Decisions

TATC File No. Q-3161-37
MoT File No. N5504-54968

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Robert Maguire, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(b)


Review Determination
Suzanne Racine


Decision: May 1, 2006

TRANSLATION

The Tribunal upholds the recommended fine of $1 000 for repeat offences. This amount is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this decision.

A review hearing on this matter was held on March 14, 2006 at the Courthouse in St-Jean-sur-Richelieu, Québec, room RC.04, at 10:00 a.m.

The witnesses were excluded.

OBJECT OF THE REVIEW HEARING

On June 9, 2005, under section 7.7 of the Aeronautics Act, the Minister of Transport served Mr. Robert Maguire with a notice of assessment of monetary penalty for having contravened paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs). Schedule A of the Notice of Assessment of Monetary Penalty stipulates that Mr. Maguire, as owner of the aircraft registered C-FWOC, pursuant to subsection 8.4(1) of the Aeronautics Act, for having operated said aircraft, on September 2, 2004, at approximately 14:00 EDT, at a distance of less than 500 feet from a structure located at 1427 Fourth Line Road in St-Valentin, Québec.

THE LAW

Section 7.7 of the Aeronautics Act provides as follows:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

Paragraph 602.14(2)(b) of the CARs reads as follows:

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

. . .

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

Subparagraph 602.15(2)(b)(ii) of the CARs stipulates:

602.15 (2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

. . .

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

. . .

(ii) aerial photography conducted by the holder of an air operator certificate,

. . .

THE FACTS

Evidence from the Respondent

Mr. Hamel called Mr. Charles Burroughs to testify. The latter is an inspector at Transport Canada. He investigated a complaint lodged by Mr. Martin Trahan involving one aircraft registered C-FWOC, which reportedly flew at a low altitude over his residence in St-Valentin.

Mr. Burroughs submitted, as M-1, a copy of the Certificate of Registration of Aircraft C-FWOC issued to the owner, Mr. Robert Maguire. The witness also submitted, as M-3, a photocopy made from a notebook page received from Mr. Trahan. On that page, Mr. Trahan had written down the letters that appeared on the aircraft as well as the telephone number for the Transport Canada complaint line (514-633-3248). The exhibit submitted as M-2 depicts, on a map of the area, the low altitude route flown by the aircraft, parallel to Fourth Line Road, and above Mr. Martin Trahan's home (one of the two small squares that appear not far from l'Ile-aux-Noix on the map), towards the village of St-Valentin.

Mr. Burroughs went to the home of Mr. Martin Trahan on Fourth Line Road in St-Valentin. He explained that the road is located in a rural zone with houses and cultivated fields situated here and there. The witness did not identify any location in that area that would be appropriate for take-off or landing of an aircraft.

The witness submitted in a bundle, as M-4, three photographs of the locations that were flown over. The first photograph, taken from the west, shows the garage (right side of the photograph) and rear of Mr. Martin Trahan's house. The second, taken closer, shows the residences neighbouring Mr. Martin Trahan's property. The last photograph shows a view from the east of the property, showing a wooded area (tree nursery).

Mr. Maguire did not cross-examine Mr. Burroughs.

Mr. Martin Trahan testified next. The witness' home is located at 1427 Fourth Line Road in St-Valentin. While he and his father were busy building an enclosure behind his garage, he saw an aircraft fly horizontally on two or three occasions, at about 100 feet east of his house. According to him, the aircraft was at an altitude of [translation] "no more than 80 or 100 feet". The aircraft then flew over the house at that same altitude. To estimate the elevation at which the aircraft was flying, the witness referred to the height of his house which is approximately 35 to 40 feet. Mr. Trahan indicated that he could easily identify the letters that appeared on the aircraft, and he wrote them down in a notepad (M-3); he said that [translation] "they were hard to miss!". The witness, who has lived in St-Valentin for 34 years, does not know of any landing strip in St-Valentin, nor in St-Paul de l'Ile-aux-Noix.

Upon cross-examination by Mr. Maguire, Mr. Trahan stated that [translation] "at that time", nobody offered to sell him aerial photographs of his property.

Mr. Hamel then called Mr. René Trahan, Martin's father. Mr. René Trahan recalled the events that transpired on the afternoon of September 2, 2004. For the benefit of the Tribunal and the parties, the witness drew a sketch (M-5) of the manoeuvres that the [translation] "small, light-coloured plane" performed on that day. According to him, the pilot of the aircraft flew back and forth twice (from north to south) over the woods located not far from his son's residence at an altitude of approximately 100 feet, before looping towards the west and flying, still at the same altitude, between the garage and residence of his son.

Mr. René Trahan estimated that the altitude of the aircraft was equivalent to twice the height of the ash trees located in front of his son's residence, near Fourth Line Road. According to him, these ash trees were approximately 50 feet tall. According to Mr. Trahan, a former survey technician, there was no doubt that the aircraft was flying at about 100 feet; as he put it: [translation] "I know what 100 feet looks like".

A resident of St-Valentin since 1964, Mr. Trahan is not aware of any site near his son's property where an aircraft could take off or land. He thought that there might be a private runway at St-Georges-de-Clarenceville. Mr. Trahan did not notice the letters that appeared on the aircraft, nor did he identify what type it was, because he knew that his son was taking care of that.

During cross-examination, Mr. Trahan informed the Tribunal that he noticed the aircraft while he was near a building under construction, which he marked with a red "X" on the sketch M-5. The witness was not afraid, but he perceived the aircraft to be flying at a very low altitude. He repeated that he had not seen the letters marked on the aircraft.

Recalled by the Minister's representative, Mr. Trahan specified that his vantage point was approximately 60 feet from his son's house, and that the ash trees which are 50 feet high, are located alongside Fourth Line Road, approximately 100 feet from his residence.

EvIDENCE FROM THE APPLICANT

Mr. Robert Maguire uses his aircraft C-FWOC to take aerial photographs which he then sells to the various property owners involved. He admitted that he was operating C-FWOC on September 2, 2004, taking aerial photographs of the properties located here and there along Fourth Line Road in St-Valentin.

In order to produce aerial photographs, Mr. Maguire has to take oblique views which requires him to be located within a horizontal distance that can vary from 1 500 to 3 000 feet from the subject. He [translation] "tries" not to fly below 500 feet, [translation] "at least never below 300 feet" always making sure that there is no danger when he is taking the photograph.

According to him, when he flew over Mr. Martin Trahan's property, it was highly probable that he was taking photographs of a farm located on the other side of Mr. Trahan's property, on the north side of Fourth Line Road.

Mr. Maguire explained that he has been an aerial photographer since 1979, he has accumulated 14 000 flight hours, and he has been subject to only 4 or 5 complaints in the past. His aircraft did a few zig zags while flying away from Mr. Martin Trahan's residence, leaving him time to change the film. He uses 35 rolls of 36 photographs on an aerial photography run. Furthermore, the witness affirmed that Messrs. Martin and René Trahan probably believed that, from where they observed the aircraft, it looked as if it was flying at a lower altitude than it actually was.

ARGUMENTS BY THE MINISTER

Mr. Guy Hamel, the Minister's representative, alleges that he has proven, on a balance of probabilities, each of the elements constituting the offence alleged in the notice of assessment of monetary penalty. Mr. Martin Trahan's testimony is unequivocal. The aircraft he identified as bearing the letters C-FWOC flew over his residence at less than 500 feet on September 2, 2004. His testimony is corroborated by that of his father, a former survey technician who is familiar with judging distances. Moreover, the witnesses, who are quite familiar with St-Valentin, stated that no aerodrome is located in the immediate area. Exhibit M-1 indicates that the aircraft in question belongs to Mr. Robert Maguire.

Submission Regarding the Penalty

The Minister's representative requested that the Tribunal uphold the maximum recommended fine of $1 000. Mr. Maguire has repeatedly committed the same type of offence in the past which even cost him the suspension of his pilot's licence. Mr. Maguire's behaviour as a repeat offender must be countered with a dissuasive sanction. According to Mr. Hamel, Mr. Maguire is being let off rather lightly. In May 2005, the maximum fine for a violation of subsection 602.14(2) of the CARs was increased from $1 000 to $3 000.

ARGUMENTS BY THE APPLICANT

Mr. Maguire explained that he flies in a safe manner and that he keeps his aircraft in impeccable condition. In 1996, he even brought an inspector from Transport Canada with him to prove his point. Unfortunately, in certain cases, he does not always have a choice but to fly over residences to obtain the required shots. It is in no way his intention to frighten anyone. Mr. Maguire does not hold a commercial air operator certificate to use his aircraft for aerial photography because, according to his calculations, it would cost him $15 000 for insurance. Nonetheless, he plans to take steps to obtain this certificate shortly.

DISCUSSION

It was incumbent upon the Minister to convince the Tribunal, on a balance of probabilities, that the alleged offence was more likely to have occurred than not. To do so, the Tribunal must be reasonably convinced of the existence of each of the following elements:

  1. Mr. Maguire operated aircraft C-FWOC.
  2. Mr. Maguire operated said aircraft on September 2, 2004, around 14:00 EDT.
  3. Mr. Maguire operated said aircraft at said time on said date at a distance of less than 500 feet from a structure located at 1427 Fourth Line Road in St-Valentin, Québec.
  4. Mr. Maguire is the owner of the aircraft registered C-FWOC.

The Certificate of Registration of Aircraft, submitted as exhibit M-1, certifies that Mr. Robert Maguire is indeed the owner of a Cessna 177 registered as C-FWOC. Mr. Maguire mentioned in his testimony that he was in fact flying said aircraft at approximately 2:00 p.m. on September 2, 2004, taking aerial photographs in the St-Valentin area, above Fourth Line Road.

Mr. Martin Trahan, who was present when the aircraft flew over, identified its letters as C-FWOC and estimated its altitude at less than 100 feet, using the height of his house as a reference. His father, Mr. René Trahan, saw the aircraft fly over from the same location as his son, and concluded, like his son, that it flew over at a distance of approximately 100 feet. He based this on the nearby environmental reference points (ash trees) and on his familiarity with gauging distances, a result of his experience as a survey technician. This distance is well below the threshold of 500 feet required under paragraph 602.14(2)(b) of the CARs. Mr. Maguire attempted to undermine the credibility of the witnesses by establishing that the 60 feet separating Mr. Martin Trahan's home from their vantage point, located at the back, could have misled them in their assessment with a perspective that was much lower than in reality.

The eyewitnesses struck us as honest individuals with a specific memory of the aircraft flying over. They gave unhesitating, clear answers to the questions asked. Even if, as emphasized by Mr. Maguire, their perspective was truncated by the 60 feet separating them from Mr. Martin Trahan's house, this explanation is, in our opinion, insufficient to explain that the aircraft was flying within the minimal limits, as required by the air regulations. Indeed, there is still a discrepancy of 400 feet between the 100 feet reported by the eyewitnesses, and the minimum legal limit. It is hard to believe that the witnesses' perspective could have varied that much. We do not doubt that aerial photography imposes certain task-related requirements, or to obtain oblique views of a subject, the applicant may sometimes have no other choice but to fly over residences. Nonetheless, these specific requirements are no reason to fail to comply with the minimum threshold of 500 feet set down in the air regulations. Indeed, we were astonished to hear the applicant state that he "[translation] tries not to fly below 500 feet . . . at least never below 300 . . . ".

The regulations provide two exceptions to the minimum threshold of 500 feet in cases involving flying over a structure. Specifically, it is possible to fly over a structure at an altitude below 500 feet if this is to conduct a take-off, approach, or landing (602.14(2)(b)), or if the aircraft is operated by the holder of an air operator certificate for the purpose of aerial photography, without creating a hazard to persons or property on the surface (602.15(2)(b)(ii)).

The evidence shows that there is no area, in the vicinity of Fourth Line Road in St-Valentin, provided for the purpose of conducting a take-off, approach, or landing, and that the applicant does not hold an air operator certificate for the purpose of taking aerial photographs, within the meaning of subparagraph 602.15(2)(b)(ii) of the CARs. Rather, the applicant figured that due to the high insurance costs associated with aerial photography, it was preferable in economic terms to take the risk of exposing himself to complaints and, ultimately, monetary penalties, rather than obtain such a certificate.

DETERMINATION

The Minister's representative proved, on the balance of probabilities, the alleged offence. The Tribunal upholds the recommended fine of $1 000 for repeat offences.

May 1, 2006

Suzanne Racine
Member


Appeal decision
Jean-Marc Fortier, John Saba, Pierre Coutu


Decision: March 20, 2007

Citation: Maguire v. Canada (Minister of Transport), 2007 TATCE 8 (appeal)

[Official English translation]

Held: The appeal is dismissed. For the reasons set out below, we uphold the determination of the review member confirming the Minister's decision to assess the recommended monetary penalty of $1 000 against the appellant for the offence described in the determination of the member Suzanne Racine rendered May 1, 2006. This amount of $1 000 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 15 days of service of this determination.

I.          PRELIMINARY REMARKS

[1]               The appeal panel of the Transportation Appeal Tribunal of Canada is considering an appeal by Robert Maguire in file no. Q-3161-37 from a determination rendered by the member Suzanne Racine in which the Tribunal confirmed the recommended monetary penalty of $1 000 for the repeated contraventions of section 602.14(2)(b) of the Canadian Aviation Regulations, SOR/96‑433 (CARs), pursuant to section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2, as amended by R.S., c. A‑3.

[2]               This appeal was heard jointly with Mr. Maguire's appeal in file no. Q‑3162‑37, in which a determination was rendered by the member Ms. Racine. In that determination, the Tribunal also confirmed the recommended monetary penalty of $1 000 for the repeated contraventions of section 602.14(2)(b) of the CARs, pursuant to section 7.7 of the Aeronautics Act. A separate appeal decision has also been rendered in file no. Q‑3162‑37.

[3]               The appeal hearing, therefore, concerned the two files jointly (Q-3161-37 and Q‑3162‑37). The representations of both the appellant and the Minister of Transport at that hearing also concerned, without distinction, the two determinations referred to in the preceding paragraphs.

II.        BACKGROUND

[4]               On May 27, 2005, in accordance with section 7.7 of the Aeronautics Act, the Minister of Transport issued a notice of assessment of monetary penalty to Mr. Maguire on the ground that on September 25, 2004, in the area of Ayer's Cliff, Quebec, he flew over a structure at a distance of less than 500 feet, thereby contravening section 602.14(2)(b) of the CARs. In addition, appendix A of the notice states that Mr. Maguire was being proceeded against as the owner of aircraft C-FWOC, pursuant to section 8.4(1) of the Aeronautics Act. A monetary penalty of $1 000 was assessed against him. The file pertaining to that offence is number Q‑3162-37.

[5]               On June 9, 2005, in accordance with section 7.7 of the Aeronautics Act, the Minister of Transport issued a notice of assessment of monetary penalty to Mr. Maguire for having once again contravened section 602.14(2)(b) of the CARs. On September 2, 2004, in the area of Saint‑Valentin, Quebec, he flew over a structure at a distance of less than 500 feet. Pursuant to section 8.4(1) of the Aeronautics Act, Mr. Maguire was proceeded against as the owner of aircraft C-FWOC. The Minister assessed a monetary penalty of $1 000 against him. The file pertaining to that offence is number Q-3161-37.

[6]               On March 14, 2006, at a review hearing, the Transportation Appeal Tribunal of Canada heard these two files jointly at the courthouse in Saint‑Jean‑sur‑Richelieu, Quebec. On May 1, 2006, the member Ms. Racine confirmed the Minister's decisions to assess a monetary penalty of $1 000 for each contravention.

[7]               In a letter dated May 31, 2006, Mr. Maguire filed an appeal from the two determinations rendered May l, 2006.

III.       APPELLANT'S GROUNDS

[8]               In his request for appeal of May 31, 2006, Mr. Maguire cited no ground in support of his appeal.

[9]               At the appeal hearing of December 19, 2006, the arguments presented by Mr. Maguire concerned mainly the fact that Transport Canada's representatives had been too severe in serving him with two notices of assessment of $1 000 each for two contraventions of section 602.14(2)(b) of the CARs, the first on May 27, 2005, and the second on June 9, 2005.

[10]           According to Mr. Maguire, Transport Canada's representatives knew him well and knew he had worked for over 20 years in aerial photography. He argued, therefore, that he was engaged in his work when he flew over the Saint‑Valentin area on September 2, 2004, and that he was engaged in the same work of aerial photography on September 25, 2004, in the area of Ayer's Cliff.

[11]           Mr. Maguire claimed, moreover, that he had not flown at an altitude that was lower than 500 feet at the time of each alleged offence and that he had not descended below the limit of 500 feet to take his aerial photographs. He stated that he had been doing this work for a long time and that there were occasionally complaints from people who did not know what his work as an aerial photographer entailed.

[12]           Finally, Mr. Maguire argued that the Tribunal had given more credibility to the Minister of Transport's witnesses than to him at the review hearing of March 14, 2006.

[13]           Mr. Maguire also attempted to introduce into evidence at the appeal hearing aerial photographs that, in his view, showed that he had not flown over the structures at Saint-Valentin and Ayer's Cliff at a distance of less than 500 feet on September 2 and 25, 2004, respectively.

[14]           Mr. Maguire first informed the appeal panel that these aerial photographs had not been available at the time of the review hearing of March 14, 2006. He then changed his mind and confirmed that these photographs could have been available for the review hearing but he had been unable to obtain them for that purpose.

IV.       MINISTER'S ARGUMENTS

[15]           The representatives of the Minister of Transport argued that the appeal panel of the Tribunal should dismiss the appeal mainly for the following reasons:

a)  the appeal panel should not go against the facts that were accepted by the hearing officer, since the evidence adduced by the Minister's representative at the review hearing in support of the allegations made in the notices of assessment was [translation] "clear, reliable and relevant";

b)  the conclusion drawn from the facts shown by the Minister of Transport at the review hearing was reasonable;

c)  the review member was in the best position to be able to examine the evidence on record and evaluate the credibility of the witnesses;

d)  the review member's determination was not unreasonable.

V.        DISCUSSION

A.        General Operating and Flight Rules

[16]           It is important to recall the provisions of Part VI of the CARs, and specifically those of section 602.14 which stipulates as follows:

Minimum Altitudes and Distances

602.14 (1) [Repealed]

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

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

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

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

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

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

[17]           Section 602.14(2) of the CARs therefore contains an absolute, clear and unambiguous prohibition followed by two exceptions, themselves subject to certain conditions.

[18]           The first exception permits the operation of an aircraft when conducting a take-off, approach or landing. Such take-off, approach or landing can only be conducted at an airport or a military aerodrome.

[19]           The second exception from the absolute prohibition against operating an aircraft at a distance less than 500 feet from any person, vessel, vehicle or structure results from the permission stipulated in section 602.15 of the CARs which states as follows:

Permissible Low Altitude Flight

602.15 (1) A person may operate an aircraft at altitudes and distances less than those specified in subsection 602.14(2) where the aircraft is operated at altitudes and distances that are no less than necessary for the purposes of the operation in which the aircraft is engaged, the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated

a) for the purpose of a police operation that is conducted in the service of a police authority;

b) for the purpose of saving human life;

c) for fire-fighting or air ambulance operations;

d) for the purpose of the administration of the Fisheries Act or the Coastal Fisheries Protection Act;

e) for the purpose of the administration of the national or provincial parks; or

f) for the purpose of flight inspection.

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

a) paragraph 602.14(2)(a), where operation of the aircraft is authorized under Subpart 3 or section 702.22; or

b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,

(ii) aerial photography conducted by the holder of an air operator certificate,

(iii) helicopter external load operations, or

(iv) flight training conducted by or under the supervision of a qualified flight instructor.

[20]           The exception stipulated in section 602.15 of the CARs itself provides for two exceptions. Section 602.15(1) permits the operation of an aircraft at altitudes and distances less than those specified in section 602.14(2) on certain conditions and only for one of the aerial operations it specifies.

[21]           Section 602.15(2) of the CARs permits operation of an aircraft at altitudes and distances less than those specified in section 602.14(2)(b) only in the following circumstances:

-   the aircraft is operated without creating a hazard to persons or property on the surface;

-   to the extent necessary for the purpose of aerial photography;

-   the aerial photography is conducted by the holder of an air operator certificate.

[22]           Thus, the exception stipulated in section 602.15(2)(b)(ii) applies only if the operator of an aerial photography service is the holder of an air operator certificate issued pursuant to the terms of Part VI or Part VII of the CARs and the applicable Commercial Air Service Standards. Otherwise, the absolute prohibition stipulated in section 602.14(2)(b) takes precedence and is to be strictly observed.

[23]           The text of section 602.14(2) of the CARs can therefore be restructured as follows for easier comprehension:

Absolute general prohibition:

No person shall operate an aircraft

Objects of the prohibition:

(i) in the circumstances prescribed in section 602.14(2)(a),

(ii) at a distance less than 500 feet from any person, vessel, vehicle or structure, in circumstances other than those referred to in section 602.14(2)(a),

Stated exceptions:

(iii) except where conducting a take-off, approach or landing; or

(iv) when permitted under section 602.15.

[24]           The French version of section 602.14 of the CARs is to the same effect:

Altitudes et distances minimales

602.14 (1) [Abrogé]

(2)   Sauf s'il s'agit d'effectuer le décollage, l'approche ou l'atterrissage d'un aéronef ou lorsque la personne y est autorisée en application de l'article 602.15, il est interdit d'utiliser un aéronef :

a) au-dessus d'une zone bâtie ou au-dessus d'un rassemblement de personnes en plein air, à moins que l'aéronef ne soit utilisé à une altitude qui permettrait, en cas d'urgence exigeant un atterrissage immédiat, d'effectuer un atterrissage sans constituer un danger pour les personnes ou les biens à la surface, et, dans tous les cas, à une altitude d'au moins :

(i) dans le cas d'un avion, 1 000 pieds au-dessus de l'obstacle le plus élevé situé à une distance de 2 000 pieds ou moins de l'avion, mesurée horizontalement,

(ii) dans le cas d'un ballon, 500 pieds au-dessus de l'obstacle le plus élevé situé à une distance de 500 pieds ou moins du ballon, mesurée horizontalement,

(iii) dans le cas d'un aéronef autre qu'un avion ou un ballon, 1 000 pieds au-dessus de l'obstacle le plus élevé situé à une distance de 500 pieds ou moins de l'aéronef, mesurée horizontalement;

b) dans les cas autres que ceux visés à l'alinéa a), à une distance inférieure à 500 pieds de toute personne, tout navire, tout véhicule ou toute structure.

[25]           The French version of the text of section 602.14(2) also contains the absolute prohibition followed by the same levels of exception:

Absolute general prohibition:

Il est interdit d'utiliser un aéronef

Objects of the prohibition:

(i) dans les cas prévus à l'article 602.14(2)a),

(ii) à une distance inférieure à 500 pieds de toute personne, tout navire, tout véhicule ou toute structure, dans tous les autres cas que ceux visés à l'article 602.14(2)a),

Stated exceptions:

(iii) sauf s'il s'agit d'effectuer le décollage, l'approche ou l'atterrissage d'un aéronef, ou

(iv) lorsque la personne y est autorisée en application de l'article 602.15.

[26]           One of the main objects of the prohibition, namely, the operation of an aircraft at a distance less than 500 feet from any person, vessel, vehicle or structure, is therefore essential in this appeal case.

[27]           Thus, because of the absolute general prohibition described in section 602.14(2) of the CARs, Mr. Maguire cannot argue that he operates an aerial photography business and that, in his usual activities, he sometimes descends his aircraft below the limit of 500 feet from any person, vessel, vehicle or structure. It is appropriate to refer to page 67 of the transcript, where Mr. Maguire acknowledges, in reply to a question put by the member Ms. Racine, that he operates his aeroplane in contravention of the prohibition stipulated in section 602.14(2)(b) of the CARs: [translation] "We keep about five hundred (500) feet, three hundred (300) feet sometimes. Then when we reach the minimum, which is three hundred (300) feet, I don't go below that".

B.        New evidence

[28]           Among the arguments made by the appellant to the appeal panel, he said that he wanted to file photographs that showed, in his view, that his aircraft was above the minimum altitude of 500 feet that he was to respect under section 602.14(2)(b) of the CARs.

[29]           In this regard, the appeal panel is of the opinion that it is important to recall the provisions of section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, which sets out the powers of the appeal panel. Section 14 states as follows:

14. An appeal shall be on the merits based on the record of the proceedings before the member from whose determination the appeal is taken, but the appeal panel shall allow oral argument and, if it considers it necessary for the purposes of the appeal, shall hear evidence not previously available.

[30]           The appeal panel is therefore essentially bound by the evidence on record at the proceedings that resulted in the determination from which the appeal is taken. Thus, the panel may hear only the evidence establishing the merits of the case that resulted in the determination from which the appeal is taken, that is, the evidence adduced by the two parties, the testimonies, the cross-examinations and the final arguments.

[31]           Furthermore, at the appeal hearing, the appeal panel must allow oral argument from each party, which must, however, pertain only to evidence previously available and to the testimonies of each party.

[32]           Finally, if it considers it necessary for the purposes of the appeal, the appeal panel may hear any evidence not available at the time of the review proceedings. This last stipulation of section 14 of the Transportation Appeal Tribunal of Canada Act gives the panel some leeway to allow the introduction of new evidence that was not previously available and to hear it only if the panel considers it necessary for the purposes of the appeal.

[33]           The French version of this same section 14 uses similar terminology, minus the clarifications:

14. L'appel porte au fond sur le dossier d'instance du conseiller dont la décision est contestée. Toutefois, le comité est tenu d'autoriser les observations orales et il peut, s'il l'estime indiqué pour l'appel, prendre en considération tout élément de preuve non disponible lors de l'instance.

[34]           There is no requirement for the panel to hear any additional evidence that was not previously available. Where the appellant demonstrates that such evidence was not previously available, the appeal panel must still determine whether that evidence is admissible on appeal, and allow it only if it considers it necessary (or "indiqué pour l'appel" according to the French version of section 14 of the Transportation Appeal Tribunal of Canada Act).

[35]           The appeal panel therefore has full discretion to disallow any evidence that is new (meaning not previously available) if it concludes that such evidence is not necessary in order for it to consider on the merits the record of the proceedings from which the appeal is taken.

[36]           After having examined the evidence adduced by the parties at the review proceedings and analysing the transcript of the testimonies of the appellant and the witnesses of the Minister of Transport, the panel decided at the hearing not to allow the appellant to file new aerial photographs which he claimed were not available at the time of the hearing before the review member and then changed his mind and acknowledged that they could have been available at that time.

C.        Credibility of the witnesses

[37]           The appellant's main argument concerns the credibility of the witnesses. He cites the fact that the review member found the witnesses brought by the Minister of Transport to be more credible than his testimony.

[38]           In this regard, the appeal panel has read over the transcript of the testimonies given at the review hearing and found that in both appeal cases, the testimonies of the witnesses brought by the Minister were clear, objective and relevant in supporting the allegations relating to the offences committed by the appellant.

[39]           Moreover, the appellant did not hesitate to admit several times when testifying that he had descended below 500 feet to the minimum of 300 feet and that because of the aerial photography business he operates he had re-offended on several occasions, hence the existence of his "record" with Transport Canada. (See the transcript at pages 62, 63 and 67.)

[40]           The review hearing member was in the best position to be able to evaluate the impact of the testimonies of the appellant and of the witnesses brought by the Minister of Transport and the appeal panel need not substitute its own evaluation of these testimonies.

[41]           In Canada (Minister of Transport) v. Phillips, [1987], appeal determination, CAT file no. C-0014-33, [1987] C.A.T.D. no. 14 (QL), the appeal panel felt that the hearing officer was in the best position to be able to determine which evidence he prefers, in particular, which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. The appeal tribunal therefore concluded that the determination of the credibility of witnesses is best left with the trier of fact at first instance. Since in this appeal the evidence adduced by the Minister of Transport is not in conflict with or inconsistent with that of the appellant, the appeal panel is all the more justified in leaving it to the review member to evaluate the evidence.

[42]           The testimony of the witness René Trahan (at pages 37 and 38 of the transcript) is an example of the credibility of the testimonies presented by the Minister of Transport:

[translation]

Q.    [93]  All right. And the day of the incident, is it possible that a plane took off, that this particular plane took off from a field near your place? Did you see it…

A.    No, it couldn't have taken off near our place.

Q.    [94]  No. All right. I would like to come back a bit to the question of height. You determined it, you say, in relation to the trees?

A.    Yes. Near the roadway, at my place, the last time the plane passed, I paid special attention. The trees, they are ashes, and they are between fifty (50), about fifty (50) feet. And the plane was not more than twice as high as the trees.

Q.    [95]  Ok. So, you estimate the height…

A.    Yes, yes, at…

Q.    [96]  And those trees are close to the house?

A.    They are a hundred (100) feet from the house.

Q.    [97]  All right. Are you somewhat accustomed to determining distances like that?

A.    Well, let's say I was, I was in surveying, I was a land survey technician with the Quebec Ministry of Transportation. And I know what a hundred (100) feet is. I had a very good, I had a very good eye.

[43]           In both appeal cases, the evidence presented by the witnesses of the Minister of Transport is based on credible testimonies and on evidence that prompted the review member to find, on the balance of probabilities, that the appellant had committed the offences alleged by the Minister of Transport.

[44]           Besides assessing the credibility of the witnesses of the Minister of Transport, the appeal panel also considered the credibility to be given the testimony and representations of the appellant.

[45]           The appellant has operated an aerial photography business since 1979, that is, for more than 25 years (transcript at pages 63 and 64) using an aircraft which he also owns. The appellant carries on his activities as a private contractor since he does not hold an air operator certificate referred to in the CARs, for economic reasons.

[46]           The appellant has elected to operate his aerial photography business privately, avoiding the obligations imposed on those engaged in similar activity who hold an air operator certificate. Certified operators may enjoy certain exceptions such as the one stipulated in section 602.15(2)(b)(ii) of the CARs, but this is not the appellant's case.

[47]           The appellant therefore has only himself to blame for the consequences of his actions and must respect, without qualification, the limit of 500 feet imposed on any person who operates an aircraft, as required by section 602.14(2)(b) of the CARs.

D.        Reasonability of the member's determination

[48]           Sections 602.02 to 602.14 of the CARs all contain, in their respective wording, an absolute prohibition against operating an aircraft in the situations described, namely, to conduct take-offs, approaches or landings within built-up areas of cities and towns, unless one qualifies for the exceptions described therein. Needless to say, all these prohibitions have been established to ensure a high level of aviation safety during the operation of an aircraft.

[49]           Similarly, aviation safety is also the rationale for the prohibitions stipulated in sections 602.14(2) and 602.15 of the CARs. In these cases, the appeal panel is of the view that any violation of section 602.14(2) of the CARs constitutes a breach of aviation safety by the aircraft operator. Insofar as the review member found that the appellant was in violation of section 602.14(2)(b) of the CARs, her determination cannot be unreasonable given the intended aims of the CARs, namely, to ensure aviation safety.

[50]           The appeal panel therefore believes that a determination that duly considers the interests of aviation safety cannot, by its very nature, be unreasonable. The panel fully endorses the appeal decision in Long v. Canada (Minister of Transport), [2004], TATC file no. O‑2824‑02, [2004] C.A.T.D. no. 20 (QL).

VI.     DECISION

[51]           The appeal is dismissed. For all the reasons stated, the appeal panel upholds the determination of the review member of May 1, 2006, confirming the Minister's decision to assess a monetary penalty of $1 000 for repeat offences. This amount of $1 000 is to be made payable to the Receiver General for Canada, and must be received by the Transportation Appeal Tribunal of Canada within 15 days of service of this determination.

March 20, 2007

Reasons for appeal decision by:     

Mr. Jean-Marc Fortier, Member

Concurred by:                                 

Dr. Pierre Coutu, Member
Dr. John Saba, Member