Decisions

TATC File No. P-3079-02
MoT File No. EMS 54017

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Robert Elliot, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Canadian Aviation Regulations, SOR/96-433, s. 602.96(3)(g)


Review Determination
E. David Dover


Decision: June 2, 2005

I uphold the decision of the Minister to suspend Mr. Elliot's helicopter pilot licence and confirm the 60-day suspension. Said suspension shall begin on the thirty-fifth day after service of this determination.

A review hearing on this matter was held April 6, 2005 at 10:00 hours, at the Federal Court of Canada, in Vancouver, British Columbia.

BACKGROUND

On November 19, 2004, a Notice of Suspension of a helicopter pilot licence was issued to Mr. Robert Elliot, the applicant, by the Minister of Transport, for a period of sixty (60) days, pursuant to section 6.9 of the Aeronautics Act, alleging that Mr. Elliot had contravened paragraph 602.96(3)(g) of the Canadian Aviation Regulations (CARs).

Mr. Robert Elliot appointed Stephen D. Gill of the law firm Edwards, Kenny & Bray of Vancouver, B.C. as his agent, and by letter of December 3, 2004, Mr. Gill requested a stay of suspension on this matter. The Chairperson of the Tribunal, Faye Smith, granted a stay on December 7, 2004 with the following determination, "That the suspension be stayed until the review of the decision of the Minister has been concluded."

THE LAW

Paragraph 602.96(3)(g) of the CARs:

DIVISION V - OPERATIONS AT OR IN THE VICINITY OF AN AERODROME

General

602.96 (1) This section applies to persons operating VFR or IFR aircraft at or in the vicinity of an uncontrolled or controlled aerodrome.

[...]

3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

[...]

(g) where the aerodrome is a controlled aerodrome, obtain from the appropriate air traffic control unit, either by radio communication or by visual signal, clearance to taxi, take off from or land at the aerodrome.

OPENING STATEMENTS

The case presenting officer, Claudio Bulfone, stated that the Minister would prove that Mr. Elliot was the pilot-in-command of a Bell 206 helicopter, registration C-GZBL, which departed Abbotsford Airport, a controlled airport with an operating control unit, without obtaining a radio or visual clearance to depart on June 15, 2004.

Mr. Gill indicated that his client was treated in a non-professional and confusing manner by the tower operator. He stated that he was not disputing the fact that his client was the pilot of the aircraft and did land and depart from Abbotsford, B.C. on June 15, 2004.

THE MINISTER'S CASE

Mr. Claudio Bulfone called the following witnesses:

Inspector Ross Bertram

Mr. Bertram stated that he was a civil aviation inspector employed by Transport Canada and based in Vancouver, B.C. He testified that he received a Civil Aviation Daily Occurrence Report (CADORS) from NAV CANADA outlining a take-off without clearance at Abbotsford Airport on June 15, 2004 by a Bell 206 helicopter, registration C-GZBL.

Mr. Bertram stated that he commenced his investigation of the CADORS action by requesting the control tower voice recording tapes for the period of the alleged infraction. Mr. Bertram outlined that he made duplications of the voice tapes and had written transcripts produced so a written record would be available. Inspector Bertram entered a number of exhibits:

M-1: Canada Flight Supplement dated 10 June 2004 for the Abbotsford Airport

M-2: Control tower voice tape recording - ground controller

M-2: A Abbreviated control tower written text of M-2

M-3: Control tower voice tape - controller - departure

M-3: A Abbreviated control tower written text of M-3

M-4: Control tower voice tape recorded in its entirety from NAV CANADA'S file storage

M-5: Certificate of registration for Bell 206B, serial number 371, registration C-GZBL

M-6: Aircraft journey log

Mr. Bertram stated that when he received the CADORS he assigned it to Mr. Dan Hamelin of Transport Canada. Mr. Hamelin was not available to continue with the file so Mr. Bertram proceeded with the investigation. Mr. Bertram testified that it was he who made the copies of the transmissions from the original NAV CANADA file tape. He stated it was he who supervised the copying of the transmissions to the written documents contained in Exhibits M-2A and M-3A.

Cross-examination

During cross-examination conducted by Mr. Gill, Mr. Bertram stated that he copied the tapes

(Exhibits M-2 and M-3) from the original tape, which was stored at the Abbotsford tower. The original tape was installed and played for Mr. Bertram by the resident Tower Manager of NAV CANADA and this tape was in secure storage for a period commencing two days after the CADORS was issued.

Mr. Bertram testified that he had no special training in tape duplication and he did not interview other controllers who were on duty at the time the incident occurred. Mr. Bertram stated that nowhere on Exhibits M-2, M-3 or M-4 (the complete original tape) did he hear a departure clearance being issued to C-GZBL.

Roger Precious

Mr. Precious indicated that he was a licensed air traffic controller certified for all three positions at the Abbotsford control tower. He stated that he was working the inner tower position on June 15, 2004 when he observed the helicopter C-GZBL take off without a clearance. He also stated that it was he who talked to C-GZBL and his voice is on the voice tapes. Mr. Precious testified that it was he who filled out the CADORS which outlined the departure violation.

Cross-examination

In reply to questions from Mr. Gill, Mr. Precious indicated that he did not see the pilot nod his head towards the tower and he gave the pilot taxi instructions but not a departure clearance.

Inspector Dan Hamelin

Inspector Hamelin testified that he was given the original CADORS but was unable to complete the investigation and returned the file to Inspector Bertram. He indicated that it was he who obtained the documentation contained in Exhibits M-5 and M-6.

There was no need to explore these exhibits as Mr. Gill was not contesting the fact of licensing of Abbotsford Airport or the fact that Mr. Elliot was in command of C-GZBL when the incident occurred.

THE APPLICANT'S CASE

Mr. Gill presented a motion to dismiss the allegation because the Minister had failed to present evidence of authenticity of the voice tapes and had not produced more individuals from NAV CANADA.

After consideration, the motion was denied as I felt it was important to hear all the evidence that was to be adduced and Mr. Gill had indicated that he was going to bring forth Mr. Elliot as a witness.

Robert Elliot

Mr. Elliot stated that he was an experienced high flight time helicopter pilot with endorsements on a number of different types of helicopters. He further indicated that he was familiar with the Abbotsford Airport and on June 15, 2004 he was approaching from the east to re-fuel at Godspeed fuel services.

Mr. Elliot testified that he obtained an approach clearance to the re-fueling facility but to hold clear for clearing traffic and then land. This he did, but he stated that on the approach he was treated in a very non-professional manner. He indicated that there was a considerable amount of cross-talk and non-related transmission, which caused him discomfort and unnerved him.

Following a ten-minute re-fueling period he started up and obtained a clearance from a different controller, which Mr. Elliot thought, contained a taxi and departure clearance. Mr. Elliot stated that even though the gender of the controller had changed, he was still discomforted because of the way he had been treated on the inbound leg.

Mr. Elliot admitted that he had apologized for a mistake (Exhibit M-3 and M-3A) but his understanding was that he was apologizing for the controllers and not himself. He further stated that any suspension would cause he and his family great financial discomfort.

Cross-examination

There was no cross-examination by the Minister.

Mr. Gill stated that by not cross-examining Mr. Elliot the Minister had accepted the evidence adduced by Mr. Elliot and that he in fact had received a departure clearance and thus the hearing could be terminated. This request was denied and the hearing continued.

As there was no further evidence the evidentiary record was closed.

FINAL ARGUMENTS

Mr. Bulfone reviewed the evidence that had been presented by the Minister stating that nowhere in the written voice tapes or direct testimony by the air traffic controller are there indications that Mr. Elliot was given a departure clearance.

Mr. Gill stated that the Minister had not proved its case by not calling witnesses from NAV CANADA or proving the voice tapes were authentic in their translation.

In discussion about sanction, Mr. Bulfone wished to bring up past offences but I refused to hear them as my determination is based on the evidence adduced at this hearing.

THE ISSUE

The issue to be decided is whether or not Mr. Elliot received and acknowledged a clearance to depart. To establish the contravention, the Minister must prove the following items:

1) The identity of the pilot;

2) The fact that Abbotsford Airport is a controlled airport with an operating tower.

The date and time of the alleged offence are not in question because both sides agree as to their existence with no argument.

The evidence about the delivery of the departure clearance is very clear. I am convinced the voice tapes are authentic. In Exhibit M-4, we have a copy of the entire voice tape and there are no gaps or indications that the voice tape has been altered.

When one examines Exhibit M-2A, I see the first clearance to Mr. Elliot: "Zulu Bravo Lima, the altimeter three zero three seven. Hover taxi across the south apron at your discretion. Tower one one nine decimal four ready for departure and go ahead the destination". I believe this is a hover taxi instruction to the south apron with a direction to switch to frequency 119.40 for clearance to receive departure instructions. This was not done.

When one examines Exhibit M-3A, paragraph three, YXX Tower transmits: "Alright, just check you were not authorized for departure...". C-GZBL acknowledges and states in paragraph 7: "I was going to confirm that but ...".

Mr. Elliot in paragraph 14 transmits: "Bravo Lima will be watching for traffic and I'm just clearing your zone and I apologise (sic) for the mistake". Mr. Elliot testified under oath that he considered this apology to be interpreted as the controllers apologizing to him for the treatment he received on the inbound landing leg. This I reject as unbelievable evidence because there are no apologies transmitted by the controllers.

The evidence adduced by the air traffic controller, Mr. Roger Precious, as the operating controller heard on the tapes, is very clear. He did not issue a departure clearance. In conclusion, nowhere in the evidence can I find an indication that Mr. Elliot received a departure clearance. I am obliged to find that the allegation has been proven.

DETERMINATION

I uphold the decision of the Minister to suspend Mr. Elliot's helicopter pilot licence and confirm the 60-day suspension.

June 2, 2005

E. David Dover
Member
Transportation Appeal Tribunal of Canada