Decisions

CAT File No. P-1513-33
MoT File No. EMIS 029625

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Michael L. Soos, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s.7.7
Canadian Aviation Regulations, SOR/96-433, s.602.19(7)

Right of Way, Uncontrolled Airport


Review Determination
Ken Clarke


Decision: October 30, 1997

I find Mr. Michael Soos contravened subsection 602.19(7) of the Canadian Aviation Regulations. I therefore confirm the Minister's Assessment of Monetary Penalty in the amount of $250.00. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this Determination.

A Review Hearing for the matter at hand was held Thursday, October 23, 1997 at 10:00 hours, at the Federal Court of Canada, Vancouver, British Columbia.

ALLEGATION

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

Canadian Aviation Regulations, Part VI, Subpart 2, Section 602.19(7) in that, at approximately 1555 hours Pacific Daylight Saving Time on or about April 9, 1997 at the Castlegar Airport, near Castlegar British Columbia, being the pilot-in-command of an aircraft that was manoeuvering on the surface, namely a SA226 Metro aircraft bearing the Registration Marks C-GPCL, you did unlawfully fail to give way to an aircraft that was landing or about to land.

BACKGROUND

On April 9, 1997, Mr. Soos was the pilot-in-command of a SA226 Metro aircraft designated as Westex flight 417. As that aircraft taxied on the runway for departure from Castlegar, British Columbia, the pilot of a Cessna 172 found it necessary to abort its intended landing.

An investigation followed. Subsequently an assessment of a monetary penalty of $250.00 was made and challenged, leading to today's review.

The weather was not a factor. Castlegar is an uncontrolled airport surrounded by large mountains, and is located near the apex of four deep valleys. The approach to the runway of discussion is crossed by hydro power transmission lines, and back dropped with nearby mountains and a steep mountain highway.[1] Other traffic was in the area.

THE LAW

Subsection 602.19(7) of the Canadian Aviation Regulations (CARs):

(7) Where an aircraft is in flight or manoeuvring on the surface, the pilot-in-command of the aircraft shall give way to an aircraft that is landing or about to land.

PRE-HEARING AGREEMENT

On October 15, 1997, an Agreement of Fact was made between pilot-in-command Michael Soos and Inspector Greg Ostafiew for the Minister of Transport. It was agreed that:

  1. the date of the incident was April 9, 1997
  2. the time was approximately 15:55 hours PDST
  3. the location was Castlegar Airport, Castlegar, British Columbia
  4. the aircraft was C-GPCL (also referred to as Westex 417)
  5. Michael L. Soos was pilot-in-command.

THE REVIEW HEARING

Opening remarks detailed the allegation and procedure. All parties were introduced. Witnesses were excluded. Each was sworn prior to testimony. Mr. Tung, an air traffic controller by profession, was accepted as an agent for Mr. Soos. Originally he had come as a supportive observer. There was no objection. Substantial time was saved by the Agreement of Fact. All witnesses were credible.

EVIDENCE FOR THE MINISTER

Inspector Ostafiew was the Case Presenting Officer. He provided all parties with a binder containing copies of all papers evidencing the Minister's case. Entered into evidence was:

Exhibit M-1: Occurrence Report[2]
Exhibit M-2: Navigation Chart
Exhibit M-3: Aerodrome Chart
Exhibit M-4: Canada Flight Supplement excerpt
Exhibit M-5: FSS tape recording[3]
Exhibit M-6: Transcript of tape recording

Inspector Bachinsky was the first witness. He described why and how the investigation proceeded. Evidence for the Minister was introduced during his testimony, and he described appropriate details. A playback of the tape recording was made while the transcript was followed.

Cross-examination by Mr. Soos explored other traffic, movement during clearance read back, and traffic sequencing. He questioned the stop line requirements, reasons for the investigation, and security of the tape recording.

Mr. J. Tycquet was next questioned. He was the FSS Specialist on duty in Castlegar at the time of the incident. Both his experience and duties were described. Testimony then detailed the movements of Westex 417 and other traffic around the time of conflict. When he looked up after clearance read back, he saw Westex 417 on the runway just past the point of entry. Mr. Tycquet was questioned about a copy of an excerpt from the A.I.P. Canada[4] introduced as Exhibit D-7.

Cross-examination by Mr. Soos touched on the position of the other significant traffic that reported "...is just joining downwind three three full stop."[5] His time of conflict realization was then explored.

Mr. Tung continued the cross-examination. He questioned if there was any confusion between the aircraft that aborted landing and another with similar registration. A procedural motion was made and overruled. Further questions were posed regarding FSS techniques. Again there were questions about the tape recording. It was brought forth that either a particular aircraft had not reported as required, or possibly other information is missing. It was established that the tape was in an unlocked cabinet in Castlegar from the time Mr. Tycquet placed it there until his supervisor secured it on his next working day. Notation was made that pilots are not always where they say they are.

EVIDENCE FOR THE RESPONDENT, MR. SOOS

Mr. Soos was questioned by Mr. Tung. Another A.I.P. copy was submitted and received as Exhibit D-8.[6] A description of the circuit followed. There was much evidence regarding the other aircraft with a similar identification. Only the last letter of the registration differed, and it was in a different location. Mr. Soos then told how the terrain obscures the sky, and how he and his co-pilot looked for traffic and sighted none before taking the runway. He stated everything reasonable was done. With reference to the transcript and in particular to the aircraft of similar identification, it was stated that confusion existed, and only one aircraft of that type was thought to be in the area. Communication was said to be ambiguous.

In cross-examination, Inspector Ostafiew confirmed that use of landing lights was an optional safety method. He also questioned if calling the FSS before taxiing onto the runway was not another safety tool.

In redirect examination, Mr. Soos stated he had two radios to operate, and would never taxi onto the runway with an aircraft on final approach. He also said he was aware of the requirement for the FSS to advise of any conflict. Finally he felt it inappropriate to violate a pilot under these circumstances.

SUMMATION BY THE MINISTER

Summary included it to be beyond rectification by the FSS, and there were other options such as calling and looking, etceteras. He added that if one were prudent one would stop. Inspector Ostafiew noted this to be Mr. Soos's first offence, and the maximum penalty is one thousand dollars.

SUMMATION BY THE RESPONDENT, MR. SOOS

Mr. Soos reaffirmed there was no intent of the occurrence. He stated again that both pilots had looked, and that his actions were reasonable. Continuing, it was said that the FSS Specialist was not diligent with traffic information, and the Cessna 172 pilot acted inappropriately as he had other options. Mr. Soos again said he thought it to be safe, and would not cross the hold line were it not. He finalized by saying the FSS could be more involved, and maybe Castlegar should have a control tower.[7]

ANALYSIS

This Hearing Officer has wrestled with this case. In particular, the missing transmissions on the tape recording have caused concern. Other traffic is also a major consideration. The difficulty in sighting traffic at Castlegar is also noted.

CONCLUSION

Tampering with a tape recording without leaving some evidence would be remarkable for anyone. Certainly it could not be Mr. Soos as he had departed. No one else would have reason to tamper with it. I conclude the transmission is missing simply because it was not made. Other traffic may be confusing, but one must be cognizant of ALL traffic. The FSS Specialist was very busy and had little, if any, opportunity to act differently. Due to the difficulty in sighting traffic, one must be extra vigilant and use all resources.

There is no defence of having acted with all due diligence, as a radio call to the FSS before taxiing onto the runway could have been made to enquire as to the whereabouts of the traffic that reported joining downwind, the key word being "before" and not "as." Almost two minutes passed from that time until Westex 417 went onto the runway. At the anticipated speed of a Cessna 172, that would put it where it was. Fortunately the pilot reacted without further incident. The serious nature of this oversight cannot be taken lightly. The pilot-in-command is the only one with access to the park brake. Mr. Soos did not deny the event; an eye witness saw it happen, and the Minister has met his requirement to prove the facts on a balance of probabilities.

DETERMINATION

For the above described reasons, I find Mr. Michael Soos contravened subsection 602.19(7) of the Canadian Aviation Regulations. I therefore confirm the Minister's Assessment of Monetary Penalty in the amount of $250.00.

NOTATION

I draw the attention of Mr. Soos to the Aeronautics Act. Provision is made for one to seek removal of certain information from one's file at Transport Canada. As this matter is not the first of this type of occurrence before the Tribunal, I urge the Minister to re-examine the issue of control towers.[8]

Ken Clarke
Member
Civil Aviation Tribunal


[1] Exhibit M-2: Navigation Chart

Exhibit M-3: Aerodrome Chart

[2] Investigation caused by report

[3] Real time recording; single copy entered as evidence

[4] Aeronautical Information Publication, RAC 1-3 and RAC 1-4, October 10,1996

[5] Line 30 of the transcript (Exhibit M-6)

[6] A.I.P. Canada, RAC 4-16, July 17, 1997

[7] Castlegar previously had a control tower

[8] Robert Scott Mepham v. Minister of Transport, CAT File No. A-1374-02