Decisions

CAT File No. A-1374-02
MoT File No. 6504-P-370105-28666

CIVIL AVIATION TRIBUNAL

BETWEEN:

Robert Scott Mepham, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. s.6.9, 7.3(3)
Air Regulations, C.R.C. 1978, c.2, s.101(1), 529

Landing, Right of way in an uncontrolled airport, Surveys, Exhibits, Aircraft spacing


Review Determination
Ronald E. McLeod


Decision: May 27, 1997

The Minister has failed to prove that the document holder, Robert Scott Mepham, has contravened section 529 of the Air Regulations. The seven-day suspension of the document holder's Canadian aviation document, pursuant to section 6.9 of the Aeronautics Act, is cancelled.

The Review Hearing in the above matter was held Friday, May 2, 1997 at 10:00 hours at Saint John, New Brunswick.

Prior to this Review Hearing, Ms. Atkinson requested, April 29, 1997, that the Civil Aviation Tribunal postpone the hearing because one of her witnesses, Mr. Claude Buraglia, was unavailable to give testimony. As the Review Hearing had been originally scheduled January 29, 1997, I felt that there had been ample time for Ms. Atkinson to ensure that her witnesses were present, and the request for delay of the hearing was denied.

BACKGROUND

The Notice of Suspension reads as follows:

Pursuant to section 6.9 of the Aeronautics Act the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulations, s.529 in that on or about the 30th day of July, A.D., 1996, at or near the Saint John airport, Saint John, New Brunswick, while pilot-in-command of an aircraft, to wit: DeHavilland DHC-8 operating as ARN824, while manoeuvring on the ground by moving to position on runway 14 did fail to give way to an aircraft about to land, namely C-FZTO, causing that aircraft to carry out a 360 degree turn, thereby committing an offence contrary to section 7.3(3) of the Aeronautics Act, R.S. 1995, c. A-3, s.1 as amended.

Immediately prior to the beginning of the Review Hearing, final documents were exchanged between the Minister and the Respondent's lawyer, Ms. Atkinson, giving full disclosure to both parties.

MINISTER'S CASE PRESENTATION

Acting on behalf of the Minister, Mr. Ed Tataryn, Enforcement Officer, Transport Canada, stated that he would be presenting his case through a number of exhibits as well as the presentation of three witnesses to support the allegation that Mr. Mepham has contravened section 529 of the Air Regulations.

The first witness called was Mr. Scott MacDonald. Mr. MacDonald identified himself as an employee of Nav Canada acting as Regional Manager responsible for flight service stations (FSS) including Saint John, New Brunswick. During his testimony he identified a printed transcript of the voice conversations between the FSS and multiple aircraft which were present in the circuit at the Saint John airport at the time of the alleged incident, July 30, 1996. He outlined the methodology for the safekeeping of the tape as well as the transport of the tape to regional headquarters to allow for the decompressing and transcribing of the tape. The transcript of the voice recordings was entered as Minister's Exhibit M-1. An audiocassette was also included as part of Exhibit M-1. An occurrence report filed against Air Nova flight 824, the occurrence taking place at 2122 Zulu, July 30, 1996 and signed by Mr. MacDonald, was submitted as Exhibit M-2. Copies of the airport diagram from the Canada Air Pilot including an enlarged copy were included as Exhibit M-3. On the enlarged copy was a fine tracing of the taxi route of the Air Nova flight 824.

Mr. MacDonald identified a copy of taxi times for Air Nova Dash-8 aircraft using runway 14. Five different timings were taken between March 10, 1997 and March 12, 1997. These taxi times were taken by the flight service specialist and submitted by Mr. MacDonald at the request of Transport Canada and entered into evidence as Exhibit M-4. Exhibits M-5 and M-6 are copies of the journey log for Dash 8, Canadian registration marks C-FPON shown to be owned by Air Nova, and the journey log identified Captain Mepham as the pilot-in-command July 30, 1996.

Ms. Atkinson, on cross-examination, posed a number of questions to Mr. MacDonald, specifically regarding Exhibit M-4, the taxi times for Dash 8 aircraft. Mr. MacDonald was asked who conducted the tests, where they were conducted from, and what the weather was at that time.

Mr. MacDonald replied that the tests were conducted by the flight service specialist at the request of Transport Canada. The specialists were located in the control tower at that time, approximately slightly over a mile away from the button of runway 14. Mr. MacDonald could not definitely remember the type of weather at that time, but on further discussion with Ms. Atkinson agreed that winter conditions were prevalent at that time, and the weather may have been poor on the days in question. Ms. Atkinson suggested to Mr. MacDonald that the taxi times may have been long as Air Nova was just returning from a lengthy strike, and the pilots may have been overly cautious. Mr. MacDonald agreed this may have been possible.

Mr. MacDonald was asked as to what the obligations of flight service specialists were. He replied that it was the obligation of the flight service specialist to advise of the preferred or active runway, local weather conditions, altimeter settings, air and ground traffic in the region and to provide a service to allow safe and expeditious movement of aircraft. When asked if the flight service specialist had an obligation to advise of potential conflict, he replied "yes." When asked specifically, Mr. MacDonald replied that, if an aircraft was in the taxi way and there was conflicting traffic, the flight service specialist would request the departing aircraft to hold short. A final question for Mr. MacDonald was whether or not he was familiar with any landmarks on the approach path for runway 14. Mr. MacDonald replied he was not aware of any landmarks within one mile of final for runway 14.

The Minister then called Mr. Fred Boddington to give testimony on the Minister's behalf.

Mr. Boddington identified himself as the holder of a commercial pilot licence with more than 6,500 hours as well as an instructor's rating Class 2 with more than 5,500 hours of instruction and a total of thirty-three years flying experience. He had been flying at the Saint John airport since 1975. On July 30, 1996, he was employed as an instructor for Atlantic Flight Centre. At the time of the alleged incident, he was pilot-in-command of a Cessna 172, call letters C-FZTQ, and was giving circuit training as part of a refresher course for a licensed pilot. (Incidentally, at no time was the pilot under instruction identified, nor was that pilot asked to appear in court to give testimony, although Mr. Boddington did make a comment that he had been subpoenaed himself to appear in court on behalf of the Minister.)

Mr. Boddington's testimony was not only lengthy, but at times Mr. Boddington, through no malice or prejudice, gave conflicting testimony. Despite his apparent willingness to be as helpful as possible in his testimony, the total accuracy of his testimony would have to be called into question.

Mr. Boddington testified that, as pilot-in-command of a Cessna 172, he was doing a circuit exercise and was on the downwind leg to runway 14 when Air Nova came on the air and spoke to flight service and was advised that there was traffic in the circuit. Air Nova then asked how far on the downwind was the Cessna 172, and Mr. Boddington replied, as quoted from the transcript Exhibit M-1, "We're half way down, we're going to a full stop on this one." Mr. Boddington did not receive a response from the Air Nova flight and continued with his normal left circuit. The circuit had to be normal as there are hills on the downwind leg 725 feet above sea level so one must go beyond these before one lets down and turns left base.

At this point Mr. Tataryn showed Mr. Boddington a reply from Captain Mepham, which was Captain Mepham's response to a Transport Canada allegation that he had violated section 529 of the Air Regulations. Captain Mepham, in his letter (Exhibit M-7), states that he "noticed the C-172 start to turn a tight left base. He was obviously closer than he intended and therefore he elected to do a 360 deg. turn as a result." Captain Mepham further stated "We couldn't call rolling due to frequency congestion. As soon as we could we did and departed promptly." Mr. Tataryn posed the question to Mr. Boddington: "Mr. Mepham states in his letter concerning your circuit that you were obviously closer than you intended. And he also states that your base leg was tight. Is that true?" Mr. Boddington replied: "No, sir." (Review Hearing transcript p. 4-5) Mr. Mepham's letter of reply was accepted as Exhibit M-7.

Mr. Boddington continued with his testimony. On turning final, the Dash 8 was seen to be still on the button of runway 14. He said they "Continued expecting him to depart. He had his clearance to go. We were running at the slowest possible speed. We went in as far as we could. He still sat there. We had no choice but to make a 360 degree turn on the final approach." (Review Hearing transcript p.5-6)

Mr. Boddington was asked by the Tribunal Member as to the position of the Dash 8 when on final, and Mr. Boddington said that the Dash 8 was pointing in the proper direction for takeoff, but he had not commenced his takeoff. The Tribunal Member then asked Mr. Boddington approximately how far back from the button to runway 14 was he. Mr. Boddington replied that he was approximately 3,000 to 3,500 feet back and proceeding at the slowest possible approach speed.

In an excerpt of subsection 101(1) of the Air Regulations, submitted as Exhibit M-8, the definition of landing is highlighted as follows:

"landing", in respect to an aircraft, means the act of coming into contact with a supporting surface and includes the immediately preceding and following acts"

An excerpt from The Concise Oxford Dictionary[1] defining "precede" was submitted as Exhibit M-9.

At this point in Mr. Boddington's testimony he was asked to identify what subsequently became Exhibit M-10. This was a summation of telephone notes from Fred Boddington as compiled by Mr. Ed Tataryn and dated January 30, 1997. From further testimony it became apparent that Mr. Boddington was requested by Mr. Tataryn to time a number of circuits done by Cessna 172 C-FZTQ and submit them to him. Mr. Tataryn compiled these into approximate times for different legs of a normal circuit. Further testimony showed that these times were taken during the month of January, and that the circuits were done on runway 32 and not runway 14. Although initially Mr. Boddington agreed that these were appropriate times for a circuit based on his experience, on further questioning by Ms. Atkinson as well as by the Tribunal Member, Mr. Boddington agreed that circuit times can vary considerably depending on the circumstances.

In cross-examination by Ms. Atkinson, Mr. Boddington again repeated that his call left base was made once he was established on left base and not before. He also agreed that in turning left base that a standard rate one turn was done which should take approximately thirty seconds and agreed that it probably took a minute and one-half to proceed from mid left wind to establish on left base. In response to questions about the position of Air Nova relative to his own aircraft, he replied that he was able to see the Air Nova backtracking runway 14 while he was proceeding down wind, and when he commenced his turn to left base, the Air Nova aircraft was already positioned on runway 14 where he had been for a short period of time. Mr. Boddington was further questioned as to his actual position when the call to left base was made. He stated that the call was an alert to tell Air Nova that he was still coming, although the transcript did confirm that the call of left base was made prior to Air Nova receiving its clearance. Mr. Boddington was then asked again as to the position of Air Nova flight and agreed that the Air Nova flight was on the button and turned, ready for takeoff prior to his aircraft turning from down wind to left base.

He agreed that Air Nova had stated its intentions regarding runway 14 and takeoff twice, once while taxiing and once while backtracking runway 14.

Further testimony centred on whether or not Mr. Boddington turned either short or tight onto left base. At one point Mr. Boddington was agreeing that he did turn tight, but later he corrected himself on this testimony. When asked why he did not call final, he replied that the frequency was quite busy, and his call may have been stepped on by someone else simultaneously because it does not appear on the transcript. The 360-degree turn was made to the right approximately half way between the button and the approach lights, and an emergency was not declared.

On redirect Mr. Tataryn wished to clarify the times as recorded by Mr. Boddington for an average circuit, and it was agreed that the average time from mid downwind to touchdown was two minutes and forty-five seconds.

At the request of the Tribunal Member, Mr. Boddington was also asked to further elucidate as to the breakdown of the times, how they were determined, how they were obtained and under what circumstances.

The Minister's third witness was Mr. Christopher Steeves. Mr. Steeves identified himself as employed by Nav Canada as a flight service specialist with four and one-half years of experience. On July 30, 1996, Mr. Steeves was the flight service specialist on duty in the FSS Saint John airport. He described the duties of a flight service specialist as providing airport advisory and communications link to arriving and departing aircraft. When contacted by Air Nova 824 for the advisory, the advisory was given as well as traffic Cessna 172 which was left hand down wind conducting circuits on runway 14. Air Nova 824 queried the position of the Cessna 172 who responded that it was half down wind. Air Nova then stated that it was backtracking runway 14 and would accept a VFR departure and I advised them that I would have to get Centre on the phone for that. He testified that Air Nova did not ask the Cessna 172 to extend its downwind.

When asked how long it would take normally to get a clearance from Centre, Mr. Steeves replied twenty seconds to four minutes based on personal experience.

During Mr. Steeves' testimony a number of exhibits were introduced. Exhibit M-11 is a diagram of Uncontrolled Aerodrome VFR Circuit Procedures with highlighting of the departure communication requirements as follows:

  • Report intentions before taking the runway.
  • Ascertain by radio and visually that no conflict is likely during takeoff.
  • Monitor the designated frequency until well clear of the area.

Exhibit M-12 is an Aviation Notice dated April 27, 1995 concerning pilot operating practices at uncontrolled aerodromes. Highlighted in this Aviation Notice was: "there is a problem at uncontrolled aerodromes.... Pilots operating IFR at uncontrolled aerodromes do not establish any priority over aircraft operating VFR at that aerodrome." Also highlighted is section 529 of the Air Regulations. Exhibit M-13 consists of a number of components of A.I.P. Canada (highlighted), specifically dealing with IFR Departures from Uncontrolled Airports (RAC 7-8), Instrument Flight Rules – Departure Procedures (RAC 7-1).

Taxi Holding Positions During IFR Operations (RAC 4-5):

At uncontrolled aerodromes, pilots awaiting takeoff should not proceed beyond the holding position signs or holding position markings until there is no risk of collision with landing aircraft. (RAC 4-5)

Aircraft Operations – Uncontrolled Aerodromes (RAC 4-15):

It is essential that pilots be aware of and look for other traffic, and exchange traffic information when approaching or departing from an uncontrolled aerodrome

Also highlighted are: VFR Communication Procedures at Uncontrolled Aerodromes With MF (mandatory frequency) (RAC 4-19) and VFR Release of an IFR Aircraft (RAC 6-2).

Exhibit M-14 is a copy of a Transport Canada Aviation publication entitled Instrument Procedure. Highlighted is Airport Advisory Service (p. 3-3), VFR Release of an IFR Aircraft (p. 4-13) and Use of the MF (mandatory frequency) and ATF (aerodrome traffic frequency) (p. 3-27) and IFR Departure Procedures at Uncontrolled Aerodromes (p. 3-28).

On cross-examination by Ms. Atkinson, Mr. Steeves stated he was a pilot. He agreed that if there is any sign of conflicting traffic, then it is the responsibility of the flight service specialist to intercede.

Ms. Atkinson asked Mr. Steeves to explain a comment as recorded on the audio tape: "You're putting a lot of faith in the phone system there buddy." Mr. Steeves agreed that this was his comment. What he meant by it was that Air Nova was assuming that it would get its clearance quickly. Ms. Atkinson suggested that if Mr. Steeves felt that Air Nova was not going to get its clearance quickly and that there might be conflict, then would it not be his duty to inform Air Nova and to have it hold short. Mr. Steeves did not reply to this.

In further testimony Mr. Steeves stated that the control tower was approximately 1 – 1½ miles from the button of runway 14, that the circuit the 172 flew appeared to be normal but could not be exact as to where the turn to left base was commenced. He agreed that the back track to runway 14 is relatively short and that an aircraft should be able to back track runway 14 and depart with another aircraft down wind if the aircraft departing is VFR.

When asked at what point the Cessna 172 did the 360-degree turn, he stated one mile back based on his experience as to aircraft calling one mile short for runway 14. Mr. Steeves does not remember the Cessna 172 calling final for runway 14. He agreed that it is common practice to request a VFR departure and then added, "if the aircraft anticipates a delay."

When asked "Did you indicate that there may be a delay?" Mr. Steeves replied, "I might not have indicated that to them."

Mr. Tataryn concluded his case presentation by introducing as Exhibit M-15 a copy of a Civil Aviation Tribunal Review Determination, Richard Albert Davidson and Minister of Transport (CAT File No. C-0341-02), in which Richard Albert Davidson, the document holder, was found to have contravened section 529 of the Air Regulations and was given a 14-day suspension.

DOCUMENT HOLDER'S CASE PRESENTATION

Ms. Atkinson asked to introduce a sworn statement from Mr. Buraglia, and this was allowed. Mr. Buraglia, in his sworn statement, stated that, at the time of Mr. Mepham's alleged infraction of section 529 of the Air Regulations resulting in this Review Hearing, he was the first officer and co-pilot of Air Nova flight 824. He stated that it had been his experience that a Cessna doing a standard circuit should take up to six minutes from takeoff to landing. He added that, when Air Nova flight 824 was holding short of runway 14, they (flight crew) were informed that the Cessna was halfway on the downwind leg. He felt, based on experience and professional opinion, that there was ample time to back track runway 14 to position and take off. He also stated that, in his opinion, the Cessna had turned short onto left base. He added that it was standard practice to obtain IFR or VFR approval for takeoff while taxiing to position.

Mr. Buraglia expressed his opinion that, if the Cessna had turned left base in accordance with usual practice in the industry, there would have been no conflict. The Cessna created the situation by turning left base early. As there had been full disclosure prior to the Review Hearing, I assumed that the Minister had a copy of Mr. Buraglia's statement. The Minister offered no objection when the statement was accepted for consideration by myself. As Mr. Buraglia was not available at the hearing to defend his statement, I will be taking that into consideration when I review the statement.

Ms. Atkinson called as her first witness, Captain Robert S. Mepham. Mr. Mepham identified himself as the pilot-in-command of Air Nova flight 824. He had been employed by Air Nova since October 1988. He briefly reviewed his flight experience, 1700 hours first officer BAE 146, 5300 hours Dash 8, 1000 hours Cessna 402, 200 hours Beech 99, Chief Flying Instructor (CFI) Deer Lake 2½ years, 600 to 700 hours total time and held a Class II instructor rating.

At the request of Ms. Atkinson Captain Mepham then related his account of Air Nova flight 824 as it departed the Saint John airport July 30, 1996. He stated that as pilot-in-command he was in the left seat and after start up initiated taxiing of the aircraft to the right. While taxiing to the right, he noticed a Cessna 172 just taking off from runway 14. He proceeded to taxi to Delta taxiway.

During the taxiing to Delta the first officer who was doing the radio work requested the flight advisory from FSS which was received while inside Delta taxiway. The Air Nova flight crew was told that the Cessna 172 was half way down wind and felt that the Cessna would not be a problem and proceeded to backtrack to runway 14. While aligning on the button, again turning from left to right which would place the aircraft on the outside of the turn, Mr. Mepham noticed the Cessna 172, now down wind, begin an early turn to left base, and he commented upon this to the first officer. Once the aircraft was aligned on the button of runway 14, the crew of Air Nova waited for their clearance and felt it took approximately twenty seconds to obtain. As soon as we had our clearance and could call rolling, we began our takeoff.

Mr. Mepham was asked a number of specific questions by Ms. Atkinson, did he hear the comment of the flight service specialist regarding "faith in the phone system?" Mr. Mepham replied in the negative. Previous testimony by Mr. MacDonald had also stated that, although this was not broadcast on the air, all comments of the flight service specialists are recorded on tape, which is why the comment appeared on the transcript. Mr. Mepham stated that, if the Cessna 172 had flown a normal circuit, there would not have been a problem. He felt that he had followed mandatory radio procedure required as he had reported his intentions twice, once on the taxiway and once while backtracking. He stated that if an aircraft had been on final or on left base he would have held short. Also flight service did not advise him of any possible conflict and, if they had, he would have held short because it would have been in his best interest to do that. He did not believe that any violation had occurred and proceeding onto the active runway while awaiting a clearance was something that was done all the time in the industry. He himself had done it millions of times with no problem. He also stated that Air Nova was already backtracking runway 14 when he heard that the Cessna was going to do a full stop.

He stated that he first became aware of the alleged violation in a letter he received from Transport Canada approximately two months later. (Testimony earlier by Mr. Boddington indicated he had not initiated the complaint, and Mr. Tataryn acknowledged that the alleged violation initiated with the flight service specialist, Mr. Christopher Steeves.)

Mr. Mepham was specifically asked regarding the survey of taxi times done by Transport Canada on Air Nova aircraft in March 1997. He stated that these taxi times were probably average for winter conditions. The weather was bad that day, and Air Nova had just returned to work after a lengthy strike. I suspect that a number of the pilots were a bit rusty and were being extra careful at that time, particularly in a high wind as the Dash 8 has a high tail plane, and one has to be very careful taxiing a Dash 8 in a high wind.

On cross-examination by Mr. Tataryn, Mr. Mepham stated that as pilot-in-command he was ultimately responsible for safe operation of the aircraft. When asked why he did not talk directly to the Cessna 172, he replied: "There was no need to because we knew where he was and we felt we had lots of time to depart. Based on experience usually a clearance would come through in one minute and thirty seconds and if the clearance was late then flight service would usually advise us." Mr. Tataryn suggested that he was making assumptions. Mr. Mepham replied that there was no other scheduled traffic due in at that time, and the flight crew would, therefore, not anticipate any delay. Mr. Tataryn reminded Mr. Mepham that there were other forms of air traffic that did use IFR such as corporate and general aviation, and Mr. Mepham eventually agreed to this.

The next question posed by Mr. Tataryn was somewhat interesting to me as he asked Mr. Mepham: "You assumed that the Cessna 172 was going to fly a normal circuit. The Minister's case all along has presented the Cessna 172 as flying a normal circuit, in fact suggesting that the Cessna 172 had extended down wind in order to accommodate the Dash 8 and had not turned to a short left base." The manner in which this question was asked suggested that there would not have been a problem if the Cessna 172 had flown a normal circuit.

When asked why he did not have direct communication with the Cessna 172, Mr. Mepham replied: "We were anticipating our clearance momentarily and the frequency was busy."

As part of Mr. Mepham's testimony, Exhibits were introduced. In Exhibit D-1, excerpts from A.I.P. Canada (RAC 1-3) are highlighted, namely paragraph 1.1.3(b) which pertains to Airport Advisory Service. Also highlighted is the last paragraph of paragraph (p): "If the FSS Specialist becomes aware of potential conflict, departing aircraft will be requested to hold short of the active or preferred runway until the conflicting aircraft or ground traffic is off the runway."

Exhibit D-2, selective excerpts from the Transport Canada Flight Training Manual[3], specifically Exercise Seventeen, The Circuit. Highlighted is a paragraph concerning the landing phase of the circuit and reads as follows:

Technically, the approach to landing commences on the downwind leg, at the turning point from downwind to base leg. Exactly where or when the turn onto the base leg is made will depend largely on the strength of the wind. The stronger the wind, the steeper the angle of descent will be during the final straight approach, and therefore the sooner the turn onto the base leg should be made.

A second paragraph highlighted concerned correct spacing as follows:

Correct spacing is a judgment you must develop as quickly as possible. It takes into account such matters as wind direction and strength, and the circuit speeds of other aircraft. Correct spacing may be accomplished by widening or narrowing your circuit and/or increasing or decreasing airspeed.

Exhibit D-3, also from the Transport Canada Flight Training Manual, is entitled Exercise Eighteen, Approach and Landing. The following sentence was highlighted:

Although the approach to landing and the landing itself may be considered as two separate manoeuvres, one is usually an integral part of the other.

Ms. Atkinson called as her second witness, Captain Raymond Gelinas. Ms. Atkinson wished to have Mr. Gelinas accepted as an expert in air traffic safety. I reviewed Captain Gelinas' curriculum vitae. Although Captain Gelinas has extensive flying experience with approximately 10,000 hours and 8,900 hours command time, has been a previous flight instructor and has held a Category A Check Pilot Certificate, nowhere in Captain Gelinas' curriculum vitae is there any indication that he has completed an approved course in aviation safety or has written examinations to achieve a qualification in this area. I therefore was unwilling to accept Mr. Gelinas as an expert in air safety. Ms. Atkinson then requested that Mr. Gelinas be allowed to give opinion in the area of enforcement. Ms. Atkinson stated that Mr. Gelinas is a member of the Airline Pilot's Association of Canada Air Traffic Services Enforcement Committee and has personally been involved in the last fifteen enforcement cases in the Atlantic Region involving members of A.L.P.A. In view of this, I agreed to allow Mr. Gelinas to offer his opinion regarding aviation enforcement.

Mr. Gelinas testified that, after determining the position of the Cessna based on experience in Saint John of the clearance time delay of one minute to one and one-half minutes, he would have done the same as Captain Mepham. Holding short only if the Cessna had been on final or left base. Replying to a question about aircraft spacing in uncontrolled airspace, Mr. Gelinas replied that aircraft must accommodate each other based on the principles of airmanship, and he would expect FSS to warn an aircraft of a possible conflict as they often did. FSS often advised of delays and, in his experience, wait time for a clearance in Saint John, New Brunswick was approximately one to one and one-half minutes with usually no delay in getting the clearance. In reply to specific questions from Ms. Atkinson, Mr. Gelinas stated that the Cessna 172 did not do a normal circuit and did not extend its downwind, and the flight service specialist did not relay his concern regarding a possible conflict. Captain Mepham did nothing wrong. He did not compromise safety, and the taxi times for Dash 8 aircraft are not consistent but are at the mercy of the runway and taxiways.

Mr. Gelinas stated that there have been fourteen violations in the Atlantic Region in the last two years, three of which have come from Saint John.

On cross-examination by Mr. Tataryn, Mr. Gelinas responded that the pilot-in-command of the aircraft has the responsibility for separation, and the aircraft that is about to land has the right-of-way. He replied in the affirmative when asked if he would proceed from the taxiway to the button to runway 14 with no clearance, with an aircraft on the downwind circuit. Further discussion about this point clarified that the Dash 8 was already backtracking runway 14 when told that the Cessna 172 was mid down wind. This concluded the document holder's case presentation.

SUMMATION

Mr. Tataryn, on behalf of the Minister, summated his case by stating that, on a balance of probabilities, Mr. Mepham did not give way to the other aircraft, which was supported by eyewitness testimony from the flight service specialist and Mr. Boddington. Mr. Boddington stated clearly that he was going to land, and there was no attempt to communicate with the Cessna 172 by Mr. Mepham. Mr. Mepham did not show any consideration to the pilot of the Cessna 172 and placed the travelling public at risk.

Ms. Atkinson stated that Mr. Mepham did not violate section 529 of the Air Regulations and pointed out that Captain Mepham exercised due diligence and that no attempt was made by the crew of Cessna 172 to speak to the crew of Air Nova also.

At the conclusion, I addressed both parties as to the conduct of the hearing. I wondered why the other pilot in the Cessna 172 had not been called upon to give testimony to collaborate the testimony of Mr. Boddington who had been subpoenaed to appear. I also wondered why the flight service specialist, Christopher Steeves, was not asked to give a more thorough explanation as to why he initiated the occurrence report against Captain Mepham.

Captain Mepham's inability, or unwillingness to acknowledge other forms of air traffic using the IFR system suggested either a superiority attitude or disdain toward these other aviation groups.

CONCLUSIONS

This case deals primarily with aircraft spacing and right-of-way in an uncontrolled airport. The irony of this is that this problem has come into existence due to the closure of control towers at a number of large airports in Canada in order to achieve financial savings by Transport Canada. The fact that unsafe practices are occurring at uncontrolled airports is illustrated in the Aviation Notice entered as Exhibit M-12.

The alleged infraction in this case is that Air Nova flight 824 pilot-in-command, Captain Robert S. Mepham, is alleged to have contravened section 529 of the Air Regulations which states:

Where an aircraft is in flight or manoeuvring on the ground or water, the pilot-in-command shall give way to other aircraft landing or about to land.

Robert S. Mepham is alleged to have interfered with the landing process of the Cessna 172, Charlie Foxtrot Zulu Tango Quebec, pilot-in-command, Mr. Boddington.

Testimony, not only from Mr. Boddington, but also from Captain Mepham states that the Cessna 172 was still in the downwind leg of its circuit when the Air Nova flight was actually on runway 14 backtracking to the button. The Air Regulations, Exhibit M-8, define landing as follows:

"landing", in respect of an aircraft, means the act of coming into contact with a supporting surface and includes the immediately preceding and following acts

In conjunction with this, the document holder's Exhibit D-2, which is in fact an excerpt of The Circuit which is part of a Flight Training Manual of Transport Canada, states as follows:

Technically, the approach to landing commences on the downwind leg, at the turning point from downwind to base leg.

Clearly as the Cessna 172 was still on the downwind while the Dash 8 aircraft was already on the active runway would imply that the Dash 8 had precedence over the Cessna 172 as the Cessna 172 had not yet begun its turn to base leg and therefore had not begun its approach to landing. One would therefore have to conclude that Captain Mepham has not violated section 529 of the Air Regulations.

The Cessna 172 also did nothing wrong. The fact that the Cessna 172 did continue its circuit onto base leg and then final, in no way affected the takeoff of the Dash 8 aircraft. One could suggest that the Cessna 172 should have extended its downwind or at least slowed up its base on final approach. Mr. Boddington suggested that he had done that, and it still was not sufficient as the Dash 8 had not left. Nevertheless the Dash 8 did have clear precedence over the Cessna 172, and the Cessna 172 should give way. The fact that Mr. Boddington had to do a precautionary 360-degree turn is because Mr. Boddington had continued with his final approach fully expecting the Dash 8 to depart prior to his arriving over the button of runway 14.

The following is a brief commentary concerning certain aspects of the case presentation by both parties.

Specifically I would like to address two exhibits introduced by the Minister. Exhibit M-4 is a compilation of taxi times for Air Nova Dash 8 aircraft done in March 1997 as recorded by flight service specialists at the request of Transport Canada. The second is Exhibit M-10, a compilation of average circuit times which was done by Mr. Fred Boddington at the request of Mr. Tataryn and compiled and presented by Mr. Tataryn. These surveys were done in an attempt to obtain an approximate circuit time for a Cessna 172 and obtain approximate taxi times for a Dash 8 aircraft operated by Air Nova as it taxied to position on runway 14.

Although it would be certainly helpful for the Minister's case to be able to relate to average circuit times for a Cessna 172 and average taxi times for a Dash 8, in order to give validity to these surveys they would have had to be conducted in such a manner that bias and statistical significance were factored into the surveys. Both of these surveys were markedly flawed. Both were conducted in the winter time, whereas the alleged infraction occurred in the summer; so the weather was not matched to the alleged occurrence. Although the circuit time survey was done using the same aircraft, it was not done on the same runway and downwind course. In addition, no mention was given as to the performance capabilities of the aircraft, whether it had been serviced in the interim, what weight was on board, how many persons were on board and who was actually flying the aircraft.

In regards to the taxi times for the Dash 8 aircraft, it was pointed out that the time survey was done in March, again in the winter season. The weather at that time was agreed by all to be poor which may have prolonged taxi times, and the Air Nova pilots were just coming off a lengthy strike, and as suggested they may have been more prudent than necessary in their taxiing. The observers would have to be considered as biased.

For these multitudes of reasons, both these surveys, I believe, could not be considered by myself to have any statistical significance. I believe the Minister should be chastised for producing exhibits such as these which occupied a considerable length of time in the Review Hearing, greatly prolonging the hearing. They did nothing more than bring confusion to the Minister's case and weaken the Minister's presentation.

Mr. Boddington in his testimony was quite sincere and at times tried to be very helpful to both parties in replying to their questions. Unfortunately, this resulted in Mr. Boddington contradicting himself, and it made it very difficult to follow Mr. Boddington's testimony and, I believe, lessened the impact of his testimony.

Mr. Christopher Steeves' testimony, I believe, could have been more explanatory as to why an occurrence report was issued by himself against Captain Mepham. Mr. Steeves' comment as recorded on the transcript of the compressed tape concerning "putting a lot of faith in the phone system there buddy" suggests a possible annoyance with the air crew of Air Nova 824 and may have influenced his later decision to issue an Occurrence Report against Air Nova flight 824.

In the final analysis, this case concerns two aircraft, one of which was in the circuit and one of which was preparing to depart. This was an uncontrolled airport, and in an uncontrolled airport there are guidelines to establish precedence. Clearly the Air Nova flight was already on the active runway with the Cessna 172 still down wind, and by definition the Cessna 172 had not commenced its landing approach; therefore, the Air Nova flight did not interfere with the Cessna 172 and did not contravene section 529 of the Air Regulations. Whether Air Nova flight 824 should have proceeded onto the active runway without its clearance is another question. Testimony from both Mr. Mepham and Mr. Gelinas suggested that this is a common occurrence, and I believe this to be the case; therefore, Mr. Mepham is not guilty of anything more than any other commercial pilot does.

Nevertheless, I believe Mr. Mepham exhibited poor airmanship in that he did hasten his departure somewhat when it probably would have been more prudent to have remained in Delta taxiway until he had obtained his clearance. Both pilots exhibited poor airmanship in that neither was willing to talk directly to the other, but rather both wished to talk to flight service. Mr. Boddington also did not call turning final or call established final. Perhaps if he had, then the Air Nova flight crew, knowing that Mr. Boddington had turned final and they were still waiting for the clearance, may have initiated direct communication with the Cessna 172 to say they were still waiting for their clearance. All agreed that the communications channel was congested at that time, making two-way conversation between aircraft difficult. To this end I make the following two recommendations:

1. At large uncontrolled airports such as Saint John, New Brunswick, that Transport Canada reinstitute a policy of two frequency channels – one for ground control and one for air control. This certainly would reduce the congestion on the air frequency and would allow more readily two-way communication between aircraft.

2. My second recommendation is that, where there are large uncontrolled airports such as Saint John, New Brunswick which have FSS on site, the IFR departure rules be changed so that departing IFR aircraft are required to hold short in the taxiway until they have received their clearance through the FSS before proceeding onto the active runway.

REVIEW DETERMINATION

The Minister has failed to prove that the document holder, Robert Scott Mepham, has contravened section 529 of the Air Regulations. The suspension of the document holder's Canadian aviation document pursuant to section 6.9 of the Aeronautics Act is cancelled.

Dr. Ronald E. McLeod
Member
Civil Aviation Tribunal


[1] J.B. Sykes, The Concise Oxford Dictionary of Current English, 7th ed. (Oxford: Clarendon Press) at 807.

[2] Transport Canada Aviation, Instrument Procedure, 3rd ed. (Minister of Supply and Services Canada, 1995) at 3-3, 3-27, 3-28 and 4-13.

[3] Transport Canada Flight Training Manual, 3rd ed. (Toronto: Gage Publishing Limited), at 100-101.