Date: 20010125
Docket: T-1632-99
BETWEEN:
| PETER HUDGIN |
Applicant
- and -
ATTORNEY GENERAL OF CANADA
(MINISTER OF TRANSPORT)
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] The applicant Peter Hudgin seeks a judicial review of a determination made by an Appeal Panel of the Civil Aviation Tribunal ("Appeal Panel"), dated September 9, 1999, dismissing his appeal from the determination of the first level of the Civil Aviation Tribunal ("the Tribunal") and confirming the decision of the Minister of Transport that Mr. Hudgin contravened subsection 801.01(2) of the Canadian Aviation Regulations1 ("the Regulations") and section 821, Chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards ("the Standards"). The monetary penalty was assessed at $250.00.
1. Facts
[2] Mr. Hudgin occupied the position of air traffic controller at Dorval Airport. On December 16, 1997, he was charged with the supervision of a student air traffic controller working for Nav Canada.
[3] The student, at 21:53:11, gave an authorization to an aircraft ("ROY 921") to use taxiway B2 and then to cross runway 28. Shortly thereafter, the student gave the authorization to a second aircraft ("AAQ 249") to take off on the same runway. The pilot of the first aircraft, noticing the error, communicated to ground control that he was holding short of runway 28 as he could see another aircraft taking off on that runway. Due to the pilot's alertness, a collision was avoided.
[4] As a result of this incident, the Minister of Transport determined that Mr. Hudgin contravened subsection 801.01(2) of the Regulations and section 821, Chapter 1, section 2.5 of the Standards which read as follows:
| Canadian Aviation Regulations |
| Subpart 1 -Air Traffic Services -General |
| 801.01(1) No person shall act as an air traffic controller or a flight service specialist |
| (a) within eight hours after consuming alcohol; |
| (b) while under the influence of alcohol; or |
| (c) while under the influence of any drug or other substance that impairs the person's faculties to the extent that aviation safety is affected. |
| (2) No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards. |
| Section 821, Chapter 1, section 2.5 of the Canadian Domestic Air Traffic Control Separation Standards |
| 2.5 Separation of Taxiing Aircraft from Aircraft using the Runway |
| Taxiing aircraft shall be held until traffic using the runway has passed the point at which the aircraft is holding: |
| (a) at a taxi holding position, if one has been established; |
| b) at least 200 feet from the edge of the runway, unless other holding positions are established by markings or signs; or |
| (c) at a sufficient distance from the edge of the runway to ensure that no hazard is created to arriving or departing aircraft, if it is not possible to comply with (a) or (b). |
[3] Mr. Hudgin appealed the Minister's decision to the Tribunal. It concluded that a contravention of the Regulations and the Standards had taken place and maintained the penalty.
[4] Mr. Hudgin appealed this determination to a three-member Appeal Panel of the Tribunal. The Appeal Panel concluded that the review determination was well founded and confirmed the decision of the Minister and the penalty. In particular, the Appeal Panel confirmed Mr. Hudgin's obligation to control and supervise the student under his guidance. It found that he should have been more prudent as he was aware of the defective equipment and should not have applied himself to other tasks at a time when his student was performing the primary function of a controller to direct air traffic.
2. Issue
[5] The issue to be resolved is whether the Appeal Panel erred in concluding that Mr. Hudgin had contravened the Regulations and the Standards and confirming the monetary penalty, although it was the student who issued the instruction and not Mr. Hudgin.
3. Standard of Review
[6] Considering all the relevant factors, including the privative clause which provides that a decision of the Civil Aviation Tribunal on an appeal under the Aeronautics Act2 is final and binding on the parties to the appeal, I am in agreement with my colleague Gibson J. in Killen v. Canada (Minister of Transport)3 that the applicable standard of review in the case at bar "to be towards the middle of the spectrum between `patently unreasonableness' and `correctness'".
4. Analysis
[7] Mr. Hudgin submits that the Appeal Panel confirmed the contravention and upheld the fine without any proof that he issued an air traffic control instruction not in accordance with the Standards. Rather, the only evidence presented was that he was an instructor and that the student was the individual who issued the clearance. Mr. Hudgin also contends that there are no statutory instruments nor any other documents rendering him responsible for the actions of the student.
[8] In my view, it is abundantly clear from a reading of the transcript that Mr. Hudgin admitted that he was the air traffic controller on duty in the air position at the material time. Mr. Hudgin conceded that he was ultimately responsible for the position as the air traffic controller. He also acknowledged that it was his duty to monitor the student's actions. Finally, he stated that he did not "understand" the nearly fatal transmission issued at 21:53:11 because, primarily, he was doing many other things and, secondarily, the headsets were not the best of headsets.
[9] In the face of such admissions, it was not necessary for the Appeal Panel to consider further evidence. Accordingly, I am in agreement with the respondent that the consideration of the standard of care between an air traffic controller and a student under his supervision, and the notion of "vicarious liability" are not necessary in view of these admissions. The Appeal Panel discussed only the broader general principles of law regarding due diligence and the conduct of a reasonable man.
[10] The aforementioned admissions of Mr. Hudgin and the uncontested evidence adduced by Mr. Carlsen, Supervisor, Air Traffic Control, lead me to conclude that the finding of the Appeal Panel was not unreasonable. Clearly, Mr. Hudgin was responsible for the student placed under his authority.
6. Disposition
[11] Consequently, this application for judicial review is dismissed.
OTTAWA, Ontario
January 25, 2001
Judge
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