Decisions

CAT File No. C-2572-33
MoT File No. RAP5504-46541 P/B

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Arnold Ivan Grinde, Respondent

LEGISLATION:
Canadian Aviation Regulation, s. 601.31(1)b)

Air Traffic Control Clearance


Review Determination
E. David Dover


Decision: January 13, 2003

I find that Mr. Arnold Ivan Grinde did contravene paragraph 602.31(1)(b) of the Canadian Aviation Regulations, and I confirm the Minister's decision to assess a monetary penalty of $250.00. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held Thursday, December 18, 2002 at 10:00 hours, at the Federal Court of Canada in Winnipeg, Manitoba.

A letter from Mr. Arnold Grinde dated December 16, 2002 directed to the Civil Aviation Tribunal in Ottawa was received by the Hearing Officer, David Dover, by fax at 09:00 hours on December 18, 2002 in Winnipeg, Manitoba.

This letter indicated that Mr. Grinde would not be present at the hearing. During the hearing this letter was entered as an exhibit and the contents will be referred to later in the determination.

The hearing was commenced at 10:00 hours.

The letter from Mr. Grinde was given to Mr. Welwood from Transport Canada.

The hearing was adjourned for fifteen minutes to give the Respondent an opportunity to appear and reconvened at 10:15 hours with Mr. Grinde not in attendance.

BACKGROUND

On May 30, 2002, a monetary penalty of $250.00 was assessed against Mr. Grinde, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport claiming that Mr. Grinde had contravened the following provision(s):

Count # 1: Canadian Aviation Regulation 602.31(1)(b), in that at approximately 0136 hours UTC, on or about the February 23, 2002, at or near 28 nautical miles northwest of Dauphin, Manitoba, being the pilot-in-command of an aircraft, to wit, a Piper PA31-350, bearing Canadian registration marks C-GCJH, you did fail to comply with all air traffic control clearances received and accepted by you, namely, you failed to maintain the 8,000 feet assigned altitude while in controlled airspace.

THE LAW

Subsection 601.31(1) of the Canadian Aviation Regulations (CARs):

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.

OPENING STATEMENT

Mr. Welwood stated that he would call one witness.

Mr. Welwood stated that on February 23, 2002 at approximately 0032 UTC a Piper PA31-250, registration C-GCJH operating as Keystone 104 departed Winnipeg International Airport, IFR, for a direct flight to Swan River, Manitoba.

Mr. Arnold Grinde piloted the aircraft.

Mr. Welwood stated that at approximately 0136 UTC Keystone 104 vacated his assigned altitude of 8,000 feet while in controlled airspace approximately 28 nautical miles northwest of Dauphin, Manitoba without an air traffic control clearance.

FOR THE APPLICANT — the Minister of Transport

The case presenting officer, Mr. Jim Welwood, presented one witness, Inspector Richard Gagnon. The witness was sworn and stated that he was the person assigned to investigate file No. RAP5504-­46541 P/B concerning Keystone 104 captained by Mr. Grinde.

Mr. Gagnon testified that he forwarded a notice to Mr. Grinde advising him to contact the Regional Manager of Aviation Enforcement to arrange an informal discussion on the incident prior to the 5th day of July 2002. This meeting was not held.

Mr. Gagnon stated that it was he who requested all the information contained in the exhibits from NAVCANADA.

Mr. Gagnon entered a number of exhibits.

M-1 : Notice of Assessment of Monetary Penalty for $250.00 dated May 30, 2002 sent to Arnold Ivan Grinde.

M-2 : Registered mail receipt signed by Mr. Grinde.

M-3 Certificate of registration for C-GCJH indicating that the Piper 31-350 was owned by Keystone Air Service Ltd.

M-4 Certificate of airworthiness for C-GCJH.

M-5 Certified copy of the aircraft journey log for C-GCJH for 22 FEB '02 indicating that Arnold Grinde was the pilot-in-command of the aircraft for the flight from Winnipeg to Swan River for the period in question.

M-6 CADORS[1] Number 2002C0189 indicating that KEE 104 descended from 8,000 feet within controlled airspace without a clearance.

M-7 Enroute Low Altitude Chart LO3/LO4 dated 21 February 2002 indicating that a position of 28 miles northwest of Dauphin, Manitoba on a direct track Winnipeg, Manitoba to Swan River, Manitoba would put C-GCJH in controlled airspace known as V327 and/or A11.

M-8 Tape and transcript of conversation of controllers issuing clearances to Keystone 104 and then detailing their efforts to contact Keystone 104 after they see him descending without a clearance while in controlled airspace.

M-9 Weather data for the period when the flight took place.

M-10 Two copies of the pilot log book. The first copy shows the flight from YWG to CZJN with no indications as to weather conditions whereas the second copy shows the same sheet with the notation "Broke 8000 IFR lots of ice, clearance?"

Exhibit D-1

A letter dated December 16, 2002 from Arnold Grinde to the Civil Aviation Tribunal outlining the events that Mr. Grinde experienced in his flight of February 23, 2002. He explained that he was experiencing heavy accumulation of ice and was unable to raise either Winnipeg Centre or Dauphin Remote Communications Outlet. He further wrote that the aircraft was vibrating and all his efforts to shed the ice were futile.

Mr. Welwood stated that the actual weather and forecasts did not indicate an icing problem in the area Keystone 104 was operating in (M-9). Air traffic control had no other pilot reports of problems in the area.

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

FINAL ARGUMENTS

Mr. Welwood reviewed the evidence that had been presented by the Minister. He stated that the Minister had proven the facts that Mr. Grinde was the pilot-in-command of flight Keystone 104 and that the Notice had been sent and received by Mr. Grinde.

He stated that Mr. Grinde had to adhere to a clearance if he accepted it. He stated that this was not done in this case.

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

Paragraph 602.31(1)(b) states:

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

Mr. Grinde did not adhere to the issued and accept clearances and is thus in breach of paragraph 602.31(1)(b) of the CARs.

Mr. Grinde states he was unable to communicate with Winnipeg Centre. In my opinion he had a number of options:

  • Communicate with Winnipeg through the Dauphin RCO on 122.3, issue a request on enroute frequency 126.7 or declare an emergency on 121.5.
  • He could have requested assistance by relaying through another aircraft or broadcasting an emergency through his transponder.

Mr. Grinde in his letter (D-1) states that he did not know he was breaking the law and that he misinterpreted the clearance to mean that he would be in uncontrolled airspace.

One has to refer to Exhibit M-7 and look at the Enroute Low Altitude Chart to clearly see his course would intercept an airway and expose his aircraft to a possible traffic conflict.

Because Mr. Grinde was absent from the hearing I have to lower the weighting of evidence that he was experiencing icing contained in Exhibit D-1 as the Minister was not able to cross-examine the evidence.

DETERMINATION

I find that Mr. Arnold Ivan Grinde did contravene paragraph 602.31(1)(b) of the CARs, and I confirm the Minister's decision to assess a monetary penalty of $250.00.

E. David Dover
Member
Civil Aviation Tribunal


[1] Civil Aviation Daily Occurrence Reporting System.