Decisions

TATC File No. O-3194-02
MoT File No. PAP5504-55654

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Ravinder Virdi, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 4(2), 6.9


Review Determination
Hilery T. Hargrove


Decision: December 18, 2006

The Minister's decision to suspend the applicant's private pilot licence for a period of 30 days for a contravention of subsection 4(2) of the Aeronautics Act is hereby upheld. Said suspension shall begin on the 35th day after service of this determination.

[1]     A review hearing on this matter was held Wednesday, November 1, 2006 at 10:00 a.m. at the Federal Court of Canada at Toronto, Ontario.

I. BACKGROUND

[2]     This matter arises out of a notice of suspension issued by the Minister of Transport pursuant to section 6.9 of the Aeronautics Act.

A. Preliminary Matters

(1) Issuance and Service of Revised Notice of Suspension

[3]     The notice of suspension lists two counts:

1. On or about April 29, 2004, approximately 25 miles east of Washington, DC, USA, while exercising the privileges of a Canadian Aviation Document, namely your Private Pilot Licence #PA749200, in Cessna 172 aircraft registered C-GUMV, you failed to comply with the applicable aeronautical laws of a foreign state, namely the United States of America. Specifically, you failed to comply with FAR s.91.139 when you entered the Washington ADIZ airspace without complying with the NOTAM applicable to the airspace, thereby contravening paragraph 4(2) of the Aeronautics Act (Application of Foreign Law). Suspension Assessed: Private Pilot Licence - 30 days.

2. On or about April 29, 2004, approximately 25 miles east of Washington, DC, USA, while exercising the privileges of a Canadian Aviation Document, namely your Private Pilot Licence #PA749200, in Cessna 172 aircraft registered C-GUMV, you failed to comply with the applicable aeronautical laws of a foreign state, namely the United States of America. Specifically, you failed to comply with FAR 99.7 when you entered the Washington ADIZ airspace without complying with the special security instruction which required that you obtain a discrete transponder code prior to entering the airspace, thereby contravening paragraph 4(2) of the Aeronautics Act (Application of Foreign Law). Suspension Assessed: Private Pilot Licence – 30 days.

[4]     The notice of suspension to the applicant on the above counts was originally dated April 6, 2005. A new notice of suspension on the above counts dated August 26, 2005 was served by registered mail on the applicant with a letter dated August 26, 2005 from David A. Bland, Acting Regional Manager, Aviation Enforcement, Civil Aviation, Ontario Region, Transport Canada. This new notice of suspension in effect was issued to replace the original notice of suspension of April 6, 2005 to correct an error. Specifically, the notice of April 6, 2005 referenced the incorrect date on which the alleged offence took place. Thus, the notice of April 6, 2005 was withdrawn and the notice of August 26, 2005 was issued to replace and supersede the original one.

(2) Withdrawal of Count no. 2 by the Minister

[5]     The Minister indicated to the Tribunal that they will not be proceeding on count no. 2 contained in the notice of suspension but would only be proceeding on count no. 1. Count no. 2 was therefore withdrawn and will not be considered in this review determination.

(3) Stay of Suspension of Pilot Licence

[6]     In a letter dated September 26, 2005, the applicant requested a review hearing before the Tribunal as well as a stay of suspension of his private pilot licence pending a review determination on the matter.

(4) Applicant's Request for an Adjournment

[7]     Based on the information and documentation received by the Tribunal registry, I am satisfied that the notice of hearing dated September 28, 2006 advising of this hearing being held on November 1, 2006, was delivered to the applicant at his home address on September 29, 2006.

[8]     By letter dated October 26, 2006 to the Tribunal, the applicant requested a postponement of the review hearing to March 15, 2007 indicating that he would be unavailable to attend the review hearing on November 1, 2006 "due to family matters". In a decision dated October 27, 2006 and forwarded to the applicant by Express Post, the applicant's request for postponement was denied by the Tribunal.

(5) Change of Venue

[9]     One final preliminary matter must be addressed at this point. The notice of hearing served on the applicant specified the address for this hearing as follows:

Federal Court of Canada

Canada Life Building

330 University Avenue

Toronto, Ontario

[10]     As a result of a change of the address of the Federal Court of Canada, the review hearing in this matter was held at the following address:

Federal Court of Canada

Courtroom 7B

180 Queen Street West

Toronto, Ontario

[11]     On November 1, 2006, the Registrar contacted the applicant by telephone and advised him of the change of address for the hearing. She was advised by the applicant that he would not be attending.

[12]     I am therefore satisfied that the applicant was made aware of this change of venue and that the change in address did not inhibit or detrimentally affect his right or ability to appear at the hearing, if he had chosen to do so. Thus, I am satisfied that these proceedings have been validly constituted.

II. LAW

[13]     For the purposes of this matter, it is necessary to consider subsection 4(2) and section 6.9 of the Aeronautics Act which form the basis of the Minister's actions in this case.

[14]     Subsection 4(2) provides as follows:

(2) Every person exercising the privileges accorded by a Canadian aviation document in a foreign state and every Canadian aircraft operated in a foreign state shall comply with or be operated in accordance with the applicable aeronautics laws of that state.

[15]     Section 6.9 reads as follows:

6.9 (1) If the Minister decides to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued has contravened any provision of this Part or of any regulation, notice, order, security measure or emergency direction made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at that person's latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

...

(7.1) In a review under this section, a holder, owner or operator referred to in subsection (1) is not required, and shall not be compelled, to give any evidence or testimony in the matter.

(8) On a review under this section of a decision of the Minister to suspend or cancel a Canadian aviation document, the member of the Tribunal who conducts the review may determine the matter by confirming the Minister's decision or substituting his or her own determination.

[16]     The remaining provisions of section 6.9 set out the procedure which must be followed with respect to actions taken by the Minister in suspending or revoking a licence. I have reviewed these and find that the Minister has adhered to the rules and procedures set out therein.

III. EVIDENCE

[17]     The Minister has the onus of establishing that the applicant contravened the Aeronautics Act and therefore presented evidence first. Exhibit M-2 entered into evidence by the Minister is a copy of the applicable foreign aeronautics laws which the applicant is alleged to have contravened being 14 C.F.R. § 91.139 which provides as follows:

§ 91.139 Emergency air traffic rules.

(a) This section prescribes a process for utilizing Notices to Airmen (NOTAMs) to advise of the issuance and operations under emergency air traffic rules and regulations and designates the official who is authorized to issue NOTAMs on behalf of the Administrator in certain matters under this section.

(b) Whenever the Administrator determines that an emergency condition exists, or will exist, relating to the FAA's ability to operate the air traffic control system and during which normal flight operations under this chapter cannot be conducted consistent with the required levels of safety and efficiency –

(1) The Administrator issues an immediately effective air traffic rule or regulation in response to that emergency condition; and

(2) The Administrator or the Associate Administrator for Air Traffic may utilize the NOTAM system to provide notification of the issuance of the rule or regulation.

Those NOTAMs communicate information concerning the rules and regulations that govern flight operations, the use of navigation facilities, and designation of that airspace in which the rules and regulations apply.

(c) When a NOTAM has been issued under this section, no person may operate an aircraft, or other device governed by the regulation concerned, within the designated airspace except in accordance with the authorizations, terms, and conditions prescribed in the regulation covered by the NOTAM. (emphasis added)

[18]     The Minister also entered into evidence as exhibit M-1 the applicable NOTAM issued pursuant to 14 C.F.R. § 91.139 which the applicant is alleged to have violated. The following excerpts from this NOTAM are of particular application in the present case:

FDC 3/2126 ZDC PART 1 OF 4 FLIGHT RESTRICTIONS WASHINGTON DC. THIS IS A MODIFICATION OF INFORMATION PREVIOUSLY ISSUED IN FDC NOTAM 3/1850. EFFECTIVE 0303182000 UTC (MARCH 18 AT 1500 LOCAL) UNTIL FURTHER NOTICE. PURSUANT TO 14 CFR SECTION 99.7, SPECIAL SECURITY INSTRUCTIONS; AND 91.139, EMERGENCY AIR TRAFFIC RULES; THE FOLLOWING PROCEDURES ARE IN EFFECT. PART I. DEFINITIONS. A. THE WASHINGTON DC METROPOLITAN AREA AIR DEFENSE IDENTIFICATION ZONE (DC ADIZ) FOR PURPOSES OF THIS NOTAM ONLY, IS THAT AREA OF AIRSPACE OVER THE SURFACE OF THE EARTH WHERE THE READY IDENTIFICATION, LOCATION, AND CONTROL OF AIRSPACE IS REQUIRED IN THE INTERESTS OF NATIONAL SECURITY. SPECIFICALLY, THE DC ADIZ IS THAT AIRSPACE, FROM THE SURFACE TO BUT NOT INCLUDING FL180, WITHIN THE OUTER BOUNDARY OF THE WASHINGTON DC TRI-AREA CLASS B AIRSPACE AREA; AND THAT ADDITIONAL AIRSPACE CONTAINED WITHIN AN AREA BOUNDED BY A LINE BEGINNING AT 383712N/0773600W; THENCE COUNTER CLOCKWISE ALONG THE 30-MILE ARC OF THE DCA VOR/DME TO 384124N/0762548W; THENCE WEST ALONG THE SOUTHERN BOUNDARY OF THE WASHINGTON DC TRI-AREA CLASS B AIRSPACE AREA TO THE POINT OF BEGINNING. END PART 1 OF 4

. . .

FDC 3/2126 ZDC PART 3 OF 4 FLIGHT RESTRICTIONS WASHINGTON DC. A. EXCEPT AS PROVIDED IN PART B BELOW, NO PERSON MAY OPERATE AN AIRCRAFT, INCLUDING ULTRALIGHT VEHICLES, CIVIL AIRCRAFT, AND PUBLIC AIRCRAFT, IN THIS ADIZ, UNLESS, IN ADDITION TO ALL OTHER APPLICABLE RULES OF 14 CFR, THE AIRCRAFT OPERATOR ENSURES THAT THE FOLLOWING REQUIREMENTS ARE MET: 1. THE AIRCRAFT IS EQUIPPED WITH AN OPERABLE TWO-WAY RADIO CAPABLE OF COMMUNICATING WITH ATC ON APPROPRIATE RADIO FREQUENCIES; 2. THE FLIGHT CREW ESTABLISHES TWO-WAY RADIO COMMUNICATIONS WITH THE APPROPRIATE ATC FACILITY BEFORE OPERATING IN THIS ADIZ AND THE FLIGHT CREW MAINTAINS THE CAPABILITY OF CONTINUING TWO-WAY RADIO COMMUNICATIONS WITH THE APPROPRIATE ATC FACILITY WHILE OPERATING IN THIS ADIZ; AIRCRAFT OPERATING IN AN AIRPORT TRAFFIC PATTERN AT NON-TOWERED AIRPORTS ARE EXEMPT FROM THE ATC COMMUNICATION REQUIREMENT, PROVIDED THEY MONITOR THE AIRPORT CTAF; 3. THE FLIGHT CREW, PRIOR TO OPERATING WITHIN CLASS B, C, OR D AIRSPACE THAT IS WITHIN THIS ADIZ, RECEIVES A SEPARATE ATC CLEARANCE TO ENTER THE CLASS B, C, OR D AIRSPACE; 4. THE AIRCRAFT IS EQUIPPED WITH AN OPERATING TRANSPONDER WITH AUTOMATIC ALTITUDE REPORTING CAPABILITY AS SPECIFIED IN 14 CFR SECTION 91.215; END PART 3 OF 4. (emphasis added)

. . .

A. Patrick O'Neill

[19]     The Minister's first witness was Patrick O'Neill who is employed as an aviation safety inspector for the U.S. Federal Aviation Administration.

[20]     In the course of Mr. O'Neill's testimony, evidence verifying the geographic area in the tri-city area as a restricted airspace from the surface to an altitude of 18 000 feet over the city of Washington, D.C. was presented. (See exhibit M-1 [NOTAMS] and exhibits M-7 and M-8 [maps of Washington, D.C.].)

[21]     Exhibit M-2 sets out paragraph 91.139(c) of Part 91- General Operating and Flight Rules under Title 14: Aeronautics and Space (flight rules) which establishes the rules governing NOTAMs. Paragraph 91.139(c) is of particular significance and provides as follows:

(c) When a NOTAM has been issued under this section, no person may operate an aircraft, or other device governed by the regulation concerned, within the designated airspace except in accordance with the authorizations, terms, and conditions prescribed in the regulation covered by the NOTAM.

[22]     Mr. O'Neill referred to part 3 of the NOTAM (exhibit M-1) regarding the procedure which must be followed in the event a person operating an aircraft in the air defence identification zone (ADIZ). Of particular concern here is the requirement that the flight crew must establish two-way radio communications with the appropriate air traffic control (ATC) facility before operating in the restricted area, must maintain the capability of continuing two-way radio communications with the appropriate ATC facility while operating in the restricted area, and must receive a separate ATC clearance to enter the class B, C or D airspace prior to doing so.

[23]     Mr. O'Neill testified that section 91.139 of the flight rules and the above-discussed NOTAM were in force and effect at the time of the incident here under consideration and I accept his evidence on this point.

[24]     A preliminary pilot deviation report regarding this incident was entered into evidence as exhibit M-3.

[25]     In addition, personal statements of Reed Petersen, quality assurance specialist on duty at the Potomac Tracon ATC, and Mark Nesfeder, air traffic controller on duty at the Potomac Tracon ATC, at the time of the incident, were entered into evidence as exhibits M-5 and M-6, respectively.

[26]     A map of Washington tri-area class B airspace and the Washington sectoral chart were admitted into evidence as exhibits M-7 and M-8, respectively.

[27]     A search result from the Canadian registration mark database indicating that Cessna model 172N, Canadian registration mark C-GUMV, registered to Nexjet Aviation Inc., was entered into evidence as exhibit M-9. I note, for the record, that Nexjet Aviation Inc. is located at the same address as where the applicant Mr. Virdi resides.

[28]     In a letter dated May 24, 2004 from Mr. O'Neill to Virdi R. Singh, notice is given that an investigation into a pilot deviation was ongoing and identifying the aircraft operated by the applicant at the time of the alleged incident (exhibit M-11). The applicant, Mr. Virdi, responded to this letter with his own of May 28, 2004 (exhibit M-12). I am therefore satisfied that Virdi R. Singh and the applicant, Ravinder Virdi, is the same individual.

[29]     Further, the Minister entered a copy of the applicant's pilot licence into evidence as exhibit M-13.

[30]     In a letter dated December 15, 2004 from Oonagh Elliott to the applicant, notice is given of an investigation into the alleged incident; the letter indicates that the alleged offence occurred on April 30, 2004 (exhibit M-15). I questioned Ms. Elliott on this date which differed from the April 29, 2004 date of the alleged offence. Ms. Elliott advised the Tribunal that the April 30, 2004 date appearing in that letter was a clerical error. I am satisfied with this explanation. As a result of this investigation, the Minister issued and served on the applicant the notice of suspension, pursuant to section 6.9 of the Aeronautics Act, for a period of 30 days commencing September 26, 2005.

B. Randolph Horner

[31]     The next witness to give evidence on behalf of the Minister was Randolph Horner who is an ATC specialist. He testified that the aircraft identified as the one being piloted by the applicant entered the ADIZ over Washington without making contact with the Potomac Tracon ATC in accordance with the NOTAM protocols and requirements in effect in that area at the time.

C. Reed Petersen

[32]     The Minister's next witness was Reed Petersen who is a quality assurance specialist from Washington. Mr. Petersen recounted his extensive experience in the field of aviation and ATC. I was impressed by his knowledge and experience and found him to be a very credible witness. He testified as to the steps taken in this matter from the time of the display of the applicant's aircraft on radar when 55 miles out and identified the aircraft as Canadian, registered as C-GUMV. He confirmed that the aircraft was within the ADIZ and prepared a preliminary pilot deviation report (exhibit M-3).

D. Mark Nesfeder

[33]     The next witness to testify for the Minister was Mark Nesfeder. He testified that he was an ATC specialist and was the air traffic controller on duty at the time of the incident in question. He testified that he had over 20 years experience as an air traffic controller. Upon the applicant's aircraft entering the ADIZ, he contacted the aircraft and made a positive identification of the aircraft as being Canadian, registered as C-GUMV. He prepared the personal statement which was admitted into evidence as exhibit M-6.

E. Oonagh Elliott

[34]     The final witness for the Minister was Oonagh Elliott who is an enforcement inspector for Transport Canada with some 18 years experience. Ms. Elliott testified that in November 2004, she was assigned by the Transport Canada Regional Manager to investigate the incident here in question. Based on her investigation, Ms. Elliott testified that she was satisfied that the applicant had contravened subsection 4(2) of the Aeronautics Act, and I agree.

IV. CONCLUSION

[35]     I am satisfied based on the evidence that the applicant was operating Canadian aircraft registered as C-GUMV in the area of the ADIZ in question on April 29, 2004. I am further satisfied that said aircraft, which at the time was being piloted by the applicant, crossed over into the ADIZ without seeking advance clearance and instructions from the appropriate ATC tower contrary to protocols and conditions contained in the applicable NOTAM in force at that time, and in so doing, contravened paragraph (c) of 14 C.F.R. § 91.139. It follows that in so doing, the applicant contravened subsection 4(2) of the Aeronautics Act and is subject to a suspension of his licence in accordance with section 6.9 of that Act. The Minister suspended the applicant's pilot licence for a period of 30 days which, I believe, is appropriate in the circumstances.

V. COSTS

[36]     The final issue which must be addressed is with regard to costs which have been requested by the Minister.

[37]     Section 19 of the Transportation Appeal Tribunal of Canada Act provides as follows:

19.(1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

[38]     In Butterfield v. Canada (Minister of Transport), [2004], appeal decision, TATC file no. P-2933-02, [2004] C.T.A.T.D. no. 47 at ¶ 9 (QL), the Tribunal in considering an appeal of a review determination dealt with subsection 19(1) as follows:

We are aware that jurisprudence most often equates "costs" to court costs, which follow the success of the event, even when applied in a Tribunal setting. However, having regard to the particular wording of this legislation, we find that the term "costs" as used in section 19 is not the same as court costs. We do not consider a tariff pursuant to court rules to be helpful in the establishment of a quantum. The term "costs" is used but the section really acts to dissuade a party from inappropriate behavior. It is the amount that will discourage improper behavior that has to be decided rather than the sum that would indemnify the other party.

[39]     In disposing the Minister's application for costs in that case where the appellant did not appear, the appeal panel had the following to say at ¶ 13:

The decision to award costs is at the discretion of the Tribunal. Although the circumstances fit the criteria of paragraph (b) we have chosen not to award costs. In some instances an applicant's non-appearance may be a surprise to the other party and the Tribunal. Here the appellant made it clear that he would not attend. Many of the applicants before this Tribunal are not represented by legal counsel. We fear that some may lack the sophistication to discern between the concept of costs that may be awarded under this legislation and court costs to the successful applicant. We do not want anyone to be deterred from applying to the Tribunal because of a fear of costs. (emphasis added)

[40]     In the present case, the evidence indicates that the applicant made it clear that he would not be present at the hearing of this matter, and indeed requested that it be adjourned until March 15, 2007 which was denied by the Tribunal. Nonetheless, the applicant was well within his statutory rights under section 6.9 of the Aeronautics Act to apply for this review and is not required to give evidence as part of exercising that right. In light of the facts and the considerations raised in the Butterfield case cited above in ¶ [38], I award no costs in the present case.

VI. DETERMINATION

[41]     I therefore confirm the Minister's decision to suspend the applicant's pilot licence for a period of 30 days.

December 18, 2006

Hilery T. Hargrove
Member
Transportation Appeal Tribunal of Canada