Decisions

TATC File No. O-2875-39
MoT File No. PAP5504-47386

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

John Royds, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 7.7, 8.5
Canadian Aviation Regulations, SOR/96-433, s. 801.01(2)

Taxiing, Limitation Period, Air traffic control clearance, Due diligence


Review Determination
Hebb C. Russell


Decision: July 19, 2004

Mr. John Royds did not contravene subsection 801.01(2) of the Canadian Aviation Regulations. Therefore, the Notice of Assessment of Monetary Penalty is set aside.

A review hearing on the above matter was held Tuesday, March 23, 2004 at 10:00 hours at the Sheraton Gateway Hotel in Toronto, Ontario.

BACKGROUND

This review hearing is being held to review the allegation against Mr. John Royds:

Pursuant to section 7.7. of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Section 801.01(2) of the Canadian Aviation Regulations: No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.

On June 15, 2002 at around 18:56Z, while you were responsible of the Hamilton ground control position, you did not assure the minimum applicable standard separation between Air Georgian Limited flight 022 (GGN022) and a Beech C-23 aircraft, C-FQPP, by permitting GGN022 to taxi across runway 24 as C-FQPP was taking off runway 24.

Monetary Penalty Assessed: $250.00

THE LAW

Section 801.01 of the Canadian Aviation Regulations (CARs) provides:

801.01 ...

(2) No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards. [version in force 2002-06-15]

The Canadian Domestic Air Traffic Control Separation Standards – 821:

Chapter 1 – VISUAL SEPARATION

2.5 Separation of Taxiing Aircraft from Aircraft using the Runway

Taxiing aircraft shall be held until traffic using the runway has passed the point at which the aircraft is holding:

(a) at a taxi holding position, if one has been established;

(b) at least 200 feet from the edge of the runway, unless other holding positions are established by markings or signs; or

(c) at a sufficient distance from the edge of the runway to ensure that no hazard is created to arriving or departing aircraft, if it is not possible to comply with (a) or (b).

THE ISSUE

On June 15, 2002 at around 18:56Z at CYHM (Hamilton Ontario Airport), an Air Georgian, Cessna Caravan aircraft, flight GGN022, was permitted to taxi across runway 24 while another aircraft, a Beech C-23 registration C-FQPP, was taking off. Mr. Royds was the ground controller at the time and issued the clearance to GGN022.

Transport Canada takes the position that Mr. Royds did not assure the minimum applicable distance between GGN022 and C-FQPP and that he permitted GGN022 to taxi across runway 24 as the Beech C-23, FQPP was taking off on runway 24.

Mr. Royds takes the position that the air controller had given him authorization for GGN022 to cross runway 24, behind the Beech, and this he did with the understanding that the Beech being referred to was the Beech 18, GZCE which at this time was still backtracking runway 24 and not the second Beech which was a Musketeer, FQPP.

EVIDENCE

Transport Canada Inspector Paré, through a series of questions presented by Case Presenting Officer, Mr. Larry Lipiec, and assisted by exhibits and documentary evidence, explained Transport Canada's interpretation of the sequencing and timing of events at the Hamilton Airport (CYHM) of June 15, 2002 at approximately 18:56Z.

Mr. Paré made note of the following times and events, which form part of the ground and tower tape transcripts (Exhibits M-8 and M-9).

TIME

AGENCY

COMMUNICATIONS

18:44:59

Ground

Quebec Papa Papa just check the ah Citation entering the apron at ah Kilo and ah after that aircraft has ah gone by you there, you can taxi via Kilo, Alpha, Foxtrot, Charlie, Hotel hold short of runway two four.

18:45:56

Ground

(garbled) Charlie Echo, you may or may not see traffic opposite direction he's crossing runway twenty-four on Charlie but will hold short of ah Hotel for you.

18:46:33

Ground

Mike ah correction Quebec Papa Papa taxi Foxtrot but hold short of three zero left.

18:48:13

Ground

And Quebec Papa Papa thank you, continue now via Charlie Hotel hold short of two four.

18:50:54

Ground

Georgian Zero Two Two roger, departure ah runway's twenty four, altimeter two niner five three, taxi via Charlie and ah hold short of Hotel for now.

18:51:49

Tower

Zulu Charlie Echo, backtrack to position two four.

18:54:01

Tower

Zulu Charlie Echo, cleared for take-off runway two four.

18:55:06

Tower

Quebec Papa Papa, from the intersection of Hotel, cleared for take-off runway two four.

18:55:22

Ground

Zero Two Two I'd like you to cross runway twenty four now on Charlie [...]

18:55:30

GGN022

OK cross two four on Charlie and up to the hold line on runway thirty but hold short Georgian Twenty Two.

During cross-examination, it was Mr. Paré's opinion that from the audio it was obvious that someone, the ground controller, broke CARS. He stated that you must go by CARS and therefore the aircraft that violated was the taxiing aircraft and not the take-off aircraft, therefore concluding that the ground controller was the one that broke CARS. There was a 16 second delay between when QPP was cleared for take-off and GGN022 was cleared to cross runway 24. It was Mr. Paré's opinion that Mr. Royds should have heard QPP get his take-off clearance on speaker and that he used poor coordination.

Mr. Royds called his witness Ms. Kelly Rogers to testify. Ms. Rogers gave testimony that she is licensed to work both air and ground positions at CYHM and would estimate the distance between the air and ground control working stations at about 15 feet. When asked to describe the relative position of the two working stations, she drew a picture indicating that the ground controller would be working at the air controller's 4 to 5 o'clock, which is to the rear and off to the right.

There were then a series of questions regarding what conversations could be heard from the adjacent controller as well as radio communications through the other working station speaker. In answering these questions, she stated that, when you are working at either station you do not hear every communication made by the controller to aircraft and aircraft communications through the other controller's speaker. She further stated that you are not mandated to know what is happening with the adjacent controller but that it does help. Ed Gracey was the air controller during this occurrence and she believed that he had over 33 years experience. She has two years experience co-ordinating with him when she was working as the ground controller. She stated that she does not hear all of his radio transmissions as he spoke quite softly and, as a personal preference, he keeps his speaker on very low.

Prior to this incident, there were no NAV CANADA rules regarding the use of conditional clearances from one controller to another controller. It was an accepted practice and frequently used between controllers. However, subsequent to this incident there were two Operational Letters issued by the tower manager at CYHM. These letters are to be used as a guide for clarification purposes only and are not to supersede MANOPS.

Exhibit D-3 Operations Letter OL 02-08 dated July 10, 2002 cancels OL 02-06:

SUBJECT: Taxi, Authorization/Frequency Change

[...]

2. Crossing/Transiting Active Runways

A. It is essential that both the Ground and Airport controllers maintain an awareness of the location of pertinent traffic on or crossing active runways. Effective immediately, when vehicles or aircraft on the Ground control frequency need to cross or transit along an active runway, the Airport controller shall not issue conditional approvals e.g. behind an arriving or departing aircraft.

The point was then raised regarding the contentious issue of which Beechcraft was the intended aircraft in the conditional clearance issued by the air controller.

Exhibit M-9 :

18:55:15

Tower

Kilo Quebec Victor taxi to position runway two four at the intersection of Hotel. Number two for departure behind the Cherokee.

18:55:23

FKQV

O-K, we'll go to position behind the traffic, Kilo Quebec Victor.

18:55:26

Tower

Behind the Beech.

18:55:28

FKQV

I knew that's what you meant.

[emphasis added]

All hold short lines must be a minimum of 200 feet from all runways. In the case of taxiway Charlie and runway 24 they are at 90 degrees to each other, whereas taxiway Hotel intersects runway 24 at an angle of approximately 45 degrees. Therefore FQPP, at the hold short line on Hotel, would have to travel further to get to the centre line of runway 24 than GGN022 would have to travel from the hold short line on Charlie to cross runway 24.

Ms. Rogers under cross-examination read Exhibit M-14, MANOPS subsection, 308.1: "Airport and Ground controllers shall visually scan the manoeuvring area thoroughly before issuing clearances or instructions to airport traffic, and, to the extent possible, at other frequent intervals." [emphasis added] When asked what the term "shall" meant, she responded "always."

Mr. Royds testified that on June 15, 2002 he was working as the ground controller and Mr. Gracey was working as the air controller. Mr. Royds intended to cross the GGN022 aircraft to a point where it would not delay other aircraft while he waited for a flow control (slot) time from Toronto. He observed Mr. Gracey clear Beech 18, ZCE to take-off position on runway 24. At this time, Mr. Royds requested a crossing clearance from Mr. Gracey. Mr. Gracey then gave authorization to Mr. Royds to give taxi clearance to cross the active runway 24, after the Beech. Mr. Royds claimed that he logically and correctly thought he meant the aircraft back tracking for take-off. All he knew was that he was authorized to cross runway 24 after the Beech 18 had passed taxiway Charlie. Mr. Royds claimed that the exact time is on the transcript. Besides waiting for ZCE to take off and pass Georgian 022 at its holding point, short of Hotel taxiway on Charlie taxiway, Mr. Royds was also waiting for a flow control time from Toronto. Within a few seconds of ZCE taking off, which Mr. Royds claimed he saw and heard take off, he instructed GGN022 to cross runway 24. He saw GGN022 move on taxiway Charlie and there was no other aircraft on runway 24 at that time.

At that time the fax machine delivered the flow control estimate from Toronto ACC for

GGN022. Mr. Royds turned to his right, retrieved the fax, read the flow control time on it and then turned back to see GGN022 almost finished crossing runway 24. He then observed FQPP moving on runway 24, taxiing from Hotel taxiway which was his take-off point. Mr. Royds claimed FQPP was moving down runway 24 at a normal taxi speed and came to a stop midway between Hotel and Charlie taxiways. He then heard the air controller instruct FQPP to hold his position.

Mr. Royds, still as a witness, raised the following issues:

The tape transcript indicated a time of 16 seconds from the time the air controller cleared FQPP for take-off at 18:55:06, until he, as the ground controller, authorized GGN022 to cross runway 24 at 18:55:22. Based on Mr. Royds' 30 years of ATC experience, it is his opinion that for any aircraft to taxi from the hold short line on Hotel taxiway, then taxi the distance up Hotel, negotiate a turn of some 135 degrees in order to line up on the centre line of runway 24, it would take a minimum of 30 to 35 seconds. That is why, when he cleared GGN022 to cross runway 24 he saw there was no aircraft on runway 24 at that time.

Mr. Royds presented Exhibit D-5, a level 1 investigation, NAV CANADA Fact Finding Board Report, of the irregularity involving GGN022 and C-FQPP at the Hamilton Airport on June 15, 2002. It was brought to the Tribunal's attention by Transport Canada that this report was dated August 12, 2002 and that it was a preliminary report only. It was compiled from ATC tower tape data, along with written and verbal reports from both controllers that were given to the unit manager and not directly to the author of the NAV CANADA report.

Mr. Royds was of the opinion that an exorbitant amount of time had taken place, a total of some 19 months, between when this incident occurred and today's date.

Under cross examination, Mr. Lipiec asked Mr. Royds if he saw QPP on the runway before he issued the taxi clearance to Air Georgian. Mr. Royds answered that he did look at the runway, as this has been his standard habit for 30 years, before issuing taxi instructions.

ANALYSIS

The Tribunal's determination on Mr. Royds' issue of time limitations?

Aeronautics Act, section 26:

No proceedings under sections 7.6 to 8.2 or by way of summary conviction under this Act may be instituted after twelve months from the time when the subject-matter of the proceedings arose.

The time of this infraction was June 15, 2002 and Transport Canada's subsequent Notice of Assessment of Monetary Penalty, dated June 6, 2003, was nine days less than the twelve-month limitation. The Tribunal is therefore dismissing Mr. Royds' defence of there being an exorbitant time delay regarding this issue.

The Tribunal's initial deliberation must be to determine if there was a violation of CARs, which is a strict liability offence, and secondly, if there was a violation, should this violation be attributable to the actions of Mr. Royds?

Firstly, with regards to a violation:

Data obtained from Exhibits M-8 and M-9, in conjunction with Mr. Royds' forthright statement that he observed that GGN022 had almost finished crossing runway 24 when he also observed QPP moving on runway 24 from Hotel taxiway at approximately taxi speed and came to a stop midway between Hotel and Charlie taxiways. The Tribunal finds this statement, in conjunction with the data obtained from the ATC tape transcripts, give an accurate account of this incident.

To be precise, QPP had to taxi from the hold short line on Hotel taxiway, out onto runway 24, complete a 130 degree turn into runway take-off position, accelerate down the runway, abort his take-off, and then come to a stop half way between taxiways Hotel and Charlie, all in 58 seconds.

QPP, while at the hold short line on Hotel taxiway, was cleared for take-off on runway 24, at 18:55:06. GGN022 was cleared to taxi across runway 24, 16 seconds later at 18:55:22. At 18:56:04 the air controller subsequently cancelled the take-off clearance for QPP, by issuing the instruction "QPP, hold your position there". By QPP travelling down the active runway, thereby using up valuable usable runway, indicates that the pilot's intent was to take off and therefore take-off power must have been set. With take-off power set, QPP would then be in the take-off phase of flight and subsequently the pilot must have seen a conflict with his aircraft and GGN022 being on the same runway. Deeming it unsafe, the pilot on his own initiative then must have aborted his take-off well before receiving the instructions from the air controller to hold his position. This evidence would indicate that GGN022 had not vacated runway 24 sufficiently to satisfy the pilot of QPP of safe aircraft separation.

The Tribunal therefore agrees with Transport Canada that there was a violation of the CARs and that the minimum separation standard for aircraft taking off and taxiing was not met.

Secondly, with regards to attribution:

Transport Canada's position is that it was Mr. Royds, who as the acting ground controller, issued the taxi clearance to GGN022 to taxi across runway 24 after the air controller issued a take-off clearance to C-FQPP, thereby causing this violation.

It is Mr. Royds position that it was the air controller, Mr. Gracey, who gave him the authorization to cross runway 24 with GGN022 behind the Beech, and that Mr. Gracey subsequently just plain forgot his initial clearance and issued a take-off clearance to C-FQPP, thereby causing the violation.

The Tribunal feels conditional clearances are a major attributable factor in this incident. When Mr. Royds requested authorization from Mr. Gracey to have GGN022 cross runway 24, the response was that he could do so "behind the Beech", which is a conditional clearance. Mr. Royds stated that it is standard operating procedure of NAV CANADA that no ATC conditional clearances be issued or used by any controller when issuing instructions to aircraft, (Exhibit M-14, MANOPS 303.3). Prior to this incident there was no written rule prohibiting the use of conditional clearances between controllers themselves. However, subsequent to this incident the Hamilton tower manager issued a series of Operational Letters culminating with a note attached to:

Operations Letter OL 02-08, dated July 10, 2002, No. 2A:

It is essential that both the Ground and Airport controllers maintain an awareness of the location of pertinent traffic on or crossing active runways. Effective immediately, when vehicles or aircraft on the Ground control frequency need to cross or transit along an active runway, the Airport controller shall not issue conditional approvals e.g. behind an arriving or departing aircraft.

It is most unfortunate that the Tribunal does not have the testimony or statement from Mr. Gracey, the air controller, which would verify his intentions. Furthermore, the Tribunal was not provided with statements from either pilot of GGN022 or C-FQPP. This valuable information would have provided greater clarification of the incident.

The Tribunal agrees with both parties when they state that aircraft misidentification was a major contributing factor in this incident. In the first instance, Mr. Royds thought ZCE, the Beech 18, was the aircraft that the air controller was referring to. Then we see in Exhibit M-9, the air controller confuses QPP with a Piper Cherokee, which has an almost identical profile as a Beechcraft Musketeer:

18:55:15

Tower

Kilo Quebec Victor taxi to position runway two four at the intersection of Hotel. Number two for departure behind the Cherokee.

18:55:23

FKQV

O-K, we'll go to position behind the traffic, Kilo Quebec Victor.

18:55:26

Tower

Behind the Beech.

18:55:28

FKQV

I knew that's what you meant.

The Tribunal agrees with the respondent's defence that, when he checked runway 24, as per MANOPS 303.3, that there was no aircraft on the runway and QPP was not there. Mr. Royds states in his testimony that it is his opinion that due to the time required for QPP to taxi from the hold short line to runway 24, it is probable that the aircraft was not yet on runway 24 when he completed his scan. Therefore, Transport Canada's position that Mr. Royds did not check runway 24 before issuing his taxi clearance is a questionable point.

The Tribunal considered the issue of the hold short lines located on Hotel and Charlie taxiways and the time and distance that GGN022 and QPP would have to travel in order to come into conflict with each other. The Tribunal is of the opinion that this issue is only relevant with regards to the runway being vacant or not, and not an issue regarding who is to be ultimately responsible for this violation. Therefore this is not a factor to be considered as far as imputability.

It is Transport Canada's opinion that Mr. Royds should have heard on speaker, QPP get his take-off clearance, and that he used poor coordination. Exhibit M-8 provides proof that the ground controller was tied up on the Toronto ATC line starting at 18:55:03 and during the time when the air controller cleared QPP for take-off at 18:55:06. It is this Member's opinion that this would have diverted Mr. Royds' attention making it highly improbable that he would have heard the air controller issuing the take-off clearance to the Beechcraft QPP.

NAV CANADA Fact Finding Board Report (Exhibit D-5) was published some two months following this incident. The Tribunal views this as an in-house report compiled from written and verbal reports from both controllers as well as ATC tower tape data produced by the tower manager at the Hamilton ATC installation. It is important to note that this report does not find Mr. Royds responsible for this incident and that the issue of conditional clearances was found to be a contributing factor.

CONCLUSION

In reviewing documentary and testimonial evidence on this issue, the Tribunal determines that there was a violation of subsection 801.01(2) of the CARs. However, for the above listed reasons, the Tribunal finds that Transport Canada was unable to prove that this incident was attributable to Mr. Royds' actions alone. Furthermore, it finds Mr. Royds did not break CARS or any NAV CANADA written procedures that were in effect at that time and as such should not be held responsible by his actions alone.

DETERMINATION

Mr. John Royds did not contravene subsection 801.01(2) of the CARs. Therefore, the Notice of Assessment of Monetary Penalty is set aside.

Hebb C. Russell
Member
Transportation Appeal Tribunal of Canada


Appeal decision
Allister W. Ogilvie, Frank Morgan, Richard F. Willems


Decision: December 7, 2004

We find that Mr. Royds did contravene subsection 801.01(2) of the Canadian Aviation Regulations and did not exercise all the attention and care expected of him as an air traffic controller in the circumstances of that day. We allow the appeal. The $250.00 penalty will stand. The total amount of $250.00 is to be made payable to the Receiver General for Canada and must be received by the Tribunal within fifteen days of service of this determination.

An appeal hearing on the above entitled matter was held Wednesday, October 27, 2004 at 10:00 hours at the Federal Court of Canada in Toronto, Ontario.

BACKGROUND

On June 15, 2002, at approximately 18:56Z at the Hamilton Ontario airport, an Air Georgian Cessna Caravan aircraft, flight GGN022, was cleared to taxi across runway 24 while another aircraft, a Beech Musketeer C-23, registration C-FQPP, was taking off on runway 24. Mr. John Royds was the ground controller on duty. He had issued the clearance for GGN022 to cross the runway.

Transport Canada investigated the occurrence and alleged an infraction of the regulations in the following form:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Section 801.01(2) of the Canadian Aviation Regulations: No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.

On June 15, 2002 at around 18:56Z, while you were responsible [for] the Hamilton ground control position, you did not assure the minimum applicable standard separation between Air Georgian Limited flight 022 (GGN022) and a Beech C-23 aircraft, C-FQPP, by permitting GGN022 to taxi across runway 24 as C-FQPP was taking off runway 24.

Monetary Penalty Assessed: $250.00

A hearing of the matter was held before a single Member, Mr. H. Russell, on March 23, 2004 in Toronto Ontario.

The Member concluded that Mr. Royds did not contravene subsection 801.01(2) of the Canadian Aviation Regulations (CARs). The Notice of Assessment of Monetary Penalty was set aside.

The Minister appeals that decision.

GROUNDS OF APPEAL

The Minister's grounds of appeal were stated in the following form:

  1. The Member erred in law in interpreting the law of due diligence;
  2. The Member erred in law in applying the law of due diligence to the facts of the case;
  3. The Member's finding of fact, that Mr. Royds did not contravene section 801.01(2) of the Canadian Aviation Regulations because the contravention was partly attributable to someone else, is patently unreasonable.
  4. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

THE LAW

Section 801.01 of the CARs provides:

801.01 ...

(2) No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards. [Version in force 2002-06-15]

The Canadian Domestic Air Traffic Control Separation Standards - 821:

CHAPTER 1 - VISUAL SEPARATION

...

2.5 Separation of Taxiing Aircraft from Aircraft using the Runway

Taxiing aircraft shall be held until traffic using the runway has passed the point at which the aircraft is holding:

(a) at a taxi holding position, if one has been established;

(b) at least 200 feet from the edge of the runway, unless other holding positions are established by markings or signs; or

(c) at a sufficient distance from the edge of the runway to ensure that no hazard is created to arriving or departing aircraft, if it is not possible to comply with (a) or (b).

ANALYSIS

The Member concluded that there had been a violation of subsection 801.01(2) of the CARs. He found that Transport Canada had been unable to prove that the incident was attributable to Mr. Royds' actions alone.

Issue

The issue is whether the Member erred, in that having found that a violation had occurred, he nevertheless found that it was not attributable to Mr. Royds because Transport was unable to prove that the incident was attributable to Mr. Royds' actions alone.

Held

We hold that such a finding is unreasonable and therefore allow the appeal for the following reasons:

The hearing Member expressed his agreement with Transport Canada that there had been a violation of the regulation in that the minimum separation standard for the aircraft taking off and taxiing had not been met. We agree with that finding of fact as the evidence established that Georgian 022 was taxiing across runway 24 while C-FQPP was using the same runway for a take-off. It can be seen that the action of one aircraft taxiing and another taking off on the same runway at the same time is contrary to the established Standards as listed above.

Tribunal jurisprudence has followed the seminal case of Sault Ste. Marie[1] in recognizing that most regulatory offences are offences of strict liability. The Aeronautics Act recognizes that fact by legislating a defence of due diligence at section 8.5.

The Shermet[2] case declared that once the party alleging the contravention has proved the constituent elements of a strict liability offence, the onus shifts to the alleged offender to prove on a balance of probabilities that he exercised all due diligence to avoid commission of the offence.

The Member did determine that there had been a violation of the regulation. He did not undertake an analysis of Mr. Royds' possible due diligence per se but addressed attribution. In his conclusion he stated that Transport Canada did not prove that the incident was attributable to Mr. Royds alone. He stated that Mr. Royds should not be held responsible by his action alone. We must then infer that he felt the responsibility for the violation must be attributable to a person(s) and/or circumstances in addition to Mr. Royds.

Our view can be verified by a reading of the Member's analysis. He maintains that conditional clearances (approvals) were a factor as was aircraft misidentification. He also laments not having the testimony of others involved such as the air controller and the pilots of the aircraft. He makes mention of NAV CANADA's Board Report which he notes did not find Mr. Royds to be responsible.

The Member found Mr. Royds not to be responsible for the violation because it was not attributable to him alone. We find that to be an unreasonable conclusion.

The Member did not offer any authority for the proposition that not being exclusively responsible for an act exculpates a person from that part of the responsibility for the act that he did bear.

It has been recognized in Tribunal jurisprudence[3] that the Minister has discretion with respect to the charges it brings and against whom it brings them.

A Civil Aviation Tribunal case[4] also under subsection 801.01(2) is illustrative of the point. Mr. Décary was an air controller who had cleared an aircraft to land on a particular runway while another aircraft was taxiing on the same runway. He was charged with a violation.

The reviewing Member ruled that responsibility for the conflict was shared by both the air and ground controller. But the notice of assessment of monetary penalty named only the air controller, not both. The Member found that the notice was inconsistent with the facts and the law. He dismissed the case on that basis.

On the appeal of that decision the Panel found that the fact that someone else may have committed the same offence was not a valid defence for preventing the Minister from proceeding against the person he believes committed the offence.

According to that Panel the Member reasonably concluded that Mr. Décary had, if not contravened, at least contributed or participated in the commission of the offence. In that case the charge should have been maintained. If it was established that Mr. Décary had committed the offence in question, the Member then should have decided if a defence of due diligence had been made out.

As the Member in this instance found that Mr. Royds should not be held responsible for his action alone, it must be that he at least contributed or participated in the commission of the offence. Therefore the Member should have upheld the charge and went on to consider the defence of due diligence.

In the analysis he recognized that a violation of the CARs had occurred and that it was a strict liability offence. As regards due diligence the Member did not make a definitive finding. He stated that misidentification of aircraft was a contributing factor. He did agree with the Respondent's defence that there was no aircraft on the runway when it was visually checked. He found that Mr. Royds' attention had been diverted while receiving communications from Toronto air traffic control (ATC) that would have made it improbable that he could have heard the take-off clearance issued by the air controller to QPP.

The Marsh[5] case has provided guidance as to what constitutes due diligence. It stated that:

Diligence is defined as 'the attention and care legally expected or required of a person.' 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.

We find that Mr. Royds did not exercise due diligence regarding the aircraft misidentification issue. Mr. Royds did not identify on the aircraft strip that QPP was a Beechcraft. When receiving the conditional approval, knowing that two Beechcraft were on the field, he did not ask for clarification as to which Beech the air controller was referring.

We are loath to interfere with a finding of fact by the Member. He accepted Mr. Royds' defence that he had properly checked (scanned) the runway and that there was no aircraft on the runway nor was QPP there when he issued the clearance.

We find that due diligence would not have been exercised when Mr. Royds was distracted by calls coming from ATC and receiving a fax from flow control duties as he was about to issue the clearance to taxi for GGN 022.

CONCLUSION

The hearing Member found that a violation of subsection 801.01(2) had occurred. That regulation and accompanying standard provides for the separation of taxiing aircraft from aircraft using the runway. Mr. Royds issued the clearance for GGN022 to taxi across a runway on which another aircraft had already received a take-off clearance. At some point both aircraft were occupying the active runway. The Member found that Mr. Royds was not responsible alone. But we find that he must bear some responsibility for that incursion.

The Member found that there were extenuating circumstances that contributed to the offence such as the usage of conditional clearances (approvals) and aircraft misidentification. Those circumstances may have been addressed to mitigate the penalty but did not act to alleviate the responsibility. However, as those arguments were not taken up before us, we will not alter the penalty.

We hold that Mr. Royds did contravene the section and that Mr. Royds did not exercise all the attention and care expected of him as an air traffic controller in the circumstances of that day. We allow the appeal. The $250 penalty will stand.

Reasons for Appeal Decision by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Richard F. Willems, Member
Frank Morgan, Member


[1] R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.

[2] Harry Edward Joseph Shermet v. Minister of Transport, [1996] CAT File No. C-1021-02, appeal.

[3] Peter J. Lubig v. Minister of Transport, [1989] CAT File No. C-0105-02.

[4] Minister of Transport v. Stephen Décary, [2001] CAT File No. Q-2089-39, appeal.

[5] Leslie G. Marsh v. Minister of Transport, [1996] CAT File No. C-1095-02, appeal.