they (Graham) did not wish to make an opening statement, or bring any evidence; they only wanted to present argument.

ARGUMENT

Mr. Welwood of Transport Canada purported that all elements of the offence had been made out by the logbook, the tower transcript and other evidence submitted. He stated that a take-off run is a takeoff and that the obvious intent was to get airborne and that this was only prevented by the controller.

Mr. Hiscock insisted that the Minister had failed to prove all elements of the offence in that they were missing the "takeoff" and that the "aircraft must leave the supporting surface" to be deemed to have taken off. Furthermore, he stated that when the aircraft did actually take off, it had a clearance.

DISCUSSION

The transcript of the tower tape and the actual tape both indicate very clearly that aircraft C-GPYJ was cleared to "backtrack" and subsequently attempted to take off on runway 36 without a clearance. The takeoff was stopped by an alert air traffic controller, and C-GPYJ taxied back. Another aircraft on runway 31 also aborted their takeoff and a third aircraft which would have done a touch and go on 31 was cleared for an overshoot.

Later on in the tower tape, the pilot of aircraft C-GPYJ calls the tower on an alternate frequency and verifies with the tower that in fact he did not have a clearance and thanks them for "being there." The logbook of the aircraft clearly identifies Graham as the pilot-in-command on that date as it is the only name in the log.

The decision becomes is an aborted takeoff, a takeoff?

The definition of "take-off" is specified in Part I, Subpart 1, of the CARs under Interpretation and reads as follows:

"take-off" means

(a) in respect of an aircraft other than an airship, the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface, and
(b) in respect of an airship, the act of freeing the airship from restraint, and includes the acts immediately preceding and following the freeing of that airship from restraint;

A "take-off" clearly is intended to include the take-off run as it is specifically included in the definition. Regulations requiring take-off clearances and procedures would be meaningless or perhaps chaotic if a pilot could commence a take-off run, without a clearance and then abort anytime she or he felt like it prior to leaving the supporting surface. Air traffic control assumes that barring any emergencies, an aircraft that commences the take-off roll will continue the takeoff.

The pilot himself accepted and recognized the error in his later transmission with the tower. He clearly understood the implications of what had happened and the requirement to have a clearance.

Pilots operate throughout long days getting clearances, and it is certainly a risk that if one is tired a clearance might be missed or forgotten; for this reason important clearances require a "readback." The aeronautical information publication A.I.P. Canada RAC 4.2.5 specifies that hold or hold short clearances "shall be acknowledged by the pilot providing a readback or repeating the hold point." The A.I.P. further specifies that "instructions to enter, cross, backtrack or line up on any runway should also be acknowledged by a readback."

Mr. Graham, the pilot of C-GPYJ missed reading back that his clearance was "backtrack to position." While not mandatory, this is a common recommended practice and may have helped him realize that he was not cleared for takeoff.

It would have decreased the likelihood of this type of incident had the controller issued a "backtrack to position 36 and wait " wording, and indicated the sequencing of departures from the two runways. All parties need to recognize the high workload of pilots and controllers and work to keep errors to a minimum by sticking strictly to procedures that have been set out to minimize errors.

DETERMINATION

I confirm Transport Canada's finding of a contravention of paragraph 602.96(3)(g) of the CARs by Mr. Graham and leave the fine at $250.

Elizabeth Wieben
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Faye H. Smith, Samuel J. Birenbaum


Decision: January 13, 2003

We dismiss the appeal, and uphold the findings of the Member at first instance. The monetary penalty of $250, payable to the Receiver General for Canada, 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 Monday, December 9, 2002 at 10:00 hours at the Federal Court of Canada in Winnipeg, Manitoba.

BACKGROUND

Mr. Graham was the pilot-in-command of aircraft C-GPYJ on November 18, 2001 at St. Andrews airport in Manitoba. After being cleared to position and backtrack on runway 36, he attempted to take off without a clearance. He was instructed by the tower controller to abort the takeoff and he did so. Another aircraft was on runway 31 at the time and was also taking off. Mr. Graham subsequently taxied back and took off a short time later with a proper clearance. The occurrence came to the attention of Transport Canada, which charged Mr. Graham with having contravened paragraph 602.96(3)(g) of the Canadian Aviation Regulations (CARs). That section stipulates that the pilot-in-command of an aircraft operating at a controlled aerodrome shall obtain from the air traffic control unit clearance to take off.

A hearing of the matter was held before a Tribunal member, Ms. Elizabeth Wieben, on July 18, 2002, in Winnipeg, Manitoba. At the conclusion of the review hearing she confirmed that Mr. Graham had contravened the section and upheld the monetary penalty of $250.

THE APPEAL

Mr. Graham did not agree with that determination and an appeal was entered on his behalf. The appeal originally consisted of seven grounds. All but two were withdrawn at the outset of the hearing.

GROUNDS FOR APPEAL

  1. The hearing officer misinterpreted the definition of take-off as defined in the CARs.
  2. The hearing officer misinterpreted the evidence on the relationship between the person manipulating the controls not necessarily being the pilot-in-command (an element of the charge) as appointed by the company. Again citing it as not being relevant.

PARTIES' POSITIONS

The Appellant

Mr. Hiscock submitted that the Member misinterpreted the definition of "take-off". According to him, the incident referred to in the notice did not result in a take-off; therefore, a key element of the notice, namely, "did fail to obtain [...] clearance to take off" was not made out. The reasoning behind that is that the definition of "take-off"means the act of leaving a supporting surface. It is his position that the acts that occur before and after only apply if the aircraft actually leaves the supporting surface. Further he argues that the legislation did not intend to include attempts to take off.

As to the pilot-in-command question, Mr. Hiscock argues that there is no evidence to indicate that Mr. Graham was appointed by the company as the pilot-in-command of the aircraft in accordance with section 703.87 of the CARs. It stipulates that an air operator shall designate a pilot-in-command for each flight and where there is a crew of two pilots it shall designate a pilot-in-command and a second-in-command. He conceded in his presentation that Mr. Graham was a crew member and that he was at the controls of the aircraft at the time.

He asked that the finding of the Member not be upheld.

The Respondent

The Minister's representative, Mr. Hector, reviewed the facts of the case for us and submitted that the Member's findings were not unreasonable as they were based on the facts and thus should not be disturbed.

Mr. Hector disagreed with the Appellant's argument regarding the definition of "take-off". He submitted that the Member's interpretation had been correct. In support of that submission he proffered a Civil Aviation Tribunal case[1] in which "take-off' had also been addressed.

THE LAW

Section 28 of the Aeronautics Act:

28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry or was required to keep the record or, where the record was kept in respect of an aeronautical product, aerodrome or other aviation facility, against the owner or operator of the product, aerodrome or facility.

Paragraph 605.94(3)(a) of the CARs:

(3) The owner of an aircraft shall retain every entry in a journey log for a period of not less than

(a) one year; or

[...]

Paragraph 602.96(3)(g) of the CARs:

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

[...]

(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.

Section 703.87 of the CARs:

703. 87 An air operator shall designate for each flight a pilot-in-command and, where the crew includes two pilots, a pilot-in-command and a second-in-command.

Section 101.01 of the CARs:

"air traffic control clearance" means an authorization issued by an air traffic control unit that authorizes an aircraft to proceed within controlled airspace in accordance with the conditions specified by that unit;

"take-off" means

(a) in respect of an aircraft other than an airship, the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface, and

"stopway" means a rectangular area on the ground at the end of a runway in the direction of take-off and having the same width as the runway, prepared as a suitable area for stopping an aeroplane in the case of a rejected take-off;

DISCUSSION

Ground 1 — Take-off

We dismiss ground 1 of the appeal and uphold the Member's finding.

In argument Mr. Hiscock maintained that the Minister had failed to prove one key element of the charge and that was "did fail to obtain [...] clearance to take off". Regarding the definition of take-off he says "the aircraft must leave the supporting surface" to be deemed to have taken off. We are unable to concur with either of his propositions.

A perusal of the elements of the offence and the evidence that supports each one is helpful in coming to an understanding of the issue.

Paragraph 602.96(3)(g) of the CARs:

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

[...]

(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.

ELEMENT

EVIDENCE

Pilot-in-command of an aircraft

Graham — journey log, Moyse's testimony

operating in the vicinity of an aerodrome

journey log and tower tape

where a controlled aerodrome

Canada Flight Supplement

shall obtain from the appropriate air traffic control unit

St. Andrews tower — Canada Flight Supplement

clearance to take off from the aerodrome

no clearance given to C-GPYJ from St. Andrews tower — tower tape

The actual take-off is not part of the alleged offence. What is required for the final element is a clearance to take off which by definition is an authorization to proceed within controlled airspace in accordance with the conditions issued by the air traffic control unit. The tower tape shows that no authorization to proceed was issued prior to the commencement of the take-off run.

Issue

We must address when the take-off commences. The regulation stipulates that the pilot-in-command shall obtain a clearance to take off but it does not say when. We agree with Mr. Welwood's argument that it would seem axiomatic that a clearance is required before take-off. Guidance in this regard can be found in A.I.P. Canada (Aeronautical Information Publication) Rules of the Air and Air Traffic Services (RAC) 4.2.8 Takeoff Clearance, where it states in part: "[...] Upon receipt of the takeoff clearance, the pilot shall acknowledge and take off without delay [...]."

Mr. Hiscock does not necessarily disagree with that contention but rather with what actually constitutes a take-off. He asserts that, in order for the take-off run and the acts immediately preceding and following the leaving of the supporting surface to be relevant, the aircraft must actually have left the supporting surface. We do not believe that his contention is supportable. No authority for his opinion was offered.

Mr. Hector did however provide authority that supported his view of the definition of take-off. In Delco[2] the Member had occasion to address take-off. There he stated:

It is clear in my view that during take-off, when the motor is powered up with the object of taking off, this operation initiates the take-off. In the circumstances, the aircraft running on the water with the flaps in take-off position, and the motor powered up ready for take-off, is an integral part of take-off and thus from this point the aircraft is in flight even if it has not actually taken flight until a few hundred feet further, outside the said regulated zone.

It is not the departure of the aircraft from the supporting surface (in this case the water) which constitutes the take-off, but also the whole aircraft operation immediately preceding the flight or as the Aeronautics Act stipulates: 'the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding ... the leaving of that surface.'

We agree with that analysis of take-off as he clearly states that it is not the departure of the aircraft from the supporting surface which constitutes the take-off but also the whole aircraft operation immediately preceding the flight including the take-off run.

Therefore we agree with Ms. Wieben's finding that a "take-off" is intended to include the take-off run. The aircraft does not necessarily have to leave the supporting surface for this to be so. A take-off may be rejected before the actual lift off from the supporting surface but the take-off run prior to rejection is still recognized as part of the take-off. For instance a stopway is an area on the ground at the end of a runway that is prepared as an area for stopping an aeroplane in the case of a rejected take-off.

Ground 1 of the appeal is dismissed.

Ground 2 — Pilot-in-command

We dismiss this ground of appeal and uphold the Member's finding that Mr. Graham was the pilot-in-command of the flight on the basis that his was the only name found in the journey log.

In cross-examination by Mr. Hiscock the witness, Inspector Moyse, also stated that Mr. Graham had told him that he was the pilot-in-command. Although that statement is hearsay evidence it is corroborated by Exhibit M-5, the journey log book. In the log the name "Graham" appears in column 2, Pilot/Copilot. He also had signed the log in the signature column.

Section 28 of the Aeronautics Act allows that, in any proceeding under the Act, an entry in any record required to be kept is, in the absence of evidence to the contrary, proof of the matters stated therein as against the person who made the entry.

The review and this appeal hearing are both proceedings under the Act.

The journey log is a record required to be kept pursuant to paragraph 605.94(3)(a) of the CARs and the designations of Pilot/Copilot and Signature are entries in that record.

The log does not show another pilot on board who could have assumed the pilot-in-command role. Mr. Hiscock posed questions which suggested that there were seven persons on board one of whom may have been another pilot but in answer the witness stated that he did not know who was on board. An aircraft journey log normally contains a column for the number of persons on board but the exhibit in evidence here does not show that column. No witness was called to establish the number of persons on board. There is an absence of evidence to the contrary to that established by the entries in the journey log book. Therefore the entries can be considered proof of the matter stated therein (identity of the pilot) as against Mr. Graham as he was the person who made the entry. As he was the only pilot, it follows that he was the pilot-in-command.

Mr. Hiscock also raised the issue of the appointment by a company of a pilot-in-command pursuant to section 703.87 of the CARs. He states that 703 is the section under which the air service was operated. However, there is no evidence in the record regarding any air service. There is nothing, such as an air operator certificate, which would identify a company or establish that there was a commercial operation, nor is there any indication of which section of the CARs a company may have been operated under.

Questions posed by a person presenting a case or statements made during argument do not constitute evidence upon which a determination may be made. The Member quite properly paid no heed to the various propositions posited by Mr. Hiscock in cross-examination and argument.

The evidence in the log book coupled with Mr. Moyse's testimony were proper grounds upon which the Member could find that Mr. Graham was the pilot-in-command. We uphold her decision on that basis.

DETERMINATION

We dismiss the appeal, and uphold the findings of the Member at first instance.

Reasons for Appeal Determination by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Faye Smith, Chairperson
Dr. Samuel Birenbaum, Member


[1] Minister of Transport v. Delco Aviation Limited, CAT File No. O-1918-41.

[2] Ibid.