Decisions

TATC File No. P-3002-33
MoT File No. EMS 53164

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Mark Roland Kluge, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.31(1)


Review Determination
Sandra Lloyd


Decision: November 1, 2004

The Minister has proved the offence as alleged in the Notice of Assessment of Monetary Penalty. I therefore uphold the Minister's decision to assess a $250.00 penalty against the Applicant. This amount must be paid to the Receiver General for Canada and received by the Tribunal within thirty-five days of service of this determination.

A review hearing on the above matter was held Thursday, September 16, 2004 at 10:00 hours at Robson Square, in Vancouver, British Columbia.

BACKGROUND

The Applicant Mr. Mark Kluge is chief pilot of Northern Hawk Aviation Ltd. (the "Company"). On February 21, 2004, he was pilot-in-command ("P.I.C.") of Beech Turboprop C-GMAG (the "Aircraft") when it departed the Vernon, B.C. airport at night. Mr. Kluge had filed an IFR flight plan to Vancouver but had elected to do a VFR departure. After departure, he contacted Kelowna tower (the "Tower"), was cleared through the northern portion of Kelowna's control zone (the "Zone") westbound, and was instructed not to climb above 5,000 feet until advised. Tower subsequently radar-identified the Aircraft climbing through 5,600 feet.

Transport Canada alleged that Mr. Kluge contravened Canadian Aviation Regulations ("CARs") subsection 602.31(1) by failing to comply with Tower's instruction not to climb above 5,000 feet, and assessed a monetary penalty against him.

EVIDENCE

The first witness Mr. Claudio Bulfone is a Transport Canada investigator who was assigned to investigate the alleged contravention.

Mr. Bulfone identified a number of documents, including a photocopy of the Company's operations manual. He also identified two pages photocopied from the Canada Flight Supplement regarding the Vernon and Kelowna airports. He noted that the northern portion of the Zone is Class D airspace extending from 4,000 feet ASL to 6,500 feet ASL.

Mr. Bulfone testified that he had listened to Tower's audio recording of the communications it had with the Aircraft on February 21, 2004 and had obtained a copy of it on CD. He played the CD at the hearing and provided an accurate transcript of those communications, which was taken into evidence.

Mr. Bulfone's investigation showed that the weather on the night of February 21 was clear, but that it would have been very dark as there was no moon.

Mr. Bulfone also played, on a laptop computer, a disc of radar display information which he had obtained from the Vancouver area control centre ("ACC"). He projected a visual display of the disc's information from the computer onto a large screen. He also presented a drawing he had made of that information, which included a solid green line representing the Aircraft's track through the Zone. Mr. Bulfone had labelled the solid green line with the Aircraft's "squawk" (assigned transponder code), times, and corresponding Aircraft altitudes. The drawing also showed the tracks of two other aircraft in the area; the approximate position of the Vernon airport on the right; and three dotted green lines which represented possible paths that the Aircraft could have taken prior to being radar-identified by Tower at 5,600 feet.

I accepted the drawing into evidence as I found it accurately represented the radar information that had been displayed on the screen.

During his investigation Mr. Bulfone identified Mr. Don Edwards as the Tower controller that had spoken with the Aircraft on February 21, 2004.

Mr. Bulfone identified a copy of the Company's operations manual. He pointed out section 2.2.2 outlining the chief pilot's responsibilities, and section 4.5, which provided, in part, that "All IFR and night VFR flights shall be conducted along airways or air routes designated as such in the Designated Airspace handbook or the catalogue of Approved Routes."

Mr. Bulfone also identified a copy of the Pacific Region and Route and Approach Inventory manual. He said this is what is meant by a "catalogue of Approved Routes". He said the only instrument departure procedure that he could find for Vernon airport is an IFR departure procedure contained in that manual. Mr. Bulfone also said that he could find no air routes from Vernon. The lowest minimum enroute altitude for an IFR route in that area is 6,100 feet, found on the V302 airway north of the Vernon airport.

Mr. Bulfone's evidence was that there would have been nothing stopping Mr. Kluge from flying the published IFR departure procedure when he departed Vernon on February 21, which would have kept the Aircraft clear of terrain until it was radar-identified. Mr. Bulfone also testified that he thought that Mr. Kluge could have turned left and flown down the lake, or done a right turn up the valley, or could have done a 180-degree turn back toward Vernon, rather than climbing above 5,600 feet when he became concerned about terrain. He also thought that prior to departing Vernon, Mr. Kluge could have obtained a clearance through the Zone at an unrestricted altitude by making a telephone call to air traffic control (ATC).

The second witness was Tower controller Mr. Don Edwards. Mr. Edwards said he had asked the Aircraft for a call out of 4,000 feet because usually he would see aircraft at about that altitude. He would then decide whether it was safe to allow an aircraft to climb higher. However he said that on this occasion the Aircraft first appeared on the radar screen at 5,600 feet. Mr. Edwards said he had issued the 5,000-foot restriction to ensure the Aircraft was below other airplanes on the approach to Kelowna. He thought the Aircraft should have been able to manoeuvre at 5,000 feet in more than one direction. He said that if he cleared the Aircraft above 5,000 feet without radar-identifying it, he could not tell whether it would cross the localizer below other airplanes on approach. Mr. Edwards said he regularly issues this kind of altitude restriction to airplanes departing Vernon at night. He said if the weather is not good enough for an airplane to continue flight westbound at 5,000 feet, it was his experience that airplanes would go south down the lake or stay north of the Zone.

Under cross-examination Mr. Edwards reiterated that it was standard practice for tower controllers to clear airplanes through their control zones without requiring radar identification. Terrain and radar limitations may mean that not all targets can be picked up on radar. In such cases he would base his control decisions on pilot reports, as would any non-radar controller. His experience as a controller was that other airplanes departing Vernon were able to manoeuvre in the area at 5,000 feet.

Mr. Kluge testified on his own behalf. He said that since the weather was good on the night of February 21, 2004 he had elected to do a VFR departure from Vernon to climb and intercept the filed airway to Vancouver. He said he usually does that if the weather is VFR. He does an IFR departure if the weather warrants it.

He said that after completing his after take-off checklist, he called the Tower. He said he usually does this early, even though he knows that Tower will not have yet radar-identified him, as he can then get traffic information. Often, Tower will hand him over to Vancouver very quickly. The sooner he can get his IFR clearance, the better. He said usually he would be radar-identified shortly after selecting the transponder code assigned by Tower.

He said it was not unusual that Tower restricted him to 5,000 feet because of traffic. He said he was busy looking for the traffic that Tower had mentioned (two airplanes on approach) so did not notice whether his transponder was interrogated. He reported that he saw one airplane and Tower cleared him through the Zone westbound. He said this is usually done only if he is radar-identified or if Tower knows where he is. He said he was sure that Tower would break his altitude restriction when he saw the other airplane.

Mr. Kluge said that when Tower told him "no radar contact" he was levelling at 5,000 feet. Travelling at 220 knots, he said there was not much time to stay at 5,000 feet before terrain became an issue. He said that in daylight, you can fly up the valleys, and go under the Zone, but at night that is not a smart idea. He was looking for clearance to climb higher.

Mr. Kluge said he was also monitoring Vancouver Centre on 133.5 and had traffic information from that frequency. He spotted the second airplane and advised Tower, but the Tower controller told him he had no idea where the Aircraft was. Mr. Kluge knew he was crossing the western shore of the lake where the terrain begins to climb. He said if he had flown much longer at 5,000 feet it would have been difficult to discern the terrain.

Mr. Kluge said that after he spotted the second airplane, he began to climb and turn to the right. He said at that point he was not sure he was in the Zone and he thought the turn would assist in staying, or getting, out of the Zone. He said he had no chance to tell the controller he was deviating. He thought the communications from the controller were somewhat ambiguous, and that perhaps he had not made it clear enough that he needed a higher altitude. He thought that the controller had understood why he had climbed, so was surprised when Vancouver ACC later told him an aviation occurrence report had been filed.

Mr. Kluge said he had been upset because he thought he had exercised his best judgment in the situation. He thought that the option he chose – to turn and climb – was the best option. He said he did not go down the lake because that would have put him closer to the aircraft on approach. He also thought terrain clearance was better assured by a right turn instead of a left turn. He said he would not have been comfortable with a 180-degree turn because of the terrain.

Mr. Kluge does not believe he did an incorrect procedure by choosing to do a VFR departure, taking responsibility for terrain clearance. He said that safety is not affected by doing a visual departure unless the weather is questionable. He said the only problem was that an altitude restriction was given to him for a lot longer than he expected. He said that had he known earlier that he was not under radar he would have had other alternatives, but he did not know that until much later.

Mr. Kluge said that when he was picked up on radar, he was 1.7 miles inside the Zone. However he said that under VFR at night it is difficult to pinpoint one's exact location, for example, to discern whether one is inside the Zone or not.

Mr. Kluge said that he feels he did his best to ensure the safety of the flight, and did not feel he put the aircraft in jeopardy.

Mr. Kluge further said that the Route and Approach Inventory manual has two things: routes and approaches. He said all commercial companies have access to this manual, although it is not a requirement to have it. He said it was open to him to choose not to use the IFR departure procedure contained in that manual. He also pointed out that it does not say in the manual how one is to get from Vernon to an approved route. His view is that it would only make sense if one went by the most direct route possible, and that he is not required to do an IFR departure procedure in order to depart VFR out of Vernon.

Under cross-examination, Mr. Kluge admitted that VFR flight means being able to navigate entirely with reference to the ground and that it is the pilot's responsibility to remain VFR. He stated his view that IFR departure procedures and approach procedures are not air routes or airways.

THE LAW

Subsection 602.31(1) of the CARs:

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

(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and

(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.

Section 8.5 of the Aeronautics Act:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

Larry Randal Gould and Minister of Transport, CAT File No. C-1840-02, Review Determination (1999) (submitted by the Minister of Transport)

SUBMISSIONS

Mr. Bailey for the Minister of Transport submitted that the evidence established, on a balance of probabilities, all the elements of the offence as outlined in the Notice of Assessment of Monetary Penalty. He said that Mr. Kluge's testimony implied that Mr. Kluge believed he had due diligence and necessity defences.

Mr. Bailey submitted that in this case, Mr. Kluge was the manager and chief pilot of the Company, and as such we can reasonably conclude that he was fully knowledgeable of the regulations and of his own Company's standard operating procedures. Mr. Kluge knew that the weather was good VFR and that it was a dark night. He approached an area that had reduced visibility due to the lack of lights on the ground. Further, Mr. Bailey submitted that Mr. Kluge knew that a 90-degree turn in either direction would clear him of terrain; that there were two aircraft immediately above him; and that he had been given a 5,000-foot restriction. In spite of that, Mr. Kluge chose to proceed by climbing into airspace that he knew had other aircraft in it and made no attempt to call Tower and advise them of his climb. Mr. Bailey submitted that Mr. Kluge's actions were not reasonable in the circumstances.

Mr. Bailey further submitted that there had been no urgency in the circumstances that faced Mr. Kluge. He submitted that Mr. Kluge had ample opportunity to comply with the altitude restriction in that he could have turned right or left at 5,000 feet. He said it was Mr. Kluge's responsibility to remain VFR as the visibility was reducing. Alternatively, he submitted, Mr. Kluge could have phoned ATC and obtained an IFR clearance prior to take-off.

Mr. Bailey's view was that the Company operations manual required Mr. Kluge to follow a published IFR procedure when departing Vernon airport at night. He further said that although it is true that Mr. Kluge had done the VFR departure many times, and ATC has provided traffic and terrain clearance, this was a perfect example of a situation that can occur when a pilot does not follow the regulations, proceeds into an area of reducing visibility, and is forced by his own mistakes into doing an unreasonable act.

Mr. Kluge admitted in his submissions that he as P.I.C. did not comply with an ATC instruction to maintain 5,000 feet. However he said that the reason he did not do so was because it had become unsafe to do so as time moved on. He said he would have notified Tower of his climb above 5,000 feet if Tower had not called him first. He argued that legality should not come before safety and argued that the case law provided by Mr. Bailey was not relevant as it did not deal with the situation of an unsafe ATC restriction being issued.

On the issue of sanction, Mr. Bailey submitted that the Minister of Transport had been eminently fair in this matter by choosing to charge the individual rather than the Company, which meant that the sanction was much lower. He said that this was because the Minister's intent was to educate and foster better voluntary compliance.

DISCUSSION

The Applicant Mr. Kluge admits that he did not comply with an altitude restriction issued by the Tower, as alleged in the Notice of Assessment of Monetary Penalty. The issue for me to decide is whether the Applicant has made out a defence of due diligence or necessity.

The defence of due diligence requires that the alleged offender prove on a balance of probabilities that he took all reasonable care to avoid the commission of the offence. The defence of necessity requires that the act complained of must have been inevitable and unavoidable and that there was no opportunity for an alternative course of action that did not breach the law. The evidence relevant to these defences includes the following:

1) the P.I.C. elected to depart VFR from an uncontrolled airport in a mountainous area on a clear, dark, and moonless night;

2) the P.I.C. accepted a clearance to proceed westbound through a nearby control zone and a Tower instruction not to climb above 5,000 feet;

3) the P.I.C. anticipated being radar-identified by about 4,000 feet and receiving clearance to climb higher rather promptly, as that had been his experience of what usually happened when he flew this route;

4) instead, Tower was unable to radar-identify the aircraft as soon as the pilot expected and was unable to clear the Aircraft to a higher altitude, due to traffic in the area;

5) the P.I.C. became concerned about rising terrain in front of him and was unsure as to whether he was still within the Zone, so in order to ensure the safety of the Aircraft, elected to climb and turn in an attempt to ensure terrain clearance and clear the Zone.

I find in these circumstances that a defence of due diligence or necessity has not been proven.

There were a number of options that Mr. Kluge could have chosen in order to avoid the commission of the alleged offence:

1) He could have obtained an IFR clearance prior to take-off from Vernon;

2) He could have departed VFR from Vernon but followed the published IFR departure procedure in order to ensure terrain clearance until he was able to get an IFR clearance from Vancouver on the Aircraft radio;

3) He could have made the decision to stay clear of the Zone and/or turn to an area of lower terrain sooner, so that he did not get into the situation where he felt he had to violate an altitude restriction in order to ensure the safety of his flight.

In his testimony, Mr. Kluge stated his view that "the only problem was that an altitude restriction was given to him for a lot longer than expected". I disagree.

In my view, flying in the mountains at night requires a very high standard of care by pilots. Due diligence in the circumstances here would require that the pilot not make assumptions about the actions of other people. Mr. Kluge himself admitted in cross-examination that VFR flight means being able to navigate entirely with reference to the ground and that it is the pilot's responsibility to remain VFR. Once the pilot made the choice to fly VFR westbound through the Zone and accepted an altitude restriction, the pilot ought to have chosen a path of flight that would ensure his aircraft would remain safe at that altitude, until he received further clearance.

I agree with Mr. Kluge that legality should not come before safety. However, by climbing he violated an ATC instruction. That amounted to a violation of the CARs that the law cannot excuse, because it was Mr. Kluge's prior decisions that got him into the "catch 22" situation in which he found himself. My opinion is that in these circumstances, Mr. Kluge must simply accept responsibility for the commission of the offence.

I do not find it necessary to decide whether the Company's operations manual mandates that a published IFR departure always be flown when departing VFR at night.

DETERMINATION

The Minister has proved the offence as alleged in the Notice of Assessment of Monetary Penalty. I therefore uphold the Minister's decision to assess a $250.00 penalty against the Applicant.

Sandra K. Lloyd
Member
Transportation Appeal Tribunal of Canada


Appeal decision
Faye H. Smith, Herbert Lee, William Thornton Tweed


Decision: March 10, 2005

The appeal is dismissed and the assessment of a penalty in the amount of $250.00 is upheld. This amount is to be made payable to the Receiver General for Canada and received by the Transportation Appeal Tribunal of Canada within fifteen days following service of this decision.

An appeal hearing on this matter was held Thursday, January 27, 2005 at Robson Square, in Vancouver, British Columbia at 10:00 hours.

BACKGROUND

The Minister's decision was based on section 7.7 of the Aeronautics Act. The Minister relied on subsection 602.31(1) of the Canadian Aviation Regulations (CARs), in that on or about February 21, 2004, at approximately 02:45 UTC, at or near Kelowna, B.C., Mark Roland Kluge, as the pilot-in-command of an aircraft bearing the registration marks "C-GMAG", did not comply with a properly issued air traffic control instruction. Specifically, Mark Roland Kluge did not comply with an altitude restriction issued by the Kelowna air traffic control tower.

The decision was confirmed by Sandra K. Lloyd on November 1, 2004 following a review hearing held in Vancouver, B.C. on September 16, 2004. It is this decision that has been appealed.

Mr. Kluge contends that the hearing officer's determination did not give due consideration to the appropriate case law, which he maintained served to support his position. Mr. Kluge also believes the hearing officer in this case took into consideration what he deemed to be "irrelevant" information entered into the proceedings by the case presenter.

According to the documentary evidence and the testimony presented to the hearing, Mr. Kluge is President/Managing Director and chief pilot of Northern Hawk Aviation Ltd. On February 21, 2004, Mr. Kluge was the pilot-in-command of a Beech Turboprop aircraft registered as

"C-GMAG" at approximately 02:45 UTC at or near Kelowna, B.C. He departed from Vernon airport, B.C. towards Vancouver, B.C. on VFR. After departure, Mr. Kluge contacted the Kelowna tower and received air traffic clearance to report to Kelowna tower at 4,000 feet and assigned squawk code 0034 for his aircraft registered "C-GMAG".

Mr. Kluge also received an altitude restriction not to climb above 5,000 feet until receiving further advice from Kelowna tower. Mr. Kluge, as the pilot-in-command of "C-GMAG", had confirmed and accepted the air traffic control clearance and understood the altitude restriction.

Mr. Kluge admitted that it is not unusual for him to get an altitude restriction from Kelowna tower. He found there was nothing abnormal about such an instruction. Mr. Kluge was confident that the aircraft "C-GMAG" would be identified at about 4,000 feet by radar, the altitude restriction would be removed quickly, and he would receive clearance to climb higher with the intention of avoiding the terrain. Kelowna tower later radar identified "C-GMAG" climbing through 5,600 feet without prior approval and continued climbing higher to 6,400 feet as confirmed by Mr. Kluge on the radio.

Mr. Kluge alleged that the reason he did not comply with the air traffic controller's (ATC) instruction was because he felt the safety of "C-GMAG" was jeopardized due to the fact that the speed of his aircraft was about 220 knots. With normal cruise power, he did not have enough time to stay at the restricted altitude before terrain became an issue. Mr. Kluge claimed that he did not have a chance to advise Kelowna tower that he was going to be deviating. He was going to take the action first and climbed over 5,000 feet. He claims that he did not have a chance to advise Kelowna tower by radio until later, by which time radar had identified his aircraft, registered "C-GMAG", at approximately 02:45 Z at 5,600 feet.

SUBMISSION OF THE PARTIES

The Appellant

Mr. Kluge states that the evidence does not support a contravention of subsection 602.31(1) of the CARs against him acting as pilot-in-command of aircraft "C-GMAG" at approximately 02:45 on February 21, 2004 at or near Kelowna, B.C.

Mr. Kluge referred to the aeronautical information publication A.I.P. Canada RAC 4-16 as his reference and claimed that his aircraft was jeopardized and that he had exercised all due diligence in order to prevent the contravention.

The Respondent

The Minister's argument is based on the general concepts that findings of fact or credibility should not be overturned unless they are deemed to be unreasonable. The hearing officer's determination was based upon such findings of fact and credibility. Generally, these findings of fact and credibility should not be disturbed on appeal unless there is a significant absence of evidence to support the conclusion drawn, or there is some evidence concerning the finding itself that may be considered unreasonable.

THE LAW

Subsection 602.31(1) of the CARs:

Compliance with Air Traffic Control Instructions and Clearances

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

(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and

(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.

Section 8.5 of the Aeronautics Act:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

DISCUSSION

The constituent elements for Mr. Kluge's contravention of subsection 602.31(1) of the CARs were based on the fact that Mr. Kluge was the pilot-in-command of the aircraft "C-GMAG" at the time the contravention occurred.

The altitude restriction to not climb over 5,000 feet was received on the radio. Mr. Kluge accepted the air traffic control clearance and confirmed the altitude restriction not to climb over 5,000 feet until advice from Kelowna tower was received on the radio (Exhibit M-10). Kelowna tower radar identified that "C-GMAG" was flying at 5,600 feet without permission to do so, and noted Mr. Kluge's continued climb to an altitude of 6,400 feet without prior approval from ATC (Exhibits M-10 and M-11).

Offences under the Aeronautics Act are considered to be strict liability offences. It is not necessary for the Minister to prove that the alleged offender had an intention to commit the offence. Upon proving the elements of the offence, the evidentiary burden shifts to the alleged offender to prove that he or she took all reasonable care. This requires the pilot-in-command to exercise all due care and diligence. This is expressly provided in section 8.5 of the Aeronautics Act. The AIP is only a reference guideline for aviators and is not an aviation regulation, as such (Exhibit D-1).

However, based on all documentary evidence and testimony provided, Mr. Kluge has been unable to prove that he had exercised due diligence to avoid the "catch-22" situation which he claims caused him to contravene CARs 602.31(1). It is noted that in such a case, the pilot has several legitimate options. He can and should have planned ahead prior to departure, but could also have held in VFR along the coast line of the lake for his clearance from ATC, instead of continuing his climb without ATC approval.

The hearing officer upheld the Minister's decision to assess a $250.00 monetary penalty against Mr. Kluge personally rather than penalizing his company. In our judgment, the hearing officer exercised fairness and applied both the law and natural justice to her decision. To her credit, she sought to educate and encourage an aviator to maintain good discipline in airmanship and to employ safe flying practices specifically in "aviate, navigate and communicate" in the future.

DECISION

The appeal is dismissed and the penalty assessed at the review hearing is upheld.

Reasons for Appeal Decision by:

Herbert Lee, Member

Concurred:

Faye Smith, Chairperson
William T. Tweed, Member