Decisions

CAT File No. Q-1250-41
MoT File No. NAP6504-Z-27711

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

117154 Canada Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. c. A-2, ss 7.7, 8.4(1)
Airspace Structure, Classification and Use Regulations, SOR/93-458, s. 12(1)

VFR flight in Class C airspace


Review Determination
Pierre Rivest


Decision: September 12, 1996

TRANSLATION

I dismiss the Minister's allegation that the Respondent, 117154 Canada Inc., contravened subsection 12(1) of the Airspace Structure, Classification and Use Regulations, as well as the assessed monetary penalty.

A Review Hearing on the above matter was held Wednesday, September 4, 1996, at 10:00 hours at the Canadian International Trade Tribunal, in Ottawa, Ontario.

All the witnesses were sworn in.

BACKGROUND

The Respondent, 117154 Canada Inc., is accused, as the owner of the aircraft registered as C-FBBL, pursuant to subsection 8.4(1) of the Aeronautics Act, and pursuant to section 7.7 of the same Act, of having contravened subsection 12(1) of the Airspace Structure, Classification and Use Regulations. On December 12, 1995, at about 22:40 UTC (Universal Time Coordinated or Greenwich Mean Time), aircraft C-FBBL, owned by the afore-mentioned company, allegedly entered the Class C airspace of Montreal without receiving a clearance from the appropriate air traffic control unit.

As the assessed monetary penalty of $200.00 was not paid by the deadline of March 21, 1996, the case was brought before the Civil Aviation Tribunal for review.

THE LAW

Section 7.7 of the Aeronautics Act stipulates, in part:

(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 ... specifying in the notice ...,

(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;

In accordance with the Air Regulations, Series I, No. 3, subsection 12(1) of the Airspace Structure, Classification and Use Regulations is considered a designated provision by which the Minister may assess a maximum penalty of $500.00 against a corporation.

Subsection 12(1) of the Airspace Structure, Classification and Use Regulations, states:

Subject to subsection (2), no person operating a VFR aircraft shall enter Class C airspace unless the person receives a clearance to enter from the appropriate air traffic control unit before entering the airspace.

Finally, subsection 8.4(1) of the Aeronautics Act states:

The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

THE FACTS

Introduction

After the usual introductions and an explanation of the procedures used by the Tribunal, I asked the parties to confirm that, other than the documents preceding the hearing and pertaining to it, there had been no other documents, verbal or written exchanges between the parties. The Applicant's representative, Mr. Tamborriello, informed me of three letters not in the file in my possession:

  • July 2, 1996: letter from Mr. Tamborriello to Mr. Yvon Morin of 117154 Canada Inc. in reply to Mr. Morin's letter of June 27, 1996, concerning the recording tapes of air traffic control radio communications at the time of the incident;
  • August 23, 1996: letter from Mr. Tamborriello to Mr. Morin informing him of his intention to ask the Tribunal to add that the charge be brought pursuant to subsection 8.4(1) of the Aeronautics Act;
  • August 30, 1996: letter from Mr. Tamborriello to Mr. Morin requesting that the Tribunal add the time of the infraction, namely, about 22:00 UTC.

Mr. Morin wished to confirm that on several occasions, before writing to Transport Canada on June 27, 1996, he had asked verbally, by telephone, that he be sent a copy of the recording tapes of the radio communications made at the time of the incident.

First Witness for the Applicant: Constable Jacques Godbout

On August 26, 1996, RCMP Constable Godbout was instructed to make copies of the pages for December 12, 1995, from the journey log of aircraft C-FBBL.

The witness confirmed that this was done without incident and these photocopies are filed in evidence under M-1.

As the Respondent had no questions, the witness was released.

Second Witness for the Applicant: Mr. Alain Jacques

During the incident of December 12, 1995, Mr. Jacques was the controller responsible at the Montreal air traffic control unit for departures of aircraft and VFR aircraft.

He first described how the Montreal air traffic control unit is set up and explained the limitations (especially with regard to altitude) of the Class C airspace for this area.

At 21:46 UTC, the witness observed an aircraft entering Montreal's Class C airspace near the Louis Hippolyte-Lafontaine tunnel. Using a copy of a radar plot (Exhibit M-3), the witness explained that the aircraft, as of 21:47 UTC, was at a higher altitude than that permitted for Class C airspace and was continuing its ascent.

At 21:50 UTC, the same aircraft levelled off at 4,500 ft., that is, 2,600 ft. higher than the allowed limit, forcing air traffic control to divert aircraft that were approaching Dorval airport.

Four (4) other air traffic controllers were informed of the situation.

No attempt was made to communicate with the aircraft.

Not knowing where the aircraft was headed, the witness did what he called a "manual correlation" (method of keeping track of the target on the radar screen among the other targets) and code-named it VFR, standard procedure in the case of unidentified aircraft.

As the aircraft was heading west and about to leave his sphere of control, the witness asked the other control posts to take over and follow the trajectory of the aircraft code-named VFR.

The other air traffic controllers were thus able to follow the aircraft to Ottawa, where it allegedly landed at 22:41 UTC as stated in the Statistics Canada report (Exhibit M-4).

Once informed of this, the witness Jacques issued a request to the Ottawa control tower to have the pilot of the aircraft in question telephone him. No call was received.

Note: It was never determined whether the Ottawa control tower relayed the message to the pilot.

Before leaving his shift, at 22:30 local time, the controller Jacques decided to file a report (Exhibit M-2) to his superiors, which report was subsequently sent to the Transport Canada office.

It was therefore through the Ottawa control tower that the witness learned the aircraft was registered as C-FBBL.

Cross-examination

In cross-examination, the Respondent's representative, Mr. Yvon Morin, made the following points:

  • all radio communications and radar plots are recorded and kept for thirty (30) days;
  • the data pertaining to the incident of December 12, 1995, had been recorded;
  • although a violation report was made, the voice recordings were not kept because there was no communication with the delinquent aircraft;
  • the controller Jacques, at the time of the incident, did not know the origin of the aircraft, but repeats that the incident occurred at about 21:47 UTC, or 16:47 local time;
  • Mr. Morin confirmed that, at the very least, the recording tapes would have proven there had been no radio communications and would have given an overview of other air activity and communications in the area;
  • to the question of who decided whether or not to keep the recordings when a violation report was issued, the answer was Transport Canada. Mr. Tamborriello then confirmed that he had asked that the recordings be kept, but they had unfortunately been destroyed, due to human error. The radar bands and their printouts had, however, been kept;
  • the radar bands and printouts did not, however, identify the registration of the aircraft:
  • while it was the witness Jacques who saw a target on his radar screen and followed it until it left his sphere of control, it was his co-workers who subsequently followed the flight's trajectory, kept the controller Jacques up-to-date and spoke with the Ottawa control tower; the Montreal control unit is equipped to cover this entire region continually;
  • there seems to have been no knowledge of a flight plan and it has not been verified whether such a flight plan was filed; it is therefore impossible to know at this time the aircraft's point of departure;
  • finally, the Respondent got the witness Jacques to admit that an error in aircraft identification is always possible, and to his knowledge this had occurred in the past;
  • as for the possibility that the radio communications were garbled, the aircraft in question was not far enough away for any transmissions it made not to have been received by the control unit; when communications are poor, other measures are taken to correct the situation; in this case, to the witness' knowledge, there were no communications.
  • At this point in the hearing, in order to explain the basis for determining that it was indeed the aircraft in question that landed at Ottawa, Mr. Tamborriello produced Exhibits M-4 and M-5 and had the witness Jacques explain how to interpret this Statistics Canada report.
  • The second line of the report (Exhibit M-4) indicates that the Ottawa control tower (449), on the 12th day of the 12th month (1212), 1995 (5), recorded the landing (A) of a Cessna 206 (C206) from Beloeil (B), on runway 14 (14).
  • Continuing with his cross-examination, the Respondent made the following points:
  • it is the pilot who informed the Ottawa control tower of the departure point;
  • the data provided by Statistics Canada are reliable and credible to the extent that the pilots provide the correct information;
  • could the registration of another aircraft with perhaps nearly identical letters, such as C-GBBL rather than C-FBBL, have been confused with that of the aircraft owned by 117154 Canada Inc., as most of the time controllers use only the last three letters? There was no answer to this question, except to say that the journey log of C-FBBL notes that it departed Beloeil airport and the flight times agree with those mentioned previously (I will come back to this point in my analysis).

End of the cross-examination.

Further Documentary Evidence of the Applicant

Exhibit M-6 : copy of the Certificate of Registration of aircraft C-FBBL, Cessna 206, owned by 117154 Canada Inc.;

Exhibit M-7 : excerpts from the Airspace Structure, Classification and Use Regulations, which often refers to the Designated Airspace Handbook.

Exhibit M-8 : excerpts from the Designated Airspace Handbook which describes what constitutes the Class C airspace of the Montreal airport.

Exhibit M-9 : the same Class C transposed onto a geographical map; the thick red circle shows the location of the delinquent aircraft when first noticed.

As the Respondent had no further facts to add, this ended the evidence of the Applicant and the Respondent.

ARGUMENTS

Applicant's Argument

Mr. Tamborriello argued that:

  • subsection 12(1) of the Airspace Structure, Classification and Use Regulations had indeed been contravened if the testimony of air traffic controller Alain Jacques and the radar plots he provided and explained were taken into account;
  • the aircraft was aircraft C-FBBL, as confirmed by the Statistics Canada report, which received this information from the Ottawa control tower; and
  • this aircraft is owned by 117154 Canada Inc.

Mr. Tamborriello also argued that the monetary penalty was assessed under section 7.7 of the Aeronautics Act, a designated provision referred to in the Air Regulations, Series I, No. 3. The monetary penalty of $200.00 assessed against the Respondent is consistent with the $500.00 maximum allowed in the said Series I, No. 3.

Mr. Tamborriello then explained the purpose of the regulations with respect to safety, and that these regulations are to be uniformly applied to everyone and the penalties assessed are intended to prevent a second offence.

Respondent's Argument

Mr. Morin claims that on December 12, 1995, air traffic control in Montreal and/or Ottawa confused his Cessna 206 aircraft, registration C-FBBL, with another aircraft, a Cessna 310, with a similar registration, C-GBBL, flying in the same area. The witness Jacques has himself acknowledged that such mistakes had been made before, not necessarily with regard to the afore-mentioned aircraft.

Mr. Morin argued that he flew from Beloeil to Ottawa on December 12, 1995, but one (1) hour earlier than the time mentioned at the hearing. On departing Beloeil, he contacted the St-Hubert control tower, which then passed him over to the Montreal control tower, which took over, and finally passed him over to another frequency (126.7) after Lachute.

What the witness Jacques saw in Montreal's Class C airspace and was never able to identify was an aircraft that passed one (1) hour after his own.

Mr. Morin claims he is especially disappointed to note that, despite his many requests over nearly six months, he was not told until June 1996 that the radio communications recordings were not available because they had been erased. He has learned today that this was due to an error, for which he claims he should not be penalized.

The Respondent also questions the credibility of the information provided by the Ottawa control tower and the fact that no witness is present to corroborate and defend this aspect of the matter, nor, for that matter, is there anyone from Statistics Canada.

He concluded that:

  • if the controller Jacques did indeed follow an aircraft that did not communicate with the Montreal control centre, it was not his aircraft;
  • Ottawa confused nearly identical registrations;
  • the error of erasing the radio communications tapes deprives him of crucial evidence (which he would have been entitled to obtain);
  • he himself is very conscious of air safety and does not see why he would not have communicated with air traffic control, since his aircraft has all the radio equipment to do so.

The hearing ended at 12:20 hours.

ANALYSIS AND CONCLUSION

Based on the testimony heard and the documents submitted, I find as follows:

  • There is no doubt that at about 21:47 UTC, an aircraft traversed Montreal's Class C airspace in contravention of subsection 12(1) of the Airspace Structure, Classification and Use Regulations.
  • However, only the testimony of air traffic controller Alain Jacques indicates there was no radio communication at this time with this same aircraft, and we therefore have no identification of this aircraft.
  • Without questioning the good faith of the witness, the recording of the radio communications during this time period would have been essential, firstly, to corroborate this testimony, and secondly, to give us an idea of the activity at the same time.
  • Referring to the case Minister of Transport and S.J. Jansens, CAT File No. O-0510-33 and MoT File No. PAP6504-P-074709-23352, the notice of penalty rejected on review by the Civil Aviation Tribunal was again rejected on appeal before this same Tribunal on the grounds that a recording tape of radio communications, which could corroborate the testimony of the air traffic controllers involved in the case, was no longer available to the hearing.
  • It is my opinion that the circumstance is the same here, and that without the recording of what was said during the hour surrounding the incident, an important element of proof is missing. The radar plots placed in evidence merely confirm that an aircraft traversed Montreal's Class C airspace, but do not tell us which aircraft that was.
  • The same applies to the arrival of the aircraft in Ottawa. We do not have either the recordings or even an eye witness to corroborate this. Until prior to the landing, the aircraft in question was identified by the code name VFR. The recording of the communications in Ottawa might have told us what aircraft was actually involved (we would have had information such as the pilot's voice).
  • Furthermore, the Statistics Canada report mentions a landing at 22:41 UTC (Exhibit M-4) of an aircraft identified as FBBL, but here again we have no witness, and the letter from Statistics Canada (Exhibit M-4) was not sworn; there is therefore no possibility of questioning anyone at all. Moreover, at 22:11 UTC, the aircraft code-named VFR was about 26 nautical miles (NM) from Montreal (Exhibit M-3, page 5), or 22 minutes later than the previous report (Exhibit M-3, page 4). If we take the time that passed between 22:11 UTC and the landing time, 22:41, or 30 minutes, and add the flying time to leave the Montreal airspace (pages 1, 2, 3, 4 and 5 of Exhibit M-3), 25 minutes, and assume 5 to 6 minutes passed between Beloeil and the first contact at 21:46 UTC, we get about 1 hour for the entire trip. Now, the journey log of C-FBBL, which has not been challenged, disputed, or contradicted by the Applicant, indicates 40 minutes flying time for the same trip.
  • Finally, still according to the journey log of C-FBBL, the aircraft took off from Beloeil at 15:00 local time (20:00 UTC), which means it would have taken 1 hour, 46 minutes to fly from Beloeil to Montreal's Class C airspace (21:46 UTC); once again, the flying time recorded in the journey log is 40 minutes for the entire trip.

There is, then, some confusion here which the Applicant would have done well to straighten out:

  • When all is said and done, we know for certain that the departure point of aircraft C-FBBL was Beloeil, its arrival point was Ottawa, and the flying time between the two was 40 minutes, because all this information is contained in the aircraft's journey log. We also know that an aircraft traversed Montreal's Class C airspace, but was not identified. The rest seems to me to be hearsay, with no possibility of questioning the individuals concerned.

As for the events the Respondent set out in his argument (such as his flight between Beloeil and Ottawa), it is difficult for me to consider them as they are not part of the evidence and it has not been possible for any verification or cross-examination to be carried out.

I therefore find that there are too many unanswered questions in this case, that there are unelucidated contradictions, that there are not enough witnesses to corroborate the facts, and that it was a mistake not to keep the radio communications recordings of both Montreal and Ottawa, and we are therefore deprived of important information. The primary purpose of keeping the tapes of auditory and visual communications, moreover, is to be able to clarify disputes when an offence, accident or incident has occurred.

On a balance of probabilities, the Minister has therefore not provided sufficient evidence that aircraft C-FBBL committed an offence.

DETERMINATION

For all the foregoing reasons, I dismiss the Minister's allegation that the Respondent 117154 Canada Inc. contravened subsection 12(1) of the Airspace Structure, Classification and Use Regulations and the monetary penalty assessed against the Respondent.

Pierre Rivest
Member
Civil Aviation Tribunal