Decisions

CAT File No. O-0510-33
MoT File No. PAP6504-P-074709-23352

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

S.J. Jansens, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Air Regulations, C.R.C 1978, c. 2, s. 506(b)

Air Traffic Control Clearance, Standard of Proof


Review Determination
Philip D. Jardim


Decision: June 15, 1995

The Minister's allegation against Captain Jansens is not sustained by the incomplete, flawed and inconclusive evidence presented. I therefore cancel the penalty imposed on Captain Jansens by the Minister.

A Review Hearing on the above matter was held Tuesday, June 6, 1995, at 10:00 hours at the offices of Revenue Canada in the city of Scarborough, Ontario.

BACKGROUND

On September 3, 1993, Captain Jansens was pilot-in-command of Air Canada (AC) Flight 175, from Toronto to Winnipeg. The aircraft was cleared to depart on Runway 24R at Lester B. Pearson International Airport at 23:37 hours UTC, CONFORMING TO STANDARD INSTRUMENT DEPARTURE NO.7, (SID 7).

The Minister alleges that Captain Jansens contravened SID 7 by turning onto a heading of 270° after take-off. Captain Jansens acknowledges that he turned onto 270°, but claims that he was told to do so in the ATC clearance given to the flight. It is not unusual for such a clearance to be issued to a departing aircraft conforming to SID 7. It is allowed for in the SID 7 procedure. Indeed, the preceding flight, ON 223, had been given SID 7 with a heading of 290°.

SID 7 for R/W 24R states as follows:

"Rwy 24R: Maintain hdg 237°. At 1000' ASL turn right hdg 245° or assigned hdg for vectors to assigned route. Climb to and maintain 5000' ASL."

As shown above, a heading of 270° could have been assigned to the flight any time, including the period immediately after take-off, when it was under the control of Departure Control. Unfortunately, recordings of this segment of the flight were not presented in evidence by the Minister and are evidently not available.

In support of his allegations, the Minister entered three (3) tapes in evidence and a copy of SID 7, radar traces of the flights in the area at the time of the incident, a transcript in support of tape M-2, two letters and a record of discrepancy. The latter had conflicting dates and was vigorously opposed by Mr. Poppe on the grounds that its author was not present and that he could not therefore cross-examine him.

Further, the attachment to this document was found to have a completely different date from the first page. I recommended to Mr. Trethewey that he withdraw this document as an exhibit especially in the light of the date discrepancy. Mr. Trethewey agreed to withdraw it, as he recognized that it was indeed flawed.

The main evidence that an infraction had occurred lay in the tapes, since the incident had occurred some eleven months and two weeks before the Minister sought to make an issue of the alleged infraction. This is indeed unfortunate, since no witnesses could clearly remember anything about the incident and since vital recordings of departure control were never listened to and indeed were not saved. THERE IS NO TAPED RECORD OF ANY TRANSMISSIONS TO OR FROM THE FLIGHT AFTER IT WAS CLEARED FOR TAKE-OFF. This is precisely when the alleged infraction occurred, and there is no tape recording from either ATC, or from the cockpit voice recorder to support it.

Further, there are discrepancies between the tapes: The compressed time tape contains recordings that the real time tape (Exhibit M-3) does not. Specifically, AC 669 IS HEARD ON THE COMPRESSED TIME TAPE, BUT NOT ON THE REAL TIME TAPE WHICH IS SUPPOSED TO CONTAIN ALL TRANSMISSIONS MADE DURING THE PERIOD. This calls into question the accuracy of these recordings.

In deference to the Minister's allegations, there is no mention on any of the tapes he presented as Exhibits M-1, M-2 and M-3 of AC 175 being directed to turn to a heading of 270° after take-off. The only mention of "270°" is the wind velocity given to the aircraft by the tower when giving AC 175 its take-off clearance. This is a standard air traffic control procedure; the wind velocity is given to every aircraft on departure. It is possible, but difficult to conceive, that Captain Jansens would have misinterpreted this as a clearance, since he did not read it back as is required of a clearance.

There are further anomalies and inaccuracies in the recording of times, flight numbers and dates in the transcripts. Two Transport Canada officers recorded different dates and times on transcripts of the same tape. This casts doubt on the accuracy with which the information was gathered. Since the incident took place some 21 months ago, the witnesses either could not remember or did not know whether some inaccuracies might have crept into the making of the tapes, in that vital transmissions may have inadvertently been missed.

The Review Hearing today would have benefitted from the presence of Captain Jansens. It is a pity that he did not see fit to support his learned counsel in his defence.

The final witness called by the Minister is the air traffic controller, Thomas Manley, who was in the control tower at the time and who gave AC 175 its take-off clearance. He does not recall amending the SID 7 clearance given to the aircraft. However, when questioned by the departure controller on the "hot line" after the aircraft took off about whether he had done so, he says: "... I gave it to Ontario, I can't believe that I gave it to 175 — but anything's possible ..."

Mr. Manley, when asked by defence counsel whether he had any recollection of the alleged incident without reference to the tapes, replied in the negative. He further admitted to being somewhat confused and perturbed at the time by the "hot line" conversation recorded on Exhibits M-1 and M-2. This, combined with the other anomalies, indicates further uncertainty, which does not suggest to me that the greatest care was taken in putting the evidence together.

Changes in Transport Canada personnel and the passage of considerable time (11½ months initially, and now 21 months ) have made it difficult, if not impossible, to prove that AC 175 contravened its ATC clearance on September 3, 1993.

THE LAW

Paragraph 506(b) of the Air Regulations states as follows:

"506. The pilot-in-command of an aircraft shall

...

(b) comply with all air traffic control clearances received and accepted by him ..."

It remains to be proved conclusively that Captain Jansens contravened this regulation.

DETERMINATION

The Minister's allegations against Captain Jansens cannot be sustained by the evidence presented for the following reasons which have been discussed above:

  1. There are discrepancies in the tape recordings presented as evidence which give cause to believe that vital transmissions may have been inadvertently omitted.
  2. There are flaws in the dates and times on the transcripts.
  3. There is no recording of the most vital part of the flight when the aircraft would actually have turned onto 270°.
  4. The witnesses fielded by the Minister did not convey to me that the procedure for recording the tapes from the master is free from flaws — i.e., the presence of a transmission on the compressed tape that is not on either of the real time tapes.
  5. There are discrepancies and mistakes on the transcripts and radar traces which indicate less than scrupulous attention to detail and accuracy in the compilation of the evidence.
  6. Paragraph 7.9(5)(a) of the Aeronautics Act states that: "the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister ..." This has not been done in this case.

Accordingly I cancel the monetary penalty assessed against Captain Jansens by the Minister.

Philip D. Jardim
Member
Civil Aviation Tribunal


Appeal decision
Alfred R. Spence, David W. Hurst, Pierre Rivest


Decision: May 7, 1996

The Appeal is dismissed. The Review Determination rendered by Mr. Philip D. Jardim is confirmed.

The Appeal Hearing on the above matter was held Tuesday, March 19, 1996 at 10:00 hours at the offices of Revenue Canada Customs, Toronto International Airport, in the city of Mississauga, Ontario.

The proceedings were chaired by Mr. Alfred Spence who invited Ms. Caminsky to present her case.

She stated that this was an Appeal of a Review Determination by Mr. Philip D. Jardim of the Civil Aviation Tribunal dated June 15, 1995, in which the Minister's allegation against Captain Jansens was not sustained, and the penalty was cancelled. She indicated that there was no new evidence to be entered and presented a tabulated book of references used in her presentation.

INTRODUCTION – THE LAW

It was alleged that the Respondent, Captain Jansens, had failed to comply with paragraph 506(b) of the Air Regulations: "The pilot-in-command of an aircraft shall comply with all air traffic control clearances received and accepted by him". Specifically the SID 7 for R/W 24R Toronto International Airport.

Pertinent tapes, radar plots, expert evidence and testimony by Transport Canada Inspectors had been presented in support of this alleged infraction. The Member, Mr. Jardim, concluded that the case was not proven and that there were serious discrepancies in the recording of times, flight numbers and dates in the transcripts. Two Transport Canada officers had recorded different dates and times on transcripts of the same tape. There was no oral recording of the most vital part of the flight when the aircraft would have actually turned to a heading of 270 degrees, which was contrary to the SID 7 for runway 24R at Pearson.

Ms. Caminsky stated that the Member was perverse in not finding fault because of small errors in Transport Canada's presentation, and that this placed a higher onus of proof on the Minister. In quoting from page 115 of the transcript from the Review Hearing, she stressed how serious the matter would be if there had been a radio or radar failure and that the issue at hand was danger.

It was stated at this time that the departure tape relating to this incident was not available as it had not been requested. Ms. Caminsky pointed out that Mr. Manley (Tower Controller) did check the departure tapes the day following the incident and that there was no more information available there. Mr. Manley stated that Captain Jansens had:

  1. Received clearance
  2. Received no change
  3. Departed

The Appeal panel pointed out that it appeared probable that the pilot was not given a further clearance beyond the standard SID 7 departure and, on reviewing the matter of the tapes, stated that the tapes for Clearance Delivery, Ground Control and Tower Control had all been reviewed but the departure tapes had not. Ms. Caminsky agreed, stating that the "hotline" indicated that Departure Control had checked with the tower and that no other clearance had been given.

The panel stated that there had definitely been a right turn to 270 and questioned why the Minister had not subpoenaed the first officer. Ms. Caminsky had no explanation. The panel indicated that the pilot may have confused wind heading given by the tower with a new clearance and noted that there was no read back. The panel also stated that both pilots must have accepted the turn to 270, and that the tower wasn't looking for a read back as no new clearance had been issued.

Mr. Poppe, representing the Respondent, reviewed the Review Hearing transcript and pointed out that Mr. Howcroft, an acting supervisor in the tower, had checked the departure tape. Mr. Poppe added that the "hot line" transcript showed this.

Ms. Caminsky stated that the Member's determination, based on the fact that nothing was proven, put an unreasonable onus on the Minister to disprove defences. She stated that the errors in the Minister's presentation are minor and that Mr. Jardim had used them to taint important facts. She stressed that they didn't affect the evidence and were explained by the witnesses. She went on to state that all elements of the offence were proven – the tapes showed it, the original clearance was not altered and the aircraft did not follow the clearance.

Ms. Caminsky drew attention to page 107 of the transcript, where Mr. Howcroft made it clear that it was not possible that a change in the SID 7 departure had occurred on another frequency. She referred to the radar plots (page 130 of the transcript) indicating that the aircraft was on a heading of 270. She also reviewed the procedure for the making of tape copies from the master tapes, indicating that standard procedure was followed throughout.

The matter of other voices on the tapes was explained by Mr. Howcroft and Mr. Manley stating that use of north and south ground frequencies at Toronto International sometimes resulted in spillover from one frequency to another and that this would be picked up in a tape copy. There was discussion between Mr. Poppe and Ms. Caminsky about errors in transcripts taken from the tape particularly pertaining to time. Mr. Poppe stressed that Transport Canada wanted to retry the whole case and felt that we should be addressing the result of the initial hearing. Ms. Caminsky simply stated that the Member's conclusions were not based on the evidence. She indicated that he was using standards of proof that were required in a criminal trial and that the standards at the Tribunal should be on a balance of probabilities.

Mr. Poppe also stressed that a balance of probabilities would be a 51 to 49 split, that a case such as this must be proven beyond a reasonable doubt and that the onus is on the Minister to prove that there was a SID 7 clearance and nothing else.

Ms. Caminsky made reference to page 3 of Mr. Jardim's reasons for determination regarding the departure controller's "hot line" comments, "... I gave it to Ontario, I can't believe that I gave it to 175 – but anything's possible ...."

This was in reference to his clearance to Air Ontario. Mr. Howcroft stated that he checked the departure tapes the next day and was sure that the heading of 270 had not been given to Flight 175.

MR. POPPE IN SUPPORT OF THE RESPONDENT

He opened by stating that we were not here to retry the case but to satisfy the Tribunal that the Minister's conclusions were not supportable. He pointed out the flaws in the dates and times in the tape transcripts and specifically stated that there was no recording of when the aircraft turned to 270, even though the tapes were immediately checked. He said there is evidence to support finding #4 (flaws in the recording of the tapes in the presence of a transmission on the compressed tape that is not on either of the real time tapes) and finding #5 (discrepancies and mistakes on the tape transcripts and radar traces which indicate less than scrupulous attention to detail and accuracy).

Mr. Poppe underlined Mr. Manley's confusion as to whether he gave the clearance to Air Ontario or to Air Canada Flight 175. He stressed that the Tribunal cannot now re-guess the hearing. He concluded by saying that in the evidence there is support for Mr. Jardim's conclusions.

MS. CAMINSKY IN SUMMARY

She referred to a Civil Aviation Tribunal hearing (Norbert A. Selbstaedt vs Minister of Transport CAT File No. C-0081-02) quoting from the reasons for the Appeal Determination:

The Tribunal in weighing the document holder's right to procedural fairness and natural justice and the Minister's obligation to maintain an adequate level of public safety have determined that the standard of proof to be imposed on the Minister is not the criminal standard of 'proof beyond reasonable doubt' but the civil standard of 'proof on a balance of probabilities. If the balance weighs equally in favour of the Minister and the document holder, the standard has not been met but if the balance weighs more heavily in favour of the Minister, the standard has been met. It is hoped that the Tribunal has now firmly established the standard of proof required in proceedings before it. Unless the Federal Court of Appeal determines that the Tribunal have been wrong, 'proof on a balance of probabilities' is the standard proof which will apply.

Ms. Caminsky referred to a second case, the Civil Aviation Tribunal hearing (Minister of Transport vs Thomas Ritchie Phillips CAT File No. C-0014-33):

Accordingly, we find that the preferred test for these proceedings is the civil (administrative) test for proof on the balance of probability. We stress that this finding in no way displaces the burden which at all times (except where specifically accepted such as (Act: S.6.1(7))[1] is on the Minister.

Also, reference is made to a third case, the Civil Aviation Tribunal hearing (Minister of Transport vs Canadian Airlines International CAT File No. O-0300-50):

The element of fault or negligence arises when the Applicant has established that the Respondent has done the act which violates the provision, the onus then shifts to the regulatee to establish that he was not negligent – in other words, he exercised due diligence to avoid the act. The onus of persuasion in proffering this defence rests with the Respondent.

In other words, it is stated that the onus shifts to the Respondent to be not negligent.

Ms. Caminsky then viewed the problem of discrepancies in the tapes and flaws in the transcriptions all of which had been covered and all of which were minor. She stated that the Member erred in his determination, that evidence of all parts of the flight is there and that nothing in the departure control tape would have altered these findings. She stated that it was highly unlikely another controller acted and that there was no sign of the frequencies being changed.

MR. POPPE IN SUMMARY

The onus was on the Minister of Transport to satisfy the Tribunal Member that the SID 7 departure was given and not followed. The Minister failed to satisfy the Tribunal since the departure tape was missing and also pointed out that the departure controller had not been called, with no explanation for this. Mr. Poppe then reviewed the fact that several review Tribunals had used the balance of probabilities in their judgement emanating from decisions in the mid-1980s. He stated that, with the Tribunal hearing, the balance of probabilities is applicable and that it is the offence – not the Court or the Tribunal – that dictates need for certainty.

He also stressed the fact that the Respondent didn't hear about the allegations for eleven months after the event, and he was unable to recall it. Mr. Poppe stated that the Charter of Rights says that fairness is required, and that we should not alter the Member's determination unless he was way off the mark.

As to the suggestion that the first officer should have been called, it was felt that he couldn't recall the event either after such an interval. In reply to Ms. Caminsky's statement that the limitation period was twelve months and all tapes and tools were available, Mr. Poppe stated that they were never satisfied that they had received all the information available.

DISCUSSION

Having heard the presentations, the Tribunal then concurred that there was no break in the tapes and that the only reference to a compass heading of 270 was the wind report. It was agreed that the only clearance given was SID 7 for R/W 24R. It was agreed that an incident occurred but there is lack of information to prove not only an infraction but also who could have been responsible for it, the pilot or the controller. It was considered that we are bound by the balance of probabilities in this Tribunal Appeal. It was agreed that there was an alleged error, but it was not proven in that we did not have sufficient documentation to ascertain where or when the alleged incident occurred.

DETERMINATION

It is a matter of serious concern to this Tribunal that an alleged infraction might have occurred, and inadequate measures were taken to secure all information sources including departure tapes.

Having considered all aspects of this case, it is the unanimous determination of this Tribunal Appeal Panel that the Review Determination by Mr. Philip D. Jardim on June 15, 1995 be confirmed.

Reasons for Appeal Determination by:

Dr. David W. Hurst, Member

Concurred:

Alfred R. Spence, Member
Pierre Rivest, Member


[1] This subsection of the Aeronautics Act has since been renumbered as subsection 7.1(7)