Decisions

TATC File No. Q-2980-33
MoT File No. N5504-51635

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Réjean Lafontaine, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Carole Anne Soucy


Decision: September 14, 2004

TRANSLATION

I find that the Minister has proven all the charges, on the balance of probabilities, and the contraventions are confirmed. The total monetary penalty of $2,550.00 is confirmed. The sum of $2,550.00 is to be made payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

A review hearing on the above matter was held May 26 and 27, 2004, at the courthouse in Maniwaki, Quebec.

BACKGROUND

Mr. Réjean Lafontaine is the holder of a pilot permit — ultra-light aeroplane. He is the owner of the Canadian aircraft registered as C-GCAD, a Cessna, model 150G. On July 12, 2003, he performed an annual inspection of the above aircraft and failed to ensure that the details were entered in the technical record pursuant to Chapter 571 of the Airworthiness Manual. Mr. Lafontaine also did not submit to the Minister an Annual Airworthiness Information Report in the form and manner specified in the Airworthiness Manual.

On August 2, 2003, at about 08:00 hours, in the vicinity of the Maniwaki airport, Mr. Lafontaine allegedly acted as pilot-in-command of the aircraft registered as C-GCAD without holding the required permit or licence and allegedly operated the aircraft in a reckless manner, flying at low altitude towards the airport lodge and suddenly turning away at the last minute.

Also, prior to the flight of August 2, 2003, the aircraft had undergone maintenance, namely, the installation of a wing extension, and this work had not been certified in a maintenance release.

The applicant also failed to keep, in respect of aircraft C-GCAD, a journey log and a separate technical record for the airframe.

On March 4, 2004, following a complaint and these observations, a Notice of Assessment of Monetary Penalty was sent to Mr. Lafontaine. This Notice of Assessment alleged six contraventions of the Canadian Aviation Regulations (CARs) in Schedule A which reads as follows:

You have contravened paragraph 401.03(1)(a) of the Canadian Aviation Regulations;

On August 2, 2003, at about 08:00 hours local time, in the vicinity of the Maniwaki airport, you acted as pilot-in-command of the Canadian aircraft registered as C-GCAD without holding the appropriate permit or licence for the functions performed.

PENALTY: $1,000.00

You have contravened subsection 501.01(1) of the Canadian Aviation Regulations;

On July 12, 2003, as owner of the Canadian aircraft registered as C-GCAD, you did not submit to the Minister an Annual Airworthiness Information Report in respect of the aircraft, in the form and manner specified in Chapter 501 of the Airworthiness Manual, to wit, certain information provided is incorrect.

PENALTY: $100.00

You have contravened section 571.03 of the Canadian Aviation Regulations;

On or about July 12, 2003, in the vicinity of Maniwaki, while performing maintenance on the Canadian aircraft registered as C-GCAD, namely, an annual inspection, you failed to ensure that the details of the task performed were entered in the technical record pursuant to Chapter 571 of the Airworthiness Manual.

PENALTY: $250.00

You have contravened section 602.01 of the Canadian Aviation Regulations;

On August 2, 2003, at about 08:00 hours local time, in the vicinity of the Maniwaki airport, you operated the Canadian aircraft registered as C-GCAD in such a reckless manner as to be likely to endanger the life or property of any person, to wit, after taking off from runway 21, you flew the aircraft at low altitude towards the airport lodge and suddenly turned away at the last minute.

PENALTY: $1,000.00

You have contravened subsection 605.85(1) of the Canadian Aviation Regulations;

On August 2, 2003, at about 08:00 hours local time, in the vicinity of the Maniwaki airport, you conducted a take-off of the Canadian aircraft registered as C-GCAD that was in your legal custody and control, where that aircraft had undergone maintenance, namely, the installation of a wing extension, and this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the Canadian Aviation Regulations.

PENALTY: $100.00

You have contravened subsection 605.92(1) of the Canadian Aviation Regulations;

On August 2, 2003, at about 08:00 hours local time, in the vicinity of the Maniwaki airport, as owner of the Canadian aircraft registered as C-GCAD, you failed to keep, in respect of the aircraft, a journey log and a separate technical record for the airframe, pursuant to sections 605.94 and 605.96 of the Canadian Aviation Regulations in respect of the information to be entered in the said records.

PENALTY: $100.00

Payment of the penalty, totalling $2,550.00, was to be made by April 6, 2004. On March 10, 2004, Mr. Réjean Lafontaine sent the Transportation Appeal Tribunal of Canada a request for review, giving rise to the hearing and this determination.

THE LAW

Part IV of the CARs – Personnel Licensing and Training:

401.03 (1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating or a foreign licence validation certificate unless

(a) subject to subsection (2) and sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising those privileges, the appropriate permit, licence or rating and a valid and appropriate medical certificate; or

[...]

Ultra-light Aeroplanes—Privileges

401.21 The holder of a pilot permit — ultra-light aeroplane may, under day VFR,

(a) act as pilot-in-command of

(i) an ultra-light aeroplane in which no passengers are carried on board, or

(ii) any single-engined aeroplane having a maximum take-off weight not exceeding 544 kg (1,200 pounds) and a stall speed in the landing configuration (Vso) of not more than 39 knots in which no passengers are carried on board; or

(b) [...]

Part V of the CARs—Airworthiness:

Requirement to Report

501.01 (1) Subject to subsection (2), the owner of a Canadian aircraft, other than an ultra-light aeroplane, shall submit to the Minister an Annual Airworthiness Information Report in respect of the aircraft, in the form and manner specified in Chapter 501 of the Airworthiness Manual, either as

(a) an individual report; or

(b) where approved in conformity with Chapter 501 of the Airworthiness Manual, a consolidated fleet report.

[...]

Recording of Maintenance and Elementary Work

571.03 A person who performs maintenance or elementary work on an aeronautical product shall ensure that

(a) the details required by Chapter 571 of the Airworthiness Manual are entered in the technical record for the aeronautical product, in respect of the task performed; and

(b) the technical record is accurate with respect to any outstanding elements of the work performed, in particular, the need to secure any fastening device that was disturbed to facilitate the work.

Part VI of the CARs—General Operating and Flight Rules:

Reckless or Negligent Operation of Aircraft

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

Subpart 5—Aircraft Requirements:

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

(2) Where a maintenance release is conditional on the satisfactory completion of a test flight [...].

(3) Following a test flight conducted pursuant to subsection (2), [...].

(4) No maintenance release is required in respect of tasks identified as elementary work in the Aircraft Equipment and Maintenance Standards.

[...]

Requirement to Keep Technical Records

605.92 (1) Every owner of an aircraft shall keep the following technical records in respect of the aircraft:

(a) a journey log;

(b) subject to subsections (2) and (3), a separate technical record for the airframe, each installed engine and each variable-pitch propeller; and

(c) except where otherwise provided under the terms of a fleet empty weight and balance program referred to in subsection 706.06(3), an empty weight and balance report that meets the applicable standards set out in Chapter 571of the Airworthiness Manual.

RESPONDENT'S EVIDENCE

The parties having reached no agreement, and after the proceedings were explained, we proceeded with the Minister's evidence, through his representative, Mr. Charles Burroughs.

Mr. Burroughs called six witnesses. The first witness, Mr. Henri Côté, general manager of the Maniwaki airport since 1998, testified that he knew the applicant and that the latter owned a white and red Cessna parked at the Maniwaki airport. According to the witness, Mr. Lafontaine used his aircraft regularly, i.e., once or twice a week on average.

Mr. Côté filed in evidence three fuel bills dating from the months of April and May 2003, indicating that fuel was sold to Mr. Lafontaine for aircraft C-GCAD, to show that the applicant was using his aircraft.

Mr. Côté testified that in August 2003 he had received complaints from customers and the operators of the airport restaurant that Mr. Lafontaine was flying his Cessna at very low altitude. He mentioned the fear of the witnesses from neighbouring campsites who often went to eat at the airport restaurant. He then contacted Transport Canada. He admitted having himself seen Mr. Lafontaine fly several times at low altitude.

On cross-examination, Mr. Lafontaine seemed baffled that the restaurant customers had been able to see his aircraft the morning of August 2, given the angle of the windows and the rising sun. In reply, Mr. Côté said that despite the sun, it had been possible to recognize Mr. Lafontaine's aircraft.

The second witness, Ms. Rita Blanchet, has been a civil aviation safety inspector with Transport Canada since 1979. She said she was familiar with the Maniwaki airport from having visited it during airport inspections.

Ms. Blanchet filed Exhibit M-3 and identified it as being a photocopy of a topographic chart identifying the obstacles located near the runway. She identified each of the towers close to the runway and specified their height and the distances between them, the runway and the restaurant (M-2 and M-3). There are two poles and an antenna. The UNICOM antenna is about 45 feet high and about 100 feet from the restaurant; the other two towers are between 32 and 50 feet tall. The distance between the restaurant and the edge of the runway is about 700 feet, or about the same as between the towers and the runway.

Ms. Blanchet explained the normal take-off procedure when winds are from the south: the pilot travels to the threshold of runway 21, taxis and flies over the runway to a minimum of 500 feet, then banks left once past the end of the runway at an altitude of about 800 to 1,000 feet. All turns must be made to the left, allowing for exceptions.

At this airport, there is no air traffic control. The flight conditions that existed at the Maniwaki airport the morning of August 2, 2003, are found in the Canada Flight Supplement (M-6). No special conditions are reported in it.

On cross-examination by Mr. Lafontaine, Ms. Blanchet said that the flight information centre for this airport is Quebec City.

The third witness, Mr. Guy Hamel, an investigator in this case, is a civil aviation inspector with Transport Canada. He works in the Aviation Enforcement department and his job is to investigate alleged offences under the Act.

Mr. Hamel testified that after receiving a complaint, he spoke to Mr. Richard, who was working at the airport restaurant when Mr. Lafontaine conducted his low-altitude flight.

Several documents produced by the witness show that Mr. Lafontaine is the owner of the Cessna registered as C-GCAD, that he holds a licence for an ultra-light aeroplane and that the certificate is type 3A19. Exhibit M-11 provides a description of the detailed conditions and limitations of this type of certificate for the Cessna 150G in order to meet the airworthiness requirements issued by the United States government in the Federal Aviation Regulations.

The Cessna 150G owner's manual (M-12) specifies the gross weight of this aircraft, namely, 1,600 pounds, except in the case of allowed modifications or improvements. It also shows us that the stall speed is 48 miles per hour, or 41.6 knots.

Mr. Hamel testified about a meeting with Mr. Lafontaine at which the latter acknowledged that modifications had been made to Cessna C-GCAD. However, there was no mention of this in the owner's manual. Also, in October 2003, that is, after the flight in August, in the presence of Messrs. Burroughs and Hamel, the applicant permitted photocopies to be made of the last three pages of the journey log (M-14). We note that the last entry is dated September 7, 2000. In addition, during this visit, Mr. Lafontaine admitted doing the maintenance himself with the help of someone named Simoneau. Also, for the completion of certain modifications, namely, a wing extension and leading-edge extension, he got his information from Transport Canada.

Mr. Hamel continued his testimony and produced a photocopy of the technical log for the Cessna registered as C-GCAD (M-16). The last entry in it is dated July 27, 2000.

Mr. Hamel then filed copies of two Annual Airworthiness Information Reports for the years 2001 and 2002 (M-17 and M-18) showing, firstly, that the applicant himself did the annual inspection of aircraft C-GCAD (OM, Owner's Maintenance), although there is no entry for this in the technical log, and secondly, that the aeroplane had flown a certain number of hours in those years, although there is no entry in the journey log. Moreover, in both reports, the total number of hours flown since new is the same, whereas in the "hours flown, last calendar year" boxes, we read 37.4 hours in 2001 and 16 hours in 2002.

The next witness, Ms. Carolle Forget, has been an aviation personnel licensing officer with Transport Canada for 27 years. She provides information about the prerequisites necessary to obtain a licence. When she has any doubts or does not know something, she refers the inquiring party to an inspector or checks in the CARs.

On questioning, she said she was not familiar with the types of aircraft that fall into the ultra-light category. She also testified that she did not remember getting a call from Mr. Lafontaine a few years ago, as he stated. She did, however, remember a recent conversation with the applicant because she had referred him to the CARs and then to an inspector, Ms. Sylvie Perreault.

The fifth witness, Mr. Maurice Simoneau, has been a civil aviation safety inspector for 18 years. Before that, he was director of Aircraft Maintenance and Manufacturing, in Ottawa.

He testified about the owner maintenance program, which he created. There are various stages to this process, and in order to qualify, the owner must fill in a form. First, the aircraft must be eligible according to Appendix H of Standard 507 (in existence since March 1, 2002). Secondly, the Minister must grant an authorization for the modifications to the identification plate of the engine and propellers. The owner must then turn in his flight certificate, and the Minister of Transport subsequently issues a Special Certificate of Airworthiness – Owner-maintenance.

This program allows the owner to do the maintenance, both regular maintenance and the annual aircraft inspection. In particular, it allows the owner to sign the maintenance release, something the regulations do not generally permit because only a certified aircraft maintenance engineer (AME) is authorized to do so.

In April 2002, the applicant made such an application to Transport Canada. In correspondence dated September 6, 2002 (M-20), Mr. Simoneau replied to Mr. Lafontaine that his Cessna 150G aircraft was eligible for the Owner Maintenance Classification. However, a Notice of Proposed Amendment (NPA) had to be prepared and submitted to the Technical Committee on aircraft maintenance and manufacturing (CARAC), which was not scheduled to convene before spring 2003. In the meantime, the Special Certificate of Airworthiness – Owner-maintenance could not be issued. Mr. Simoneau testified that on July 12, 2003, Mr. Lafontaine signed the annual inspection as owner (OM, M-17), and did so again in 2002 (M-18), even though the Cessna was not yet on the list of aircraft in Appendix H.

The sixth and final witness for the Minister was Mr. Pierre Richard, a trucker/owner who was working as a waiter at the Maniwaki airport restaurant on August 2, 2003.

He has a recreational pilot permit and knows the Cessna 150G well, having owned one for three years. He knows the applicant because they both live in Messine and are pilots. He has previously flown Mr. Lafontaine's aeroplane for moving purposes.

On August 2, 2003, the restaurant was open at 06:00 hours as usual and Mr. Richard was there. He related the events of that day as follows: at about 07:00 hours Mr. Lafontaine talked about going for an outing in the aeroplane. The weather was fine and the window blinds on the north and south sides of the restaurant were open. Only the window blinds on the east side were closed. Mr. Richard stated he did not see the aeroplane departing because it was in the hangar. He did see it coming back to do its run-up, and so recognized Mr. Lafontaine at the controls. He was on runway 21 at the north end. He could not see the runway threshold, but did see a third of the way from the start. Mr. Lafontaine "climbed about 50 feet, then headed for the restaurant. He then dropped back down to 25 feet. That's when I got scared... Designed to impress us. We were scared, not just me, the restaurant customers too. Then he flew past at 25 feet in front, let's say the east side, where there's a bank of windows. Then he passed by the tower." The witness went on to say that he did not travel to the end of the runway, that he faced the restaurant, then passed by the tower, which is about 50 feet high.

To clarify for the Tribunal, Mr. Richard filed a copy of the aerodrome chart and traced Mr. Lafontaine's trajectory on the morning of August 2, 2003 (M-21).

Mr. Richard told about the modifications made to Mr. Lafontaine's Cessna, i.e., the wing and leading-edge extensions, modifications that had allegedly been made the winter before the events of July and August 2003.

As to whether there were aeroplanes at the airport or in the vicinity of the Maniwaki airport the morning of the incident, Mr. Richard did not recall.

On cross-examination, Mr. Lafontaine asked about the difficulties Mr. Richard had with distances. The witness answered that his licence has no restrictions and that he has good distance vision. As to how Mr. Richard had been able to see the aeroplane considering the windows and the closed blinds, Mr. Richard reiterated the fact that while the blinds on the east side had been closed, those on the north and south had been open, enabling him to see the aeroplane.

Finally, Mr. Réjean Lafontaine asked one last question of the witness, namely, whether he recalled another aeroplane allegedly landing shortly after the incident. The witness did not recall.

APPLICANT'S EVIDENCE

Mr. Lafontaine began his evidence by addressing the first charge relating to paragraph 401.03(1)(a) of the CARs. He purchased his aircraft in December 1999. He spoke to Ms. Carolle Forget of Transport Canada on January 14, 2000. Exhibit D-4, a telephone bill, shows that the applicant telephoned Transport Canada. Mr. Burroughs confirmed that it did indeed show the general number of Transport Canada. According to the applicant, all was in order given the fact that his aircraft weighed less than 1,200 pounds. His permit issued May 17, 2000, was valid for all ultra-light aeroplanes, with no passengers.

Mr. Lafontaine also filed in evidence his pilot permit (D-1), his medical certificate dated January 17, 2000 (D-2), and the owner's manual for the Cessna 150G (D-3).

According to Mr. Lafontaine, the empty weight of his Cessna is 975 pounds and it could weigh up to 1,060 pounds.

Mr. Lafontaine altered the wings of the aircraft by extending them in order to increase the volume of the lifting surface and thus enable the aeroplane to "drop much lower," allowing him to reach 31 knots and so he was able to fly at 29 miles per hour. He added that given the fact that he had an ultra-light aeroplane within the meaning of section 401.21 of the CARs, this was not a problem.

As for the contraventions of subsection 501.01(1) and section 571.03 of the CARs, the applicant offered the same defence and reiterated the fact that his Cessna weighs less than 1,200 pounds.

Regarding the fourth contravention, of section 602.01 of the CARs, Mr. Lafontaine repeated that the distances described by Mr. Richard between the towers and the edge of the runway did not correspond to reality. According to him, the 700-foot distance to which Ms. Blanchet testified was more realistic. Mr. Lafontaine questioned Mr. Richard's statement as to the runway's visibility from the restaurant. According to him, there was a lot of sun, and given the angle of the restaurant and the location of the windows, the sun's glare would have prevented his aircraft from being seen well. As for the low altitude flight, he said that an airport is the only place where it is possible to fly at low altitude.

Regarding contraventions 5 and 6 of subsections 605.85(1) and 605.92(1) respectively of the CARs, Mr. Lafontaine pointed out that his aeroplane is an ultra-light and is therefore excluded from the requirements of these subsections.

On cross-examination, when Mr. Burroughs questioned him about the manoeuvre made during take-off on August 2, 2003, the applicant acknowledged that he had had the right of way and could have stayed on the runway. He could have followed a normal pattern. He added that it had been up to the pilot of the two-engined plane to abort his approach, and he had not thought himself to be in an emergency situation.

RESPONDENT'S ARGUMENTS

The Minister's representative invoked the strict liability of the offences and argued in this regard that he did not need to prove the applicant's wrongful intent. He also argued that he had discharged his burden of proof on the balance of probabilities for all contraventions.

First contravention

It has been adduced in evidence that Mr. Lafontaine acted as pilot-in-command of the aircraft registered as C-GCAD without being the holder of a proper permit for the functions performed, contrary to paragraph 401.03(1)(a) of the CARs. The evidence and the exhibits filed, in particular D-1, show that Mr. Lafontaine is the holder of a pilot permit — ultra-light aeroplane. The type certificate of the Cessna 150G shows that this aircraft has a maximum gross weight on take-off of 1,600 pounds. The stall speed in the landing configuration is 41 knots. According to Mr. Lafontaine, maximum take-off weight means the actual weight or quite simply the weight on take-off. The Minister did not agree with this interpretation; rather, he used the modern contextual approach to statutory interpretation. Mr. Burroughs cited the Honourable Justice L'Heureux-Dubé in Verdun v. Toronto-Dominion Bank,[1] in which she states:

... the courts must consider and take into account all relevant and admissible indicators of legislative meaning... An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

Mr. Burroughs inferred that according to the applicant's interpretation, the aeroplane would be ultra-light when alone on board with little fuel, and would cease to be with one passenger and more fuel, or even if the weight of the fuel and baggage brought the weight of the aeroplane to over 1,200 pounds or 544 kilos. If this were the case, several subsections of the CARs would apply only occasionally. The Minister's representative added that according to the definition of an ultra-light, the maximum weight cannot exceed 544 kilos. Maximum weight refers to the weight stated in the type certificate of this aircraft. Actual take-off weight is not a factor to be considered in determining whether or not the aeroplane is ultra-light.

The other factor to be considered is the stall speed, which cannot exceed 39 knots. The stall speed of the Cessna 150G indicated in the owner's manual (M-12) is 48 miles per hour or 41 knots, which is greater than that required for the ultra-light classification.

Second contravention

As shown in the journey log of aircraft C-GCAD (M-14), the entry dated September 5, 2000, for hours flown, is 4,139.5 hours. In the Annual Airworthiness Information Reports for 2001 and 2002 completed by Mr. Lafontaine, the "hours flown" box for 2002 shows 16 hours and 37.4 hours for 2001, with total hours flown since new up until that day of 4,139 hours in both cases. The Minister's representative pointed out that the applicant himself had admitted he had not taken into account all the hours actually flown. The total hours flown must be reported, pursuant to standard 501.02(1)(b) of the Airworthiness Manual.

Third contravention

According to the Annual Airworthiness Information Report, the applicant performed maintenance work, specifically an annual inspection, on the Canadian aircraft registered as C-GCAD and failed to enter the work in the technical record. Once again, Mr. Lafontaine corroborated these facts. The journey log (M-14) and the technical record (M-16) show Mr. Lafontaine's omission. Mr. Burroughs added that there was nothing to prevent Mr. Lafontaine from doing his maintenance work, but the regulations require that the maintenance release be signed by a licensed AME or an aircraft owner who holds a Special Certificate of Airworthiness – Owner-maintenance, which is not the case here.

Fourth contravention

The operation of aircraft C-GCAD in such a reckless manner as to be likely to endanger the life or property of any person, in the vicinity of the Maniwaki airport, is adduced in evidence by the testimony of Mr. Richard, who was working at the airport restaurant on August 2, 2003.

The Minister's representative submitted to the Tribunal two determinations, Simpson and MoT[2] and Ferland and MoT,[3] which define the notion of recklessness. In Simpson, the member refers to Black's Law Dictionary, which defines "recklessness" as follows:

Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though foreseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.

In the Ferland matter, the member, referring to the exceptions in subsection 602.14(2) of the CARs, such as when conducting an approach or landing of an aircraft at a distance less than 500 feet, said the following: "...should not, however, be interpreted in such a way as to 'immunize' the pilot against any proceeding on the pretext that he is conducting an approach or landing. The manoeuvres in question must be executed in a professional, reasonable and 'calculated' manner."

In Mr. Burroughs' view, these quotations apply here.

Fifth contravention

Mr. Richard testified that Mr. Lafontaine had modified his aircraft by adding wing extensions, and the applicant acknowledged this. Mr. Hamel's testimony as well as exhibits M-14 and M-16, namely, the journey log and the technical record, show that the addition of a wing extension was not certified pursuant to section 571.10 of the CARs. Mr. Burroughs argued to the Tribunal that this constituted maintenance work and should have been certified. Finally, Mr. Burroughs submitted to the Tribunal the decision in Northern Air Link Ltd.[4] in which the member stressed that the Minister's representative must prove three requisite elements to find the applicant guilty, namely:

1st the identity of the person who conducts or authorizes the take-off of an aircraft;

2nd that the aircraft is in the legal custody and control of the person;

3rd that a take-off was conducted after the maintenance and that the maintenance release was not signed pursuant to section 571.10 of the CARs.

Mr. Burroughs argued that all these elements have been proven.

Sixth contravention

Evidence was adduced that Mr. Lafontaine failed to keep, in respect of his aircraft C-GCAD, a journey log and a separate technical record for the airframe, in accordance with sections 605.94 and 605.96 of the CARs; the annual reports for the years 2002 and 2001, i.e., exhibits M-17 and M-18, show that the applicant declared a certain number of hours flown and that these details were not entered in the journey log. Once again, Mr. Lafontaine said he had modified his aircraft, and these modifications were not found in the aircraft's technical record.

Finally, the Minister's representative concluded his arguments by suggesting that Mr. Lafontaine had more or less admitted to counts 2, 3, 5 and 6, but he had presented a defence of officially induced error for count 1 and had presented a defence of necessity for count 4.

On count 1, Mr. Lafontaine has not shown, on the balance of probabilities, that he relied on the mistaken opinion of government officials and that his acting on that opinion was reasonable. He argued that reasonableness depends on various factors such as the efforts made by the accused to determine the relevant law, the complexity of the law, the position of the government official who gave him the advice, and the clarity, definitiveness and reasonableness of the advice given. According to the applicant, on January 14, 2000, he received advice from Ms. Forget that an ultra-light could weigh no more than 1,200 pounds. On that date, section 401.21 of the CARs made no mention of a single-engined aeroplane having a maximum weight of 1,200 pounds. In fact, the previous version, which dates from October 10, 1996, and was valid until March 1, 2001, reads as follows:

401.21 The holder of a pilot permit — ultra-light aeroplane may, under day VFR, act as pilot-in-command of an ultra-light aeroplane in which no passengers are carried on board.

Moreover, Mr. Lafontaine did not always act on the advice of inspectors, as the correspondence exchanged with Mr. Simoneau regarding the Special Certificate of Airworthiness – Owner-maintenance shows. In this regard, the Minister's representative submitted to the Tribunal the Ronn Palley decision,[5] in which the Tribunal found the testimony of Mr. Palley to be more reliable than that of the inspector to whom he had spoken. The latter did not recall having had a conversation with Mr. Palley, whereas Mr. Palley's version was backed up by several inspectors who said he had always taken their advice in the past.

Finally, Mr. Burroughs addressed the subject of double jeopardy and cited the Kineapple[6] principle. Mr. Burroughs pointed out that, while there were elements common to the alleged contraventions, there were sufficient additional and distinct elements for separate convictions.

APPLICANT'S ARGUMENTS

Mr. Lafontaine began his arguments by pointing out that he had demonstrated good faith in checking with Transport Canada about his permit. He reiterated that his aircraft is an ultra-light weighing less than 1,200 pounds. It is a private aeroplane from which several things have been removed, such as the mats, the passenger seat, and so on.

He said he disagreed with the distances described by Mr. Richard between the runway and the restaurant, i.e., 150 to 200 feet. He favoured instead the distances described by Ms. Blanchet, i.e., 700 feet.

He denied being reckless and spoke of his experience of some thirty years flying various aircraft.

DISCUSSION AND REASONS

We might first point out that the applicant confirms several facts.

First of all, he admits to holding a pilot permit — ultra-light aeroplane (D-1) and to being the owner of the Cessna registered as C-GCAD (D-3).

He also admits to having modified his aircraft by extending the wings.

He admits to not having entered all the hours he had flown with his aircraft.

Mr. Lafontaine does not think he is liable for the contraventions with which he is charged because of the weight of his aircraft.

On examining the subsections of the CARs relevant to the contraventions in this case, we note that in Part IV of the CARs—Personnel Licensing and Training, Subpart 1—Flight Crew Permits, Licences and Ratings, paragraph 401.03(1)(a) of the CARs requires any person wishing to act as a flight crew member or exercise the privileges of the permit or licence to hold the appropriate flight crew permit, licence or rating.

Section 501.01, under Part V—Airworthiness, Subpart 1—Annual Airworthiness Information Report, requires the owner of an aircraft to submit a report. However, subsection (1) excepts the owner of a Canadian ultra-light aeroplane from this requirement, and specifically from submitting an Annual Airworthiness Information Report to the Minister in respect of the aircraft.

The same is true of Subpart 71—Aircraft Maintenance Requirements, where section 571.01 states:

571.01 This Subpart applies, with the exception of ultra-light aeroplanes and hang gliders, in respect of the maintenance and elementary work performed on

(a)...

(b)...

(c)...

(d)...

Part VI of the CARs—General Operating and Flight Rules, Subpart 5—Aircraft Requirements, also does not apply to persons operating ultra-light aeroplanes or hang gliders, as paragraph 605.01(1)(a) states. Therefore, sections 605.85 and 605.92 relating, respectively, to the maintenance release and the keeping of the journey log and the technical record, do not apply to ultra-lights.

However, Part VI, Subpart 2—Operating and Flight Rules, makes no distinction as to weight or type of aircraft where there is reckless or negligent operation of an aircraft.

In conclusion, only section 602.01, that is, the fourth contravention, is not dependent on the weight of Mr. Lafontaine's aircraft.

Mr. Lafontaine argues that he telephoned the Minister of Transport soon after purchasing his aircraft, early in the year 2000, as evidenced by his telephone statement. According to the applicant, Ms. Forget, an officer at Transport Canada, confirmed to him, and I quote the remarks as reported by the applicant, "Clause 401.21 authorizes you to fly your aeroplane, because it weighs less than 1,200 pounds. You have a single-engined aeroplane and you have no problem with your licence."

Ms. Forget does not recall this conversation. Moreover, as Mr. Burroughs explained, not only was section 401.21 of the CARs amended in March 2001, but also the definition of ultra-light aeroplane, section 101.01 of the CARs, which from October 1, 1996 to June 1, 2003 read as follows:

"ultra-light aeroplane" means

(a) a single-seat aeroplane that has a launch weight of 165 kg (363.8 pounds) or less, and a wing area, expressed in square metres, of not less than the launch weight minus 15, divided by 10, and in no case less than 10 m2,

(b) a two-seat instructional aeroplane that has a launch weight of 195 kg (429.9 pounds) or less, and a wing area, expressed in square metres, of not less than 10 m2 and a wing loading of not more than 25 kg/m2 (5.12 pounds/ft.2), the wing loading being calculated using the launch weight plus the occupant weight of 80 kg (176.4 pounds) per person, or

(c) an advanced ultra-light aeroplane;

In the circumstances, it is unthinkable that Ms. Forget would have referred to a version that did not even exist by mentioning a weight of 1,200 pounds, when the version at that time indicated a weight of 363 pounds or, at most, 429.9 pounds. It is possible that Mr. Lafontaine has confused the two conversations he had with Transport Canada, one in the year 2000 and the other in 2003.

In view of the foregoing, I do not think that Mr. Lafontaine was misled by a representative of the Department of Transport. In my opinion, the amendment of section 401.21 and of subsection 101.01(1) of the CARs is sufficient to reach such conclusion. However, in light of the Minister's representations, I would add this: Mr. Lafontaine did not always follow the advice of inspectors, and the evidence concerning the Special Certificate of Airworthiness – Owner-maintenance speaks volumes. In fact, even though Mr. Simoneau, a civil aviation safety inspector, had informed Mr. Lafontaine in writing that his application had to be submitted to the Technical Committee (CARAC), the applicant disregarded this advice and went ahead and certified his aircraft himself.

We might also mention that in October 2003, the applicant told Mr. Burroughs and Mr. Hamel, at a meeting with them, that aircraft C-GCAD had not flown since September 2000, in accordance with the last journey log entry (M-14), which was incorrect.

Finally, it remains to determine the crucial and decisive point of five of the six contraventions, namely, the type rating of the applicant's aircraft.

The definition of "basic ultra-light aeroplane" in section 101.01 of the CARs is as follows:

"basic ultra-light aeroplane" means an aeroplane having no more than two seats, designed and manufactured to have

(a) a maximum take-off weight not exceeding 544 kg, and

(b) a stall speed in the landing configuration (Vso) of 39 knots (45 mph) indicated airspeed, or less, at the maximum take-off weight; (avion ultra-léger de base)

The evidence submitted to the Tribunal shows that:

  1. According to the owner's manual (M-12), the Cessna 150G has a gross weight of 1,600 pounds, excepting modifications or improvements.
  2. According to Exhibit M-12, the stall speed is 48 miles per hour, or 41.6 knots.
  3. Type certificate no. 3A19 for the Cessna 150G (M-11) describes a maximum weight of 1,600 pounds.
  4. The Annual Airworthiness Information Reports (M-17 and M-18) indicate a weight of 1,645 pounds as the maximum approved take-off weight.
  5. The computer database (M-10) mentions a weight of 726 kg.

One is forced to note that despite the modifications made to the aircraft to lighten it, alleged by Mr. Lafontaine, this aircraft is designed and built to have a maximum weight of 1,600 pounds, which does not comply with the requirements of an ultra-light.

Moreover, I agree with the Minister's representative when he said that an aircraft cannot have two ratings. Even if, according to Mr. Lafontaine, his aircraft never reached the weight of 1,600 pounds, this nevertheless remains a possibility, and it must therefore be excluded from ultra-light aeroplanes, whose maximum weight cannot exceed 1,200 pounds.

I reiterate the three points raised by the Honourable Justice L'Heureux-Dubé in Verdun v. Toronto-Dominion Bank[7] for obtaining a proper interpretation of a statute, namely, its plausibility, its efficacy and its acceptability.

The meaning Mr. Lafontaine attempts to give to the term "ultra-light aeroplane" does not reflect a reasonable and just interpretation of the CARs. Nor does it contribute to the objective of the legislation.

The statutory text is clear; the maximum weight is indicated, as is the stall speed in the landing configuration. In the circumstances, there is no room for interpretation.

In view of all these facts, I find that the Minister has proven, on the balance of probabilities, that aircraft C-GCAD, a Cessna 150 G, is not an ultra-light aeroplane and that the applicant has contravened paragraph 401.03(1)(a), subsections 501.01(1), 605.85(1) and 605.92(1), and section 571.03 of the CARs.

Let us now look at the contravention of section 602.01 of the CARs.

The testimonial evidence is unequivocal. Complaints were filed to the effect that Mr. Lafontaine was flying at low altitude. Altitudes of 25 to 50 feet were mentioned. Two witnesses present at the hearing, Messrs. Côté and Richard, saw Mr. Lafontaine fly at low altitude. Mr. Richard, an eyewitness to the manoeuvre of August 2, 2003, described the flight that day as a manoeuvre designed to impress which frightened the restaurant's customers. I find the applicant's defence that a aeroplane was about to land scarcely convincing. First of all, Mr. Lafontaine himself admits that he was not in an emergency situation. He admits that he had the right of way over the other aircraft and could have followed a normal pattern. He therefore had no valid reason to do as he did. While flying can be very enjoyable, as the applicant pointed out, the flight crew must always be aware of the risks and act with professionalism to ensure compliance at all times with the Aeronautics Act and its regulations, for maximum safety.

Section 8.5 of the Aeronautics Act 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.

The applicant has not met the criterion of having exercised all due diligence since, in his own opinion, he did not believe he was in an emergency situation and could have followed a normal pattern.

We might add that the Dubin Commission gave rise to the creation of the Civil Aviation Tribunal (now the Transportation Appeal Tribunal of Canada). Here is what the appeal panel said in Wyer[8] in speaking of that commission:

The commission indicated that the objective of the enforcement branch should be to obtain compliance with the Aviation Safety Standards lawfully promulgated and that Transport Canada should develop a coherent enforcement policy... The enforcement policy should recognize aviation safety as the paramount consideration in determining when and what enforcement action should be taken...This policy should require that vigorous enforcement action will be taken with respect to all deliberate breaches of the Aviation Safety Standards which derogate from safety. The issue of what is and what is not a deliberate breach should inevitably give rise to different treatment... The underlying [principle], indeed the purpose, of the enforcement of these matters is the protection of society...

In the case in point, in view of the evidence gathered, I reached the conclusion that the applicant acted in such a deliberate and reckless manner as to be likely to endanger the life and property of persons.

Regarding double jeopardy, we would recall that according to the Kineapple[9] principle, if the charges contain the same or essentially the same elements, the situation calls for the application of the rule of double jeopardy. The respondent's representative argues that the rule does not apply in this case because there are sufficient additional and distinct elements.

Let us first analyse the contraventions of paragraph 401.03(1)(a) and sections 602.01 and 605.85 of the CARs, i.e., contraventions 1, 4 and 5 that occurred August 2, 2003. The elements of the 401.03(1)(a) offence regarding the proper permit for the functions are as follows:

  • No person shall act as a flight crew member
  • unless the following conditions are met:

the person is the holder of, and can produce, the appropriate permit, licence or rating....

The elements of the 602.01 offence with respect to reckless or negligent operation are as follows:

  • No person shall operate an aircraft
  • in such a reckless manner as to endanger...

The elements of the 605.85 offence with respect to the take-off of an aircraft when it has undergone maintenance that has not been certified are as follows:

  • No person shall conduct a take-off or permit a take-off
  • when the aircraft has undergone maintenance
  • unless the maintenance has been certified by a maintenance release.

I find that both the legal and factual elements differ from one contravention to the other. For the other two contraventions, i.e., of subsection 501.01(1) and of section 571.03 of the CARs, occurring July 12, 2003, the first refers to the incorrect Annual Airworthiness Information Reports and the other pertains to the failure to enter the annual inspection in the technical record. I reached the same conclusion as for the other three contraventions. On analysing the offences of July 12 versus those of August 2, 2003, my finding stands.

I therefore agree with the Minister's representations and find that the Kineapple principle does not apply in this case.

Finally, regarding the penalty, the Minister's representative refers to Wyer, which sets out the principles used to determine the appropriate amount of the monetary penalty to be assessed, namely: denunciation, deterrence, rehabilitation.

Moreover, the Minister has adopted a schedule of monetary penalties for use as a reference while respecting the maximum amounts indicated in section 103.08 of the CARs, as a measure of fairness and justice. For the six counts, the Minister assessed the monetary penalty suggested for a first offence.

In view of the representations made, it is my opinion that the monetary penalties assessed meet the Wyer objectives.

DETERMINATION

The Minister has proven all counts, on the balance of probabilities, and the contraventions are confirmed. The total monetary penalty of $2,550.00 is confirmed.

Carole Anne Soucy
Member
Transportation Appeal Tribunal of Canada


[1] Verdun v. Toronto-Dominion Bank [1996] 3 S.C.R. 550, at 3.

[2] Leroy Simpson v. Minister of Transport, TATC File No. O-2830-02.

[3] Yvan Ferland v. Minister of Transport, CAT File No. Q-2551-33.

[4] Minister of Transport v. Northern Air Link Ltd., CAT File No. W-1586-41.

[5] Minister of Transport v. Ronn Palley, CAT File No. P-2613-33.

[6] Kineapple v. The Queen [1975] 1 S.C.R. 729.

[7] Supra, note 1.

[8] Minister of Transport v. Kurt William M. Wyer, CAT File No. O-0075-33.

[9] Supra, note 6.


Appeal decision
John D. Issenman, Michel Larose, Suzanne Racine


Decision: May 27, 2005

TRANSLATION

The appeal is dismissed. The appeal panel confirms the ruling of the review member and upholds the monetary penalties assessed. The total amount of $2,550, is to be made payable to the Receiver General for Canada, and must be received by the Tribunal within thirty-five (35) days of service of this determination.

An appeal hearing on the above matter was held before three (3) members appointed by the Chairperson of the Transportation Appeal Tribunal of Canada, on March 15, 2005, at 10:00 hours at the Courthouse in Maniwaki, Québec.

BACKGROUND

Mr. Réjean Lafontaine is the owner of a Cessna 150G aircraft registered as C-GCAD. On March 4, 2004, the Minister of Transport sent the Appellant, Mr. Réjean Lafontaine, a notice of assessment for a total amount of $2,550 pursuant to section 7.7 of the Aeronautics Act for having contravened sections 571.03, 602.01, subsections 501.01(1), 605.85(1), 605.92(1) and paragraph 401.03(1)(a) of the Canadian Aviation Regulations (CARs). The notice of assessment alleged the following six (6) contraventions:

(1) Contravention of paragraph 401.03(1)(a) of the CARs

On August 2, 2003, at about 08:00 local time, in the vicinity of the Maniwaki airport, you acted as pilot-in-command of the Canadian aircraft registered as C-GCAD without holding the appropriate permit or licence for the functions performed. Penalty:  $1,000

(2) Contravention of subsection 501.01(1) of the CARs

On July 12, 2003, as owner of the Canadian aircraft registered as C-GCAD, you did not submit to the Minister an Annual Airworthiness Information Report in respect of the aircraft, in the form and manner specified in Chapter 501 of the Airworthiness Manual, to wit, certain information provided is incorrect. Penalty:  $100

(3) Contravention of section 571.03 of the CARs

On or about July 12, 2003, in the vicinity of Maniwaki, while performing maintenance on the Canadian aircraft registered as C-GCAD, namely, an annual inspection, you failed to ensure that the details of the task performed were entered in the technical record pursuant to Chapter 571 of the Airworthiness Manual. Penalty:  $250

(4) Contravention of section 602.01 of the CARs

On August 2, 2003, at about 08:00 local time, in the vicinity of Maniwaki airport, you operated the Canadian aircraft registered as C-GCAD in such a reckless manner as to be likely to endanger the life or property of any person, to wit, after taking off from runway 21, you flew the aircraft at low altitude towards the airport lodge and suddenly turned away at the last minute. Penalty:  $1,000

(5) Contravention of subsection 605.85(1) of the CARs

On August 2, 2003, at about 08:00 local time, in the vicinity of the Maniwaki airport, you conducted a take-off of the Canadian aircraft registered as C-GCAD that was in your legal custody and control, where that aircraft had undergone maintenance, namely, the installation of a wing extension, and this work had not been certified by the signing of a maintenance release pursuant to section 571.10 of the CARs. Penalty:  $100

(6) Contravention of subsection 605.92(1) of the CARs

On August 2, 2003, at about 08:00 local time, in the vicinity of the Maniwaki airport, as owner of the Canadian aircraft registered as C-GCAD, you failed to keep, in respect of the aircraft, a journey log and a separate technical record for the airframe, pursuant to sections 605.94 and 605.96 of the CARs in respect of the information to be entered in the said records. Penalty:  $100

After having heard the parties at the review hearing of May 26 and 27, 2004, Ms. Carole Anne Soucy, member of the Transportation Appeal Tribunal of Canada, upheld each of the counts and also confirmed the amounts of the monetary penalties in her determination. Mr. Lafontaine is appealing this ruling of September 14, 2004.

GROUNDS FOR THE APPEAL

Mr. Lafontaine's request for appeal of October 1, 2004, states, without elaborating, that he is quite simply not guilty of the charges made against him by the Minister.

APPELLANT'S ARGUMENTS

Contravention 1

Mr. Lafontaine alleged that he did not commit this offence since, according to him, his pilot permit – ultra-light aeroplane (Exhibit D-1) authorizes him to act as pilot-in-command of an aircraft weighing less than 1,200 pounds on take-off. This permit therefore allows him to act as pilot-in-command of his Cessna 150G registered as C-GCAD since this aircraft weighs, owing to the modifications he made to it, less than 1,200 pounds on take-off. Aircraft C-GCAD, because of its weight on take-off, should therefore be considered an ultra-light aeroplane, for which he holds a valid permit.

Contraventions 2, 3, 5 and 6

Arguing from the premise that his Cessna 150G registered as C-GCAD should be considered an ultra-light aeroplane because of the modifications made, the Appellant pointed out to the appeal panel that the various requirements mentioned in the CARs' sections regarding the above-noted contraventions do not apply to ultra-light aircraft.

Contravention 4

Contrary to the Minister's argument, Mr. Lafontaine did not operate the aircraft registered as C-GCAD in a reckless manner at about 08:00 local time on August 2, 2003, at the Maniwaki airport.

In this regard, he stated that, just as he was preparing to take off from runway 21, a Cessna 310 was about one mile from the threshold of the runway on approach to land on that same runway. He estimated, based on the speed of this aircraft type (about 140 miles per hour), that the Cessna 310 would reach the spot where he was in no more than a minute. Mr. Lafontaine therefore told the pilot of the Cessna 310 that he would take off right away and bank immediately to the right of the runway to give the pilot of the Cessna 310 the right of way and leave the field clear to land on the runway centre line without his own aircraft being in the way. According to him, it is in fact common for pilots taking off from the Maniwaki airport to give the right of way to the CL-415 aircraft that use the runway.

The Appellant pointed out that he banked right as soon as he reached an altitude of six (6) feet and a speed of 35 miles per hour, then followed the trajectory shown in Exhibit D-7. He said he could have flown over the aircraft parking area in front of the lodge, but had preferred to avoid it and stay over the turf. He was 500 feet from the lodge and 200 feet from the edge of the runway during his climb. These measurements are consistent with those of Transport Canada inspector Blanchet, who testified at the review hearing that the lodge was 700 feet from the edge of the runway. Mr. Pierre Richard, another witness for the Minister, was mistaken when he said that the lodge was just 200 feet from the runway. According to the Appellant, Mr. Richard has difficulty assessing distances, something the Appellant had noticed several times after flying with him.

Mr. Lafontaine also justified his decision to climb to the right of the centre line of runway 21 by the fact that it was easier for him to circle to the right and have the benefit of peripheral vision of his left eye, since he had lost full use of his right eye.

The Appellant reminded the panel that the curtains of the east window of the lodge overlooking the runway were closed because of the sun shining on the lodge when he took off at 08:00 hours. In addition, while the view from the north and south windows of the lodge was unobstructed, Mr. Richard could not, according to him, have observed his aircraft from the south side near the UNICOM tower as he had argued because between the time he had seen it through the north window and the time he had moved to the south window, about 10 seconds, the aircraft had already travelled a distance of 1/2 mile beyond that tower.

His take-off manoeuvre that day was not conducted in order to impress anyone at all. He saw no obstacle that might pose a danger to himself, his aircraft or the people on the ground. His decision was dictated partly by the imminent approach of the Cessna 310, and partly by the loss of his right eye.

MINISTER'S ARGUMENTS

The arguments of Ms. Laperle, the Minister's representative, were as follows:

(1) The appeal panel hearing a case must not overturn the finding of fact of the review Member, who, as the trier of fact at the review level, is best able to choose and assess evidence before her that conflicts with other evidence.[1]

(2) The appeal panel can review findings of fact only if they are unreasonable or if the review Member's determination is based on a lack of evidence.[2]

(3) The review Member found, and rightly so, that the aircraft registered as C-GCAD was not an ultra-light aeroplane by properly interpreting, and in their global context, sections 401.03(1)(a), 401.21 and 101.01(1) of the CARs.

(4) Although he made use of the defence of error attributable to a person in authority,[3] the Appellant did not succeed in overturning this evidence on the balance of probabilities. The Member was therefore right to reject this defence, to find that the aircraft registered as C-GCAD was not an ultra-light aeroplane as the Appellant argued and to uphold contraventions 2, 3 ,5 and 6.

(5) The Minister proved, on the balance of probabilities, all the relevant elements of the allegation of reckless operation of the aircraft registered as C-GCAD. Mr. Lafontaine did not show that he had taken all the necessary precautions, nor did he offer a more plausible version of the events than that of the Minister.[4]

(6) The Minister proved, on the balance of probabilities, all the relevant elements of the offences alleged in his notice of assessment of monetary penalty dated March 4, 2004. The Member's findings of fact and credibility must be confirmed since they are reasonable, and the penalties must be upheld.

DISCUSSION

Subsection 401.03(1) of the CARs requires any person wishing to act as a flight crew member or exercise the privileges of a permit, licence or rating, to hold the appropriate permit, licence or rating and a valid and appropriate medical certificate and to be able to produce these certifications while so acting and while exercising those privileges.

This section is, however, subject to the exceptions stipulated in sections 401.19 to 401.27 of the CARs. These exceptions include section 401.21, which stipulates that the holder of a pilot permit ­ ultra-light aeroplane may act as pilot-in-command of any single-engine aeroplane having a maximum take-off weight not exceeding 544 kilograms (1,200 pounds) and a stall speed in the landing configuration of not more than 39 knots in which no passengers are carried on board.

The maximum weight of the Cessna 150G stated in certificate no. 3A19 is 1,600 pounds (M-11), or 726 kilograms, which weight corresponds to the entry in the official database of the Minister of Transport for the C-150G aircraft registered as C-GCAD (M-10). This weight exceeds the maximum weight of 544 kg authorized by the ultra-light aeroplane permit for operation of a single-engine aeroplane. Also, according to the evidence filed as Exhibit M-12, the stall speed in the landing configuration of the C-150G is 41.6 knots (48 mph), which exceeds the 39-knot maximum authorized by the ultra-light aeroplane permit for operation of a single-engine aeroplane.

In his defence, Mr. Lafontaine stated that his ultra-light aeroplane permit authorized him to act as pilot-in-command of his C-150G aircraft because he had modified it such that its weight did not exceed the 544 kg stipulated in section 401.21 of the CARs. In fact, when empty, his aeroplane would weigh, according to him, just 444 kg.

As stated by the Member, the wording of section 401.21 is clear. A pilot of an ultra-light aeroplane cannot operate a single-engine aeroplane whose maximum weight and maximum stall speed in the landing configuration exceed the maxima stipulated in the regulations. Even if the Appellant tried, by modification, to lower the weight of his C-150G to just below 1,200 pounds, this aircraft nevertheless has a maximum weight and stall speed greater than those stipulated in the regulations. The characteristics of this aircraft fall within the scope of the conditions and limitations to which the design of a Cessna 150G is subject. They are specific to the performance levels of this aircraft. They cannot be transformed, even by stripping the aircraft of its so-called superfluous components, into an ultra-light aeroplane because even stripped down, it has its potential maximum in terms of both its weight and its stall speed, putting it in a separate category from ultra-light aeroplanes.

The appeal panel is of the view that the Member correctly found that Mr. Lafontaine's aircraft was not an ultra-light aeroplane within the meaning of the CARs.

Contravention 2

Subsection 501.01(1) states that the owner of a Canadian aircraft, other than an ultra-light aeroplane, shall submit to the Minister an Annual Airworthiness Information Report in the form and manner specified in Chapter 501 of the Airworthiness Manual. Mr. Lafontaine did not provide such a report to the Minister. The Member was correct in finding that the said subsection had been contravened since she had found, and rightly so, that the Appellant's aircraft was not an ultra-light aeroplane within the meaning of the CARs.

Contraventions 3, 5 et 6

A person who performs maintenance or elementary work (installation of a wing extension), regardless of whether or not they hold a pilot permit – ultra-light aeroplane (section 571.03 of the CARs), shall ensure that the details are entered in the technical record, and shall have the maintenance certified by the signing of a maintenance release pursuant to section 571.10 of the CARs (subsection 685.85(1) of the CARs). In addition, the requirement to keep a separate technical record for the airframe applies to any owner of an aircraft regardless of the aircraft type (subsection 605.92(1) of the CARs).

As Mr. Lafontaine failed to meet the requirements of the CARs, the panel is of the view that the Member was right in rejecting Mr. Lafontaine's defence that these requirements did not apply to the pilot of an ultra-light aeroplane.

Contravention 4

First of all, the transcript of the notes shows that the witness Pierre Richard, through semi-transparent window blinds that allowed him to see outside while blocking the sun, saw Mr. Lafontaine run up his engine in front of the lodge. He saw him take off about 2/3 of the way along the runway, climb to 50 feet and head towards the lodge. Through the unobstructed north window, he saw him drop back down to 25 feet. He expressed himself in this way:

[Translation]

That's when I got scared... not just me, the customers too, Then he flew over at 25 feet ... the east side ... he passed by the tower ... this tower here, it's higher than 50 feet, it has guy wires ... he didn't think about the guy wires, he passed extremely close to that ...

He saw this particular manoeuvre from the unobstructed south window and reported it to the airport manager. The trajectory taken that day by Mr. Lafontaine's aircraft was filed as Exhibit M-21.

Secondly, the Appellant's aircraft was about 500 feet from the lodge. Contrary to the trajectory shown in Exhibit M-21, the Appellant avoided the aircraft parking area and continued his climb heading south without banking to the east. He clearly stated that in his view, Mr. Richard had difficulty assessing distances, but he did not challenge this ability on cross-examination. Nor did Mr. Lafontaine give evidence of either the opacity of the blinds on the east windows overlooking the runway, or the theory about glare from the sun that he had given during his testimony.

Faced with conflicting evidence, it was up to the review Member, Ms. Soucy, to assess the evidence before her and determine which of the two versions probably better revealed what actually happened.

Ms. Soucy, having evidence in hand that Mr. Lafontaine had ignored earlier notices from Transport Canada about the special maintenance release and had also lied to Transport Canada about his last entry in the journey log of aircraft C-GCAD, quite simply did not believe him. There is support for this finding throughout Mr. Lafontaine's testimony under oath. The panel is of the view that the Member's finding as to credibility is not unreasonable. It believes there is sufficient evidence for a trier of fact, acting judiciously, to come to the same conclusion.[5] The panel sees no valid reason to revise this finding of credibility.

Mr. Lafontaine's defence of due diligence also did not satisfy the Member. Since he acknowledged that he was not in an emergency situation and in fact had the right of way over the Cessna 310, the member found that he had no valid reason for not conducting a normal left circuit. The panel acknowledges that this finding of fact is reasonable and should be confirmed.

In choosing to bank right at low altitude after taking off from runway 21, in an area of the airport where there are high obstacles (a UNICOM antenna and two projectors), Mr. Lafontaine increased the risk to himself, his aircraft and the people on the ground; as he was relying on his peripheral vision in the left eye, he was perhaps unable to see the obstacles that Mr. Richard observed from the ground.

DETERMINATION

The appeal is dismissed. The appeal panel confirms the decision of the review Member and upholds the monetary penalties assessed.

May 27, 2005

Reasons for Appeal Decision by:

Ms. Suzanne Racine, Member

Concurred:

Dr. Michel Larose, Member
Mr. John D. Issenman, Member


[1] Thomas Ritchie Phillips v. Minister of Transport (CAT) File No. C-0014-33 (Appeal 26 January 1987)

[2] Trent Wade Moore v. Minister of Transport (CAT) File No. C-0138-33 (Appeal 14 February 1991)

[3] Minister of Transport v. Ronn Palley (CAT) File no. P-2613-33 (Review 17 January 2003)

[4] Stéphane Giguère v. Minister of Transport (TATC) File No. Q-2834-33 (Appeal 9 May 2004)

[5] Trent Wade Moore, supra (see note 2) at page 5.