Decisions

CAT File No. A-0165-33
MoT File No. 6504-P-101964-024303

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

James Peter Soden, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s 7.3(3), 7.9(3)(b)
IFR Flight Position Reports Order (Air Navigation Order, Series V, No. 11), s. 5(1)(a)

Sanction, Uncontrolled Aerodrome, Weight to Unsworn Evidence, Tape Evidence, Reports on Departure, CAT's Ability to Alter


Review Determination
Orville Pulsifer


Decision: January 25, 1995

I find that James Peter Soden did contravene subsection 7.3(3) of the Aeronautics Act, as alleged by the Minister, but I reduce the amount of the fine to $1.

The Review Hearing on the above application was held Monday, January 9, 1995 at 13:00 hours at the City of Moncton Immunity Services Department, in the City of Moncton, New Brunswick.

It is alleged in the NOTICE OF ASSESSMENT OF MONETARY PENALTY that James Peter Soden contravened subsection 7.3(3) of the Aeronautics Act as follows:

"In that you, on or about the 17th day of May, 1994, at the Moncton Airport, situated at Dieppe, in the Province of New Brunswick, [James Peter Soden] being the pilot - in - command of an aircraft to wit: a Convair 580, identified as Kelowna Flight Craft Flight KFA 588, intending to take off from the Moncton Airport, did fail to report on the appropriate frequency your departure procedure and intentions before moving onto the runway, or before aligning the aircraft with the take off path contrary to Air Navigation Order V No. 11, s.5(1)(a), thereby committing an offence pursuant to s. 7.3(3) of the Aeronautics Act, R.S.C. 1985 c. A-2 as amended."

BACKGROUND

At approximately 4:00 a.m. local time, Flightcraft 588 was in the area of Position 2 (Exhibit M-1) at the Moncton airport and requested clearance from F.S.S. to St. John's, Newfoundland, the tower at the Moncton airport having closed at midnight.

Moncton Flight Service is located at the extreme western end of the buildings shown at the Position 1 location, making it impossible for visual contact between Flight Service and Flightcraft 588.

The Transcript from the "compressed" taped record of the alleged incident was initiated by the aircraft:

" KFA588 Moncton Radio it's Flightcraft 588 request clearance to St. John's.

FSS Flightcraft 588 Moncton Radio are you ready for taxi at this time?

KFA588 Er in about another two minutes we'll be ready

FSS Roger advise ready for taxi - I'll put yours on request for runway 11"

According to the transcript and the "compressed" tape (Exhibits M-3 and M-4, respectively), other traffic intervened on the frequency. The tape also records conversation between FSS and Moncton Centre as the FSS Operator arranged clearance for Flight 588 to St. John's.

The transcript indicates the next direct communication between FSS and Flight 588 as follows:

" KFA588 Moncton Radio it's Flightcraft 588 in position on 11, any luck with the clearance?

FSS Flightcraft 588 the runway is preferred, the winds 070 at 5 to 10 altimeter 2982 and I have your clearance off 11.

KFA588 O.K. go ahead

FSS ATC Clears Flightcraft 588 to the St. John's airport via direct Charlottetown direct, maintain flight level 210 squawk 6737

KFA588 588 er cleared St. John's Moncton direct Charlottetown direct to maintain 210 6737

FSS Your readback is correct time is 0757 advise rolling and er for your information you're not supposed to taxi onto the manoevering [sic] area without contacting the ground unit

KFA588 588

FSS (Unreadable) If the runway was active, then you wouldn't have known.

KFA588 Ah we check that.

KFA588 Air Radio 588's on the roll.

Unk. Yep

Unk. Yep

FSS 588's off the???? TT 59 thanks

FSS KFA588 contact 124.4

KFA588 588 over to 24.4 so long.

FSS (To ACC) would you tell Flightcraft 588 to give me a call on 26.7 for a moment?

ACC Yeah, will do.

KFA588 Radio Flightcraft 588 26.7

FSS Flightcraft 588 Moncton Radio er just to advise you that you did violate Air Navigation Order five number eleven by taxiing to position without an advisory and er just to warn you at this time but I will need your name and licence number.

FSS Flightcraft 588 do you copy?

KFA588 Moncton Flightcraft 588 could you read me the Air Navigation Order please.

FSS Sure thing its [sic] for reports on departure for IFR OK it's called the IFR Flight Position Reports Order and for reports on departure either when you intend to take-off [sic] from an uncontrolled aerodrome you shall report on the appropriate frequency the departure procedure and report your intentions before manoevering [sic] onto the runway.

KFA588 We told you that we were taxiing to position on 11 when we left the ramp, sir.

FSS First of all you called up and you were not ready for taxi I told you advise when ready for taxi you said you would and I'd see about put your? on request? and you went out there without getting the initial advisory.

KFA588 I just conferred with the First Officer here and he said he'd called and said he was taxiing for runway 11 as we taxied out on the ramp.

FSS O.K. well if that's the case I'll have the tapes pulled and I'll have my manager look them over, meanwhile I still need your name and licence number.

KFA588 Well you'd better give me yours too I guess.

FSS Go ahead with yours.

KFA588 Jim Soden A101964

FSS er spell that last name

KFA588 Sierra Oscar Delta Echo November

FSS Thankyou very much, and my name is Truman Tremblay.

KFA588 Are you the same guy they had problems with the other night?

FSS er I don't know what you're talking about.

KFA588 The other crew was mentioning they had some problems in Moncton was that were you involved in that?

FSS er not that I can recall"

The other major document relative to this Review Hearing is a written submission from Mr. James P. Soden to the Civil Aviation Tribunal, dated December 22, 1994, appended hereto as Exhibit D-l. Mr. Soden writes:

"In response to the alleged infraction involving KFA588 on May 17, 1994, I respectfully submit the following.

That the ANO in question namely, AIR NAVIGATION ORDER V NO. 11, states in part, where a pilot-in-command intends to take-off [sic] from an uncontrolled aerodrome, he shall report on the appropriate frequency his departure procedure and intentions before moving onto the runway or before aligning the aircraft on the take-off path.

First, our intentions were known by the M.F. Operator, as he even gave us the runway to use, as excerpted from the tape.

Next, I would suggest that the transcript requires amending in several places. As on page three it should state 'into position on 11'. This would be borne out by the radio operators [sic] statement on the INFRACTION REPORT that he gave us the departure advisory and clearance as we left TWY C. So indeed, we had all the pertinent information as the ANO states 'before aligning the aircraft on the take-off path.' This position is stated by me on page four of the transcript, again with a correction, 'as we taxied out of the ramp'.

I maintain that the ANO was complied with in its totality and there is no evidence to the contrary, indeed, the infraction report itself states this.

As to the discussion on page five, whether or not the operator was the one involved in the 'problems the other night'; his statement is nothing less than a blatant lie, as the crew involved was none other that Brian Holmes and myself. I checked my records as soon as I returned to St. John's, and confirmed the operators name. Brian made a long distance call from St. John's on the morning of the problem and phone records and log books would verify my position.

I would like to state, for the record, that I feel this action has been unfair as the INFRACTION REPORT itself exonerates me. I have no idea why TRANSPORT CANADA continued with it but can state, that it is my opinion it was initiated in retribution for our refusal to accept requests for 'rides' from FSS staff.

Respectfully,

James P. Soden

A101964"

The Infraction Report itself recounted the event as follows:

"KFA588 initially called up and wanted the clearance. I asked if they were ready to taxi. They replied in a couple of minutes. So I then told them to advise me when they were ready to taxi, and that I would put their clearance on request. After that contact I then had another aircraft depart. Right afterwards I looked out the window and noticed that KFA588 had taxied down TWY C and was turning onto the runway. I then proceeded and gave KFA588 the departure advisory and clearance and informed them that they cannot taxi onto the manouvering [sic] area without informing me. They replied 'we check' after their departure. I asked ZQM to get KFA588 to call me on 126.7. They did so, and I then informed them of their violation, and obtained the pilot's name, and license number. They then switched back, and made a uncalled for remark to ZQM."

According to the Infraction Report, weather at the time was not a problem.

DETERMINATION

In my opinion, this adjudication requires two determinations:

  1. Did an infraction take place, and what are its implications?
  2. What weight obtains to the Soden submission?

A consideration of these matters, in my opinion. must conclude:

1.1 (a) An infraction occurred, if only because, in the strict wording of the Air Navigation Order, it has been established by the tape and in sworn evidence. Even having regard to the written submission by Mr. Soden, I am unable to find otherwise.

Mr. Soden states in paragraph three of his submission: "our intentions were known by the M.F. Operator, as he even gave us the runway to use, as excerpted from the tape."

However, my reading of the transcript, as submitted, indicates that, while the operator stated the runway to use, he did not specifically give a clearance to that runway. (transcript page 2, line 22: "Roger advise ready for taxi - I'll put yours on request for runway 11")

Notwithstanding, several concomitant and pertinent facts apply:

(b) The alleged offence occurred at approximately 4:00 a.m. Traffic at that time consisted of only one other aircraft, somewhere in the control zone or perhaps even beyond it at the time KFA588 reached the intersection of TWY C and Runway 11. It is not stated. But circumstances do alter cases. If it were not so, Logan Field, Boston or Pearson, Toronto should have the same operating regulations as Ancienne Lorette, Quebec. Of course, they do not.

(c) The tape upon which the Minister's evidence hinges is a "compressed" tape. In other words, the Flight Service Operator, Mr. Tremblay, cannot corroborate, except by his own testimony, exactly where the aircraft was in relation to what was said at what point in time. He heard a noise which prompted him to move to a position where he could make a visual check. In short, time and distance cannot be directly related in the evidence presented. The tape is not a "real time" record.

(d) Notwithstanding, it may be argued that the aircraft ought not to have moved at all from its original position. How, then, did it get to Runway 11 without apparent authorization?

The most likely view must be that it simply moved without authorization. That is possible. At 4:00 a.m. on an "uncontrolled" airport with only one other aircraft already airborne and, maybe, not even in the control zone, and with Flight Service not able to have visual contact, it is conceivable that the commanding officer elected to proceed on the proposition that he alone, and his First Officer, had the best purview of the field.

Whether or not his First Officer did, in fact, (as he stated in Mr. Soden's submission) communicate with FSS, Moncton is left to conjecture. One may assume, simply because the tape does not contain the information, that he did not. One must also, again, understand the tape is "compressed". What degree of "compression" is not stated. One might assume it is 10% in one place and 1,000% in another. Or maybe not.

1.2 (a) Assuming an infraction did occur, I find it can only be in the strict assessment of the word. The penalty under these circumstances must be minimal.

It was approximately 4:00 a.m. There were no unusual events taking place. At most there was one other aircraft in the entire control zone. There were apparently no other aircraft traversing the ground at the Moncton airport at that time. From stated evidence, the FSS operator had only 5% to 10% visual reference to the outside when in his seated normal working position.

(b) the Moncton airport, at that hour, was considered by Transport Canada, and therefore by the traffic within the zone at that hour, to be an "uncontrolled" airport.

One might argue that the "infraction" cited was as much the cause of the Minister and his subordinates as it was of the captain of KFA588. Attempting to "control" an uncontrolled airport at 4:00 a.m. with only 5 to 10% vision and by reacting to the sound of an aircraft going by the window is hardly normal procedure. Or, if it is, it ought not to be.

Further, from my reading of the transcript, I consider that the FSS operator's original intention was simply to warn KFA588 that it had committed an infraction: "Your readback is correct time is 0757 advise rolling and er for your information you're not supposed to taxi onto the manoevering [sic] area without contacting the ground unit."

The punctuation of the written transcript submitted by the Minister's officers is inexact. However, my hearing of the tape itself reinforces my view that the operator only subsequently (whether seconds or minutes later is unknown with the "compressed" tape submitted) came to a decision to cite the captain of the aircraft for an infraction. Indeed, his subsequent decision to declare an infraction may only have occurred upon consultation with others after the fact. One cannot determine one way or the other.

Certainly his tone and wording at the time of the incident, or indeed at commencement of take-off, seemed to indicate no particular urgency and, rather, that he wished to pass on useful, wise and helpful advice for future reference. Indeed, the tone of communication from both FSS and from the aircraft appeared, if not cordial, at least businesslike and nonemotional.

2.1 The weight to be given to Mr. Soden's submission of December 22, 1994.

He alleges outright lying by Transport Canada employees.

In addition, he alleges, in effect, a form of blackmail by Transport Canada employees. "I have no idea why TRANSPORT CANADA continued with it but can state, that it is my opinion it was initiated in retribution for our refusal to accept requests for 'rides' from FSS staff."

These are not insignificant allegations, even though they are not before me as evidence given under oath.

Had Mr. Soden come forward to give evidence which challenged the credibility of Transport Canada, I would have been required to make the necessary decisions in this regard. However, this is not that case.

In paragraph six of Mr. Soden's submission, he states: "As to the discussion on page five, whether or not the operator was the one involved in the 'problems the other night'; his statement is nothing less than a blatant lie, as the crew involved was none other than Brian Holmes and myself. I checked my records as soon as I returned to St. John's, and confirmed the operators [sic] name. Brian made a long distance call from St. John's on the morning of the problem and phone records and log books would verify my position."

Unfortunately, Mr. Soden does not offer evidence of any kind to corroborate his allegation. Who is Mr. Holmes? To whom did he make a long distance call? About what? What phone records? What log books? What entries? All is left to conjecture.

Mr. Soden's submission, therefore, can only carry the weight — at best — of a personal opinion, in my view. Had it been a sworn statement or had it contained sworn testimony by Mr. Holmes or even reprints of log entries, attested as true and correct, it might be a different matter. None of this was offered.

Presented, on the other hand, by the testimony of Transport Canada's officers, duly sworn and under oath, and faced ultimately with the direct acknowledgement by KFA588 that, if the runway was active, "then you wouldn't have known" (transcript, page 3, lines 25, 26 and 27), I must decide for the Minister.

The nature of the occurrence and the tone of communications leaves me to believe that, at the time, Mr. Tremblay had decided a warning was sufficient. The matter appears subsequently to have taken on larger proportions.

I find that James Peter Soden did contravene subsection 7.3(3) of the Aeronautics Act, as alleged by the Minister, but I reduce the amount of the fine to $1.

Orville Pulsifer
Member
Civil Aviation Tribunal


Appeal decision
Ken Clarke, L.R. Ohlhauser, Linda P. Thayer


Decision: May 1, 1996

The Tribunal allows the Appeal. The Review Determination and assessment of monetary penalty are hereby dismissed.

By agreement, this Appeal proceeded by way of written submissions.

BACKGROUND

James Soden is appealing the Tribunal's Review Determination of March 2, 1995. In the Determination at first instance, the Tribunal confirmed the Minister's decision and assessment of a $100.00 monetary penalty.

The events giving rise to the Appeal occurred on May 17, 1994, when it was alleged that Mr. Soden, as pilot-in-command of a Convair 580, departing Moncton, New Brunswick failed to report his departure procedure and intentions before moving onto the runway, in contravention of paragraph 5(l)(a) of the Air Navigation Order (ANO), Series V, No, 11. The alleged incident occurred during the very early morning. No conflicting traffic was reported. Visibility of the flight service station operator was environmentally limited. Weather was favourable for Visual Flight Rules.

GROUNDS FOR APPEAL

The grounds for appeal can be summarized as follows:

1. Insufficient weight was given to the Appellant Soden's submission.

2. The Tribunal "assumed" an infraction occurred.

3. There was no requirement to receive clearance to manoeuvre in the circumstances.

4. The airport was uncontrolled at the time.

5. The Appellant's intentions were broadcast twice on the appropriate frequency in the form of a clearance being given and read back before aligning the aircraft with the take off path.

6. The conversation occurred while the Appellant, Soden was on taxiway C as stated in the FSS Operator's statement.

7. The conversation was initiated by flightcraft (Soden) as borne out by the tape recording.

8. The airport was VFR at the time.

REPRESENTATIONS BY THE PARTIES

The Appellant's position is as set out in the grounds for appeal above.

The Respondent submits that the Tribunal did not commit a reviewable error in concluding that it was "more probable than not" that the Appellant Soden contravened paragraph 5(1)(a) of ANO Series V, No. 11. The Respondent submits that findings of fact should not be overturned on Appeal, unless there is an entire absence of evidence to support the conclusion, or notwithstanding there is some evidence concerning the finding, it is nonetheless unreasonable and incapable of being supported by the evidence and cites Minister of Transport v. Trent Wade Moore (CAT File No. C-0138-33) in support.

The Respondent submits that, based on the evidence before the review member, no reviewable error was made in concluding that a contravention had occurred or in confirming the $100.00 monetary penalty.

CONCLUSION AND REASONS FOR DETERMINATION

The Appeal Panel finds that the Tribunal Member at the Review erred in concluding that an infraction of paragraph 5(1)(a) of ANO Series V, No. 11 occurred, on the grounds that the Minister's evidence failed to establish the factual elements of the infraction on the balance of probabilities: the Tribunal therefore erred in finding an infraction in the absence of sufficient evidence to support such a finding.

Paragraph 5(1)(a) of ANO Series V, No. 11, IFR Flight Position Reports Order, states:

5.(1) Where a pilot-in-command intends to take off from an uncontrolled aerodrome, he shall

(a) report on the appropriate frequency his departure procedure and intentions before moving on to the runway or before aligning the aircraft on the take off path; ...

The central question before the Tribunal of the first instance was:

Did an infraction [of ANO V, No. 11, 5(l)(a)] take place, and what are its implications? (Review Determination, page 5)

The Tribunal concluded:

An infraction occurred, if only because, in the strict wording of the Air Navigation Order, it has been established by the tape and in sworn evidence. (Review Determination, page 5)

The Tribunal in the first instance appears to base this conclusion on its finding that:

while the operator stated the runway to use, he did not specifically give a clearance to that runway. (Review Determination, page 6)

In deciding whether or not Mr. Soden had committed the infraction as alleged, the Tribunal in the first instance necessarily had to have proof on the balance of probabilities of the factual elements of the alleged infraction, in this case paragraph 5(1)(a) of ANO V, No. 11.

In order to prove a contravention of paragraph 5(1)(a) of ANO V, No. 11, the Minister needed to establish the following facts:

(a) The document holder, Mr. Soden, was the pilot-in-command of an aircraft;

(b) That his intent was to take off from an uncontrolled aerodrome; and

(c) That he failed to report on the appropriate frequency his departure procedure and intentions before moving onto the runway.

These were the necessary elements required to be proven by the Minister and found by the Tribunal to support a conclusion that an infraction had occurred.

The Minister's evidence set out in the record establishes facts (a) and (b) above, namely, that Mr. Soden was the pilot-in-command of an aircraft and that he intended to take off from an uncontrolled aerodrome. However, fact (c) was never established on the evidence, nor was it found as a fact. On the contrary, the evidence on the face of the record establishes that the Appellant did report on the appropriate frequency his departure procedure and intention at least two minutes before moving onto the runway, when he requested clearance to St. John's.

The transcript, from the "compressed" tape record of the alleged incident (Minister's Exhibits M-3 and M-4), reproduced in the body of the Review Determination establishes that the Appellant reported his departure intentions by "requesting clearance" on the appropriate frequency, and advising that he would be ready to taxi in about two minutes, before moving onto the runway.

KFA588 Moncton Radio it's Flightcraft 588 request clearance to St. John's.

FSS Flightcraft 588 Moncton Radio are you ready for taxi at this time?

KFA588 Er in about another two minutes we'll be ready

(emphasis added)

It is clear on the face of the record that the Appellant's intentions were broadcast on the appropriate frequency in the form of an IFR clearance being requested before the Appellant moved onto the runway. At this uncontrolled airport, at that time, with the weather as it was, in requesting IFR clearance to St. John's on the FSS frequency, the Appellant satisfied the ANO in question in that he "reported his departure intentions" as required. There is no further requirement under the ANO in question to obtain clearance to move onto the runway, once departure intentions have been reported.

Had the legislature intended under paragraph 5(1)(a) of ANO Series V, No. 11, that the pilot obtain permission/clearance to move onto the runway after reporting his departure intentions, it would have said so. It has not. It has required only that the pilot report his departure intentions prior to moving onto the runway. That is what he did.

We therefore find that the Tribunal erred in law in reaching the conclusion that an infraction had occurred where the evidence was insufficient to support the factual elements necessary to prove the alleged infraction. The Tribunal erred in law in finding an infraction where the Minister had failed to prove his case on the balance of probabilities, and where the evidence supported the opposite conclusion.

Under the particular circumstances which existed at the time and for the reasons set out above, the Tribunal's Review Determination dated March 2, 1995 is overturned, and the Appeal Panel's Determination is substituted therefor.

For the above reasons, the Tribunal grants the Appeal and overturns the Tribunal's Review Determination and Assessment of Monetary Penalty.

Reasons for Appeal Determination by:

Linda Thayer, Member

Concurred:

Ken Clarke, Member
Dr. Larry Ohlhauser, Member