Decisions

CAT File No. Q-2475-33
MoT File No. 5504-46319

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Serge Vallée, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, s. 605.30

Aircraft ceasing to meet conditions of issuance, Icing conditions


Review Determination
Michel Larose


Decision: November 12, 2002

TRANSLATION

The Tribunal confirms the Minister of Transport's decision finding Mr. Serge Vallée guilty of contravening section 605.30 of the Canadian Aviation Regulations, but reduces the monetary penalty to the sum of $500. That sum must be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A review hearing on the above matter was held Wednesday, July 10, 2002, at 9:00 hours at the Municipal Commission of Quebec, in Quebéc City (Quebec). The determination in this case was reserved until the end of September while awaiting cassettes and their transcripts, along with written argument.

PRELIMINARY REMARKS

For purposes of the record, all of the relevant remarks were made to both parties. No preliminary motions were presented to the Tribunal, however the parties reached an agreement concerning an admission of certain facts:

Mr. Serge Vallée [hereinafter the Respondent] admitted the following facts:

[...]

1. He was indeed the instructor and pilot-in-command aboard the Mooney type aircraft model M20K, registered as C-GJYG, during a training flight conducted in IFR flight mode January 11, 2002, around 20:30Z from the Jean-Lesage International Airport.

2. He listened to NAV Canada's original magnetic tape on January 11, 2002, at the Québec City control tower yesterday, July 9, 2002, in the presence of myself and Mr. Daniel Robitaille, Québec Tower Unit Manager.

That admission of facts was countersigned by Mr. Denis Paré, on behalf of the Minister of Transport, and by the Respondent (Exhibit M-1).

OBJECT OF THE REVIEW HEARING

On March 27, 2002, Ms. Diane Desmarais, Regional Manager, Aviation Enforcement for the Minister of Transport, served the Respondent a Notice of Assessment of Monetary Penalty:

NOTICE OF ASSESSMENT OF MONETARY PENALTY

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened section 605.30 of the Canadian Aviation Regulations.

On January 11, 2002, at or around 20:30 hours UTC, when you were acting as a flight instructor and pilot-in-command, you took off aboard the Mooney M20K aeroplane registered as C-GJYG and continued the flight where icing conditions were reported to exist and forecast to be encountered along the route of flight without the aircraft being adequately equipped in accordance with the standards of airworthiness.

You are being proceeded against as the pilot-in-command, pursuant to subsection 8.4(3) of the Aeronautics Act.

The foregoing provision has been designated pursuant to section 103.08 of the Canadian Aviation Regulations and the procedures in sections 7.7 to 8.2 of the Aeronautics Act respecting monetary penalties apply.

The total assessed penalty of $1,000 must be paid in full on or before April 29, 2002 to the Regional Manager, Aviation Enforcement, at the address shown above. Payment may be made in cash or by certified cheque or money order payable to the Receiver General for Canada.

[...]

If the amount of the penalty has not been received on or before April 29, 2002, a copy of this Notice will be forwarded to the Civil Aviation Tribunal. [...]

The prescribed period for payment of the monetary penalty ended April 29, 2002, giving rise to the present review hearing.

THE LAW

Subsection 7.7(1) 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 605.30 of the Canadian Aviation Regulations (CARs):

De-icing or Anti-icing Equipment

605.30 No person shall conduct a take-off or continue a flight in an aircraft where icing conditions are reported to exist or are forecast to be encountered along the route of flight unless
(a) the pilot-in-command determines that the aircraft is adequately equipped to operate in icing conditions in accordance with the standards of airworthiness under which the type certificate for that aircraft was issued; or
(b) current weather reports or pilot reports indicate that icing conditions no longer exist.

THE FACTS (documentary, testimonial and material evidence)

Evidence of the Applicant

Mr. Denis Paré called the first witness for the Minister of Transport, Mr. Patrick Kessler, an inspector with the Department of Transport, System Safety at the Jean-Lesage Airport in Quebec City. Having been a pilot since 1973, Mr. Kessler is an experienced pilot. He has flown several types of aircraft and has had a Class 1 flight instructor rating for 13 years. In addition to being a witness to the alleged contravention, he has also been notably recognized as an expert witness by the parties.

On January 11, 2002, Mr. Kessler was co-pilot on a King Air 90 while the pilot-in-command was Mr. Guy Lapierre, who was sitting on the right, and they were conducting a flight from Val d'Or to Quebéc City. (CTG 960)

Messrs. Kessler and Lapierre flew at an altitude that varied between 15,000 and 16,000 feet and descending on approach to runway 06, at approximately 6,000 feet, they noted light to moderate icing conditions, before coming out of the clouds.

Therefore, they used their de-icing system several times for the components of the aircraft.

When they came out of the clouds at approximately 1,400 feet, they noticed light snow. The flight lasted approximately 1 hour and 20 minutes, and after landing, when they were taxiing on India toward Stationnaire Esso at approximately 20:12 Z, a Mooney aircraft was preparing to leave the Stationnaire parking zone and the King Air let it pass by. The pilot of the Mooney aircraft was preparing to conduct an instrument flight and was awaiting authorization. On the ground frequency, which was 121.9 from the Jean-Lesage Airport in Québec City, Mr. Kessler transmitted the weather information to the pilot of the Mooney, including moderate icing conditions (Exhibit M-2). That first transmission of weather information was poorly received by the pilot of the Mooney, but the second attempt was successful and the pilot of the Mooney acknowledged reception with the only difference being that Mr. Kessler spoke of light to moderate icing conditions at an altitude of 1,500 feet 20:18:53 / 20:19:27. A few minutes later, the ground controller retransmitted the same weather observations, from the pilot of an Air Nova aircraft, which was a Beech 1900 that was 8 miles final for runway 06 at an altitude of 2,500 feet for light rime to the pilot of the Mooney (M-2) (2nd PIREP) (20:19:57).

Then the witness authenticated Exhibit M-4, which was a detection notice dated January 16, 2002, which had not been transmitted to the Respondent prior to the hearing. That document is used to initiate an investigation concerning a possible offence, which was an instrument flight in icing conditions that constituted a contravention of section 605.30 of the CARs. The flight was conducted in an aeroplane that was not approved for known icing conditions. On this detection notice, reference was made to light icing. On that issue, Mr. Kessler stated that there are only two or three types of single-engine aircraft that come equipped with a de-icing system, and the Mooney is not one of them.

On January 12, 2002, as he was preparing to return to Montreal, the Mooney was parked behind them (the King Air) at Stationnaire and he was able to see that it did not have any type of de-icing system either on the windshield, the wings, the elevator, or the rudder.

In addition, Mr. Kessler stated that when the King Air was parked on January 11, 2002, the Mooney took off from runway 06 and they, meaning Mr. Lapierre and himself, went to the flight service station (FSS) in order to obtain weather maps and PIREPs.

Following that, the witness authenticated the Recalled Data (Exhibit M-5), which are weather reports from the FSS, and from them we must retain the following relevant elements:

UACN10 CYQB 112021
UL
UA /OV YQB 2020 FL FNL RWY 06 /TP B190 /IC LGT RIME ICG
UACN10 CYQB 112021
UL
UA /OV YQB 2020 FL FNL RWY 06 /TP B190 /IC LGT RIME ICG
[...]
SPECI CYQB 112027Z 09005KT 4SM -SN OVC007 RMK SC8=
METAR CYQB 112000Z 08006KT 8SM BKN005 OVC014 M02/M03 A2948 RMK SC6SC2
SLP986=
[...]
TAF AMD CYQB 111945Z 111918 VRB03KT 6SM -SN OVC015 TEMPO 1901 1SM –SN
OVC004

On the second page of M-5, there are various NOTAMs for the region of Québec City. The third page of M-5 is a meteorological record from Environment Canada dated January 11, 2002, at 18:00Z for a zone including the Jean-Lesage Airport in Québec City (GFACN 33). In that zone, there were icing conditions that were estimated as moderate, at an altitude varying between 7,000 and 14,000 feet and in the comments, icing in freezing drizzle was mentioned locally, and elsewhere light to moderate rime (LGT MXD/RIME ICGIC) and those conditions were valid for six hours. As for page four of M-5, at 0:00Z on January 12, 2002, there was the rate of movement of the systems and precipitation for the same precipitation zone already mentioned.

Following that, the witness authenticated the Pilot's Operating Handbook (Exhibit M-6) for the Mooney M20K and on the last page of this document, it is clearly written: "DO NOT OPERATE IN KNOWN ICING CONDITIONS".

As for the King Air A100 (Exhibit M-7),[1] the document authenticated by the witness, contrary to the Mooney M20K, it is clearly specified: "This airplane approved for VFR IFR day & night operation & in icing condition".

Then, the witness said that he regularly provides training in order to improve flight safety, especially concerning the human factors and more specifically pilot decision-making.

In that regard, he mentioned to the Tribunal that on July 9, 2002, he addressed 150 members of the Flying Doctors Association, and he used an investigation report from the Transportation Safety Board of Canada (TSB) (Exhibit M-8) concerning the loss of control of an amphibian Cessna 208 Caravan, which occurred at the Abbotsford Airport, in British Columbia, on December 28, 1999. That accident demonstrates the importance and the consequences of decision-making especially concerning an aircraft that has contaminated surfaces. In summary, that accident occurred during take-off, which was the first step for a flight to the Bahamas, and at 400 feet from the ground during climb, with the flaps up by 10° to 0°, the aeroplane became uncontrollable, the wing dipped and the aeroplane crashed. The pilot had 1,200 flying hours, but the lifting surfaces of the aeroplane were covered with ice, which caused a decrease in lift and an increase in drag.

Finally, the witness stated that the accumulation of ice always occurs more quickly on the back part of the aeroplane, which is to say triple for the elevator, and double for the rudder compared to the wings, which increases the danger of stalling without the pilot being aware of it.

During cross-examination by the Respondent, Mr. Kessler defined the three types of ice, which are light: a slow accumulation of rime icing ¾ inch thick within 5 minutes - moderate: a rapid accumulation that requires the pilot to change altitude or leave the icing zone - severe: an accumulation that requires very quick action even with functioning equipment, as there is a danger that the pilot will not be able to maintain his altitude, speed or control of his aeroplane.

Then, the Respondent wanted to have the witness specify the differences between light and moderate, which were noted in various documents. In response to that question, the witness answered that his first PIREP at 20:18:53 mentioned moderate, then light to moderate (M-2), his detection notice mentioned light (M-4), and the second PIREP (M-2) of Air Nova mentioned light. When presented with those small differences, Mr. Kessler responded that he wrote his detection notice five days later, on January 16, 2002, but he remembers very well that he used his de-icing system several times during his descent toward runway 06.

The landing time of the King Air would have been at 20:12 as the first PIREP was at 20:18:53 and the TAF (M-5) taken at 19:45 on January 11 does not mention icing conditions, but in response to that, Mr. Kessler said that one must refer to the third page of M-5, which mentions local icing at 18:00Z and a second PIREP of the Beech 1900 of Air Nova at 20:19:57. The witness completely agrees that the icing is relative to each type of aircraft, and that the Beech 1900 is better than the King Air. As for the intervals between the first PIREP at 20:18:53 and the landing at 20:12, the approach was executed between 20:06 and 20:08, and the second PIREP was at 20:19:57, and it noted some improvement. As for the approach speed, it would be 140 knots in icing conditions for a King Air 90, and 170 knots for a Beech 1900. He agreed that icing varies within a period of time, according to the type of aircraft.

Following that, the Respondent stated that the weather changes a lot due to local phenomenon, and that he conducted a take-off at 20:33, and flew for 1:45 hours (air time), and that he did not observe any icing. In answer to that, the witness, Mr. Kessler, made no comment.

Before beginning to present the second part of his evidence in order to demonstrate that the Respondent had flown in icing conditions, there was a question of the submission of the transcript of a more complete cassette recording of the conversations of the ground controllers on 121.9, and the air controller on 120.3 (M-2 and M-2A) beginning at 20:15 on January 11, 2002. The Respondent was not opposed to the submission with respect to what was communicated to him prior to the hearing (disclosure of evidence). On the tape concerning the ground controller, there were no conversations between 20:15 and 20:16:52, and the witness allegedly spoke to the Respondent at 20:18:53.

Then, as for the statement of Mr. Guy Lapierre, pilot-in-command of the King Air 90 (CTG960), on January 11, 2002, which statement was made in the presence of the investigator, Mr. Carrier, the cassette and its transcript (Exhibits M-10 and I-1) reveal:

[...]

Hello, my name is Guy Lapierre. I am a specialist of unreadable safety system. On January eleventh, two thousand and two, I was conducting a flight aboard the um Beech um 90 accompanied by Patrick Kessler. After landing in Québec City, Mr. Kessler issued a PIREP with the control tower of Québec City on the ground frequency reporting the conditions um the flight conditions encountered during our approach to Québec City. Moreover, the conditions mentioned light ice um and um it was issued when we were crossing the India taxiway on the ground, a Mooney 20, registered as CGJYG. The ground controller then um informed the pilot of the Mooney that we reported icing during our flight to Québec City. The pilot acknowledged our communication and continued his route toward the runway in preparation for a take-off. A few minutes later, Mr. Kessler and myself noticed that the Mooney was taking off from runway 6 at Québec City. Thank you.

[...]

As another element of the Applicant's evidence, there is the statement made by Mr. Jean-Yves Germain, owner of aircraft C-GJYG and a student aboard the flight on January 11, 2002 with the Respondent as instructor, to the investigator, Mr. Carrier. The Tribunal noted the following elements (Exhibit M-9):

[...] we asked the dash ... we were taxiing ... ready to take off ... the dash landed ... we asked them if there was any ice reported ... there was nothing ... so, it was at that moment that we decided to take off ...

[...] the information that we obtained from Air Canada was certainly good... because we spent more than an hour and a half in flight ... and we didn't have any ice.

OK ... but you confirm to me that in the local weather report or ... the METAR ... and the weather report had forecasted icing [...]

Yes [...] on the (GFA) [...] the altitudes were 7,000 to 14,000 [...]

Did ground control report any PIREPs ... giving some ...

[...]

You'd have to listen to it, you'd have to listen to the reel, I can't say ... I can't tell you ... I have no memory of it.

Your Mooney [...]

Is it equipped to fly in icing conditions?

Negative.

[ ...] rime on the wing tips should not make you go crazy either.

[...] Anyways, a study of the tapes should show [...]

A third cassette and its transcript (Exhibit M-11) from the Québec City FSS telephone, gives us the weather information provided in view of C-GJYG's flight plan dated January 11, 2002. According to the Respondent's testimony, the speaker was Mr. Germain, and the Tribunal has considered the following information:

Time

Agency

Transmission

Québec City Flight Service Station telephone

   

[...]

 

FSS

Quebec flight information, hello, Good day

   

Hello, Sir um for the weather report um Quebec YQB there, currently, have you received any reports of icing

 

FSS

OK

   

I want to do IFR training

 

FSS

OK, for the moment I, I don't have any PIREPs um on the other hand what they had to the west a little earlier um there was from time to time um in the region of Montreal moderate during the morning, a moderate layer mixed um in the weather report, wait a minute, let's see the new weather report, what was forecast, yes, it is indicated between 7,000 and 14,000 feet there um forecast for the entire sector mixed or clear in the layer then a little lower in general, that should be um generally light mixed with a small possibility locally moderate um the PIREPs that we received this morning, it was a little more to the west, here in Québec City until now, I haven't had any reported at low levels

   

OK, we are going to report Cee um Golf Juliett Yankee Golf

   

[...]

   

Um 20 Zulu

   

[...]

   

And give us 5,000 feet

   

[...]

   

Um CYHU would you please give me a weather report for CYHU

   

[...]

   

OK that's great

 

FSS

It is going to be clear

   

Yes

   

[...]

 

FSS

OK the pilot is Mr. Germain

   

No, it's Mr. Vallée, and we're signing the flight in Mr. Vallée's name, um Charlie 329080

   

[...]

   

Thank you, could you give me 3,600 feet, please

   

[...]

Exhibit M-12 is the submission of the flight plan and the flight progress strip of C-GJYG at the Jean-Lesage Airport at Québec City. That flight began at 20:33 on runway 06, it was a training flight for several ILS approaches on 06 and in fact, there were four of which the last was the landing at 22:16. The alternate airport was the Saint-Hubert Airport.

Exhibit M-13 is the copy of the Distributed Air Personnel Licencing System for the Respondent and his category is commercial pilot.

Exhibit M-14 is the record of Mr. Jean-Yves Germain, who is a private glider and single engine aircraft pilot. Mr. Germain is the owner of the aircraft in question.

Exhibit M-15 is information that was communicated by Mr. Dave Radtke, Director, NAV CANADA Flight Information Centres, to Mr. Jean-Guy Carrier. That document is a reproduction of the flight plan already submitted as Exhibit M-11, but it is more detailed.

Exhibit M-16 is the Respondent's statement made to the investigator, Mr. Jean-Guy Carrier in February 2002, and the Respondent's statements constitute his defence and written argument. It does not appear necessary to the Tribunal, for making its decision, to reproduce them as they are documented on the record.

Following that, the Respondent's representative informed the Tribunal that his evidence was not closed and that he reserved the right to call Mr. Kessler to testify again.

Evidence of the Respondent

The Tribunal accepts that the Respondent proceed in an informal manner in presenting his evidence rather than in the form of arguments. In fact, the Respondent stated that he has 19 years' experience in aviation, that he feels he did not make an error in judgment and that if he had to do it over again, he would adopt the same behaviour.

In addition, according to him, when the legislator wrote section 605.30 of the CARs, it was intended for cross-country flights, meaning flights from point A to point B, and not for training flights during which the pilot may decide to land quickly.

Mr. Kessler's PIREP concerning moderate icing conditions constituted a slow accumulation of ice around 20:15. As for him, he left at approximately 20:10 to taxi, but Mr. Kessler's PIREP (M-2) indicated moderate icing then light to moderate, and M-4 noted light icing. As for the second PIREP issued at 20:19:57, it was light rime (M-2-M-2A).

Moreover, in M-2 at 20:19:26 ARN8246 indicated very light rime on the leading edge to the air controller on 120.3 and at 20:22:35, as ARN8246 was transferred to 121.9, it confirmed: "light rime during descent, and we broke through the last layer of clouds at 900' indicated on the glide path", and at 20:31:37, the air controller on 120.3 confirmed to the pilot of C-GJYG "There was light rime on final for runway 06 at approximately 5,000–2,300 feet in descent" (M-2-M-2A).

According to his judgment, in view of the local phenomena, despite Mr. Kessler's PIREP, his type of aeroplane and his speed, he decided to take off at 20:33, and then noted a vast improvement in weather conditions. He feels that he did not endanger his life or that of his student.

With regard to the submission of Exhibit M-10, which also became I-1, he listened to the statement made by Mr. Guy Lapierre, pilot of the King Air, who mentioned light icing. As for the second PIREP submitted by the pilot of the Beech Airliner, which was 8 miles final for runway 06, there was light rime reported at 2,500 feet (M-2A). Mr. Kessler stated that the cloud layer began at 6,000 feet, and that he came out of it at 1,400 feet. Thus, according to the various altitudes mentioned, he wondered how much time it takes for light icing to accumulate on a Mooney, and he estimated that he could easily go through that cloud layer and terminate his flight.

During the third part of the hearing, Mr. Kessler was re-heard, and he confirmed that icing conditions are always found within the cloud layer.

The ILS approach for runway 06 in Québec City is 2,500 feet for a full approach, but the Respondent was conducting guided approaches at 3,000 feet. The Respondent wanted to make Mr. Kessler admit that for him, the altitude for the cloud layer was 6,000 feet at the beginning and 1,400 feet to come out of it, whereas the pilot of the Beech mentioned light rime at 2,500 feet.

Therefore, according to the Respondent, if he had encountered icing between 2,500 and 1,400 feet, he would have had sufficient time to fly through that cloud layer and the flight could not have been dangerous.

On cross-examination by the Respondent, Mr. Kessler stated that the angle of descent for runway 06 (ILS in Québec City) was 3°, that his PIREP was for icing between 6,000 and 1,400 feet, that the time required for a speed of 180 knots or less, not for a full approach but with an interception between 15 and 20 nautical miles from the threshold of the runway at a rate of 3 miles/minute, it would have taken 6 to 7 minutes. Mr. Kessler also confirmed the fact that for the SID (standard instrument departure), the pilot must reach 400 feet for an authorized turn.

For the Respondent, the known flight conditions for take-off were improving, which allowed him to make a decision to take off. Approximately 5 to 10 minutes after his departure, he reported to the air controller that between 0 and 3,000 feet, there was no icing and that after his first approach, if there had been ice, he would have remained on the ground.

In Exhibit M-6, which is the Pilot's Operating Handbook for the Mooney M20K, there is under the heading "WARNING:  DO NOT OPERATE IN KNOWN ICING CONDITIONS"; however, it is also noted:   "If icing conditions or heavy snow is inadvertently encountered," there are 9 steps to follow.

According to the Respondent, he was not reckless, and if the Tribunal feels that he made an error in judgment, he will learn from it, and he is convinced that he did not endanger his life and the life of his student, and that he did not misunderstand the weather data nor the PIREPs.

Finally, he submitted Exhibit I-2, which is the definition of "light icing" as defined in AWARE (1996) published by Environment Canada, which reads as follows:

  • Light icing
    The rate of ice accretion is such that prolonged flight (over 1 hour) without using the de-icing equipment may create a problem. Occasional use of de-icing/anti-icing equipment removes or prevents ice accretion. If de-icing/anti-icing equipment is used, no problem occurs. [Emphasis added.]

On cross-examination by Mr. Paré, the Respondent confirmed that one must be informed of the weather conditions before taking off, and on January 11, his student, Mr. Germain, verified the flight conditions, and he knew that his alternate airport was Saint-Hubert, but did not know that moderate icing conditions were reported for the region to the east of Montreal. The "warning" on page 3 of M-6 notes: "Do not operate in known icing conditions", and the Respondent acknowledged that fact. As for the two PIREPs received before his take-off, the Respondent acknowledged their existence, but added that the data was taken prior to his take-off.

ARGUMENTS

Argument of the Applicant

Mr. Paré, on behalf of the Minister of Transport, wished to point out the following facts:

The Respondent, pilot-in-command and instructor during the flight of January 11, 2002, at approximately 20:30Z did conduct, contrary to section 605.30 of the CARs, a flight in icing conditions when the aircraft used, the Mooney M20K model, was not certified to operate in icing conditions.

According to Mr. Paré, the Minister established the following facts:

On January 11, 2002, at approximately 20:30Z, the Respondent acted as flight instructor and pilot-in-command aboard the Mooney M20K aircraft, registered as C-GJYG.

Aircraft C-GJYG conducted a take-off January 11, 2002, at approximately 20:30Z at the Jean-Lesage International Airport.

The aircraft did not have an issued type certificate allowing it to operate in icing conditions.

Icing conditions had been reported to the crew before the flight in question and were forecast in the weather reports.

The Respondent is proceeded against as the pilot-in-command pursuant to subsection 8.4(3) of the Aeronautics Act. There is no evidence on the record that demonstrates that the offence was committed without his consent.

The Respondent was acting as pilot-in-command and also as instructor. He had to make his decisions in accordance with the Act and the CARs. That was all the more crucial as he represented the example to follow for his student.

The Respondent operated aircraft C-GJYG outside of the certification of the aircraft. That constitutes a negative example for his student. It must be noted that the aircraft is registered as private.

The Minister's witness, Mr. Patrick Kessler, related the importance of complying with the limitations of aircraft, as published in the Pilot's Operating Handbook, and the importance of complying with aviation regulations.

The TSB, in its investigation report of an aviation accident involving the aircraft registered as C-FGGG on December 28, 1999, as submitted by the witness, clearly demonstrates the dangers presented by flying an aircraft with contaminated flight surfaces. The cassette recordings of the exchanges with the Québec City control tower, and more specifically the recordings of exchanges between the crew members of flight ARN8715 and the ground controller clearly demonstrate the importance that commercial pilots place on icing conditions. Thus, despite the costs incurred by this manoeuvre, the crew members of flight ARN8715 asked to have the aircraft de-iced before take-off.

According to Mr. Paré, we are facing a case of voluntary disobedience of the CARs. The Respondent even testified that he would conduct himself in the same manner in similar conditions. In addition, he does not seem to realize the seriousness of operating an aircraft in icing conditions when the aircraft is not certified to operate in such conditions.

Mr. Paré wished to remind the Tribunal that the Minister of Transport's mandate is to ensure flight safety throughout Canada. Furthermore, that role was repeated to him many times during the Moshansky[2] and Dubin[3] Commissions.

Following the Moshansky Commission, the Minister changed the regulations concerning icing in order to demonstrate the dangers inherent in operating an aircraft in icing conditions.

As for the requested decision, the Minister issued a notice of assessment of monetary penalty for the sum of $1,000. Faced with the seriousness of the infraction, the Applicant, on behalf of the Minister, leaves it to the discretion of the Tribunal to modify the monetary penalty if the Tribunal feels that the seriousness of the infraction and the offender's attitude require a more severe penalty. One of the goals of such a penalty is to dissuade the offender from committing another similar offence and thus ensure flight safety.

Argument of the Respondent

The Respondent feels that, while acting as pilot-in-command and instructor January 11, 2002, he did not contravene the section of the law, section 605.30 of the CARs, by conducting a local training flight in non-existent icing conditions between 20:33Z and 22:16Z, but which did exist temporarily prior to the flight.

The GFACN, Ontario - Quebec is a general regional forecast that is particularly important during a flight from point A to point B. He admitted that icing conditions were forecast between 7,000 and 14,000 feet, which made it all important going from point A to point B.

The Respondent would like to emphasize that the terminal forecasts in Québec City are of more interest, since the Mooney M20K model, registered as C-GJYG conducted its entire planned training flight within a maximum radius of 5 to 7 miles from the airport, and it was therefore a local flight. According to the Respondent, that reinforces the meteorological data from a terminal forecast, since the data is valid within a radius of 5 miles from the airport.

The amended terminal aerodrome forecasts (TAF) did not mention any icing conditions at 20:33Z, the time of take-off, since they were not specified. In that matter, he referred to Exhibit M-5, which is the TAF, and in addition, the amended hourly report of January 11, at 20:27Z, did not specify any local icing conditions and neither did the METAR SPECI of 19:45Z. According to the Respondent, the terminal aerodrome forecasts dominate the GFA because they are intended to be more precise and thus less general.

Still, according to the Respondent, there are important facts to consider as not ignored by C-GJYG, namely the presence of the PIREPs reported, among others, by Transport Canada (CTG960) to the ground in Québec City at 20:17Z on known flight data at approximately 20:12 Z and as admitted by Mr. Kessler during his testimony on July 10, 2002.

Thus, coming from Val d'Or, CTG960 indicated that it had encountered moderate, light and sometimes moderate icing conditions, and finally declared them to be light locally on runway 06 in Québec City around 20:12Z as Mr. Kessler admitted during his testimony. At approximately 20:20Z, between 20:17Z and 20:22Z, a Beech Airliner indicated light rime 06 from 2,500 feet descending toward the airport. At 20:22:40Z, ARN8246 indicated very light rime on the leading edge. That clear improvement of reported icing caused him, in light of his experience, to consider that at the time of take-off, at 20:33Z, no icing conditions, on a balance of probabilities, must have existed locally in Québec City. The Respondent believes that the phenomenon may be a temporary, local, weather phenomenon composed of the least dangerous type of icing, because it accumulates very slowly, of which the intensity decreased from moderate to very light.

The qualification of that temporary local phenomenon is confirmed by the SPECI of 20:27Z at Québec City confirming no icing conditions, 6 minutes before take-off.

The Respondent would like to point out to the Tribunal that Mr. Kessler clearly indicated to the Court, on July 10, 2002, that he intended his PIREP to be as complete as possible and that the only moment during the flight between Val d'Or and Québec City when they encountered icing conditions, they were on final 06 in Québec City. Referring to GFACN33, one can state that the system that forecasted light to moderate rime was moving East-South-East at 20 knots, very much the same heading as Val d'Or Quebec. Recognizing that at 20:12Z, light to moderate rime conditions existed, that at 20:22Z they became very light and that at 20:27Z, the SPECI reported no icing, the system was moving at 20 knots, in the same direction as CTG960, that the Beech Airliner admitted that the icing conditions were present only at 8 miles final 06, thus approximately 5 minutes before landing, reinforced his decision and his argument for the matter that at 20:33Z, they had no ice and were influenced by prior conditions on the PIREP of CTG960, which is to say not at all significant.

The Respondent would like to point out to the Court that, as specified in Exhibit I-2, the slow accumulation of ice in order to present a danger when light icing is mentioned and that based on the latest data concerning icing, very light icing was reported at 20:22:40Z.

The Respondent would like to emphasize a very important fact, which is that if ever he had encountered icing conditions during his local flight, he could have terminated the flight at any time within 4 to 5 minutes maximum. Exhibit I-2 clearly shows that a danger may exist in the absence of de-icing equipment after 60 minutes.

The Respondent would also like to point out that aeroplane C-GJYG was equipped with a propeller heater, a Pitot tube heater and a stall warning system heater, which makes it less rapidly vulnerable, but does not justify conducting a flight from point A to point B and staying in icing conditions for a long time. That additional equipment was confirmed by Mr. Jean-Yves Germain during his testimony with Mr. Jean-Guy Carrier.

The recording provided by Transport Canada between tower 120.3 and C-GJYG clearly specifies, approximately 10 minutes after take-off, that no icing conditions were encountered between the ground and 3,000 feet locally, and that he continued his flight that ended at 22:16 Z. Still according to the Respondent, the weather has proven to be a changing phenomenon, and it will always be so. He feels that his judgment concerning what he termed to be a local, temporary phenomenon was confirmed since the previous conditions encountered were non-existent during his flight.

The Respondent alleged that as he has been an instructor for seven or eight years, he has always asked his students to double-check the weather data, which can always change. According to him, he exercised judgment in taking off at 20:33Z, as he based his judgment on a local, temporary phenomenon of the least dangerous type of icing as previously specified and that according to him, he was not at all irresponsible and even less of a bad example to follow as Transport Canada argued. Still according to him, his interpretation proved to be correct and did not create a danger, and he does not feel that he committed an error in judgment.

As for the Applicant's argument concerning the crew members of flight ARN8715 who asked to have the aircraft de-iced on January 11, 2002, before conducting their flight from point A to point B, quite likely passing through the weather system and possibly the layer between 7,000 and 14,000 feet (GFACN33), he responded that they were not conducting a local flight and that the objective of the flight was clearly different. C-GJYG could terminate its flight at any time within 4 to 5 minutes. As for him, he never would have conducted a flight that passed through that system.

As for the Applicant's argument that alleged that he operated the aeroplane outside of its certification, it would have been necessary that the local icing conditions encountered at 20:12Z still existed between 20:33Z and 22:16Z.

The Respondent would like to point out to the Tribunal that the legislator's purpose, in designing this regulation, was to guarantee the security of someone who was conducting a flight from point A to point B and who could not terminate his flight at his discretion. Should a regulation not plan for a nuance or an exceptional case specifying that the regulation should be different for a local flight in certain specific conditions? Still it would have been necessary, according to the Respondent, that certain icing conditions be encountered and that his judgment proved to be erroneous to be of any use in altering the regulation.

Finally, the Respondent would like to point out to the Tribunal that if ever the Tribunal decided in the Applicant's favour, in 19 years of aviation totalling 2,500 hours including 700 hours of practical teaching of instrument flight, and 1,800 hours of instrument flight, this would be his first alleged offence.

In response to the Respondent's argument, Mr. Denis Paré, on behalf of the Minister of Transport, would like to emphasize the following points.

Through section 605.30 of the CARs, the Minister wants to ensure that a pilot-in-command cannot conduct a flight or continue a flight when icing conditions are forecast or reported. Conscious of the danger that icing presents, the Minister has not granted any freedom of choice to the pilot-in-command in this regulation.

On January 11, 2002, after being advised by the FSS of Québec City that icing conditions were forecast and after receiving two PIREPs indicating the presence of icing, the Respondent, as pilot-in-command of aircraft C-GJYG, should have:

  1. determined if the aircraft registered as C-GJYG was equipped with the appropriate, approved equipment. If such had been the case, a type certificate would have been issued for that aircraft and it would have indicated the icing conditions in which that aircraft could be used; or
  2. cancelled the flight until the weather reports or the pilot reports indicated that the forecast or reported icing conditions no longer existed.

According to the Applicant, the Minister clearly demonstrated that:

  1. the aircraft registered as C-GJYG had no such equipment;
  2. the Respondent knew that icing conditions were present;
  3. the dangers inherent to flying in icing conditions are indicated in the TSB report concerning an aviation accident on December 28, 1999.

Finally, on behalf of the Minister, Mr. Paré would like to point out to the Tribunal Member that the Respondent demonstrated in his final argument that he did not understand the danger involved in conducting a flight in icing conditions in an aircraft that does not have the proper equipment. It appears that the Respondent does not realize the Mooney M20K is an aircraft which has a critical type of wing that is even more sensitive to any change in camber that may be caused by icing. Mr. Paré therefore reiterated his concern with respect to the Respondent's attitude, and reminded the Tribunal that the purpose of a sanction is to deter the offender from committing another similar offence.

DISCUSSION

After analyzing the abundant evidence submitted, the Tribunal, has arrived at the following conclusion:

The Minister of Transport has discharged its burden by proving, on a balance of probabilities, all of the elements of the alleged offence with respect to section 605.30 of the CARs.

In fact, Mr. Serge Vallée, as a pilot-in-command and instructor, accompanied by his student, Mr. Jean-Yves Germain, conducted a take-off with his aircraft C-GJYG, a Mooney M20K, January 11, 2002, at 20:33Z on runway 06 at the Jean-Lesage International Airport in Québec City.

Icing conditions were in fact forecast locally and elsewhere according to the GFACN 33 of January 11, 2002, issued at 18:00Z for the region of Ontario-Quebec, in a zone including the Jean-Lesage Airport. That forecast was in effect for a period of six hours. Moreover, it is true that the TAF issued at 19:45Z, the METAR issued at 20:00Z and the SPECI issued at 20:27Z did not mention "icing in freezing drizzle" or "LGT MXD/RIME ICGIC". However, the FSS had reported the possibility of ice at a slightly lower altitude and a locally moderate possibility. All of those forecasts cannot take precedence over facts observed by two commercial pilots, i.e., or reported (PIREPs). Mr. Patrick Kessler, co-pilot of flight CTG960 at 20:18:53, transmitted an initial PIREP and the captain of a Beech Airliner at 20:19:57 transmitted a second PIREP.

It seems important to note that the air controller on 120.3 confirmed for the Respondent at 20:31:37 the presence of "light rime on final for runway 06 at approximately 5,000–2,300 feet in descent."

It should be noted that the legislator never specified in writing section 605.30 of the CARs the type of icing, either light, moderate or severe, as such was not his intention. However, Mr. Kessler's testimony concerning an accumulation of ¾ inch within 5 minutes for light icing takes precedence over the definition found in AWARE.

As for the pilot-in-command of flight ARN8715, who found himself in the de-icing area at 20:29:52 before take-off, that fact demonstrates therefore to the Tribunal that the Respondent, on the same ground frequency, must have been aware of it on one hand, and on the other hand, must have realized that every pilot has a legal obligation to become aware of any relevant information required in order to allow him to conduct a safe, and completely legal flight.

Thus, that pilot-in-command fully complied with subsection 602.11(4) of the CARs by ensuring, prior to the flight, that no ice adhered to the critical surfaces of his aeroplane. As he proceeded to de-ice his aircraft, despite the related costs, two scenarios are possible:

He had indeed detected the ice on examining the aeroplane on the ground prior to the flight or again, he himself had, shortly before the flight that he was going to conduct, piloted the aeroplane on descent and had encountered and observed icing conditions during the descent and approach, and as the systems on board did not successfully de-ice the aeroplane completely, he was in compliance with subsection 602.11(4) of the CARs. It is possible that he himself had not piloted the aeroplane as far as Québec City, but he had been advised of the situation by the preceding crew. That evidence is very important in making a decision in the case under review.

In addition, the wording "along the route of flight", the Tribunal cannot consider the Respondent's defence with respect to the local conditions as opposed to the regional conditions for a local training flight within a radius of 5 to 7 miles in comparison with a cross-country flight, i.e., from point A to point B, as if it had been so, the legislator would have thus specified in writing section 605.30 of the CARs.

The Tribunal wishes to point out that, with respect to the continuation of the flight, the atmospheric conditions had quite likely improved as the Respondent flew for 1 hour 45 minutes, but that fact is not related to the alleged offence.

With respect to aircraft C-GJYG, a Mooney M20K, despite some equipment that is a little more sophisticated, it does not have an issued type certificate allowing it to operate in icing conditions. That was confirmed by the Airplane Flight Manual, Mr. Kessler's testimony and the owner of the aircraft himself, Mr. Jean-Yves Germain.

Finally, no weather report and much less any other PIREP indicated to the Respondent that the forecast icing conditions no longer existed. On that subject, the Tribunal noted that at 20:31:37, the air controller reported to the Respondent that there was light rime on final runway 06 at five thousand to two thousand three hundred feet on descent, and the Respondent took off at 20:33Z, and went to conduct his ILS approaches at an altitude of 3,000 feet, which is an identical altitude to that indicated in the two PIREPs.

As for the sanction, the Tribunal considers that the Respondent is a very experienced pilot, that he is an instructor for instrument flights, that he had a student with him, that he presumed the speed of movement of an icing weather system forecast and reported in order to conduct a take-off, which denotes at least a certain recklessness if not definite recklessness.

Furthermore, the Tribunal, considering that the Respondent has a clean record of 2,500 flight hours over a period of 19 years, and will not be a potential candidate for a second offence in the future, has therefore decided to reduce the monetary penalty to the sum of $500.

CONCLUSION

The Tribunal confirms the Minister of Transport's decision finding Mr. Serge Vallée guilty of contravening section 605.30 of the CARs, but reduces the monetary penalty to the sum of $500.

Dr. Michel Larose
Member
Civil Aviation Tribunal


[1] Airplane Flight Manual.

[2] Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario.

[3] Commission of Inquiry on Aviation Safety.