Decisions

CAT File No. Q-1634-33
MoT File No. NAP6504-P172356-30588

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Denis Pourtau, Respondent

LEGISLATION:
Aeronautics Act, s. 7.7
Canadian Aviation Regulations, s. 101.01(1) and 602.115(c)(i)

Flight Visibility-Uncontrolled Airspace


Review Determination
Pierre Rivest


Decision: August 18, 1998

TRANSLATION

I dismiss the minister's allegation and cancel the monetary penalty of $250.00 assessed against Mr. Pourtau.

A Review Hearing on the above matter was held Wednesday, July 22, 1998, at 10:00 hours at the Federal Court of Canada in Montreal, Quebec. The witnesses were sworn in.

BACKGROUND

A monetary penalty of $250.00 was assessed against the Respondent, Mr. Pourtau, pursuant to section 7.7 of the Aeronautics Act, for having contravened subparagraph 602.115(c)(i)of the Canadian Aviation Regulations (CARs).

Specifically, Mr. Pourtau, pilot-in-command of the aircraft registered as C-GJVT, a Cessna 150, had taken off, at about 09:45 hours on December 9, 1997, from the airport of Mascouche, Quebec, when flight visibility was allegedly less than two miles.

The Mascouche airport is located in uncontrolled airspace and the aircraft was operated in VFR flight.

THE LAW

Subparagraph 602.115(c)(i) stipulates:

602.115 No person shall operate an aircraft in VFR flight within uncontrolled airspace unless

(...)

(c) where the aircraft is not a helicopter and is operated at less than 1,000 feet AGL

(i) during the day, flight visibility is not less than two miles, except if otherwise authorized in an air operator certificate or a private operator certificate

THE FACTS

The following elements were admitted: the place, the fact that the Mascouche airport is located in uncontrolled airspace, the take-off from runway 29, the pilot-in-command and the aircraft. The last two elements were confirmed in documents M-2 and M-3.

For the Applicant – Minister of Transport

The Minister's two witnesses, Messrs. Bélanger and Hamel, flight instructors, made essentially the same assertions, under both examination and cross-examination, namely:

  • that at the time of the alleged offence, though there is some discrepancy here as to the precise time, they were in the building of the Cargair company, a carrier for which they worked;
  • that this building is located not far from the threshold of runway 29 (see Exhibit M-1);
  • that they both identified the aircraft registered as C-GJVT, which took off from runway 29;
  • here, too, with some discrepancies, but based on known reference points, such as a railway track west of the airport and a viaduct a little further away, they estimated the ground visibility at less than two miles, or between three quarters of a mile and one mile;
  • I noted, however, some confusion in the description of the weather phenomena which played a part in reducing visibility: there was mention of low clouds, mist, fog, and fog patches, with little distinction being made between these various elements. However, the witnesses agreed that the weather conditions seemed better toward the northwest than toward the south, and that in looking in the direction of the Cessna's take-off, the aircraft was lost from sight at a distance of about one mile from their observation point;
  • it was the witness Bélanger who complained to Transport Canada after ascertaining that the aircraft leaving Mascouche had not filed an IFR flight plan; the witness Hamel agreed to sign the complaint because he felt he had already seen too many violations occur at Mascouche, given the heavy air traffic there; he also referred to a flying accident that had occurred the previous week at the same airport.

The Minister's representative confirmed the visibility given by the witnesses by measuring on the map (M-1) the distance between their observation point and the reference points referred to earlier; at most, it was 5,700 feet, or just over one mile (the map is to a scale of 1:50,000). Mr. Pourtau said he agreed with this.

For the Respondent – Mr. Pourtau

Mr. Pourtau, testifying on his own behalf, raised the following points:

  • before setting out on his journey, he checked the weather conditions in two ways: by telephoning the meteorological services at the Flight Service Station (FSS) for the Montreal region, and by analysing the weather report (METAR) for the Mirabel region (Exhibit T-1);
  • in both cases, he considered the conditions for VFR flight to be favourable, particularly to the north, the direction he took;
  • he claimed that he had over three miles of visibility on take-off, as he could see ahead of him high tension wires about 4.2 kilometres away, perpendicular to the axis of take-off (about 3 miles, as he himself measured later in a car on a road running parallel to and near the runway).

The cross-examination revealed nothing significant.

ARGUMENTS

The arguments summarized what I have just described; the Minister's representative stressed the credibility, without prejudice, of its witnesses, both flight instructors, while Mr. Pourtau highlighted the fact that the regulations mention flight visibility and that it is to this visibility that he refers. He also alluded to the fact that both witnesses for the Minister worked for a carrier that was in competition with his. He added that he, too, is a flight instructor.

ANALYSIS

The testimony of the Minister's witnesses and that of Mr. Pourtau appear, at first glance, to be contradictory. I do not attach much importance to the time of take-off, which is not quite consistent, or to the visibility reported by the Minister's two witnesses; they are sufficiently admissible. However, before determining which testimony heard is the most credible, on the balance of probabilities, let us analyse the following elements (all emphasis has been added by the undersigned):

1. Subparagraph 602.115(c)(i)

the definitions:

2. of ground visibility
3. of flight visibility
4. of the term AGL
5. of take-off

  1. Subparagraph 602.115(c)(i) stipulates, among other things, that it is forbidden to fly within uncontrolled airspace (which is the case here) at less than 1,000 feet AGL, unless during the day, flight visibility is at least two miles. This section therefore leads me to believe that it refers to an aircraft in flight.

    The Minister's witnesses both maintained that visibility was one mile or less; but this is ground visibility, since they were inside a building on the east side of the airport (from which the aircraft took off).
  2. Ground visibility," according to subsection 101.01(1) of the CARs, means, in respect of an aerodrome (which, again, is the case here), "the visibility at that aerodrome as contained in a weather observation reported by

    1. an air traffic control unit,
    2. a flight service station,
    3. a community aerodrome radio station,
    4. an AWOS used by the Department of Transport, the Department of National Defence or the Atmospheric Environment Service for the purpose of making aviation weather observations, or
    5. a radio station that is ground-based and operated by an air operator".

    At no time does this definition (which I would qualify as "official") mention visibility reported by observers on the ground, such as individuals not with the above-mentioned organizations. Moreover, neither subparagraph 602.115(c)(i) nor the definition of flight visibility mentions take-off visibility. In any event, no such weather observation has been produced for the Mascouche airport, where the incident occurred. However, despite the official nature of the definition for the reporting of ground visibility, I admit that this does not prevent observers from giving their own views on this matter, and I take this into account.
  3. However, the "flight visibility" referred to in subparagraph 602.115(c)(i) is defined in subsection 101.01(1) as "the visibility forward from the cockpit of an aircraft in flight" and not from any observation point on the ground.
  4. The term "AGL" (still according to subsection 101.01(1)) means "above ground level" and not, therefore, on the ground.
  5. And finally, the term "take-off" is also defined in paragraph 101.01(1)(a) as "in respect of an aircraft other than an airship, the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface". In this definition, two elements must be present: the act of leaving a supporting surface, and the acts immediately preceding and following the leaving of that surface.

    In a Tribunal determination (George William Trelford and Minister of Transport, CAT File No. O-1507-02), upheld on appeal, the Vice-Chairperson found that the term "immediately" included, among other things, the flight manoeuvres after leaving the supporting surface. Subparagraph 602.115(c)(i), which speaks of flight visibility, could therefore apply to the take-off.

Finally, there was mention of mist, fog, fog patches, and so on. Nothing very specific, except for the weather reports (METAR) produced in evidence for airports located more or less in the same area, but none at Mascouche itself. In situations such as this, it is often difficult to determine a precise meteorological condition; simply by virtue of the fact that on take-off, visibility declines as the aircraft moves along the ground, and even more so in flight once the aircraft has left the supporting surface, the observations of witnesses motionless on the ground and those of the pilot-in-command will invariably differ. And this, in my view, is the crux of the whole case: the visibility reported by witnesses on the ground cannot be the same as that of the pilot, in this case Mr. Pourtau, who is moving away from the observers.

That is why Mr. Pourtau, to prove his point, took the trouble to measure by car the distance he claimed had been his visibility on take-off, namely, at least three miles.

CONCLUSION

As a result of the foregoing, I find that the visibility referred to in the regulations within uncontrolled airspace is that which the pilot is able to observe in flight: subparagraph 602.115(c)(i), the term AGL, and the definition of take-off allow us to reach this conclusion.

What appears to be missing from the regulations with reference to VFR flight, is the definition of take-off visibility we find in paragraph 602.126(1)(c), but in IFR flight conditions.

I therefore find that the witnesses for both parties have not lied, but I cannot give as much weight to the witnesses on the ground ("static," as opposed to the witness on board the aircraft who, while travelling on the ground, was moving away from the motionless observers), as I do to Mr. Pourtau, since subparagraph 602.115(c)(i) refers to flight visibility and the term "AGL" is part of this same section, which Mr. Pourtau specifically mentioned. As I have no reason not to believe him, the balance of probabilities, based on the definitions analysed above, weighs in Mr. Pourtau's favour.

DETERMINATION

For all the foregoing reasons, I dismiss the Minister's allegation and cancel the $250.00 monetary penalty assessed against Mr. Pourtau.

Pierre Rivest
Member
Civil Aviation Tribunal