Decisions

CAT File No. A-1476-33
MoT File No. 6504-P-125186-029369

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

David John Lynch, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.31(1)(b)

Responsibility of Pilot-in-Command, Mitigating Factors, Departure Clearance, Failure to Comply


Review Determination
Allister W. Ogilvie


Decision: February 2, 1998

At the commencement of the hearing, counsel for Captain Lynch admitted that the alleged violation had occurred; however, he wished to address the propriety of the sanction. The mitigating factors are such that some reduction is in order. The sanction is therefore reduced from $250.00 to $150.00. This amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.

A Review Hearing on the above matter was held January 20, 1998 at 10:00 hours at the Federal Court of Canada, in Fredericton, New Brunswick.

BACKGROUND

On January 20, 1997, Air Canada flight ACA 4610 had been cleared for a Fredericton One Departure from Fredericton en route to Saint John, New Brunswick. It was subsequently alleged that the pilot-in-command did not comply with the departure clearance which was received and accepted by him.

At the commencement of the hearing counsel for Captain Lynch admitted that the alleged violation had occurred. However, he wished to address the propriety of the sanction. In doing so he wished to question the flight service station (FSS) specialist who had handled ACA 4610 on the day in question.

EVIDENCE REGARDING SANCTION

Mr. Miles, on behalf of the Minister, called Mr. D. MacRitchie who was the FSS specialist on duty at the time of the offence. He testified that he recalled having passed a Fredericton One Departure clearance to ACA 4610, and that it had been accepted. A few minutes later the aircraft taxied to position, broadcast its intention and commenced the take-off roll. Soon after take-off he saw the aircraft start a turn to the right.

Cross-examination of Mr. MacRitchie by counsel for Captain Lynch centred on his duties, as a specialist, and the actions that he took in regard to ACA 4610. Several excerpts from the Flight Service Station Manual of Operations Procedures (MANOPS Manual)[1] regarding radiotelephony procedures, clearances, readbacks and corrections were entered as Exhibit D-2. These excerpts address the duties of an FSS specialist in various circumstances.

The FSS tape (Exhibit M-1) reveals that the pilot making the radio transmission for ACA 4610 broadcast an intention to depart Fredericton that was not consistent with the Fredericton One Departure. The MANOPS Manual regarding readbacks requires the specialist to ensure that clearances or instructions and other information are read back correctly and to advise the pilot accordingly. The specialist did not correct the misstatement when replying but did reiterate a Fredericton One Departure.

When the clearance cancellation time was extended by one minute, the specialist, while informing ACA 4610 of the change, repeated that the clearance was a Fredericton One Departure which was acknowledged by ACA 4610.

When on the take-off roll ACA 4610 again transmitted an intention to climb to ten thousand feet, contrary to the restriction found in a Fredericton One Departure. Mr. MacRitchie acknowledged that the flight was on the roll but did not query the intention to climb to ten thousand feet. He testified that once the aircraft was on the roll, procedures required him not to communicate further with that aircraft.

Testimony elicited showed that the specialist's actions were not fully in accord with the requirements of the MANOPS Manual.

ARGUMENT

Mr. Miles, on behalf of the Minister, argued that the penalty should be upheld, as this was a commercial, passenger carrying flight, and that there were no mitigating circumstances. He argued that there must be a deterrence factor established and that in this case the penalty was not undue.

Mr. Fenn, on Captain Lynch's behalf, argued that there should be no sanction. He asserted that the system had broken down, that there should have been a team effort but that the Air Traffic Control part of the team had let Captain Lynch down. In effect, the chain of events had trapped him.

Mr. Fenn submitted to the Tribunal a copy of an appeal case, Minister of Transport v. Wyer[2], (as reported in the Civil Aeronautics Jurisprudence, Volume 3, by Transport Canada, Document No. TP 4311 E) which was instructive in addressing sanction. Indeed the case does provide a thorough review of the principles of sanction.

The determination states in part:

Certainly there are a number of factors which exist in finding the proper balance within the principles of sentencing the assessment of a penalty or other sanction. These factors will be considered, some in aggrevation [sic] and others in mitigation.

Without attempting to limit what such factors may include, the following may be considered:

1. Aggrevating factors:

  • infractions involving dishonesty,
  • planned breaches,
  • premeditated breaches,
  • extent of harm to victims of the offence,
  • past record of similar offences,
  • prevalence of the offence

2. Mitigating factors:

  • no previous offences,
  • time since last offence,
  • degree of remorse,
  • whether or not an admission of the offence,
  • degree of cooperation with authorities,
  • delay between the commission of the offence and the time of the sentence,
  • conduct (involvement) of any "victims",
  • restitution,
  • type of operation (commercial or private flight),
  • impact on aviation community,
  • special factual circumstances,
  • relevance of enforcement manual recommendations,
  • effect of a monetary v. suspension penalty on individual,
  • occurrence impact on aviation safety,
  • manner of proceeding by authorities.

Ultimately, the principles enunciated and the factors affecting the level of penalty must be considered on an individual basis in the context of the circumstances of the specific occurrence. The list noted above is not intended to be in any particular prioritized order nor is the list necessarily complete.

Upon consideration of the factors enunciated in the Wyer case, I do not believe that any aggravating factors arise.

As to mitigating factors, the pilot-in-command did admit to the offence. There was no danger occurring thus no immediate impact on aviation safety. The nonstandard handling of the flight by the specialist can be viewed as special factual circumstance.

This last factor is emphasized by Mr. Fenn in his argument for no sanction. However, I also find the Wyer case instructive when at page 3 it states:

... Failure to comply with instructions from a controller must be considered a very serious offence. The regulatory scheme promulgated by Transport Canada which gives rise to the orderly and safe movements expected in controlled air space must be rigorously enforced and when non-compliance is observed, the infraction disposed of in such a way as to provide both personal and general deterrence in the aviation community and seen by the public to be dealt with in a way which encourages absolute compliance in the interest of safety and the avoidance of any speculation that the fine imposed is nothing more than a licence permitting the breach. ...

Although the FSS specialist did not correct ACA 4610 when the crew provided an incorrect readback, he did reiterate, on three occasions that the clearance was a Fredericton One Departure. For reasons unknown, the crew consistently held a wrong perception of the requirements of that departure.

There is no doubt that the pilot-in-command of an aircraft is ultimately responsible for the flight which he commands, and he must ensure that clearances received and accepted are complied with and that air regulations are obeyed. That responsibility remains despite the omissions of other players in the system. For this reason, I cannot agree that no sanction is proper. The mitigating factors are such that some reduction is in order, but the sanction must reflect that the failure to comply with instructions from a controller is serious and that the sanction provides both personal and general deterrence in the aviation community and can be seen by the public to be dealt with in a way that encourages absolute compliance in the interest of safety.

DETERMINATION

For the foregoing reasons the sanction is reduced from $250.00 to $150.00.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Transport Canada Aviation, Flight Service Station Manual of Operations Procedures, Document No. TP2043.

[2] Minister of Transport v. Wyer, CAT File No. O-0075-33, Appeal Determination