TATC File No. Q-3170-33
MoT File No. N5504-55903
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Brian Osborne, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7(1)
Canadian Aviation Regulations, SOR/96-433, s. 602.114
Transportation Appeal Tribunal of Canada Act, 2001, c. 29, s. 14
VFR Flight, Visual Reference, VFR Clearance, New Evidence at the Appeal Level, IFR Flight, IFR Clearance, Controlled Airspace
Decision: March 9, 2006
The Tribunal upholds the decision of the Minister of Transport. The total amount of the monetary penalty of $750 is upheld. This amount must be made payable to the Receiver General for Canada and received by the Tribunal within 35 days of receipt of this determination.
A review hearing on the above matter was held Tuesday, November 8, 2005, at the courthouse in Montréal, Québec, at 10:00 hours.
Ms. Pauline L. Mang, Advisory Appeals Officer, Security Operations Branch, Transport Canada, observed the hearing.
The procedure was explained to the two parties and no agreement was reached between them prior to the hearing, but in the form of a preliminary motion, Mr. Tamborriello, on behalf of the Minister of Transport, wished to correct the date of the alleged offence to December 13, 2004, at 0020Z (19:20 hours local time), from December 14, 2004, as it appears in the Notice of Assessment of Monetary Penalty. The applicant accepted this correction at once.
OBJECT OF THE REVIEW HEARING
On July 13, 2005, the Minister of Transport sent the applicant a Notice of Assessment of Monetary Penalty pursuant to section 7.7 of the Aeronautics Act for having contravened CAR 602.114, assessing a penalty of $750 against him:
You have contravened the following provision: 602.114 of the Canadian Aviation Regulations.
On or about December 14, 2004, at approximately 0020Z, at or near Rouyn, while pilot-in-command of flight PSC425, you departed VFR within controlled airspace without maintaining visual reference to the surface.
Monetary penalty : 750.00$
Subsection 7.7(1) of the Aeronautics Act stipulates 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.
Contents of notice
(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate
(a) the designated provision that the Minister believes has been contravened;
(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and
(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.
DIVISION VI - VISUAL FLIGHT RULES
Minimum Visual Meteorological Conditions for VFR Flight in Controlled Airspace
602.114 No person shall operate an aircraft in VFR flight within controlled airspace unless
(a) the aircraft is operated with visual reference to the surface;
(b) flight visibility is not less than three miles;
(c) the distance of the aircraft from cloud is not less than 500 feet vertically and one mile horizontally; and
(d) where the aircraft is operated within a control zone,
(i) when reported, ground visibility is not less than three miles, and
(ii) except when taking off or landing, the distance of the aircraft from the surface is not less than 500 feet.
THE FACTS (documentary and testimonial evidence)
In his opening statement, Mr. Tamborriello, on behalf of the Minister of Transport, talked about a VFR flight in controlled airspace with no ground visibility and referred also to A.I.P. Canada RAC 6.1 at section 6.2.1 – IFR Clearance with VFR Restrictions with regard to the pilot in question wishing to conduct a VFR departure.
6.2.1 IFR Clearance with VFR Restrictions
ATC may issue an IFR clearance for an aircraft to depart, climb or descend VFR until a specified time, altitude, or location provided
(a) the pilot requests it;
(b) the aircraft is outside Class A airspace;
(c) the aircraft is within Class B airspace at or below 12 500 ft ASL or within Class C, D or E airspace; and
(d) the weather conditions permit.
Pilots are reminded that during such a VFR restriction they must provide their own separation, including wake turbulence separation, from other IFR aircraft as well as from the VFR traffic. Controllers normally issue traffic information concerning other IFR aircraft, particularly in marginal weather conditions. If compliance with the restriction is not possible, the pilot should immediately advise ATC and request an amended clearance.
First witness: Mr. Guy Hamel, Civil Aviation Safety Inspector, Transport Canada
Mr. Hamel has 26 years of aviation experience. He has an airline transport pilot licence and has worked for Transport Canada for 4 years.
He testified that the applicant, Mr. Brian Osborne, flew in VFR mode in IFR conditions. To this effect, he filed, as Exhibit M-1, report no. 2004Q1865 of the CADORS (Civil Aviation Daily Occurrence Reporting System), dated December 15, 2004, and signed by Mr. Michel Leduc:
Application of aviation regulations
The pilot of PSC425, a Pascan Pilatus Eagle, was notified of a delay of his flight clearance because JZA8759, an Air Canada Jazz Dash-8, had been cleared for approach and was at 6,000 feet in descent. PSC425 requested a visual departure, which was granted. The pilot conducted a take-off and stated he was climbing to 11,500. The two aircraft passed by each other. A few minutes later, JZA8759 stated it had visual traffic above the layer. The weather report at the time of the incident indicated a ceiling at 2,500 feet.
Attached to this document is a VFR map of Rouyn and Amos, which are uncontrolled airports.
This investigation was assigned to him on December 29, 2004.
In early January 2005, he acted on a number of fronts: weather information – NAV CANADA – radar images – communication – Montréal control centre (YUL) – Flight Service Station – communications between the two aircraft involved. There is about 20 minutes of audiotape, serving mainly to prove that the airspace in question is controlled.
In addition, he obtained information about Jazz (JZA) flight 8759 and contacted the pilot-in-command and the first officer. He also obtained information about flight 425 of Pascan (PSC), whose chief pilot was Mr. Hans Mathys, and the pilot was indeed Mr. Brian Osborne.
On January 24, 2005, the applicant replied to his chief pilot by fax as follows:
After receiving V.F.R. departure clearance from A.T.C. I proceeded as cleared using my own visual references of course and not that of the Jazz pilots.
After reviewing the legislation, he then invited Mr. Osborne, in a letter (M-4) dated March 15, 2005, to submit to him any comments he deemed appropriate, without any obligation on his part, regarding CAR 602.114.
Mr. Hamel sent e-mail messages and had telephone conversations with the two Jazz 8759 pilots and they are here this morning.
Mr. Osborne telephoned Mr. Hamel on March 29, 2005, and the applicant made the following four points (M-5):
- He claims that after taking off from YUY, he found himself in a sector that was entirely VFR, allowing him to climb.
- His co-pilot was Terry Levasseur (?).
- He acknowledged it was "solid" above YUY and that JAZZ may have thought he was above the layer, but this was not the case.
- The pilot of Propair's Gulfstream (Desrosiers) could no doubt confirm this, because he too was arriving at YUY.
Finally, Mr. Hamel filed, as Exhibit M-6, a map of low-level routes (17,000 feet and below) published by NAV CANADA for the period November 25, 2004, to January 20, 2005, for Rouyn (YUY), and in his view, with regard to CAR 602.114, Mr. Osborne was above a cloud layer in VFR flight without IFR clearance and had no visual contact with the ground within controlled airspace.
On cross-examination, Mr. Osborne wanted to question Mr. Hamel especially about the various delay periods with regard to the alleged offence of December 13, 2004, the letter of March 15, 2005, and the penalty assessed on July 13, 2005. Mr. Hamel replied that these delay periods are normal for this type of investigation.
Second witness: Mr. Guy Thibault
Mr. Thibault has about 20 years of aviation experience, is an airline transport pilot and has worked for Air Canada Jazz since 1971.
On December 13, 2004, he was pilot-in-command of flight JZA8759, a Dash-8, arriving from Montréal (YUL) in IFR flight and found himself near Rouyn (YUY) as a VFR flight was departing from that airport. He conveyed a warning that it was 100% overcast and at that point noticed the Pascan (PSC) 425 aeroplane to his right, below his altitude (+ 6,000 ft.) but above the clouds.
According to him, flying in VFR mode was impossible because there was no visual reference to the ground and also, during his approach, he saw no lights from the city of Rouyn, which is 8 to 10 kilometres northwest of the airport.
On cross-examination, Mr. Osborne elicited from the witness that he had previously said 90% overcast, not 100%, and the witness responded that he had seen the lights of the city of Val-d'Or to his right and also that he had not seen the Boeing 737 that had taken off before the Pascan 425. In response to further questions, the witness said he had been about 7.6 nautical miles from the airport, to the southwest, at an altitude of about 6,000 ft., on approach to Rouyn (YUY), and that it was between 90% and 100% overcast.
The witness stated that he had made no report to Transport Canada and did not recall when Mr. Hamel contacted him.
On cross-examination by Mr. Tamborriello, the witness again stated that Pascan 425 was above the cloud layer and that if the audiotapes show that he himself landed in VFR, he no longer remembers that, but if that was the case, his IFR would have been cancelled because he was in visual contact with the airport and would then have been on short final.
Third witness: Mr. Michel Dumais
He has been an airline transport pilot since 1994. He was the first officer on December 13, 2004, on flight JZA8759.
On arriving at Rouyn (YUY) in IFR approach, there was VFR traffic departing and he saw the Pilatus (Pascan 425) to his right, i.e., at two o'clock, about 2 to 3 miles to his right. The ceiling was overcast at 2,500 ft. with no ground reference.
The Respondent filed the following weather conditions as Exhibit M-2:
METAR CYUY 132300Z 32008KT 10SM -SN OVC020 M11/M14 A2985 RMK SC8
SA 2004 12 132300
YUY SA 2300 M20 OVC 10S- 132/-12/-14/3208/985/SC10 ?58XX?=
SA 2004 12 140000
YUY SA 0000 M25 OVC 10S- 147/-12/-14/3309G15/988/SC10 /S01/ 3026
The witness read the fifth line on the second page of M-2, corresponding to 23:00Z, when it would have been more appropriate to read the line corresponding to 00:00Z. Finally, the witness stated that he too had not seen the city of Rouyn, which is 7 to 8 miles northwest of the airport.
On cross-examination, Mr. Osborne elicited from the witness that his own departure was made on runway 08 to the south and that there are no lights on the south side, and as for the information about the ceiling being at 2,500 ft., that when Mr. Dumais saw the Pilatus (PSC425) he had no idea what the ceiling was when the aeroplane emerged from the clouds. Mr. Osborne elicited from the witness that he had no idea what the conditions were on the ground.
When questioned by the member, Mr. Dumais said he had been heading for the beacon for a GPS approach. The fix is a westerly extension of runway 08 and turns right for runway 08; he was 7 nautical miles from the airport, at an altitude of about 6,000 ft. In answer to another question from Mr. Osborne, the witness said he had no idea whether he had been in VFR on short final.
Fourth witness: Mr. Ghislain Durocher
Mr. Durocher has been an airline transport pilot since October, 1967. On December 13, 2004, he was pilot-in-command of his Gulfstream for flight G159 and was coming from Kingston bound for Rouyn (YUY).
He heard the Pascan (PSC425) radio communications during his descent towards Rouyn requesting a VFR departure. He and JZA8759 were in IFR approach. He landed about 10 minutes after hearing this clearance. The clouds were 7 over 8/8 (oktas) opaque. He could not say whether a VFR departure from the ground was possible because he had not had that contact. He estimated the city of Rouyn to be to his left to the northwest about 7 or 8 miles from the airport. He saw no lights from the city during his descent. When cross-examined by Mr. Osborne, he said he was arriving from the south but was west of JZA8759, which was arriving from Montréal (YUL). The witness did not recall when it was that Mr. Hamel spoke to him after the occurrence of December 13, 2004, but he had clearly heard the comments of JZA8759 and Mr. Osborne because he had been the one handling communications, and his co-pilot had also seen PSC425 and had asked him to look. He no longer recalled what his altitude had been.
This concluded the Respondent's evidence.
Evidence from Applicant, Mr. Osborne
Mr. Hamel had contacted his co-pilot, but the latter was not available for this review hearing. He had also received from Mr. Tamborriello a 20-minute portion of the audio recordings. In this regard, after the Tribunal called a recess of about 10 minutes, both parties agreed not to have the recordings heard since the Minister had placed them in evidence merely to prove the existence of controlled airspace.
Mr. Osborne stated that he initially had an IFR flight plan and had been cleared for a VFR departure, so had a combined flight plan, i.e., VFR then IFR until receiving clearance.
According to him, the FSS did not know the weather 7 nautical miles to the south of him at the time of his departure and JZA8759 was 7.6 nautical miles away.
With regard to CAR 612.114c), he said he had maintained his visual ground reference and his visibility until he received his IFR clearance after the three pilot witnesses.
According to the Minister of Transport's representative, all elements of CAR 602.114 have been proven and the monetary penalty in the amount of $750 is wholly warranted.
Mr. Brian Osborne was the pilot of PSC425 on December 13, 2004, at 19:20 hours Rouyn local time.
After clearance, he conducted a VFR departure on runway 08 at Rouyn while having an IFR flight plan in a controlled airspace.
According to three eyewitnesses who are commercial pilots, the aircraft was without visual reference to the surface and above the cloud layer, in contravention of CAR 602.114.
In the Designated Airspace Handbook, "surface" is defined as "any ground or water, including the frozen surface thereof; (surface)".
The only contradictory evidence is that of Mr. Osborne, who recalls having maintained the VFR portion of his flight throughout with visual reference to the surface (visual meteorological conditions – VMC).
In this regard, the Minister's representative recalls that according to the Sequence Airport for 23:00 hours at YUY, the ceiling was at 2,000 ft., and at 00:00 hours the ceiling was at 2,500 ft.
The three eyewitnesses spoke of 9/10, 7/8, 90% or even 100%, and according to MET 1-4 in A.I.P. Canada:
(b) Reporting of Ceilings
A ceiling is the lesser of the height at which cumulative layers of cloud or smoke a loft obscure 5/8 or more of the sky, or the vertical extent of the visibility as viewed through a surface-based obscuring condition, such as smoke or fog.
(c) Sky Conditions
Sky conditions are classified in terms of eighths of sky covered [see MET 3.15.3(k)].
Still according to MET 3-35 in A.I.P. Canada:
(k) Sky Conditions: This group reports the sky condition for layers aloft. A vertical visibility (VV) is reported in hundreds of feet when the sky is obscured. All cloud layers are reported based on the summation of the layer amounts as observed from the surface up, reported as a height above the station elevation in increments of 100 feet to a height of 10 000 feet, and thereafter in increments of 1 000 feet. The layer amounts are reported in eighths (oktas) of sky coverage as follows:
SKC – "sky clear" – no cloud present
FEW – "few" – >0 to 2/8 summation amount
SCT – "scattered" – 3/8 to 4/8 summation amount
BKN – "broken" – 5/8 to
OVC – "overcast" – 8/8 summation amount
CLR – "clear" – clear below 10 000 feet as interpreted by an autostation
Significant convective clouds (CB or TCU only), if observed, are identified by the abbreviations CB (Cumulonimbus) or TCU (Towering Cumulus) appended to the cloud group without a space, e.g., "SCT025TCU". Where observed, other cloud types and their layer opacity's are reported in the remarks.
AWOS cannot report cloud types; cloud layers are limited to four, and will report clear (CLR) when no layers exist below 10 000 feet.
A cloud ceiling is said to exist at the height of the first layer for which a coverage symbol of BKN or OVC is reported. The existence of a vertical visibility constitutes an obscured ceiling.
And going by this data, it turns out that PSC425, having been seen 7 nautical miles to the south above the clouds, could, in these conditions, have visual reference to the surface.
Concerning the credibility of the applicant, Mr. Osborne, the Minister's representative refers the Tribunal to the case involving the Minister of Transport, applicant, and Mr. Christian Albert, respondent, in which the member, Mr. Pierre Beauchamp, states:
Absent extenuating circumstances, the testimony of disinterested witnesses should prevail over that of persons who are or may be interested in the result. The court, however, is not to disbelieve or attribute error to the evidence of a witness solely because he is interested but must, instead, examine such evidence with reference to the facts of the case and other relevant factors. One judge has put it this way:
'... when the evidence of an important fact is contradictory ... the Court must weigh the motives of the witnesses, their relationship or friendship with the parties, their attitude and demeanour in the box, the way in which they gave evidence, the probability of the facts sworn to, and come to a conclusion regarding the version which should be taken as the true one ...' (Emphasis added)
Also, according to the Minister of Transport's representative, the testimony of the three witnesses, who have no vested interest in this case, who are commercial pilots, and who work for two different commercial airlines, should be accepted over the position of the applicant, who has a vested interest in claiming he conducted his flight in VMC conditions up until the time he received his IFR clearance (IMC: instrument meteorological conditions).
Still according to the Minister's representative, this commercial pilot, rather than request IFR clearance at YUY, when two aeroplanes were arriving in IFR mode at YUY, requested a VFR departure clearance with a ceiling of 2,500 ft. at night and ended up above the clouds so as to save a few minutes. This pilot had no constraints and was flying VFR and did not ensure he was not adversely affecting air traffic.
RAC 1-21 of A.I.P. Canada states:
Right-of-Way – General
602.19 (1) Notwithstanding any other provision of this section,
(2) When two aircraft are converging at approximately the same altitude, the pilot-in-command of the aircraft that has the other on its right shall give way, except as follows:
(a) a power-driven, heavier-than-air aircraft shall give way to airships, gliders and balloons;
(b) an airship shall give way to gliders and balloons;
(c) a glider shall give way to balloons; and
(d) a power-driven aircraft shall give way to aircraft that are seen to be towing gliders or other objects or carrying a slung load.
(5) Where two aircraft are approaching head-on or approximately so and there is a risk of collision, the pilot-in-command of each aircraft shall alter its heading to the right.
And another extract from RAC 3-5 of A.I.P. Canada states:
3.8 Composite Flight Plan or Flight Itinerary — VFR and IFR
A composite flight plan/itinerary may be filed that describes part(s) of the route as operating under VFR and part(s) of the route as operating under IFR. All rules governing VFR or IFR apply to that portion of the route of flight. A composite flight plan or flight itinerary shall not be filed for an aircraft that will enter airspace controlled by the FAA, including Canadian Domestic Airspace delegated to the FAA, as composite data cannot be correctly processed between NAV CANADA and FAA systems.
A pilot who files IFR for the first part of a flight and VFR for the next part will be cleared by ATC to the point within controlled airspace at which the IFR part of the flight ends. A pilot who files VFR for the first part of a flight and IFR for the next part are expected to contact the appropriate ATC unit for clearance prior to approaching the point where the IFR portion of the flight commences. If direct contact with an ATC unit is not possible, the pilot may request the ATC clearance through an FSS. It is important that the flight continue under VFR conditions until an appropriate ATC IFR clearance within controlled airspace is issued and acknowledged by the pilot.
Mr. Osborne did not continue under VFR conditions and the air traffic controller (ATC) had not issued his IFR clearance.
As for the monetary penalty in the amount of $750, the Minister of Transport's representative submitted to the Tribunal the decision in the case between the Minister of Transport, applicant, and Parachutisme Aventure Inc./e.s.a. Aéro 3000, respondent, in which the member, in that instance the undersigned, referred to Wyer regarding aggravating and mitigating circumstances:
Arriving at an appropriate penalty, then, involves not only knowing the sentencing principles and the relevant facts and circumstances that give them meaning in an individual case; it may also involve the high art of balancing various policy considerations implicit in the principles and in the facts of the case.
Certainly there are a number of factors which exist in finding the proper balance within the principles of sentencing the assessment of a penalty or other sanction. These factors will be considered, some in aggravation and others in mitigation.
Without attempting to limit what such factors may include, the following may be considered:
1. Aggravating factors:
- infractions involving dishonesty,
- planned breaches,
- premeditated breaches,
- extent of harm to victims of the offence,
- past record of similar offences,
- prevalence of the offence.
2. Mitigating factors:
- no previous offences,
- time since last offence,
- degree of remorse,
- whether or not an admission of the offence,
- degree of co-operation with authorities,
- delay between the commission of the offence and the time of the sentence,
- conduct (involvement) of any "victims"
- type of operation (commercial or private flight)
- impact on aviation community,
- special factual circumstances,
- relevance of enforcement manuel recommendations,
- effect of a monetary v. suspension penalty on individual,
- occurrence impact on aviation safety,
- manner of proceeding by authorities.
Ultimately, the principles enunciated and the factors affecting the level of penalty must be considered on an individual basis in the context of the circumstances of the specific occurrence. The list noted above is not intended to be in any particular prioritized order nor is the list necessarily complete.
In light of these criteria, the Minister of Transport's representative pointed out that this departure was planned, that it was premeditated despite terrible weather, that he had not continued under VFR conditions and had ended up above the clouds and was therefore a danger to himself and to others.
For a first offence under CAR 602.114, $750 was the maximum that Transport Canada could assess under CAR 103.08(2) on December 13, 2004, whereas it is now $5,000, and this penalty should be upheld (12.4 Designated Provisions).
As for Mr. Osborne's arguments, he said he arrived from Val-d'Or with an IFR flight plan but flew in VFR.
His flight plan from YUY to St-Hubert was IFR, but he departed again in VFR after clearance from the ATC.
According to him, the weather on the ground was 1/10 or 3/10 and the three pilots were at least 7.6 NM away and he wondered how they could say they saw him above the clouds.
Mr. Osborne claimed he complied with RAC 6.1 (6.2.1) of A.I.P. Canada cited earlier.
He let a Boeing 737 take off, he waited in order to keep his distance and he received clearance from the ATC for his VFR heading southwest. Had he not received his VFR clearance, he would have remained on the ground.
Mr. Osborne still maintains there were holes in the cloud layer and that he always maintained his visual reference to the surface until he received his IFR clearance.
He had complied with section 6.2.1 of A.I.P. Canada, and to counter the testimony of the three pilots he had contacted his co-pilot in August 2005, but the latter did not recall that flight.
In rebuttal, the Minister of Transport's representative stated as follows:
- Mr. Osborne never said in his evidence that he was arriving from Val-d'Or and had flown VFR while having an IFR flight plan.
- Mr. Osborne was not flying VFR, he had an IFR flight plan with a cleared VFR departure.
- The weather was 9/10 and three pilots did not see the ground and yet he did.
- The three pilots were not stationary at 7.6 NM and did not see the city of Rouyn.
- Regarding separation, they saw him come out of the clouds at two o'clock and Mr. Osborne had not been cleared to come out of the clouds and risk a potential collision.
- Mr. Osborne maintained his VFR clearance while traversing the cloud layer and then notified the ATC for IFR clearance. It is not the duty of the air traffic controller to refuse VFR as long as the ceiling is 1,000 ft. and visibility is 3 statute miles, but it is up to the pilot to maintain his VFR.
- The applicant does not seem to understand what it is he did wrong, which prompts one to question his integrity.
- As for the time period between the offence and his letter of March 15, 2005, his chief pilot had been contacted February 15, 2005, and Mr. Osborne gave his version.
In counter-rebuttal, Mr. Osborne referred the Tribunal to RAC 6.2.2 of A.I.P. Canada:
6.2.2 VFR Release of an IFR Aircraft
When a delay is experienced in receiving an IFR departure clearance, a pilot may request approval to depart and maintain VFR until an IFR clearance can be received. The conditions in RAC 6.2.1 also apply in this situation. If the request for a VFR departure is approved, the pilot will be given a time, altitude or location at which to contact ATC for an IFR clearance. Depending upon the reasons for the IFR departure clearance delay, a VFR departure of an IFR flight may not be approved by the IFR unit. In situations such as these, it may be desirable for the pilot to wait for the IFR departure clearance. [Emphasis added.]
DISCUSSION OR REASONS
The Tribunal will not reproduce ad literam or in extenso the documentary and testimonial evidence presented by the two parties, but only the essential elements.
First of all, it is clear that Mr. Brian Osborne was indeed the pilot-in-command of flight PSC425 on December 13, 2004, at 19:20 hours, Rouyn (CYUY) local time.
His flight plan was in IFR for proceeding to the St-Hubert airport at Montréal.
The R NAV (GPS) plate for runway 08 at Rouyn (YUY) gives the following information:
122. 2 (MF5NM)
According to the applicant, he went from Val-d'Or to Rouyn with an IFR flight plan, but flew the first portion of his trip in VFR conditions.
The weather at YUY on December 13, 2004, i.e., at night, provided the following information: YUY SA (Sequence Airport) at 00:00Z (19:00 hours local time) mentioned a ceiling measured at 2,500 ft. above ground level, overcast, visibility 10 statute miles, temperature: -12 oC, dew point -14 oC, winds were from 330o at 9 knots with gusts to 15 knots, altimeter 988 and strato-cumulus 10/10 SO1/3026.
Mr. Osborne asked the air traffic controller at Montréal Centre for clearance for a VFR departure, which was granted.
According to standard 44, an air traffic controller may unblock the VFR of an IFR aircraft, but standard 441.1 states very clearly: [translation] "You may approve a request from an IFR aircraft to depart and remain in VFR until such time as it receives an IFR clearance provided you specify a time, altitude or location at which the aircraft must contact you for its IFR clearance."
He received this clearance of fact. There was a Boeing 737 ahead of Mr. Osborne that was taking off and he made sure his airspace complied with 6.2.1(d).
Prior to making his request, Mr. Osborne had been advised of a delay because flight JZA8759 had been cleared for an IFR approach and was at 6,000 ft. in descent.
The visual meteorological conditions (VMC) were met, i.e., visibility of 3 miles and a ceiling of 1,000 ft. for a departure.
However, two aircraft (JZA8759 and Propair) that were approaching from YUY in IFR mode, saw PSC425 above the cloud layer still in VFR flight with no IFR clearance which confirms that this was instrument meteorological conditions (IMC).
Three commercial pilots confirmed this to the Tribunal in their respective testimony, and Mr. Hamel's investigation confirmed the facts.
The applicant claims he continued in VFR conditions (VMC) until he received his IFR clearance. His first officer is not here to confirm this allegation, and according to the audiotapes this IFR clearance was not given or received before it was visually observed by the three pilots, who testified that the pilot-in-command of flight PSC425, Mr. Brian Osborne, was above the clouds in IFR conditions (IMC).
The Tribunal therefore believes that the Minister of Transport 's representative has met his burden of proof on the balance of probabilities for all the elements mentioned in CAR 602.114.
In this regard, pursuant to MET 1-4 of A.I.P. Canada – 1.1.5, reporting of ceilings, ie. > 5/8 was 2,500 ft.
The weather was OVC overcast, cumulative coverage 8/8 or 10/10. In passing through the cloud layer in VFR flight, PSC425 risked a collision in contravention of CARs 602.19(2) and (5). CAR 602.96(3)(b) is not very explicit regarding altitude and distance.
Also, RAC 3.8 of A.I.P. Canada states very clearly that it is important that the flight continue under VFR conditions until an appropriate ATC issues IFR clearance to a flight within controlled airspace and is acknowledged by the pilot.
Mr. Osborne referred to RAC 6.2.1 of A.I.P. Canada, ie. IFR clearance with VFR restrictions, while ensuring their own separation, including wake turbulence separation, from other IFR and VFR aircraft. He did indeed allow a Boeing 737 to take off, but this same RAC also states:
[...] Controllers normally issue traffic information concerning other IFR aircraft, particularly in marginal weather conditions. If compliance with the restriction is not possible, the pilot should immediately advise ATC and request an amended clearance.
Mr. Osborne did not do so.
Mr. Osborne also referred to RAC 6.2.2, VFR Release of an IFR Aircraft, which states:
[...] a delay is experienced in receiving an IFR departure clearance, a pilot may request approval to depart and maintain VFR until an IFR clearance can be received. The conditions in RAC 6.2.1 also apply in this situation. If the request for a VFR departure is approved, the pilot will be given a time, altitude or location at which to contact ATC for an IFR clearance. Depending upon the reasons for the IFR departure clearance delay, a VFR departure of an IFR flight may not be approved by the IFR unit. In situations such as these, it may be desirable for the pilot to wait for the IFR departure clearance.
Mr. Osborne did indeed receive a VFR departure clearance, but two IFR aircraft were on approach to land on runway 08 and PSC425 did not continue in VFR conditions and passed through the cloud layer, rated at 10/10, and ended up above it without IFR clearance.
Regarding the monetary penalty in the amount of $750, this is in accordance with CAR 103.08(2) (Designated Provisions) and was the maximum at the time of the offence which is now $5,000 since May 3, 2005.
Regarding the case law submitted (Minister of Transport and Parachutisme Aventure Inc./e.s.a. Aéro 3000, CAT File No. Q-1963-91), the Tribunal notes that it deals with a commercial pilot, a commercial airline company facing its first offence, but that any repeat offence must be avoided to ensure aviation safety and set an example for the aviation community.
This monetary penalty is therefore upheld.
Finally, in so many words, it was up to Mr. Osborne to allow the two aircraft on IFR approach to land or even to make sure that they had indeed seen him in order to avoid any potential conflict.
The Tribunal upholds the Minister's decision.
March 9, 2006
Dr. Michel Larose
Transportation Appeal Tribunal of Canada
 Minister of Transport v. Christian Albert,  CAT File No. Q-1878-33, Review Determination.
 J. Sopinka and S.N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) pp. 530-531.
 Minister of Transport v. Parachutisme Aventure inc./e.s.a. Aéro 3000,  CAT File No. Q-1963-41, Review Determination
 Minister of Transport v. Kurt William M. Wyer,  CAT File No. O-0075-33, Appeal Determination
Faye H. Smith, Pierre J. Beauchamp, Suzanne Racine
Decision: November 30, 2006
The appeal is dismissed. The appeal panel acknowledges that the findings of fact and credibility of the member at the review hearing are reasonable and must be confirmed. The total amount of the monetary penalty of $750 is to be made payable to the Receiver General for Canada and must be received by the Tribunal within 15 days of service of this decision.
 An appeal hearing on the above matter was held on Tuesday, August 8, 2006 at 10:00 a.m. at the Commission des lésions professionnelles in Montréal, Québec
 According to the notice of assessment of monetary penalty (notice) of July 13, 2005, the Minister of Transport charged Brian Osborne, acting as pilot-in-command of Pascan flight (PSC) 425, with conducting a take-off according to visual flight rules (VFR) in controlled airspace, namely at or near Rouyn, without maintaining visual reference to the surface on or about December 13, 2004 (the date of the offence was corrected from December 14 to December 13 at the review hearing), at approximately 0020Z hours. This take-off was conducted contrary to section 602.114 of the Canadian Aviation Regulations (CARs). The Minister assessed a penalty of $750 against Mr. Osborne. On July 27, 2005, the latter requested in writing that the Tribunal review the Minister's decision.
 On November 8, 2005, Dr. Michel Larose, member of the Tribunal, presided at a review hearing regarding the said decision and, after evaluating the evidence, upheld the Minister's decision.
 Mr. Osborne appealed Dr. Larose's determination made on March 9, 2006.
GROUNDS FOR THE APPEAL
 The appellant, Mr. Osborne, wanted to correct certain facts submitted at the review hearing which, in his view, were inconsistent with those on which the review member based his findings. To this end, he asked the appeal panel to hear the audiotapes of the communications that took place, on the one hand, between PSC 425 and the Montréal control centre and, on the other hand, examine the radar report 0024:45Z North Bay 2986 in relation to the content of Dr. Larose's determination.
 At the hearing, the Minister did not consider it was necessary to file the audiotapes and supporting radar report as evidence or to provide Mr. Osborne with the transcript of the audiotapes, since the Minister was using these documents only to establish that the take-off of PSC 425 had indeed been conducted in controlled airspace, a fact which Mr. Osborne confirmed at the review hearing. The Minister did, however, make these documents available to Mr. Osborne at the hearing.
 Louis Champagne, the Minister's representative, objected to having the panel hear and examine the audiotapes and the radar report, alleging, on the one hand, that this evidence was made available during the review hearing pursuant to section 14 of the Transportation Appeal Tribunal of Canada Act and, on the other hand, that the appellant chose not to rely on this evidence to support his position (transcript at 110, lines 9-10).
Decision on the Preliminary Motion
 The appeal panel concurs that the audiotapes and the radar report are not new evidence within the meaning of section 14 of the Transportation Appeal Tribunal of Canada Act, since the Minister's representative referred to them while presenting his evidence. In the panel's opinion, however, these audiotapes, which were intended only for the Minister to show that the alleged offence had occurred in controlled airspace, should nonetheless have been heard and their content placed on the record of the review hearing.
 Despite the fact that the audiotapes and the technical equipment were available to Mr. Osborne during the review hearing, the appeal panel is of the view that, since this was his first experience with the Tribunal and as he was representing himself, his choice not to have the audiotapes heard may have been influenced by a number of factors. In this regard, Mr. Osborne may have thought it would inconvenience the review member to take 20 minutes to hear the content of these audiotapes, especially when the Minister's representative had pointed out to the member that he did not request the transcript of the tapes "[f]or a lack of time and economy" (transcript at 20). Upon explaining his viewpoint, Mr. Osborne stated to the review member that he was disappointed that he did not request that he listen to the content of the audiotapes (transcript at 91, lines 10-12). Invited again by the Minister's representative to submit the audiotapes made available to him as evidence, Mr. Osborne once again decided not to have them heard when the member asked him for a transcript of the conversations recorded on them (transcript at 94, lines 4-22, and at 95, lines 1-14). It is the view of this panel that these circumstances later prevented him from presenting his position fairly and equitably.
 I n the interest of procedural fairness and the principles of natural justice which guide the Tribunal, the appeal panel, being master of its own procedure, agreed to hear the audiotapes at this hearing. In our view, the audiotapes were available at the review hearing and therefore could have been heard. Their content therefore does not constitute new evidence within the meaning of section 14 of the Transportation Appeal Tribunal of Canada Act. That being said, the audiotapes should have been heard at the review hearing since the Minister did not file transcripts. Before the said tapes were heard, Mr. Osborne provided the members of the appeal panel and the Minister's representative with a transcript that he had prepared.
 The panel did not examine the radar report since it was tainted by an irregularity committed by the Minister which could have misled the appellant as to the position of the aircraft conducting flight JZA 8759. Moreover, it constitutes new evidence at the appeal level and, in our view, is not necessary for purposes of the appeal.
 After the appeal panel heard the audiotapes, the appellant pointed out that he found that several facts referred to in the review member's determination were inconsistent with those contained in the audiotapes. The list is as follows:
1. The data from the Civil Aviation Daily Occurrence Reporting System (CADORS), as presented in the first paragraph of page 4 of Dr. Larose's determination, and on which the member relied, are inaccurate. Contrary to what they show, the pilot of PSC 425 had not been informed that there would be a delay prior to being cleared for take-off in VFR mode. PSC 425 had already taken off before JZA 8759 was cleared for an approach to Rouyn. By the time JZA 8759 called in at nine DME (distance measuring equipment), PSC 425 had left the Rouyn zone. PSC 425 was the only one moving within the zone between the time it took off to the time it left the zone.
2. The CADORS data on which the member relied mistakenly suggest that JZA 8759 [translation] "had visual reference" above the cloud layer. Communications with the Rouyn FSS show that JZA 8759 said that PSC 425 was seen above the cloud layer only when landing.
3. The member was misled by the CADORS data on which he relied, as they incorrectly show that the weather report provided a ceiling of 2 500 feet at the time of the incident. The conversations between PSC 425 and JZA 8759 and the Rouyn FSS do not mention a weather report providing a ceiling of 2 500 feet at the time the incident occurred south of Rouyn.
4. The member erred in stating in the second paragraph of page 6 of his determination that the witness, Guy Thibault, pilot-in-command of flight JZA 8759, transmitted a radio warning of 100 percent cloud layer. This information does not appear in the communications that took place between JZA 8759 and the Rouyn FSS.
5. The witness Thibault's comment that VFR flight was impossible since there was no visual reference to the ground (transcript at 43, lines 15-17), which was accepted by the member, contradicts the statements that the witness had seen the lights of the city of Val-d'Or to his right (transcript at 45, lines 18-20).
6. The member erred in stating in the last paragraph of page 6 of his determination that the witness Thibault did not see the Boeing 737 that took off before PSC 425. On the contrary, the conversations that took place between the Montréal control centre and JZA 8759 show that JZA 8759 did see traffic at 8 000 feet. In addition, the transcript clearly shows that the witness recalled seeing the Boeing 737 that took off before PSC 425 (transcript at 45, lines 22-25).
7. The second last paragraph of page 7 of Dr. Larose's determination wrongly infers that PSC 425 took off from runway 08.
8. The member's statement in the last paragraph of page 7 of his determination that JZA 8759 was in VFR mode while landing is inaccurate since the witness Michel Dumais, Mr. Thibault's co-pilot on flight JZA 8759, asserted that he conducted an IFR approach (transcript at 75, lines 17-22).
9. Mr. Osborne withdrew this comment.
10. The member erred in stating in the first paragraph of page 9 of his determination that PSC 425 took off from runway 08. The conversations exchanged between JZA 8759 and the Rouyn FSS show, on the contrary, that PSC 425 had just taken off about three minutes earlier from runway 26, was climbing to 11 500 feet in VFR heading for St-Hubert, then about seven to eight miles to the south.
11. It is not true that PSC 425 had no visual reference to the ground during its VFR take-off from Rouyn, as three commercial pilots told the member. The witness Ghislain Durocher, pilot of aircraft G 159, who did not recall noticing PSC 425 (transcript at 84, lines 13-16), could not legitimately argue that this aircraft had no visual reference to the ground. Also, the transcript shows that the witness Thibault, pilot-in-command of flight JZA 8759, stated that the cloud cover was 90 percent and that, while approaching Rouyn, he had seen lights to his right corresponding to the location of the city of Val-d'Or. In addition, if the witness Dumais, Mr. Thibault's co-pilot, was able to state clearly that he saw no lights to the north of the airport or the city, this suggests that he, like his captain, had some visual reference. Finally, although the witness Dumais asserted that he had seen no lights to the south of Rouyn, this is not sufficient to conclude that PSC 425 did not maintain visual reference to the ground, since there simply are no lights on the ground at that location.
12. In the first paragraph of page 16 of his determination, the member bases his findings on erroneous facts, namely that PSC 425, flown by Mr. Osborne, "had been informed of a delay" because JZA 8759, descending at 6 000 feet, had been cleared for an IFR approach.
13. The member based his findings on erroneous facts, namely that the witness Durocher had seen PSC 425 above the cloud layer, whereas the latter asserted that he did not recall seeing this aircraft (transcript at 84, lines 13-16).
14. In the fifth paragraph of page 16 of his determination, the member cannot base his findings on elements that were not submitted in evidence at the review hearing, namely the content of the audiotapes.
15. The third paragraph of page 17 of the member's determination is inaccurate in every respect: there was no aircraft on approach at the time of the incident and, according to the witness Thibault, the cloud layer was 90 percent and not 100 percent.
16. There could not have been a "potential conflict", as stated in the seventh paragraph of page 17 of the determination, since PSC 425 had already taken off from Rouyn and cleared the zone for the two aircraft descending towards the Rouyn airport.
 The Minister's representative pointed out to the panel that only one element of the alleged offence in the notice of July 13, 2005 was in dispute, namely the use of visual reference to the surface. Based on the testimony heard at the review hearing and on the weather report for Rouyn at the time of the offence, the review member, the trier of fact at that proceeding, found that the aircraft flown by Mr. Osborne did not maintain visual reference to the surface after being seen above the cloud layer during instrument flight weather conditions (ceiling measured at 2 500 feet above ground level and overcast).
 The Minister's representative reminded the panel that it could re-examine the findings of the review member only if they were unreasonable or if the member's determination was based on insufficient evidence. He also reiterated that the review member was in the best position to evaluate the evidence placed before him when conflicting with other evidence. The inconsistencies raised by the appellant as between the determination and the content of the audiotapes did not, in his view, challenge the member's finding that the appellant did not maintain visual reference to the surface while in VFR mode.
 According to the Minister's representative, the member's findings of fact and credibility are reasonable and must be confirmed. At the very least, the Minister's representative conceded to the appellant that the member could not base his findings, as he had done, on the information contained in the audiotapes. The Minister proved, on the balance of probabilities, all relevant elements of the offence as alleged in the notice of July 13, 2005, and in particular, that Mr. Osborne conducted a VFR take-off from the Rouyn airport without maintaining visual reference to the surface, as stipulated in section_602.114 of the CARs. The Minister's representative asked the panel to dismiss Mr. Osborne's appeal.
 At the outset, it is important to point out that the appellant does not dispute the relevant elements of the alleged offence, with the exception of the one referring to the ability to see visual references to the ground. Among other conditions, an aircraft in VFR flight in controlled airspace must be operated with visual reference to the surface, according to paragraph 602.114(a) of the CARs. The appellant alleged that he maintained visual reference to the ground at all times during his VFR flight departing from Rouyn on December 13, 2004.
 In order to allow the appellant to explain his grounds of appeal, the panel permitted him to hear the conversations that took place between various aircraft, including PSC 425 and JZA 8759, with the Rouyn FSS and the Montréal control centre on December 13, 2004. The appellant referred to them in order to challenge the testimony adduced by the Minister's representative. He also identified inaccurate facts in the member's determination relied upon by the latter which, in his view, were so decisive that the panel reverse the review determination.
 The panel considered the appellant's allegations regarding the disputed element of the offence. In its view, several allegations are redundant and shed little light on the fact that, according to the appellant, he maintained visual reference to the ground while in VFR flight. Aside from ground 9 of the appeal, withdrawn by the appellant, and ground 14, conceded by the Minister's representative, the fact of rectifying that PSC 425 actually took off from runway 26 rather than from runway 08 (grounds 7 and 10 of appeal) or that the member mistakenly stated somewhere in his determination that Mr. Thibault conducted a VFR approach when it is clearly stated in the third paragraph of page 16 of his determination that it was an IFR approach, are grounds that have no bearing on the matter in dispute by the appellant.
 The appellant argued that, contrary to the CADORS, he was not informed that there would be a delay due to JZA 8759 being cleared for an IFR approach (grounds 1, 12 and 16 of the appeal). The conversations heard between PSC 425 and the Rouyn FSS show, however, that this request for clearance could result in a delay since JZA 8759 and aircraft G 159 were respectively nine and 15 minutes from the Rouyn runway. The conversations that took place between the Boeing 737 and the Rouyn FSS indicate that the latter also informed the Boeing 737 of a possible delay; the Boeing 737 took off in IFR mode from runway 26 just before PSC 425. JZA 8759 was then 12 minutes away from the Rouyn runway and aircraft G 159 was 18 minutes away.
 That being said, this information does not in itself instruct the panel members as to whether the appellant maintained visual reference to the surface. Whether or not JZA 8759 caused a delay, the fact remains that the crew members of that aircraft, the witnesses, Messrs. Thibault and Dumais, testified that they saw PSC 425 to their right suddenly emerge from the cloud layer heading south as their aircraft was descending at about 8 000 feet, that is, above the cloud cover, evaluated by the Rouyn FSS at 2 500 feet. The conversations that took place between PSC 425 and the Montréal control centre in fact indicate that PSC 425 reported passing by JZA 8759 six miles south of Rouyn at an altitude of about 5 500 to 6 000 feet. Whether PSC 425 had left the Rouyn zone or not by the time JZA 8759 was cleared for its IFR approach towards runway 08 at Rouyn does not provide the panel with further information as to whether the appellant maintained visual reference to the surface during his VFR flight, but does confirm the approximate distances travelled by the aircraft and the altitudes.
 In arriving at the conclusions mentioned at page 17 of his determination that the appellant should have "allow[ed] the two aircraft on IFR approach to land or even to make sure that they had indeed seen him in order to avoid any potential conflict", the member inferred that, in his view, JZA 8759 and aircraft G 159 were approaching the zone and that a collision with PSC 425 was therefore possible. The conversations show that PSC 425 took off and left the zone shortly before JZA 8759 was first cleared for an IFR approach on runway 08 at Rouyn. Although it is proper to correct this fact, this information informs the panel a lot more about the potential for a collision than about whether the appellant maintained visual reference to the ground during his VFR flight, being the subject of the notice.
 The appellant pointed out that the Minister's witness, Mr. Thibault, stated that the cloud cover was 90 percent rather than 100 percent (grounds 4, 11 and 15 of the appeal) since he presumed that he saw the lights of the city of Val-d'Or, situated some 40 miles from the Rouyn airport. The transcript of Mr. Thibault's cross-examination confirms that this is correct (transcript at 45, lines 10-15). Notwithstanding this correction, it was not unreasonable for the member to conclude that the cloud cover was still fairly extensive and that the lights seen by Mr. Thibault to the south-southeast of Rouyn must not have been that clear and bright with just 10 percent less cloud cover. The co-pilot Dumais confirmed, even though he did not express the cloud cover as a percentage, there was [translation] "an overcast ceiling and absolutely no visual reference to the ground" (transcript at 63, lines 17-22). By definition, for a pilot, an overcast ceiling means an 8/8 summation amount of cloud coverage (Aeronautical Information Manual of Transport Canada, Meteorology, paragraph 3.15.3 (k)).
 Contrary to what the member stated in his determination, the appellant argues that Mr. Thibault clearly said in cross-examination that he recalled seeing the Boeing 737 (transcript at 45, lines 21-25). By the appellant's calculation, 13 miles separated JZA 8759 from the Boeing 737. The altitude of JZA 8759 was approximately 9 000 feet and that of the Boeing 737 was 5 000 feet when they saw each other (transcript at 46, lines 1-8). The conversations that took place between the Boeing 737, JZA 8759 and the Montréal control centre in fact confirm that, when at an altitude of 8 000 feet, JZA 8759 saw the Boeing 737, which was then at an altitude of 7 000 feet. This information is not very helpful to the panel since the two aircraft saw each other above the cloud layer, determined by the Rouyn FSS to be 2 500 feet.
 As a guide on the sky and weather conditions during the evening of December 13, 2004, the member relied on the weather report filed in evidence which states that at 0000Z hours (19:00 hours local time), there was a measured ceiling of 2 500 feet above ground level, overcast and stratocumulus 10/10. The member also accepted the testimony of Mr. Thibault, pilot-in-command of flight JZA 8759, who stated that this cloud layer below them prevented any visual reference to the ground and, therefore, any VFR flight. Mr. Thibault's statement was corroborated by his co-pilot, the witness Dumais. Both these witnesses also reported having seen an aircraft emerge suddenly from the clouds to their right while their aircraft was above the cloud cover at an altitude of about 5 000 or 6 000 feet and conducting an IFR approach towards the Rouyn airport. Mr. Dumais went on to say that the crew of flight JZA 8759 never considered cancelling their IFR approach and switching to a VFR approach (grounds 11 and 13 of the appeal). The crew cancelled the IFR approach only after there was visual contact with the Rouyn runway on short final.
 The review member was also guided by the testimony of Mr. Durocher, pilot of aircraft G 159 which arrived at Rouyn about 10 minutes after the take-off of PSC 425. Although he did not see PSC 425 with his own eyes (transcript at 84, lines 12-15), he could say that there had been an opaque cloud cover of at least 7/8 and did not recall maintaining visual reference to the ground that day.
 When faced with conflicting versions, the member must evaluate the evidence available to him and the credibility of the witnesses. In this case, the review member chose to accept the testimonies of the two pilots of flight JZA 8759 asserting that they saw PSC 425 emerge from the cloud layer, and to rely on their testimonies, corroborated by that of Mr. Durocher pertaining to the extent of the cloud cover (90 percent, 7/8) and the absence of visual reference to the ground. In addition, these testimonies were corroborated by the data from the weather reports for the Rouyn airport (referred to earlier) indicating an overcast ceiling at 2 500 feet.
 The role of the appeal panel is not to substitute its assessment of the facts for that of the review member, who had the advantage of hearing the parties, weighing their respective credibility, analysing both the documentary and testimonial evidence, and thus to re-examine the evidence presented at the review hearing merely to assess it differently, unless the member's assessment is unreasonable.
 The appeal panel acknowledges that the findings of fact and credibility of the review member are reasonable and must be upheld.
 The appeal is dismissed.
November 30, 2006
Reasons for Appeal Decision:
Suzanne Racine, Member
Faye H. Smith, Chairperson
Pierre J. Beauchamp, Member
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