Decisions

CAT File No. Q-1644-37
MoT File No. NAP6504-Z-30207

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

2973-3433 Québec Inc., Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7, 8.4(1)
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2), 602.15

Height, Distance, Distance, Alighting on Water, Aircraft Operators, Measurement, Seaplane, Vessel


Review Determination
Pierre Rivest


Decision: November 10, 1998

TRANSLATION

I confirm the minister's decision and increase the monetary penalty from $250.00 to $500.00, to be made payable to the Receiver General for Canada within fifteen days of service of this determination.

A Review Hearing on the above matter was held Wednesday, October 28, 1998, at 10:00 hours at the Court House in Alma, Quebec. The witnesses were sworn in.

BACKGROUND

On August 15, 1997, two seaplanes were allegedly observed flying at a distance less than 500 feet from a vessel ("La Tournée") sailing on Grande-Décharge, near the city of Alma, in the direction of Lac Saint-Jean, Quebec, in contravention of paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs).

One of these aeroplanes was registered as C-FWWI and its owner was proceeded against pursuant to subsection 8.4(1) of the Aeronautics Act.

A monetary penalty of $250.00 was assessed.

THE LAW

Section 602.14 of the CARs provides:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

(b) 2,000 feet from an aircraft other than a helicopter or balloon.

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from an aeroplane,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

Subsection 8.4(1) of the Aeronautics Act provides:

8.4 (1) 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

For the Applicant

Mr. Umberto Tamborriello, representing the Applicant, called two witnesses: Captain Normand Dupuis, captain of the vessel "La Tournée," and Mr. François Lavoie, his first mate.

The "La Tournée" is a sightseeing vessel for tourists that departs the far southwest shore of the bay of Rivière Grande-Décharge (near Alma; see Exhibit M-4) and travels to Lac Saint-Jean and back. The Respondent's seaplane base is located on the north shore of the same river near the town of Saint-Coeur-de-Marie.

The two witnesses corroborated the following facts, with a few variations that do not affect the outcome.

  • During the trip to Lac Saint-Jean, two seaplanes (C-FQLE and C-FWWI) flew near the vessel, also in the direction of Lac Saint-Jean. While C-FQLE flew about 150 metres from the vessel, C-FWWI appeared to be at a "reasonable" distance (no further details were given).
  • As the vessel was returning, at about 19:45 hours, the same two aeroplanes again flew close by, this time at a distance of between 15 and 20 metres for C-FQLE, and of between 30 and 40 metres for C-FWWI; they were again identified by the two witnesses. The two aeroplanes then headed for their base, a distance of about two miles farther.
  • The altitudes were assessed based on the height and size of the vessel, the two witnesses being accustomed (and even trained) to assess the distance of objects with the naked eye. The identification of the two aeroplanes was also read using binoculars by at least one of the two witnesses.
  • Captain Dupuis immediately noted the identification of the aeroplanes on a sheet of paper, and soon after in his personal log book (Exhibit M-1) and in the vessel's log book (Exhibit M-2). The photocopies filed in evidence were accepted by the Respondent's representative, particularly as the originals had been consulted on site.
  • The incident was subsequently reported in writing in a letter to Transport Canada dated August 27, 1997, and signed by both witnesses (Exhibit M-3).
  • The witness Dupuis complained that such overflying of the vessel occurs often; he had already complained of this in his letter (see Exhibit M-3, page 2).
  • None of these facts was disputed in cross-examination, the reason being that the Respondent's representative, Mr. Potvin, stated he was not on board either of the two aeroplanes.

Still in cross-examination, Mr. Potvin merely questioned the distances as assessed by the two witnesses, who stuck to their earlier claims.

In concluding its evidence, the Applicant filed Exhibit M-5, the certificate of registration of aircraft C-FWWI, which confirms that the owner is indeed 2973-3433 Québec inc.

For the Respondent

Mr. Jean-Eudes Potvin, representing the Respondent, said that he had not flown that day, and furthermore, no entry had been made in the journey log of C-FWWI.

He acknowledged, however, that it was possible a "client" had used the aeroplane without the owners' knowledge. This procedure is known and permitted by the owners, who have little control over these flights, placing their trust in certain clients and making them responsible for recording the agreed entries in the aircraft journey logs.

Mr. Potvin, who is also a flight instructor, also explained the take-offs, circuit patterns and water landing manoeuvres which he has his students practise. He confirmed that most of the time, when there is a "tailwind," he descends the seaplane to an altitude as low as 400 feet, often lower, before turning for a "final approach."

He claimed it is difficult to avoid the vessel, particularly during take-off, as it is not possible to see the vessel's exact position; it is possible that, at times, he passes quite close to it. The same is true before alighting on water.

The cross-examination added nothing new; Mr. Potvin did not deviate from his testimony.

ARGUMENTS

The Applicant's argument summarized what we had heard, and I have covered the main points in my analysis.

As for the Respondent, Mr. Potvin merely reiterated that he was not the pilot of C-FWWI on that day; he knew that the captain of the vessel "La Tournée" had complained before about low-altitude flights over his vessel (Captain Dupuis had even gone to the seaplane base to discuss the matter). Mr. Potvin went as far as to admit that whatever action is taken today will serve as a deterrent in future.

ANALYSIS AND CONCLUSION

It should be noted, first of all, that the notice of contravention mentions the low-altitude flight of C-FWWI as the vessel was heading toward Lac Saint-Jean. In that direction, Captain Dupuis had no great complaint about the distance of C-FWWI; it was during his return trip that the aeroplane allegedly flew at a distance that was clearly less than 500 feet from the vessel.

The Respondent, however, did not attempt to dispute this point, particularly as he confirmed that he was not flying on that day. I am therefore satisfied that the Minister has proven, on a balance of probabilities, that at about 19:45 hours on August 15, 1997, aeroplane C-FWWI flew at a distance of less than 500 feet from a vessel.

It must be understood here that the measurement of 500 feet is calculated by plotting 180° arcs, having a radius of 500 feet, from one side of the vessel to the other, thus forming a dome enveloping it; this explains why there at times appears to be some confusion between the terms "height" and "distance."

It also seems to me that the company 2973-3433 Québec inc. does not exercise over some of its activities the control that one might be entitled to expect of it. The Respondent therefore cannot claim that it was in spite of him that his aeroplane was used on August 15, 1997; thus, section 8.5 of the Aeronautics Act cannot apply.

Finally, there is reason to believe that those responsible for the company know the schedule of the vessel "La Tournée"and there is no reason for the seaplanes to approach within 500 feet, and even less reason to approach to within 500 feet above it, as they often seem to do. Such flying is unsafe, becomes exasperating for all who are subjected to it, and should be forbidden outright by aircraft operators, which is not the case here.

Nor do I believe one can invoke the exception of subsection 602.14(2) of the CARs, which provides that an aircraft may be flown "at a distance less than 500 feet ..." only if "conducting a take-off, approach or landing" (there is no mention of alighting on water). There is ample space to manoeuvre without coming dangerously close to the vessel.

I therefore find that the alleged flight by the Respondent did indeed take place, that the Respondent does not exercise over its activities the control one is entitled to expect of it, and that the flight training it provides does not adhere to the established rules in such circumstances.

Finally, in the case of a corporation, the penalty, according to the Minister's representative, should have been $1,200.00 for a first offence, the maximum being $5,000.00.

On the other hand, the Respondent appears prepared to make amends. The assessed monetary penalty of $250.00 does, however, strike me as disproportionate in the circumstances, and I accept Mr. Tamborriello's recommendation by increasing this amount, and hope that this lesson bears fruit.

DETERMINATION

I confirm the Minister's decision and increase the monetary penalty from $250.00 to $500.00.

Pierre Rivest
Member
Civil Aviation Tribunal