Decisions

CAT File No. P-2216-33
MoT File No. 042988

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Arthur M. Smolensky, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.31(1)(b)

Failure to Comply with ATC Instructions


Review Determination
Sandra Lloyd


Decision: May 11, 2001

The Minister has proved the offence as alleged, and I confirm the assessed monetary penalty of $250.00. That 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 Friday, April 20, 2001 at 10:00 hours at the Sinclair Centre in Vancouver, British Columbia.

BACKGROUND

On December 20, 2000, Transport Canada issued a Notice of Assessment of Monetary Penalty to the Respondent which read, in part, as follows:

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

Canadian Aviation Regulations 602.31(1)(b) in that on or about September 30, 2000 at approximately 17:24 PDT, at or near the Vancouver International Airport at Richmond, BC, being the pilot-in-command of an aeroplane bearing Canadian registration C-GSMO you did unlawfully fail to comply with an air traffic control clearance received and acknowledged by you, namely that you departed runway 08R after takeoff clearance was issued to depart on runway 26L.

Penalty - $250.00

BURDEN OF PROOF

The Applicant, Minister of Transport, has the burden of proving, on a balance of probabilities, each element of the alleged offence: 1) that the Respondent was the pilot-in-command on the flight in question; and 2) that the Respondent unlawfully failed to comply with an air traffic control clearance received and accepted by him.

THE LAW

Section 7.7 of the Aeronautics Act:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

Paragraph 602.31(1)(b) of the Canadian Aviation Regulations (CARs):

602.31 (1) Subject to subsection (3), the pilot-in-command of an aircraft shall

[...]

(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command and

(i) subject to subsection (2), in the case of an IFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, and

(ii) in the case of a VFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, when so requested by the air traffic control unit.

EVIDENCE

The Minister's first witness was Transport Canada Enforcement Inspector Ms. Suzanne Baumeler. Upon assuming conduct of this investigation, she called C-GSMO's registered owner, Omega Air, and talked to Operations Manager John Morris. Mr. Morris faxed to Ms. Baumeler the front page of the logbook for C-GSMO as well as a copy of the logbook page for September 30, 2000. Ms. Baumeler later visited Mr. Morris in person and he confirmed that the faxed pages she showed him were excerpts he had taken from the logbook of C-GSMO and faxed to her. The aircraft had by this time been sold so the original logbook was unavailable. The fax with logbook pages was entered as an exhibit.

The logbook showed one flight only for September 30, 2000, and shows the aircraft departed from YVR, the pilot was Smolensky, and it was signed with pilot licence #VRP256846. Ms. Baumeler had checked Transport's database and confirmed this licence number was that of the Respondent, Mr. Smolensky.

Ms. Baumeler, in the course of her investigation, visited the YVR control tower and listened to portions of certain original ATC tapes from September 30, 2000: automatic terminal information service (ATIS) 124.6, clearance delivery 121.4, ground control 121.7 and tower 118.7. She made copies of portions of the tapes and these cassette tape copies were played at the hearing. She also provided transcripts of the tapes which were entered as exhibits, along with the cassettes.

The ATIS tape specified that runway 26L was in use. On 121.4, GSMO said it was VFR, was cleared for a Garry Point departure, and was told that runway 26L was in use. On Ground Control 121.7, GSMO was again told the runway was 26L.

On the tower frequency tape, 118.7, GSMO was told the wind was 240 at 9 knots. When GSMO was cleared for take-off, the runway number given by the controller was not clear. However, I found from the cadence of the controller's voice that the number sounded more like "26" than "08", which would have been the other possibility. In any case, the word "left" following the runway number was clearly audible on the tape.

In each case on the tapes where a transmission was made to GSMO, a response to the transmission was made from that aircraft, although in no case did the pilot specifically read back the runway number.

Ms. Baumeler said that in December 2000, the Respondent, Mr. Smolensky, attended at her offices to listen to the tapes. Later, Counsel for Mr. Smolensky requested to listen to the original tapes at YVR tower, so Ms. Baumeler did that with him.

The Notice of Assessment of Monetary Penalty was issued to Mr. Smolensky but the fine remains unpaid.

The Minister's second witness was Mr. Gary Chesham, an air traffic controller in YVR tower. He testified that on September 30, 2000 he was monitoring a trainee controller working the tower south position. The trainee was talking on the radio, but Mr. Chesham was ultimately responsible for the duties carried out by the trainee. The position involved handling both tower frequency 118.7, which is used for runway 08R/26L, and the outer tower frequency, 124.0. Mr. Chesham said that both he and the trainee faced south in the tower to visually observe runway 08R/26L.

Mr. Chesham said that there was a radar screen in front of the trainee. The controllers used that radar to track the aircraft using the outer tower frequency 124.0.

Mr. Chesham testified that GSMO was cleared from the south side of 08R/26L to taxiway "E" for departure. This taxiway intersects the runway from the south in about the middle of the runway at a right angle. There are only two possibilities for departure from the position to which GSMO was taxied on "E": 08R or 26L. Mr. Chesham said that the trainee cleared GSMO to take off on runway 26L. Then an aircraft called on 124.0, and both controllers looked down at the radar screen to confirm the position of that aircraft. When they returned their attention to 08R/26L, they observed GSMO accelerating down runway 08R, that is, headed in the wrong direction for take-off. They thought at this point it was too late to stop him. However, they had previously cleared another aircraft to position and hold on runway 26L. Fortunately, that aircraft was still behind the hold line, so the trainee controller did the appropriate thing to prevent a collision by telling the other aircraft to hold short of the runway, which it did.

Mr. Chesham testified that the Garry Point departure is only available for runway 26 departures.

At the close of the Minister's evidence, the hearing was adjourned for lunch. Following the break, Mr. Smolensky did not return to the hearing. Counsel for Mr. Smolensky advised that he would not be calling any evidence and that Mr. Smolensky was on his way to Calgary.

SUBMISSIONS

The Applicant, Minister of Transport, concisely summarized the evidence relevant to each element of the alleged offence: the identity of the aircraft, the identity of the pilot, and the failure to comply with the clearance to take off on 26L. He submitted that the matter was clear. The pilot was cleared to take off on 26L and he did not; he took off on 08R.

Counsel for the Respondent, Mr. Smolensky, submitted that a statement that Mr. Smolensky made to Ms. Baumeler on the day he attended her office, after being warned, and having advised her that he did not wish to make a statement, ought to be inadmissible because of the Canadian Charter of Rights and Freedoms. I have disregarded that statement, and I have not mentioned it in the summary of evidence above, because the statement is unnecessary to my determination of this matter. I specifically declined to rule on the admissibility of the statement under the Charter since I was given no authorities on the issue and in any case the statement has no bearing on the outcome here.

Counsel for Mr. Smolensky also submitted that there was no acknowledgment of runway 26L by the pilot of GSMO in any of the taped transmissions. He submitted that, specifically with respect to the take-off clearance, there could be no acknowledgment of runway 26L for take-off because in the transmission from the tower the number 26 was not clearly audible. He referred to the CARs 602.31 requirement that a clearance must be followed only if "received and accepted" by the pilot. He submitted that there has to be specific acknowledgment of a clearance before there can be a breach as alleged in the Notice of Assessment of Monetary Penalty. It appears that his view is that since there was no specific acknowledgment of the runway by the pilot, it could not be said that the clearance to take off on runway 26L was received and accepted by the pilot within the meaning of paragraph 602.31(1)(b) of the CARs; therefore, there was no breach.

In reply, the Minister submitted that it is common knowledge that VFR instructions can be acknowledged in a variety of ways and that there is no requirement that the pilot of a VFR aircraft read back clearances verbatim. He pointed out that this was also demonstrated by the transcripts and the evidence of Mr. Chesham. He noted that the take-off clearance was clearly acknowledged, and submitted that it was unlikely that a pilot would make such acknowledgment without knowing which runway he was to take off from. He said that any pilot unsure of the take-off runway at an international airport would ask. He also noted that the word "Left" was clear in the take-off clearance transmission.

The Minister asked that the penalty assessed be upheld as a reasonable amount. Transport Canada's Aviation Enforcement Procedures Manual[1] provides that this amount is the recommended amount for a first offence of this nature.

CONCLUSION

I accept the Minister's submissions and the evidence of Mr. Chesham and the tapes that no specific, verbatim acknowledgment of clearances by VFR pilots are required. Rather, a VFR pilot may accept a clearance in a variety of ways. This view is confirmed by the wording of subparagraph 602.31(1)(b)(ii) of the CARs. It specifically provides that in the case of a VFR flight, a pilot shall read back the text of a clearance "when so requested by the air traffic control unit", forcing the conclusion that the pilot need not read back the text of a clearance when not requested to do so.

The ATIS stated that runway 26 was in use. The pilot was advised on 121.4 that his runway was 26L. He was also given a Garry Point departure which is only used for runway 26. Mr. Chesham testified that GSMO was cleared for take-off on 26L. On the tape, although it was not clear, it sounded like the pilot was cleared for take-off on runway "26" Left. Even if the pilot had not clearly heard the words "26" on his take-off clearance, he certainly would have heard the word "Left", which in the circumstances could only refer to runway 26. I find on all this evidence that the pilot was cleared for take-off on runway 26L.

By acknowledging the take-off clearance with the words "GSMO," I find that the pilot received and accepted the clearance to take off on 26L.

The controllers observed that GSMO instead took off on 08R.

The logbook makes it clear that Mr. Smolensky was the pilot of GSMO at the relevant time.

The Minister has clearly proved on a balance of probabilities each element of the offence alleged.

The Respondent, Mr. Smolensky, chose not to give evidence. It is unfortunate that we have no explanation from this pilot as to why such an egregious error was made, with such potentially disastrous consequences.

DETERMINATION

The Minister has proved the offence as alleged, and I confirm the monetary penalty assessed.

Sandra K. Lloyd
Member
Civil Aviation Tribunal


[1] TP 4751E, Second Edition, 1999.