Decisions

CAT File No. Q-2201-33
MoT File No. N5504-42132

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Onile Chassé, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 103.08, 602.128(2)(b)

Descent Below Minimum Descent Altitude Without Required Visual Reference, Instrument Approach Procedures


Review Determination
Pierre Beaudry


Decision: September 18, 2001

TRANSLATION

I confirm the Minister's decision and sentence the respondent to pay the penalty of $250. This amount is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within 15 days of the receipt of this determination.

A review hearing on the above matter was held August 1, 2001, at 11:00 hours in the hall of the municipal corporation of Kuujjuarapik, Quebec.

BACKGROUND

The Minister sent the respondent a notice of assessment of monetary penalty for having continued an instrument approach below the minimum descent altitude (MDA) to land at Kuujjuarapik without the required visual reference having been established, when the respondent was the pilot-in-command of Air Inuit flight 587 of July 2, 2000. The penalty is $250 and the review hearing was set in motion owing to non-payment of the penalty as required by law.

THE EVIDENCE

By way of preliminaries, the parties agreed to acknowledge the following facts: (1) Onile Chassé was the pilot-in-command of flight AIE 587 of July 2, 2000, at about 17:50 hours local time; (2) this flight made two instrument approaches to runway 22 at Kuujjuarapik; (3) the weather reports on file; (4) the pilot's message transmitted to the local flight service station (FSS) at 21:57 hours UTC; (5) [the] letter from Onile Chassé to Air Inuit of July 10, 2000. This list was placed in evidence and constitutes Exhibit M-1.

The witnesses for the Minister are Audrey Visitor, an Air Creebec ticket agent, and Benoît Lauzon, supervisor of the local FSS unit of NAV CANADA in Kuujjuarapik.

Mrs. Visitor is the originator of the complaint that triggered the Transport Canada investigation and the resulting notice of assessment. Basically, she maintains she noticed flight 587 land in conditions of extremely low visibility that were somewhat hazardous.

Mr. Lauzon filed in evidence the weather report and the recording of the report of pilot Chassé (PIREP) to his FSS unit, the whole having been acknowledged by the parties as per M-1.

Onile Chassé then testified as part of his own evidence. The parties' co-operation with regard to the preliminary admissions coupled with Mr. Chassé's full co-operation at the hearing made the issue of the facts fairly simple, although there was no admission that the flight had left the MDA without the proper visual reference.

Captain Chassé made two non-precision instrument approaches in substantially "IFR" weather conditions, i.e., below the published IFR conditions. Flight 587 landed at 21:55 hours UTC. The previous weather report of 21:22 hours UTC indicates a balloon ceiling of 300 feet, overcast with a visibility of one-and-a-half miles in slight drizzle and fog. The winds were from the west-south-west at 20 knots (gusting to 25 according to the weather reports of 21:00 and 22:00 hours UTC). The published MDA for the NDB 22 approach at Kuujjuarapik is 760 feet ASL (above sea level) ("760 feet specified").

In his testimony followed by cross-examination, Captain Chassé stated that at the MDA on approach path 195 of the GW transponder, he had established, during his first approach, "vertical contact" with the ground enabling him to see the shore of Hudson Bay to his left. He therefore began his final approach descent for landing, thus leaving the MDA, using his radar altimeter for altitude and his GPS (global positioning system) for distances. The airport was apparently seen at two hundred feet "specified" but the aircraft was too far east of the runway to touch down, making it necessary to pull up. In fact, the cross-wind probably favoured this track. On his second approach, an identical track was followed but the flight crew (Captain Chassé acting as co-pilot) managed to steer the aircraft enough to bring it back into line with the runway for a landing, which was made, moreover, on the second half of the runway, consistent with the track particulars.

Mr. Chassé said that in his opinion, his decisions and conduct were correct and he would do the same thing again in similar circumstances. His testimony shows, moreover, that Onile Chassé has about twenty years' experience and some 15,000 pilot hours.

THE LAW

Paragraph 602.128(2)(b) of the Canadian Aviation Regulations (CARs) stipulates:

602.128 (1) [...]

(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,

[...]

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

[...]

Section 103.08 of the CARs stipulates:

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;

(d) that, if the person fails to pay the amount specified in the notice, a copy of the notice will be forwarded to the Tribunal and the Tribunal will determine whether the alleged contravention took place; and

(e) that the person will be provided with a full opportunity consistent with procedural fairness and natural justice to present evidence before the Tribunal and make representations in relation to the alleged contravention.

The provision contained in the above section has been designated pursuant to section 103.08 and its schedule; therefore, the procedures in respect of penalties contained in the Aeronautics Act apply.

The following definitions are set out in CAR 101.01:

"minimum descent altitude" means the altitude ASL specified in the Canada Air Pilot or the route and approach inventory for a non-precision approach, below which descent shall not be made until the required visual reference to continue the approach to land has been established;

"non-precision approach" means an instrument approach by an aircraft using azimuth information;

"required visual reference", in respect of an aircraft on an approach to a runway, means that portion of the approach area of the runway or those visual aids that, when viewed by the pilot of the aircraft, enable the pilot to make an assessment of the aircraft position and rate of change of position, in order to continue the approach and complete a landing

Additionally, the Minister filed (as Exhibit M-11) certain relevant passages of the Canada Air Pilot (CAP): "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." This text from page 13 of the CAP essentially reiterates the statutory definition given above.

The following is published later, at page 18 of the CAP:

LANDING MINIMA

CAR 602 specifies that landings are governed by published DH/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 initiated beyond the MAP 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.

As precedents, the Minister's representative cited the Monger[1] case, in which my colleague Mr. Pierre Beauchamp discusses the statutory requirements for the "required visual reference". With respect to the amount of the penalty, the Minister's representative filed the case Parachutisme Aventure[2] in which Dr. Michel Larose, member, reviewed the various factors that could guide the Tribunal as to the sanction accompanying the provision.

ANALYSIS

The CAP is not a statutory text and neither its qualitative nor its quantitative provisions governing visibility are strictly applied unless reiterated by the CARs directly or by reference. Nevertheless, the CAP is an important institutional text and its provisions on the whole encompass the "test of reasonableness" or the reasonable basic reference to be used for navigation purposes.

Now, in the present case, the Minister alleges that the captain could not have established a visual reference for one or more of the ten elements suggested in the CAP once he had descended below the MDA. For had he done so, according to the Minister, a captain of Mr. Chassé's experience would not have ended up to the east and halfway along the runway, on two occasions, an altitude of about two hundred feet being required, moreover, for a possible landing. According to the Minister, establishing the visual reference required by the CARs in the final segment of the approach would have enabled the captain to align the flight path with the runway threshold. In the absence of this reference, the captain violated the CARs and the offence was committed.

Captain Chassé responded that for an instrument approach, a captain cannot be required to end up right on the runway threshold every time, so he cannot be blamed for the aircraft drifting off the runway east of the airport.

Mr. Chassé is right about the fact that the final outcome of an approach on final descent may not be perfect, but that is not the issue. Such drifting indicates that the visual reference was not established at the MDA and maintained until landing. Now, according to the CARs, the MDA must be maintained in the absence of a visual reference and a missed approach initiated, if need be, if the visual reference still has not been established at the missed approach point, and the flight continued, if need be, to the alternate airport as an alternative solution.

The operational dilemma of a captain is always the same. If the MDA is maintained without a visual reference, the aircraft will be too high in the event of a subsequent visual reference at the missed approach point in the area around the airport. But that is the nature of things, and the Minister has chosen to prohibit a descent in the absence of a visual reference in the interest of safety. This prohibition, moreover, assumes its full significance in the context of a non-precision approach.

As for the facts in evidence, none of these factors allows me to think otherwise, and in all likelihood (constituting the Minister's burden of proof), although there was vertical contact on approach, the visual reference required by the CARs was not established at the time of final descent.

Captain Chassé stated that he would do the same thing again in similar circumstances. We therefore have events and actions that were premeditated by the respondent, ruling out any theoretical reference to a defence of due diligence, which, moreover, the respondent has not invoked.

The Minister has pointed out that the penalty of $250 was consistent with the CARs and the Aviation Enforcement Procedures Manual[3] of Transport Canada. As the various aggravating and mitigating factors offset each other, I have no grounds for reducing or increasing this penalty.

DETERMINATION

I confirm the Minister's decision and sentence the respondent to pay the penalty of $250.

Pierre Beaudry
Member
Civil Aviation Tribunal


[1] Douglas Monger v. Minister of Transport, CAT File No. Q-1974-02.

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

[3] Civil Aviation, second edition, 1999, TP 4751E.