Decisions

CAT File No. Q-2119-33
MoT File No. N5504-40449

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Guy Marcoux, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 602.126(1)(c), 602.128(1)

Visual reference, Instrument approach procedures


Review Determination
Michel Larose


Decision: July 24, 2001

TRANSLATION

The Tribunal confirms the two monetary penalties assessed by the Minister of Transport against Mr. Guy Marcoux. The sum of $500  is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within fifteen days of the receipt of this determination.

A Review Hearing on the above matter was held March 27, 2001, at the courthouse in Sept-Îles, Quebec.

PRELIMINARY REMARKS

The procedure was explained to the two parties, no preliminary motions were submitted and no agreement was reached between the parties in pre-hearing.

A notice of motion was, however, submitted for the following correction:

An order allowing the Minister of Transport to amend the notices of assessment of monetary penalty dated July 28, 2000, to wit: Flight GIO 2509 – August 12, 1999 – 20:59 hours local time, not UTC, and flight GIO 2506 – August 12, 1999 – 21:36 hours local time, not UTC, was served on Mr. Charles Henri Desrosiers on February 28, 2001, under Rule 10 of the Civil Aviation Tribunal Rules with supporting case law, and Mr. Desrosiers agreed to this request.

It was asked that the witnesses be excluded in order to lend greater credibility to the testimony of each.

OBJECT OF THE REVIEW HEARING

On July 28, 2000, Mr. Justin Bourgault, for the Minister of Transport, served Mr. Guy Marcoux with a notice of assessment of monetary penalty pursuant to section 7.7 of the Aeronautics Act for having contravened paragraph 602.126(1)(c) and subsection 602.128(1) of the Canadian Aviation Regulations (CARs):

APPENDIX A

1. On August 12, 1999, at about 20:59 UTC, while you were pilot-in-command of flight GIO 2509, a DHC-6 aircraft, registered as C-FJCL, you conducted an instrument approach to Sept-Îles airport, runway 13, not in accordance with the minima specified in the Canada Air Pilot, contrary to section 602.128(1) of the Canadian Aviation Regulations.

PENALTY: $250.00

2. On August 13, 1999, at about 01:36 UTC, while you were pilot-in-command of flight GIO 2506, a DHC-6 aircraft, registered as C-FJCL, you took off from Sept-Îles airport, runway 31, when the visibility was below that specified in the Canada Air Pilot, contrary to section 602.126(1)(c) of the Canadian Aviation Regulations.

PENALTY: $250.00

The sum of $500.00 is to be paid in full by September 1, 2000, to the regional manager...

In the event the penalty is not paid by September 1, 2000, a copy of this notice will be sent to the Civil Aviation Tribunal.

The penalty was not paid by the specified date, that is, September 1, 2000; hence this review hearing.

THE LAW

Section 7.7 of the Aeronautics Act:

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).

Section 602.128 of the CARs:

602.128 (1) No pilot-in-command of an IFR aircraft shall conduct an instrument approach procedure except in accordance with the minima specified in the Canada Air Pilot or the route and approach inventory.

(2) No pilot-in-command of an IFR aircraft shall, unless the required visual reference necessary to continue the approach to land has been established,

(a) in the case of a CAT I or II precision approach, continue the final approach descent below the decision height; or

(b) in the case of a non-precision approach, descend below the minimum descent altitude.

(3) Where the pilot-in-command of an IFR aircraft conducting an instrument approach does not establish the required visual reference referred to in subsection (2), the pilot-in-command shall initiate a missed approach procedure

(a) in the case of a CAT I or II precision approach, at decision height; and

(b) in the case of a non-precision approach, at the missed approach point.

(4) Notwithstanding anything in this Division, no pilot-in-command of an IFR aircraft shall conduct a precision approach to CAT II or CAT III minima unless

(a) the flight crew has received the training specified in the Manual of All Weather Operations (Categories II and III); and

(b) the aircraft is operated in accordance with the procedures, the equipment requirements and the limitations specified in the manual referred to in paragraph (a).

Section 602.126 of the CARs:

602.126 (1) No pilot-in-command of an aircraft shall conduct a take-off if the take-off visibility, as determined in accordance with subsection (2), is below the minimum take-off visibility specified in

(a) the air operator certificate where the aircraft is operated in accordance with Part VII;

(b) the private operator certificate where the aircraft is operated in accordance with Subpart 4; or

(c) the Canada Air Pilot in any case other than a case described in paragraph (a) or (b).

(2) For the purposes of subsection (1), the take-off visibility is

(a) the RVR of the runway, if the RVR is reported to be at or above the minimum take-off visibility specified in a document or the manual referred to in subsection (1);

(b) the ground visibility of the aerodrome for the runway, if the RVR

(i) is reported to be less than the minimum take-off visibility specified in a document or the manual referred to in subsection (1),

(ii) is reported to be fluctuating above and below the minimum take-off visibility specified in a document or the manual referred to in subsection (1), or

(iii) is not reported; or

(c) the visibility for the runway as observed by the pilot-in-command, if

(i) the RVR is not reported, and

(ii) the ground visibility of the aerodrome is not reported.

Section 103.08 of the CARs:

103.08 (1) The provisions set out in column I of the schedule to this Subpart 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 amounts set out in column II of the schedule are the maximum amounts payable in respect of a contravention of the provisions set out in column I.

(3) A notice issued to a person by the Minister pursuant to subsection 7.7(1) of the Act shall specify

(a) the designated provision that the Minister believes has been contravened;

(b) the particulars of the alleged contravention;

(c) that payment of the amount specified in the notice will be accepted by the Minister as and in complete satisfaction of the amount of penalty for the alleged contravention and that no further proceedings under Part I of the Act will be taken against the person in respect of that contravention;

[...]

THE FACTS (documentary, testimonial and physical evidence)

Applicant's evidence:

Mr. Carol Bergeron, an inspector with Transport Canada, Commercial and Business Aviation, and an IFR examiner, has 28 years' aviation experience, and stated, first of all, that:

The certificate of registration of aircraft C-FJCL is the property of Régionnair (Exhibit R-1). The air operator certificate of Régionnair, which operates under subparts 703 (Air Taxi Operations) and 704 (Commuter Operations), does not authorize it to operate below the minima published in the Canada Air Pilot (CAP) (R-2).

The journey log of aircraft C-FJCL shows that on August 12, 1999, the pilot-in-command was Mr. Guy Marcoux and the co-pilot was Mr. Stéphane Blaney, and that a landing was made at Sept-Îles outbound from Havre-Saint-Pierre, flight GIO 2509 at 20:59 hours, and a take-off was made from Sept-Îles for Havre-Saint-Pierre, still on August 12, 1999, at 21:36 hours (R-3).

Mr. Marcoux's licence number is A-272075 (R-4). A portion of the CAP was subsequently filed as R-5, and Mr. Bergeron explained the different standards for an instrument (VOR/DME) non-precision landing on a straight-in approach for runway 13 and for a take-off on runway 31.

The CAP was in force for the period July 15 to September 9, 1999, which includes the evening of August 12, 1999. For a better understanding of the testimony of the expert, Mr. Bergeron, the Tribunal prefers the following photocopies:

LANDING

The accepted characteristics are as follows:

MINIMUM DESCENT ALTITUDE (MDA): A specified altitude referenced to sea level for a non-precision approach below which descent must not be made until the required visual reference to continue the approach to land has been established. [p. 16 of the CAP]

REQUIRED VISUAL REFERENCE: In respect of an aircraft on an approach to a runway, means that section of the approach area of the runway or those visual aids that, when viewed by the pilot of the aircraft, enables the pilot to make an assessment of the aircraft position and the rate of change of position, relative to the nominal flight path; (référence visuelle requise). [p. 17 of the CAP]

STEP-DOWN FIX: A fix permitting additional descent within a segment of an instrument approach procedure by identifying a point beyond which further descent can be made. [p. 17 of the CAP]

LANDING MINIMA [p. 21 of the CAP]

CARs 602 specifies that landings are governed by published DH[decision height]/MDAs. Pilots of aircraft on instrument approaches are prohibited from continuing the descent below DH, or descending below MDA, as applicable, unless the required visual reference is established and maintained in order to complete a safe landing. When the required visual reference is not established or maintained, a missed approach must be initiated. Missed approaches beyond the MAP [missed approach point] may not be assured obstacle clearance.

The visual references required by the pilot in order to continue the approach to a safe landing should include at least one of the following references for the intended runway and should be distinctly visible and identifiable to the pilot:

a) the runway or runway markings;

b) the runway threshold or threshold markings;

c) the touchdown zone (TDZ) or TDZ markings;

d) the approach lights;

e) the approach slope indicator system;

f) the runway identification lights (RILS);

g) the threshold and runway end lights;

h) the touchdown zone lights (TDZL);

i) the parallel runway edge lights; or

j) the runway centreline lights.

Published landing visibilities associated with all instrument approach procedures are advisory only. Their values are indicative of visibilities which, if prevailing at the time of approach, should result in the required visual reference being established and maintained to landing. They are not limiting and are intended to be used by pilots only to judge the probability of a successful landing when compared against available visibility reports at the aerodrome to which an instrument approach is being carried out.

With regard to these documents for runway 13 for a VOR/DME non-precision straight-in approach, the runway centreline is 132°, the approach radial is 301° with a track or route of 121°, the final approach fix (FAF) (FREMS) is at an altitude of 1,000 feet at 4.5 DME (4 NM from the runway threshold), the MDA is 540 feet ASL or 366 AGL, and the VOR (YZV) (MAP) is slightly northeast of the threshold of runway 13, and the visibility must be 1¼ mile.

As for the weather on August 12, at 21:00 hours (or August 13, 01:00 Z) at CYZV (Sept-Îles), the winds were at 00000 KT, visibility was _ SM (statute mile), the RVR [runway visual range] R09 (alpha at 1,600 feet, the vertical ceiling at 300 feet (VV003) and the presence of fog 8/8 (FG 8/8) (R-6). The landing occurred at 20:59 hours local time on August 12, 1999, on runway 13 (R-6).

Thus, according to the witness Mr. Bergeron, the pilot, according to professional procedure, must position himself over his approach radial of 301° or over his track of 121° as soon as possible, that is, at about 9 DM at an altitude of 2,000 feet, proceed to the fix (FAF-FREMS) at 4.5 DME at an altitude of 1,000 feet, descend to the MDA at an altitude of 540 feet (+ 2 NM from the runway threshold), level out and maintain this altitude, obtain his required visual references, conduct his final descent to the runway and, should this not be possible, he must pull up at the MAP.

According to Mr. Bergeron, these are the standards for making a safe landing.

TAKE-OFF

As for the take-off, the take-off minima/departure procedures are published in the CAP (R-5 – p. 18):

TAKE-OFF MINIMA/DEPARTURE PROCEDURES

The minimum visibility for take-off shall be determined by the pilot-in-command consistent with aircraft performance, navigation equipment limitations and the requirement for the pilot to ensure obstacle clearance.

Notwithstanding, and unless otherwise authorized in accordance with CARs 602, IFR take-offs for all aircraft are prohibited when the visibility is below the applicable minimum visibility published in the Canada Air Pilot (CAP). IFR take-offs for rotorcraft are permitted when the take-off visibility is one-half the CAP value but not less than ¼ SM.

Take-off visibility, in order of precedence, is defined as:

a) the reported RVR of the runway to be used (unless the RVR is fluctuating above and below the minimum, or less than the minimum because of a localized phenomena); or

b) the reported ground visibility of the aerodrome (if the RVR is unavailable, fluctuating above and below the minimum or less than the minimum because of localized phenomena. A local phenomenon is deemed to be occurring if the RVR readout is less than the reported ground visibility.); or

c) when neither (a) nor (b) above is available, the visibility for the runway of departure as observed by the pilot-in-command.

[...]

In the same document (R-5 – p. 284), the required visibility for all runways at Sept-Îles is ½ mile on the aerodrome chart.

However, on the air operating certificate (R-2) of Régionnair, the Twin Otter (R-2 – p. 6) cannot take off in IFR below the required minima (½ mile), with the exception of the Beach 1900, for which the minimum is ¼ mile (R-2 – p. 9 002, p.15 002).

On August 13, 1999, the special METAR of 01:15 Z reports visibility of ¼ SM. At CYZV, the winds were at 05002 KT, the RVR of R09 at 1,200 feet, the vertical ceiling at 200 feet (VV002) and the presence of fog 8/8 (FG 8/8) (R-6).

On cross-examination by Mr. Desrosiers, the witness, Mr. Bergeron, said that although he has not flown the Twin Otter, he thinks this aircraft may be a STOL (short take-off and landing aircraft) or ADAC (avion à décollage et atterrissage courts), which is more manœuvrable.

The pilot can judge the minimum visibility and his visual references, as these required visual references [a) to j), R-5, p. 21 of the CAP] are not limiting or mandatory, but merely advisory, and the size of the aircraft as well as its approach speed become significant factors for landing.

Mr. Bergeron also agreed that the pilot can make an initial approach, pull up and make another attempt on the express condition that he has enough fuel to reach an alternate airport.

He also agreed that the pilot can descend to the MDA and, depending on his size and speed, may have visibility of more than 1¼ mile, but that the lights of a city (runway environment) are not visual references; it is criteria a) to j) (R-5, p. 21) that take precedence.

The lighting for runway 13 at Sept-Îles consists of a VASIS (visual approach slope indicator (VI)) and the system is an AD system (R-5, pp. 36, 37), i.e., a centre row of low-intensity yellow approach lights, at 100-foot intervals for a distance of 2,400 feet, before the runway threshold with its green lights, and runway markings that include white lights on either side every 200 feet for a distance of 6,037 feet.

In answer to Mr. Paré's very specific questions, Mr. Bergeron said that with a visibility of _ mile, and if the aircraft was south of its track of 121°, there is a special angle of approach. With the VOR being slightly northeast of runway 13, the pilot might not see the approach lights and might find himself over the runway, which would not be at all safe as he would not know how much distance remained for a landing on the runway.

He acknowledged to Mr. Desrosiers, however, that one must also take into account that as the landing speed was low (+ 90 KNOTS), the runway was 6,037 feet, and the Twin was landing within the 1,200 feet, everything is based on the pilot's judgment, his experience, and on the type of aircraft he is flying, since the Twin is not a high-performance aircraft.

Finally, Mr. Bergeron explained to Mr. Paré that as an IFR examiner, in the case of a rating test in the IFR conditions that prevailed the evening of August 12, 1999, in Sept-Îles, the pilot would have had to position himself as quickly as possible over the track of 121°, not south of it, head for the fix and descend to the MDA to see, based on the criteria, about a VOR/DME non-precision approach. This would prove unacceptable, unsafe, and the pilot would have failed his in-flight exam.

Mr. Roger Labelle, on questioning by Mr. Charlebois, testified that he is a flight service specialist, that he has 15 years' experience, and that he was on duty on August 12, 1999, at the Sept-Îles flight service station (FSS).

He submitted to the Tribunal all the weather reports for August 12, 1999, between 18:00 and 22:00 hours (local time) or 22:00 Z August 12 and 02:00 Z August 13, 1999. The Tribunal will review only the main ones for this dispute (R-6).

Metar

Station

Date and time timet heuree

Wind

Visibility

RVR

Ceiling

temp./dew point ppoint roséoint

Altimeter

Comments

Metar

CYZV

12 2200Z

060 04 kt

1 sm -DZ BR

 

VV 002

13 12 2985

FG 8/8 slp 110

Speci

CYZV

12 2221Z

 

½ sm

R09 5000

VV 001

   

FG 8/8

Speci

CYZV

12 2243Z

090 03 kt

1 sm

R09 P6000

VV 002

   

FG 8/8

Metar

CYZV

12 2300Z

00000 kt

1 sm BR

 

VV 002

13 12 2985

FG 8/8 slp 109

Speci

CYZV

12 2322Z

00000 kt

1 1/4 sm BR

 

OVC 001

   

FG 2/8 ST6/8 CIG

Metar

CYZV

13 0000Z

080 2 kt

5/8 sm

R09 3000

OVC 001

13 12 2986

FG 2/8 ST6/8 CIG

Speci

CYZV

13 0010Z

070 2 kt

3/8 sm

R09 2200

VV 003

   

FG 8/8

Metar

CYZV

13 0100Z

00000 kt

3/8 sm

R09 1600

VV 003

13 12 2987

FG 8/8

Speci

CYZV

13 0115Z

050 02 kt

1/4 sm

R09 1200

VV 002

   

FG 8/8

Metar

CYZV

13 0200Z

00000 kt

1/4 sm

R09 1200

VV 002

13 12 2888

FG 8/8

Mr. Labelle quite agreed that the RVR of 09 had a runway visibility range of 3,500 feet, but at 02:39 Z on August 13, and that the ceiling was 800 feet, covered, between 200 and 600 feet. He confirmed that his office is in the terminal, on the 3rd floor, and that he is 5/8 mile from the threshold of runway 13.

Conditions can change between the threshold of [runway] 13 and his office, and when they do, in addition to making his hourly reports, he issues special reports (SPECI METAR).

He also confirmed that there are three runways forming a triangle at Sept-Îles that are 1/2 mile from the river, that there can be fog over the sea and not at the airport, and that the readings may be different outside his office and at the runway thresholds.

Mr. Labelle writes his reports based on RVR equipment and the Ceilometer or Cloud Height Meter, his visual observations outside his office and his local experience.

He noted that on August 12, 1999, the ceiling was stable at the times in question, between 0 and 300 feet, except at 02:39 Z, when it was 800 feet. He also confirmed that the RVR at the threshold of runway 09 is 1/2 –5/8 mile from his office and that he is another ½ mile away from the threshold of runway 13 and further still from runway 31.

The third witness questioned by Mr. Charlebois was Mr. Stéphane Gendron, who was the air and ground traffic controller on August 12, 1999, at the Sept-Îles airport, between 13:30 and 22:15 hours (local time).

First of all, he filed his air traffic record for August 12, 1999 (R-7) between 21:03:00 Z on August 12, 1999, and 02:00:00 hours Z on August 13, 1999. The legend for the table reproduced below reads as follows:

LEXICON

X: IFR

V: VFR

553: Sept-Îles

UTC: Universal Time Coordinated

GIO: Régionnair

99: Approach attempted and then pull-up, i.e., two aircraft movements

ICN: InterCanadian

QLA: Québec Labrador

CME: Comet or Prince Edward Aviation

FWAM: Registration letters of an aircraft

ARN: Air Nova

CME: Cartier

11: Comments

Sept-Îles Control Tower

12/08/99 Traffic Record

A OR D

AC IDENT

ACTYPE

ORG DES

HOUR

IFR

RUNWAY

DATE

DESC

SITE #

LHOUR

MIN

A

ICN2326

AT43

YBC

0.0833

X

99

8/13/99

  553 2 0

D

ICN2326

AT43

YQB

0.0833

X

99

8/13/99

  553 2 0

A

ICN2328

AT43

YZV

0.0771

X

99

8/13/99

  553 1 51

D

ICN2328

AT43

YWK

0.0771

X

99

8/13/99

  553 1 51

D

GIO2506

DHC6

YGV

0.0667

X

31

8/13/99

  553 1 36

A

ICN2328

AT43

YBG

0.0653

X

99

8/13/99

  553 1 34

D

ICN2328

AT43

YZV

0.0653

X

99

8/13/99

  553 1 34

A

ARN716

DH8A

YQB

0.0528

X

99

8/13/99

  553 1 16

D

ARN716

DH8A

YWK

0.0528

X

99

8/13/99

  553 1 16

D

GIO347

B190

YPN

0.0444

X

13

8/13/99

  553 1 4

A

GIO2509

DHC6

YZV

0.041

X

13

8/13/99

  553 0 59

A

GIO2509

DHC6

YGV

0.0326

X

99

8/13/99

  553 0 47

D

GIO2509

DHC6

YZV

0.0326

X

99

8/13/99

  553 0 47

A

GIO2503

B190

YWK

0.0146

X

13

8/13/99

  553 0 21

A

FWAM

G159

YUL

0.009

X

99

8/13/99

  553 0 13

D

FWAM

G159

YBC

0.009

X

13

8/13/99

  553 0 13

D

ICN2326

AT43

YBC

0.99097

X

99

1999/12/08

  553 23 47

A

ICN2326

AT43

YBC

0.99097

X

99

1999/12/08

  553 23 47

D

GIO1726

B190

YKL

0.97292

X

31

1999/12/08

  553 23 21

D

QLA364

E110

YBC

0.97153

X

99

1999/12/08

  553 23 19

A

QLA364

E110

YAV

0.97153

X

99

1999/12/08

  553 23 19

D

QLA364

E110

YZV

0.95833

X

99

1999/12/08

  553 23 0

A

QLA364

E110

YZV

0.95833

X

99

1999/12/08

  553 23 0

D

ARN735

DH8A

YQB

0.95

X

99

1999/12/08

  553 22 48

A

ARN712

DH8A

YQB

0.95

X

99

1999/12/08

  553 22 48

A

GIO1716

PC12

TT5

0.94375

X

13

1999/12/08

  553 22 39

D

CME1199

BE99

YBC

0.93264

X

99

1999/12/08

  553 22 23

A

CME1199

BE99

YWK

0.93264

X

99

1999/12/08

  553 22 23

D

GUMQ

PA31

YQB

0.91806

X

31

1999/12/08

  553 22 2

D

FJYL

AS50

11 0.90486

V

60

1999/12/08

HE

553 21 43

A

FJYL

AS50

11 0.90417

V

60

1999/12/08

NW

553 21 42

D

QLA364

E110

YZV

0.89375

X

31

1999/12/08

TRAINING

553 21 27

D

COF977

PA31

YZV

0.88889

X

99

1999/12/08

  553 21 20

A

COF977

PA31

YZV

0.88889

X

99

1999/12/08

  553 21 20

A

COF977

PA31

YZV

0.87847

X

5

1999/12/08

  553 21 5

D

COF977

PA31

YZV

0.87708

X

99

1999/12/08

  553 21 3

A

COF977

PA31

YKL

0.87708

X

99

1999/12/08

  553 21 3

Movements 12-08-99.xls

In answer to the questions of the co-presenter Mr. Charlebois, Mr. Gendron said that between 18:00 and 22:00 hours (local time) on August 12, 1999, only three aircraft managed to land at Sept-Îles, and a helicopter from the northwest and departing for Helie Excel.

Later in his testimony, Mr. Gendron referred to a portion of the cassette and its transcript between the Sept-Îles control tower, air position, frequency 118.1, and the listening watch of the Montreal radar centre (ACC-UL – Cartier-Haute-Rive sector), frequency 135.55, and the Hot Lines, that is, the passing on of instructions (R-10 – exhibits A 00.29 to 00.59 and R-8).

Secondly, [he referred] to the audio-video cassette (R-8) which includes the movements of the aircraft with their identification, speed and altitude, from the ACC–UL, between 22:00 Z and 2:00 Z on August 13, and its sound component from 00:00 Z on August 13 to 02:00 Z on August 13, as the first sound portion could not be recovered.

Finally, filed as R-13, [he referred to] side B of the cassette with its transcript between the Sept-Îles control tower ground position, on frequency 121.9, between 01:29 Z and 01:39 Z on August 13, 1999.

The Tribunal and the parties viewed the video and benefited from the viva voce comments of Mr. Gendron.

The large circle is 15 NM, each dotted line represents 1 NM, the fix is at 4.5 DME and the track is 121°, the approach radial 301° and the centreline for runway 13 is 132°.

Co-presenter Mr. Paré consulted with Mr. Paulo Nunes, director of maintenance for the Aéroneuf company, and filed in evidence document R-9 concerning the altitudes of the transponders shown on the radar image of ACC-UL – Cartier-Haute-Rive.

The figures appearing for 1,000 feet even do not give 300 and 200 in hundreds of feet but become 0, and the CST sign, that is, Coast, means that the radar is losing sight of its target.

This being the case, the Tribunal notes that GIO 1716 landed on [runway] 13 at 18:39 hours (local time) with a functional transponder, that is, recorded speed and altitude.

GIO 2503 did not have its transponder operating in Mode C and landed on [runway] 13 at 20:21hours (local time). Much to the surprise of the Sept-Îles air controller and the CCR controller (R-8 – R-10).

As for flight GIO 2509, document R-8 reports the conversations between the ACC-UL controller and the pilot of GIO 2509, among others, and document R-10 reports the conversations between the air controller at the Sept-Îles tower, the ACC-UL controller and the pilot of GIO 2509.

This last transcript did not reach Mr. Desrosiers or Mr. Marcoux because of an error in the address (R-11 – R-4); while Mr. Desrosiers did not object to the filing of this document, he did want to point this out to the Tribunal.

Mr. Gendron had received a METAR reporting visibility of ¼ mile, and on the video he saw GIO 2509 with no recorded altitude (that is, no Mode C), the same as GIO 2503, on descent, which made an approach over runway 31 at a speed of 100 KT and pulled up at 90 KT to the northwest to 8 DME. Then, after banking left, it found itself about ½ mile south of its approach track of 121°, flew parallel to this track, did not proceed to the fix at 3½ miles, again found itself south of its track, then the radar lost sight of it and the CST sign appeared.

The extrapolated speed would be about 100 KT.

Two other aircraft (ARN 716 and ICN 2328) attempted to land on [runway] 13, 17 minutes and 35 minutes later, descended to 600 feet at 5 DME and pulled up.

As for the take-off of GIO 2506 on runway 31 in IFR flight from Sept-Îles to Havre-Saint-Pierre, this runway has no RVR and Mr. Gendron made an Aircraft Occurrence Report (R-12) on August 12, 1999, as the visibility was ¼ mile (SM) and he personally observed this and is certified to do so.

The CAP specifies that for take-offs on any runways at Sept-Îles airport, the visibility must be ½ mile (SM).

Document R-13 is the transcript of ground controller Mr. Gendron, on frequency 121.9, between 01:29 Z and 01:39 Z on August 13, 1999, and it shows that he informed the pilot of the special METAR of 01:15 Z reporting a visibility of ¼ mile with a ceiling of 200 feet in fog.

The decision regarding take-off is not his to make but the pilot's, and he could not say whether he spoke to the pilot or even to the co-pilot.

The Defence:

Mr. Marcoux has been a pilot since 1979. He has an IFR licence, and 13,000 flying hours of experience, including 2,800 on an ATR. He is endorsed on the Twin Otter with 2,000 flying hours and the Beech. Since 1992, he has been co-owner of Régionnair and flies mostly over the Basse-Côte-Nord region.

Since 1992, Régionnair has built four packed-dirt or gravel runways and the Twin Otter can land within 1,500 feet.

On August 12, 1999, accompanied by his co-pilot, Mr. Stéphane Blaney, with 15 passengers on board, he left from Havre-Saint-Pierre aware of the prevailing weather at Sept-Îles, and having reported to the Montreal ACC-UL on [frequency] 135.5 and to the Sept-Îles air controller on [frequency] 118.1, he made a NDB straight-in approach for runway 31. He descended to the minimum of 600 feet and over the runway, his co-pilot noticed the runway lights a little more to the left. Unsure of the distance remaining for a safe landing, he decided to pull up, and his co-pilot saw the approach lights of runway 13. He called Montreal while pulling up, found out the weather at Baie-Comeau (alternate airport) and decided to make another PMA (pilot monitored approach) (VOR/DME) straight-in approach for [runway] 13 and handed over the controls to his co-pilot. He reached an altitude of 2,500 feet, slightly north of his runway centreline of 132° (track of 310°), banked left to return to his approach track of 121° at 8 DME. He headed for the fix. He descended almost to the minimum at 600 feet and maintained this attitude to 0.8 DME. At that point, he saw the localizer course lights, took back the controls with visibility improving, descended a little lower, and throughout the approach saw the lights of the city, made a very safe landing and taxied on the ground to the terminal.

As for his take-off on runway 31, about 37 minutes after his landing, he found out the weather at Sept-Îles, at Havre-Saint-Pierre and at Baie-Comeau, being the alternate airport. He did not have to do a run-up, his checklist was done while taxiing on the ground.

As visibility was better than that reported by the ground controller, i.e., at least ½ mile and more, he took off; he would not have done so otherwise. In his view, he complied with the regulations for both landing and take-off, as the weather data were different on the runways than at the terminal and he complied with the regulations in force.

On cross-examination by Mr. Paré, Mr. Marcoux said he was an experienced and very conscientious pilot with no history of accidents or incidents, and that as pilot-in-command of GIO 2509 and GIO 2506, he complied with section 602.72 of the CARs (R-14), that is, he was familiar with the available weather information before undertaking a flight and was also familiar with all other sections of the CARs in force.

As president and manager, he requires all his pilots to comply with the CARs and does his utmost to do likewise.

For the take-off at 21:36 hours (local time), he had received the official weather, i.e., the special METAR, of August 13 at 01:15 Z, which was ¼ mile (R-6), and his air operator certificate (R-2) requires ½ mile visibility for the Twin Otter, the same as the CAP, which specifies ½ mile for all Sept-Îles runways.

As to whether Régionnair's air operator certificate was already suspended as of August 13, 1999, Mr. Marcoux answered "yes" but Mr. Desrosiers firmly objected to this question and the Tribunal sustained this objection, mentioning that the Minister of Transport could mention this during arguments.

Mr. Desrosiers then had Mr. Marcoux explain that he had actually passed ¼ - ½ mile south of the fix in relation to his approach track, but that he then cut back to a good altitude, as did Air Nova 716, and it is not mandatory to pass right over the fix (DME in relation to a radial) as it is not as precise as that.

The speed of a Twin Otter, which is 100 KT, compared to 140 KT for an ATR, gives him more correction time.

Concerning the ADF/VOR DME non-precision approaches for a Franck situated at Dorval, Mr. Marcoux could not comment on them, but maintained that he asked his co-pilot to set a northeast course to intercept his approach track past the fix, but still found himself south of the runway but on his approach track, and both his altitude and speed were maintained.

Mr. Marcoux confirmed that on August 12, 1999, between 18:00 and 22:00 hours (local time), only three Régionnair aircraft landed, and in answer to the Tribunal's question, said that he was the one at the controls of flight GIO 2509 for the final approach for [runway] 31 and that on pulling up, he maintained a runway heading of 310° and was cleared for 4,000 feet, but stopped at 2,500 feet; once the PMA decision was made, the co-pilot took over the controls, heading northwest, turned left and at ¼ mile passed next to the fix (the fix is an approach radial of 301° or track of 121° in relation to a DME [at] 4.5 NM) too far to the south, then cut back to intercept it.

During this time, he made his visual observations and it was only on very short final, when he saw the yellow approach lights, that he took back the controls for a safe landing.

Finally, Mr. Marcoux confirmed to Mr. Paré that the small tents level with and slightly to the south of the FREMS were the lights of the city of Sept-Îles and that the two other Régionnair aircraft that were north of the track of 121° had to make VFR flights.

ARGUMENTS

For the Minister of Transport, Mr. Charlebois raised the following points:

About the landing:

  1. That the air operator certificate of the Régionnair company states that the DHC-6 must respect the approach minima published in the CAP. Namely, MDA ceiling 540 feet ASL (366 feet AGL) and recommended visibility of 1¼ SM.
  2. That the weather the evening of August 12, 1999, between 18:00 and 22:00 hours (local time), was below the minima required for a VOR/DME runway 13 approach.
  3. That at the time of the landing of GIO 2509, the ceiling was 300 feet and visibility was _ SM, that is, below the required minima.
  4. That only aircraft of the Régionnair company landed at the Sept-Îles airport between 18:00 and 22:00 hours (local time) as published. All other aircraft that made a runway 13 approach pulled up. Air Nova, Inter Canadien, Aviation Québec Labrador, Comet and C-FWAM all made the published approach and descended to the MDA. They all made a missed approach. The radar video shows it. All aircraft, without exception, that made an approach as published in the CAP pulled up. Only the aircraft of the Régionnair company, which did not make such an approach as published in the CAP, landed. We submit that in these conditions the only way that Mr. Marcoux could have landed is by descending below the minima. We submit that on the balance of probabilities, Mr. Guy Marcoux, pilot-in-command, president and operations manager, did not have the required visual references at the MDA to complete his approach according to the procedures published in the CAP.
  5. It is interesting to note that only the Régionnair aircraft did not have their Mode C switched on.
  6. Mr. Marcoux led us to believe that the landings of the two other Régionnair aircraft were in VFR conditions, whereas the evidence shows conditions below the IFR minima.

About the take-off:

1. The air operator certificate of the Régionnair company states that the DHC-6 must respect the take-off minima published in the CAP, i.e., visibility of ½ mile.

2. At the time GIO 2506 took off the evening of August 12, 1999, the weather was ¼ mile visibility, while the take-off minimum for the Sept-Îles airport is ½ mile visibility for all runways according to the CAP.

Mr. Desrosiers wished to raise the following arguments for Mr. Guy Marcoux and Régionnair:

The two alleged offences are quite separate and prior incidents are not relevant.

The evidence of the Minister of Transport about landing below the minima has many weaknesses as it consists of mere speculation.

The fact that other aircraft did not land does not necessarily mean that Mr. Marcoux and Régionnair had the same weather conditions [as they did].

In this regard, Mr. Labelle confirmed that the conditions are quite variable at Sept-Îles, as visibility can be 00 at the terminal and clear over the runway(s).

METARs are issued based on visual observations and the instruments are situated far from the runway thresholds and the observer, Mr. Labelle, was ½ or 1 mile from the threshold of runway 13.

Moreover, Mr. Bergeron admitted than in these areas, it is up to the pilot to judge.

The CAP specifies that at the MDA, if the pilot has visual references, the decision is his to make. Mr. Marcoux did in fact see the lights before the threshold of [runway] 13 while pulling up, and as for his attempt to land on [runway] 31, he did not know whether he had enough runway.

With regard to aircraft movements, a helicopter had flown and was not in IFR, which implies clear patches or satisfactory climatic breaks for visibility.

He added that there is no visual evidence (video cassette) that he was below the minima as the transponder was not functional.

The Twin GIO 2509 did not land at the same time as the other two, which pulled up at an interval of 17 and 35 minutes, respectively.

Mr. Marcoux is a very credible man, with no prior incidents and responsibility for 15 passengers.

Regarding the take-off, which occurred shortly after the landing, Mr. Marcoux was familiar with the special METAR and the information of the ground controller, Mr. Gendron, but once again, at Sept-Îles, some special conditions prevail at the airport and on the runways.

Mr. Marcoux had his ½ mile visibility because he would not have taken off with ¼ mile official visibility. He therefore committed no offence.

Referring to the different METARs, he talked of rapid changes (ex.: 1/4 to 3/8 – 1 minute before) and also of a change in horizontal visibility (RVR) from 1,200 to 1,600 feet. According to Mr. Desrosiers, the only issue for the Tribunal is the credibility of Mr. Marcoux, who presented evidence that is direct, not circumstantial like that of the Minister of Transport. According to Mr. Desrosiers, each and every circumstance must tend towards conviction, and this is not the case here. Furthermore, no circumstance must be incompatible with the conviction.

In rebuttal, Mr. Charlebois filed three legal precedents[1] to the effect that the visibility that is to be used on take-off when there is no RVR, such as for runway 13/31, is the weather observation, which takes precedence over that of the pilot.

DISCUSSION

The Tribunal will not go back over ad litteram or in extenso the documentary, testimonial and physical evidence presented by the two parties, but will simply note what is essential for its ruling.

The Tribunal considers that the Minister of Transport has assumed its burden of proof, on the balance of probabilities, in proving all the elements of its notices of assessment of monetary penalty in that:

For the landing of Régionnair flight GIO 2509 at Sept-Îles on August 12, 1999, at 20:59 hours (local time), the pilot-in-command, Mr. Guy Marcoux, did not respect the minima published in the CAP.

First of all, the weather conditions were IFR conditions and very poor between 18:00 and 22:00 hours on August 12, 1999 (22:00 Z August 12 and 02:00 Z August 13), from the standpoint of both ceiling - visibility and fog (R-6).

Secondly, a Régionnair aircraft, GIO 1716 (PC12), landed on [runway] 13 at 18:39 hours (local time) and the video very clearly shows that its transponder was switched to Mode C and that it was north of its track of 121° at the level of the fix situated at 4.5 DME.

A second Régionnair aircraft, GIO 2503 (B190), landed on [runway] 13 at 20:21 hours (local time) not in Mode C and it too was north of the fix on the track of 121° before intersecting it on very short final. The Tribunal wishes to point out that this landing was made to the great astonishment of the pilot of C-FWAM, the air controller at the Sept-Îles tower and the ACC–UL controller.

Thirdly, regarding Régionnair flight GIO 2509, which is the subject of this dispute, the Tribunal wishes to refer to the documentary and audio-visual evidence before moving on to the testimony as such:

(a) Régionnair GIO 2509 reported to the ACC–UL at 76 NM east of Sept-Îles, at an altitude of 7,000 feet (R-8).

(b) The ACC–UL informed the commander of the prevailing poor weather conditions and that most aircraft were on missed approaches (R-8).

(c) GIO 2509 was cleared for an approach to Sept-Îles (R-8 – R-10). GIO 2509 was cleared for [runway] 31 and the air controller told the commander that the last traffic was a Beech 1900 (GIO 2503) that had touched down on [runway] 13 and that at the threshold of runway 13, it was a little finer, but that south of the runway it was a little thicker and there was fog, according to the commander. The air controller wanted to tell him that visibility was ¼ mile (R-10).

(d) GIO 2509 pulled up from runway 31 (R-8 – R-10) and asked about the weather at Baie-Comeau (R-8 – R-10), which proved more suitable.

(e) The Montreal control centre (ACC–UL) cleared GIO 2509 to ascend to 4,000 feet over the centreline of runway 31 (R-8 – R-10), and he wanted to make an approach on runway 13 and was given clearance.

(f) ACC–UL asked GIO 2509 if it was leaving 4,000 feet and the latter replied that it was at 2,500 feet and would not go higher. Control of GIO 2509 was handed over to the Sept-Îles air controller on [frequency] 118.1. Mr. Marcoux informed the latter that he was on approach for runway 13 and that he was at 8 DME and finally, he was on the ground without Mode C at 00:59 on August 13, or 20:59 hours (local time).

The issue before the Tribunal is whether Mr. Marcoux, the respondent, continued an instrument approach and the descent of his aircraft below the minima published in the CAP.

Mr. Bergeron very clearly stated that the final approach is made in stages and that it is necessary to position oneself over one's track of 121° at 9 DME at an altitude of 2,000 feet, then descend to the fix (FAF) (FREMS) at 4.5 DME (4 NM) to an altitude of 1,000 feet and reach the MDA (540 ASL or 366 AGL), level out about 2 NM from the runway threshold and obtain the required visual approach references. If the pilot, Mr. Marcoux, did not adopt this flight procedure, he was in breach of IFR flying standards, and moreover, if he strayed south of his track, he increased his differential (that is, his track of 121° and runway centreline of 132°) and at [an] angle, he would not be able to see the approach lights (2,400 feet before the green lights of the runway threshold), would find himself at the MAP just over that runway and should have pulled up.

Mr. Bergeron quite agreed that the inertia and speed of the Twin are factors to be considered, as they allow the pilot greater latitude but not to the point of not complying with the CARs.

The respondent argued that he flew ¼ - ½ mile from the fix, at an altitude of 600 feet (ASL), that is, slightly above the MDA (540 AS; 366 AGL), or at 406 feet AGL, that he was slightly south of his track of 121° and that he intersected it. At 8 DME (i.e., .8 - .5 = .3 NM) (1,800 linear feet), he saw the central approach lights. Taking back the controls, with visibility improving, he landed his aircraft on [runway] 13. The Tribunal considers that, as he would not have seen these central approach lights at 2,400 feet had he been on his track of 121°, he was therefore south of this track and angle. Also, as the ceiling was 300 feet with 8/8 fog, it is difficult to conceive that at 406 feet one could see the low-intensity yellow central lights. Mr. Marcoux was therefore below the minima.

The Tribunal questions Mr. Marcoux's credibility as he is a very interested witness, his co-pilot, Mr. Blaney, for a PMA approach, did not corroborate his claims, his Mode C on his transponder was not functional (cf. video R-8 – R-10), he could recall 19 months later (August 12, 1999 – March 27, 2001) that he was at an altitude slightly above the MDA and that visibility was more than 1¼ mile. To this effect, the Tribunal cites three rulings[2] mentioned in the decision of Mr. Pierre Beauchamp of January 20, 2000: [3]

[...]

The decision of the Court of Appeal of British Columbia[4] with regard to the weighing of evidence given by the respondent that wholly contradicts the version of the Minister of Transport:

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

J. Sopinka and S.N. Lederman: [5]

Absent extenuating circumstances, the testimony of disinterested witnesses should prevail over that of persons who are or may be interested in the result. The court, however, is not to disbelieve or attribute error to the evidence of a witness solely because he is interested but must, instead, examine such evidence with reference to the facts of the case and other relevant factors. One judge has put it this way:

'... when the evidence of an important fact is contradictory ... the Court must weigh the motives of the witnesses, their relationship or friendship with the parties, their attitude and demeanour in the box, the way in which they gave evidence, the probability of the facts sworn to, and come to a conclusion regarding the version which should be taken as the true one ...'

Bell Canada v. Hallé: [6]

... when faced with two contradictory pieces of evidence, the tribunal must appreciate and attempt to determine, in light of all of the circumstances, which of the two probably reveals the truth aced with two conflicting pieces of evidence, the Court must weigh them and attempt to determine, in light of all the circumstances, which of the two probably reveals the truth...

[...]

Finally, the video is quite clear in this regard, namely, that on pulling up from [runway] 31, he headed west slightly to the north of his route of 310° to 8 DME, banked left, cut across his track of 121° to find himself south of it, never reached the fix over 121° at 4.5 DM, but still parallel with this route, that is, to the south heading east, and it was only at 1 (NM) (1 Dot) that he intercepted his track and landed on [runway] 13 without any altitude being recorded. (Cf. table reproduced below.)

The regulations stipulate that on reaching the MDA, the pilot must maintain his altitude, that is, 540 feet ASL, until the MAP situated slightly northeast of the threshold of runway 13, and if at that point he has not obtained the required visual references, he must pull up. The regulations are clear and stipulate as follows:

602.28 (1) No pilot-in-command of an IFR aircraft shall conduct an instrument approach procedure except in accordance with the minima specified in the Canada Air Pilot or the route and approach inventory.

(2) No pilot-in-command of an IFR aircraft shall, unless the required visual reference necessary to continue the approach to land has been established,

(a) in the case of a CAT I or II precision approach, continue the final approach descent below the decision height; or

(b) in the case of a non-precision approach, descend below the minimum descent altitude.

(3) Where the pilot-in-command of an IFR aircraft conducting an instrument approach does not establish the required visual reference referred to in subsection (2), the pilot-in-command shall initiate a missed approach procedure

(a) in the case of a CAT I or II precision approach, at decision height; and

(b) in the case of a non-precision approach, at the missed approach point.

[...]

The CAP stipulates the required visual reference for the landing minima:

(a) the runway or runway markings;

(b) the runway threshold or threshold markings;

(d) the approach lights;

(i) the parallel runway edge lights

For landing visibility, it may be established:

  1. electronically (RVR);
  2. by someone accredited by Transport Canada, flight service specialist, Environment Canada;
  3. by an air controller or ground controller;
  4. by the pilot.

Of course, it has been shown that the observed visibility was 3/8 mile, well below the visibility minima suggested on the approach chart, i.e., 1¼ mile, but these visibilities are not mandatory for this type of approach and an approach is cleared provided the MDA is respected.[7] The Tribunal believes the minimum altitude was never respected and that Mr. Marcoux voluntarily switched the Mode C of his transponder to "off."

No defect was entered in his aircraft journey log, and so doing he gave himself, in pitiful atmospheric conditions, considerable leeway to be able to land below the minima (MDA) even though the reported ceiling was 300 feet with, fortunately, winds of 00000 KT, but in 8/8 fog.

The descent limits were never observed, which constitutes negligence and recklessness since there was no urgency to continue the approach and a missed approach should have been made to an alternate airport (Baie-Comeau in this instance) or even another approach to Sept-Îles.

The Tribunal questions whether Mr. Marcoux, who is very familiar with the Sept-Îles airport and its environment and who has considerable experience, might perhaps have benefited from another navigation aid, but this does not excuse him from placing himself above the regulations and descending below the minima to land.

Regarding the take-off of flight GIO 2509 (IFR) from Sept-Îles on runway 31 at 21:36 hours on August 12 or 01:36 Z on August 13 to Havre-Saint-Pierre, even though the visibility was below that specified in the CAP:

The Minister of Transport has proven, by the testimony of its witnesses, and by documentary evidence, the following elements:

  1. The special METAR of August 13, 1999 at 01:15 Z to CYZV reported visibility of ¼ SM, the RVR of R09 at 1,200 feet, the vertical ceiling at 200 feet (VV002) and the presence of 8/8 fog (FG 8/8) (R-6).
  2. The take-off minima/departure procedures are published in the CAP (R-5, p. 18).

The required visibility for all runways at Sept-Îles is ½ mile (R-5 , p. 284 – aerodrome chart). On Régionnair's air operator certificate (R-2), the Twin cannot take off in IFR below the required minima.

As for the transcript of the conversations between the ground controller Mr. Gendron and the pilot of GIO 2506 on frequency 121.9, between 01:29 Z and 01:39 Z on August 13, 1999, the ground controller informed the latter of the special METAR at 01:15 Z and the pilot decided to take off from [runway] 31.

Mr. Gendron made a report to his superior following this incident.

The respondent claims that for this take-off, made 37 minutes after his landing, he found out the weather in Sept-Îles, Havre-Saint-Pierre and Baie-Comeau, being the alternate airport, that he went over his checklist while taxiing on the ground, and that visibility at the threshold of [runway] 31 was ½ mile or more, contrary to the information provided by the ground controller. He would not have taken off otherwise.

With regard to visibility, the Tribunal considers that Mr. Marcoux contravened CAR 602.126(1)(c), (2)(b)(iii) and (2)(c)(ii).

Here, the flight service specialist issued his special METAR at 01:15 Z and the ground controller made the same observations and repeated them or reported them to the pilot and they both take precedence over the pilot's observations.

PENALTIES

As for the penalties to be imposed, first of all, the Tribunal refers to section 8.5 of the Aeronautics Act, which stipulates as follows:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

To this question, the Tribunal answers "NO" since the respondent could easily have pulled up, made a second or even third landing attempt by following his track of 121°, reached the fix at 1,000 feet of altitude and descended to his MDA (540 SL) and maintained his altitude until the missed approach point, and if at that point he had not obtained the required visual references, pulled up or even headed to his alternate airport, namely, Baie-Comeau.

The same applies for the take-off, namely, that in addition to obtaining his weather at Sept-Îles, Baie-Comeau, Havre-Saint-Pierre, the ground controller repeated to him that the visibility was ¼ SM and he knew very well that he could not take off with a visibility below ½ SM: [8]

[...]

Secondly, the Tribunal refers to the Wyer case,[9] in which the member states at pages 4 and 5 the principles that must guide the Tribunal when assessing a sanction:

[...]

Arriving at an appropriate penalty, then, involves not only knowing the sentencing principles and the relevant facts and circumstances that give them meaning in an individual case; it may also involve the high art of balancing various policy considerations implicit in the principles and in the facts of the case.

Certainly there are a number of factors which exist in finding the proper balance within the principles of sentencing the assessment of a penalty or other sanction. These factors will be considered, some in aggravation and others in mitigation.

Without attempting to limit what such factors may include, the following may be considered:

1. Aggravating factors:

  • infractions involving dishonesty,
  • planned breaches,
  • premeditated breaches,
  • extent of harm to victims of the offence,
  • past record of similar offences,
  • prevalence of the of fence.

2. Mitigating factors:

  • no previous of fences,
  • time since last offence,
  • degree of remorse,
  • whether or not an admission of the offence,
  • degree of co-operation with authorities,
  • delay between the commission of the offence and the time of the sentence,
  • conduct (involvement) of any 'victims'
  • restitution,
  • type of operation (commercial or private flight)
  • impact on aviation community,
  • special factual circumstances,
  • relevance of enforcement manual recommendations,
  • effect of a monetary v. suspension penalty on individual,
  • occurrence impact on aviation safety,
  • manner of proceeding by authorities.

Ultimately, the principles enunciated and the factors affecting the level of penalty must be considered on an individual basis in the context of the circumstances of the specific occurrence. The list noted above is not intended to be in any particular prioritized order nor is the list necessarily complete.

[...]

Thus, the Tribunal considers that Mr. Guy Marcoux, president, co-owner and general manager of Régionnair, has considerable aviation experience. Moreover, he is a commercial pilot and had 15 passengers on board besides himself and his co-pilot. He should therefore have been more aware of the sacrosanct principle of aviation, namely, safety.

That is why, after thorough analysis of the schedule of aggravating and mitigating factors, the Tribunal concludes that according to the Aviation Enforcement Procedures Manual,[10] for two breaches of the CARs, namely, subsection 602.128(1) and paragraph 602.126(1)(c), the penalty will be $250 for the first, and the Tribunal, applying weighting, will not assess a monetary penalty of $500 for a second offence, but maintains the penalty of $250 to allow for rehabilitation.

CONCLUSION

The Tribunal confirms the two monetary penalties assessed by the Minister of Transport against Mr. Guy Marcoux.

Michel Larose, M.D.
Member
Civil Aviation Tribunal

P.-S. Another decision will be rendered in Minister of Transport v. Régionnair inc., CAT File No. Q-2120-37 concerning the same two incidents.


[1] Minister of Transport v. Jerry Wilkins, CAT File No. Q-0453-33 (appeal); Minister of Transport v. Daniel George Knisley, CAT File No. C-1494-33; Minister of Transport v. Eugene Kocsis, CAT File No. O-1480-33.

[2] Minister of Transport v. Parachutisme Aventure inc./e.s.a. Aéro 3000, CAT File No. Q-1963-41.

[3] Minister of Transport v. Christian Albert, CAT File No. Q-1878-33.

[4] Faryna v. Chorny (1951) 4 W.W.R. (N.S.) 171.

[5] J. Sopinka and S.N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at pp. 530-531.

[6] [1989] A.C.F. no. 555, Mr. Justice Pratte.

[7] Douglas Monger v. Minister of Transport, CAT File No. Q-1974-02 (TAC); Minister of Transport v. Régionnair inc., CAT File No. Q-1990-37.

2 See note .

[9]Dossier n° O-0075-33 (TAC) (appel).

[10] Second edition, November 1999, document TP 4751E.