Decisions

CAT File No. Q-1188-33
MoT File No. NAP6504-P333540-027383

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Bruno Touret, Respondent

LEGISLATION:
Aeronautical Communications Standards and Procedures Order (Air Navigation Order, Series I, No. 2), s.2(1)
Aeronautics Act, S.C., c. A-2, s. 7.7
Air Regulations, C.R.C. 1978, c. 2, ss 101(1), 521d)
Mandatory Communication Order, (Air Navigation Order, Series V, No. 34), ss 2, 5, 6, 12

Turning in the vicinity of an aerodrome


Review Determination
Michel Larose


Decision: June 25, 1996

TRANSLATION

The Tribunal confirms the minister of transport's decision to the effect that the respondent contravened paragraph 521(d) of the Air Regulations, but the Tribunal reduces to $100 the amount of the monetary penalty set at $200 by the Minister of Transport. The penalty of $100 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.

The Review Hearing on the above matter was held Friday, March 22, 1996 at 10:00 hours and resumed on May 17, 1996 at 13:00 hours at Montreal, Quebec.

SUBJECT OF THE APPEAL HEARING

Transport Canada, through Mr. Umberto Tamborriello asked the Civil Aviation Tribunal to confirm a Notice of Assessment of Monetary Penalty issued to the Respondent, Mr. Bruno Touret, on November 17, 1995. The Notice of Assessment was in the amount of $200. Mr. Touret was required to pay this amount by December 18, 1995 at the latest, that is to say within a specified time frame. The penalty had been assessed pursuant to section 7.7 of the Aeronautics Act, as follows:

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).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

It is alleged that the Respondent contravened paragraph 521(d) of the Air Regulations which states:

521. The pilot-in-command of an aircraft operated on or in the vicinity of an aerodrome shall

[...]

(d) make all turns to the left, when approaching for a landing and after taking off, unless otherwise directed by the Minister or unless an air traffic control unit has authorized a turn or partial turn to the right when desirable in specific instances;

PREAMBLE

On March 13, 1996, Mr. Umberto Tamborriello, Inspector – Regulatory Compliance, Transport Canada wrote to Mr. Bruno Touret (Exhibit R-7) to advise him that he would produce two eyewitnesses of the alleged incident which occurred on June 14, 1995, namely; Messrs Carol Bergeron and Serge Morin.

HEARING OF MARCH 22, 1996

After the Hearing Officer had explained the rules of procedure to the parties, Mr. Tamborriello made a preliminary motion to introduce as evidence, in addition to the two witnesses already announced, the original audio cassette containing the recording of communications on the mandatory frequency for Baie-Comeau for June 14, 1995 (Exhibit R-7).

The member of the Civil Aviation Tribunal then withdrew. Mr. Touret, after listening to the cassette (taken from the Mont-Joli control tower which serves Baie-Comeau) was of the opinion that it contained discrepancies and wanted to add certain comments. The member of the Tribunal, as a matter of natural justice, stated that Transport Canada had not given sufficient notice, which was the equivalent of refusing to provide the Respondent with an opportunity to make representations or to introduce evidence in order to ensure the right to full answer and defence, and therefore dismissed the preliminary motion presented by Transport Canada.

The member of the Tribunal then ordered Transport Canada to make a full transcript of the tape and to make a copy of the aforementioned original audio cassette.

The hearing was consequently adjourned sine die and Transport Canada executed the Tribunal's request on April 11, 1996 (Exhibit R-7) by providing the Respondent and the Tribunal Member with the audio cassette and the full transcript requested earlier.

RESUMPTION OF THE HEARING ON MAY 17, 1996 – THE FACTS

1. Testimonial Evidence by the Applicant

  • Mr. Carol Bergeron – Inspector, Air Carrier Operations, Quebec Region, Transport Canada

On June 14, 1995 at Baie-Comeau, Mr. Bergeron was conducting a flight test at approximately 13:30 hours on board a Piper Aztec registered as C-GUKA. The pilot was Mr. Serge Morin of Air Satellite. A third person was on board, namely; Mr. François Paquet who was chief-pilot for the same company at the time. The flight was an instrument-rating test for Mr. Serge Morin who was undergoing a pilot proficiency check (PPC).

Mr. Morin, the pilot, was on a short final approach, that is one and a half mile away on a back course towards runway 28, with circling minima of 509 ANS and 580 ASL (Exhibit R-2). His mandatory communications frequency (RCO/MF) was that of Mont-Joli; namely, 118.3 (Exhibit R-3). Four aircraft were on runway 28 of this uncontrolled airport. One aircraft (subsequently identified as C-GHVJ following a ground investigation and a check with the Mont-Joli flight service station) took off and, at an altitude of 500 feet – that is at the sight horizon of C-GUKA which was getting ready to land or even lower – made a right turn to the north-east.

Mr. Bergeron was even more concerned about a second aircraft (subsequently identified as C-GSCI following a ground investigation and a check with the Mont-Joli flight service station), as it was this second aircraft that had forced C-GHVJ to accelerate its procedures. The second aircraft also executed a hasty take-off and, at approximately 100 to 200 feet above the ground, also executed a right turn to the north-east in order to stay within the turn made by C-GHVJ and at 500 feet. As a result of a rapidly increasing rate of closure with the aircraft ahead, C-GSCI aborted its turn, levelled-off and passed behind C-GHVJ at a distance of some 100 to 200 feet. Accordingly, the Piper Aztec registered as C-GUKA turned left to climb to a higher altitude. After landing, Mr. Bergeron, who was more concerned about the second aircraft (C-GSCI), initiated an investigation. He met with the four pilots and communicated with the Mont-Joli flight service station. Upon completion of his investigation, Mr. Bergeron issued a Detection Notice dated June 14, 1995 (Exhibit R-1) which is the subject of the matter before the Tribunal.

Under cross-examination, Mr. Bergeron maintained that the first aircraft had time to take off, that the second aircraft made a right turn at an altitude of 100 to 200 feet, and that his decision to pull up (Piper Aztec C-GUKA) was made because of this second aircraft.

  • Mr. Tamborriello called Mr. Serge Morin as a second witness (Mr. Morin had been asked to withdraw from the courtroom while Mr. Bergeron testified).

Mr. Serge Morin, who was at the controls of Piper Aztec C-GUKA, was an Air Satellite pilot at the time; he is currently the company's chief-pilot. Mr. Morin corroborated Mr. Bergeron's testimony in every respect. Under cross-examination, he mentioned that his observation span at a speed of 100 knots ranged from 30 seconds to 2 minutes and that his decision to pull up was precipitated by these two aircraft. It would be redundant at this point to repeat Mr. Bergeron's testimony.

2. Documentary Evidence

Exhibit R-3, Canada Flight Supplement – the Baie-Comeau airport profile. The communications frequency for Baie-Comeau is that of Mont-Joli (RCO: remote communication outlet 118.3) and the mandatory communication outlet is also 118.3. Exhibit R-3 also includes an example of the Bagotville airport PRO, that is to say a provision for a special manoeuvre and, in the above example, a right hand circuit is permitted for runways 11 and 18, whereas at Baie-Comeau there is no PRO, and all circuits must be to the left.

Exhibit R-4, Air Navigation Order, Series V, No. 34 (ANO), entitled Mandatory Communications Order for aircraft operating on the manoeuvring area of or under VFR within specified areas in the vicinity of uncontrolled aerodromes, provides the following definition:

"flight service station" means a flight service station as defined in subsection 2(1) of the Aeronautical Communications Standards and Procedures Order; (station d'information de vol)

This same document also includes the following:

Reports on Operations on Manoeuvring Area

5. The pilot-in-command of an aircraft at an uncontrolled aerodrome for which a mandatory frequency has been designated, or at an uncontrolled aerodrome that lies within a specified area, shall

(a) report his intentions prior to entering the manoeuvring area of the aerodrome; and

(b) maintain a listening watch on the mandatory frequency while on the manoeuvring area.

Reports on Departure

6. The pilot-in-command of an aircraft departing from an uncontrolled aerodrome for which a mandatory frequency has been designated, or from an uncontrolled aerodrome that lies within a specified area, shall

(a) prior to moving onto the take-off runway, report his departure intentions;

(b) prior to take-off, ascertain by radio on the mandatory frequency and by visual observation that no other aircraft or vehicle is likely to come into conflict with the aircraft during take-off; and

(c) maintain a listening watch on the mandatory frequency

(i) during take-off, and

(ii) after take-off until outside the specified area.

[...]

Aircraft Without Radio

12. (1) The reporting requirements prescribed by this Order do not apply to a person who is

(a) unable to comply with these requirements because of a communications failure; or

(b) operating an aircraft without a radio pursuant to section 11.

Exhibit R-5 – Air Regulations:

"air traffic control unit" means

(a) an area control centre established to provide air traffic control service to IFR flights;

(b) a terminal control unit established to provide air traffic control service to IFR flights operating within a terminal control area; or

(c) an airport control tower unit established to provide air traffic control service to airport traffic,as the circumstances require; (organe du contrôle de la circulation aérienne)

(Baie-Comeau is not included in either (a), (b) or (c))

The Aeronautical Communications Standards and Procedures Order, Air Navigation Order, Series I, No.1, provides the following definition:

"flight service station" means a land station that is part of the aeronautical mobile service established by the Minister to provide advisory services to aircraft and a communications service for the safe movement of aircraft; (station d'information de vol)

Accordingly, for the Baie-Comeau aerodrome, this service is provided by Mont-Joli via its remote communication outlet (RCO).

Exhibit R-6, A.I.P. Canada

A non legal text which interprets Canadian Aviation Regulations and serves as a reference document for airmanship purposes.

RAC 4-15:

4.5.2 Traffic Circuit Procedures – Uncontrolled Aerodromes

[...]

(a) Joining the Circuit

[...]

(ii)

[...]

NOTES 1: Circuit normally flown at 1 000 feet AAE.

[...]

(c) Departing the Circuit or Airport

Aircraft departing the circuit or airport should climb straight ahead on the runway heading until reaching the circuit traffic altitude before commencing a turn in any direction to an en route heading. Turns back toward the circuit or airport should not be initiated until at least 500 feet above the circuit altitude.

Upon completion of the Applicant's evidence, the Respondent, Mr. Bruno Touret, did not have any documentary or testimonial evidence to submit before the Tribunal.

3. Material evidence

As the Respondent presented his own case, and in light of the adjournment of March 22, 1996, the Member, by virtue of his office, raised the issue of the transcript of communications on the Baie-Comeau mandatory frequency for June 14, 1995 produced from the original tape that was available at the Mont-Joli flight service station.

In fact, Mr. Touret experienced a communication problem with the Mont-Joli control tower (Exhibit R-7). Following a first contact at 17:25:59 hours his last contact was at 17:27:39 hours, as he was preparing to take off. He did not reply to Mont-Joli at 17:27:42 hours; rather it was C-GSCI (the second aircraft) which next contacted the station, at 17:28:10 hours. At 17:28:15, this second aircraft could see the Aztec on final approach. The Aztec took off at 17:28:30 hours and at 17:28:44 hours, advised Mont-Joli that it was leaving by the north-east; that is, by the right, and that it did not know what C-GHVJ was going to do. Contact between C-GHVJ and Mont-Joli was re-established at 17:28:08 hours.

ARGUMENTS OF THE PARTIES

The Applicant:

First, the Notice of Assessment of Monetary Penalty is in order as no rebutting evidence was introduced to show that Mr. Bruno Touret was not the pilot-in-command aboard Cessna 182 C-GHVJ on June 14, 1995, and that he did not contravene paragraph 521(d) of the Air Regulations by making a right turn immediately after taking off from runway 28 at the Baie-Comeau airport. Two eyewitnesses, one of whom is a Transport Canada inspector, confirmed these facts.

Second, with respect to the penalty to be assessed, consideration must be given to the provisions of paragraph 521(d) of the Air Regulations which are intended to guide pilots and to A.I.P. (Exhibit R-6 – A reference document for achieving a high standard of airmanship). As the pilot was not alone in the sky and as air safety is the prime concern, the situation calls for applying the regulations to deter further offence and to set an example. The possibility of rehabilitation must also be taken into account.

Accordingly, in accordance with section 7.7 of the Aeronautics Act, subsection 7.6(2) states that "A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction."

It follows, therefore, according to the Designated Provisions Regulations (Air Regulations, Series I, No. 3) that :

3. (1) The provisions listed in Column I of the schedule are hereby designated as provisions the contravention of which may be dealt with under and in accordance with the procedure set out in sections 7.7 to 8.2 of the Act.

(2) the amount set out in an item of Column II of the schedule is the maximum amount that may be assessed as a penalty for the contravention of the provision set out in Column 1 of that item.

With respect to paragraph 521(d), it is clearly mentioned that the penalty for an individual is $500. With respect to this paragraph, the policy of Transport Canada (Exhibit R-10) is that "not all turns shall be made to the left in the vicinity of an airport" and the recommended penalty for the first offence is a suspension of 2 to 7 days or a monetary penalty of $200. To justify this penalty, the Minister's representative emphasized that the action was deliberate, that there were no operational constraints, that the pilot was required to exercise all reasonable care to control the situation and avoid the uncontrollable, thereby complying with the regulations, which the pilot did not do. Furthermore, the pilot in question holds a professional licence. He broke a fundamental regulation and did not set an example.

The Respondent, Mr. Touret, admits having taken the alleged action, but minimized its significance as a result of his communications problem with the Mont-Joli control tower, adding that because he felt pressed by the second aircraft, a twin-engine aircraft, that was close behind him, he left runway 28 and made a right turn at an altitude of 600 feet, according to his altimeter, in order to clear the way as quickly as possible. He also added that Mont-Joli knew full well that he was planning to undertake an air patrol to the north-east and would therefore have to make a right turn.

During re-examination, Mr. Tamborriello, on behalf of the Minister, emphasized that the Mont-Joli station is an advisory flight service station and not an air traffic control service, adding that although Mr. Touret had notified Mont-Joli that he intended to turn right to the north-east, neither Mr. Touret as pilot nor the Mont-Joli tower can authorize a breach of the regulations. In fact, by leaving the circuit by making a right turn, he acted without authorization and was not at an allowed altitude; for safety reasons, he should have followed the runway axis, exited the circuit by making a left turn before heading towards the north-east.

DISCUSSION

It is undeniable that the alleged offence took place. Besides, the Respondent admitted it in his summation. Furthermore there were two eyewitnesses, one of whom is a Transport Canada inspector who initiated an investigation on the ground and a check with the Mont-Joli FSS before issuing a Detection Notice dated June 14, 1995.

In light of all this, what about the reasons invoked by the Respondent?

It is true that there was a communications problem between his aircraft and the Mont-Joli control tower serving Baie-Comeau. It is also true, according to testimonial, documentary and material evidence, that a second aircraft seemed to have forced Mr. Touret to expedite his take-off procedures, but nothing prevented him from discontinuing his take-off along the runway 28 centre-line and from making a left turn at a minimum altitude of 1,000 to 1,500 feet, then to head towards the north-east.

Thus, the Respondent did not exercise all due diligence; there were no reasons requiring him to so breach the regulations. It should be noted that the Tribunal is well aware of the role played by the second aircraft, C-GSCI, but no allegations concerning the second pilot have been referred to the Tribunal.

DETERMINATION

The Tribunal confirms the decision of the Minister of Transport to the effect that the Respondent contravened paragraph 521(d) of the Air Regulations, but takes into account the fact that the Respondent is a young professional pilot, that this is his first contravention and that a second aircraft was a contributing although not a causal factor with respect to the alleged contravention, and therefore reduces to $100 the amount of the $200 monetary penalty assessed by the Minister of Transport.

Michel Larose, M.D.
Member
Civil Aviation Tribunal