Decisions

TATC File No. O-2928-41
MoT File No. PAP5504-049317

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Nav Canada, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 801.08(a) and 801.08(b)


Review Determination
Carole Anne Soucy


Decision: December 24, 2004

TRANSLATION

The Minister has proved, on a balance of probabilities, that NAV CANADA contravened paragraphs 801.08(a) and 801.08(b) of the Canadian Aviation Regulations. The defence of due diligence was not proven. I decrease the penalty to $5,000.00. This amount is payable by NAV CANADA to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

A review hearing on the above matter was held April 20 and May 19, 2004 at the Sheraton Gateway Hotel, in Toronto, Ontario.

BACKGROUND

The Applicant, NAV CANADA, is the holder of an ATS operations certificate issued by the Minister of Transport pursuant to the Aeronautics Act, authorizing it to provide air traffic services at various operational locations, including the Toronto airport.

On August 25, 2002, the air traffic controller, Mr. Dean Morgan, an employee of NAV CANADA, conducted a SIRO/LAHSO operation on runways 05 and 33L at Pearson Airport in Toronto contrary to established standards.

NAV CANADA, as holder of an ATS operations certificate, must provide air traffic services in accordance with the ATS site manual and the Canadian Domestic Air Traffic Control Separation Standards.

During this operation in the control tower at the Pearson Airport, NAV CANADA did not provide the required separation between aeroplane C-GGSG landing on runway 05 and aircraft NWA971 taking off on runway 33L that crosses runway 05.

Furthermore, according to the Toronto/Pearson Control Tower Procedures Manual, the "Land and Hold Short" procedure is not permitted for landings on runway 05 and take-offs on runway 33L.

Following this incident, a Notice of Assessment of Monetary Penalty was sent to NAV CANADA on August 14, 2003. Schedule A of this notice reads as follows:

Charge # 1

Canadian Aviation Regulations Section 801.08 (b)

No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(b) in the case of air traffic control services, the Canadian Domestic Air Traffic Control Separation Standards;

which state:

Chapter 1, s.2.4: Separation of a Departing Aircraft from Aircraft using Intersecting Runways

A departing aircraft shall be separated from an aircraft using an intersecting runway, or non-intersecting runway if flight paths intersect, by ensuring that the departing aircraft does not begin its take-off roll until one of the following conditions exists:

(b) a preceding arriving aircraft has:

(i) taxied off the landing runway,

(ii) completed the landing roll and will hold short of the intersection,

(iii) passed the intersection, or

(iv) crossed over the departure runway.

On or about August 25, 2002 at approximately 13:38 hours UTC, at the Toronto-Pearson International Airport, being the holder of an ATS operations certificate, NAV Canada did not provide air traffic services in accordance with Chapter 1, s.2.4 of the Canadian Domestic Air Traffic Control Separation Standards. NAV Canada in the operation at the Toronto-Pearson Control Tower, failed to provide the required separation between aircraft C-GGSG arriving on runway 05 and NWA971, departing on runway 33L, an intersecting runway.

Charge #2

Canadian Aviation Regulations Section 801.08 (a)

No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(a) the ATS Site Manual;

The Toronto Pearson Control Tower Site Manual s.1.5.3 places the responsibility upon the team supervisor to ensure that unit operational procedures are adhered to.

The Toronto Pearson Control Tower Procedures Manual and Supplemental Operations Letter 01-21 do not permit Simultaneous Intersecting Runway Operations with Land and Hold Short Procedures for landing on runway 05 and departing on runway 33L.

On or about August 25, 2002 at approximately 13:38 hours UTC at the Toronto Pearson International Airport, NAV Canada, being the holder of an ATS operations certificate, did provide air traffic services not in accordance with the Procedures Manual, in that Simultaneous Intersecting Runway Operations with Land and Hold Short Procedures was conducted for aircraft landing on runway 05 and aircraft departing on runway 33L. This operation is not approved and contained in the Procedures Manual.

Monetary Penalty Assessed:

Charge #1: $ 5,000.00

Charge #2: $ 5,000.00

Total Penalty: $10,000.00

Following these events, the Minister of Transport assessed $5,000.00 for each contravention. The full payment was required to be made on or before September 15, 2003.

THE LAW

Provision of air traffic services in accordance with the ATS site manual.

Section 801.08 of the Canadian Aviation Regulations (CARs):

801.08 No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(a) the ATS site manual; and

(b) in the case of air traffic control services, the Canadian Domestic Air Traffic Control Separation Standards.

The Canadian Domestic Air Traffic Control Separation Standards, Part VIII – Air Navigation Services, Standard 821

2.4 Separation of a Departing Aircraft from Aircraft using Intersecting Runways

A departing aircraft shall be separated from an aircraft using an intersecting runway, or non-intersecting runway if flight paths intersect, by ensuring that the departing aircraft does not begin its take-off roll until one of the following conditions exists:

[...]

(b) a preceding arriving aircraft has:

(i) taxied off the landing runway,

(ii) completed the landing roll and will hold short of the intersection,

(iii) passed the intersection, or

(iv) crossed over the departure runway.

RESPONDENT'S EVIDENCE

Mr. Larry Lipiec, Transport Canada representative, called six witnesses before the Tribunal. The first witness, Mr. Denis Paré, is the inspector responsible for the investigation in this matter. He began the process that led to the two contraventions in this determination. He produced many documents to support the Minister's contention.

The second witness, Mr. Dave Eastaugh, is an employee of NAV CANADA, as unit operation officer. At the time of the incident, Mr. Eastaugh was responsible for updating the manuals, such as the site manual, the Toronto control tower procedures manual, operations letter, etc.

The third witness, Mr. Brian Fox, was the team supervisor at the time of the incident and was in the tower with Mr. Morgan, the controller.

The fourth witness, Mr. Dean Morgan, was the tower controller.

The fifth witness, Mr. Patrick Lawler, was the unit manager on the day of the incident. He completed a form reporting on irregularities and operations.

Finally, the sixth witness, Mr. Marcel Paquet, appeared as an expert witness in the field.

Mr. Paré, Transport Canada inspector since 2000, started his testimony by producing a first document, the CADORS, or Civil Aviation Daily Occurrence Report, that describes the facts as they occurred. Page 2 of this report reads:

Supplemental information from T.S.B. Initial Notification (#A02O0272): The Cessna 206 amphibious float-equipped aircraft (C-GGSG), operating under visual flight rules (VFR), was cleared to land runway 05 at Toronto/LBPIA, Ontario and was instructed to land and hold short of (LAHSO) runway 33L. The McDonnell Douglas DC9-51 (Flight #NWA971) aircraft, operating under instrument flight rules (IFR), was cleared to take-off runway 33L and the Cessna traffic was pointed out to the flight crew. C-GGSG did not land but overshot the runway due to a landing gear problem and conflicted with NWA971. Evasive action was taken and the departing DC9 climbed above the Cessna 206. A TSB investigor will be reviewing the radar and communication tapes.

After receiving this report, Mr. Paré sent a letter to Mr. Farrell, general manager of the control centre for the Toronto area, to request additional information. He went to Toronto September 24 and 25 and met with Patrick Lawler, Dave Eastaugh and Brian Fox.

With Mr. Eastaugh in the tower of the Toronto airport, he used the master tapes to create an audiovisual presentation of the events, with the help of the technicians. Mr. Paré confirmed that this cassette has been in his possession since it was created.

Exhibit M-4 contains a transcript of the communications during the incident and Exhibit M-5 is a log book that contains all of the information related to non-standard operations.

Mr. Eastaugh also provided the ATS site manual (M-6) for the type of services provided by the Toronto Pearson control tower to Inspector Paré. This document describes the responsibilities of each person in the organizational structure. Section 1.5 describes the responsibilities of the Unit Manager, Team Supervisor and Operational Controller.

Section 1.5.1 of the tower site manual reads as follows:

Unit Manager

The Unit Manager is responsible for the overall management and supervision of all activities related to the provision of Air Traffic Services by the Toronto/Pearson Control Tower.

Section 1.5.3 describes the responsibilities of the Team Supervisor and reads as follows:

Reporting to the Unit Manager, the Shift Supervisor is responsible for the supervision of unit staff on a particular shift and ensures that unit operational procedures are adhered to.

Concerning the operational controller, section 1.5.4 reads as follows:

Toronto/Pearson Airport controllers are responsible for the safe, orderly and expeditious flow of air traffic within the Toronto Lester B. Pearson Control Zone.

Exhibit M-7 is the procedures manual used by the Toronto/Pearson control tower. This document contains all of the information specific to Toronto. Mr. Paré explained that the ATC MANOPS (Air Traffic Control Manual of Operations) provides general guidelines for the controllers. Exhibit M-7 contains information related to runways forming an intersection and, more specifically, to LAHSO procedures. Sections 7.4.1 and 7.4.2 read as follows:

7.4.1 Simultaneous use of intersecting runways (LAHSO) may be authorized in accordance with ATC MANOPS 352.6, .7, .8 and .9 subject to the following restrictions.

7.4.2 The following operations can be conducted under LAHSO procedures:

Land 05 Hold short 33R/15L

[...]

Land 33R Hold short 05/23

[...]

Land 33L Hold short 05/23

[...]

Mr. Paré said that it is possible to land on runway 05 and stop before the intersection with 33R, rather than 33L, as happened in this case.

He added that he received two other documents from Mr. Eastaugh. These were operations letters for the Toronto control tower. These letters consisted of changes made to the procedures manual. These are often changes that must be made quickly and/or for a short period of time, and involve instructions that the site manager must provide to air traffic controllers indicating the new procedure to be followed. Even though the expiry date of operations letter no. 01-21 was December 31, 2001, Mr. Paré explained that it remained in effect until another letter was published, which was the letter dated September 11, 2002. It was therefore in effect during the events in this matter. He repeated that the letter supplements sections 6.4 and 7.4 of the Toronto procedures manual. In fact, the subject is "Simultaneous Intersecting Runway Operations" and further on, it reads:

In accordance with ATSAMM 215, the use of simultaneous intersecting runway procedures by Toronto/Pearson Control Tower is approved as follows:

Land 05 Hold short 15L/33R

Land 33R Hold short 05/23

Land 33L Hold short 05/23.

Still referring to the same operations letter, it contains the following references: ATSAMM 215, MANOPS 352.6, .7 and Procedures Manual, Part 6 sec 6.4, Part 7 sec 7.4... Canada Air Pilot – Aerodrome Chart.

Once again, as Mr. Paré highlighted, it is possible to land on runway 05 and stop before the intersection with runway 33R. This approval does not exist for runway 33L, as in this case. Afterwards, Mr. Paré filed an excerpt of the ATSAMM document and referred to the instruction for site 204, which reads:

204.1

Managers shall issue direction and information required for the efficient administration and operation of the unit in the form of:

A. operations letters, for long term items related to:

1. the provision of air traffic services...

It is written in this document that managers are responsible for issuing these operations letters.

Further, section 205.4 of the ATSAMM document reads:

Managers shall ensure that each controller or specialist, prior to assuming an operational position on or after the effective date of any other mandatory information, has:

A. been verbally briefed; or

B. read and signed off as understanding...

In addition to these documents, Mr. Paré obtained an ATC operating irregularity report from Mr. Eastaugh (Exhibit M-11) completed by controller Dean Morgan. This report contains a description of the incident signed by Dean Morgan and Brian Fox, the team supervisor. The report is dated August 25, at 14:45. It states that the tower asked the Cessna C-GGSG to land on runway 05 and stop before runway 33L. Mr. Paré explained that these instructions are contrary to the operations letter, which does not authorize the simultaneous use of runways 05 and 33L for LAHSO procedures.

Another document, Exhibit M-12, is a NAV CANADA ATC operating irregularity report completed by the supervisor, Brian Fox. Mr. Paré read us the following passage from this letter:

At the time of the incident I was overviewing ground control. I overheard tower control issue a left turn heading 290 (not unusual). Few seconds later, overheard tower instruct 'further left turn' which caught my attention. At this time I observed a NWA DC9 rotating runway 33L between Foxtrot 2 and Foxtrot 4.

Exhibit M-13 consists of a report of the preliminary investigation conducted on August 25, 2002. This document was completed by Mr. Lawler, Toronto tower site manager.

Two other documents were given to Mr. Paré by Mr. Eastaugh. These were the Toronto/Pearson Tower Knowledge Verification Test dated January 26, 2002 (M-14), and the Toronto Pearson Control Tower Operational Skills Observation Report (M-15) dated March 22, 2002. These are two exams. The first is written and based on theory, while the second is practical and oral. Mr. Paré pointed out that Mr. Morgan obtained 100% in the written exam and correctly answered the question regarding the LAHSO procedure. However, the LAHSO procedure was not checked in the practical evaluation.

On September 7, 2002, after the incident on August 25, 2002, Mr. Morgan underwent another practical exam and again, the LAHSO procedure was not observed. This is Exhibit M-16, entitled Operational Skills Observation Report.

Mr. Paré had an opportunity to have a short conversation with the controller, Mr. Morgan, during which Mr. Morgan explained that he had not planned the LAHSO procedure.

However, in discussing this with Mr. Fox, Mr. Paré was told by Mr. Fox that while SIRO/LAHSO operations are not permitted, controllers use their own judgement and this situation had occurred before.

Mr. Paré then submitted the ATS operations certificate (M-18) and an excerpt from A.I.P. Canada. The latter document was in effect at the time of the incident. Section 4.4.9 refers to operations on intersecting runways. It also describes the specific conditions under which a LAHSO procedure can be performed.

The witness then produced Exhibit M-20, the Canada Air Pilot for Ontario, and Exhibit M-21, the Canada Flight Supplement. He said that the landing distances available for simultaneous runway operations (LDA for simultaneous runway operations) are provided in the Canada Air Pilot. Runways 05 and 33L are excluded from the two documents.

Under cross-examination, Mr. Paré made a distinction between the ATSAMM and MANOPS documents, the first referring to the administrative side of the organization and the second referring to operations. He reiterated the responsibilities of the air traffic controller as stated in the CARs, under subsection 801.01(2). Furthermore, since Mr. Paré insisted that controller Morgan did not undergo a practical exam on the SIRO/LAHSO operation, he admitted that a similar situation cannot be simulated to evaluate the controller. Mr. George Donovan, representative of NAV CANADA, highlighted that the Over-the-Shoulder verification is a requirement under section 402.05 of the CARs and is not related to irregular operations in any way.

The Minister of Transport's second witness, Mr. Dave Eastaugh, was the unit operation officer at the time of the incident. In this position, he was responsible for ensuring that relevant documentation, such as the site manual, the tower procedures manual, operations letters, and all other relevant information were valid and publicized to ensure that all employees were aware of them. Mr. Eastaugh confirmed that all of the documents that were produced were valid during the events.

The third witness called by Mr. Lipiec was Mr. Brian Fox who was working at the Toronto control tower on August 25, 2002 and was present during the events. He was team supervisor and reported to the site manager. At the time of the incident, he was seated at his desk and this was how he heard the tower controller send an instruction and how he sensed urgency in his voice. He looked at him and saw that he had resolved the conflict. Mr. Fox continued his testimony emphasizing that he was preparing an "Over-the-Shoulder" verification for another controller, something which must be done twice a year for each controller.

Returning to Exhibit M-12, the ATC operating irregularity reporting form, Mr. Fox, who filled in the blank spaces on the form, repeated before the Tribunal, among other things, the factors that may have caused the incident and read: "having to perform LAHSO operations due to runway closure, GTAA policy, noise abatement..." and in the section entitled Recommendations: "LAHSO OPS ... should be kept to a minimum. Review GTAA policy of no 33L or right arrivals. Land 33L depart 33R is 'safer" and more efficient...".

Mr. Fox admitted that the LAHSO procedure is not permitted for an aircraft landing on runway 05 and an aircraft taking off on 33L.

Like the site instructions, the operations letters are part of the operational procedures. One of his responsibilities was to ensure that employees and, more specifically, the air traffic controllers, adhere to these procedures. However, he did admit that it is impossible to check every controller at all times.

Under cross-examination, Mr. Fox said he was not very familiar with the site manual or ATSAMM manual, which he considers management documents. For his part, he primarily follows the Toronto tower procedures manual, which contains the many responsibilities related to his position.

Exhibit D-2 (Position Information Document for Tower Supervisor) is a supplement describing the responsibilities specific to supervisors. The witness admitted not having seen it for a long time. He stated that it is impossible to carry out all of the tasks assigned to him and to ensure that all controllers follow the instructions and procedures. He has to rely on their professionalism in terms of complying with instructions. He believes the controller made a judgement error in this matter because everybody is very familiar with this particular procedure, SIRO. In fact, everything is clearly defined in the MANOPS, as well as in the site procedures. Also, the witness continued, we conduct KVTs (Knowledge Verification Test), and sometimes team briefings that relate to the LAHSO procedure.

Under redirect, Exhibit D-2 shows that the supervisor is responsible for leading the operation at Toronto – Lester B. Pearson International Airport Control Tower. In this position, he organizes and directs the operation and activity of the control tower to ensure that services provided are safe and expedient.

Finally, regarding whether he agreed that it was a LAHSO procedure, he confirmed that he did not know.

Mr. Dean Morgan, the fourth witness, is the controller who was working at the Toronto control tower on August 25, 2002 at approximately 13:38 hours. He recognized document M-11, an irregularity report, which he had completed himself after the incident. Mr. Lipiec presented Exhibit M-6, the NAV CANADA site manual, to him. He did not recognize it. He continued his testimony saying that he must report to the team supervisor, who was Mr. Fox at the time of the incident.

Under cross-examination, he answered the Minister's representative saying that he had been disciplined by Transport Canada following the incident on August 25. He testified that while he was familiar with the SIRO/LAHSO procedures, he committed an error in judgement. Mr. Morgan stated that he returned to work after undergoing examinations that a trainee usually undergoes to qualify. He did not go to NAV CANADA's training centre.

The next witness, Mr. Patrick Lawler, was employed by NAV CANADA on August 25, 2002 as manager of the Toronto control tower. Mr. Lipiec presented document M-13 to him, which he recognized as the preliminary investigation report, completed as soon as an incident occurs. He explained that the supervisor reports to the site manager and briefly summarized the responsibilities of the supervisor referring to Exhibit M-6, the ATS site manual.

Under cross-examination, he admitted that the operations at the Toronto tower are complex and that it is impossible for a single person to check all of the controllers' actions. If that were the case, one supervisor would be necessary for each controller. The fact is that there are five controllers for each supervisor. The supervisor must therefore be able to rely on the professional skills of the controllers.

To meet the requirements, air traffic controllers are required to familiarize themselves with the various operations letters and instructions that are posted and published in the operations room before starting their work shift. In some cases, certain briefings are mandatory. According to the witness, all of the controllers are on the lookout for the SIRO/LAHSO operation and must demonstrate a lot of flexibility given the situation of the moment and air traffic. Regarding the training methods used on the application of separation standards, Mr. Lawler explained that the controllers actually undergo practical training during their work shift and sometimes undergo simulations. To conclude, he added that he had never had an official meeting with Mr. Paré about this incident.

The Minister's last witness, Mr. Marcel Paquet, testified as an expert witness. He has over 30 years experience as an air traffic controller. He also worked as site manager at the Baie-Comeau tower. He was also site supervisor and team supervisor at the Saint-Hubert control tower. More recently, he was site operations specialist at the Saint-Hubert airport. Finally, from 1999 to June 15, 2004, he was an air traffic controller at the Quebec City control tower.

Mr. Donovan pointed out to the Tribunal that Mr. Paquet never worked at the Toronto tower. However, given his experience as an air traffic controller and supervisor, he decided to accept him as an expert witness, taking the comment by the NAV CANADA representative into account.

The Minister's representative started his questioning by presenting the video produced by Mr. Paré to the expert witness. He then referred to Exhibit M-19, the A.I.P. Canada, which provides the definition of sequential operations, which reads as follows:

... Sequential operations do not permit controllers to allow either an arriving aircraft to cross the arrival threshold or a departing aircraft to commence its takeoff roll until certain conditions are met.

It contains the same conditions as those stipulated in MANOPS 352.5.

When he was supervisor at the Saint-Hubert airport and was assigned to certain administrative functions or had to evaluate the Over-the-Shoulder test, he delegated his work to the senior controller.

Under cross-examination, the witness responded that when only one controller remained during the meal period or during breaks, he had to apply the CARs. When he was alone at night, without supervision, he had to contact the manager, in accordance with the procedure.

When asked how he could be sure that a senior controller was carrying out his functions appropriately when he delegated his authority to him, he answered that it was quite simply his responsibility. He admitted that in some cases, the controllers are alone, without a supervisor.

APPLICANT'S EVIDENCE

The applicant's representative wanted to have his witness, Mr. Lawrence Boulet, appear as an expert witness. Mr. Lipiec objected to Mr. Boulet's testimony as an expert given his position as a senior manager with NAV CANADA. He also objected to his testifying as an ordinary witness because he had been present throughout the hearing. In response to the objection, Mr. Donovan explained to the Tribunal that there was a prior agreement between the parties about this.

The applicant is a corporation that cannot represent itself other than through one of its representatives. Also, given the extensive experience and knowledge of Mr. Boulet, who can help the Tribunal, I decided to accept him as an expert witness. This testimony is not inadmissible because he is a senior manager with NAV CANADA. However, I will keep this in mind in determining the weight to be attached to this evidence.

Mr. Boulet is currently responsible for ATS standards, procedures and operations. Mr. Boulet described his many responsibilities explaining that he makes final decisions about whether incidents involve operating irregularities and whether they contravene the CARs or not.

In 1978, he was an air traffic controller in Montreal and then supervisor (today, this is the shift manager). He left the Quebec area in 1987 when he was transferred to Ottawa as a specialist in procedures. In Ottawa, he was responsible for revising instructions and national bulletins, similar to the operations letters that we are familiar with today.

In 1992, he was transferred to the ATC Monitoring and Evaluation office. In this position, he was responsible for coordinating verifications of air traffic control facilities. The goals of these verifications were to ensure that all ATC standards mentioned in national bulletins and instructions were applied, as well as those related to local bulletins and instructions in accordance with regulations that were then in effect. Another of his responsibilities was to ensure there was a sufficient number of air traffic controllers in the towers and control centre, as well as the required number of supervisors. Some locations required supervisors, others did not.

In 2000, he was named to the position of director of standards, procedures and operations and he still holds this position today. Mr. Boulet added that one of the main roles of the position of director is to maintain ongoing communications and good working relationships with Transport Canada. He conceded that Transport Canada is responsible for interpreting the CARs.

He described the OSE (Over-the-Shoulder Evaluation) as an observation, in which the supervisor delegated by the site manager observes the performance of a specific controller in one or more positions to ensure that he complies with the regulations in effect at the time of the evaluation. In his opinion, it is virtually impossible to check everything that may occur during the career of an air traffic controller.

According to Mr. Boulet, air traffic controllers are very aware of the SIRO/LAHSO procedure and, if this were not the case, he added that Transport Canada would have stressed this point with NAV CANADA as a result of their internal audit.

The witness continued his testimony indicating that up to eight air traffic controllers can be working in the Toronto tower, making it impossible for anyone to check the instructions given by the eight controllers, even if they are not working with earphones.

His opinion is similar in the case of a supervisor conducting an Over-the-Shoulder observation. All of his attention is focussed on the verification and it is therefore impossible for him to supervise the other air traffic controllers. Mr. Boulet continued, indicating that the controllers follow training programs and briefings, and that they must respect rules and criteria at all times.

Under cross-examination, Mr. Boulet clarified that each controller is responsible for checking operations letters and changes posted before a work shift. The team supervisor would have the authority to intervene if a controller were acting illegally, but in other circumstances supervisors have no control over air traffic controllers. However, if a supervisor witnesses an inappropriate procedure carried out by a controller, he should normally intervene.

Mr. Boulet continued his testimony and emphasized that the LAHSO procedure is not authorized on the runways in question. In his opinion, Mr. Morgan, the controller, acknowledged his responsibility and admitted his mistake.

RESPONDENT'S ARGUMENTS

In argument, Mr. Lipiec repeated the charges and analysed them meticulously. He mentioned that this matter involves strict liability offences and that as a consequence, the Minister must prove all of the elements of the offence on a balance of probabilities, without requiring intent.

The first offence under paragraph 801.08(b):

No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(b) in the case of air traffic control services, the Canadian Domestic Air Traffic Control Separation Standards;

which state:

Chapter 1, s.2.4: Separation of a Departing Aircraft from Aircraft using Intersecting Runways

A departing aircraft shall be separated from an aircraft using an intersecting runway, or non-intersecting runway if flight paths intersect, by ensuring that the departing aircraft does not begin its take-off roll until one of the following conditions exists:

(b) a preceding arriving aircraft has:

(i) taxied off the landing runway,

(ii) completed the landing roll and will hold short of the intersection,

(iii) passed the intersection, or

(iv) crossed over the departure runway.

On or about August 25, 2002 at approximately 13:38 hours UTC, at the Toronto-Pearson International Airport, being the holder of an ATS operations certificate, NAV Canada did not provide air traffic services in accordance with Chapter 1, s.2.4 of the Canadian Domestic Air Traffic Control Separation Standards. NAV Canada in the operation at the Toronto-Pearson Control Tower, failed to provide the required separation between aircraft C-GGSG arriving on runway 05 and NWA971, departing on runway 33L, an intersecting runway.

Mr. Lipiec argued that it was put in as evidence that NAV CANADA is holder of an ATS operations certificate. The question raised by Mr. Lipiec was: Did NAV CANADA provide air traffic control services or air traffic services?

Section 800.01 of the CARs reads:

"air traffic services" or "ATS" includes air traffic control services...

The Civil Air Navigation Services Commercialization Act (1996, c. 20) contains the term "control services" in the definitions of "air traffic control services" and "airport air traffic control services."

"air traffic control services" means services, other than flight information services, provided for the purpose of

(a) preventing collisions between

(i) aircraft,

(ii) ...

(iii) ...

(b) expediting and maintaining an orderly flow of air traffic.

"airport air traffic control services" means air traffic control services, other than en route air traffic control services... and includes the issuance of air traffic control clearances for aircraft to taxi, take off, or land.

It was put in as evidence that controller Morgan authorized a take-off for NWA971 and a landing for aircraft GGSG, and both authorizations constituted air traffic services.

Mr. Morgan, his supervisor Mr. Fox, and the video and audio recordings showed that the take-off on 33L and the landing on 05 were not in compliance with the separation standards stipulated under paragraph 801.08(b) of the CARs.

The Minister's position is that NAV CANADA is responsible for the actions of its employees. Mr. Lipiec referred to the MoT v. NAV CANADA[1] case, in which page 25 reads: "NAV CANADA can be found to have contravened a provision for the act of an employee as a corporation can only act through persons..."

He emphasized that in the CARs, the holder of an ATS operations certificate is responsible if separation standards are not complied with. The CARs have different contraventions for the holder of the certificate and for the air traffic controller. This is not a delegated or proxy contravention.

The Minister's representative added that NAV CANADA is a corporation and that it acts and speaks through its employees. The fact that the employee was blamed and reprimanded for his action does not limit the responsibility of the employer. According to Mr. Lipiec, this is not an issue of fairness. He added that we must work with the laws as they are written.

The second contravention under paragraph 801.08(a):

No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(a) the ATS Site Manual;

The Toronto Pearson Control Tower Site Manual s.1.5.3 places the responsibility upon the team supervisor to ensure that unit operational procedures are adhered to.

The Toronto Pearson Control Tower Procedures Manual and Supplemental Operations Letter 01-21 do not permit Simultaneous Intersecting Runway Operations with Land and Hold Short Procedures for landing on runway 05 and departing on runway 33L.

The first two elements of the offence were proven in analyzing the first contravention. As for the third element, the operational site, the annex to the ATS operations certificate contains a list of control towers and control centres, and Toronto belongs to the control centre category. Moreover, a site manual approved by the Minister of Transport provides specific details about the type of air services authorized in the various centres.

Section 801.07 of the CARs describes the contents of the ATS site manual.

Section 1.5.3 of the site manual for the Toronto airport states that the team supervisor is responsible for ensuring, among others, that unit operational procedures are adhered to. These procedures are in the operations letters, procedures manuals, etc. The Toronto/Pearson procedures manual does not authorize the "Land and Hold Short" procedure on runways 05 and 33L. Mr. Lipiec argued that the Minister proved that air traffic services were provided by NAV CANADA, holder of an operations certificate; however, these services did not comply with the requirements stipulated in the site manual. As holder of an ATS operations certificate, he concluded that it must comply with the conditions of the certificate and is subject to the CARs.

The Minister's representative argued that NAV CANADA did not use all necessary means to prevent this incident and did not exercise due diligence. If the supervisor was too busy with other tasks, should NAV CANADA hire more people?

Mr. Lipiec was also surprised that air traffic controller Morgan was not evaluated on the LAHSO procedure with a test after the incident.

As for the double jeopardy, he referred to the Kienapple[2] principle, which does not apply because the legal elements differ. He argued that in paragraph 801.08(b) of the CARs, the holder of the operations certificate must provide adequate traffic separation and that this applies to all intersections, whether LAHSO procedures are permitted at these intersections or not.

For its part, the second charge, under paragraph 801.08(a), refers to the ATS site manual and the legal elements are associated with complying with the site manual that refers to the LAHSO procedure. This contravention is more specific than the first in that it refers to runways 33L and 05 in terms of prohibiting the LAHSO/SIRO operation.

The Minister's representative concluded with the sanction and referred to the principles mentioned in the Wyer[3] case. He argued that NAV CANADA has a heavy responsibility and a strict mandate. The supervisor is a key element of this large company and it is unthinkable, according to the Minister's representative, that a link in this chain could fail.

The regulations exist and must be complied with and followed to ensure safety. Given the preceding elements, the sanction of $5,000.00 per offence is appropriate.

APPLICANT'S ARGUMENTS

Mr. Donovan reiterated that the facts were correctly presented. He added that the air traffic controller committed a human error.

The disputed issue, according to the applicant's representative, is to determine NAV CANADA's responsibility in this matter. This matter involves a strict liability offence. In his opinion, the Minister did not prove the applicant's responsibility. Mr. Donovan referred to subsection 8.4(4) of the Aeronautics Act, which reads as follows:

The operator of an aerodrome or other aviation facility may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aerodrome or facility for which another person is subject to be proceeded against unless the offence was committed without the consent of the operator of the aerodrome or facility and, where found to have committed the offence, the operator of the aerodrome or facility is liable to the penalty provided as punishment therefor.

The controllers have their own responsibilities, as does NAV CANADA. Delegated responsibility does not apply. Mr. Morgan was aware of the procedures and policies specific to Toronto/Pearson and, more specifically, he was aware of the LAHSO procedure.

According to NAV CANADA's representative, the human error cannot be defended despite the many bulletins posted or instructions and procedures implemented. Everybody was aware of them and Mr. Fox, the supervisor, explained what the company did to ensure they were followed. The applicant's representative argued that it is wrong to believe that the supervisor did not do his job correctly because he did not follow all of the controller's instructions. The supervisor must rely on the controller's professionalism and cannot follow all of his moves.

Mr. Donovan referred to the Minister of Transport v. Canadian Airlines[4] and read the following passage:

This is not to suggest that the process is inadequate but simply illustrates in a potentially tragic way that inadvertence resulting from the frailty of human behaviour can and has demonstrably been proven to give rise to the potential for horrendous tragedy... Is there any piece of legislation that can absolutely assure the implementation of a system free from human error or momentary distraction?... Regrettably, the best intentions... are frustrated by the limitations imposed on the system by human factors...

Further, we can read about licensed employees:

The licensing concept rests on the view that those who chose to participate in regulated activities have, in so doing, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility...

... The concept is that those people who enter a regulated field are in the best position to control the harm which may result, and that they should, therefore, be held responsible for it.

As licensed employees, air traffic controllers have certain responsibilities and obligations. He added that when a controller is on duty, he is expected to comply with the procedural requirements and regulations.

Pursuant to section 8.4 of the Act, consent is required to charge the operator, which is not the case here. He alleged that there is no causal relationship between the responsibilities of NAV CANADA and the actions of the controller.

Regarding the defence of due diligence, it is appropriate to emphasize that the security system implemented assigns specific responsibilities to each member of the team in the tower. NAV CANADA is responsible for ensuring that everybody, including the controllers, is informed about instructions at all times, which is what the applicant did.

Mr. Donovan then referred the Tribunal to the Marsh[5] case, in which diligence is defined as follows:

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...

Referring to Mr. Boulet's testimony, the applicant's representative added that there was nothing NAV CANADA could have done to prevent this human error.

Regarding double jeopardy, Mr. Donovan argued that the fact that the Canadian Domestic Air Traffic Control Separation Standards were not complied with, caused the result in this case, which was the unauthorized procedure carried out by the controller. If the procedures had been followed, the incident would not have occurred.

DISCUSSION AND DETERMINATION

Disputed Issues

Did the Minister prove, on a balance of probabilities, that NAV CANADA, holder of the ATS operations certificate, initially contravened paragraph 801.08(b) by not providing air traffic services in accordance with aircraft separation standards and then contravened paragraph 801.08(a) by not complying with the site manual?

If the answer to both of these questions is no, NAV CANADA must be exonerated. If the answer is yes, did NAV CANADA use all necessary means to prevent the offences?

The documentary evidence shows that NAV CANADA is holder of an ATS operations certificate. It was also shown that the applicant provides air traffic services.

For the first offence, the testimony of the controller and his supervisor, as well as the video and audio recordings prove that the separation standards, in accordance with standard 821, were not complied with and that none of the four conditions stipulated in section 2.4.1 was met.

For the second offence regarding the LAHSO procedure, the CADORS, the transcript of communications, the irregularity reports from the controller and supervisor, the written comments in the log book and the occurrence report provide persuasive proof of the non-compliance with paragraph 801.08(a) of the CARs. The site manual refers to the MANOPS, the procedures manual and site instructions, which exclude LAHSO procedures in this case.

It should be borne in mind that the applicant has admitted to all the facts without admitting responsibility.

Additionally, we are faced with strict liability offences. The concept has already been established in the Supreme Court of Canada decision R. v. Sault Ste. Marie: [6] "there is no necessity for the prosecution to prove the existence of mens rea..."

It is sufficient for the Minister to prove, on a balance of probabilities, the material elements of the offence.

The applicant argued it could not be proceeded against because it did not consent to the actions of the controller and referred to subsection 8.4(4) of the Aeronautics Act.

With all due respect, I cannot accept this argument, and I am in complete agreement with the Minister's representative. In my opinion, the application of this section is valid in cases where no specific provision allows for the operator to be proceeded against directly. Subsection 8.4(4) covers this gap and makes it possible to proceed against an individual or company, or both, under specific conditions.

In the case before us, we have two distinct regulatory provisions, 801.01 and 801.08 of the CARs, intended specifically and respectively for the perpetrator and the operator. Moreover, Mr. Donovan himself admits that the controller and his employer have distinct responsibilities.

Subsection 801.01(2) establishes the air traffic controller's responsibility as follows:

(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.

In section 801.08 of the CARs, the legislator clearly established the responsibility of the holder of the ATS operations certificate and the regulatory provision is unequivocal:

No holder of an ATS operations certificate shall provide air traffic services... unless the services are provided in accordance with:

a) ...

b) ...

Taking the preceding into account, I believe that the Minister has proven all of the elements of the two offences, on a balance of probabilities, and that NAV CANADA contravened paragraphs 801.08(a) and (b).

However, the applicant may rule out its responsibility by showing, on a balance of probabilities, that it exercised all due diligence to prevent the contravention. This is a defence of due diligence, as per section 8.5 of the Aeronautics Act, which stipulates:

No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

This due diligence is evaluated based on what a reasonably prudent person would have done to prevent the commission of the offence given his field of activity and expertise.

Mr. Boulet, the only witness for the applicant, alleged that NAV CANADA issues instructions, conducts verifications and tests, develops training programs and that the employees regularly attend briefings.

He added that it is the responsibility of the air traffic controller to check the operations letters posted before his work shift.

We know that the team supervisor has specific responsibilities and, more specifically, is responsible for ensuring that operational procedures are adhered to and in compliance with standards. The details of these procedures are described in the ATS site manual, with which Mr. Fox is not very familiar, but also in the procedures manual, which contains information about the various runways on which the LAHSO procedure is authorized. The same information can also be found in the operations letters and the ATC MANOPS.

The operations letters are instructions and are part of the procedures. The documents are consistent in that runways 05 and 33L are never authorized for LAHSO procedures.

How can we explain Mr. Fox's apparent confusion when asked about whether the controller conducted this type of operation?

In his statement in the irregularity report (M-12), he explained that the events/factors that could have caused the incident: "Having to perform LAHSO OPS due to RWY closure, GTAA policy, noise abatement."

And in the part entitled "Recommendations for changes, improvements which could help avoid similar incidents" he wrote: "LAHSO OPS (converging ARR/DEP A/C) should be kept to a minimum. Review GTAA policy of no 33L/R ARR. Land 33L DEP 33R is 'safer' and more efficient."

I am surprised by the supervisor's statements. If it is true that the controller used runways 05 and 33L for a LAHSO procedure because a runway was closed, should we conclude that this is done under non-urgent circumstances despite the instructions and contrary to the CARs?

Furthermore, in examining the transcript, it appears that communications between the tower and aircraft C-GGSG, which continued for several minutes before the incident occurred, gave the controller plenty of time to change his mind and amend his instructions.

NAV CANADA is consistent in that the controllers are licensed employees and are responsible for personally checking the operations letters and changes posted before their work shift. What about the supervisors?

One of the responsibilities of the team supervisors is to supervise the controllers. Testimony from several witnesses confirmed that it was impossible for a supervisor to check all of the work performed by all of the controllers. Should we conclude that it is impossible for the supervisor to fulfill his duties as described in the site manual, given the facts before us? What would possible alternatives be? And can we conclude that NAV CANADA used all necessary means to prevent the incident of August 25, 2002?

The requirements for a defence of due diligence vary from one case to another. It is a question of judgement. To determine whether NAV CANADA exercised due diligence by using all necessary means to prevent the offence in accordance with section 8.5 of the Aeronautics Act, I will take into consideration the analysis of Justice Stuart in R v. Gonder,[7] who says he was himself influenced by R. v. The Corporation of The City of Sault Ste. Marie[8] in which Justice Dickson wrote that the accused has the right to a defence if he could show that he had taken all necessary means to prevent the event for which he is charged.

According to Justice Stuart, the degree of care warranted in each case is principally governed by the following circumstances:

(a) Gravity of potential harm.

(b) Alternatives available to the accused.

(c) Likelihood of harm.

(d) Degree of knowledge or skill expected of the accused.

(e) Extent underlying causes of the offence are beyond the control of the accused.

In his determination, Justice Stuart analysed the first two factors as follows:

Gravity of potential harm — The greater the potential for substantial injury, the greater the degree of care required. The magnitude of potential damage to the environment or to property, business or to the safety of individuals are the primary factors governing the measure of care required...

Regarding the second point, the question that must be asked is what could have been done to prevent the incident? On this point, Justice Stuart's comments are as follows:

Alternatives available to the accused -- Reasonableness of care is often best measured by comparing what was done against what could have been done. The reasonableness of alternatives the accused knew or ought to have known were available is a primary measure of due diligence. To successfully plead the defence of reasonable care the accused must establish on a balance of probabilities there were no reasonable feasible alternatives that might have avoided or minimized injury to others...

NAV CANADA had to provide air traffic services in accordance with the separation standards and the site manual and, to do this, had to do whatever was necessary to ensure all parties made it possible to reach this goal. The human error and professionalism of licensed employees, such as controllers, regularly raised by the applicant, do not, in my opinion, constitute a defence of due diligence.

The applicant is responsible for the safety procedures implemented (tests, verifications, training, briefings). Nevertheless, as has already been decided in other cases, it is insufficient to say "we hire and train carefully." If the procedures implemented are insufficient, alternatives must be available to prevent offences.

It must be understood from my comments that several failures in NAV CANADA's information system as well as the deficiencies relating to the supervisor's work allow me to conclude as I have done. These are not simple instructions from the controller to pilots.

Moreover, we learned from Mr. Boulet's testimony that, not long before the incidents, Transport Canada had conducted an "audit" at the Toronto airport and had concluded that NAV CANADA was not applying the LAHSO procedure correctly.

On August 25, 2002, during instructions from controller Morgan to the pilots, Mr. Fox was preparing an evaluation and was not in a position to verify what the controller was doing.

Further, as already mentioned, the comments by Mr. Fox in his report on operational irregularities raise doubts, in my opinion, as to the effectiveness and the comprehension of instructions implemented on the use of the LAHSO procedure.

Finally, after the incident, the controller did not receive practical training in a simulator on the LAHSO procedure. While perfection is impossible, the application of due diligence, as seen in the Gonder matter, requires the anticipation of potential error and the development of preventive measures, which the applicant did not show. NAV CANADA works in a highly specialized field and the public, as well as flight personnel, have the right to expect it to do everything possible to be a leader in its area of expertise.

Taking the preceding into account, the applicant's evidence does not allow me to conclude that it used all necessary means to prevent the incident.

To conclude, I will address the issue of sanction. While I do agree with the principles in the Wyer decision as related by the Minister's representative, I come to a different conclusion because the sanction in the recommendation manual, the reference of the Department of Transport, as well as in paragraphs 801.08(a) and (b) of the CARs, is covered by one and the same penalty. In the circumstances I will not deal with double jeopardy, and I will therefore impose the penalty recommended for a first offence, or $5,000 in total.

CONCLUSION

The Minister has proved, on a balance of probabilities, that NAV CANADA contravened paragraphs 801.08(a) and 801.08(b) of the CARs. The defence of due diligence was not proven. I decrease the penalty to $5,000.00.

Carole Anne Soucy
Member
Transportation Appeal Tribunal of Canada


[1] Minister of Transport and NAV CANADA, CAT File No. P-1844-41 [2000].

[2] [1975] 1 S.C.R. 729.

[3] Minister of Transport v. Kurt William M. Wyer, CAT File No. W-0075-33.

[4] Minister of Transport v. Canadian Airlines International, CAT File No. O-0260-50 [1992].

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

[6] [1978] 2 S.C.R. 1299.

[7] 62 C.C.C. (2d) 326.

[8] Supra note 3.


Appeal decision
Allister W. Ogilvie, Faye H. Smith, Suzanne Racine


Decision: December 7, 2005

The appeal is allowed and the monetary penalty of $5,000.00 assessed by the Tribunal Member at review is cancelled.

The appeal in the above matter was heard on June 20, 2005 at the Standard Life Building, 18th Floor, at 333 Laurier Avenue West, in Ottawa, Ontario at 10:00 hours.

PRELIMINARY MOTIONS

Prior to the appeal date, a motion for disclosure was filed by counsel for the appellant. The motion was for production by Transport Canada of the pilot file, the air traffic controller file and the aircraft file regarding the alleged infraction. This motion was accompanied by an Affidavit of Mr. Floyd. Mr. Fenn submitted that it was trite law that the Minister had an obligation to disclose, a matter succinctly stated in the Stinchcombe case[1]. He argued that he required production of these files in order to make full answer and defence. He submitted a second motion requesting permission to file new evidence at the appeal hearing. The evidence consisted of a Transportation Safety Board of Canada (TSB) report that was a factual document which counsel argued would be of assistance to the appellant's case. In response, Ms. Laperle argued that the report was authorized for release on November 26, 2003 and therefore was available at the time of the review hearing and is thus not new evidence as set out in section 14 of the Transportation Appeal Tribunal of Canada Act. Ms. Laperle further argued that the information requested on the motion for disclosure was not necessary for the purposes of this appeal.

The appeal panel denied both motions as follows: The motion for disclosure cited a letter of August 20, 2003[2] from Mr. Floyd to the Minister's representative requesting disclosure for the informal meeting which was to take place between Transport Canada and NAV CANADA. It was the view of this panel that this letter should not be before the Tribunal as this letter and any response to it were "without prejudice" being a condition upon which the informal meeting was conducted. More specifically, the request for informal meeting attached to the Notice of Assessment of Monetary Penalty states as follows:

Should the parties not achieve an agreement, no part of the discussions held during the informal meeting may be revealed or introduced as evidence at a TATC hearing.

Following breakdown of negotiations at the informal meeting, there was a request for a review hearing. There was no request for disclosure made at the review and hence, no ruling by the Tribunal Member. Furthermore, the defence had the opportunity to cross-examine the air traffic controller as the Minister did call him as requested by defence counsel. Finally, we agree with the Minister's representative that the TSB report sought to be filed in the second motion was not new evidence as it was authorized for release on November 26, 2003 and was available to the defence at the time of the review hearing.

BACKGROUND

The appellant NAV CANADA is the holder of an ATS operations certificate issued by the Minister of Transport pursuant to the Aeronautics Act, authorizing it to provide air traffic services at various operational locations, including the Lester B. Pearson International Airport in Toronto (hereafter referred to as Pearson Airport).

On August 25, 2002, Mr. Dean Morgan, a licensed air traffic controller and employee of NAV CANADA, conducted a SIRO/LAHSO[3] operation on runways 05 and 33L at Pearson Airport contrary to established standards following which the Minister of Transport issued a Notice of Assessment of Monetary Penalty on August 14, 2003 to NAV CANADA in the total amount of $10,000.00 as follows:

Charge # 1

Canadian Aviation Regulations Section 801.08 (b)

No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(b) in the case of air traffic control services, the Canadian Domestic Air Traffic Control Separation Standards;

which state:

Chapter 1, s.2.4: Separation of a Departing Aircraft from Aircraft using Intersecting Runways

A departing aircraft shall be separated from an aircraft using an intersecting runway, or non-intersecting runway if flight paths intersect, by ensuring that the departing aircraft does not begin its take-off roll until one of the following conditions exists:

(b) a preceding arriving aircraft has:

(i) taxied off the landing runway,

(ii) completed the landing roll and will hold short of the intersection,

(iii) passed the intersection, or

(iv) crossed over the departure runway.

On or about August 25, 2002 at approximately 13:38 hours UTC, at the Toronto-Pearson International Airport, being the holder of an ATS operations certificate, NAV Canada did not provide air traffic services in accordance with Chapter 1, s.2.4 of the Canadian Domestic Air Traffic Control Separation Standards. NAV Canada in the operation at the Toronto-Pearson Control Tower, failed to provide the required separation between aircraft C-GGSG arriving on runway 05 and NWA971, departing on runway 33L, an intersecting runway.

Charge #2

Canadian Aviation Regulations Section 801.08 (a)

No holder of an ATS operations certificate shall provide air traffic services at an operational location unless the services are provided in accordance with

(a) the ATS Site Manual;

The Toronto Pearson Control Tower Site Manual s.1.5.3 places the responsibility upon the team supervisor to ensure that unit operational procedures are adhered to.

The Toronto Pearson Control Tower Procedures Manual and Supplemental Operations Letter 01-21 do not permit Simultaneous Intersecting Runway Operations with Land and Hold Short Procedures for landing on runway 05 and departing on runway 33L.

On or about August 25, 2002 at approximately 13:38 hours UTC at the Toronto Pearson International Airport, NAV Canada, being the holder of an ATS operations certificate, did provide air traffic services not in accordance with the Procedures Manual, in that Simultaneous Intersecting Runway Operations with Land and Hold Short Procedures was conducted for aircraft landing on runway 05 and aircraft departing on runway 33L. This operation is not approved and contained in the Procedures Manual.

Monetary Penalty Assessed:

Charge #1:       $ 5,000.00

Charge #2:       $ 5,000.00

Total Penalty: $10,000.00

The matter was heard before Tribunal Member at review on April 20 and May 19, 2004. Following the review hearing the Tribunal Member found that the Minister had proved on a balance of probabilities, that NAV CANADA contravened paragraphs 801.08(a) and 801.08(b) of the Canadian Aviation Regulations and decreased the total penalty to $5,000.00.

GROUNDS FOR APPEAL

Mr. Fenn appealed the above referenced determination on the following grounds:

  1. the Hearings Officer ("Member") failed to properly consider all of the evidence;
  2. the Member failed to properly consider the evidence regarding LAHSO procedures at Pearson International Airport;
  3. the Member erred in fact and in law;
  4. the Member misapplied the standard or test regarding the application of the due diligence defence;
  5. the Member erred in failing to find that NAV CANADA had proper procedures in place and that NAV CANADA had exercised all due diligence regarding the training and procedures applicable to its employees;
  6. the Member erred in failing to find that NAV CANADA had instructed all controllers to follow the NAV CANADA instructions and procedures;
  7. the Member erred in failing to find that NAV CANADA had established all required and mandatory procedures in order to ensure that all controllers were familiar with all available information, publications, manuals, operation letters and instructions; and
  8. such further and other grounds as counsel may advise.

APPELLANT'S SUBMISSIONS

Due Diligence

Counsel for NAV CANADA sought an Order to set aside the decision of the Tribunal Member at review as the Minister did not prove on a balance of probabilities that NAV CANADA had contravened the sections as alleged on the basis that the defence of due diligence applied to exonerate NAV CANADA.

Mr. Fenn submitted that the Tribunal Member misconstrued the evidence of Mr. Paré in the second paragraph on page 6 of the review determination stating that Mr. Paré said it is possible to land on runway 05 and stop before the intersection with 33R, rather than 33L, as happened in this case. Mr. Fenn argues that this is not true and the Member missed the fact that this was not an approved procedure i.e. that LAHSO was not approved on runway 33L. Thus the central issue was that it was not an approved procedure. Mr. Fenn states further that NAV CANADA does not train its air traffic controllers to break the rules. Mr. Morgan is a document holder himself as he is licensed by Transport Canada and therefore NAV CANADA should be able to rely on a licensed controller. This is different from flight service station employees and others who are not themselves document holders.

Mr. Fenn argues that the Tribunal Member has misconstrued whether NAV CANADA exercised due diligence in training the air traffic controllers. The evidence of Mr. Morgan is critical. He knew the procedure. He knew he should not have done it. The procedures are in place and the Tribunal Member misdirected herself in saying that NAV CANADA did not have procedures in place. It was the evidence of Mr. Morgan that he did not intend to commit the offence but it happened.

The Tribunal Member at the bottom of page 7 and page 8 of the reasons for determination considers the Toronto/Pearson Tower Knowledge Verification Test dated January 26, 2002 (M-14), and the Toronto/Pearson Control Tower Operational Skills Observation Report (M-15) dated March 22, 2002. These are two exams. The first is written and based on theory, while the second is practical and oral. Mr. Paré pointed out that Mr. Morgan obtained 100% in the written exam and correctly answered the question regarding the LAHSO procedure. However, the LAHSO procedure was not checked in the practical evaluation.

On September 7, 2002, after the incident of August 25, 2002, Mr. Morgan underwent another practical exam and again, the LAHSO procedure was not observed. This is Exhibit M-16, entitled Operational Skills Observation Report.

Mr. Paré had an opportunity to have a short conversation with the controller, Mr. Morgan, during which Mr. Morgan explained that he had not planned the LAHSO procedure.

Mr. Fenn submits that the relevant questions relating to Mr. Morgan are: Was he licensed? Did he have recurrent training? The answers to these questions are in the affirmative. Mr. Morgan made a mistake. In the retraining segment, LAHSO was not required to be checked. Under cross-examination Mr. Paré admitted that the SIRO/LAHSO procedure cannot be simulated to evaluate the controller. Mr. Fenn argued that the Tribunal Member raised the bar from strict liability to absolute liability. At the bottom of page 8 and page 9 of the reasons for determination, we note the evidence of Mr. Fox, the team supervisor, who at the time of the incident was seated at his desk when he heard the tower controller send an instruction and he sensed urgency in his voice. He looked at him and saw that he had resolved the conflict and thus Mr. Fox continued preparing an "Over the Shoulder" verification for another controller.

Mr. Fenn submits that the Tribunal Member misdirects herself in saying the team supervisor did not do what he should have been doing. Mr. Fox saw a conflict resolved and he focussed on his check. Mr. Fox admitted LAHSO was not permitted for runway 05-33L. However, it is impossible to check all air traffic controllers all the time. He has to rely on the professionalism of the controllers in terms of complying with instructions. He believes that the air traffic controller made a judgment error in this matter because everybody is very familiar with this type of procedure, SIRO/LAHSO. The evidence is clear that Mr. Morgan was taken off and requalified. NAV CANADA could not do more than that.

At page 10 of the determination, the controller Mr. Morgan recognized M-11 as the irregularity report that he had completed after the incident. He testified that while he was familiar with the SIRO/LAHSO procedures, he committed an error in judgment.

Mr. Fenn argues that NAV CANADA did its job. Looking to the second last paragraph on page 10 of the reasons for determination, Mr. Lawler outlines the procedure NAV CANADA followed:

To meet the requirements, air traffic controllers are required to familiarize themselves with the various operations letters and instructions that are posted and published in the operations room before starting their work shift. In some cases, certain briefings are mandatory. According to the witness, all of the controllers are on the lookout for the SIRO/LAHSO operation and must demonstrate a lot of flexibility given the situation of the moment and air traffic. Regarding the training methods used on the application of separation standards, Mr. Lawler explained that the controllers actually undergo practical training during their work shift and sometimes undergo simulations. To conclude, he added that he had never had an official meeting with Mr. Paré about this incident.

It was submitted by Mr. Fenn that nowhere in the evidence does it say NAV CANADA or team supervisor Fox acquiesced in the procedure. In fact if Mr. Morgan did not intend it, how could NAV CANADA consent to it?

It was also argued that the Tribunal Member ignored the evidence of Mr. Boulet which was important to the decision. He stated that up to eight air traffic controllers can be working in the Toronto tower, making it impossible for anyone to check the instructions given by the eight controllers, even if they are not working with earphones. His testimony was continued at page 13 of the reasons for determination with regard to the Over-the-Shoulder observation. His opinion was that as supervisor, all of his attention is focussed on the verification and it is therefore impossible for him to supervise the other air traffic controllers. He added that the controllers had training programs and briefings, and that they must respect rules and criteria at all times. Mr. Morgan is an air traffic controller who is licensed and was properly trained. In Mr. Boulet's opinion, Mr. Morgan, the controller, acknowledged his responsibility and admitted his mistake. Even if LAHSO was approved, the pilot-in-command of the Cessna had a gear problem and at the last moment, contrary to his clearance, executed an overshoot.

The appellant argued that the Tribunal Member fails to take into account that the Cessna had an emergency situation and the air traffic controller made a mistake. At page 21 of the reasons for determination, the Tribunal Member stated that the supervisor is supposed to supervise, that it is not enough to say we hire people and train carefully and thus she obscured the line between the air traffic controller and NAV CANADA. NAV CANADA did hire and train carefully. It did spell out that this was an unapproved procedure. Also the critical element overlooked in this case is the fact that the air traffic controller is licensed. Mr. Fenn argued that the Tribunal Member misunderstood the roles and responsibilities of supervisors. It is not the job to supervise each one as this would require having a supervisor for each and every one of the air traffic controllers and they would have to have a headset as well.

The standard, Mr. Fenn argues, is that the air traffic controller is licensed. He cites the leading Tribunal cases on due diligence[4] for a review of the test. The key as set out in Canadian Airlines International, is what more could NAV CANADA do? What offence did it commit? It was the act of air traffic controller Morgan, and it was inadvertent. Regarding the exercise of all due diligence, NAV CANADA did everything required and the controller made the mistake. The Tribunal Member places the bar too high and hence the test of due diligence could never apply when the standard was so high.

Double Jeopardy

Mr. Fenn further submitted that in respect of paragraph 801.08(b) Dean Morgan was the actor not NAV CANADA and hence NAV CANADA could not be charged. Moreover, since both charges arise out of the loss of separation, once there is a violation of paragraph 801.08(b) there must be a violation of 801.08(a). He submitted that the legal concept of double jeopardy applies and prevents the Minister from succeeding on both charges since both charges arise out of the loss of separation. He argued that section 801.08 is either (a) or (b), but not both which constitutes double jeopardy as it is exactly the same offence. Proceeding on one eliminates the other. Mr. Fenn urged that the concept of double jeopardy applied to this case as in the case of Delco Aviation Limited v. Minister of Transport[5].

Subsection 8.4(4) of the Aeronautics Act - Vicarious Liability

It was the appellant's argument that it could not be proceeded against because it did not consent to the actions of the controller in reference to subsection 8.4(4) of the Aeronautics Act. It was argued that NAV CANADA was pursued instead of the employee in the same section and thus we must look to subsection 8.4(4) and the issue becomes one of lack of consent.

Charter Issue - paragraph 10(b) of the Charter of Rights and Freedoms / Right to Counsel

Failure to caution NAV CANADA that it was being investigated

Finally Mr. Fenn argued that the inspectors went to NAV CANADA to obtain the evidence against NAV CANADA and they were obliged to notify NAV CANADA that it would be charged. He stated that NAV CANADA was not notified that it was being investigated. The number of witnesses produced by Transport Canada were NAV CANADA witnesses and the documents were NAV CANADA documents which were released to the inspectors without NAV CANADA being cautioned that it was under investigation.

Mr. Fenn argues that nowhere was NAV CANADA apprised that it was being investigated and as a result Transport Canada got statements, interviews, training files etc. without advising NAV CANADA that it was going to be charged. Mr. Fenn states that NAV CANADA's right to counsel was violated and all evidence must be excluded as per section 15 of the TATC Act and for reasons of fundamental justice and fairness, the panel should stay all of the charges.

RESPONDENT'S SUBMISSIONS

Due diligence

Ms. Laperle for the Minister submits that the appellant must prove due diligence on a balance of probabilities following the Minister's proof of the elements of the offences. She states that Brian Fox is the person responsible as team supervisor. The requirement for due diligence varies from case to case. In order to determine the degree of care that must be applied to the circumstances of the case at hand, the Tribunal Member relied on R. v. Gonder[6] at pages 21 and 22 of her determination:

According to Justice Stuart, the degree of care warranted in each case is principally governed by the following circumstances:

(a) Gravity of potential harm.

(b) Alternatives available to the accused.

(c) Likelihood of harm.

(d) Degree of knowledge or skill expected of the accused.

(e) Extent underlying causes of the offence are beyond the control of the accused.

At page 23 of the reasons for review determination the Tribunal Member found that NAV CANADA did not use all necessary means to prevent the incident.

The Minister's representative states that in the Canadian Regional Airlines (1998) Ltd.[7] case, the appeal panel asked itself the following question: On these facts what is the standard of care required of the air carrier and what more, if anything, could the appellant have done to indicate that it had been duly diligent? She also submitted that this is the basis for the Tribunal Member to find as she did that NAV CANADA did not use all necessary means to prevent the incident and stated that the higher degree of care was implicit in the following excerpt at page 23 of the review determination:

While perfection is impossible, the application of due diligence, as seen in the Gonder matter, requires the anticipation of potential error and the development of preventive measures, which the applicant did not show. NAV CANADA works in a highly specialized field and the public, as well as the flight personnel, have the right to expect it to do everything possible to be a leader in its area of expertise.

In her submission that the standard of care was appropriate in the circumstances, the Minister's representative applied the Gonder test as follows:

(a) Gravity of potential harm

19.15 It is our submission that the potential for grave harm was high in the circumstances at hand since the two aircrafts involved could have collided. We submit that if the two aircraft had collided, the consequences would have been catastrophic; damages to property, death and injuries to the people on the aircrafts and on the ground would have been a certainty. The safety of the two flights involved was jeopardized.

As noted previously, "the greater the potential for substantial injury, the greater the degree of care required."

(b) Alternatives available to the accused

19.16 We submit that the member addressed that element of the test in great detail in her determination.

19.17 She determined that it was insufficient for NAV CANADA to say, "we hire and train carefully"[8]:

[...] The human error and professionalism of licensed employees, such as controllers, regularly raised by the applicant, do not, in my opinion, constitute a defence of due diligence.

The applicant is responsible for the safety procedures implemented (tests, verifications, training, briefings). Nevertheless, as has already been decided in other cases, it is insufficient to say "we hire and train carefully." If the procedures implemented are insufficient, alternatives must be available to prevent offences.

A review of earlier Tribunal cases culminated in the following citation of the British Columbia Court of Appeal in R. v. Gulf of Georgia Towing Co.[9]

The court stated that, because employees were not "infallible people", if the potential consequences are serious it might not be enough "if one does nothing but hire careful people train them carefully and tell them not to [do certain acts],"and that the corporate employer might have to "make adequate provisions in its systems or otherwise" to prevent the damage that may occur "when employees are not as careful as they are told to be." "Due diligence"also requires "adequate information and instructions from the company right down to the man on the job."

At review the Tribunal Member found that there were several failures in NAV CANADA's information system as well as deficiencies related to the supervisor's work.

With regard to the information system the Minister's representative submitted that both the ATS Site Manual (M-6) which Mr. Fox, the team supervisor, was not familiar with, and the Procedures Manual (M-7), enunciate that the team supervisor is responsible for ensuring that operational procedures are adhered to and in compliance with standards. Furthermore, the Member stated at page 23 of her determination:

...the comments by Mr. Fox in his report on irregularities raise doubts ... as to the effectiveness and the comprehension of instructions implemented on the use of the LAHSO procedure.

With regards to the deficiencies relating to the supervisor's work, it was submitted that one of the duties of the team supervisor is to supervise the controllers. The expert witness called by the Minister testified that when he was a team supervisor whenever he was performing a task that would take him away from ensuring operational procedures were being adhered to, he would delegate his powers of supervision to a senior controller. Moreover, it was the conclusion of the Minister's representative that if the supervisor had not been busy preparing the said evaluation when the LAHSO instruction was given, he would have had time to intervene and prevent right away the contravention since several minutes had elapsed between the moment the instruction was given to C-GGSG and the moment the incident occurred. It was the Tribunal Member's view as stated on page 21 of her determination that the ATC would have had "plenty of time to change his mind and amend his instructions"(See Minister's Exhibit M-4 NAV CANADA Transcript, dated August 25, 2002, North Tower Position).

Having looked to the standard of care, the Minister's representative poses the question of what more could be done. With respect to the alternatives available to the accused, the Minister submits that the appellant had the opportunity to anticipate the possible contravention and to take preventive action. In fact, as the Member stated at page 22 of the review determination:

Moreover, we learned from Mr. Boulet's testimony that, not long before the incidents, Transport Canada had conducted an "audit" at the Toronto airport and had concluded that NAV CANADA was not applying the LAHSO procedure correctly.

Mr. Boulet's evidence in chief at page 102 of the transcript:

I am quite confident that every controller at Pearson Tower is well aware of the procedures and it is a requirement for them to be aware.

And if they were not aware of it, I can assure you that Transport Canada, through their own internal audits, which are quite thorough, would have brought that to our attention a while ago.

Ms. Laperle submits that this is exactly what Transport Canada did so the appellant was aware that there was a problem with the LAHSO procedure at Pearson Airport, therefore it knew, or at least should have known, that there was a possibility that a contravention to the CARs could occur and it did not take all reasonable measures to avoid it. And finally, after the incident, the controller did not receive practical training in a simulator on the LAHSO procedure. On this point, the Minister's representative at review asked Mr. Boulet whether it would have been the diligent thing to do, as NAV CANADA , as his employer, to do an evaluation on him on LAHSO before he returned to duty. In response, Mr. Boulet replied "No, there is no requirement for it under the CARs and our manual operations.[10]

On this point, the Minister submits that the mindset of the company is: "if it is not required by the CARs or our Manuals, then we do not have to do it." They do not have initiative to resolve problems. Ms. Laperle stated that it also shows that the company is not trying to prevent other situations like the one we are dealing with in the case at hand. She urges that this is not the way the due diligence defence has to be addressed. Finally, the Minister suggests that there was further evidence to show that NAV CANADA had not been diligent: In submitting that the

Tribunal Member made a finding as to due diligence that was reasonable and supported by the evidence, the Minister's representative stated that at page 8 of the determination, there was evidence on the record that the controllers were not always abiding by the rules:

However, in discussing this with Mr. Fox, Mr. Paré was told by Mr. Fox that while SIRO/LAHSO operations are not permitted, controllers use their own judgment and this situation had occurred before.

Double Jeopardy

Ms. Laperle submits that the factual test regarding double jeopardy may be met but that the second one, the legal nexus is different. She states that one offence is an obligation from the CARs to provide separation and the other is a duty of the team supervisor to make sure that the air traffic services are provided in accordance with the site manual and the operations letter.

Subsection 8.4(4) of the Aeronautics Act - Vicarious Liability

Mr. Morgan is the holder of a licence. Subsection 8.4(4) of the Aeronautics Act is not applicable as the charges are laid against NAV CANADA being the holder of the operations certificate and not as employer of the air traffic controller as would be the case under section 8.4.

In this case the offence is against the company and it is necessary to ask whether the company took all reasonable steps. The appellant says that Mr. Morgan is licensed but this does not change anything. It is the same as an airline and a pilot-in-command. It is not sufficient to say he relies on the licensed pilot, and thus the fact of him being licensed does not change anything.

Charter Issue - paragraph 10(b) of the Charter of Rights and Freedoms / Right to Counsel

Failure to caution NAV CANADA that it was being investigated

The Minister's position is that it is too late to complain on how the evidence was obtained as there were no objections made. The concept of fairness applied to the document holder and to the Minister too. Also no prior notice was given of the Charter challenges.

In conclusion, the Minister proved its case and asks that since there are no grounds for reversal, the panel should uphold the finding of contravention and the $5,000.00 penalty.

DISCUSSION

There is no disagreement on the facts of this case. The three main issues of this appeal are: Section 8.4 of the Aeronautics Act regarding vicarious liability; section 8.5 of the Aeronautics Act regarding due diligence and the defence of double jeopardy. The appellant's representative also argued that NAV CANADA's right to counsel was violated as it was not advised that it was being investigated.

Section 8.4 of the Aeronautics Act:

We reject this ground of appeal. Regarding appellant counsel's argument that NAV CANADA could not be proceeded against as it did not consent to the actions, this panel agrees with the Tribunal Member at review on this point for the reasons set out at the middle of page 19 of the reasons for determination, that the application of subsection 8.4(4) only applies where the operator is pursued vicariously. In the case before us, NAV CANADA is pursued as holder of the ATS certificate, that is, directly and in its own right rather than vicariously as the employer of Mr. Morgan.

Section 8.5 of the Aeronautics Act:

At the time that the American aircraft NWA971 was cleared to go and the Cessna 206 (GSG) was proceeding down the runway, the air traffic controller, Mr. Morgan, did not know the Cessna would do a go around and when this happened, it created an emergency situation and he made a mistake. His evidence was clear on this point, that he did not intend to use LAHSO but it just happened.

In such case, what more could NAV CANADA have done? The training issue is not relevant on the facts as Mr. Morgan stated that he knew the LAHSO procedure. We concur with counsel for NAV CANADA that it is not reasonable to suggest that a supervisor should be at the shoulder of each air traffic controller. That would raise the bar to an unreasonable standard. We accept the analysis and submissions of appellant's counsel and it is our view that NAV CANADA exercised all due diligence on the facts of this case. LAHSO was not an approved procedure. Mr. Morgan was aware that LAHSO was not approved for runway 33L. It was his evidence that he did not intend to use LAHSO.

The dynamic happened, and it is the view of this panel that there was nothing more that NAV CANADA could have done to prevent it. If the Cessna pilot had given his intention earlier, Mr. Morgan might have had time to make other moves.

Further, Mr. Morgan was retrained after the incident of August 25, 2002, but was not checked on LAHSO procedure as this did not occur during his retraining session which is not really detrimental on the facts of this case since Mr. Morgan gave evidence that he knew the LAHSO procedure at the time of the incident. Accordingly, it is our view that the defence of due diligence operates to absolve NAV CANADA from the penalties assessed in this case.

As we allow the appeal in accepting the defence of due diligence, it is not really necessary for this panel to rule on the application of double jeopardy. Therefore, we leave the interpretation regarding possible multiplicity of charges in paragraphs 801.08(a) and (b) of the CARs for future decision. Finally, we also find it unnecessary to review in detail the Charter issue raised by the appellant relating to the right to counsel. Paragraph 10(b) of the Charter of Rights and Freedoms states that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right, which is a circumstance inapplicable to the facts of the matter before us.

DECISION

The appeal is allowed and the monetary penalty of $5,000.00 assessed by the Tribunal Member at review is cancelled.

December 7, 2005

Reasons for Appeal Decision by:

Faye Smith, Chairperson

Concurred:

Allister Ogilvie, Vice-Chairperson
Suzanne Racine, Member


[1] R. v. Stinchcombe [1991] 3 S.C.R. 326.

[2] Marked as Exhibit "B" to the Affidavit of Mr. Floyd.

[3] Land and hold short operations.

[4] Minister of Transport v. Canadian Airlines International, review determination, [1992], O-0260-50.

Leslie G. Marsh v. Minister of Transport, appeal determination, [1996], C-1095-02.

[5] Appeal determination, [2001], O-1918-41.

[6] 62 C.C.C. (2d) 326.

[7] Appeal determination, [1998], W-1536-50.

[8] Review determination at page 22.

[9] [1979] 3 W.W.R. 84.

[10] Cross-examination of Mr. L. Boulet, see transcript, May 19, 2004 at page 145.